State v. Richardson

763 N.W.2d 420, 17 Neb. Ct. App. 388
CourtNebraska Court of Appeals
DecidedSeptember 23, 2008
DocketA-07-1316
StatusPublished
Cited by5 cases

This text of 763 N.W.2d 420 (State v. Richardson) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Richardson, 763 N.W.2d 420, 17 Neb. Ct. App. 388 (Neb. Ct. App. 2008).

Opinion

763 N.W.2d 420 (2008)
17 Neb. App. 388

STATE of Nebraska, appellee,
v.
Ricky Lee RICHARDSON, appellant.

No. A-07-1316.

Court of Appeals of Nebraska.

September 23, 2008.

*423 Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.

INBODY, Chief Judge, and MOORE and CASSEL, Judges.

MOORE, Judge.

I. INTRODUCTION

Ricky Lee Richardson appeals from his conviction and sentence in the district court for Lancaster County for one count of driving during revocation, subsequent offense. Because the district court did not err in denying Richardson's motions to suppress or abuse its discretion in sentencing Richardson and because there was sufficient evidence in the record to support Richardson's conviction, we affirm.

II. BACKGROUND

Richardson's appeal arises out of his conviction and sentence following a traffic stop on September 4, 2006, in Lincoln, Nebraska, by Officer Jeremy Wilhelm of the Lincoln Police Department. Wilhelm initiated the traffic stop because he did not observe a front license plate on the vehicle. As Wilhelm was making the stop, he was able to see a license plate in the front window of the vehicle, although he could not see the numbers or letters on the plate. Wilhelm was later able to see that the license plate was on the dashboard, not fully upright, and not securely fastened in place. During the course of the stop, Wilhelm learned that Richardson's operator's license was suspended. Wilhelm then placed Richardson under arrest and drove him to the Lancaster County Corrections facility. Wilhelm did not read Richardson his Miranda rights at any time during his contact with Richardson.

The State filed an information on October 12, 2006, charging Richardson with one count of driving during revocation, subsequent offense, under Neb.Rev.Stat. § 60-6,197.06 (Cum.Supp.2006), a Class III felony.

*424 Richardson filed three separate motions to suppress, which were heard by the district court on January 11, 2007. The court received Wilhelm's testimony and heard arguments from counsel. We discuss the relevant portions of Wilhelm's testimony in the analysis section below.

The district court entered an order on January 29, 2007, overruling Richardson's motions to suppress. The court made certain findings of fact and then considered whether Wilhelm had grounds to stop Richardson's vehicle. The court reviewed the statutory requirements for the display of license plates and concluded Nebraska law requires that the front license plate be prominently displayed, securely fixed and upright, and on the front of the vehicle and that the letters and numbers be plainly visible during daylight and under artificial light at night. The court concluded that if the front plate is not displayed in a manner meeting these criteria, a violation occurs. The court found that in this case, Richardson's front license plate was in the vehicle, was not securely fixed, and was not upright, and the letters and numbers were not plainly visible to Wilhelm as he observed Richardson's vehicle travel on the street. The court found that Wilhelm had probable cause to stop Richardson's vehicle as it appeared from the evidence that Richardson was in violation of statutory provisions relating to the display of license plates. Upon concluding that the traffic stop was lawful, the court overruled Richardson's motions to suppress to the extent that they related to any visual or auditory impressions of Wilhelm during his contact with Richardson.

The district court then addressed Richardson's argument that his statements to Wilhelm should be suppressed on the basis that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court determined that Richardson was not in custody for purposes of Miranda during the relevant interaction with Wilhelm. The court also determined that Richardson's statements were freely, voluntarily, knowingly, and intelligently made and were not the product of promises, force, fear, oppression, or coercion.

Trial was held on May 21, 2007. The district court received exhibit 1 (trial stipulation), exhibit 2 (certified driver's abstract record), exhibit 3 (certified copy of prior conviction for third offense driving under the influence (DUI)), and exhibit 4 (certificate of incarceration), which were exhibits offered by the State. The trial stipulation, in which Richardson preserved his objection to the admission of the evidence targeted in his pretrial motions to suppress, provided that Wilhelm would testify consistent with his testimony at the suppression hearing. The court also received exhibit 5 (certified copy of Lincoln Mun.Code § 10.52.020), offered by Richardson.

Because not all of the evidence that the parties wished to present was available on May 21, 2007, trial was continued until July 2 for the presentation of further evidence. On July 2, the district court received exhibits 6 and 7 (certified copies of Lincoln city ordinances relating to DUI offenses), offered by the State, and exhibit 8 (bill of exceptions from the suppression hearing), offered by Richardson.

The district court entered an order on September 10, 2007, finding Richardson guilty of driving during a period of revocation. The court ordered a presentence investigation and set a date for an enhancement and sentencing hearing. We discuss the relevant provisions of the court's written opinion in the analysis section below.

On November 9, 2007, the district court received exhibits relevant to enhancement of the charge against Richardson and *425 found Richardson guilty of a subsequent offense for driving during revocation.

On November 26, 2007, the district court sentenced Richardson to incarceration for a period of 3 to 6 years, revoked Richardson's operator's license, and suspended his privilege to operate a motor vehicle for a period of 15 years. Richardson subsequently perfected his appeal to this court.

III. ASSIGNMENTS OF ERROR

Richardson asserts that (1) the district court erred in denying his motions to suppress, (2) the evidence was insufficient to support the guilty verdict, and (3) the court abused its discretion by imposing an excessive sentence.

IV. ANALYSIS

1. MOTIONS TO SUPPRESS

Richardson asserts that the district court erred in denying his motions to suppress. Richardson argues that there was not a traffic violation in this case warranting the stop and that because the stop itself was illegal, any evidence seized as a result of the stop and any statements made by Richardson during the resulting investigation should have been suppressed.

(a) Standard of Review

A trial court's ruling on a motion to suppress based on the Fourth Amendment, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008).

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Bluebook (online)
763 N.W.2d 420, 17 Neb. Ct. App. 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richardson-nebctapp-2008.