State v. Sherrod

27 Neb. Ct. App. 435, 932 N.W.2d 880
Nebraska Court of Appeals·Decided July 30, 2019·No. A-18-593.·Published·Cited by 16 cases

Opinion

Riedmann, Judge.

*885 *437 INTRODUCTION

Jaquez S. Sherrod was convicted in the district court for Douglas County of manufacturing, distributing, or possession with intent to distribute 10 to 28 grams of crack cocaine with a firearm and possession of a deadly weapon (firearm) by a prohibited person. On appeal, he alleges that the evidence was insufficient to support the convictions and that he received ineffective assistance of counsel in four respects. We conclude that the record on direct appeal is sufficient to address only one of the ineffective assistance of counsel claims. We find the evidence was sufficient to support the convictions and therefore affirm.

BACKGROUND

On September 26, 2017, Sherrod was charged with manufacturing, distributing, or possession with intent to distribute a controlled substance (crack cocaine) with a firearm, a Class IC felony, and possession of a deadly weapon (firearm) by a prohibited person, a Class ID felony. At trial, the evidence revealed that on September 13, the Omaha Police Department SWAT team executed a "no-knock search warrant" at a residence located on North 18th Street in Omaha, Nebraska. Sherrod was the subject of the search warrant. The SWAT team broke down the front door to the residence, looked inside, and observed Sherrod at the opposite end of the residence. The SWAT team then deployed a "flash bang" distraction device before entering the home. Sherrod and another male were located in an upstairs bedroom.

The residence was searched, and officers located a set of keys in the bedroom on the first floor. The keyring had two keys on it. One was a key to a vehicle that was registered to Sherrod and parked about a block away from the 18th Street residence. The other key was described as an "older style skeleton key" and "a pretty antique or old looking key." That key fit into the lock on the door to the first floor bedroom.

*438 There was a closet and bathroom inside the first floor bedroom. Officers found a "hollowed out" area on the top of the doors to the closet and bathroom, and each hollowed-out area held two plastic baggies containing crack cocaine. Officers also found a baggie of crack cocaine on the floor in the kitchen at the base of the stairs going upstairs. The parties stipulated that each of the five baggies contained approximately 3 grams of crack *886 cocaine, and testing concluded that the substance was, in fact, crack cocaine and that the total weight of all five baggies combined was approximately 13.452 grams.

Using the key found in the first floor bedroom, officers searched Sherrod's vehicle and found sandwich baggies in the center console. Inside the residence, police found digital scales and glass plates with razor blades. When Sherrod was arrested at the scene, he was carrying $833 in cash on his person in a combination of bills no larger than a $20 bill.

An Omaha police officer with special training in the field of narcotics testified that "street level" crack cocaine dealers sell drugs for cash and commonly use weapons, such as firearms, to protect their business. He explained that crack cocaine is cut with a razor or knife and normally packaged in small sandwich baggies. A dose of crack cocaine is .2 grams, which sells for $20. Thus, an amount between 10 and 15 grams of crack cocaine is an amount consistent with distribution.

Officers also found a firearm in the dresser drawer in the first floor bedroom. The parties stipulated that Sherrod was prohibited from possessing a weapon because he had previously been convicted of a felony. Testing revealed that there was DNA from at least three people on the firearm. A DNA analyst explained that Sherrod could not be excluded as a partial profile contributor to the DNA found on the firearm. The probability of a random individual's matching the partial DNA profile within the mixture, given that Sherrod expresses such a profile, is approximately 1 in 5.76 million. There are currently approximately 1.9 million people in the State of Nebraska.

*439 Although Sherrod could not be excluded as a contributor to the DNA found on the firearm, the DNA analyst explained that it is possible for DNA to be transferred onto an item that someone did not touch. For example, if someone owns a hammer and shakes someone else's hand and then touches their own hammer, the DNA of the person whose hand they shook could be transferred onto the hammer. Generally, however, the most DNA found on the item touched would come from the person who actually touched the item.

As a result of the execution of the search warrant and location of the crack cocaine and firearm, Sherrod was arrested. The following day, he made a telephone call from jail which was recorded. In the call, he asked the male to whom he was speaking if he had "been back to the house." The recipient of the call said that he had, but that he did not want to talk because he knew the call was being recorded. Sherrod then asked whether he "check[ed] the door" when he went to the house.

During its case in chief, the State made an oral motion in limine because the defense had indicated a desire to inquire into how Sherrod became the subject of the search warrant. The State explained that Sherrod became the target for the warrant because police had completed a controlled buy of crack cocaine 2 days before executing the search warrant and that the confidential informant had identified Sherrod as the person who sold the drugs from the 18th Street residence. The State indicated that it had not charged Sherrod with any crimes related to the controlled buy because it did not want to disclose the identity of the informant. The controlled buy was audio and video recorded, and thus, in order to protect the identity of the informant, the district court granted the motion in limine except to the extent the video could be manipulated to remove any identifying features of the informant.

During the defense's case, several law enforcement officers were recalled to the *887 stand, and the defense elicited testimony as to why Sherrod was named as a suspect in the search warrant, *440 which led to an explanation of the controlled buy. The video recording of the controlled buy was marked as an exhibit, and Sherrod offered it into evidence. The State objected and invoked its privilege under Neb. Rev. Stat. § 27-510 (Reissue 2016) to protect the identity of the informant. The court sustained the objection.

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State v. Sherrod, 27 Neb. Ct. App. 435, 932 N.W.2d 880 (Neb. Ct. App. 2019).

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State v. Sherrod
27 Neb. Ct. App. 435 (Nebraska Court of Appeals, 2019)