State v. Nolt , 298 Neb. 910 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    02/09/2018 08:13 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. NOLT
    Cite as 
    298 Neb. 910
    State of Nebraska, appellee, v.
    Michael A. Nolt, appellant.
    ___ N.W.2d ___
    Filed February 9, 2018.   No. S-17-073.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, which an appellate court reviews independently of the lower
    court’s determination.
    3.	 Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    4.	 Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    5.	 Search and Seizure: Search Warrants. In the absence of a clear show-
    ing of prejudice, the failure to comply strictly with postservice statutory
    requirements will not invalidate a search conducted pursuant to an oth-
    erwise valid warrant.
    6.	 ____: ____. A failure in the ministerial act of returning and filing a
    search warrant does not void the warrant.
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    STATE v. NOLT
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    298 Neb. 910
    7.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel, the defendant must show that counsel’s represen-
    tation fell below an objective standard of reasonableness and, but for
    counsel’s deficient performance, there is a reasonable probability that
    the result of the trial would have been different. A reasonable probability
    is a probability sufficient to undermine confidence in the outcome of
    the trial.
    8.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    9.	 Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
    ineffective assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.
    10.	 Due Process: Police Officers and Sheriffs: Identification Procedures.
    Due process concerns arise when law enforcement officers use unneces-
    sarily suggestive means to procure an identification.
    11.	 Police Officers and Sheriffs: Identification Procedures: Pretrial
    Procedure. Even when the police use unnecessarily suggestive means to
    procure an identification, the suppression of the resulting identification
    is not the inevitable consequence. Instead, the trial judge must screen the
    evidence for reliability pretrial.
    12.	 ____: ____: ____. Identification evidence must be screened for reliabil-
    ity pretrial whenever it is obtained via unnecessarily suggestive proce-
    dures arranged by law enforcement officers.
    13.	 Rules of Evidence: Hearsay. For a statement to qualify as an excited
    utterance, the following criteria must be established: (1) There must
    have been a startling event, (2) the statement must relate to the event,
    and (3) the statement must have been made by the declarant under the
    stress of the event.
    14.	 Rules of Evidence: Hearsay: Proof. The key requirement to the excited
    utterance exception is spontaneity, which requires a showing that the
    statements were made without time for conscious reflection.
    15.	 Rules of Evidence: Hearsay. An excited utterance does not have to be
    contemporaneous with the exciting event. It may be subsequent to the
    event if there was not time for the exciting influence to lose its sway.
    The true test is not when the exclamation was made but whether, under
    all the circumstances, the declarant was still speaking under the stress of
    nervous excitement and shock caused by the event.
    16.	 ____: ____. Facts relevant to whether a statement is an excited utterance
    include the declarant’s manifestation of stress, the declarant’s physical
    condition, and whether the declarant spoke in response to questioning.
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    STATE v. NOLT
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    17.	 Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements
    made in response to questions from law enforcement in particular do
    not generally have inherent guarantees of reliability and trustworthi-
    ness. But the declarant’s answer to a question may still be an excited
    utterance if the context shows that the statement was made without
    conscious reflection.
    18.	 Search and Seizure: Police Officers and Sheriffs: Evidence: Proof.
    Under the inevitable discovery doctrine, evidence obtained without a
    valid warrant is nonetheless admissible if the State shows by a prepon-
    derance of the evidence that the police would have obtained the disputed
    evidence by proper police investigation entirely independent of the ille-
    gal investigative conduct.
    19.	 Constitutional Law: Search and Seizure. For purposes of the Fourth
    Amendment, a search occurs when the government violates a subjective
    expectation of privacy that society recognizes as reasonable.
    20.	 ____: ____. For purposes of the Fourth Amendment, a seizure of prop-
    erty occurs when there is some meaningful interference with an indi-
    vidual’s possessory interests in that property.
    21.	 ____: ____. As a general rule, a person has no reasonable expectation of
    privacy in places readily accessible to the public.
    22.	 Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and
    Error. When reviewing a claim of ineffective assistance of counsel, trial
    counsel is afforded due deference to formulate trial strategy and tactics,
    and an appellate court will not second-guess reasonable strategic deci-
    sions by counsel.
    23.	 Effectiveness of Counsel: Presumptions. When considering whether
    trial counsel’s performance was deficient, there is a strong presumption
    that counsel acted reasonably.
    Appeal from the District Court for Douglas County: Timothy
    P. Burns, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
    appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
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    STATE v. NOLT
    Cite as 
    298 Neb. 910
    K elch, J.
    I. NATURE OF CASE
    After a jury trial, Michael A. Nolt was convicted of first
    degree murder, manslaughter, two counts of use of a deadly
    weapon to commit a felony, and possession of a deadly weapon
    by a prohibited person. Nolt appeals his convictions, alleging
    that evidence obtained pursuant to an alleged invalid warrant
    should have been excluded. Nolt also alleges three ineffective
    assistance of counsel claims.
    II. FACTS
    At around 2:11 a.m., on October 10, 2015, Omaha police
    received a report of a shooting at a residence in the northwest
    precinct of Omaha, Nebraska. After knocking and receiving no
    response, police entered the residence and immediately discov-
    ered the motionless, wounded body of Aurelius Hassell lying
    on the couch with his sweatpants pulled down to his knees.
    They then heard a female voice coming from down the hall-
    way and found Tommynique Valentine, who advised them that
    she had been shot in the leg. In another bedroom, six children
    were found unharmed. Officers then asked Valentine if there
    was anyone else in the house, and she told them about another
    victim, Malquan King, in a bedroom closet. When an officer
    went to check on King, he was motionless and not breathing.
    King and Hassell were later pronounced dead. In connection
    with the shooting, Nolt was charged with first degree murder,
    attempted murder, and use of a firearm to commit a felony,
    among other charges.
    At trial, the State called a number of witnesses. Valentine
    testified about the events that occurred at her house on the
    night of the shootings, and officers testified about the inves-
    tigation that followed. The State also introduced redacted ver-
    sions of telephone calls that Nolt made to his mother while in
    jail. After the State rested, Nolt testified in his own defense.
    1. Night of Shootings
    At trial, Valentine testified about the events that occurred at
    her house the night of the shootings. She testified that at the
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    time of the incident, she was in a relationship with King. King
    was coming back to Omaha after traveling with his friend,
    Hassell, and another man whom Valentine had never met.
    According to Valentine, King had referred to this latter person
    as his “‘white homeboy.’”
    Valentine and King had planned for King to stay the night at
    Valentine’s house that night. Valentine had been in contact with
    him before she fell asleep around 10 p.m. on October 9, 2015.
    At approximately 2 a.m., the next day, she awoke to the sound
    of the doorbell. King, Hassell, and the white male were out-
    side, and a white Chevrolet Impala was parked in the driveway.
    Valentine let King and Hassell into the house, and they talked
    in the front room for a few minutes before Hassell went back
    outside. Hassell then came back in and asked if the white male
    could use the bathroom. Valentine said, “Sure.”
    According to Valentine, she walked back to her bedroom
    with King while Hassell stayed in the front room. Valentine
    testified that Hassell was sitting on the couch and was “on his
    phone.” When Valentine got to her bedroom, she discovered
    her 3-year-old daughter was asleep on the bed, so she picked
    her daughter up and carried her to a bedroom where other chil-
    dren were sleeping. As Valentine carried her daughter down
    the hall, she crossed paths with the white male who was on
    his way to the bathroom. The white male nodded his head, and
    Valentine said, “[H]ello.”
    Valentine testified that she got “a good look” at the white
    male. She described him as “clean cut” and wearing glasses,
    a white long-sleeved dress shirt, khaki pants, and black
    dress shoes.
    While Valentine was putting her daughter to bed, King got
    ready for bed. According to Valentine, King had taken off his
    clothes and placed them in her hamper. (The clothes were later
    found folded on the bed.) Valentine sat on the bed and waited
    for the white male and Hassell to leave so that she could turn
    off the lights and lock her door.
    A moment later, the bathroom door opened and Valentine
    heard “pop, pop, popping sounds.” Unsure of what the sound
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    was, she told King to go check it out. Instead, King asked
    Valentine if she had a gun. Valentine then became worried,
    and she went and hid in her closet. King was on his way
    to hide in the closet with Valentine when Valentine heard
    louder popping noises and saw King’s face change. King had
    been shot.
    Valentine did not see the shooter, but heard the sound of
    dress shoes walking away down the hall. She then heard more
    shots fired. Next, Valentine heard the sound of dress shoes
    walking back to the bedroom and heard a voice say, “Talk
    to me, Talk to me. Are you okay?” Valentine did not make a
    sound. After that, additional shots were fired and Valentine was
    struck in the leg. Valentine then heard the sound of shoes again
    and heard the front door open and close. After she heard the
    front door close, Valentine came out of the closet, grabbed her
    cell phone from the nightstand, and went back into the closet
    to call the 911 emergency dispatch service.
    Valentine was taken to a hospital for treatment. As she was
    being transported to an ambulance, she saw that the white
    Impala was gone.
    2. Investigation
    Omaha police officers testified at trial about the investiga-
    tion that followed the shootings. When officers arrived at the
    scene, they found Hassell deceased in the living room and
    King deceased in the bedroom. They also found a number of
    gun shells throughout the house. Photographs of the scene were
    entered into evidence.
    The photographs show Hassell lying on the couch with his
    feet on the floor and his hands curled up near his face. One
    cell phone was on the ground between Hassell’s feet, and
    another one was on the couch. King was found lying just inside
    Valentine’s bedroom closet. Two cell phones were found in
    the bedroom, one on the bed and one on the ground near the
    bedroom door.
    King’s cell phone contained information that eventually
    led police to Nolt. From King’s cell phone, a detective in the
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    digital forensics unit was able to retrieve photographs and the
    Global Positioning System (GPS) coordinates of where the
    photographs were taken. One of the photographs was a “selfie”
    of King—a photograph King had taken of himself, a week
    before his death. Nolt was in the background. From the GPS
    coordinates imbedded in the photograph’s file, the detective
    determined that the photograph was taken at a hotel in Fort
    Wayne, Indiana. An officer investigating the case contacted
    the hotel’s manager. The officer asked the manager if either
    King or Hassell had rented a room there. The manager indi-
    cated that neither had. Later, however, the manager called the
    officer back to provide further information that she felt might
    be relevant to their investigation, including Nolt’s name. The
    manager also provided officers with still photographs from
    the hotel’s surveillance video showing Nolt talking to front
    desk staff.
    Nolt was featured in another photograph on King’s cell
    phone. The GPS information imbedded in that photograph
    indicated that it was taken 1 week before King’s death at a car
    rental company in Fort Wayne.
    As part of their investigation, officers spoke to a couple of
    King’s friends. One of these friends, Alejandro Luna, testified
    at trial that Nolt was traveling with King and Hassell because
    they could not get a rental car in their name, but Nolt got one
    for them in his name.
    After police learned Nolt’s name and other details about the
    rental vehicle from the car rental company, they sought and
    received a search warrant for OnStar Corporation (OnStar),
    which services GPS devices in vehicles, to provide the rental
    car’s GPS data to police. The Impala was tracked to a residence
    in Mesa, Arizona. Information regarding the case was relayed
    to Mesa police, and a local task force went to the residence.
    Members of the task force saw Nolt and another male leave
    the residence in the Impala, and they followed the two men to
    a nearby discount department store. Nolt went into the store
    and purchased .40-caliber ammunition. After Nolt returned to
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    the Impala, the task force took Nolt into custody in the store
    parking lot.
    Later that day, police executed a search warrant at the
    Mesa residence. They found a black duffelbag containing
    items belonging to Nolt, including an Indiana driver’s license,
    an Arizona identification card, and a .40-caliber Smith &
    Wesson handgun, the same caliber of firearm used to kill King
    and Hassell.
    Nolt’s cell phone records were also subpoenaed as part of
    the investigation. An officer who analyzed the records testi-
    fied that the records show that Nolt placed a call from Walnut,
    Iowa, at 3:14 a.m., approximately 1 hour after the shooting.
    Later that morning, another call was placed from Kansas City,
    and at 6:30 p.m., in the Denver, Colorado, area. The next day
    calls were made from Santa Fe and Albuquerque, New Mexico,
    and Phoenix, Arizona.
    3. Jail Calls
    The State offered as exhibits recordings of three telephone
    calls Nolt made to his mother while in jail. Redacted versions
    of the recordings were admitted into evidence.
    In the first call, Nolt and his mother were discussing where
    his glasses were. His mother told him that the detective told
    her that they did not have Nolt’s glasses. Nolt told her, “They
    got all my glasses.” He told her that one pair of glasses was
    “wherever the gun was at” and that “[m]y glasses were in
    my suitcase.”
    In the second call, Nolt told his mother, “Hey, you know
    what some guys were saying?” He said, “they say, ‘You were
    one shot away,’” and he laughed. His mother asked him,
    “What’s that mean?” Nolt replied that “[Valentine] should have
    been killed, too.” Nolt laughed again. Then his mother laughed
    and said, “You know I said the same thing? I said . . . ‘Your
    aim ain’t very good, is it?’ Didn’t you have your glasses on you
    . . . ?” Nolt and his mother laughed. His mother said, “Right?”
    Nolt laughed again and said, “Oh, I don’t know anything about
    what you’re talking about.” They both laughed again.
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    In the third call, Nolt told his mother, “[Valentine] was so
    mad at me, you would think I killed her boyfriend or some-
    thing.” Nolt then laughed.
    4. Nolt’s Testimony
    Nolt ultimately testified that he shot King and Hassell in
    self-defense.
    Nolt testified that a couple of weeks before the incident in
    Omaha, King, Hassell, and Luna were shot at outside of an
    apartment building by “a tall black guy.” At that time, Hassell
    was shot in the buttocks.
    Nolt also testified about the days leading up to the shooting
    in Omaha. He testified that he, King, and Hassell were travel-
    ing together and that they had gone to Kansas City to pick up
    some of Hassell’s property and then to Omaha to see King’s
    girlfriend, Valentine.
    Nolt then testified about the events that occurred at
    Valentine’s house on the night of the shootings. He testified
    that when they arrived at Valentine’s house, he asked to go
    inside and use the bathroom. When he went inside, he saw
    Hassell sitting on the couch in the living room with a gun and
    a bag of marijuana out. According to Nolt, after he returned to
    the living room from using the bathroom, he told Hassell that
    he was leaving and asked for the car keys. Nolt claimed Hassell
    then said, “no, you ain’t going anywhere” and grabbed his gun,
    so Nolt “fired on him.” Nolt testified that he then heard King
    asking for a gun, so he went to the bedroom and shot King as
    well. When he returned to the living room, Hassell “jump[ed]
    at” Nolt and Nolt fired the gun again. Afterward, Nolt drove
    to Arizona to stay with a friend, and on the way, he threw
    Hassell’s gun away at a rest stop.
    Nolt testified that to get money in Arizona, he sold the
    property that Hassell had picked up in Kansas City, along with
    some video games that King had stolen a few days before the
    shooting. On cross-examination, Nolt testified that he knew
    Hassell carried a lot of cash on him.
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    5. Verdicts and Sentences
    The jury convicted Nolt of first degree murder for the
    killing of King, manslaughter for the killing of Hassell, two
    counts of use of a deadly weapon to commit a felony, and pos-
    session of a deadly weapon by a prohibited person. He was
    acquitted on the charges related to the shooting of Valentine.
    He was sentenced to life in prison for King’s murder, to 45 to
    50 years’ imprisonment for use of a deadly weapon to commit
    a felony, to 18 to 20 years’ imprisonment for the manslaughter
    of Hassell, to 18 to 20 years’ imprisonment for use of a deadly
    weapon to commit a felony, and to 45 to 50 years’ impris-
    onment for possession of a deadly weapon by a prohibited
    person. All five of Nolt’s sentences were to be served consecu-
    tively, resulting in an aggregate sentence of life imprisonment
    plus 126 to 140 years’ imprisonment.
    Additional facts are set forth below as they are relevant for
    analyzing the issues presented.
    III. ASSIGNMENTS OF ERROR
    Nolt assigns that the district court erred when it permitted
    the State to introduce evidence derived from the warrant for
    Nolt’s GPS data. Nolt also assigns that his trial counsel was
    ineffective for failing to object to an officer’s hearsay state-
    ment, failing to move to suppress Valentine’s in-court iden-
    tification, and failing to “adequately investigate and present
    several aspects of Nolt’s defense.” Finally, Nolt assigns that
    the cumulative effect of the ineffective assistance provided
    by trial counsel deprived Nolt of his constitutional right to a
    fair trial.
    IV. STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protections is a question of
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    law that an appellate court reviews independently of the trial
    court’s determination.1
    [2] Statutory interpretation presents a question of law, which
    we review independently of the lower court’s determination.2
    [3] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact.3 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error.4 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    articulated in Strickland v. Washington,5 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision.6
    V. ANALYSIS
    Before delving into the assignments of error, we note that
    the State claims Nolt waived all error regarding the evidence
    that established Nolt as the shooter because Nolt himself testi-
    fied that he was the shooter. Nolt, on the other hand, argues
    that such evidence should not have been admitted and that
    the error forced him to abandon a misidentification theory of
    defense and instead testify to support a self-defense theory.
    Nolt claims that if the evidence in question was not admit-
    ted, his misidentification theory would have remained a viable
    defense, and that he would not have testified, which would
    have resulted in a reasonable probability of a different outcome
    in his case.
    [4] Because the case is resolvable without deciding this
    issue, we decline to address the State’s argument. An appellate
    1
    State v. Jasa, 
    297 Neb. 822
    , 
    901 N.W.2d 315
    (2017).
    2
    State v. Smith, 
    286 Neb. 77
    , 
    834 N.W.2d 799
    (2013).
    3
    State v. Rocha, 
    286 Neb. 256
    , 
    836 N.W.2d 774
    (2013).
    4
    Id.
    5
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984).
    6
    State v. Rocha, supra note 3.
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    court is not obligated to engage in an analysis that is not neces-
    sary to adjudicate the case and controversy before it.7
    1. Validity of OnStar Warrant
    Nolt first assigns that the district court erred in permitting
    the State to introduce evidence derived from a warrant that
    Nolt claims is invalid. Before analyzing Nolt’s claim, we set
    forth additional facts relevant to the issue presented.
    (a) Additional Facts
    Prior to trial, Nolt filed a motion to suppress any and all evi-
    dence derived from the Onstar search. This evidence includes
    property found during the search of the Impala and the search
    of the residence in Mesa. In the motion, Nolt alleged that the
    Onstar search was unlawful under the Fourth Amendment,
    because it was not authorized by a valid warrant.
    Nolt claims that the warrant was invalid, because the officer
    who obtained the warrant failed to comply with the following
    statutory requirements:
    (1) The warrant must be executed and returned within
    ten days after its date. The officer taking property under
    the warrant shall give to the person from whom or from
    whose premises the property was taken a copy of the war-
    rant and a receipt for the property or shall leave the copy
    and the receipt at the place from which the property was
    taken. . . . The inventory shall be made in the presence of
    the applicant for the warrant and the person from whose
    possession or premises the property was taken if they are
    present, or in the presence of at least one credible witness
    other than the applicant for the warrant or the person from
    whose possession or premises the property was taken, and
    shall be verified by the officer. The judge or magistrate
    shall deliver a copy of the inventory upon request to the
    person from whom or from whose premises the property
    was taken and to the applicant for the warrant.
    7
    State v. Huston, ante p. 323, 
    903 N.W.2d 907
    (2017).
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    (2) The return and inventory required by subsection
    (1) of this section may be submitted to the magistrate or
    judge in person or by facsimile or other electronic means.8
    The officer who obtained the warrant for OnStar gave a
    copy to a deputy U.S. marshal for service with OnStar. After
    that, the officer placed the original warrant in his desk drawer
    and did not return it until July 19, 2016, after an attorney for
    the State contacted him about it. When asked why he did not
    return it sooner, the officer stated, “I didn’t realize I had to. I
    didn’t look at it like a regular search warrant because I wasn’t
    looking for property. And then on top of that, we’re extremely
    busy. And once it was in my desk drawer, I honestly forgot
    about it.”
    After the hearing, the district court found that the fact that
    the warrant was not returned within 10 days was purely a min-
    isterial defect and did not negate the validity of the warrant.
    Therefore, it determined that the OnStar search was conducted
    pursuant to a valid warrant and thus denied Nolt’s motion to
    suppress the evidence derived from the OnStar search.
    (b) Analysis
    On appeal, Nolt argues that the district court erred in deny-
    ing his motion to suppress. The State argues that suppression
    is not a remedy for the violation of § 29-815. It argues that
    the officer’s failure to return the warrant within the time limit
    provided by § 29-815 was purely a ministerial defect and that
    such errors do not render a warrant invalid. In this instance,
    we agree.
    [5,6] We have previously stated that in the absence of a
    clear showing of prejudice, the failure to comply strictly
    with postservice statutory requirements will not invalidate
    a search conducted pursuant to an otherwise valid warrant.9
    We have specifically stated that “a failure in the ministerial
    8
    Neb. Rev. Stat. § 29-815 (Reissue 2016).
    9
    State v. Hinton, 
    226 Neb. 787
    , 
    415 N.W.2d 138
    (1987); State v. McCown,
    
    189 Neb. 495
    , 
    203 N.W.2d 445
    (1973).
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    act of returning and filing a search warrant does not void the
    warrant.”10 Thus, here, where there is no clear showing of
    prejudice, the officer’s failure to return the warrant did not
    invalidate it.
    In his reply brief, Nolt argues that although ministerial
    defects do not typically render a warrant invalid, such defects
    should render a warrant invalid when the police deliberately
    and intentionally disregard the ministerial rule, citing State v.
    Moore.11 Nolt argues that the officer deliberately and intention-
    ally disregarded § 29-815. We note that it is unclear whether
    Nolt made this argument to the trial court. His brief in support
    of his motion to suppress is not made a part of the record, and
    the trial court did not explicitly address that argument.
    Regardless, we find that Moore does not apply to this case.
    In Moore, the Nebraska Court of Appeals was considering
    whether a violation of a procedural rule regarding nighttime
    searches invalidated a search, whereas here we were are deal-
    ing with a postservice statutory requirement, which is ministe-
    rial in nature.
    Because the officer’s failure to timely return the warrant
    was a ministerial defect that did not prejudice Nolt’s trial, the
    failure to timely return it did not invalidate it, and Nolt’s first
    assignment of error is without merit.
    2. Ineffective Assistance
    of Counsel Claims
    [7] Nolt next asserts three claims of ineffective assistance
    of counsel. To prevail on a claim of ineffective assistance of
    counsel, the defendant must show that counsel’s representation
    fell below an objective standard of reasonableness and, but for
    counsel’s deficient performance, there is a reasonable prob-
    ability that the result of the trial would have been different.12
    10
    State v. 
    Hinton, 226 Neb. at 800
    , 415 N.W.2d at 146.
    11
    State v. Moore, 
    2 Neb. Ct. App. 206
    , 
    508 N.W.2d 305
    (1993).
    12
    See Strickland v. Washington, supra note 5.
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    A “reasonable probability is a probability sufficient to under-
    mine confidence in the outcome [of the trial].”13
    [8,9] The fact that an ineffective assistance of counsel claim
    is raised on direct appeal does not necessarily mean that it can
    be resolved.14 The determining factor is whether the record is
    sufficient to adequately review the question.15 An ineffective
    assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.16 We conclude
    that the record is sufficient to address all of Nolt’s ineffective
    assist­ance claims.
    (a) Failure to Move to Suppress Valentine’s
    In-Court Identification of Nolt
    Nolt assigns that his trial counsel was ineffective because
    he failed to move to suppress Valentine’s in-court identifica-
    tion of Nolt. Nolt argues that Valentine’s in-court identifica-
    tion should not have been admitted because it was corrupted
    by improper police conduct occurring after Valentine identi-
    fied Nolt in a photographic lineup.
    (i) Additional Facts
    Prior to trial, no motion was made to suppress Valentine’s
    in-court identification of Nolt. At trial, Valentine was asked to
    identify the white male that was in her house on October 10,
    2015, and she indicated it was Nolt.
    On cross-examination, Valentine was asked about her out-of-
    court identification of Nolt. The State objected to that line of
    questioning, and during a sidebar, counsel for Nolt explained
    that he was trying to show that Valentine’s in-court identi-
    fication was unreliable because of police misconduct occur-
    ring after her out-of-court identification of Nolt. Counsel for
    13
    
    Id., 466 U.S.
    at 694.
    14
    State v. Watt, 
    285 Neb. 647
    , 
    832 N.W.2d 459
    (2013).
    15
    
    Id. 16 Id.
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    Nolt represented to the court that a photographic lineup was
    done by one officer and that when another officer came in,
    Valentine asked him how she did. That officer allegedly stated,
    “Well, I’m not allowed to say, but by the way, as a result of
    your identification, we’re going to arrest somebody.” The
    State’s objection to the line of questioning was overruled, and
    defense counsel was allowed to question Valentine about state-
    ments made after the out-of-court identification. The following
    exchange occurred:
    Q. . . . [D]id you inquire of that second officer, How’d
    I do?
    A. I wouldn’t say I said that [sic] exact words.
    Q. You wanted to know if you were correct?
    A. I knew I was correct. I just . . .
    Q. Did you ask, Was I correct?
    A. I don’t recall.
    Q. Do you recall him telling you, I’m not supposed to
    tell you that?
    A. I recall him saying we can’t discuss, or something
    of that nature. I don’t know the specifics. That’s over a
    year ago.
    Q. Okay. Do you recall him saying even though he’s
    not supposed to discuss specifics, he then discussed some-
    one being arrested?
    A. No. Because I didn’t . . .
    Q. Okay. Nothing further on that subject.
    (ii) Analysis
    To prevail on this claim of ineffective assistance of coun-
    sel, Nolt must show that the failure to move to suppress
    Valentine’s in-court identification fell below an objective stan-
    dard of reasonableness and that if such motion had been
    made, a reasonable probability exists that the result of the trial
    would have been different.17 However, if the motion would not
    17
    See Strickland v. Washington, supra note 5.
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    have been granted, then it cannot be said that trial counsel’s
    performance was deficient or that the result of the trial would
    have been different. Thus, we first consider whether a motion
    to suppress would have been successful.
    [10,11] Due process concerns arise when law enforcement
    officers use unnecessarily suggestive means to procure an
    identification.18 But, even when the police use such a proce-
    dure, the U.S. Supreme Court has indicated that suppression of
    the resulting identification is not the inevitable consequence.19
    Instead, the trial judge must screen the evidence for reliabil-
    ity pretrial.
    Here, Nolt argues that a pretrial hearing would have
    revealed that Valentine’s in-court identification was too unre-
    liable to be admissible. The State, on the other hand, argues
    that a pretrial hearing was not required because the in-court
    identification was not arranged by law enforcement. We agree
    with the State.
    [12] Identification evidence must be screened for reliability
    pretrial whenever it is obtained via unnecessarily sugges-
    tive procedures arranged by law enforcement officers. Here,
    Nolt is not arguing that law enforcement arranged an unnec-
    essarily suggestive pretrial photographic lineup or in-court
    identification. Instead, he argues that improper police con-
    duct occurring after the first identification procedure tainted
    Valentine’s in-court identification. We are unaware of, and
    Nolt does not cite, any authority that requires a pretrial reli-
    ability screening in this situation. Instead, in such a case,
    we think it is the role of the jury, not the judge, to deter-
    mine the reliability of such evidence, and it suffices to chal-
    lenge reliability at trial through the mechanisms designed
    for that purpose, including cross-examination of the witness
    18
    See Perry v. New Hampshire, 
    565 U.S. 228
    , 
    132 S. Ct. 716
    , 
    181 L. Ed. 2d 694
    (2012).
    19
    
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    making the identification.20 And that is exactly what Nolt’s
    counsel did.
    Even assuming that the district court would have conducted
    a pretrial hearing on the reliability of Valentine’s in-court
    identification, the identification would only be suppressed if
    it was “‘so [unnecessarily] suggestive as to give rise to a very
    substantial likelihood of irreparable misidentification.’”21 In
    Manson v. Brathwaite,22 the U.S. Supreme Court explained that
    “reliability is the linchpin in determining the admissibility of
    identification testimony.” It set forth the following reliability
    factors: “the opportunity of the witness to view the criminal at
    the time of the crime, the witness’ degree of attention, the accu-
    racy of his prior description of the criminal, the level of cer-
    tainty demonstrated at the confrontation, and the time between
    the crime and the confrontation.”23 The Court explained that
    these factors are to be weighed against “the corrupting effect
    of the suggestive identification itself.”24
    Based on the above factors, we conclude that the indi-
    cia of reliability outweigh any alleged corrupting influence.
    Valentine testified that she got “a good look” at Nolt on the
    night of the shootings. She was able to describe in detail what
    Nolt was wearing that night. From a photographic lineup,
    Valentine positively identified Nolt as the man who was in her
    house the night of the shooting. At trial, Valentine appeared
    confident in both that identification and her in-court identifi-
    cation of him. When asked if Nolt looked the same at trial as
    20
    See 
    id., 565 U.S.
    at 248 (holding that “the Due Process Clause does not
    require a preliminary judicial inquiry into the reliability of an eyewitness
    identification when the identification was not procured under unnecessarily
    suggestive circumstances arranged by law enforcement”).
    21
    
    Id., 565 U.S.
    at 238.
    22
    Manson v. Brathwaite, 
    432 U.S. 98
    , 114, 
    97 S. Ct. 2243
    , 
    53 L. Ed. 2d 140
          (1977).
    23
    
    Id. 24 Id.
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    he did on the night of the shooting, Valentine testified that he
    had gained weight, but his facial features were the same. And
    importantly, Valentine had already positively identified Nolt in
    the photographic lineup before the alleged unnecessarily sug-
    gestive comment.
    Because Valentine’s in-court identification was sufficiently
    reliable, any pretrial motion to suppress such identification
    would have been futile. Therefore, Nolt’s trial counsel was not
    ineffective for failing to move to suppress the identification,
    and Nolt’s assignment of error is without merit.
    (b) Failure to Object to
    Hearsay Statement
    Nolt also argues that his trial counsel was ineffective because
    he failed to object to an inadmissible hearsay statement, i.e.,
    Valentine’s statement to an officer describing the shooter.
    Before analyzing this claim, we set forth additional facts rel-
    evant to the issue.
    (i) Additional Facts
    Officer Corey Gorden was one of the officers who responded
    to Valentine’s call. He rode on the ambulance with her and
    asked her questions on the way to the hospital. At trial, Gorden
    testified that when he asked Valentine who shot her, she
    described the person as a “nerdy, white male . . . with brown-
    ish blonde hair wearing a white dress shirt, tan pants, and dress
    shoes.” No objection was made to the statement.
    On appeal, Nolt argues that his trial counsel was ineffec-
    tive for failing to object to the above statement as hearsay.
    The State argues that trial counsel was not ineffective for not
    objecting because the statement is admissible under the excited
    utterance exception to the hearsay rule. Relevant to that excep-
    tion, Gorden was asked about how Valentine appeared to him
    during the ambulance ride. Gorden responded, “Emotional.
    She had tears in her eyes and she was — seemed scared but
    still somewhat calm.” When asked what he meant by “calm,”
    Gorden stated that Valentine’s voice was not escalated, her
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    breathing was not labored, and she was “coherent to the . . .
    questions [she was asked].”
    (ii) Analysis
    [13,14] The parties agree that Valentine’s statement con-
    stituted hearsay, but disagree as to whether the excited utter-
    ance exception applies. For a statement to qualify as an
    excited utterance, the following criteria must be established:
    (1) There must have been a startling event, (2) the statement
    must relate to the event, and (3) the statement must have
    been made by the declarant under the stress of the event.25
    The key requirement is spontaneity, which requires a show-
    ing that the statements were made without time for conscious
    reflection.26
    Here, the startling event was the shooting, and Valentine’s
    statement related to the shooting because it described the
    shooter. Thus, the issue is whether Valentine’s statement was
    made under the stress of the shooting.
    [15-17] An excited utterance does not have to be contem-
    poraneous with the exciting event.27 It may be subsequent to
    the event if there was not time for the exciting influence to
    lose its sway.28 The true test is not when the exclamation was
    made but whether, under all the circumstances, the declar-
    ant was still speaking under the stress of nervous excitement
    and shock caused by the event.29 Relevant facts include the
    declarant’s manifestation of stress, such as “‘yelling,’” and the
    declarant’s physical condition.30 Also relevant is whether the
    declarant spoke in response to questioning.31 Statements made
    25
    State v. Jacob, 
    242 Neb. 176
    , 
    494 N.W.2d 109
    (1993).
    26
    
    Id. 27 State
    v. Hale, 
    290 Neb. 70
    , 
    858 N.W.2d 543
    (2015).
    28
    
    Id. 29 Id.
    30
    
    Id. at 79,
    858 N.W.2d at 550.
    31
    State v. Hale, supra note 27.
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    in response to questions from law enforcement in particular do
    not generally have inherent guarantees of reliability and trust-
    worthiness.32 But the declarant’s answer to a question may still
    be an excited utterance if the context shows that the statement
    was made without conscious reflection.33
    Based on the circumstances presented in this case, including
    Gorden’s observations of Valentine while she was in the ambu-
    lance, we conclude that Valentine’s statement was made under
    the stress of the startling event. Before Valentine herself was
    shot, she saw King’s face when he was shot. Further, Valentine
    was in the house while the gun was fired multiple times, lit-
    tering the house with gun shells. When questioned, Valentine
    was in an ambulance on her way to the hospital with a gunshot
    wound and facing an unknown medical outcome. Although
    Valentine’s statement was made in response to questions from
    law enforcement, and despite her maintaining sufficient com-
    posure to answer the questions, we find that she was still under
    the stress of being shot and the stress of viewing another per-
    son being shot. Thus, we find that Valentine’s statement was
    made without conscious reflection and that the excited utter-
    ance exception does apply. Therefore, Nolt’s assignment of
    error is without merit.
    (c) Failure to Investigate and Present
    Certain Aspects of Nolt’s Defense
    Nolt also asserts that his trial counsel was ineffective because
    he failed to “adequately investigate and present several aspects
    of Nolt’s defense.” Nolt sets forth the following list of “trial
    counsel’s [alleged] failures”:
    • Trial counsel failed to elicit Nolt’s testimony that, in the
    last hour of the drive between Kansas City and Omaha
    on October 10, 2015, Hassell and King discussed mur-
    dering Nolt and burying him in the Nevada desert
    32
    
    Id. 33 Id.
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    while they believed Nolt was asleep in the back seat of
    the vehicle;
    • Trial counsel failed to formally compel either the State
    or OnStar to produce an email purportedly sent from
    OnStar to law enforcement pertaining to the GPS data
    obtained by law enforcement, which prejudiced Nolt
    because law enforcement officers engaged in illegal
    behavior when obtaining said GPS data, including rep-
    resentations to OnStar of having a search warrant before
    it was issued by the lower court;
    • Trial counsel failed to formally compel either the State
    or the . . . car rental company to divulge all com-
    munications, particularly those in which law enforce-
    ment obtained, and [the car rental company] revealed,
    the Vehicle Identification Number (VIN) for the 2015
    Chevrolet Impala at issue during trial. Such commu-
    nications would have revealed that law enforcement
    officers engaged in illegal behavior when obtaining
    said VIN and other information from [the car rental
    company].34
    (i) Failure to Compel OnStar Emails
    We first address Nolt’s claim that his trial counsel was inef-
    fective for failing to compel the State or OnStar to produce
    certain emails. Although Nolt does not explain how the OnStar
    emails would have benefited him at trial, we presume, as does
    the State, that Nolt’s claim is that it would have revealed that
    the GPS search was premature and illegal. The State argues
    that even if such was true, the GPS evidence would have
    still been admissible under the inevitable discovery doctrine.
    We agree.
    [18] Under the inevitable discovery doctrine, evidence
    obtained without a valid warrant is nonetheless admissible if
    the State shows by a preponderance of the evidence that the
    34
    Brief for appellant at 28-29.
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    police would have obtained the disputed evidence by proper
    police investigation entirely independent of the illegal inves-
    tigative conduct.35 Here, the GPS data was obtained the same
    day that the warrant was issued. Thus, even if the GPS data
    was obtained before the warrant was issued, the police would
    have obtained the same evidence pursuant to the warrant that
    was issued. Accordingly, the GPS evidence would still have
    been admissible and the result of the trial the same.
    (ii) Communications With Car Rental
    Company Regarding Impala
    We also conclude that the result of the trial would have been
    the same if Nolt’s trial counsel had moved to compel the State
    or the car rental company to disclose their communications.
    Although Nolt fails to explain how the communications would
    have benefited him at trial, we presume, as does the State, that
    Nolt’s claim is that the communications would have revealed
    that the information obtained about the Impala, namely the
    vehicle identification number (VIN), were obtained via an ille-
    gal search and seizure. However, as the State points out, a war-
    rant was not needed because the police communication with
    the car rental company was not a search and obtaining the VIN
    was not a seizure for Fourth Amendment purposes.
    [19-21] The Fourth Amendment to the U.S. Constitution
    protects individuals against unreasonable searches and seizures
    by the government.36 A “‘search [for Fourth Amendment pur-
    poses] occurs when the government violates a subjective expec-
    tation of privacy that society recognizes as reasonable,’”37 and
    35
    See State v. Ball, 
    271 Neb. 140
    , 
    710 N.W.2d 592
    (2006). See, also, State
    v. Houser, 
    241 Neb. 525
    , 
    490 N.W.2d 168
    (1992) (holding that fruits
    of search were properly admitted because if defendant would not have
    consented, then affidavit would have been completed and search warrant
    obtained to perform the same search).
    36
    See State v. Jenkins, 
    294 Neb. 684
    , 
    884 N.W.2d 429
    (2016).
    37
    
    Id. at 695,
    884 N.W.2d at 439 (citing Kyllo v. United States, 
    533 U.S. 27
    ,
    
    121 S. Ct. 2038
    , 
    150 L. Ed. 2d 94
    (2001)).
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    a “‘seizure’ of property occurs when there is some meaningful
    interference with an individual’s possessory interests in that
    property.”38 Here, Nolt could not have had an expectation of
    privacy with regard to the police communication with the car
    rental company, because there is no evidence that it agreed to
    keep any information about Nolt’s rental car confidential and
    no evidence that confidentiality is typical in such situations.
    Furthermore, Nolt had no possessory interest in the VIN of
    the Impala. The car rental company owned the car and was
    free to convey information about it to police. Moreover, as a
    general rule, a person has no reasonable expectation of privacy
    in places readily accessible to the public,39 and federal law
    requires that the VIN be placed in the plain view of someone
    outside the automobile.40 Fourth Amendment protections were
    not invoked by the car rental company’s voluntarily provid-
    ing the VIN to police. Thus, a warrant was not required, and
    Nolt’s trial counsel was not ineffective for failing to move to
    compel the State or the car rental company to disclose their
    communications.
    We note that to the extent that Nolt had an expectation of
    privacy or possessory interest in the contents or location of
    the Impala, no Fourth Amendment violation occurred because
    police obtained a warrant for both the GPS search and the sub-
    sequent seizure of the Impala in Arizona.
    (iii) King and Hassell’s Alleged
    Discussion of Murdering Nolt
    Finally, Nolt argues that his counsel was ineffective for
    failing to elicit Nolt’s testimony regarding an alleged conver-
    sation between King and Hassell about their plan to murder
    38
    United States v. Jacobsen, 
    466 U.S. 109
    , 113, 
    104 S. Ct. 1652
    , 
    80 L. Ed. 2d
    85 (1984).
    39
    See Katz v. United States, 
    389 U.S. 347
    , 351, 
    88 S. Ct. 507
    , 
    19 L. Ed. 2d 576
    (1967) (“[w]hat a person knowingly exposes to the public, even in his
    own home or office, is not a subject of Fourth Amendment protection”).
    40
    New York v. Class, 
    475 U.S. 106
    , 
    106 S. Ct. 960
    , 
    89 L. Ed. 2d 81
    (1986).
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    Nolt. Nolt argues that the conversation contributed to the cir-
    cumstances surrounding his decision to use deadly force and
    that the introduction of such evidence would have bolstered
    his self-defense theory.
    [22,23] When reviewing a claim of ineffective assistance
    of counsel, trial counsel is afforded due deference to formu-
    late trial strategy and tactics, and an appellate court will not
    second-guess reasonable strategic decisions by counsel.41 When
    considering whether trial counsel’s performance was deficient,
    there is a strong presumption that counsel acted reasonably.42
    The presumption can be rebutted without an evidentiary hear-
    ing only when a decision by counsel cannot be justified as a
    result of a plausible trial strategy.43
    We conclude that it is plausible that Nolt’s counsel decided
    to not elicit testimony about the alleged conversation in order
    to save Nolt’s credibility. While it is conceivable that evidence
    of the alleged conversation might have helped the jury under-
    stand why Nolt would be quick to think that Hassell was reach-
    ing for a gun to harm him, the same evidence also serves to
    undermine Nolt’s credibility. As pointed out by the State, if the
    jury had been presented with evidence that King and Hassell
    had discussed their plans to kill Nolt in Nolt’s presence, then
    the jury might wonder why Nolt did not try to escape to safety
    when he was outside Valentine’s house by himself.
    Nolt’s argument would have more merit if the district court
    had not instructed the jury on Nolt’s claim of self-defense.
    But here, the court instructed the jury on self-defense and the
    jury apparently disbelieved Nolt’s testimony because it found
    him guilty.
    Because any benefit provided by evidence of the alleged
    conversation would be negated by the blow to Nolt’s cred-
    ibility, we conclude that it is plausible that Nolt’s counsel did
    41
    See State v. Nesbitt, 
    279 Neb. 355
    , 
    777 N.W.2d 821
    (2010).
    42
    
    Id. 43 State
    v. Brown, 
    268 Neb. 943
    , 
    689 N.W.2d 347
    (2004).
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    not elicit testimony about the alleged conversation for this
    reason. Thus, Nolt’s trial counsel was not ineffective for fail-
    ing to adduce this evidence, and Nolt’s assignment of error is
    without merit.
    3. Cumulative Error
    Finally, Nolt alleges that the cumulative effect of the inef-
    fective assistance of trial counsel deprived Nolt of his consti-
    tutional right to a fair trial. But, as explained above, we found
    no merit to any of Nolt’s ineffective assistance of counsel
    claims. Thus, the alleged errors could not have been cumula-
    tive, and Nolt’s last assignment of error is without merit.
    VI. CONCLUSION
    For the foregoing reasons, Nolt’s assignments of error
    are without merit, and the judgment of the district court is
    affirmed.
    A ffirmed.
    Wright, J., not participating.