State v. Santos-Romero , 31 Neb. Ct. App. 14 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/17/2022 01:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14State of Nebraska, appellee, v. Jose J.
Santos-Romero, appellant.
___ N.W.2d ___
Filed May 10, 2022. No. A-21-389.
1. Juries: Waiver. A defendant’s express agreement or consent is no
­longer required to waive the right to have the jury sequestered after the
case has been submitted to it.
2. Records: Appeal and Error. A party’s brief may not expand the eviden-
tiary record, nor may it expand an appellate court’s transcript.
3. ____: ____. It is incumbent upon an appellant to supply a record which
supports his or her appeal.
4. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Jim K. McGough and Mark J. Foxall, of McGoughLaw,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Jose J. Santos-Romero appeals his convictions of two
counts of first degree sexual assault of a child. On appeal,
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14he claims that the district court failed to sequester the jury
and challenges the procedure for obtaining privileged mental
health records. He also asserts that he received ineffective
assistance of trial counsel in two respects. We affirm.
BACKGROUND
In November 2019, C.G., then age 12, disclosed that her
mother’s boyfriend, Santos-Romero, had sexually assaulted her.
Santos-Romero was ultimately charged with two counts of first
degree sexual assault of a child. Prior to trial, Santos-Romero
filed a motion pursuant to the procedure the Nebraska Supreme
Court set forth in State v. Trammell, 231 Neb. 137, 435
N.W.2d 197 (1989), requesting an order requiring the State
to make available to the court for an in-camera inspection all
documents prepared by C.G.’s therapist in treatment of her.
After holding a hearing, the district court granted the motion
and ordered the State to make available to the court for an
in-camera inspection the materials outlined in the motion.
A jury trial commenced in October 2020. The evidence gen-
erally revealed that in the summer of 2019, when C.G. was 12
years old and Santos-Romero was 41 years old, he subjected
her to sexual penetration on several occasions.
The parties finished presenting evidence just before lunch
on October 20, 2020. The court informed the jurors that they
would get an extended lunch period so it could finalize the jury
instructions with the attorneys and told them that it would read
the instructions to them after closing arguments. Thus, the court
asked the jurors to return at 2 p.m., “and hopefully[,] we’ll all
be hearing closing arguments from both sides. And then if we
have some time, I’ll give you some — the jury instructions, but
you won’t begin to decide this case until tomorrow morning at
9 o’clock, okay?”
During the lunch break, outside the presence of the jury,
the court reviewed the jury instructions with the parties, and
once the jury returned from lunch, closing arguments were
given. After closing arguments, the court read the first 14 of
15 jury instructions and dismissed the jury at 3:44 p.m. to
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14return the following day at 9 a.m. for the final jury instruction
and to begin deliberating.
The case was submitted to the jury at 9:21 a.m. on October
21, 2020, and the jury reached its verdicts at 2:20 p.m., ­finding
Santos-Romero guilty of both counts. He was sentenced to 25
to 30 years’ imprisonment for each conviction, with the sen-
tences to run consecutively. Santos-Romero timely appeals.
ASSIGNMENTS OF ERROR
Santos-Romero assigns that the district court erred in (1)
failing to sequester the jury after the case had been submitted
and (2) violating his Sixth Amendment right to confrontation
and right to a fair trial. He also assigns that his trial counsel
was ineffective in failing to investigate the case and limiting
his defense.
ANALYSIS
Jury Sequestration.
Santos-Romero first argues that the district court erred in
failing to sequester the jury after the case was submitted. We
find that the jury was sequestered from the time the case was
submitted to it until it reached its verdicts; therefore, we reject
this assignment of error.
[1] Nebraska law provides that in a criminal case, when a
case is finally submitted to the jury, its members must be kept
together in some convenient place, under the charge of an offi-
cer, until they agree upon a verdict or are discharged by the
court. Neb. Rev. Stat. § 29-2022 (Reissue 2016). A defendant’s
express agreement or consent is no longer required to waive
the right under § 29-2022 to sequester the jury. State v. Collins,
281 Neb. 927, 799 N.W.2d 693 (2011).
In the present case, the parties concluded presenting evi-
dence just before lunch on October 20, 2020. After the jury
returned from an extended lunch break, closing arguments
were given, and the court read the first 14 of 15 jury instruc-
tions and dismissed the jury to return the following morning
for the final jury instruction and to begin deliberating.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14The final jury instruction indicates that the case was submit-
ted to the jury at 9:21 a.m. on October 21, 2020, and the record
shows that the jury reached its verdict at 2:20 p.m. The jury
remained together from the time of submission until it reached
its verdicts approximately 5 hours later. Thus, the jury was
sequestered as required by § 29-2022.
Santos-Romero also challenges the procedure the court used
in releasing the jury the previous night and completing its
recitation of the jury instructions the following morning before
submitting the case to the jury. He relies on Neb. Rev. Stat.
§ 29-2016 (Reissue 2016), which provides the order of proce-
dure for jury trials, including that after closing arguments are
concluded, the court “shall immediately and before proceeding
with other business charge the jury.” He claims that the court’s
procedure here violated this requirement and intentionally cir-
cumvented the need to sequester the jury. However, he did not
assign this issue as error, nor did he object to this procedure at
trial. We therefore find no reversible error related to sequestra-
tion of the jury.
Procedure for Access to
Mental Health Records.
Santos-Romero asserts that the procedure the Supreme Court
established in State v. Trammell, 231 Neb. 137, 435 N.W.2d
197 (1989), for obtaining privileged medical records violated
his right to confrontation and right to a fair trial. Our record
reveals that Santos-Romero filed a motion under Trammell
for an in-camera review of C.G.’s mental health records and
that the district court ordered the State to produce the records
for that in-camera review. The record does not reveal, how-
ever, whether the State complied with that order, whether an
in-camera review was conducted, whether any records were
ordered to be released to Santos-Romero, or whether any
records were withheld from him.
[2,3] In his brief, Santos-Romero claims that the district
court released 19 pages of therapy records to him. A party’s
brief may not expand the evidentiary record, nor may it
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14expand this court’s transcript. Aflague v. Luger, 8 Neb. App.
150, 589 N.W.2d 177 (1999). Because our record contains no
information following the court’s order requiring the State
to submit the records for in-camera review, we are unable
to determine whether Santos-Romero’s rights were violated.
It is incumbent upon an appellant to supply a record which
supports his or her appeal. State v. Custer, 292 Neb. 88, 871
N.W.2d 243 (2015). We therefore reject this argument.
Santos-Romero argues that the process set forth in State
v. Trammell, supra, is fundamentally unfair to a defendant
because there is no oversight of the district court’s action
in determining what, if any, records should be released to a
defendant. He states that it is unknown to a defendant, and
will be unknown to an appellate court, what records a district
court receives and reviews during an in-camera inspection and
whether all relevant material was provided to the defendant. To
the extent Santos-Romero attacks the Trammell procedure, we
reject his argument.
The procedure set forth in Trammell is derived from State v.
Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In Esposito, the
Connecticut Supreme Court detailed the process to be used for
review of a witness’ privileged records. It explained:
If, however, the claimed impeaching information is priv-
ileged there must be a showing that there is reason-
able ground to believe that the failure to produce the
information is likely to impair the defendant’s right of
confrontation such that the witness’ direct testimony
should be stricken. Upon such a showing the court may
then afford the state an opportunity to secure the consent
of the witness for the court to conduct an in camera
inspection of the claimed information and, if necessary,
to turn over to the defendant any relevant material for
the purposes of cross-examination. If the defendant does
make such showing and such consent is not forthcoming
then the court may be obliged to strike the testimony
of the witness. If the consent is limited to an in camera
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14inspection and such inspection, in the opinion of the
trial judge, does not disclose relevant material then the
resealed record is to be made available for inspection on
appellate review. If the in camera inspection does reveal
relevant material then the witness should be given an
opportunity to decide whether to consent to release of
such material to the defendant or to face having [the]
testimony stricken in the event of refusal.
Id. at 179-80, 471 A.2d at 956 (emphasis supplied).
In adopting the Connecticut Supreme Court’s procedure, the
Nebraska Supreme Court omitted the italicized language, using
ellipses, presumably because the issue presented involved the
initial procedure of producing the records, not what should
occur if some or all of the records were withheld. Regardless,
the procedure set forth in Trammell does not address, and
therefore does not prevent, a defendant’s request that the
records reviewed be sealed and included as part of an appel-
late record. In fact, State v. Esposito, supra, anticipates such
action. Accordingly, we cannot find that the procedure set forth
in Trammell is fundamentally unfair to defendants, as argued
by Santos-Romero.
Ineffective Assistance of Counsel.
Santos-Romero assigns that his trial counsel was ineffec-
tive in “failing to investigate the case and in limiting [his]
defense.” In the argument section of his brief, he expounds
on these claims, asserting that his trial counsel was ineffective
in failing to investigate the case because she never sought to
depose C.G.’s mother or even speak to her prior to trial and
in limiting his defense because trial counsel filed a pretrial
motion in limine seeking to exclude statements C.G.’s mother
made to law enforcement that she had no reason to suspect
Santos-Romero of these allegations and that sometimes he and
C.G. did not get along because he was very strict with her.
[4] Assignments of error on direct appeal regarding inef-
fective assistance of trial counsel must specifically allege
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SANTOS-ROMERO
Cite as 31 Neb. App. 14deficient performance, and an appellate court will not scour
the remainder of the brief in search of such specificity. State
v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). The Supreme
Court has found that an error assigning that trial counsel
was ineffective in “‘fail[ing] to adequately investigate [the
defendant’s] defenses’” lacked the specificity we demand on
direct appeal. Id. at 935, 926 N.W.2d at 86. Likewise, the
Supreme Court recently held that an error assigning that trial
counsel was ineffective in “‘Failing to Investigate the Case
Fully’” lacked the requisite specificity as to what component
of investigation counsel was allegedly deficient in failing to
conduct. State v. Wood, 310 Neb. 391, 436, 966 N.W.2d 825,
858 (2021).
We find the same is true here. Santos-Romero’s assignment
of error does not specifically identify which aspects of the case
trial counsel failed to investigate or in what manner she limited
his defense. We therefore do not address his claims.
CONCLUSION
We find no error in the procedures the district court followed
regarding jury sequestration or reviewing and releasing mental
health records, and we do not address the ineffective assistance
of counsel claims raised here. Santos-Romero’s convictions
and sentences are therefore affirmed.
Affirmed.