State v. Anderson, 305 Neb. 978

Background

Melvin Anderson was charged after a March 14, 2019 domestic incident: officers observed red marks on the victim’s neck and the victim reported choking and threats; Anderson admitted grabbing the victim’s coat but denied strangling.
County court found probable cause at a preliminary hearing where only a law-enforcement witness testified; the victim did not appear despite a subpoena.
Charges were bound over and later amended in district court to include strangulation (later reduced), tampering with a witness, and violating a protection order; multiple subpoenas attempting to compel the victim’s appearance were returned unserved.
Anderson pleaded no contest on August 23, 2019 to third-degree domestic assault (reduction from strangulation), attempted tampering, and violating a protection order; the court accepted the pleas and later sentenced him to terms of incarceration.
On appeal (new counsel), Anderson contended his trial counsel was ineffective for (1) failing to file/continue a plea in abatement at the preliminary hearing, (2) failing to compel the State to produce the victim for deposition or exclude her, (3) failing to move to suppress his statement as involuntary, and (4) advising him to plead.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel ineffective for not filing plea in abatement or moving to continue preliminary hearing after victim failed to appear	Anderson: absence of victim and unserved subpoena made probable-cause finding infirm; a plea in abatement or continuance would have led to dismissal and he would not have pleaded	State: record (probable-cause affidavit and officer testimony) established probable cause; plea in abatement would be meritless; no prejudice	Court: counsel not ineffective; plea in abatement/continue would have lacked merit and Anderson not prejudiced
Counsel ineffective for not moving to compel State to produce victim for deposition or to exclude her testimony	Anderson: counsel should have sought court order compelling production; exclusion could follow for State noncompliance and lead to trial instead of plea	State: no duty to produce victim for defense deposition; motion to compel would have lacked merit; exclusion speculative	Court: counsel not ineffective; motion to compel would have been meritless, and related suppression/exclusion claim speculative
Counsel ineffective for failing to move to suppress Anderson’s statement (involuntary due to medication)	Anderson: heavily medicated and incapable of valid Miranda waiver; suppression would have undercut plea to assault	State: voluntariness unclear from record; merits not conclusively resolved on the appellate record	Court: not resolved on direct appeal—record insufficient to determine voluntariness or prejudice; requires further evidentiary development
Counsel ineffective for advising Anderson to plead before pursuing motions	Anderson: counsel advised plea prematurely given unresolved pretrial avenues	State: advice intertwined with above claims; most pretrial challenges lacked merit, so plea advice not deficient	Court: majority of ineffective-assistance claims fail; only suppression claim left undecided; overall judgment affirmed

Key Cases Cited

State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (Neb. 2019) (standard for reviewing ineffective-assistance claims on direct appeal)
State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (Neb. 2019) (ineffective-assistance pleading/standard principles)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (performance-and-prejudice test for counsel ineffectiveness)
State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (Neb. 2017) (counsel not ineffective for failing to make meritless objections)
State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (Neb. 1998) (scope and purpose of preliminary hearings and plea in abatement)
State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (Neb. 2009) (motions in the nature of dismissal and plea in abatement principles)
Gerstein v. Pugh, 420 U.S. 103 (U.S. 1975) (probable-cause determinations and pretrial detention procedures)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecutorial duty to disclose exculpatory evidence)