State v. Warlick
308 Neb. 656
Neb.2021Background
- On July 26, 2018, a York County deputy initiated a traffic stop on I-80 after observing license-plate issues; the vehicle stopped shortly after crossing into Seward County. Warlick was the front-seat passenger.
- A consent search revealed ~4 pounds of marijuana wrapped with masking material beneath the spare tire in the cargo area, and a bag containing a handgun (reported stolen) and an extended magazine; items were accessible from the back seat.
- Warlick was prosecuted in York County on seven counts (drug-possession/distribution, no drug tax stamp, various weapons offenses, and possession of a stolen firearm).
- Pretrial: Warlick initially waived counsel and later said he would hire private counsel and requested a 120-day continuance (court granted less time). He appeared pro se at trial.
- At trial on April 24, 2019, Warlick and a co-defendant disappeared during a noon recess and did not return; the court waited ~35 minutes, found their absences voluntary, continued the bench trial, and ultimately convicted Warlick on all counts.
- Warlick was sentenced to an aggregate 4–7 years (some counts concurrent; one count vacated on double-jeopardy grounds). He appealed challenging venue, right-to-counsel, right-to-be-present, admissibility of prior convictions, and sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Warlick) | Held |
|---|---|---|---|
| Venue (York County) | §29-1301.02 permits trial in any county the vehicle passed through; deputy first observed vehicle in York County. | Trial court lacked venue because arrest/search occurred in Seward County and deputy exceeded primary jurisdiction. | Affirmed: York County was proper venue under §29-1301.02; place of arrest is not dispositive. |
| Right to Counsel at trial start | Warlick knowingly and intelligently waived counsel earlier and repeatedly declined appointed counsel; court gave adequate pretrial warnings. | Court should have re-asked or sua sponte appointed counsel/standby counsel on the day of trial, especially after Warlick sought more time to hire counsel. | Affirmed: No error. Prior waiver remained valid; court not required to re-colloquy or appoint counsel when defendant repeatedly declined appointed counsel. |
| Right to be present (absence after recess) | Court made reasonable efforts (waited; trial had begun with defendants present); defendant out on bail has duty to remain; unexplained absence supports finding of voluntary waiver. | Court should have inquired further, delayed, or attempted to locate defendant (Zlomke procedures) before continuing; no evidence of knowing, voluntary waiver. | Affirmed: Court permissibly found voluntary absence; proceeding without him did not violate right to be present. |
| Sufficiency of evidence & proof of prior felonies | Evidence (quantity of marijuana, masking, inconsistent travel stories, duration of travel, firearm in vehicle) supported constructive possession of drugs and weapon; convictions admitted as certified records and rebuttable presumption of regularity applies to post-Gideon convictions. | Items were not on Warlick’s person; firearm and marijuana were in cargo area/bag linked to driver; prior-conviction certificates insufficient because they do not affirmatively show counsel or waiver at prior pleas. | Mostly affirmed: Evidence supported convictions for drug distribution, drug-tax, weapons offenses (including felon-in-possession using certified convictions), and stolen firearm. Reversed as to misdemeanor count for carrying a concealed weapon (§28-1202) because statute requires weapon be on or about the person (actual/physical possession) and evidence did not show immediate physical access. |
Key Cases Cited
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963) (right to counsel recognized)
- Burgett v. Texas, 389 U.S. 109 (U.S. 1967) (limitations on using prior convictions)
- Parke v. Raley, 506 U.S. 20 (U.S. 1992) (clarified Burgett scope)
- Illinois v. Allen, 397 U.S. 337 (U.S. 1970) (criminal defendant's right to be present)
- State v. Vann, 306 Neb. 91 (Neb. 2020) (post-Gideon prior-conviction presumption of regularity)
- State v. Garza, 256 Neb. 752 (Neb. 1999) (distinguishing constructive possession from carrying on person in weapons context)
- State v. McGee, 282 Neb. 387 (Neb. 2011) (factors for passenger joint possession in motor-vehicle drug cases)
- State v. Zlomke, 268 Neb. 891 (Neb. 2004) (example of comprehensive inquiry after defendant disappearance)