State v. Lewis

court.21 And Neb. Rev. Stat. § 25-2701 (Reissue 2008) extends
the rules of criminal and civil procedure to the county court. As
§ 25-2701 makes clear, all provisions of the criminal and civil
procedure code govern all actions in the county court. And,
if it were not already clear from the occasions in which we
considered § 29-1207 in the context of municipal ordinances,22
we conclude today that § 29-1207 applies to the prosecution of
city ordinances. The State’s argument is without merit.
Our 	conclusion 	that 	the 	intimate 	partner 	exception 	of
§ 29-1207(2) does not apply is dispositive of this appeal. We
need not, and do not, address Lebeau’s argument regarding the
constitutionality of § 29-1207(2).23
CONCLuSiON
We conclude that the State did not bring Lebeau to trial
within the required time and that the county court and dis-
trict court erred in finding otherwise. We reverse the lower
courts’ orders denying Lebeau’s motion for absolute discharge
and remand the matter to the district court with directions to
reverse the judgment of the county court and remand the cause
with directions to dismiss the complaint against Lebeau.
R eveRsed and Remanded with
diRections to dismiss.
21 Karch, supra note 5.
22 State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980); State v. Schneider,
10 Neb. App. 789, 638 N.W.2d 536 (2002).
23 See State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
state of nebRaska , appellee , v.
eRic f. lewis , appellant.
785 N.W.2d 834
Filed July 23, 2010. 	No. S-09-425.
1. Courts: Trial: Mental Competency. The question of competency to represent
oneself at trial is one of fact to be determined by the court, and the means
employed in resolving the question are discretionary with the court. The trial
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

court’s determination of competency will not be disturbed unless there is insuf-
ficient evidence to support the finding.
2. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: in reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
3. Constitutional Law: Right to Counsel: Waiver. under u.S. Const. amend. Vi
and Neb. Const. art. i, § 11, a criminal defendant has the right to waive the assist-
ance of counsel and conduct his or her own defense.
4. Constitutional Law: Right to Counsel: Mental Competency. The u.S.
Constitution permits states to insist upon representation by counsel for those
competent enough to stand trial but who still suffer from severe mental ill-
ness to the point where they are not competent to conduct trial proceedings by
themselves.
5. ____: ____: ____. under Neb. Const. art. i, § 11, a criminal defendant’s right to
conduct his or her own defense is not violated when the court determines that a
defendant competent to stand trial nevertheless suffers from severe mental illness
to the point where he or she is not competent to conduct trial proceedings with-
out counsel.
6. Criminal Law: Evidence: Intent. When the sufficiency of the evidence as
to criminal intent is questioned, independent evidence of specific intent is not
required. Rather, the intent with which an act is committed is a mental process
and may be inferred from the words and acts of the defendant and from the cir-
cumstances surrounding the incident.
Appeal from the District Court for Lancaster County: paul
d. meRRitt, JR., Judge. Affirmed.
Stuart b. Mills for appellant.
Jon bruning, Attorney General, and J. kirk brown for
appellee.
wRight, 	connolly, 	stephan, 	mccoRmack , 	and 	milleR-
leRman, JJ.
peR cuRiam.
NATuRe OF CASe
eric F. Lewis appeals his conviction for second degree mur-
der. Lewis claims that the district court for Lancaster County
STATe v. LeWiS 	247
Cite as 280 Neb. 246

deprived him of his constitutional right to self-representation
when it found that he was not competent to represent himself
at trial and appointed trial counsel. Lewis also claims that
there was not sufficient evidence of the intent necessary to
support his conviction for second degree murder. We affirm
Lewis’ conviction.
STATeMeNT OF FACTS
in July 2007, Lewis had been committed to the Lincoln
Regional Center (LRC) for observation in connection with
criminal charges not related to the present case. Dr. Louis
Martin was a forensic psychiatrist who worked at LRC. On
July 16, Dr. Martin testified on behalf of the State at a hear-
ing in Lewis’ criminal case. The purpose of the hearing was
to consider Dr. Martin’s request for an order allowing him
and his staff at LRC to force Lewis to take medication he had
refused to take. Lewis appeared surprised and angry to see
Dr. Martin at the hearing, and he yelled some comments at Dr.
Martin to the effect that he would not have medication forced
on him. Throughout Dr. Martin’s testimony, Lewis interrupted
and directed angry comments toward Dr. Martin. At the end
of the hearing, the court stated its ruling that it would allow
forced medication. Lewis became disruptive, yelled that he
would not take the medication, and had to be escorted out of
the courtroom.
On July 23, 2007, two doctors met with Lewis at LRC to
inform him that pursuant to the court’s order, they had been
directed to administer medication to Lewis whether or not he
was willing to take the medication. Lewis became angry, said
he would not take the medication, and left the meeting room.
After Lewis returned to the room, the doctors attempted to
discuss the order with Lewis, and Lewis referred angrily to Dr.
Martin’s testimony at the July 16 hearing.
Lewis left the meeting and returned to his room. A short time
later, he came out of his room with a box of his belongings.
Lewis was still angry and said that they could not force medi-
cation on him and that he intended to return to prison. He sat
down at a table near the main door of the area where his room
was located. A few minutes later, Dr. Martin came through the
248 	280 NebRASkA RepORTS

door, and Lewis walked toward him. When he got near Dr.
Martin, Lewis lunged at him and said, “‘i’m gonna get you, old
man,’” and struck him twice in the face. Dr. Martin fell against
a wall and slid to the ground; he was bleeding from the head
and struggling to breathe. Security personnel restrained Lewis.
Witnesses testified that after hitting Dr. Martin, Lewis said
things such as, “‘There. Now what you gonna do? i told you
i’d get you’”; “i told him i would get him. . . . He shouldn’t
have testified”; and “‘i hope that motherfucker dies.’”
Dr. Martin was taken to a hospital, where he died on August
2, 2007. An autopsy determined the cause of death to be severe
blunt force trauma to the head with extensive cerebral cra-
nial injuries.
The State charged Lewis with second degree murder in con-
nection with Dr. Martin’s death. These charges give rise to the
present case. On November 7, 2007, the district court, on the
State’s motion, ordered a determination of Lewis’ competency
to stand trial. Lewis initially refused to participate in the evalu-
ation, but after a psychiatric evaluation was completed, the
court, on February 8, 2008, found Lewis to be competent to
stand trial.
Lewis subsequently filed a waiver of his right to counsel
and requested to be allowed to represent himself in this case
pertaining to Dr. Martin’s death. On June 2, 2008, the district
court entered an order finding that Lewis was competent to
waive his right to counsel, that he had exercised his right to
waive counsel, and that his waiver, “although perhaps not
prudent or in his best interest,” was freely, voluntarily, know-
ingly, and intelligently made. The court therefore granted
the waiver of counsel and appointed Lewis’ prior counsel as
standby counsel.
in its June 2, 2008, order, the court stated that in the psy-
chiatric evaluation, the doctor had noted that Lewis had the
“‘potential to be disruptive, agitated and combative, including
becoming assaultive.’” The court noted that its experience with
Lewis during court proceedings was consistent with the doc-
tor’s notation. The record indicates that at various proceedings
in this case, Lewis became disruptive, and the court ordered
him removed from the courtroom.
STATe v. LeWiS 	249
Cite as 280 Neb. 246

On June 19, 2008, the u.S. Supreme Court decided the case
of Indiana v. Edwards, 554 u.S. 164, 128 S. Ct. 2379, 171
L. ed. 2d 345 (2008). The district court thereafter set a hear-
ing to consider the applicability of Edwards and, specifically,
whether the decision affected Lewis’ right to continue repre-
senting himself. Following the hearing, the court entered an
order dated October 10, 2008, in which it found that although
Lewis was mentally competent to stand trial, he was not men-
tally competent to conduct trial proceedings by himself. The
court noted Lewis’ “conduct during prior proceedings, his
assertions in pleadings and his ‘. . . uncertain mental state’”
and cited Edwards to conclude that if Lewis were allowed to
represent himself a “‘spectacle . . . could well result’” and
would undercut “‘the most basic of the Constitutional crimi-
nal law objectives, providing a fair trial.’” The court vacated
and set aside its prior order allowing Lewis to waive counsel
and represent himself, and the court appointed counsel over
Lewis’ objection.
At trial, Lewis moved to dismiss at the close of the State’s
case based on the State’s purported failure to establish a prima
facie case. The court overruled the motion to dismiss. The jury
found Lewis guilty of second degree murder. The court later
found Lewis to be a habitual criminal and sentenced him to
imprisonment for life.
Lewis appeals his conviction.
ASSiGNMeNTS OF eRROR
Lewis claims that the district court erred when it found that
he was not competent to represent himself at trial and therefore
denied him his constitutional right of self-representation. He
also claims that there was not sufficient evidence of the intent
necessary to convict him of second degree murder.
STANDARD OF ReVieW
[1] We have held that the question of competency to stand
trial is one of fact to be determined by the court, that the means
employed in resolving the question are discretionary with the
court, and that the trial court’s determination of competency
will not be disturbed unless there is insufficient evidence to
250 	280 NebRASkA RepORTS

support the finding. See State v. Walker, 272 Neb. 725, 724
N.W.2d 552 (2006). We logically extend the standard in Walker
to the issue of competency to represent oneself and hold that
the question of competency to represent oneself at trial is
one of fact to be determined by the court and that the means
employed in resolving the question are discretionary with the
court. The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support
the finding.
[2] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: in reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009).
ANALYSiS
The Court Did Not Err When It Determined That Lewis
Was Not Competent to Represent Himself at Trial.
Lewis first claims that the district court erred when it
found that he was not competent to represent himself at trial,
denying him his constitutional right of self-representation.
because there was sufficient evidence to support the district
court’s finding that although Lewis was competent to stand
trial, he was not competent to represent himself, we conclude
that Lewis was not denied his constitutional right to repre-
sent himself.
[3] We have recognized that under u.S. Const. amend. Vi
and Neb. Const. art. i, § 11, a criminal defendant has the right
to waive the assistance of counsel and conduct his or her own
defense. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691
(2006). See, also, Faretta v. California, 422 u.S. 806, 95 S. Ct.
2525, 45 L. ed. 2d 562 (1975). in Faretta, the u.S. Supreme
STATe v. LeWiS 	251
Cite as 280 Neb. 246

Court recognized a constitutional right of self-representation
in a criminal case and noted that it was a violation of the
Sixth Amendment to “thrust counsel upon the accused, against
his considered wish.” 422 u.S. at 820. because a defendant
who chooses self-representation “relinquishes . . . many of
the traditional benefits associated with the right to counsel,”
the Court held that a waiver of the right to counsel must be
made “‘knowingly and intelligently’” by the defendant. 422
u.S. at 835. The Court in Faretta recognized the right of self-
representation was not absolute when it noted that a “trial
judge may terminate self-representation by a defendant who
deliberately engages in serious and obstructionist miscon-
duct” or that a court may appoint standby counsel to aid the
defendant if and when the defendant so chooses. 422 u.S. at
834 n.46.
Recognizing that under Faretta, a defendant’s right to self-
representation is not absolute, in Indiana v. Edwards, 554 u.S.
164, 167, 128 S. Ct. 2379, 171 L. ed. 2d 345 (2008), the Court
considered whether “the Constitution prohibits a State from
insisting that the defendant proceed to trial with counsel, the
State thereby denying the defendant the right to represent him-
self” where the defendant has been “found mentally competent
to stand trial if represented by counsel but not mentally compe-
tent to conduct that trial himself.”
The Court noted in Edwards that the constitutional standard
for mental competence to stand trial was set forth in Dusky v.
United States, 362 u.S. 402, 80 S. Ct. 788, 4 L. ed. 2d 824
(1960). in Dusky, the Court held that the test for competency
to stand trial is whether the defendant “‘has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding—and whether he has a rational as well
as factual understanding of the proceedings against him.’” 362
u.S. at 402.
in Edwards, the Court further noted the case of Godinez
v. Moran, 509 u.S. 389, 113 S. Ct. 2680, 125 L. ed. 2d
321 (1993), which “considered mental competence and self-
representation together.” 554 u.S. at 171. in Godinez, the
Court held that the presence of mental illness did not neces-
sarily preclude a defendant’s ability to waive his or her right
252 	280 NebRASkA RepORTS

to counsel, so long as the defendant’s waiver of the right to
counsel was knowing and voluntary. The Court further held in
Godinez that the standard to be applied for determining com-
petency to stand trial under Dusky was the same standard to
be applied for competency to waive the right to counsel. The
Court noted, however, that “the competence that is required
of a defendant seeking to waive his right to counsel is the
competence to waive the right, not [necessarily to be equated
with] the competence to represent himself.” 509 u.S. at 399
(emphasis in original). The contours of a defendant’s compe-
tence to represent himself or herself left open in Godinez were
addressed in Edwards.
[4] in addressing whether a different standard applied to
determine whether a defendant was competent to represent
himself or herself, the Court in Edwards, noted that the Dusky
standard regarding competence to stand trial assumed the rep-
resentation of counsel and therefore suggested that going to
trial without counsel presented “a very different set of circum-
stances” and called for a different standard. 554 u.S. at 175.
The Court rejected the use of a single mental competency stan-
dard for determining whether a defendant may stand trial when
represented by counsel as distinguished from whether a defend-
ant may represent himself or herself at trial. The Court noted
in this respect that mental illness “is not a unitary concept”
and may vary in degree and over time. Id. The Court therefore
concluded in Edwards that
the Constitution permits judges to take realistic account
of the particular defendant’s mental capacities by ask-
ing whether a defendant who seeks to conduct his own
defense at trial is mentally competent to do so. That is to
say, the Constitution permits States to insist upon repre-
sentation by counsel for those competent enough to stand
trial under Dusky but who still suffer from severe mental
illness to the point where they are not competent to con-
duct trial proceedings by themselves.
554 u.S. at 177-78.
Although urged to do so by the State of indiana, the Court
in Indiana v. Edwards, 554 u.S. 164, 128 S. Ct. 2379, 171 L.
ed. 2d 345 (2008), declined to adopt a more specific standard
STATe v. LeWiS 	253
Cite as 280 Neb. 246

to determine whether a defendant is competent to conduct trial
proceedings. And although similarly urged to do so by the par-
ties herein, because the present case falls within the standard
set forth in Edwards, we also find it unnecessary to elaborate
on the standard.
[5] Consistent with the Court’s holding in Edwards, decided
under the Sixth Amendment to the u.S. Constitution, we now
hold that under Neb. Const. art. i, § 11, a criminal defendant’s
right to conduct his or her own defense is not violated when
the court determines that a defendant competent to stand trial
nevertheless suffers from severe mental illness to the point
where he or she is not competent to conduct trial proceedings
without counsel.
Having determined that it would not be a constitutional
violation to insist on representation for a person who suffers
from severe mental illness and is not competent to conduct
trial proceedings without counsel, we must consider whether
the district court erred in this case when it found that Lewis
was not competent to conduct trial proceedings for himself.
We conclude that the facts of the present case clearly fall
within the standard articulated by the Court in Edwards,
supra, and that the district court did not err when it found that
Lewis was not competent to conduct trial proceedings in his
own behalf.
The record shows that Lewis suffered from severe mental
illness. The report resulting from a psychiatric evaluation con-
ducted in this case to determine Lewis’ mental competency
to stand trial indicates that Lewis has been “diagnosed with a
psychotic disorder, Schizophrenia, paranoid type.” Although
the psychiatrist concluded that Lewis was competent to stand
trial, the psychiatrist warned that Lewis’ “mood, anger and agi-
tation may become an issue” and suggested that medication be
considered to control “his disruptive behavior.” The psychiatrist
expressed concerns that Lewis’ “agitation, periods of decreased
attention and concentration will limit his ability to follow
testimony reasonably well”; that Lewis “has the potential to
be disruptive, agitated and combative, including becoming
assaultive”; and that although Lewis could control his anger
at times, it was doubtful that “he would be able to continue
254 	280 NebRASkA RepORTS

this for a long time without getting very angry and agitated
and perhaps disruptive.” The psychiatrist further stated that
“anytime [Lewis] feels like he is being forced to do something,
he will retaliate with anger, agitation and disruptive behavior,”
and the psychiatrist expressed concern “about [Lewis’] ability
to maintain his temper and anger consistently, to not become
agitated whenever he is asked something he does not want to
talk about.”
in determining whether Lewis was competent to represent
himself, the district court also considered Lewis’ “conduct
during prior proceedings” in this case. As the State notes, the
record of proceedings in this case prior to the court’s deter-
mination that Lewis was not competent to represent himself
indicates that Lewis had a history of becoming disruptive dur-
ing hearings to the point that the court ordered Lewis removed
from the courtroom. At hearings held on December 21, 2007,
and February 13, 2008, the court ordered Lewis removed from
the courtroom for being disruptive by interrupting the court,
refusing to follow courtroom procedure, and using abusive
language. At a hearing held May 7, the court noted that Lewis
was refusing to come into the courtroom and that the court had
been informed by court staff that if the court required Lewis’
presence in the courtroom “they would need to get another four
or five officers to transport him into the courtroom.”
We note with respect to such evidence of Lewis’ past disrup-
tive behavior that in Indiana v. Edwards, 554 u.S. 164, 128 S.
Ct. 2379, 171 L. ed. 2d 345 (2008), the u.S. Supreme Court
stated that while the dignity and autonomy of the defendant
underlies the right of self-representation, allowing a defend-
ant who lacks the mental capacity to conduct his defense
without assistance of counsel would not affirm the dignity
of the defendant. instead, the Court stated that “given [such]
defendant’s uncertain mental state, the spectacle that could
well result from his self-representation at trial is at least as
likely to prove humiliating as ennobling.” 554 u.S. at 176.
The Court also noted that “insofar as a defendant’s lack of
capacity threatens an improper conviction or sentence, self-
representation in that exceptional context undercuts the most
basic of the Constitution’s criminal law objectives, providing
STATe v. LeWiS 	255
Cite as 280 Neb. 246

a fair trial.” 554 u.S. at 176-77. There is sufficient evidence
of Lewis’ past disruptive behavior that the district court could
properly have found that his self-representation would create
an unacceptable risk that a spectacle would result that would
endanger a fair trial.
based on the evidence that Lewis suffered severe mental
illness and the evidence of past behavior by Lewis which indi-
cated he would be disruptive and unable to conduct trial pro-
ceedings, we determine that this is a case that is clearly within
the category the u.S. Supreme Court contemplated in Edwards
where it would not be error for the trial court to insist on
representation by counsel. We conclude that the district court
did not err when it found that Lewis was not competent to
represent himself and therefore required him to be represented
by counsel.
Lewis’ Conviction Was Supported by Sufficient Evidence
of the Intent Required for Second Degree Murder.
Lewis next claims that there was not sufficient evidence to
support his conviction for second degree murder. in particular,
he asserts that there was not sufficient evidence of the neces-
sary intent. because we determine that there was sufficient evi-
dence to support Lewis’ conviction, we reject this assignment
of error.
Lewis was convicted under Neb. Rev. Stat. § 28-304(1)
(Reissue 2008), which provides, “A person commits murder in
the second degree if he causes the death of a person intention-
ally, but without premeditation.” Lewis notes that the distinc-
tion between second degree murder and manslaughter is the
presence or absence of intent to kill. See State v. Jackson, 258
Neb. 24, 601 N.W.2d 741 (1999). Although Lewis concedes
that the evidence may have supported a conviction for man-
slaughter, he argues that there was not sufficient evidence of
the intent necessary for a conviction for second degree mur-
der. We find this argument to be without merit and reject this
assignment of error.
[6] When the sufficiency of the evidence as to criminal
intent is questioned, independent evidence of specific intent is
not required. Rather, the intent with which an act is committed
256 	280 NebRASkA RepORTS

is a mental process and may be inferred from the words and
acts of the defendant and from the circumstances surround-
ing the incident. State v. Sing, 275 Neb. 391, 746 N.W.2d
690 (2008).
in the present case, there was sufficient evidence from which
the jury could properly have inferred that Lewis had the intent
to kill Dr. Martin. We note that there was evidence that on the
day he attacked Dr. Martin, Lewis was agitated that he was
being forced to take medication and he was angry at Dr. Martin
in particular because of Dr. Martin’s testimony at a hearing
held a week earlier in another case regarding a court order to
medicate Lewis. Lewis struck Dr. Martin twice in the face with
his fist. before Lewis struck Dr. Martin, he said, “‘i’m gonna
get you, old man,’” and after Lewis struck Dr. Martin, he said
things such as, “‘There. Now what you gonna do? i told you
i’d get you’”; “i told him i would get him. . . . He shouldn’t
have testified”; and “‘i hope that motherfucker dies.’” The jury
could properly have inferred that Lewis had the intent to kill
Dr. Martin.
because we conclude that there was sufficient evidence of
intent to support Lewis’ conviction for second degree murder,
the court did not err when it denied his motion to dismiss made
on this basis. We reject this assignment of error.
CONCLuSiON
We conclude that it is not a constitutional violation for
a court to insist on representation for a person who suffers
from severe mental illness to the point where he or she is not
competent to conduct trial proceedings without counsel. We
further conclude that there was sufficient evidence to support
the court’s finding in this case that Lewis was not competent
to represent himself and that the court did not deny Lewis his
right to self-representation when it required that he be repre-
sented by counsel. We finally conclude that there was sufficient
evidence of intent to support a conviction for second degree
murder. We therefore affirm Lewis’ conviction.
affiRmed.
heavican, C.J., and geRRaRd, J., not participating.
STATe v. LeWiS 	257
Cite as 280 Neb. 246