State v. Fox

State of NebraSka , appellee , v.
M atthew a. fox , appellaNt.
806 N.W.2d 883
Filed December 30, 2011. 	No. S-11-045.
1. Courts: Trial: Mental Competency: Appeal and Error. The question of com-
petency to stand 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
court’s determination of competency will not be disturbed unless there is insuf-
ficient evidence to support the finding.
2. Trial: Waiver. Whether a defendant could and, in fact, did waive his or her right
to attend all stages of his or her trial presents a question of law.
3. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision made by the court below.
4. Constitutional Law: Trial: Mental Competency. A person has a constitutional
right not to be put to trial when lacking mental capacity.
5. Trial: Mental Competency. A person is competent to stand trial if he or she has
the capacity to understand the nature and object of the proceedings against him
or her, to comprehend his or her condition in reference to such proceedings, and
to make a rational defense.
6. ____: ____. The competency to stand trial standard includes both (1) whether
the defendant has a rational as well as factual understanding of the proceed-
ings against him or her and (2) whether the defendant has sufficient present
ability to consult with his or her lawyer with a reasonable degree of rational
understanding.
7. Constitutional Law: Criminal Law: Trial: Witnesses. The Confrontation
Clause of the Sixth Amendment to the U.S. Constitution provides that in all
criminal prosecutions, the accused shall enjoy the right to be confronted with the
witnesses against him or her. The 14th Amendment makes the guarantees of this
clause obligatory upon the states.
8. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees the
accused’s right to be present in the courtroom at every stage of his or her trial.
9. Trial: Waiver. If a defendant is to effectively waive his or her presence at trial,
that waiver must be knowing and voluntary.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.
James 	R. 	Mowbray 	and 	Jerry 	L. 	Soucie, 	of 	Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
STATe v. Fox 	957
Cite as 282 Neb. 957
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

heavicaN, c.J., coNNolly, G errard, StephaN, MccorMack ,
and M iller-lerMaN, JJ.
M iller-lerMaN, J.
NATURe oF CASe
Matthew A. Fox appeals his convictions for first degree
murder and use of a weapon to commit a felony. Fox asserts
that the district court for Lancaster County erred when it found
him competent to stand trial and when it allowed him to absent
himself from major portions of the trial. Because we find that
the district court did not err when it found that Fox was com-
petent to stand trial or when it allowed Fox to absent himself
from trial, we affirm.
STATeMeNT oF FACTS
on october 25, 2008, Fox, then 19 years old, killed his
mother, Sherry Fox, by striking her repeatedly in the head with
an ax in the basement of their home in Lincoln, Nebraska. Fox
was arrested that day, and on November 25, the State filed an
information charging Fox with murder in the first degree and
use of a weapon to commit a felony. Fox pled not guilty.
on February 26, 2009, Fox’s attorney filed a motion for a
competency examination alleging that he had reason to believe
Fox was not currently competent to stand trial. After a hear-
ing, the district court on March 11 entered an order appoint-
ing a doctor to examine Fox to determine his competency to
stand trial.
After the competency evaluation had been completed, Fox’s
attorney moved the court to declare Fox incompetent to stand
trial. on April 28, 2009, the court entered an order finding
that Fox was currently incompetent to stand trial. The court’s
finding was based in part on the report of psychologists who
concluded that Fox was not competent to stand trial because,
although he had a factual understanding of his legal situa-
tion, he was “experiencing severe depressive symptoms which
impede[d] his ability to meaningfully assist his attorney and
participate in his defense.” The court ordered Fox to be trans-
ferred to the Lincoln Regional Center (LRC) for treatment. The
court further ordered LRC staff to report to the court when
Fox’s disability had improved to the extent he was competent
958 	282 NeBRASkA RePoRTS

to stand trial or, in the alternative, LRC was to submit a prog-
ress report within 6 months of commencement of treatment if
Fox’s disability had not so improved. After a review hearing on
November 13, the court ruled that Fox remained incompetent
to stand trial.
The court held another review hearing on April 27, 2010, at
which the State offered a report by a psychiatrist and a psy-
chologist which concluded that Fox was competent to stand
trial because he had “demonstrated an adequate understand-
ing of the legal system” and “appear[ed] to have the ability to
assist his attorney in developing a rational defense.” The report
noted that although Fox had the ability to assist in his defense,
“thus far, [he] has not chosen to do so.” The report noted that
Fox’s “behavior and reluctance to discuss his legal circum-
stances appear[ed] volitional” and that “any symptoms that he
may [have been] experiencing [did] not appear to be so severe
as to prevent him from assisting in his defense, if he [chose]
to cooperate with legal counsel.” The psychiatrist and the psy-
chologist testified to similar effect at the hearing.
Fox offered into evidence a forensic psychologist’s report,
in which the forensic psychologist retained by Fox opined that
Fox “appear[ed] to have the requisite capacities associated
with marginal competence to proceed with adjudication” but
that he had “some serious concerns about [Fox’s] propensity to
decompensate under stress.” The forensic psychologist testified
that Fox
still has a tremendous amount of difficulty approaching
the whole topic of what happened in and around the time
period that his mom died, that his mom was killed. Seems
to have a lot of angst around that issue, not understanding
how it came to that, having some understanding that he’s
the cause of it, but of not knowing why or how.
The forensic psychologist called by Fox testified that in
talking about what happened in connection with his mother’s
death, Fox was “not sure what happened, how it came to hap-
pen . . . . [H]e always says he’ll either break it off or he’ll say
. . . I don’t want to think about this any more. And he gets
shaky, angry, anxious. He gets very nervous when he talks
about all of this.”
STATe v. Fox 	959
Cite as 282 Neb. 957

At the hearing, the forensic psychologist further testified
that he had concerns that Fox “might decompensate during the
[criminal] proceedings or prior to the proceedings because of
the stress” and that he had concerns about how Fox’s “inabil-
ity or desire not to talk about the circumstances leading to the
death of his mother [will] affect his ability to proffer an affirm-
ative defense of insanity or other defenses that might have ele-
ments of his mental state at the time entailed.”
on May 6, 2010, the district court filed an order in which it
found that Fox was competent to stand trial. The court specifi-
cally found that Fox had “the mental capacity to understand the
nature and object of the proceedings against him and can com-
prehend his own condition in reference to the proceedings and
has the ability to make a rational defense and help with that
defense.” The court stated that it had reviewed and considered
factors set forth in Nebraska cases, including the concurrence
in State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980)
(krivosha, C.J., concurring), and that after such review, the
court was “compelled to conclude that [Fox] is competent to
stand trial in this matter.” The court further ordered that pend-
ing trial, Fox should remain at LRC.
Fox thereafter filed a notice of intent to rely upon a defense
that he was not responsible by reason of insanity. The district
court granted the State’s subsequent motion to require Fox to
be examined by a psychiatrist to determine Fox’s mental capac-
ity at the time of his mother’s killing.
on July 26, 2010, Fox filed a motion in which he sought
to determine whether he could waive his attendance at various
critical stages of the proceedings against him. Fox expressed
a desire to “not be present at his trial, but most specifically
during any portions of his trial involving discussions or pres-
entation of evidence or testimony regarding the circumstances
surrounding the death of Sherry Fox.” However, in the motion
requesting such determination, Fox’s attorney asserted that
given [Fox’s] history and prior findings regarding his
mental status, the current state of the record is insuffi-
cient to determine whether a) [Fox] may waive his right
to attendance at the majority (if not all) of his trial, b)
[Fox] is competent to make a “knowing and intelligent”
waiver of his constitutional rights [to be present at trial
960 	282 NeBRASkA RePoRTS

and confront the witnesses against him], and c) [Fox’s]
desire not to attend his trial is a manifestation of his prior
and current mental illness.
Fox’s attorney also cited authority to the effect that a defendant
may not waive his or her presence at trial, including Neb. Rev.
Stat. § 29-2001 (Reissue 2008), which states in part, “[n]o
person indicted for a felony shall be tried unless personally
present during the trial.”
At a hearing on the motion, Fox stated that at trial he did not
want to “see any of the forensic stuff.” He said that he would
be willing to be present during voir dire, opening statements,
and testimony that did not touch on forensic evidence, but that
he did not want to be present during closing statements, which
would include discussion of forensic evidence. Fox stated
that he did not remember and did not want to remember what
happened the night his mother died. Fox clarified that foren-
sic evidence included pictures and descriptions, including the
autopsy, and that he did not want to “see it or hear it or think
about it.”
The district court conducted a hearing, at which Fox was
present, on Fox’s motion to absent himself from certain pro-
ceedings. The district court advised Fox that the purpose of the
hearing was to inquire “as to whether or not [Fox] should be
allowed not to be present at portions of the trial.” A colloquy
among the parties ensued. During the hearing, Fox’s counsel
indicated that “it would be . . . Fox’s decision [to attend some
or all of the proceedings in connection with his trial] if, in fact,
he was competent to make that decision and had rational and
legitimate reasons not to attend.” Fox’s counsel confirmed that
Fox had been informed that if he were to decide at the hearing
he did not wish to attend trial, he would be able to change his
mind at any time, and that the court would allow him to attend
any particular portion of the trial he wished to attend. The
district court confirmed this was an accurate statement of the
proceeding. The State also stated for the record that Fox was
advised that he could change his mind at any time if he wished
to be present at trial.
The district court sustained Fox’s motion to waive attend-
ance at trial in an order entered october 18, 2010. In its order,
the court found that Fox understood his right to be present at
STATe v. Fox 	961
Cite as 282 Neb. 957

trial and at all hearings and proceedings, as well as his right to
face and confront the witnesses against him. The court further
found that Fox understood that he could choose to be present
or not present at any portion of the trial and that he had the
right to change his mind at any time and be present for any or
all of the trial. The court finally found that Fox had not been
threatened or coerced in any way.
The jury was selected on october 25, 2010, and the verdict
was returned on october 29. Fox elected not to attend much
of the trial. At times throughout the trial, the court inquired of
defense counsel regarding Fox’s intention to attend upcoming
segments of the trial, and defense counsel informed the court
that Fox did not wish to be present. Fox was advised that he
could observe the trial on closed circuit television when he was
not present in court. Defense counsel generally reported that
Fox did not wish to observe the trial on closed circuit televi-
sion but that he wished to listen to the testimony of his brother
and of his sister by closed circuit. The court advised the jury
that Fox had the right to be present or to be absent for portions
of the trial but that the jury was “to make nothing of that and
make no assumptions or take that in any way as to determining
his guilt or innocence in this case.”
With regard to Fox’s insanity defense, a psychiatrist called
by the State at trial opined that at the time of the killing, Fox
suffered from depression and schizoid personality disorder,
but that he was not legally insane. A psychiatrist called by
the defense also opined that Fox suffered from depression
and schizoid personality disorder at the time of the killing
but testified that there was not enough information available
to make a determination whether Fox was legally insane. The
jury rejected Fox’s insanity defense and found Fox guilty of
first degree murder and use of a weapon to commit a felony.
The court sentenced Fox to life imprisonment on the murder
conviction and to a consecutive sentence of 10 to 15 years’
imprisonment on the weapon conviction.
Fox appeals.
ASSIGNMeNTS oF eRRoR
Fox claims that the district court erred when it (1) found
him competent to stand trial and (2) permitted him to absent
962 	282 NeBRASkA RePoRTS

himself from the trial because his waiver of his right to be pres-
ent at trial was not knowingly or voluntarily made.
STANDARDS oF ReVIeW
[1] The question of competency to stand trial is one of fact
to be determined by the court, and the means employed in
resolving the question are discretionary with the court. State v.
Walker, 272 Neb. 725, 724 N.W.2d 552 (2006). The trial court’s
determination of competency will not be disturbed unless there
is insufficient evidence to support the finding. Id.
[2,3] Whether a defendant could and, in fact, did waive his
or her right to attend all stages of his or her trial presents a
question of law. State v. Zlomke, 268 Neb. 891, 689 N.W.2d
181 (2004). When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by
the court below. Id.
ANALYSIS
The Court Did Not Err When It Determined
That Fox Was Competent to Stand Trial.
Fox first claims that that the district court erred when it
found that he was competent to stand trial. We find no merit to
this assignment of error.
[4,5] A person has a constitutional right not to be put to
trial when lacking “mental capacity.” Indiana v. Edwards, 554
U.S. 164, 177, 128 S. Ct. 2379, 171 L. ed. 2d 345 (2008). See,
also, State v. Hessler, ante p. 935, 807 N.W.2d 504 (2011). We
have stated that a person is competent to stand trial if he or
she has the capacity to understand the nature and object of the
proceedings against him or her, to comprehend his or her con-
dition in reference to such proceedings, and to make a rational
defense. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010);
Walker, supra.
[6] The U.S. Supreme Court has recently reiterated the stan-
dard to determine if a defendant is competent to stand trial in
Indiana v. Edwards by stating that the competency standard
includes both “(1) ‘whether’ the defendant has ‘a rational as
well as factual understanding of the proceedings against him’
and (2) whether the defendant ‘has sufficient present ability to
STATe v. Fox 	963
Cite as 282 Neb. 957

consult with his lawyer with a reasonable degree of rational
understanding.’” 554 U.S. at 170 (emphasis in original) (citing
Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. ed.
2d 824 (1960) (per curiam)). See, also, Hessler, supra. It has
been stated that requiring a criminal defendant to be competent
“has a modest aim: It seeks to ensure that he has the capacity
to understand the proceedings and to assist counsel.” Godinez
v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L. ed. 2d
321 (1993). See, also, Hessler, supra.
In this case, the district court found that Fox was competent
to stand trial. At the April 27, 2010, review hearing regard-
ing Fox’s competency, a psychiatrist and a psychologist who
were called by the State as witnesses testified that Fox was
competent, and a forensic psychologist who was called by Fox
testified that Fox was marginally competent. The district court
reached its determination based on this testimony and reports
in evidence.
The State submitted a report by the psychiatrist and the psy-
chologist which stated that Fox had “demonstrated an adequate
understanding of the legal system” and “appear[ed] to have the
ability to assist his attorney in developing a rational defense.”
Their report also noted that although Fox had chosen not to
assist in his defense, his “behavior and reluctance to discuss
his legal circumstances appear[ed] volitional” and that Fox’s
symptoms did “not appear to be so severe as to prevent him
from assisting in his defense, if he [chose] to cooperate with
legal counsel.” The psychiatrist and the psychologist testified
to similar effect.
The forensic psychologist called by Fox gave similar testi-
mony stating that he believed Fox was marginally competent to
stand trial. While noting his concern regarding Fox’s propen-
sity to “decompensate under stress,” the forensic psychologist
stated in his report that Fox “appear[ed] to have the requisite
capacities associated with marginal competence to proceed
with adjudication.”
In its order finding that Fox was competent to stand trial,
the district court stated that it had reviewed the evidence and
considered the factors set forth in Nebraska cases, including
a concurring opinion in State v. Guatney, 207 Neb. 501, 299
964 	282 NeBRASkA RePoRTS

N.W.2d 538 (1980) (krivosha, C.J., concurring). This concur-
rence lists 20 factors which it suggests be considered in deter-
mining whether a defendant is competent to stand trial. Fox
urges us to endorse consideration of these 20 factors. We find
it unnecessary in this case to adopt the 20-factor test set forth
in the Guatney concurrence. Nevertheless, we note that the dis-
trict court stated that it had reviewed each of them, along with
the evidence, and indicated that it was “compelled to conclude
that [Fox was] competent to stand trial in this matter.”
The record shows that Fox had an understanding of the
nature and object of the proceedings against him, could com-
prehend his own condition in reference to the proceedings, and
had the ability to make a rational defense. See, State v. Vo, 279
Neb. 964, 783 N.W.2d 416 (2010); Guatney, supra. The dis-
trict court’s determination is supported by sufficient evidence.
See, Vo, supra; State v. Walker, 272 Neb. 725, 724 N.W.2d 552
(2006). For completeness, we note that, as we explain below,
Fox voluntarily chose not to participate in portions of his
defense, although the record showed that he had the capacity
to participate. The district court did not err when it found that
Fox was competent to stand trial.
Notwithstanding the record made in connection with the
pretrial determination that Fox was competent to stand trial,
Fox urges us to adopt a requirement of an additional posttrial
competency finding as set forth by the U.S. Court of Appeals
for the District of Columbia Circuit in Wilson v. United States,
391 F.2d 460 (D.C. Cir. 1968). In Wilson, the defendant was
tried and convicted of five counts of assault with a pistol and
robbery. Id. In a car accident following the robberies, the
defendant suffered a head injury, and the medical evidence
showed that he could not, and probably never would, remem-
ber anything that happened from the afternoon of the rob-
beries until he regained consciousness 3 weeks later. Id. The
district court found that the defendant was competent to stand
trial, but the District of Columbia Circuit remanded “for more
extensive post-trial findings on the question of whether the
[defendant’s] loss of memory did in fact deprive him of the fair
trial and effective assistance of counsel to which the Fifth and
Sixth Amendments entitle him.” 391 F.3d at 463. For purposes
STATe v. Fox 	965
Cite as 282 Neb. 957

of remand, the appellate court directed the district court to
make additional posttrial findings of fact regarding whether
the defendant had demonstrated his competency during trial.
Three opinions were filed in Wilson, one denominated a “con-
currence,” “to avoid the impasse of a 3-way split,” id. at 466
(Leventhal, Circuit Judge, concurring), and one denominated a
“dissent,” (Fahy, Senior Circuit Judge, dissenting). Fox urges
us to adopt the Wilson standard.
We decline to adopt the procedure set forth in Wilson.
Consistent with our decision, we note that other courts have
declined to adopt the Wilson standard in cases where the
defendants claim they are incompetent to stand trial because
they have suffered from amnesia for the period of time during
which the alleged crime occurred. In these decisions, courts
have generally stated that amnesia of the events alone does
not render a defendant per se incompetent to stand trial. See,
e.g., Davis v. Wyrick, 766 F.2d 1197 (8th Cir. 1985); Morris
v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009) (cases col-
lected); U.S. v. Douglas, No. 06-00159-01-CR-W-NkL, 2007
WL 541609 (W.D. Mo. Feb. 16, 2007) (unpublished opinion).
Additionally, declining to adopt the Wilson standard is in
accord with our own jurisprudence. In State v. Holtan, 205
Neb. 314, 287 N.W.2d 671 (1980), we determined that the
mere fact that the defendant maintained he did not recall com-
mitting the crime, but with full faculty entered a plea, did not
impose upon the trial court an obligation or duty to require a
competency hearing.
In this case, the record shows the district court effectively
determined that Fox is not suffering from amnesia or an actual
loss of memory. The record shows that Fox has elected not to
discuss or remember the events surrounding his mother’s death
because of their disturbing nature and his risk of decompen-
sating. Fox’s case is distinguishable from Wilson, supra, and
other cases where the defendants did not have the capacity to
remember the events surrounding their alleged crimes, and our
ruling in this case does not necessarily speak to refining the
procedure where a defendant is unable to remember the events
during the alleged crime. We decline to adopt the procedure
regarding competency set forth in Wilson. We conclude that the
966 	282 NeBRASkA RePoRTS

district court did not err when it found that Fox was competent
to stand trial.
The Court Did Not Err When It Found That Fox Knowingly
and Voluntarily Waived His Right to Be Present at Trial
and Allowed Fox to Absent Himself From Trial.
Fox next generally claims that the district court erred when
it allowed him to absent himself from much of the trial. We
read Fox’s claim as an assertion that he did not knowingly
and voluntarily waive his constitutional and statutory right to
be present at his trial. We find no merit to this assignment
of error.
[7,8] The U.S. Supreme Court addressed the defendant’s
right to be present in the courtroom in Illinois v. Allen, 397
U.S. 337, 90 S. Ct. 1057, 25 L. ed. 2d 353 (1970). The
Court stated:
The Confrontation Clause of the Sixth Amendment to
the United States Constitution provides that: “In all crimi-
nal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” We
have held that the Fourteenth Amendment makes the guar-
antees of this clause obligatory upon the States. Pointer v.
Texas, 380 U.S. 400[, 85 S. Ct. 1065, 13 L. ed. 2d 923]
(1965). one of the most basic of the rights guaranteed
by the Confrontation Clause is the accused’s right to be
present in the courtroom at every stage of his trial. Lewis
v. United States, 146 U.S. 370[, 13 S. Ct. 136, 36 L. ed.
1011] (1892).
397 U.S. at 338.
The Nebraska Constitution contains a similar provision and
we have discussed the right to be present at one’s criminal trial
under Neb. Const. art. I, § 11, in State v. Zlomke, 268 Neb. 891,
689 N.W.2d 181 (2004). Neb. Const. art. I, § 11, states: “In all
criminal prosecutions the accused shall have the right to appear
and defend in person or by counsel . . . .”
The Nebraska statutory right to be present during trial is
found at § 29-2001, which provides:
No person indicted for a felony shall be tried unless
personally present during the trial. Persons indicted for a
STATe v. Fox 	967
Cite as 282 Neb. 957

misdemeanor may, at their own request, by leave of the
court be put on trial in their absence. The request shall be
in writing and entered on the journal of the court.
We have previously considered the criminal defendant’s
constitutional and statutory right to be present at trial, as well
as the effective knowing and voluntary waiver of that right. In
Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925), we referred
to the predecessor statute to § 29-2001 in a case where the
defendant was released on bail and was voluntarily not present
at trial. In Scott, we stated:
It is insisted, and no doubt is the law, that under this
statute defendant has a right to be present at all times
when any proceeding is taken during the trial, from the
impaneling of the jury to the rendition of the verdict,
inclusive, unless he has waived such right . . . .
113 Neb. at 659, 204 N.W. at 381.
[9] We discussed the absence of a criminal defendant issue
further in State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220
(1991). After acknowledging that a defendant may waive his
right to be present at any proceeding during his trial, we stated
that “[i]f a defendant is to effectively waive his presence at
trial, that waiver must be knowing and voluntary.” Id. at 325,
476 N.W.2d at 225. In Red Kettle, we noted that the court
advised the defendant of his right to be present at trial and read
§ 29-2001 to the defendant. Additionally, the court advised the
jury, without objection from the defendant, that the defendant
“‘has a right not to be present at the trial. The fact that he has
been voluntarily absent from the trial must not be considered
by you as an admission of guilt and must not influence your
verdict in any way.’” Red Kettle, 239 Neb. at 326, 476 N.W.2d
at 226. In Red Kettle, we determined that the trial court did not
err in conducting the trial in the defendant’s absence.
In this case, after he had been found competent to stand
trial, Fox filed a motion to waive his attendance at trial. He
explained that it would be difficult for him to view forensic and
other evidence depicting his mother’s death. Fox contends that
he would have suffered negative mental health consequences
if he had viewed certain evidence; and on appeal, he seems
to assert that this choice to absent himself from trial to avoid
968 	282 NeBRASkA RePoRTS

these consequences was, therefore, not voluntary. We reject
this contention.
There is nothing in the record which indicates that Fox was
incapable of making the choice to attend or not attend trial. In
Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. ed.
2d 321 (1993), the U.S. Supreme Court acknowledged that a
defendant must make numerous decisions during a trial which
may affect a constitutional right such as whether to waive
his privilege against compulsory self-incrimination, waive the
right to a jury trial, and other strategic choices. In Godinez, the
Court stated that “all criminal defendants . . . may be required
to make important decisions once criminal proceedings have
been initiated.” 509 U.S. at 398 (emphasis in original). The fact
that difficult choices must be made does not make the fact of
selection or the selected option involuntary.
The record shows that the district court conducted a hearing
on Fox’s request to absent himself from portions of the trial
and that the issue was discussed with Fox present. Fox’s coun-
sel confirmed that Fox had been informed that if Fox decided
not to attend the trial, Fox could change his mind at any time
and be present at any portion of the trial he wished to attend.
The court confirmed that this was an accurate statement of the
substance of the hearing.
In its order sustaining Fox’s motion to waive attendance at
trial, the district court found that Fox understood his right to
be present at trial and at all hearings and proceedings, as well
as his right to face and confront the witnesses against him. The
district court thus found that Fox’s choice to waive his right to
be present was knowingly and voluntarily made. The court also
found that Fox understood that he had the choice to be present
or not present at any portion of the trial and that Fox had the
right to change his mind at any time.
At various times throughout the trial, the court asked defense
counsel if Fox intended to attend upcoming portions of the
trial, and defense counsel informed the court that Fox did not
wish to be present. The court also advised Fox that he could
observe the trial on closed circuit television when he was not
present in court. Additionally, the court admonished the jury
that Fox had the right to be present or absent for portions of the
STATe v. Fox 	969
Cite as 282 Neb. 957

trial, but that the jury was “to make nothing of that and make
no assumptions or take that in any way as to determining his
guilt or innocence in this case.”
Based on the facts, we conclude that the district court did not
err when it found that Fox knowingly and voluntarily waived
his constitutional and statutory right to be present at trial.
CoNCLUSIoN
The district court did not err when it determined that Fox
was competent to stand trial. The district court did not err when
it concluded that Fox knowingly and voluntarily waived his
right to be present at trial. Accordingly, we affirm.
affirMed.
wriGht, J., not participating.
970 	282 NeBRASkA RePoRTS