State v. Garcia

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/08/2023 09:07 AM CDT

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

State of Nebraska, appellee, v.

Anthony J. Garcia, appellant.

___ N.W.2d ___

Filed September 8, 2023. No. S-18-979.

1. Appeal and Error. To be considered by an appellate court, the party

asserting the alleged error must both specifically assign and specifically

argue it in the party’s initial brief.

2. ____. Where an appellant’s brief contains conclusory assertions unsup-

ported by a coherent analytical argument, the appellant fails to satisfy

the requirement that the party asserting the alleged error must both spe-

cifically assign and specifically argue it in the party’s initial brief.

3. Records: Appeal and Error. In both the criminal and postconviction

context, an appellate court will not ordinarily scour the record in search

of facts that might support an appellant’s claim.

4. Constitutional Law: Search and Seizure: Motions to Suppress:

Appeal and Error. In reviewing a trial court’s ruling on a motion

to suppress evidence based on a claimed violation of the Fourth

Amendment, an appellate court applies a two-part standard of review.

Regarding historical facts, an appellate court reviews the trial court’s

findings for clear error, but whether those facts trigger or violate

Fourth Amendment protections is a question of law that an appellate

court reviews independently of the trial court’s determination. And

where the facts are largely undisputed, the ultimate question is an issue

of law.

5. Effectiveness of Counsel: Appeal and Error. With regard to the

questions of counsel’s performance or prejudice to the defendant as

part of the two-pronged test articulated in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate

court reviews such legal determinations independently of the lower

court’s decision.

6. Effectiveness of Counsel: Proof: Appeal and Error. To prevail

on a claim of ineffective assistance of counsel under Strickland v.

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Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

the defendant must show that his or her counsel’s performance was

deficient and that this deficient performance actually prejudiced the

defendant’s defense. An appellate court may address the two prongs of

this test, deficient performance and prejudice, in either order.

7. Effectiveness of Counsel: Proof. To show that counsel’s performance

was deficient, a defendant must show that counsel’s performance did not

equal that of a lawyer with ordinary training and skill in criminal law.

8. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-

dice, the defendant must demonstrate a reasonable probability that but

for counsel’s deficient performance, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

9. Effectiveness of Counsel: Trial: Presumptions: Appeal and Error.

There is a strong presumption that counsel acted reasonably, and an

appellate court will not second-guess reasonable strategic decisions.

When reviewing claims of alleged ineffective assistance of counsel,

trial counsel is afforded due deference to formulate trial strategy

and tactics.

10. Effectiveness of Counsel: Postconviction: Records: Appeal and

Error. When a defendant’s trial counsel is different from his or her

counsel on direct appeal, the defendant must raise on direct appeal any

issue of trial counsel’s ineffective performance which is known to the

defendant or is apparent from the record; otherwise, the issue will be

procedurally barred in a subsequent postconviction proceeding.

11. 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.

12. Effectiveness of Counsel: Records: Proof: Appeal and Error. An

appellate court can determine whether the record proves or rebuts the

merits of a claim of ineffective assistance of trial counsel only if it

has knowledge of the specific conduct alleged to constitute deficient

performance.

13. Effectiveness of Counsel: Appeal and Error. In order to preserve a

claim of ineffective assistance of counsel when new counsel represents

the defendant on direct appeal, the appellant must make specific allega-

tions of the conduct the appellant claims constituted deficient perform­

ance by trial counsel.

14. Effectiveness of Counsel: Waiver: Records: Appeal and Error.

Appellate counsel does not waive a claim of ineffective assistance

of trial counsel by failing to specifically allege and argue prejudice,

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STATE V. GARCIA

Cite as 315 Neb. 74

because doing so would often require details unlikely to be found

in the record or known to the defendant without further inquiry. It

is nevertheless advisable for appellate counsel to specifically argue

prejudice if counsel believes the details in the trial record pertinent to

the prejudice prong of the ineffective assistance of counsel inquiry are

sufficient to adequately review the question.

15. Effectiveness of Counsel: Records: Proof: Appeal and Error.

Appellate courts are free to determine on direct appeal the effectiveness

of trial counsel on the prejudice prong if the record affirmatively proves

or rebuts the claim on that ground.

16. Courts: Motions for Mistrial: Motions for New Trial: Appeal and

Error. A trial court is vested with considerable discretion in passing on

motions for mistrial and for a new trial, and an appellate court will not

disturb a trial court’s decision whether to grant a motion for mistrial or

a motion for new trial unless the court has abused its discretion.

17. Judges: Witnesses: Appeal and Error. An appellate court’s deference

to the trial court stems in part from the recognition that the trial judge

is better situated than a reviewing court to pass on questions of wit-

ness credibility and the surrounding circumstances and atmosphere of

the trial.

18. Judges: Evidence: Verdicts: Jurors: Appeal and Error. The trial

judge has a special perspective on the relationship between the evidence

and the verdict which cannot be recreated by a reviewing court from the

printed record. The trial court is likewise in a better position to make

credibility determinations of jurors’ statements concerning whether they

were influenced by extraneous information.

19. Constitutional Law: Trial: Joinder. There is no constitutional right to

a separate trial.

20. Trial: Joinder: Appeal and Error. Whether offenses were properly

joined involves a two-stage analysis: (1) whether the offenses were suf-

ficiently related so as to be joinable and (2) whether the joinder was

prejudicial to the defendant.

21. Trial: Joinder: Presumptions. There is a strong presumption against

severing properly joined counts.

22. Trial: Joinder: Appeal and Error. While Neb. Rev. Stat. § 29-2002

(Reissue 2016) presents two separate questions, there is no error under

either subsection (1) or subsection (3) if joinder was not prejudicial, and

a denial of a motion to sever will be reversed only if clear prejudice and

an abuse of discretion are shown.

23. ____: ____: ____. An appellate court will find an abuse of discretion in

the denial of a motion to sever only where the denial caused the defend­

ant substantial prejudice amounting to a miscarriage of justice.

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

24. Trial: Joinder: Proof. A defendant opposing joinder of charges has the

burden of proving prejudice. To carry that burden, a defendant must

show compelling, specific, and actual prejudice from the court’s refusal

to grant the motion to sever.

25. Trial: Joinder. Severe prejudice occurs when a defendant is deprived

of an appreciable chance for an acquittal, a chance that the defendant

would have had in a severed trial.

26. ____: ____. Prejudice from joinder cannot be shown if evidence of one

charge would have been admissible in a separate trial of another charge.

27. Trial: Joinder: Juries: Evidence. Joined charges do not usually result

in prejudice if the evidence is sufficiently simple and distinct for the

jury to easily separate evidence of the charges during deliberations.

28. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to

be kept together before submission of the cause in a criminal trial is left

to the discretion of the trial court.

29. ____: ____: ____: ____. To warrant reversal, denial of a motion to

sequester the jury before submission of the cause must be shown to have

prejudiced the defendant.

30. Venue: Appeal and Error. An appellate court reviews the denial of a

motion to change venue for abuse of discretion.

31. Juror Qualifications. The law does not require that a juror be totally

ignorant of the facts and issues involved; it is sufficient if the juror can

lay aside his or her impressions or opinions and render a verdict based

upon the evidence presented in court.

32. Courts: Trial: Mental Competency. The question of competency to

stand trial is one of fact to be determined by the district court.

33. Courts: Trial: Mental Competency: Appeal and Error. A court’s

decision regarding competency will not be disturbed absent insufficient

evidence to support that finding.

34. Trial: Pleas: Mental Competency. A person is competent to plead or

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

own condition in reference to such proceedings, and to make a ratio-

nal defense.

35. Trial: Mental Competency. The competency standard includes both (1)

whether the defendant has a rational as well as factual understanding of

the proceedings against him or her and (2) whether the defendant has

sufficient present ability to consult with his or her lawyer with a reason-

able degree of rational understanding.

36. Mental Competency. There are no fixed or immutable signs of

incompetence, and a defendant can meet the modest aim of legal

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competency, despite paranoia, emotional disorders, unstable mental

conditions, and suicidal tendencies.

37. Criminal Law: Evidence: Jury Instructions. In order to justify an

alibi instruction, there must be evidence that the defendant was at some

other place during the commission of the crime.

38. Criminal Law: Evidence: Proof. The evidence must show that the

defendant was at such other place for a length of time that it was impos-

sible for him or her to have been at the place where the crime was com-

mitted, either before or after the time he or she was at such other place.

39. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant

has not preserved a claim of prosecutorial misconduct for direct appeal,

an appellate court will review the record only for plain error.

40. Appeal and Error. Appellate courts apply the plain error exception to

the contemporaneous-objection rule sparingly.

41. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-

conduct encompasses conduct that violates legal or ethical standards for

various contexts because the conduct will or may undermine a defend­

ant’s right to a fair trial.

42. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial

misconduct, a court first determines whether the prosecutor’s remarks

were improper. It is then necessary to determine the extent to which the

improper remarks had a prejudicial effect on the defendant’s right to a

fair trial.

43. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct

prejudices a defendant’s right to a fair trial when the misconduct so

infected the trial that the resulting conviction violates due process.

44. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is

prejudicial depends largely on the context of the trial as a whole.

45. Trial: Prosecuting Attorneys: Appeal and Error. In determining

whether a prosecutor’s improper conduct prejudiced the defendant’s

right to a fair trial, appellate courts consider the following factors:

(1) the degree to which the prosecutor’s conduct or remarks tended

to mislead or unduly influence the jury, (2) whether the conduct or

remarks were extensive or isolated, (3) whether trial counsel invited the

remarks, (4) whether the court provided a curative instruction, and (5)

the strength of the evidence supporting the conviction.

46. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does

not mislead and unduly influence the jury is not misconduct.

47. Constitutional Law: Statutes: Appeal and Error. The constitutionality

of a statute presents a question of law, which an appellate court indepen-

dently reviews.

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

48. Sentences: Death Penalty: Aggravating and Mitigating

Circumstances: Appeal and Error. When reviewing the sufficiency

of the evidence to sustain the trier of fact’s finding of an aggravating

circumstance, the relevant question for the Nebraska Supreme Court is

whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential elements

of the aggravating circumstance beyond a reasonable doubt.

49. Constitutional Law: Sentences: Death Penalty: Aggravating and

Mitigating Circumstances: Appeal and Error. When an appellate

court reviewing a death penalty invalidates one or more of the aggra-

vating circumstances, or finds as a matter of law that any mitigating

circumstance exists that the sentencing panel did not consider in its

balancing, the appellate court may, consistent with the U.S. Constitution,

conduct a harmless error analysis or remand the cause to the district

court for a new sentencing hearing.

50. Sentences: Death Penalty: Jury Instructions: Appeal and Error.

In order for a state appellate court to affirm a death sentence after the

sentencer was instructed to consider an invalid factor, the court must

determine what the sentencer would have done absent the factor.

51. Constitutional Law: Convictions: Appeal and Error. Even a consti-

tutional error which was harmless beyond a reasonable doubt does not

warrant the reversal of a criminal conviction.

52. Sentences: Death Penalty: Aggravating and Mitigating

Circumstances: Proof: Appeal and Error. Harmless error review in a

capital sentencing case looks to whether it is clear beyond a reasonable

doubt that the sentencing court’s decision would have been the same

absent any reliance on an invalid aggravator.

53. Sentences: Death Penalty: Appeal and Error. In a capital sentencing

proceeding, this court conducts an independent review of the record

to determine if the evidence is sufficient to support imposition of the

death penalty.

54. Sentences: Death Penalty: Aggravating and Mitigating

Circumstances: Appeal and Error. When reviewing the sufficiency

of the evidence to sustain the trier of fact’s finding of an aggravating

circumstance, the relevant question for the Nebraska Supreme Court is

whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential elements

of the aggravating circumstance beyond a reasonable doubt.

55. ____: ____: ____: ____. A sentencing panel’s determination of the exis-

tence or nonexistence of a mitigating circumstance is subject to de novo

review by the Nebraska Supreme Court.

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

56. ____: ____: ____: ____. In reviewing a sentence of death, the Nebraska

Supreme Court conducts a de novo review of the record to determine

whether the aggravating and mitigating circumstances support the impo-

sition of the death penalty.

57. Sentences: Death Penalty: Aggravating and Mitigating

Circumstances: Juries: Waiver. Under Nebraska’s capital sentencing

scheme, a jury, if not waived, only determines the existence of aggravat-

ing circumstances.

58. ____: ____: ____: ____: ____. A jury’s participation in the death pen-

alty sentencing phase, if not waived, ceases after the determination of

aggravating circumstances. A three-judge panel determines the existence

of mitigating circumstances, weighs aggravating and mitigating circum-

stances, and determines the sentence.

59. Sentences: Death Penalty: Appeal and Error. Proportionality review

requires the Nebraska Supreme Court to compare the aggravating and

mitigating circumstances with those present in other cases in which

a district court imposed the death penalty to ensure that the sentence

imposed in the case under review is no greater than those imposed in

other cases with the same or similar circumstances.

60. Sentences: Death Penalty: Aggravating and Mitigating

Circumstances: Appeal and Error. If an error is harmless beyond a

reasonable doubt in a capital sentencing case, the Nebraska Supreme

Court should affirm the sentence of the district court. If the error is not

harmless, the Nebraska Supreme Court cannot reweigh the aggravators

and mitigators and resentence a defendant; rather, it must remand the

matter to the district court for resentencing.

61. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.

Whether cumulative error deprived a criminal defendant of his or her

Sixth Amendment right to a trial by an impartial jury presents a question

of law to be reviewed de novo.

Appeal from the District Court for Douglas County: Gary

B. Randall, Judge. Affirmed.

Jeffery A. Pickens and Sarah P. Newell, of Nebraska

Commission on Public Advocacy, for appellant.

Michael T. Hilgers, Attorney General, and James D. Smith

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,

and Papik, JJ., and Arterburn, Judge.

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

Heavican, C.J.

I. INTRODUCTION

The appellant, Anthony J. Garcia, was convicted of four

counts of first degree murder, four counts of use of a weapon

to commit a felony, and one count of attempted burglary. He

was sentenced to death for each of the four murder convictions,

19 to 20 years’ imprisonment for two of the use of a weapon

convictions, 49 to 50 years’ imprisonment for the remain-

ing use of a weapon convictions, and 20 months’ to 5 years’

imprisonment for the attempted burglary conviction. This auto-

matic appeal follows. 1

II. BACKGROUND

These facts involve two sets of murders committed 5 years

apart. On March 13, 2008, William Hunter discovered the bod-

ies of his 11-year-old son, Thomas Hunter (Hunter), and Shirlee

Sherman, aged 57 and employed as the family’s cleaner, at

the Hunter home in the Dundee neighborhood of Omaha,

Nebraska. Both Hunter’s and Sherman’s carotid arteries and

jugular veins were severed, and the knives used to inflict those

wounds were left in the victims’ necks.

Just over 5 years later, on May 14, 2013, the bodies of

Roger Brumback and Mary Brumback were discovered in their

home, also in Omaha. Roger and Mary were stabbed in the

neck; Roger was also shot. Mary’s carotid artery and jugular

vein were severed, as was Roger’s carotid artery.

The Brumback murders revived the investigation into the

Hunter/Sherman murders because of a connection between

William Hunter and Roger, who were both employed by

Creighton University (Creighton) in Omaha in its pathology

department. Further investigation led law enforcement to sus-

pect Garcia of both sets of murders. Garcia was eventually

arrested in Illinois on July 15, 2013. Search warrants were

then obtained and executed for Garcia’s home in Terre Haute,

Indiana, and at his parents’ home in California. Garcia was

1

See Neb. Rev. Stat. § 29-2525 (Reissue 2016).

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STATE V. GARCIA

Cite as 315 Neb. 74

later charged with both sets of murders and the associated

weapons charges, as well as an attempted burglary at the

home of Chhanda Bewtra, another individual employed in

Creighton’s pathology department.

The State’s theory of the crimes was that Garcia commit-

ted each set of murders as revenge for his termination from

Creighton’s pathology residency program. In support of this

theory, in addition to presenting factual evidence regarding

the two murder scenes and Garcia’s physical and digital move-

ments at the time of the murders, the State presented evidence

of Garcia’s time at Creighton. The State also offered evidence

of Garcia’s professional and personal life between the two

sets of murders to show that his termination from Creighton’s

residency program, at least occasionally, prevented Garcia

from obtaining a medical license in different states and from

generally considering himself to be successful.

Garcia was represented by “Team Motta,” composed of

lawyers primarily practicing in Chicago, Illinois, but admitted

pro hac vice in Nebraska for purposes of representing Garcia.

The Chicago members of Team Motta were Robert Motta, Sr.;

Robert Motta, Jr.; and Alison Motta. In order to be admit-

ted pro hac vice, Team Motta was required to associate with

local counsel; at some point prior to trial in Douglas County,

original local counsel withdrew, and new local counsel—

notably including Omaha attorney Jeremy Jorgenson—joined

as counsel.

As will be noted in more detail below, when original local

counsel withdrew, Team Motta needed to be readmitted pro

hac vice. At this time, Alison Motta’s motion to be admitted

pro hac vice was denied, while the motions of the remainder of

Team Motta were granted. As such, by the time of trial, Alison

Motta was not able to appear in court to represent Garcia.

Throughout our opinion, we refer to Team Motta as defense or

trial counsel; where referencing Alison Motta specifically, we

refer to her as “Motta.”

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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. GARCIA

Cite as 315 Neb. 74

Trial eventually began in late September 2016, after which

the jury found Garcia guilty on all charges. A notice of aggra-

vation had been filed with regard to the four murder charges,

and thus, Garcia was death eligible. Following a hearing on

aggravating factors, the jury found two aggravators each as to

the Hunter/Sherman murders and three aggravators each as to

the Brumback murders.

At this point in time, the district court appointed the

Commission on Public Advocacy (Commission) as cocoun-

sel for purposes of Garcia’s sentencing hearing. The details

surrounding this are also set forth in more detail below. By

the time this sentencing hearing was held, however, Team

Motta had withdrawn from representing Garcia and only the

Commission acted as representation for Garcia. Following a

further sentencing hearing at which Garcia produced evidence

of mitigating factors, a three-judge panel sentenced Garcia to

death for each of the four murder convictions. The Commission

continues to represent Garcia on appeal.

Additional factual and procedural background is incorpo-

rated below.

III. ASSIGNMENTS OF ERROR

Garcia assigns 130 separate assignments of error, which

generally comprise 15 separate topic areas: (1) motions to

suppress and evidentiary objections, (2) testimony of Cecilia

Hoffmann, (3) interlocutory appeals, (4) motion to sever, (5)

change of venue and jury sequestration, (6) competency, (7)

discovery, (8) DNA and digital evidence, (9) miscellaneous

claims of ineffective assistance of counsel, (10) closing argu-

ments, (11) aggravating circumstances, (12) mitigating cir-

cumstances, (13) constitutionality of the death penalty, (14)

balancing and proportionality, and (15) broad-scale ineffective-

ness and procedural bar. We have adopted this framework to

address Garcia’s assignments of errors. We set forth in detail a

pertinent list of assigned errors—consolidated and restated—at

the commencement of each topic area.

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Nebraska Supreme Court Advance Sheets

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STATE V. GARCIA

Cite as 315 Neb. 74

We note that throughout his brief, Garcia often “incorpo-

rates” facts, propositions of law, legal standards, assignments

of error, arguments, or any combination thereof from other sec-

tions of his brief and, at times, even other parts of the record.

Sometimes, these “incorporations” identify the source of the

incorporated material. At other times, they do not. We deter-

mine that, generally, Garcia’s incorporations are insufficient

for us to consider the “incorporated” materials as part of the

related argument. This outcome is supported by several propo-

sitions of this court.

[1-3] First, we have long held that to be considered by

an appellate court, the party asserting the alleged error must

both specifically assign and specifically argue the error in

the party’s initial brief. 2 Where an appellant’s brief contains

conclusory assertions unsupported by a coherent analytical

argument, the appellant fails to satisfy such requirement. 3

Moreover, we have held that, in both the criminal and post-

conviction context, an appellate court will not ordinarily scour

the record in search of facts that might support an appel-

lant’s claim. 4

Additionally, in the context of petitions for further review,

we have noted that incorporation by reference of the assign-

ments of error and arguments made in one’s appellate brief is

not an appropriate way to separately and concisely set forth the

assignments of error in a petition for further review. 5

For the purposes of briefs filed with the appellate courts,

we do not encourage the practice of incorporating by refer-

ence any content material to a party’s argument, particularly

2

Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984 N.W.2d 596

(2023).

3

Id.

4

See State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021); State v. Childs,

309 Neb. 427, 960 N.W.2d 585 (2021).

5

State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014), overruled on other

grounds, State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).

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when such references are unclear, and any party who does

incorporate by reference does so at the party’s own peril. 6

IV. ANALYSIS

1. Motions to Suppress and

Evidentiary Objections

(a) Assignments of Error

Collectively, Garcia’s first 13 assignments of error discuss

Garcia’s allegations of district court error and ineffective

assist­ance of trial counsel with regard to evidence obtained

through the stop and subsequent search warrants undertaken

of Garcia’s vehicle and home, as well as of the home of his

parents. We consolidate and renumber those assignments for

ease of disposition.

Garcia assigns that (1) the district court erred in overruling

his motion to suppress evidence from his warrantless stop and

arrest in Illinois because the arresting officer had no knowl-

edge of the facts supporting Garcia’s arrest and because the

collective knowledge doctrine was inapplicable.

In addition, Garcia assigns that his trial counsel was inef-

fective in (2) not preserving his suppression arguments with

regard to the evidence obtained from the stop of his vehicle,

including the failure to prepare for, make, and preserve objec-

tions to items and documents seized from Garcia’s vehicle;

(3) not preserving his suppression arguments with regard to

the evidence obtained from searches under the remaining

warrants, including the failure to prepare for, make, and pre-

serve objections to documents seized under those warrants;

(4) failing to prepare for, make, and preserve objections to

records and testimony relating to Garcia’s behavior as a medi-

cal resident; (5) stipulating to the admissibility of records and

testimony relating to Garcia’s behavior as a medical resident;

(6) failing to argue that the State’s motion in limine was time

barred in light of the district court’s January 28, 2016, order;

6

See State v. Buol, 314 Neb. 976, ___ N.W.2d ___ (2023).

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(7) failing to argue that the State did not carry its burden

regarding the sufficiency of the warrants by omitting proof of

the May 25, 2013, warrant upon which all other warrants were

premised; (8) failing to properly assert and prove the allega-

tions in Garcia’s Franks v. Delaware 7 motion; (9) failing to

submit a brief in support of Garcia’s motion in limine; (10)

failing to seek a jury instruction clarifying the limited purpose

for which various documents from Garcia’s home and vehicle

were admitted; and (11) failing to seek a jury instruction

clarifying the limited purpose for which Garcia’s employment

records and history were admitted.

(b) Standard of Review

[4] In reviewing a trial court’s ruling on a motion to sup-

press evidence based on a claimed violation of the Fourth

Amendment, we apply a two-part standard of review. 8

Regarding historical facts, we review the trial court’s find-

ings for clear error, but whether those facts trigger or violate

Fourth Amendment protections is a question of law that we

review independently of the trial court’s determination. 9 And

where the facts are largely undisputed, the ultimate question

is an issue of law. 10

(c) Additional Background

The Omaha Police Department (OPD) and the Federal

Bureau of Investigation (FBI) were working together to inves-

tigate the Hunter/Sherman and Brumback murders, which law

enforcement had theorized were connected. The investigation

led to Garcia, who resided in Terre Haute. FBI agents and

OPD officers traveled to that area in July 2013 to surveille and

eventually arrest Garcia, whose cell phone was being moni-

tored by OPD.

7

Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 667 (1978).

8

State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).

9

Id.

10

Id.

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STATE V. GARCIA

Cite as 315 Neb. 74

Upon arrival in Terre Haute, the investigating FBI agents

learned from OPD that Garcia had recently left the Terre Haute

area and had traveled to southern Illinois. The agents then

traveled to the same area in an effort to locate Garcia, making

contact with agents from the FBI office located in Springfield,

Illinois, while en route to southern Illinois. Garcia’s vehicle

was located outside a hotel in Salem, Illinois.

The agents checked into a hotel with a vantage point over

Garcia’s hotel and vehicle and made a plan for the next day’s

surveillance. That plan called for the agents who were watch-

ing Garcia’s hotel and vehicle to begin surveillance at 5 a.m.

One agent awoke a few minutes before that time and discov-

ered that Garcia’s vehicle was no longer parked at the hotel.

Agents contacted OPD, whose monitoring indicated that Garcia

was headed south on Interstate 57, and so those agents also

drove south on Interstate 57.

Because Garcia was not being monitored in real time, but

instead only every 30 minutes, agents did not immediately

locate Garcia. But Garcia’s vehicle was eventually located near

Benton, Illinois, heading southbound. In consultation with FBI

agents from the Springfield office, a decision was made to

have the Illinois State Patrol stop Garcia’s vehicle so that FBI

agents could arrest him. At approximately 6:30 a.m., Garcia

was arrested and transported first to Jonesboro, Illinois, and

eventually to Omaha.

(d) District Court Error

On appeal, Garcia contends that the district court erred in

not suppressing the evidence derived from Garcia’s stop and

arrest in Illinois. Specifically, Garcia contends that the arrest-

ing officer had no knowledge of the facts justifying the arrest

and the collective knowledge doctrine was inapplicable in

these circumstances. As such, Garcia contends that the failure

to suppress this evidence violated his rights under the 4th,

5th, and 14th Amendments to the U.S. Constitution and article

I, §§ 3, 7, and 11, of the Nebraska Constitution. Garcia does

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not assign on appeal that there was insufficient probable cause

to support his arrest.

The parties are in agreement that at the time of Garcia’s

arrest, an arrest warrant had been contemplated by Nebraska

authorities, but had not yet been issued. As such, Garcia’s

arrest was warrantless. Under Illinois law, an officer may arrest

someone when they have “reasonable grounds” to believe that

a warrant for the person’s arrest has been issued in Illinois

or in another jurisdiction or if there are “reasonable grounds

to believe that the person is committing or has committed an

offense.” 11 The statutory phrase “reasonable grounds” has the

same substantive meaning as “probable cause.” 12 “Where offi-

cers are acting in concert in investigating a crime or possible

crime, probable cause can be established from all the informa-

tion collectively received by the officers even if not known to

the arresting officer.” 13

We read Garcia’s argument as conceding that he could be

arrested without a warrant upon a finding of probable cause

and agreeing that probable cause to support an arrest can be

gathered via the collective knowledge doctrine. But Garcia

argues that in this case, there was insufficient collective

knowledge to support a finding of probable cause. Specifically,

Garcia argues that the Illinois troopers had no involvement or

knowledge of the underlying investigation into Garcia, as nei-

ther those troopers nor their agency were involved in investi-

gating the murders. Rather, the only Illinois law enforcement

officials involved were the FBI agents from the Springfield

office, and the Illinois troopers were only contacted after the

investigating officers lost track of Garcia. Moreover, the FBI

11

725 Ill. Comp. Stat. Ann. 5/107-2 (LexisNexis 2000). See Neb. Rev. Stat.

§ 29-404.02 (Cum. Supp. 2022).

12

People v. Lee, 214 Ill. 2d 476, 484, 828 N.E.2d 237, 293 Ill. Dec. 267

(2005).

13

People v. Fox, 155 Ill. App. 3d 256, 264, 508 N.E.2d 475, 481, 108 Ill.

Dec. 314, 320 (1987). See State v. Huff, 282 Neb. 78, 802 N.W.2d 77

(2011).

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agents investigating Garcia were not the same FBI agents

contacting the troopers who ultimately effected the stop.

Additionally, Garcia notes that only one of the Illinois troop-

ers involved was in direct contact with the FBI, and he was

only told to follow a vehicle matching a particular description.

He was not told who he was stopping and learned just before

he made the stop that it was in connection with a homicide

investigation.

To the extent that Garcia argues the collective knowledge

doctrine is inapplicable because the Illinois troopers were

from Illinois and not Nebraska, we reject this assertion. Garcia

directs us to no authority, and we can find none, that sug-

gests that law enforcement agencies cannot utilize the col-

lective knowledge doctrine when sharing information across

jurisdictions. In fact, case law and secondary sources suggest

the contrary. 14

Garcia ultimately suggests that the collective knowledge

doctrine is inapplicable because the FBI agents with knowl-

edge of the investigation were not in direct communication

with the troopers who stopped Garcia, and those troopers, as

well as the FBI agents who communicated with them, did not

possess any knowledge about Garcia or the investigation. But

as we have noted above, both Illinois and Nebraska law pro-

vide that probable cause can be established from all the infor-

mation collectively received by the officers even if not known

to the arresting officer. And Garcia directs us to no authority

that limits this rule. As such, we reject this assertion.

Garcia cites to several cases—U.S. v. Blair, 15 U.S. v. Lyons, 16

and U.S. v. Nafzager 17—which he argues support his posi-

tion. Having reviewed these cases, we find them distinguish-

able on their facts. Because, contrary to Garcia’s argument,

14

Annot., 101 A.L.R.6th 331 (2015) (collecting cases).

15

U.S. v. Blair, 524 F.3d 740 (6th Cir. 2008).

16

U.S. v. Lyons, 687 F.3d 754 (6th Cir. 2012).

17

U.S. v. Nafzager, 974 F.2d 906 (7th Cir. 1992).

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the collective knowledge doctrine is applicable and because

Garcia does not otherwise challenge the finding that there

was probable cause to support his arrest, we find no merit to

Garcia’s first assignment of error.

(e) Ineffective Assistance of Counsel

(i) Standard of Review and Propositions of Law

[5] With regard to the questions of counsel’s performance

or prejudice to the defendant as part of the two-pronged test

articulated in Strickland v. Washington, 18 an appellate court

reviews such legal determinations independently of the lower

court’s decision. 19

[6-8] Generally, to prevail on a claim of ineffective assist­

ance of counsel under Strickland, the defendant must show

that his or her counsel’s performance was deficient and that

this deficient performance actually prejudiced the defendant’s

defense. 20 An appellate court may address the two prongs of

this test, deficient performance and prejudice, in either order. 21

To show that counsel’s performance was deficient, a defendant

must show that counsel’s performance did not equal that of a

lawyer with ordinary training and skill in criminal law. 22 To

show prejudice, the defendant must demonstrate a reasonable

probability that but for counsel’s deficient performance, the

result of the proceeding would have been different. 23 A reason-

able probability is a probability sufficient to undermine confi-

dence in the outcome. 24

18

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

19

State v. Jennings, 312 Neb. 1020, 982 N.W.2d 216 (2022).

20

State v. Wood, supra note 4.

21

Id.

22

State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

23

Id.

24

Id.

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[9] There is a strong presumption that counsel acted reason-

ably, and an appellate court will not second-guess reasonable

strategic decisions. 25 When reviewing claims of alleged inef-

fective assistance of counsel, trial counsel is afforded due def-

erence to formulate trial strategy and tactics. 26

[10] When a defendant’s trial counsel is different from his

or her counsel on direct appeal, the defendant must raise on

direct appeal any issue of trial counsel’s ineffective perform­

ance which is known to the defendant or is apparent from the

record; otherwise, the issue will be procedurally barred in a

subsequent postconviction proceeding. 27

[11-13] Assignments of error on direct appeal regarding

effective 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. 28

Moreover, an appellate court can determine whether the record

proves or rebuts the merits of a claim of ineffective assistance

of trial counsel only if it has knowledge of the specific con-

duct alleged to constitute deficient performance. 29 Thus, in

order to preserve a claim of ineffective assistance of counsel

when new counsel represents the defendant on direct appeal,

the appellant must make specific allegations of the conduct

the appellant claims constituted deficient performance by

trial counsel. 30

[14,15] In contrast, appellate counsel does not waive a claim

of ineffective assistance of trial counsel by failing to specifi-

cally allege and argue prejudice, because doing so would often

require details unlikely to be found in the record or known

25

State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

26

Id.

27

Id.

28

State v. Mrza, supra note 22.

29

State v. Wood, supra note 4.

30

Id.

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to the defendant without further inquiry. 31 It is, nevertheless,

advisable for appellate counsel to specifically argue prejudice

if counsel believes the details in the trial record pertinent to the

prejudice prong of the ineffective assistance of counsel inquiry

are sufficient to adequately review the question. 32 Appellate

courts are free to determine on direct appeal the effectiveness

of trial counsel on the prejudice prong if the record affirma-

tively proves or rebuts the claim on that ground. 33

(ii) Evidence From Stop and

Remaining Warrants

In his second and third assignments of error, Garcia assigns

that his trial counsel erred in failing to object to the receipt

of evidence obtained from the stop of his vehicle and also

from “the Receipt of Evidence Obtained from the Remaining

Warrants.” More specifically, Garcia argues that counsel was

ineffective in the failure to prepare for, make, and preserve

objections to items and documents, including a shoulder bag

with an “LSU” logo and its contents, seized from Garcia’s

vehicle and from his home.

We generally agree with Garcia’s contention that trial coun-

sel’s objections to these items were haphazard. For example,

prior to officers’ testifying to the stop, counsel sought a renewal

of the motions to suppress and motion to quash. But objections

to specific pieces of evidence were inconsistent. For example,

objections to the admission of a cell phone retrieved at the

stop appear to have been made, but no objection was made to

the admission of Garcia’s wallet or its contents, or the LSU

shoulder bag and its contents. One item that was not admitted

was an LSU laboratory coat; however, a tablet computer was

found in the pocket of that laboratory coat and no objection

was raised to that item.

31

Id.

32

Id.

33

Id.

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In addition to now asserting that trial counsel was ineffec-

tive in failing to preserve his suppression arguments, Garcia

argues that counsel was generally unprepared to deal with the

admissibility of the documents seized from Garcia’s vehicle

and home. Garcia continues:

Because of the volume of the documents submitted,

the inability to track the Mottas’ objections through the

proceedings, and the admission of three separate boxes

of materials in their entirety summed up simply by a

one-word objection: “403”, successor counsel cannot

individually demonstrate the extent of deficient per-

formance or resulting prejudice as to each and every

document seized and admitted. . . . Certainly, not all of

the prejudicial evidence would have been excluded, but

. . . it stands to reason that a significant number of these

items would have been excluded had the Mottas been

more prepared. 34

As we have noted above, in order to preserve a claim of

ineffective assistance of counsel when new counsel represents

the defendant on direct appeal, the appellant must make spe-

cific allegations of conduct the appellant claims constituted

deficient performance by trial counsel. We find the allegations

here lacking.

On appeal, Garcia takes issue with documents that were

admitted at trial. While this record is undoubtedly large, what

is contained within it is known. In order for us to determine

whether trial counsel was deficient in not objecting to certain

documents, appellate counsel has an obligation to inform this

court of the specific documents complained of. A reference to

all documents would generally be insufficient in any case, and

especially where counsel also concedes that certain documents

would no doubt be admissible. We decline to search through

every document offered in this case to determine which may

or may not be inadmissible for any variety of prohibited

34

Brief for appellant at 173.

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reasons under our rules of evidence. We accordingly conclude

that the allegation of ineffective assistance of counsel on these

issues is insufficient.

Garcia also takes more specific issue with the LSU shoulder

bag. This bag was found in Garcia’s vehicle at the time of his

arrest, along with a laboratory coat, also with the LSU logo.

Law enforcement had theorized that Garcia might be headed

to Louisiana in order to kill individuals connected with the

Louisiana State University School of Medicine.

The laboratory coat was excluded from evidence, but the

record indicates that trial counsel objected too late to a photo-

graph taken of the LSU shoulder bag. On appeal, Garcia argues

that trial counsel failed to object to this bag and its contents.

Garcia does not allege what the contents of the bag were, and

such is not apparent from the photographs offered at trial.

Garcia does suggest that these contents were later added to

other documents offered in this case. We discussed such docu-

ments above.

However, we conclude that trial counsel failed to object to

the LSU shoulder bag and appellate counsel has adequately

alleged deficient conduct as much here. But we conclude that

there was no prejudice in the admission of the LSU shoulder

bag. We observe that the jury was aware that Garcia had ear-

lier been affiliated with LSU. Unlike the LSU laboratory coat

found in Garcia’s vehicle (which, as we note, was objected

to and excluded from evidence), the presence of a university

shoulder bag belonging to a person who had previously been a

medical resident at that university is not prejudicial.

Garcia also suggests that counsel was deficient in not object-

ing to the admission of the bank cards in his wallet, as well as

the cell phone and tablet computer. We conclude that we lack

the record to determine what information might have been

found on those devices, and thus, we conclude that we cannot

determine whether counsel was ineffective in failing to prop-

erly object to these items.

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(iii) Evidence Regarding Time Spent as

Creighton Medical Resident

In his fourth, fifth, and sixth assignments of error, Garcia

contends that his counsel was ineffective in handling the

admission of evidence relating to his time spent as a Creighton

medical resident, including whether counsel properly prepared

for, made, and preserved objections to that evidence; whether

counsel was ineffective in stipulating to the admissibility of

that evidence as a business record under Neb. Rev. Stat.

§ 27-803(5) (Reissue 2016); and whether counsel was inef-

fective in failing to argue that the State effectively waived the

admissibility of such evidence by filing its motion in limine

out of time.

We first reject the argument that the admission of this evi-

dence was effectively waived because it was filed after the

court’s deadline set in its order of January 28, 2016. A review

of the record shows that as of that date, the court and the parties

anticipated that trial would be held on April 4. Subsequently, a

new judge was assigned the case, local counsel withdrew, new

local counsel joined the case, many more evidentiary motions

were filed both by the State and by Garcia, and trial did not

occur until October 2016. In short, even if there was deficient

conduct by counsel in failing to object on those grounds, we

find no prejudice in the court’s allowing the filing of this

motion on these facts.

We turn to Garcia’s twin contentions that trial counsel erred

in stipulating to the admission of the employment records and

in their general handling of the admissibility of those records.

As noted above, the appellant must make specific allegations

of conduct the appellant claims constituted deficient perform­

ance. Though aware of what records were offered at trial,

Garcia has failed to identify the records that he now asserts

were inadmissible. For this reason, we find that these allega-

tions of ineffective assistance of counsel are insufficient.

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(iv) Proof of May 25, 2013, Warrant

Garcia assigns that trial counsel erred in failing to argue

that the State did not carry the burden of showing the suf-

ficiency of the search warrants executed against him because

the State did not offer proof of the May 25, 2013, warrant

upon which all other warrants were premised. According to

Garcia, this May 25 warrant was for Garcia’s cell phone and

cell tower records, and the information gathered from this war-

rant informed all subsequent warrants, including the one for

Garcia’s home and for businesses that Garcia patronized prior

to and following the Brumback murders. As Garcia notes, this

warrant is not part of our record. We conclude that we lack a

record on direct appeal to decide this allegation of ineffective

assistance of counsel.

(v) Franks Motion

Garcia also assigns that his counsel was ineffective in fail-

ing to preserve his suppression arguments by failing to prop-

erly assert and prove the allegations contained in his Franks

motion. 35 Garcia further argues that “[i]n addition to raising the

issue above from a failure of proof standpoint, [trial counsel]

should also have argued the issue as a material omission under

Franks. Similarly, [trial counsel] failed to present sufficient

evidence relating to alternate suspects as discussed below and

incorporated herein.” 36

When considered in conjunction with Garcia’s June 11,

2014, motion under Franks, we understand Garcia to be argu-

ing that certain misrepresentations and omissions were made

in the affidavits in support of several search warrants executed

against Garcia. In that motion, Garcia directs us to language

in the affidavits regarding Garcia’s time with Creighton’s

pathology department and contends that certain paragraphs

35

See Franks v. Delaware, supra note 7.

36

Brief for appellant at 169.

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of the probable cause affidavit were misleading. Garcia notes

that one affidavit stated that, when asked, William Hunter and

Roger verified that Garcia was terminated and did not com-

plete the program, when, in fact, “Garcia received at least two

excellent letters of reference from Drs. Hunter and Brumback

[that] outlined the work . . . Garcia completed and indicated

that he completed the year. Both of these letters were inten-

tionally omitted [from the affidavit].”

In addition, Garcia’s motion directs the court to five evalu-

ation forms, also omitted from the affidavit, from Garcia’s

time at Creighton in which Garcia was given “‘high scores’”

and was rated as “diligent, a hard worker, and with a great

attitude.” Garcia also contends that the affidavits did not

include information that there were other suspects that had

essentially the same motive as the State alleges Garcia did—a

grudge against Creighton’s pathology department. Garcia sug-

gests that this omission was also misleading. Finally, Garcia

argues that the affidavits state that he was arrested pursuant

to an OPD warrant, when, in fact, he was arrested without

a warrant. Garcia also points to some inconsistencies in wit-

ness lineups. The district court held a hearing on the Franks

motion and concluded that Garcia had not met his initial bur-

den of a “‘substantial preliminary showing,’ . . . of ‘deliberate

falsehood or a reckless disregard for the truth,’ supported by

an offer of proof.” 37

Generously construed, Garcia seems to limit his assignment

to his two primary allegations as raised in his Franks motion—

the Creighton letters of reference and the existence of alternate

suspects. To the extent other allegations that may fit under

Franks might exist, those have not been sufficiently alleged on

appeal or for a postconviction action.

The basis of Garcia’s argument is that counsel failed to

introduce sufficient evidence to support the Franks motion.

37

See State v. Stickelman, 207 Neb. 429, 434, 299 N.W.2d 520, 524 (1980).

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We note that Garcia does not identify what evidence ought to

have been offered with regard to either the letters of reference

or the alternate suspects. However, we recognize that the dis-

covery provided to counsel was alleged to be incomplete and

thus conclude there may be evidence that was not provided

to appellate counsel prior to this filing of Garcia’s brief on

appeal. As such, we conclude that we lack a sufficient record

to determine the issue on direct appeal.

(vi) Brief in Support of Motion in Limine

Garcia alleges that his trial counsel was ineffective in fail-

ing to submit a brief in support of Garcia’s second motion

in limine. The record shows that Garcia filed this motion in

limine specifically referencing 15 items that Garcia sought

to prohibit the State from mentioning at trial. Garcia men-

tions only three items in his brief: The State should not have

been permitted to (1) introduce any “post homicide behav-

ior,” including “travel, purchases, restaurants, casinos” as

“immaterial, and irrelevant, and [as] likely [to] confuse the

issues and mislead the jury”; (2) argue that “suicide [was an]

acknowledgement and/or inference of guilt” due to Garcia’s

long history of depression; or (3) admit argument or evi-

dence “indicating suspicions of law enforcement relating to

uncharged crimes,” where “law enforcement [might] believe

[Garcia] planned to commit but where [crimes were] never

actually committed.” As such, we limit our consideration to

these three.

Although Garcia’s categories are perhaps less vague than

those noted above regarding the searches of his vehicle, home,

or employment records, we still find that Garcia has not suf-

ficiently alleged what specific evidence counsel should have

objected to and why. Without these specific allegations, we

cannot determine whether the absence of a brief had any

impact on the court’s decisionmaking with regard to these cat-

egories. We conclude that Garcia has not adequately pled his

ineffective assistance claim.

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(vii) Jury Instructions

Finally, Garcia alleges that his counsel was ineffective in

failing to seek jury instructions clarifying the limited purpose

for which the documents from his vehicle and home, as well

as his employment records, were offered. But we have con-

cluded above that Garcia has failed to sufficiently allege his

allegations of ineffective assistance of counsel with regard to

the admissibility of these documents and records. As such, it

is immaterial whether the jury was given instructions as to its

consideration of those records.

(f) Conclusion

We find Garcia’s assignments of error regarding the district

court to be without merit. We further find that, except as set

forth below, Garcia has failed to allege his claims of ineffective

assistance of counsel with the required specificity with respect

to the searches associated with his stop, arrest, and other war-

rants, as well as with respect to the documents relating to his

time as a medical resident at Creighton. We find no prejudice

with regard to the admittance of the LSU shoulder bag. Finally,

we conclude that Garcia has sufficiently alleged deficient

conduct regarding his bank card and the cell phone and tablet

computer found in his vehicle when he was stopped, as well as

regarding the May 25 warrant and discovery issues related to

his Franks motion.

2. Testimony of Cecilia Hoffmann

(a) Assignments of Error

Garcia assigns a number of assignments of error relating

to Cecilia Hoffmann. He assigns, restated, that the trial court

erred (1) by not granting a mistrial when the State violated

a court order to not discuss a phone call between Hoffmann,

Motta, and Steve Yahnke, who was a private investigator that

worked for defense counsel; (2) by not allowing Garcia to

play portions of a recorded interview between Hoffmann and

Yahnke; and (3) by not inquiring about a conflict of interest

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when Garcia’s defense team continued as counsel after witness

tampering allegations.

Garcia further assigns, restated, that his trial counsel was

ineffective in (4) engaging in behavior akin to witness tam-

pering during interactions with Hoffmann; (5) failing to ade-

quately prepare for Hoffmann’s testimony, including filing

and preserving motions in limine to exclude testimony relat-

ing to allegations of witness tampering; (6) failing to object

to the State’s examination of Hoffmann wherein a question

was asked again after an objection was sustained, where the

State prematurely rehabilitated Hoffmann’s testimony, and

where the State had Hoffmann testify to an earlier consistent

statement prior to Garcia’s having impugned her motive to

fabricate; (7) failing to call Hoffmann’s coworkers to testify

that law enforcement used leading interview techniques; (8)

failing to make an offer of proof of a recorded interview so

that it could be reviewed on direct appeal; (9) failing to reof-

fer the recorded interview to impeach Hoffmann’s testimony

during Garcia’s case in chief; (10) failing to sequester Motta

and Yahnke so that both could testify to impeach Hoffmann’s

testimony that she felt threatened by them; (11) failing, due

to a conflict of interest, to call Motta and Yahnke to testify to

impeach Hoffmann’s testimony; (12) failing to object to the

district court’s allowing the State to impute consciousness of

guilt and the weakness of the case from the defense to Garcia;

(13) failing to withdraw as defense counsel following wit-

ness tampering allegations; (14) failing to consult with Garcia

about the implications of the witness tampering allegations;

(15) failing to pursue plea negotiations wherein Garcia could

testify against Motta or Yahnke in exchange for leniency;

(16) prioritizing publicity over Garcia’s right to a fair trial by

soliciting news outlets to cover the case; and (17) failing to

secure Garcia’s consent and a waiver of confidentiality and

privilege before participating in a national news television

show about the case.

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(b) Standard of Review and

Propositions of Law

[16-18] A trial court is vested with considerable discre-

tion in passing on motions for mistrial and for a new trial, 38

and an appellate court will not disturb a trial court’s decision

whether to grant a motion for mistrial or a motion for new

trial unless the court has abused its discretion. 39 It is an abuse

of discretion to make an error of law or clear errors of factual

determination. 40 An appellate court’s deference to the trial

court stems in part from the recognition that the trial judge

is better situated than a reviewing court to pass on questions

of witness credibility and the surrounding circumstances and

atmosphere of the trial. 41 The trial judge has a special per-

spective on the relationship between the evidence and the

verdict which cannot be recreated by a reviewing court from

the printed record. 42 The trial court is likewise in a better

position to make credibility determinations of jurors’ state-

ments concerning whether they were influenced by extrane-

ous information. 43

(c) Additional Background

Hoffmann was a dancer at a club located in Terre Haute,

which club was frequented by Garcia. After Garcia was

arrested in July 2013, OPD officers visited this club and spoke

with Hoffmann. During those interviews, Hoffmann told law

enforcement that Garcia had informed her that he had killed

“an old lady and a kid.”

Several years later, after Hoffmann’s identity was released,

Hoffmann was approached and interviewed by Yahnke.

38

State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).

39

Id.

40

See id.

41

Id.

42

Id.

43

Id.

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During that interview, which occurred on or about June 3,

2015, Hoffmann was asked by Yahnke whether she would

be willing to “recant [her] story” about Garcia’s statement.

During that interview, Hoffmann indicated that she would be

willing to do so, though she “d[id]n’t think [she] was lying”

in her earlier statement to law enforcement. With prompting

from Yahnke, Hoffmann suggested that due to her drug use at

the time Garcia made his statement, she should “retract the

statement.” Hoffmann testified that she emailed Ryan Davis,

the detective with the OPD who had initially interviewed her,

about this incident while Yahnke was still at her home.

A portion of the conversation between Hoffmann and Yahnke

was recorded. The recording was not admitted into evidence,

nor was an offer of proof made with regard to the recording. A

transcript of the recorded portion of this conversation is con-

tained in our record.

Hoffmann, Motta, and Yahnke later spoke via telephone

regarding Hoffmann’s recantation. There was no recording

or transcript of any part of this conversation, but Hoffmann

later spoke to an officer of the Indiana State Patrol about

both the interview and the phone call with Motta and Yahnke.

According to the affidavit of the officer who conducted the

interview of Hoffmann, Hoffmann related that Yahnke showed

up at her home, presented a badge, and advised her that he

was a detective. It was only after she allowed Yahnke into her

home that she realized that he was working for Garcia; she had

initially believed he was an OPD detective.

The officer’s affidavit noted that Hoffmann had reported

that Motta was aggressive, telling Hoffmann that she was a

drug addict—and either did not remember what had happened

or had heard the story elsewhere—and that people would not

believe her. According to the affidavit, Hoffmann said that

Motta and Yahnke convinced her that her testimony was not

necessary for the case and that she would be “torn part on

the stand given her background.” Hoffmann then apparently

informed the pair that she did not want her or her family

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to have to go through a trial, but that she “stood firm” with

what she heard Garcia say. According to Hoffmann, Motta

then said: “‘Honey, I would love for you to disappear.’” Motta

asked Hoffmann to sign an affidavit recanting her statement,

and Hoffmann agreed.

Hoffmann further indicated that Motta stated Garcia was

innocent and that they would get him out, which frightened

Hoffmann because she believed that since she gave a statement

against Garcia, he might harm her and her family. Hoffmann

further stated that Yahnke showed up at her place of work the

next day and questioned her more about her statement.

In fact, Hoffmann never signed any affidavit retracting or

recanting her statement about Garcia’s admission, and at trial,

she testified consistently with her initial statement. Hoffmann

testified that she worked as a dancer at a club from about June

2012 to July 2013 and that in about November 2012, Garcia

told her that he had killed “an old lady and a boy.” Hoffmann

testified that she thought Garcia was joking at the time he told

her this and that she last saw Garcia at the club in February or

March 2013.

Officers from OPD arrived at the club to speak to its employ-

ees in mid-July 2013. At that time, Hoffmann was aware that

Garcia had been arrested. Hoffmann testified that she spoke to

Davis and told him the story that Garcia had told her.

Hoffmann said she next spoke to Davis when her name was

mentioned in court during pretrial proceedings. After her name

was public, she and her family were subjected to media atten-

tion. Hoffmann specifically testified that “his lawyer was actu-

ally, like, Tweeting things about me.”

Defense counsel objected to Hoffmann’s testimony that

“his lawyer” was “Tweeting” about her. At a sidebar and

subsequent discussion in chambers, counsel argued over

the extent to which Hoffmann could be questioned about

whether she felt harassed or intimidated by Motta and Yahnke.

Counsel for Garcia also sought to offer the recording of the

conversation between Hoffmann and Yahnke and asked for

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additional time to prepare for cross-examination, expressing

surprise that Hoffmann had “re-change[d] her story back after

the recantation.”

The district court allowed additional time for Garcia to pre-

pare for cross-examination, but declined to admit the recording,

noting that Garcia could still impeach Hoffmann with state-

ments made during that interview. At the conclusion of this

discussion in chambers, Garcia made an oral motion in limine

before the jury with the intent of limiting the State’s abil-

ity to impeach Hoffmann given her recantation. That motion

was denied.

The State then concluded its direct examination, at one point

asking Hoffmann if she had told Davis everything that she had

testified to in court. Though counsel for Garcia had expressed

concern during the discussion in chambers that the State was

attempting to bolster Hoffmann’s credibility before she had

been cross-examined, there was no objection to this question

by Garcia.

After a break, Hoffmann’s cross-examination began.

Hoffmann was asked about her recollection of Garcia’s state-

ment and her drug use and was questioned about her interview

with Yahnke. Garcia sought to refresh Hoffmann’s recollec-

tion by having her listen, over headphones, to a portion of

her interview with Yahnke. It was at this point that it was

determined a partial transcript of that interview existed. There

was some confusion about whether there was more than one

version of a transcript available, with the State’s noting, appar-

ently within the hearing of the jury, that it had received a

copy of a transcript of that interview from “their lawyer.”

Eventually, that transcript was provided to Hoffmann so that

she might refresh her recollection of the conversation and

cross-examination continued.

The State was then allowed redirect. Hoffmann testified

that she felt harassed and intimidated by Yahnke. During

redirect, Garcia sought a sidebar and again sought to offer

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the recording. The court again refused to admit the record-

ing, but held that any statements made by Motta were also

inadmissible:

We’re talking about [Hoffmann’s] recollection of the con-

versation with . . . Garcia. It’s in. That’s already been in.

We’re talking about whether somebody else interviewed

her and tried to get her to change her statement. That’s

in. And she clearly is testifying, [h]e did try to get me to

change that statement and I’m not changing it.

....

And [Motta’s actions took place] after [Yahnke’s inter-

view], so nothing changed.

On recross-examination, Garcia’s counsel again questioned

Hoffmann about whether she was really “terrified” by Yahnke.

In response, Hoffmann mentioned the phone call with Yahnke

and “your wife,” referring to Motta. Counsel for Garcia

objected. The objection was sustained over the State’s argu-

ment that counsel had opened the door to the question. The

State then asked, on further direct:

Q. Did anybody else talk to you where you said, No

that’s not what I said; I know what I heard, when you

were talking about what Garcia told you?

A. Yes.

Q. Who was that?

A. It was his wife.

[Defense counsel:] Objection. She [the State] went into

the spoliation issue.

[State:] No, I didn’t.

[Defense counsel:] Oh, you most certainly did.

THE COURT: Yeah, the objection is sustained. The

jury will disregard it.

(d) District Court Error

(i) Mistrial

We turn first to Garcia’s assertion on appeal that the dis-

trict court erred in not granting a mistrial based upon the

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State’s reference to Hoffmann’s phone call with Motta. Garcia

focuses on three exchanges: first, a sidebar where the court

ruled that the State could not inquire about the phone call

between Hoffmann, Motta, and Yahnke; second, questioning

of Hoffmann on further direct in which Hoffmann alluded

to the phone call with Motta; and third, the reference to

the transcript of the recorded portion of the Yahnke inter-

view that was obtained from “their lawyer” and used during

Hoffmann’s testimony.

Specifically, Garcia notes the State was told that testimony

about the phone call was inadmissible, but that it still ques-

tioned Hoffmann regarding the phone call and that this was

compounded by the fact that the State had referenced “their

attorney” in the presence of the jury, effectively letting the jury

know that defense counsel had found it necessary to retain their

own legal counsel. Garcia relies on State v. Beeder. 44

In Beeder, the State indicated in closing arguments that the

defendant’s counsel had said, with reference to the third degree

assault charge that the defendant stood accused of, that no

defense would be put on, and then insinuated that the defend­

ant had admitted to that charge. Following an objection, the

jury was admonished to disregard the statement. Immediately

thereafter, the State repeated essentially the same point—that

the defendant offered no defense on that charge. Another

objection and admonishment followed, and a motion for mis-

trial was denied. We reversed.

We find Beeder distinguishable on its facts. In Beeder, the

statement went to the very essence of the charges against the

defendant and suggested that he did not contest those charges.

That is very different from here, where we have one com-

ment by Hoffmann, which was not directly responsive to the

question asked by the State. The comment was immediately

44

State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disapproved on

other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).

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objected to and an admonishment was immediately given.

The jury was later instructed that it should not rely on any

evidence that the court had ordered stricken.

Given the discretion granted to the district court, and that

court’s perspective of the issues in a case, we find no error in

the district court’s denial of Garcia’s motion for mistrial.

(ii) Refusal to Admit Audio of Yahnke

Interview With Hoffmann

We turn to the court’s refusal to admit the audio of the

Yahnke interview with Hoffmann. Garcia sought to have the

audio recording of the interview with Hoffmann entered into

evidence to impeach Hoffmann’s testimony that she was ter-

rified by Yahnke and that he misled her about his employer.

Garcia argues that Hoffmann’s testimony was crucial to his

convictions with respect to the 2008 murders and that “dis-

proving her purported terror would significantly undermine

her credibility by calling into question her motive to fabricate

these points.” 45

Because the audio recording is not in the appellate record,

we conclude that Garcia has waived any argument that the

court erred in not admitting the audio recording. Consequently,

we find this assignment of error without merit.

(iii) Inquiring Into Conflict of Interest

Finally, Garcia assigns that the trial court erred in not

inquiring into whether his counsel had an actual conflict of

interest when continuing as defense counsel after the allega-

tions of witness tampering were leveled against Motta and

Yahnke. Garcia argues that his counsel had an actual conflict

of interest insofar as counsel was in the position of represent-

ing Garcia while also maintaining an ongoing personal and

professional relationship with Motta. Garcia further contended

that the trial court had a duty to inquire into this conflict

of interest.

45

Brief for appellant at 200.

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The Sixth Amendment guarantees the right to representa-

tion that is free from conflicts of interest. 46 To protect this

right, a trial court must hold a hearing and inquire into a

defense counsel’s potential conflict of interest when the court

knows or reasonably should know that a particular conflict

exists, even in the absence of an objection. 47 And if a trial

court had a duty to inquire because a potential conflict was

apparent, an appellate court has discretion to consider the

issue and remand a cause for a hearing into the matter. This

is true even if the defendant did not raise the issue. 48 Also, a

defendant can raise his or her attorney’s conflict of interest

for the first time on appeal if the defendant shows that an

actual conflict existed and that it adversely affected the attor-

ney’s performance. 49

At the time of the allegations, the State filed a motion for

discovery and/or motion in limine seeking discovery of any

information or recorded contact between Hoffmann, Motta,

and Yahnke. A hearing was held on that motion. At that time,

the State withdrew its motion. Though counsel for Motta

appeared at that hearing, the hearing on the matter was brief,

with the State’s seeking either dismissal or withdrawal of the

request. Other than seeking the sealing of the motion, which

the State took no position on, there was virtually no discussion

of the motion.

As noted above, a trial court has a duty to inquire when it

knows or reasonably should know that a particular conflict

exists. But our review of the record demonstrates that there

was nothing in the motion or in the later withdrawal of the

motion that would have put the court on notice that further

inquiry was needed after the State withdrew its motion. As

46

State v. Bain, 292 Neb. 398, 872 N.W.2d 777 (2016). See, also, State v.

Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).

47

State v. Bain, supra note 46.

48

Id.

49

Id.

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such, we find no error in the court’s failure to conduct any

further inquiry.

(e) Ineffective Assistance of Counsel

(i) Witness Tampering Allegations

We turn to Garcia’s allegation that his counsel was ineffec-

tive in engaging in behavior akin to witness tampering during

interactions with Hoffmann. Garcia argues that it was deficient

conduct for counsel to have their investigator meet with a wit-

ness with the goal of securing the witness’ recantation of an

earlier statement without maintaining a recording of the inter-

view and, moreover, to encourage the witness to recant even

after the witness indicated that the earlier statement was not

a lie.

We do not know the full extent of the conversations between

Hoffmann, Motta, and Yahnke because, as noted by Garcia, we

have only a written transcript of a partial audio recording, and

we lack testimony from Motta and Yahnke on the topic. Nor

does the record include testimony from Hoffmann about the

details of those conversations as they were subject to a motion

in limine. As such, we conclude that we lack a sufficient record

to determine this allegation on direct appeal.

(ii) Preparation for Hoffmann’s Testimony

Garcia next assigns that counsel was ineffective in failing

to adequately prepare for Hoffmann’s testimony. Specifically,

Garcia alleges that counsel was ineffective in seeking a motion

in limine, or in renewing his existing motions, to exclude tes-

timony relating to allegations of witness tampering by Motta

and the whole of the interview with Yahnke and that counsel

failed to adequately prepare for and anticipate the substance of

Hoffmann’s testimony.

The record shows that one pretrial motion in limine regard-

ing Hoffmann was filed, seeking to exclude her testimony

altogether on the basis of a “lack of foundation” due to

Hoffmann’s drug use and because of her “recant[ation] in a

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recorded statement” made to Yahnke. That motion in limine

was denied on the grounds that Hoffmann’s purported recanta-

tion and drug and alcohol use went to the weight of that tes-

timony. Thus, a motion in limine was sought and counsel was

accordingly not deficient in that respect.

We also find no deficient conduct in counsel’s failure to

renew the motion in limine. We agree that both Hoffmann’s

possible recantation and her intoxication are relevant to the

credibility of the statement and that her statement can be

impeached on those grounds. But as we have held, such issues

go to the weight of the evidence offered and not to the admis-

sibility of that evidence. 50 Because the court did not err in its

ruling on the motion in limine, counsel’s failure to renew that

motion or otherwise object was not deficient and counsel was

not ineffective.

In addition to the written motion in limine, an oral motion

in limine was sought and granted during trial with regard to

the phone call between Hoffmann, Motta, and Yahnke regard-

ing Hoffmann’s possible recantation. Though Garcia argues on

appeal that his counsel argued an incorrect basis for this motion

in limine, the record shows that the court ultimately concluded

the State was not permitted to elicit evidence regarding the

phone call in question. And, as we discussed in more detail

above, Hoffmann’s response was not directly responsive to

the question asked, but once given, counsel’s objection to that

answer was sustained and the jury was told to disregard the

answer. Thus, counsel’s conduct was not deficient and counsel

was not ineffective.

Finally, Garcia contends that his counsel was ineffective

in failing to adequately prepare for Hoffmann’s testimony.

Specifically, Garcia argues that counsel should have been

aware that Hoffmann was planning to testify as to her original

statement and had not recanted that statement. In addition,

counsel should have been prepared to play excerpts from the

50

See, e.g., State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).

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audio recording in order to impeach Hoffmann’s testimony or

have Motta testify to prove what Hoffmann disputed during

her testimony.

We find no merit to the allegation that counsel was inef-

fective for failing to call Motta. Hoffmann was not permit-

ted to testify about her interactions with Motta, only about

those with Yahnke. Thus, Motta’s testimony would have been

inadmissible to rebut Hoffmann’s. As such, we find no defi-

cient conduct insofar as not calling or otherwise utilizing

Motta’s testimony.

We otherwise observe that we lack the record to determine

these allegations on direct appeal. As we have noted above

with respect to the district court’s actions, the record does

not include the audio recording of Yahnke’s interview with

Hoffmann, and thus, we lack the record to determine whether

that evidence was admissible or whether counsel could have

more effectively used it on cross-examination or otherwise

been more prepared for Hoffmann’s testimony.

(iii) Counsel’s Failure to Object During

State’s Questioning of Hoffmann

Garcia assigns that counsel was ineffective in failing to

object to the State’s examination of Hoffmann wherein a ques-

tion was asked again after an objection was sustained, where

the State prematurely rehabilitated Hoffmann’s testimony, and

where the State had Hoffmann testify to a prior consistent

statement previous to Garcia’s having impugned her motive

to fabricate.

We turn first to the assertion that counsel was ineffective

in failing to object when the State had Hoffmann testify to

a prior consistent statement on direct examination and, relat-

edly, when the State prematurely rehabilitated Hoffmann’s

testimony. As relevant, the record shows that Hoffmann was

asked, on two occasions near the conclusion of her direct

examination, whether she had told officers the same thing that

she had just testified to, and she answered affirmatively. In

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addition, Hoffmann was asked whether the events that she had

testified to occurred, and she answered that they had.

Trial counsel did not object at the time of any of these state-

ments, though it did note during a sidebar that the State had

been trying to rehabilitate Hoffmann’s testimony prior to cross-

examination, which was at a time prior to Garcia’s having the

opportunity to insinuate a motive or to fabricate an improper

influence. Now on appeal, Garcia suggests that Hoffmann’s

two statements, as noted here, were hearsay and that the third

was improper bolstering.

We find no deficient conduct insofar as counsel failed to

object on hearsay grounds—having examined the statements,

we do not find them to be hearsay statements. But we agree

that all three statements amounted to the improper bolstering

of Hoffmann on direct examination, which is not permitted

by Neb. Rev. Stat. § 27-608(1)(b) (Reissue 2016). Section

27-608(1)(b) provides that “evidence of truthful character is

admissible only after the character of the witness for truthful-

ness has been attacked by opinion or reputation evidence or

otherwise.” As such, we find that trial counsel was arguably

deficient in failing to object on those grounds.

We turn to whether Garcia was prejudiced by counsel’s fail-

ure to object. We conclude that he was not. As we have noted,

to show prejudice, the defendant must demonstrate a reason-

able probability that but for counsel’s deficient performance,

the result of the proceeding would have been different. 51 A

reasonable probability is a probability sufficient to undermine

confidence in the outcome. 52 We cannot conclude that these

three questions, asked in relatively quick succession, of just

one witness, in a monthlong trial, was prejudicial.

Finally, we turn to whether counsel was ineffective in

failing to object to the State’s attempt, during Hoffmann’s

51

State v. Mrza, supra note 22.

52

Id.

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direct examination, to “loop[] the substance of the objected-

to-hearsay into her follow-up question.” 53 On direct, Hoffmann

was asked a series of questions about her interview with

Yahnke. This line of questioning was objected to on the basis

of hearsay on more than one occasion, with Garcia’s arguing

essentially that the questions would lead to hearsay answers,

even if the questions did not necessarily call for such an

answer. The court overruled those objections.

Hoffmann continued to testify generally about her interac-

tion with Yahnke, and then made the following statement: “But

he kind of—he kind of gave me an out a little bit. He kind of

said, [y]ou know, well, you—you could —.” Garcia objected,

and the court sustained the objection. The State then asked

Hoffmann: “So . . . he kind of gave you an out. And did you

go with that out[?]” Hoffmann replied that she did, noting that

she was uncomfortable with Yahnke in her home.

Garcia now assigns that counsel erred in not objecting to the

State’s question about Hoffmann’s taking Yahnke’s “out” as

hearsay and “loop[ing]” the prior answer, to which an objection

had been sustained, into its followup question. 54

We disagree that the statements complained of on appeal

were hearsay and find no deficient conduct in failing to object.

We understand the court to have been sustaining the objection

to that portion of Hoffmann’s answer that attempted to tell the

jury what Yahnke had said—such an answer would have been

hearsay and inadmissible. 55 But the part of the answer that

was “looped” into the next question did not include hearsay or

require a hearsay answer, but instead only asked Hoffmann to

answer what she did in response to Yahnke’s visit. 56 We find no

ineffective assistance as to this allegation.

53

Brief for appellant at 216.

54

Id.

55

See Neb. Rev. Stat. §§ 27-801 and 27-802 (Reissue 2016).

56

Brief for appellant at 216.

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(iv) Failure to Call Hoffmann’s Coworkers

Garcia contends that his counsel was ineffective for failing

to call other dancers who would have testified that OPD used

leading interview techniques “to Try to Persuade Them to Say

That Garcia Confessed to Killing ‘an Old Lady and a Little

Kid.’” Garcia argues that the reason counsel sent Yahnke to

interview Hoffmann was a report from other dancers that OPD

was using leading interview techniques.

We first note that Hoffmann was asked on the stand about

the interview techniques used by OPD during her interview,

including whether OPD had suggested to those dancers that

Garcia might have made such a statement to one or more of the

dancers. Hoffmann denied that OPD used those tactics. Still,

we understand Garcia to argue that the testimony of these other

dancers regarding their interactions with OPD would under-

mine Hoffmann’s credibility. And we cannot make this deter-

mination on the record on appeal; as such, we cannot decide

this assignment of error on direct appeal.

(v) Offer of Proof of Yahnke

Interview With Hoffmann

We turn to Garcia’s assertion that trial counsel was inef-

fective in failing to make an offer of proof of the recorded

Yahnke interview with Hoffmann. He also asserts that coun-

sel was ineffective in failing to reoffer that interview during

Hoffmann’s testimony. We have previously addressed this con-

tention in connection with other assignments of error and reach

the same conclusion here—we lack a record to determine on

direct appeal whether counsel was ineffective with respect to

their failure to make an offer of proof or to reoffer the record-

ing. As such, we cannot reach this assignment of error on

direct appeal.

(vi) Remaining Allegations

Garcia assigns various allegations regarding the ineffec-

tiveness of trial counsel due to a conflict of interest based on

the witness tampering allegations. In particular, Garcia alleges

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that his counsel was ineffective in failing to sequester or call

both Motta and Yahnke as witnesses to rebut Hoffmann’s

testimony about her interactions with both of those individu-

als, in failing to object to the State’s imputing consciousness

of guilt from trial counsel to Garcia, in failing to withdraw

as counsel once the witness tampering allegations arose,

in failing to consult with Garcia about the implications of

the witness tampering allegations, and in failing to pursue

plea negotiations where Garcia could testify against Motta

and Yahnke regarding the witness tampering allegations in

exchange for leniency.

We conclude that we lack a record to determine whether

Motta and Yahnke engaged in witness tampering and a record

to determine whether there was any conflict of interest on the

part of remaining counsel, or what effect that conflict might

have had on Garcia’s defense. For this reason, we do not con-

sider the preceding assignments of error further.

(vii) Counsel’s Pursuit of News Coverage

Finally, we turn to Garcia’s allegations that trial counsel was

ineffective in pursuing news coverage, including a national

news television show, in an attempt to prioritize their own

interests and doing so without obtaining Garcia’s consent. But

we have no record to determine the scope of this news cover-

age, nor do we know for what purposes it was pursued or what

consent or other notice might have been given to Garcia. As

such, we cannot determine these final assignments of error on

direct appeal.

(f) Conclusion

We find no error with respect to actions by the district

court. We also find no merit to Garcia’s allegations that

counsel was deficient in their handling of Garcia’s motions

in limine as relevant to Hoffmann’s testimony, in failing to

call Motta to testify, and in failing to object to Hoffmann’s

testimony as set forth above. We conclude that Garcia has

sufficiently alleged, but we lack the record to determine, the

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remainder of his ineffective assistance of counsel allegations

regarding Hoffmann’s testimony and the associated allegations

of witness tampering.

3. Interlocutory Appeals

(a) Assignments of Error

On appeal, Garcia takes issue with two separate interlocu-

tory appeals filed during the course of these proceedings. The

first was filed by defense counsel in response to the failure of

the district court to renew the pro hac vice status of Motta,

who served as one of defense counsel prior to trial. As to

this appeal, Garcia assigns, restated, that his trial counsel was

ineffective (1) in pursuing interlocutory appeals on Garcia’s

behalf following Motta’s loss of her pro hac vice status; (2) in

pursuing an interlocutory appeal on Motta’s behalf following

her loss of pro hac vice status; (3) in supplanting their own

judgment for Garcia’s, in pursuing these appeals; (4) in not

withdrawing as counsel after Garcia stopped talking to them

as a result of the interlocutory appeals filed regarding Motta’s

pro hac vice status; and (5) in failing to consult with Garcia

prior to pursuing the interlocutory appeal and in considering

the wishes of Garcia’s family over Garcia. In addition, Garcia

assigns that the district court erred (6) by not inquiring about

actual conflicts of interest when counsel continued to represent

him after the pro hac vice appeals were filed.

The second appeal was filed by defense counsel after trial,

but before the mitigation hearing, in response to the appoint-

ment of the Commission to serve as additional counsel. As to

that appeal, Garcia assigns, again restated, that counsel erred

(7) in pursuing an interlocutory appeal with respect to the dis-

trict court’s appointment of the Commission in order to prevent

ineffective assistance of trial counsel on appeal, (8) in pursu-

ing an interlocutory appeal in order to remain on the case to

maintain leverage for payment of outstanding trial expenses,

and (9) in pursuing an appeal to use it as a vehicle to continue

to challenge the censure of Motta.

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(b) Appeal of Pro Hac Vice Denial

(i) Additional Background

There were two appeals filed with this court on this issue:

one filed by Garcia on April 21, 2016, in case No. A-16-409,

relating to the withdrawal of prior local counsel and also

regarding Motta’s pro hac vice status, and a second filed on

April 25, in case No. S-16-418, by Motta regarding her pro

hac vice status. On April 29, Garcia wrote a letter to the dis-

trict court that indicated he did not wish for Motta to be his

attorney. That letter was forwarded to this court. Following

the issuance of an order to show cause, we treated the letter

as a motion to dismiss. As such, we dismissed both appeals on

May 18.

(ii) Pro Hac Vice and Related Allegations

We turn first to Garcia’s allegations surrounding the appeals

of the revocation of Motta’s pro hac vice status. At the same

time, we consider the related assignment that counsel was

ineffective in supplanting their own judgment for Garcia’s,

considering the wishes of Garcia’s family over Garcia’s

wishes, failing to consult with Garcia prior to pursuing the

interlocutory appeal on Motta’s pro hac vice status, and failing

to withdraw as counsel when Garcia stopped communicating

with them.

Having considered these allegations and the appellate

record, we conclude that we cannot determine their merit

on direct appeal. Our record does not include any evidence

that would allow us to determine when or if Garcia indicated

opposition to the filing of these appeals prior to the filing

of the appeals or before the letter he wrote to the court on

April 29, 2016. Nor do we have specific information about

when, in relation to the filing of the appeals, counsel might

have been informed of Garcia’s wishes. The only evidence in

the record besides Garcia’s letter to the court was found not

in the record of this case, but instead in a related case, and

in questioning of Garcia where he indicated that he did not

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want to appeal the denial of pro hac vice status, but instead

wanted to move forward with his trial. In addition, the record

is devoid of evidence concerning interactions between coun-

sel and Garcia or Garcia’s family. Because we lack a record

to do so, we decline to reach these assignments of error on

direct appeal.

(c) District Court’s Duty to Inquire

We turn to Garcia’s assignment of error regarding the district

court. He argues that the district court had a duty to inquire

into whether trial counsel had an actual conflict of interest fol-

lowing the dismissal of the various appeals relating to Motta’s

pro hac vice status.

As noted above in our discussion of whether the court

breached its duty to inquire after witness tampering allegations

were made against Motta, a trial court has a duty to inquire

when it knows or reasonably should know that a particular

conflict exists.

We find that as to this allegation, the district court complied

with its duty to inquire. The letter sent by Garcia that this court

treated as a motion to dismiss clearly stated that he wished for

all of his defense counsel to remain, except for Motta. When

the various pro hac vice appeals were dismissed and proceed-

ings recommenced in the district court, the court inquired of

Garcia. At that time, Garcia suggested that he did not care

who represented him and reiterated that he simply wanted to

proceed to trial. Also at that time, the district court allowed

argument into whether Garcia’s capacity to choose counsel

was diminished. After that argument, and accompanied by its

own inquiry of Garcia, the district court concluded that any

“diminished capacity” was a tactic and that he did not find

competency to currently be at issue.

For these reasons, we conclude that the court complied with

its duty to inquire and we find no error in the district court’s

failure to conduct further inquiry into possible conflicts of

interest. There is no merit to this assignment of error.

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(d) Appeal of Appointment of Commission

We now turn to Garcia’s allegations that counsel was inef-

fective in appealing from the appointment of the Commission

as cocounsel prior to the mitigating circumstances hearing.

Specifically, he argues that trial counsel did so to avoid having

to raise ineffective assistance of trial counsel claims on direct

appeal in an effort to maintain leverage for the payment of

certain expenses of the appeal and in order to continue to chal-

lenge Motta’s censure.

While Garcia points to some facts in the record that seem

to support his assertions regarding the motivation to appeal the

Commission’s appointment, those assertions are nevertheless

speculative. Moreover, we fail to see how on these facts Garcia

was prejudiced by this appeal. As such, we find that this allega-

tion is without merit.

(e) Conclusion

We conclude that we lack a record to determine any of these

allegations related to the first set of interlocutory appeals on

the pro hac vice matters, which were sufficiently pled. But

we find that Garcia cannot show that he was prejudiced by

the filing of the appeal from the Commission’s appointment,

and as such, there is no merit to that allegation of ineffective

assistance of counsel. Finally we find that the district court

complied with its duty to inquire into whether defense counsel

had an actual conflict of interest.

4. Motions to Sever

(a) Assignments of Error

Garcia next argues several assignments of error relat-

ing to the joinder of the 2008 and 2013 homicide charges.

Garcia assigns that the district court erred in finding that (1)

these homicides were properly joined under Neb. Rev. Stat.

§ 29-2002 (Reissue 2016) and (2) a hearing under Neb. Rev.

Stat. § 27-404 (Reissue 2016) was unnecessary because the

charges had been joined.

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Garcia further assigns, restated, that his trial counsel was

ineffective (3) by failing to offer adequate evidence to support

the prejudice prong of their motion to sever, (4) by failing to

request a jury instruction that the jury was to keep the charges

separate and come to a separate decision regarding each charge,

(5) by failing to request a jury instruction that the jury was not

to consider Garcia’s purported admission to the 2008 charges

when considering the 2013 charges, (6) by offering expert

testimony regarding joinder when the issue is best determined

by a fact finder, (7) by stipulating to the foundation and report

of the State’s expert on joinder, (8) by failing to vet the expert

retained to offer his opinion regarding the motion to sever, (9)

by introducing evidence regarding aggravating factors through

the use of an expert on joinder, and (10) by wasting money on

unqualified or unnecessary experts.

(b) Standard of Review and

Propositions of Law

[19] There is no constitutional right to a separate trial. 57

Instead, the joinder or separation of charges for trial is gov-

erned by § 29-2002, which states, in relevant part:

(1) Two or more offenses may be charged in the same

indictment, information, or complaint in a separate count

for each offense if the offenses charged, whether felonies

or misdemeanors, or both, are of the same or similar

character or are based on the same act or transaction or

on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.

(2) The court may order two or more indictments,

informations, or complaints, or any combination thereof,

to be tried together if the offenses could have been

joined in a single indictment, information, or complaint

or if the defendants, if there is more than one, are alleged

to have participated in the same act or transaction or in

57

State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).

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the same series of acts or transactions constituting an

offense or offenses. The procedure shall be the same as

if the prosecution were under such single indictment,

information, or complaint.

(3) If it appears that a defendant or the state would

be prejudiced by a joinder of offenses in an indictment,

information, or complaint or by such joinder of offenses

in separate indictments, informations, or complaints for

trial together, the court may order an election for separate

trials of counts, indictments, informations, or complaints,

grant a severance of defendants, or provide whatever

other relief justice requires.

[20-23] Whether offenses were properly joined involves a

two-stage analysis: (1) whether the offenses were sufficiently

related so as to be joinable and (2) whether the joinder was

prejudicial to the defendant. 58 There is a strong presumption

against severing properly joined counts. 59 While § 29-2002

presents two separate questions, there is no error under either

subsection (1) or subsection (3) if joinder was not prejudi-

cial, and a denial of a motion to sever will be reversed only

if clear prejudice and an abuse of discretion are shown. 60 An

appellate court will find such an abuse only where the denial

caused the defendant substantial prejudice amounting to a

miscarriage of justice. 61

[24,25] A defendant opposing joinder of charges has the

burden of proving prejudice. 62 To carry that burden, a defend­

ant must show compelling, specific, and actual prejudice from

the court’s refusal to grant the motion to sever. 63 Severe preju-

58

Id.

59

Id.

60

Id.

61

State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

62

Id.

63

Id.

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dice occurs when a defendant is deprived of an appreciable

chance for an acquittal, a chance that the defend­ant would

have had in a severed trial. 64

[26,27] Prejudice from joinder cannot be shown if evidence

of one charge would have been admissible in a separate trial

of another charge. 65 Additionally, joined charges do not usually

result in prejudice if the evidence is sufficiently simple and

distinct for the jury to easily separate evidence of the charges

during deliberations. 66

(c) Additional Background

Garcia was charged by one information with a total of four

counts of murder and one count of attempted burglary. Garcia

filed a motion to sever, seeking three different trials—one for

the Hunter/Sherman murders, one for the Brumback murders,

and a third for the attempted burglary at the Bewtra home.

The State and Garcia each presented evidence in the form of

expert testimony regarding whether the cases were sufficiently

linked to meet the standard for joinder. Following that hear-

ing, the district court denied Garcia’s motion to sever. In so

ruling, the court noted that the experts’ testimony offered an

aid in making its findings, but that the question of joinder and

severance was one of fact, and as such, it would have made

the same decision without the experts’ testimony.

(d) District Court Error

(i) Sufficiently Related for

Purposes of Joinder

We turn first to whether the crimes for which Garcia was

charged were sufficiently related for purposes of joinder.

We agree they were. As the district court noted, the victims

were each connected to Creighton’s pathology department,

64

Id.

65

State v. Benson, supra note 57.

66

Id.

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from which Garcia’s employment had been terminated. And

that termination had been central to Garcia’s life experi-

ences at various points, including just prior to the 2008 and

2013 murders.

The record further shows that the assailant in each charge

gained access to the Hunter and Brumback homes, as well as

attempted to gain access to the Bewtra home, without force.

Nothing of value was taken from any crime scene. All four of

the murder victims suffered similar knife wounds to the neck,

causing similar injuries—though Roger Brumback’s cause of

death was a gunshot wound.

We reject Garcia’s contention that only the State’s theory

ties these crimes together. As demonstrated by the common­

alities noted above, this is not an accurate statement of the

events of this case, and even if it were, we have previously

considered the State’s theory of prosecution as relevant to the

question of joinder. 67 As such, we conclude that these cases

were sufficiently related.

We note that Garcia does not challenge on appeal that he did

not meet his burden to show that he would have been preju-

diced by the joinder of these charges. For those reasons, we

find no error in the district court’s denial of Garcia’s motion

to sever.

(ii) Hearing Under § 27-404(3)

In his second assignment of error, Garcia assigns that

the district court erred in concluding that a hearing under

§ 27-404(3) was not necessary in order to determine whether

the evidence from each crime scene would have been admis-

sible in a separate trial of another charge. Garcia argues that

“nothing in the joinder statutes alleviates the Court’s respon-

sibility to find by clear and convincing evidence that [Garcia]

committed the other acts.” 68 Garcia cites us to no authority

67

See State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).

68

Brief for appellant at 281.

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that affirmatively requires a hearing under § 27-404(3) under

these circumstances.

But, as noted above, our case law provides that prejudice

from joinder cannot be shown if evidence of one charge

would have been admissible in a separate trial of another

charge. 69 This court has previously engaged in such analysis,

at an appellate level, of whether § 27-404 would operate to

prohibit the admission of evidence of one charge in a trial of

another charge. 70

In conducting such an analysis now, we conclude that these

separate charges would be admissible at trials on the other

charges. As we noted, all four murders involved similar knife

wounds, and all three crime scenes showed that little to no

force was used to gain entry. Both of these factors are rel-

evant to show the identity of the perpetrator. The victims all

had a relationship to Creighton’s pathology department, which

relationship was relevant to show motive. And because these

crimes are all charged by the information filed against Garcia,

the State has a burden to show that all of those events occurred

beyond a reasonable doubt.

There is no requirement for the court to hold a hearing

under § 27-404, and in any case, the evidence from each crime

scene would have been admissible in a separate trial of another

charge. We find no merit to these assignments of error.

(e) Ineffective Assistance of Counsel

(i) Failure to Offer Adequate Evidence

as to Prejudice Prong

Garcia first assigns that his trial counsel was ineffective in

failing to offer adequate evidence to show that he was preju-

diced by the joinder of the three sets of charges. Garcia argues

that he was prejudiced in several ways, as detailed below,

69

State v. Benson, supra note 57.

70

Cf. State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).

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and that his trial counsel was deficient in not raising these

areas of prejudice before the trial court.

In his brief on appeal, Garcia asserts that he was prejudiced

by joinder because (1) his purported admission to Hoffmann

regarding the 2008 charges would have been inadmissible in

a separate trial on the 2013 charges; (2) Motta’s and Yahnke’s

purported tampering with Hoffmann’s testimony “infected”

that portion of his trial dealing with the 2013 murders 71; (3)

his testimony concerning why he was in Omaha in May 2013

was necessary to provide context, but he would be harmed by

testifying in a trial on the 2008 charges; (4) the joinder of the

cases allowed the State to introduce 16 years of prejudicial

evidence without a hearing under § 27-404 or a finding that

the evidence was inextricably intertwined; (5) the trial court

failed to instruct the jury to disregard evidence inadmissible

in the other case; (6) the trial court failed to instruct the jury

that the evidence of each crime should be considered sepa-

rately; (7) the trial court failed to instruct the jury that certain

evidence was admitted for a limited purpose; and (8) had trial

counsel been allowed to introduce evidence regarding alter-

native suspects and motives, the case would have been far

more complicated.

Garcia first argues that his purported admission to the 2008

murders would have been inadmissible in a separate trial deal-

ing with the 2013 murders, and he was therefore prejudiced by

the denial of his motion to sever. But we concluded above that

the evidence of the 2008 crimes would have been admissible in

a separate trial on the 2013 events, and thus, we find no merit

to this assertion.

Garcia next argues that the allegations regarding witness

tampering as to the 2008 charges would infect that portion

of the trial on the 2013 homicides. We disagree. The timing

of these events does not factually allow such an “infection.”

Garcia filed the motion to sever charges, and after a hearing,

71

Brief for appellant at 283.

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the motion was denied, all at a time prior to the alleged wit-

ness tampering. Counsel could not have been ineffective for

failing to raise that prejudice at the time of the motion to

sever because the events allegedly causing said prejudice

had not yet occurred. Additionally, though it is not raised by

appellate counsel, we note that trial counsel did not renew

Garcia’s motion to sever in light of the alleged tampering. We

find no merit to these assertions.

We turn to Garcia’s assertion that he was prejudiced by the

court’s failure to sever the charges because he would have

testified regarding the events of 2013 that brought him to

Omaha, but would be harmed by testifying in a trial on the

2008 charges. He explains in his brief that he would have testi-

fied that

in 2013 he was drinking heavily and was depressed.

When he lived in Omaha, he had a casual acquaintance

with whom he frequently shared adjacent bar stools at a

particular bar in town. When he talked to this individual,

it always made him feel better. At the time Garcia drove

a lot for work and thus hopped in his car to drive to

Omaha to seek counsel from his friend. However, when

he arrived, he realized he could not find the bar, nor his

friend, and decided to return home after getting food in

the area where he thought the bar was located. He would

also testify that he had searched for various addresses

including those at issue because he was constantly sub-

mitting job applications and seeking references. 72

Based on our review of the content of Garcia’s explanation

for being in Omaha at the time of the Brumback murders,

we cannot find that defense counsel was deficient in failing

to offer this in support of their argument that Garcia was

prejudiced by the failure to sever the charges against him.

In addition to being dubious that this testimony would have

helped Garcia’s defense, his explanation does not preclude

72

Id. at 285.

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his involvement in the 2013 murders, or otherwise entitle him

to an alibi defense. 73 We find no merit in this allegation.

Garcia argues that he was prejudiced by the introduction of

“16 years of prejudicial evidence including numerous behav-

iors that occurred after each of the crimes without a 404 hear-

ing or an explicit finding [that] the evidence was inextricably

intertwined,” when the charges were not severed. 74 But, as we

note above, a § 27-404 hearing was not required, and in any

case, that analysis shows that the evidence of each crime would

have been admissible in separate trials on the other charges.

There is no merit to this assertion of prejudice.

Garcia next argues that he was prejudiced by the failure of

counsel to seek jury instructions that the jury should keep the

charges separate, that the jury should not consider Garcia’s

admission to the 2008 charges when considering the 2013

charges, and that the jury should be told that certain evidence

was offered for only a limited purpose.

In analyzing this, we note our current framework—namely,

what evidence should have been offered by counsel in an

attempt to show that Garcia would be prejudiced by joinder. A

jury instruction, when properly given, can limit prejudice. But

the giving of a jury instruction is not evidence that a defendant

can offer in an attempt to prove prejudice as a result of joinder.

As such, we do not address this further here, but observe that

Garcia separately assigns this failure as ineffective assistance

of counsel, as noted below.

Garcia finally argues that he was prejudiced because if his

trial counsel had been allowed to introduce evidence regard-

ing alternative suspects and motives for each crime, each

case would have been far more complicated. We first note

that trial counsel was, in fact, permitted to offer some of this

evidence of other suspects. To the extent the court failed to

73

See State v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987).

74

Brief for appellant at 283.

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admit certain evidence on other suspects, Garcia does not

adequately argue that failure on appeal, and we need not

address it here.

The test for joinder is ultimately similarity and prejudice.

There is no prohibition to the joinder of cases simply because

they might be more complicated if heard together. We find no

merit to this allegation of prejudice.

(ii) Failure to Request Certain

Jury Instructions

Garcia assigns that his trial counsel was ineffective in fail-

ing to seek certain jury instructions: specifically, one that

instructed the jury that it was to keep the charges against

Garcia separate, and a second one to instruct that the jury was

not to consider the 2008 purported admission of the Hunter/

Sherman murders when considering the 2013 charges.

We find Garcia’s contentions here are without merit. We

have noted that these types of instructions may be considered

in a determination of whether prejudice has resulted from

joinder. 75 Still, while such an instruction simplifies the ques-

tion of prejudice, it is not required in order for a court to find

that a defendant was not prejudiced by the joinder of charges.

We accordingly find no merit to Garcia’s fourth and fifth

assignments of error.

(iii) Offering Expert Testimony at Joinder

Hearing and Related Arguments

Garcia makes a number of assignments alleging the ineffec-

tive assistance of counsel with regard to the expert testimony

offered at the hearing on the motion to sever. He assigns that

his counsel was ineffective in offering unnecessary expert tes-

timony, stipulating to the report by the State’s expert, failing

to vet his expert, introducing evidence regarding aggravat-

ing factors through use of the expert on joinder, and wasting

money on expert witnesses.

75

See State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

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As the facts above note, expert testimony was offered by

both the State and Garcia at the motion to sever, but the court

indicated that such was unnecessary as the issue preserved a

factual question which it, as the fact finder, was to make. The

district court further noted that the testimony offered aided it

in making its finding, but that it would have made the same

decision regardless. Garcia does not challenge the court’s

assurance that it did not rely on the offered expert testimony in

reaching its decision on the motion to sever. Thus, Garcia was

not prejudiced by the offer of the expert testimony, the stipula-

tion by his counsel to the State’s expert’s reports, or counsel’s

purported failure to vet the witness.

Garcia next argues that the expert offered evidence that went

to the issue of aggravating factors and that counsel was ineffec-

tive for offering that evidence. But again, Garcia cannot show

that he was prejudiced by this, as aggravating factors are deter-

mined by the jury, and this expert testimony was not presented

to the jury.

Finally, Garcia argues that his counsel was ineffective in

wasting money on expert witnesses, including the expert

retained to testify as to the motion to sever. We conclude that

even if counsel was deficient in spending funds on unneces-

sary witnesses, Garcia cannot show he was prejudiced by

such deficiency.

(f) Conclusion

We find no merit to any of Garcia’s assertions as to error

by the district court or ineffective assistance of counsel as to

his motion to sever.

5. Change of Venue and

Jury Sequestration

(a) Assignments of Error

We turn to Garcia’s arguments relating to various assign-

ments of error about the jury, as well as his motion for a

change of venue. As to the district court, Garcia alleges that

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it erred in (1) failing to take adequate steps to prevent outside

influence during the evidentiary portion of the trial.

Garcia also assigns, restated, various allegations of district

court error and of ineffectiveness of trial counsel regarding

his motion for a change of venue and for jury sequestration.

Specifically, Garcia alleges that counsel was ineffective in (2)

submitting inadequate evidence in support of the motion to

change venue; (3) applying the wrong standard when selecting

evidence to support their motion to change venue; (4) failing

to investigate jurors’ media exposure and biases through back-

ground investigation, individual voir dire, and supplemental

jury questionnaires; (5) passing the jury for cause; (6) solicit-

ing news coverage regarding the case insofar as it undermined,

or even waived, Garcia’s change of venue argument; (7) fail-

ing to submit adequate evidence in support of their motion to

sequester the jury during trial; (8) failing to insist upon further

inquiry of potential juror misconduct reported upon by defense

counsel and by failing to seek a mistrial; and (9) entering the

jury room during the trial.

(b) Standard of Review

[28,29] Whether a jury is to be kept together before sub-

mission of the cause in a criminal trial is left to the discretion

of the trial court. 76 To warrant reversal, denial of a motion

to sequester the jury before submission of the cause must be

shown to have prejudiced the defendant. 77

[30] An appellate court reviews the denial of a motion to

change venue for abuse of discretion. 78

(c) District Court Error

We turn to Garcia’s argument that the district court erred

in failing to take adequate steps to prevent the outside

76

State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).

77

Id.

78

State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).

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influence of the jury during the evidentiary portion of the trial.

Specifically, Garcia argues that the district court should have

(1) admonished jurors that it was “their duty” to not listen to

coverage or discuss the case, (2) properly questioned jurors

about their exposure to outside information, and (3) confis-

cated jurors’ cell phones during trial proceedings.

A review of the record shows that the jury was reminded

before every recess at trial not to read or consume any media

about the case or to discuss the case with anyone, including

any other jurors. As such, we find no merit to Garcia’s asser-

tion that the court failed to inform the jury of “their duty” to

not listen to coverage of or otherwise discuss the case.

As to the instance noted by appellate counsel wherein a

member of the defense team entered the jury room and over-

heard what counsel believed may have been members of the

jury discussing the case, the court immediately located those

jurors and questioned them on the record, as well as all other

jurors that might have been in the proximity at the time and

found no juror misconduct. We are not aware of any other

instances where Garcia alleges there was juror misconduct, let

alone any misconduct that was not addressed by the court.

Finally, Garcia argues that the court should have confis-

cated jurors’ cell phones for the duration of the trial, as he

had requested. This request was made as part of his motion to

sequester the jury for the duration of the trial, a request that

was denied because the court concluded that at the time of

the request, it was not impossible for Garcia to receive a fair

trial based on pretrial publicity, the publicity was not biased

against Garcia, and it was not possible to predict that future

publicity would be biased against him. In short, the court

acknowledged the publicity, but concluded that it was prema-

ture to conclude that Garcia could not receive a fair trial in

Douglas County or that the jury needed to be sequestered for

the duration of the trial.

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We review both a motion for a change of venue 79 and one

for the sequestration of the jury 80 for an abuse of discretion and

find none. This assignment of error is without merit.

(d) Ineffective Assistance of Counsel

(i) Venue and Sequestration

We turn now to Garcia’s various allegations of ineffective

assistance of counsel. Garcia’s first set of allegations argues

that his counsel was ineffective in failing to produce adequate

evidence to support Garcia’s motion to change venue and his

motion to sequester the jury during trial, and that counsel did

not understand or argue the relevant standard to determine

whether venue should be changed. Relatedly, Garcia alleges

that counsel was ineffective in soliciting news coverage regard-

ing the case.

The record shows that counsel did file motions to change

venue and sequester the jury, and thus, to this extent, coun-

sel was not deficient. And indeed, the crux of Garcia’s inef-

fective assistance of counsel allegations is not that counsel

failed to seek such venue changes and sequestration, but that

the evidence in support of such changes was both insufficient

and premature.

Our review of the record shows that at the time of the

motions, the trial court was fully aware of the media attention

centered on this case. Thus, any failure of counsel to offer

more evidence in support of those motions, even if deficient,

was not prejudicial. The trial court’s decision rested more

on the prematurity of the motions, not on a lack of proof of

the allegations.

In the same way, even if trial counsel was somehow defi-

cient for failing to argue to the proper standard regarding

venue and sequestration, as Garcia also assigns, that defi-

ciency would not be prejudicial. It is apparent from the record

79

See id.

80

See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).

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that the district court understood what it was being asked to

determine and did not apply a standard designed to trap Garcia

on these issues.

Ultimately, we understand Garcia’s argument on appeal to

primarily be that counsel was ineffective for not raising these

motions at a more opportune time—such as closer to trial when

the level of publicity and its impact on the trial could better be

judged. Related to this issue is Garcia’s assignment of error

regarding the ineffectiveness of trial counsel in passing the jury

for cause.

We briefly address the concept of passing the jury for

cause. We suggested in State v. McHenry 81 that a defendant

who challenged members of the venire on the basis that those

individuals had been exposed to pretrial publicity waived his

or her right to challenge those individuals on appeal when

the defendant had passed the jury for cause. But thereafter,

in Rees v. State, 82 we concluded that a party who unsuccess-

fully challenged a member of the venire and later passed the

jury for cause suggests only that the party is ready to exercise

its peremptory challenges without forfeiting the previously

made cause objection. Now on appeal, Garcia contends that he

assigns as ineffective his trial counsel’s action in passing the

jury for cause only insofar as he wishes to preserve his argu-

ment regarding change of venue. Accordingly, we consider this

alongside such related assignments of error.

As to this limited issue, essentially whether trial counsel

was ineffective in failing to renew his motions for a change

of venue and sequestration, we lack the record on appeal to

determine it. We also lack a record to determine on direct

appeal Garcia’s final allegation—that counsel was ineffective

for soliciting news coverage of the case, thus contributing

to the publicity around the case—which may have preju-

diced him.

81

State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).

82

Rees v. State, 252 Neb. 560, 563 N.W.2d 359 (1997).

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(ii) Voir Dire

We turn next to Garcia’s allegations that counsel was inef-

fective in their handling of jury voir dire. Garcia alleges that

counsel should have conducted more investigation into poten-

tial jurors, including sending out individual jury question-

naires, as well as supplemental jury questionnaires, and also

should have conducted individual voir dire. Garcia also sug-

gests that not enough investigation was done into the jurors’

level of media exposure to the various aspects of this case.

We first note that allegations Garcia makes in his brief lack

the particularity required and do not set forth precisely what

trial counsel should have done differently and how trial coun-

sel’s actions were deficient.

[31] In addition, we have held that the law does not require

that a juror be totally ignorant of the facts and issues involved;

it is sufficient if the juror can lay aside his or her impressions

or opinions and render a verdict based upon the evidence pre-

sented in court. 83

We observe that the record at voir dire shows that the jury

pool in this case was questioned, both in groups and individu-

ally, about the amount of media to which members had been

exposed regarding the charges against Garcia. The record

further shows that a sufficient number of the venire members

either had limited to no exposure to media regarding the case

or had indicated that they could put aside that prior exposure

and consider only the evidence adduced at trial.

Thus, we conclude that these allegations either have not been

sufficiently alleged or are affirmatively refuted by the record.

(iii) Juror Misconduct

We turn to Garcia’s allegations relating to juror misconduct.

According to trial counsel, a member of the defense team

overhead two jurors discussing a text message that one juror

83

State v. Gonzalez, 313 Neb. 520, 985 N.W.2d 22 (2023); State v. Bradley,

236 Neb. 371, 461 N.W.2d 524 (1990). See, also, Murphy v. Florida, 421

U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975).

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received from her boss. Apparently, in the text message, the

boss referenced media coverage wherein it was mentioned that

one member of the jury looked bored, and the boss had asked

this juror whether the media coverage was referring to her.

This alleged misconduct was discovered when a member of

Garcia’s defense counsel team entered the jury room to empty

a water glass in the sink located in that room and overheard

the juror who received the text message discussing it with

another juror. Counsel brought this conversation to the atten-

tion of the court, after which the jurors were identified and

questioned in the presence of the State and defense counsel.

After determining that no misconduct had occurred, the court

reiterated the media warnings to the jurors in question, as well

as to the jury at large. Counsel did not seek any additional

relief at that time.

On appeal, Garcia now argues that trial counsel was ineffec-

tive in failing to insist that further inquiry into the above inci-

dent be made and was ineffective in failing to seek a mistrial

as well.

We conclude that trial counsel’s actions were not deficient.

To show that counsel’s performance was deficient, a defend­

ant must show that counsel’s performance did not equal

that of a lawyer with ordinary training and skill in criminal

law. 84 In determining whether trial counsel’s performance was

deficient, there is a strong presumption that counsel acted

reasonably. 85

Our record contains a transcript of the court’s examina-

tion of these jurors. It shows that the concern raised by

Garcia at the time of the alleged juror misconduct was

that the jurors had read and were discussing media cover-

age of the case. Accordingly, the court questioned the jurors

about the overheard conversation and was satisfied with the

jurors’ responses that neither had been reading media coverage

84

State v. Mrza, supra note 22.

85

Id.

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of the trial. Based on our review of the record, we conclude

that any counsel with ordinary training and skill would find

that the trial court’s examination of the jurors, in conjunc-

tion with the jurors’ actions, adequately demonstrated that no

misconduct had occurred. We find no merit to this assignment

of error.

(iv) Counsel Entering Jury Room

Garcia argues that his trial counsel was ineffective by enter-

ing the jury room during the trial. We disagree.

We assume without deciding that trial counsel’s action in

entering the jury room when it was occupied by members of

the jury was deficient conduct. We certainly do not approve of

the practice. But in our review of the record, we cannot con-

clude that Garcia was prejudiced by trial counsel’s entry into

the room. A hearing was held on the alleged juror misconduct

that counsel witnessed while in the room, and thus, we have a

contemporaneous record of counsel’s actions. There is nothing

in that record to suggest that counsel spoke with or otherwise

interacted with the jurors in the room or that those jurors were

even aware of counsel’s presence in the room. There is no

merit to this assignment of error.

(e) Conclusion

We cannot determine on direct appeal whether counsel was

ineffective in failing to renew Garcia’s motions to sequester

and for a change of venue, nor can we determine on this record

whether counsel was deficient in their investigation of the

jury and the voir dire process. Finally, we cannot determine

whether counsel solicited news coverage. We otherwise find

Garcia’s assertions as discussed above to be without merit.

6. Competency

(a) Assignments of Error

Garcia’s competency was at issue at multiple points dur-

ing these proceedings. As to the district court, Garcia assigns,

restated, that the district court erred in (1) finding Garcia

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competent to stand trial when the court was aware that Garcia

had stopped communicating with defense counsel; (2) finding

Garcia competent, without holding a full hearing on the third

occasion of Garcia’s competency being questioned; (3) not

granting Garcia a new trial sua sponte when defense counsel

filed an appeal, contrary to Garcia’s wishes, regarding Motta’s

pro hac vice status; (4) refusing to reassess Garcia’s com-

petency when defense counsel filed an interlocutory appeal

against Garcia’s wishes and defended that appeal on the basis

of Garcia’s diminished capacity; (5) failing to directly inquire

of Garcia regarding his symptoms after the symptoms were

brought to the court’s attention; and (6) failing to order another

competency hearing after the presentation of mitigating evi-

dence at his sentencing hearing.

In addition, Garcia assigns, restated, that trial counsel was

ineffective in (7) failing to raise the issue of Garcia’s compe-

tency at the time of his second competency hearing; (8) failing

to seek a third competency evaluation when Garcia stopped

communicating with counsel; (9) failing to object to the third

competency evaluation by Klaus Hartmann of the Lincoln

Regional Center (LRC), or seeking a continuance to review it;

(10) unintentionally waiving Garcia’s attorney-client privilege

by providing letters to their competency expert to rely upon in

forming his opinion; (11) failing to research the intersection of

attorney-client privilege and competency as relating to Garcia’s

letters to counsel; (12) the handling of Garcia’s “‘Diminished

Capacity’” because, in doing so, the defense lost credibility

with the trial court and caused the trial court to view Garcia’s

condition as a “‘Tactic’”; (13) insufficiently preparing for

Garcia’s competency hearings; and (14) failing to inform the

district court at the point in time when Garcia stopped com-

municating with counsel.

(b) Additional Background

Garcia’s competency to stand trial was raised at several

points throughout his prosecution. Garcia was charged in

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August 2013. In February 2014, defense counsel reported

concerns about Garcia’s mental health and competency. The

district court ordered Garcia to be admitted to the LRC for a

competency evaluation. In May, following that evaluation and

a hearing, Garcia was found to be competent. That finding was

supported by the opinions of both Hartmann of the LRC and

by an expert retained by the defense.

In August 2015, the issue of Garcia’s competency was

again raised after Garcia made allegations of sexual assault

by correctional officers at the Douglas County Correctional

Center. Those claims were investigated by the Douglas County

Department of Corrections and were found to be unsubstanti-

ated. Accompanying mental health evaluations were conducted

by the Douglas County Department of Corrections, and it was

suggested that Garcia may have been delusional. As such,

Garcia was returned to the LRC for further evaluation.

In January 2016, a second hearing on Garcia’s competency

was held, at which Hartmann again testified that he did not

find Garcia was delusional, suggested that Garcia was malin-

gering, and ultimately found Garcia to be competent to stand

trial. An expert retained by Garcia also testified that Garcia

was competent to stand trial.

A few months later, in April 2016, Motta’s pro hac vice

status was revoked. Two appeals were then filed challenging

that revocation, one by Motta and the other by Garcia, who

also challenged other related decisions of the district court.

Garcia wrote a letter to this court asserting that he did not

wish to pursue these appeals, and this court accordingly dis-

missed them in May 2016. Trial followed in September and

October 2016.

In February 2017, following his convictions, Garcia did not

attend a hearing seeking payment from the county for certain

expert witness fees. It is not entirely clear from the record,

but it appears that Garcia did not attend the hearing, because

the court did not feel his presence was necessary, and that his

counsel was consulted and did not object.

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However, before a hearing scheduled for March 7, 2017,

it appears defense counsel and the court both anticipated

that Garcia would refuse to attend. As such, the district court

ordered that Garcia be read a statement informing him of his

right to attend. A correctional officer testified that he had read

the statement to Garcia and that he believed Garcia understood

the statement.

Defense counsel, however, informed the court that Garcia

currently refused to communicate with them and that he had

apparently refused to do so for several months. As such, coun-

sel was concerned about how a mitigation hearing would be

conducted if Garcia refused to participate with them. The par-

ties and the court discussed the possibility of a third compe-

tency evaluation, as well as forcibly requiring Garcia to come

before the court for questioning. The district court commented

that other evidence suggested Garcia was making a choice to

not communicate with his counsel.

Another hearing was held March 13, 2017, and Garcia was

forcibly required to attend. Garcia did not respond to question-

ing from the court during that hearing. The State offered prison

communications written by Garcia to prison officials from

December 2016 to February 2017 and maintained there was

no suggestion that Garcia was incompetent or mentally unwell.

Ultimately, the court ordered a third competency evaluation

and Hartmann was ordered to update his prior competency

evaluations. Hartmann did so and found that in his opinion,

Garcia continued to be competent.

Following a hearing on March 24, 2017, the court found

Garcia competent for sentencing.

(c) Standard of Review and

Propositions of Law

[32-36] The question of competency to stand trial is one

of fact to be determined by the district court. 86 A court’s

86

State v. Surber, 311 Neb. 320, 972 N.W.2d 64 (2022).

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decision regarding competency will not be disturbed absent

insufficient evidence to support that finding. 87 A person is

competent to plead or stand trial if he or she has the capac-

ity to understand the nature and object of the proceedings

against him or her, to comprehend his or her own condition

in reference to such proceedings, and to make a rational

defense. 88 The competency standard includes both (1) whether

the defend­ant has a rational as well as factual understanding

of the proceedings 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 understand-

ing. 89 There are no fixed or immutable signs of incompetence,

and a defendant can meet the modest aim of legal competency,

despite paranoia, emotional disorders, unstable mental condi-

tions, and suicidal tendencies. 90

(d) District Court Error

On appeal, Garcia assigns seven errors regarding compe-

tency and related issues to the trial court.

Garcia first argues that the trial court committed plain

error in finding him competent to stand trial when the court

was aware that he had stopped communicating with defense

counsel. But our review of the record suggests that the district

court was not informed that Garcia had stopped communicating

with his counsel until the March 7, 2017, hearing, which was

after the trial. As soon as the court was informed, it ordered

an updated competency evaluation. The district court did not

plainly err in finding Garcia competent at a specific point in

time where defense counsel failed to alert it to Garcia’s lack

of communication.

87

See id.

88

Id.

89

Id.

90

Id.

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For the same basic reasons, we decline to find that the dis-

trict court erred in not sua sponte granting Garcia a new trial

at the time that defense counsel appealed from the revocation

of Motta’s pro hac vice status, as Garcia alleges in his third

assignment of error. This argument presupposes that the trial

court was aware not only that Garcia was no longer speaking

to defense counsel, but also that this lack of communication

began at the time the appeal regarding Motta’s pro hac vice sta-

tus was filed. But the court did not discover anything regarding

this lack of communication until the March 7, 2017, hearing,

well after that appeal was filed and dismissed and trial was

held, ending with Garcia’s convictions.

Garcia also argues that the district court erred in determining

that he was competent without a full hearing on the third occa-

sion of determining his competency in March 2017. On this

occasion, Garcia’s counsel had, on March 7, brought the issue

of Garcia’s competency to the attention of the State and the

district court. The court accordingly requested that Hartmann

update his report regarding Garcia’s competency.

Another hearing was held on March 24, 2017. The updated

report was sent to defense counsel, though likely just prior to

this hearing. Despite this, defense counsel indicated that the

report had been received, that they were aware of Hartmann’s

opinion regarding competency, and that this opinion would be

in line with Hartmann’s prior reports. Counsel did not object to

the admission of the report.

At a hearing a few days later, counsel for Garcia sought the

opportunity to cross-examine Hartmann on the contents of this

report. The request was denied on the basis that Hartmann’s

report had not been objected to at the earlier hearing. We agree

with the district court that the failure to object to Hartmann’s

report at the March 24, 2017, hearing waived any objection to

that hearing and waived any right to cross-examine Hartmann

as the author of that report. 91 We find no merit to Garcia’s

91

See State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

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assertion that the trial court erred in the manner in which it

conducted the March 24 hearing.

Garcia next argues that the district court erred when it did

not reassess his competency after his counsel filed a sec-

ond interlocutory appeal regarding the appointment of the

Commission and defended it on the basis of Garcia’s dimin-

ished capacity. This appeal was filed on April 27, 2017,

approximately a month after the court’s March 24 holding that

Garcia was competent. Our review of the record shows no

demonstrated difference in Garcia’s behavior or manner in the

time from the March 24 finding of competency until the April

27 appeal of the appointment of the Commission. Given that

the district court had approximately a month earlier decided

that Garcia was competent based on an updated evaluation,

and based further on the fact that no change to Garcia’s behav-

iors had been reported to the court in that time period, it was

not error for the court to determine that Garcia continued to

be competent to stand trial at the time of the second interlocu-

tory appeal.

Garcia also contends that the district court erred in not

inquiring directly of him in 2014 after trial counsel continued

to raise Garcia’s ongoing mental health symptoms. We also

find no error in this. Garcia is correct that the court declined

to make such an inquiry. However, the record shows that

immediately after indicating that it would not inquire of Garcia

because it did not find that to be appropriate, the district court

ordered a competency evaluation of Garcia. The court did not

err in declining to question Garcia as to his mental health and

in instead ordering that Garcia be examined by a medical pro-

fessional as to that issue. There is no merit to this assignment

of error.

Finally, Garcia assigns that the district court erred in

not ordering a fourth competency hearing after the miti-

gation hearing at which evidence of Garcia’s history of

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psychological treatment was offered. We find this to be with-

out merit. While Garcia offered the evidence of his mental

health history through his own witnesses, the State also offered

Hartmann’s testimony on the topic of Garcia’s treatment and

various mental health evaluations while in prison awaiting

trial. The court was free to make its own factual determina-

tions regarding the weight to assign the testimony of those

witnesses. 92 Moreover, the mental health history may be rel-

evant to Garcia’s competency, but it is not dispositive. We are

concerned, not with the status of Garcia’s mental health in

the past, but its status at the time of trial or, as here, his sen-

tencing. 93 There is no merit to this final assignment of district

court error regarding Garcia’s competency.

(e) Ineffective Assistance of Counsel

Garcia assigns that trial counsel was ineffective in (15)

failing to raise the issue of Garcia’s competency at the time

of his second competency hearing; (16) failing to seek a third

competency evaluation when Garcia stopped communicating

with counsel; (17) failing to object to Hartmann’s third com-

petency evaluation or seeking a continuance to review it;

(18) unintentionally waiving Garcia’s attorney-client privi-

lege by providing letters to expert witness Stephen Peterson

to rely upon in forming his opinion; (19) failing to research

the intersection of attorney-client privilege in competency as

related to Garcia’s letters to counsel; (20) handling Garcia’s

“‘Diminished Capacity’” because in doing so, the defense lost

credibility with the trial court and caused the trial court to

view Garcia’s condition as a “‘Tactic’”; (21) failing to inform

the district court at the point when Garcia stopped commu-

nicating with counsel; and (22) insufficiently preparing for

Garcia’s competency hearing.

92

See State v. Surber, supra note 86.

93

See State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).

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(i) Failure to Raise Competency Prior

to Second Competency Hearing

Garcia first argues that his counsel was ineffective in failing

to raise the issue of his competency prior to the second com-

petency hearing. He argues that counsel should have known he

was not competent based upon the allegations he made about

being sexually assaulted. However, Garcia cannot show that

he was prejudiced by this alleged deficient conduct. The State

brought the issue to the attention of the court, and a second

competency evaluation was sought, in part, due to these same

allegations of sexual assault, although this time by machines,

as well as mind control allegations, and the opinion of a psy-

chiatrist at the Douglas County Department of Corrections that

Garcia might be delusional.

(ii) Failure to Seek Third

Competency Hearing

Garcia contends that his counsel was ineffective in fail-

ing to seek a third competency hearing when he stopped

communicating with his counsel prior to trial. This lack of

communication was eventually brought to the attention of the

court after trial and before Garcia’s mitigation hearing. At that

time, a competency evaluation was attempted. Due to Garcia’s

lack of cooperation, the doctors at the LRC could determine

only that Garcia’s condition was consistent with his condition

at the time of the second evaluation. The competency report

was updated accordingly, but with the same finding of compe-

This text is long and has been trimmed here. Open the source document for the complete record.