# State v. Garcia

> Nebraska Supreme Court · September 8, 2023 · 315 Neb. 74

URL: https://www.frixlaw.com/law-library/cases/9838851

## Case

- **Court:** Nebraska Supreme Court
- **Decided:** September 8, 2023
- **Citations:** 315 Neb. 74; 994 N.W.2d 610
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9838851

## How later opinions describe it (automated extraction)

- finding a defendant waived his right to a full competency hearing
- finding no abuse of discretion in trial court’s decision to conduct hearing by telephone

## Opinion text

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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STATE V. GARCIA
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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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Cite as 315 Neb. 74

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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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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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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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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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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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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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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9838851. Public record. Not legal advice.