State v. Parnell , 294 Neb. 551 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/26/2016 02:10 PM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. PARNELL
Cite as 294 Neb. 551State of Nebraska, appellee, v.
Tracy N. Parnell, appellant.
___ N.W.2d ___
Filed August 26, 2016. No. S-15-684.
1. Motions for Continuance: Appeal and Error. An appellate court
reviews a judge’s ruling on a motion to continue for an abuse of
discretion.
2. Criminal Law: Motions for New Trial: Appeal and Error. In a
criminal case, a motion for new trial is addressed to the discretion of the
trial court, and unless an abuse of discretion is shown, the trial court’s
determination will not be disturbed.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the
discretion of the trial court to determine relevancy and admissibility of
evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), and the trial court’s decision will
not be reversed absent an abuse of discretion.
4. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
5. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal
is a question of law. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effective
assistance and was the defendant prejudiced by counsel’s alleged defi-
cient performance?
6. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclo-
sure by the prosecution of material evidence favorable to the defendant,
requested by the defendant, violates due process, irrespective of the
good faith or bad faith of the prosecution. But due process is not vio-
lated where the evidence is disclosed during trial.
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Cite as 294 Neb. 5517. Expert Witnesses: Evidence. An expert’s oral, unrecorded opinions
do not fall within the scope of Neb. Rev. Stat. § 29-1912(1)(e) (Cum.
Supp. 2014).
8. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
9. Motions for Continuance: Appeal and Error. There is no abuse of
discretion by the court in denying a continuance unless it clearly appears
that the party seeking the continuance suffered prejudice as a result of
that denial.
10. Criminal Law: Motions for New Trial: Evidence: Proof. A criminal
defendant who seeks a new trial because of newly discovered evidence
must show that if the evidence had been admitted at the former trial, it
would have probably produced a substantially different result.
11. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
12. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
Supp. 2014), does not apply to evidence of a defendant’s other
crimes or bad acts if the evidence is inextricably intertwined with the
charged crime.
13. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime, or evidence that is so
blended or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or bad acts, or if
the other crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime.
14. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
15. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the plead-
ings and evidence, there is no prejudicial error necessitating reversal.
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Cite as 294 Neb. 55116. Criminal Law. To constitute one an accomplice, he must take some
part in the crime, perform some act, or owe some duty to the person in
danger that makes it incumbent on him to prevent the commission of
the crime. Mere presence, acquiescence, or silence, in the absence of a
duty to act, is not enough to constitute one an accomplice. The knowl-
edge that a crime is being committed cannot be said to constitute one
an accomplice.
17. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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.
18. Postconviction: Effectiveness of Counsel: Appeal and Error. When a
defendant was represented both at trial and on direct appeal by the same
lawyers, generally speaking, the defendant’s first opportunity to assert
ineffective assistance of trial counsel is in a motion for postconvic-
tion relief.
19. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
20. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
21. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffec-
tive assistance of counsel raised on direct appeal by the same counsel
who represented the defendant at trial are premature and will not be
addressed on direct appeal.
22. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
23. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
24. ____: ____. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.
25. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
26. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of alleged ineffective assistance of counsel, an
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Cite as 294 Neb. 551appellate court affords trial counsel due deference to formulate trial
strategy and tactics.
27. Effectiveness of Counsel: Presumptions: Appeal and Error. The
entire ineffectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found unrea-
sonable, the error justifies setting aside the judgment only if there
was prejudice.
28. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel
claim, deficient performance and prejudice can be addressed in either
order. If it is more appropriate to dispose of an ineffectiveness claim due
to lack of sufficient prejudice, that course should be followed.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Allyson
A. Mendoza, and Mary Mullin Dvorak for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
K elch, JJ., and Bishop, Judge.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Tracy N. Parnell challenges his con-
victions, pursuant to jury verdict, for first degree murder,
attempted first degree murder, two counts of use of a deadly
weapon to commit a felony, and possession of a weapon by
a prohibited person. His two primary arguments attack deni-
als of his motions to continue the trial and for a new trial.
These arguments are premised upon untimely disclosure of
opinions of a cellular analyst and rely on Brady v. Maryland1
and a discovery statute.2 He also complains that his earlier
threats toward one of the victims were admitted in evidence,
1
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2
Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2014).
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Cite as 294 Neb. 551his requested instruction on accomplice testimony was refused,
and his trial counsel provided ineffective assistance. Finding
no merit in his arguments, we affirm.
II. BACKGROUND
1. Shooting
On October 30, 2012, at around 8:14 p.m., Eriana Carr and
Nakia Johnson were shot outside of Carr’s residence in Omaha,
Nebraska. Carr was shot twice and died from her injuries.
Johnson was shot 11 times and survived. Johnson told investi-
gators that the shots came from “a blue Nissan Altima with a
messed up front bumper.” She did not see the shooter.
2. Threat
During a pretrial hearing, Johnson explained how she met
Parnell. This occurred at a September 2012 birthday party
for one of Johnson’s friends, who was involved with Parnell.
Johnson knew Parnell only by his nickname, “Laylow.” At that
birthday party, Johnson had a short conversation with Parnell
regarding his car, a blue Nissan Altima. She told him that a
Nissan Altima was her favorite car, and Parnell responded,
“‘That’s what’s up.’” Then Parnell left.
Johnson told investigators that Parnell threatened her 2 days
before the shooting. Johnson testified that the threat occurred
on October 28, 2012, after “a little get-together” at her friend’s
apartment, where she sometimes stayed overnight. Parnell and
several other people attended the get-together. A man with
whom Johnson was involved, Ryan Fraiser, attended and later
left. Fraiser is from another “hood” and a different gang than
the others at the party. Johnson went to bed after the party and
was awoken by Parnell and three others. They were yelling at
Johnson because “they felt like [she] had brought someone into
the house from another side,” or “[a]nother hood.”
Eventually the others left, but Parnell remained. He paced
back and forth in front of Johnson’s door and was “say-
ing all kind[s] of stuff . . . indirectly to [Johnson].” Johnson
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Cite as 294 Neb. 551told Parnell to “[s]hut the [expletive] up talking to me,” and
Parnell left. He returned with a gun in his hand. Parnell stared
at Johnson while holding the gun. Johnson grabbed her cell
phone, and Parnell told her to call Fraiser and tell him that
Parnell would “be outside waiting for him.” Johnson was
scared and called the 911 emergency dispatch service because
Parnell “was blocking [her] way to the door” and she did not
know “what was about to happen.” When Johnson ended the
call, Parnell left.
Parnell was eventually prosecuted for the threat, but not
until after the shooting. At that point, the State filed an infor-
mation charging Parnell with committing terroristic threats. He
pled no contest and received a sentence of 20 to 24 months’
imprisonment.
3. Nissan A ltima
Detectives investigated the Nissan Altima involved in the
shooting. They discovered that Parnell had been stopped while
driving a blue Nissan Altima several months earlier. The reg-
istered owner of the car was Jasmine Nero, who was also the
mother of Parnell’s child.
An investigator testified that she interviewed Parnell and
asked him about the Altima. Parnell claimed that he only drove
his aunt’s car and that he never drove any of Nero’s vehicles.
He denied any knowledge of an Altima.
In a call from jail, Parnell spoke to Nero about the Altima.
Nero testified at trial that she understood from that call that
Parnell wanted her “to get rid of” the car. Nero moved the car
to a garage, where investigators later found it. The car’s front
bumper was damaged, and it contained a box with Parnell’s
thumbprint on it.
4. Pretrial Motions
The State filed an information charging Parnell with five
counts: murder in the first degree, two counts of use of a
deadly weapon to commit a felony, attempted first degree
murder, and possession of a deadly weapon by a prohibited
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Cite as 294 Neb. 551person. The district court ordered mutual and reciprocal dis-
covery “pursuant to statute.”
Before trial, the State filed a notice under rule 4043 of its
intent to offer evidence of Parnell’s terroristic threat against
Johnson to show motive, intent, and plan. Parnell filed a
motion in limine requesting to exclude the State’s cellular ana-
lyst pursuant to the standards of Daubert/Schafersman.4 The
district court held a joint hearing on the motions. Later, Parnell
filed a motion to continue the trial.
(a) Rule 404
In the portion of the joint hearing related to rule 404, Johnson
testified regarding Parnell’s threatening behavior before the
shooting. The State introduced Johnson’s 911 call, a certified
copy of Parnell’s conviction and sentence for terroristic threats,
and police reports about the threat.
In a written order, the district court concluded that Parnell’s
threatening behavior was inextricably intertwined with the
crime charged and therefore not subject to rule 404. It rea-
soned that it “forms part of the factual setting of the murder.
It is evidence that explains an integral part of the immediate
context of the crime charged.” The district court concluded
further that even if the threat was subject to rule 404, it would
still be admissible, because it “demonstrates [Parnell’s] motive
and that the subsequent shooting was gang related; thus it is
admissible to show intent.”
(b) Daubert/Schafersman
In the Daubert/Schafersman portion of the joint hearing,
the State’s expert, William Shute, testified regarding his qual­
ifications and methods. Shute is a special agent with the
Federal Bureau of Investigation (FBI) and a member of the
3
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).
4
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
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Cite as 294 Neb. 551FBI’s “Cellular Analysis Survey Team.” He performs “his-
torical cell site analysis” using call detail records provided by
cellular carriers.
Shute explained that call detail records show the “first serv-
ing cell site,” which is the tower a particular cell phone used,
and the “first serving cell face,” which is the sector of the
tower used. Cell towers usually have three sectors. The FBI’s
survey team members use call detail records to determine
“what tower and sector of the tower was being utilized for
service” and then plot the towers and sectors on a map. They
then look for patterns and “come up with a geographical plot
as to where [they] believe that individual is at that particu-
lar time.”
Shute also testified regarding the locations of Parnell’s
cell phone around the time of the shooting. He prepared
a PowerPoint presentation that included Parnell’s call detail
records. The records showed that Parnell’s cell phone con-
nected to tower: (1) 201 at 7:52 p.m., (2) 729 at 8:07 p.m., (3)
201 at 8:11 p.m., (4) 729 at 8:20 p.m., and (5) 201 at 8:20 p.m.
Shute plotted the towers and their coverage areas on a map.
The map showed the coverage areas as shaded “pie wedges.”
Shute testified that the coverage areas for towers 201 and
729 overlap. He said that the way that Parnell’s cell phone
switched between towers 201 and 729 showed that it was
definitely located within the overlapping coverage area at the
time of the shooting. A map in his PowerPoint presentation
depicted the crime scene within the overlapping area.
The court overruled Parnell’s motion in limine. It concluded
that Shute was qualified to testify as an expert and that his
methods were reliable.
(c) Motion for Supplemental Discovery
In March 2015, Parnell filed a motion requesting supple-
mental discovery from the State. The motion is not in our
record. Parnell’s counsel, Daniel Stockmann, filed an affi-
davit with the motion. This affidavit is in our record. In it,
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Cite as 294 Neb. 551Stockmann states that he learned that certain undisclosed
discovery materials existed after he attended a March 6, 2015,
seminar where cellular analyst Michael O’Kelly presented. In
the discovery process, the State had shared a police report and
maps showing that O’Kelly had performed basic cell phone
mapping services for the Omaha Police Department.
After the seminar, Stockmann e-mailed O’Kelly and asked
whether he had performed services for the department which
were not disclosed in the police report. O’Kelly’s counsel
responded and said that although O’Kelly could not disclose
what work he had performed for the department, he could con-
firm that O’Kelly performed more services than were disclosed
in the report. Parnell then filed the motion for supplemen-
tal discovery regarding O’Kelly’s services, which the district
court granted.
After the court ordered supplemental discovery, O’Kelly
provided Parnell’s counsel with an affidavit detailing his inter-
actions with the State, and the State disclosed a series of
e-mails between O’Kelly, Det. Sherry King of the Omaha
Police Department, and Deputy Douglas County Attorney
Brenda Beadle.
In his affidavit, O’Kelly stated that he “reviewed the . . .
call detail records and concluded that [Parnell’s cell phone]
appeared to travel from the west side of Omaha [where Parnell
lived] to the east side, then north and south and then travel-
ing back to the general area on the west side.” O’Kelly said
that he “began processing and mapping the individual cell
site registrations. The handset transition west to east, north/
south and east to west activities were confirmed.” He then
“provided Detective King with multiple maps depicting hand-
set movements consistent with cell site registrations that sup-
ported physical movement from Omaha’s west side to the east
side and possible travel movements north and south on the
east side.”
O’Kelly also stated that he informed King that “it is impos-
sible to identify a specific location stop(s), specific surface
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Cite as 294 Neb. 551roadway travels based upon the existing cellular data.” He told
her that “drawing circles and other shapes with defined bound-
aries is unreliable and at best simple guessing with an agenda.
The ‘guessing’ may be based upon experience and training
but will still have no foundation and/or credible support that
is rooted with existing electronic wireless data.” And he told
her that “in order to possibly place the subject [cell phone]
in the immediate area of the crime scene . . . it will be neces-
sary to conduct an RF Signal Field Survey.” He “provided an
explanation of the FBI’s RF Signal mapping approach versus
the O’Kelly approach.” And he explained that his approach to
performing such a survey, or drive test, “is time consuming
and labor intensive covering days if not weeks.” He said that
after performing the survey, the tower coverage areas would
“appear similar to that of an amoeba and will be unique to each
cell site.”
In the e-mails, King asked O’Kelly whether he had a for-
mal report to present to the county attorney’s office. O’Kelly
responded that a report in writing would be “[d]iscoverable”
and that he “would recommend the county attorney and I vis-
iting and then letting them decide.” Although the documents
do not contain a record of a call, they do contain a followup
e-mail that indicates that O’Kelly spoke with Beadle.
(d) Motion to Continue or Exclude
On March 23, 2015, Parnell filed a motion asking the court
to exclude Shute’s testimony or continue the trial, which was
scheduled to begin March 30. The motion was based on the
State’s “belated disclosure of discovery materials” related to
O’Kelly. In the motion, Parnell acknowledged that the State
had previously disclosed that O’Kelly worked on the case.
He argued that the State violated its duty under § 29-1912
and Brady v. Maryland5 to disclose O’Kelly’s opinions that
a drive test was necessary and that the FBI’s methods were
not reliable.
5
Brady v. Maryland, supra note 1.
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Cite as 294 Neb. 551At the hearing on the motion to continue, Parnell offered
O’Kelly’s affidavit. He did not offer the series of e-mails
between O’Kelly, King, and Beadle. Stockmann argued:
[T]he second that . . . Shute . . . provided the opinions
to the government, the government, whether through law
enforcement or the county attorney, was aware that an
exculpatory opinion from . . . O’Kelly existed. [It had]
an obligation to tell me about . . . O’Kelly’s exculpatory
opinion. [It] didn’t tell me about it; I had to find it out on
my own because I went to a seminar . . . .
The State responded that O’Kelly’s opinion was not exculpa-
tory and that he placed Parnell’s cell phone in the same area
as had Shute, although he was not as specific.
The court noted that because the State planned to take a
week to present its evidence at trial, Parnell had “12 days,” and
it said that “O’Kelly can get his stuff together in 12 days” in
order to testify. It also stated that “[i]f [Parnell] wanted to hire
a cell tower expert, [he] could have done it at any time in the
last two years.”
In its written order, the district court found that the evi-
dence relating to O’Kelly was not exculpatory and that it
“[h]ad been provided to [Parnell] at an early date.” Therefore,
it was not a valid reason for a continuance. The court also
entered an order permitting Parnell to retain O’Kelly as an
expert witness.
Before trial, Parnell renewed his motion to continue the
trial. At that time, he offered an exhibit containing the e-mail
exchanges between O’Kelly, King, and Beadle. He said that he
“neglected to offer” it at the earlier hearing. The court over-
ruled the renewed motion.
5. Trial
(a) Testimony
At trial, Johnson testified and described the shooting, the
blue Nissan Altima, and the threatening incident days earlier.
Shute’s testimony was consistent with his testimony at the
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Cite as 294 Neb. 551Daubert/Schafersman hearing—he stated that towers 201 and
729 form an overlap area and that Parnell must have been
within the overlap area at the time of the shooting. O’Kelly
was present throughout the trial but did not testify.
Nero testified regarding the Altima and her relationship with
Parnell. She stated that on the night of the shooting, she left
Parnell at home with her children while she took her niece
to ballet class. She left the Altima at home and drove another
vehicle. When Nero returned at 8 p.m., Parnell, her chil-
dren, and the Altima were not there. Parnell and the children
returned in the Altima later that night.
Nero also testified that she lied to police for Parnell and
was charged with being an accessory to a felony as a result.
She said that when detectives asked her about the Altima, she
lied and told them that it was not working. She admitted that
she did so “[t]o protect [Parnell]” because “he asked [her]
to lie.”
(b) Jury Instruction
Parnell requested a jury instruction regarding accomplice
testimony based on NJI2d Crim. 5.6. The requested instruc-
tion read as follows:
There has been testimony from . . . Nero, a claimed
accomplice of [Parnell]. You should closely examine her
testimony for any possible motive she might have to
testify falsely. You should hesitate to convict [Parnell] if
you decide that . . . Nero testified falsely about an impor-
tant matter and that there is no other evidence to support
her testimony.
In any event, you should convict [Parnell] only if
the evidence satisfies you beyond a reasonable doubt of
his guilt.
The district court refused the instruction and gave a gen-
eral instruction regarding witness credibility. The jury found
Parnell guilty on all counts.
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Cite as 294 Neb. 5516. Motion for New Trial
Parnell filed a timely motion for a new trial and submit-
ted another affidavit from O’Kelly as support. He argued that
O’Kelly’s statements in this second affidavit constitute newly
discovered evidence, which could not have been discovered
and produced at trial.
In O’Kelly’s affidavit, he averred that after his initial work
on Parnell’s case, he “informed the government that additional
field testing by means of a ‘drive test’ would be required in
order to move from speculation to accuracy in the cell tower
connection plotting.” A drive test involves making cell phone
calls while driving and then obtaining call detail records to
see which towers the cell phone used. Shute did not perform
such a drive test. O’Kelly was extremely critical of Shute’s
methods and conclusions.
O’Kelly began a drive test on the last day of the trial. In his
affidavit, he stated that the drive test revealed that the crime
scene was “situated in a valley between Cell Sites 729 and
201” and that towers 201 and 729 are 1.84 miles apart. The
drive test showed that the coverage areas for towers 201 and
729 do not overlap or border each other, as Shute claimed.
Instead, they are separated by five other towers, which provide
coverage in the overlap area that Shute identified. O’Kelly
said that Parnell would have had to leave the crime scene area
in order to connect to tower 729. However, he also said that
the data showed that Parnell’s cell phone “was in the general
vicinity (1 - 2 miles of the crime scene) before, during and
after the shooting.”
The district court overruled Parnell’s motion for a new trial.
In a written order, it first concluded that Parnell could have
discovered and produced O’Kelly’s opinions using reasonable
diligence, or, he could have at least “diminished the weight
of . . . Shute’s conclusions by calling O’Kelly as a witness.”
The court noted that Parnell was “at least partially at fault for
the late discovery,” because the State disclosed that O’Kelly
worked on the case early in the discovery process.
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Cite as 294 Neb. 551Second, the court concluded that O’Kelly’s opinions were
not material, because they would not have affected the out-
come of the trial. It reasoned that O’Kelly’s drive test results
“seem to incriminate [Parnell],” because Parnell made sev-
eral calls around the time of the shooting that connected to
tower 201, and O’Kelly’s test showed that the signals from
tower 201 “permeate the area immediately surrounding the
crime scene.”
III. ASSIGNMENTS OF ERROR
Parnell assigns, reordered, that the district court erred in (1)
overruling his motion to continue or exclude Shute’s testimony,
(2) overruling his motion for a new trial, (3) determining that
Parnell’s threat against Johnson was inextricably intertwined
with the shooting, and (4) refusing his proposed jury instruc-
tion regarding accomplice testimony. Parnell also claims that
his trial counsel was ineffective because he did not have
O’Kelly testify as an expert witness at trial.
IV. STANDARD OF REVIEW
[1-3] Several issues are controlled by an abuse of discre-
tion standard. An appellate court reviews a judge’s ruling on
a motion to continue for an abuse of discretion.6 In a criminal
case, a motion for new trial is addressed to the discretion of the
trial court, and unless an abuse of discretion is shown, the trial
court’s determination will not be disturbed.7 It is within the
discretion of the trial court to determine relevancy and admis-
sibility of evidence of other wrongs or acts under rule 404(2),
and the trial court’s decision will not be reversed absent an
abuse of discretion.8
[4,5] The other issues present legal questions. Whether
a jury instruction is correct is a question of law, which an
6
Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016).
7
State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).
8
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
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Cite as 294 Neb. 551appellate court independently decides.9 Whether a claim of
ineffective assistance of trial counsel may be determined on
direct appeal is a question of law.10 In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate
court decides only questions of law: Are the undisputed facts
contained within the record sufficient to conclusively deter-
mine whether counsel did or did not provide effective assist­
ance and was the defendant prejudiced by counsel’s alleged
deficient performance?11
V. ANALYSIS
1. Motion to Continue
or Exclude
Parnell assigns that the district court abused its discretion in
overruling his motion to continue the trial or exclude Shute’s
testimony. His arguments are premised on Brady v. Maryland12
and § 29-1912. Regarding Brady, he argues that the timing
of the State’s disclosure of O’Kelly’s opinions violated his
constitutional right to due process. Regarding § 29-1912, he
argues that the State should have disclosed O’Kelly’s opin-
ions, because that section “require[s] ‘more than the con-
stitutional minimum’ with respect to disclosure of exculpa-
tory information.”13
[6] First, we conclude that the timing of the State’s disclo-
sure of O’Kelly’s opinions did not violate Parnell’s right to due
process. Under Brady, the nondisclosure by the prosecution of
material evidence favorable to the defendant, requested by the
defendant, violates due process, irrespective of the good faith
9
State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).
10
Id.11
Id.12
Brady v. Maryland, supra note 1.
13
Brief for appellant at 15 (quoting State v. Kula, 252 Neb. 471, 562 N.W.2d
717 (1997)).
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Cite as 294 Neb. 551or bad faith of the prosecution.14 Impeachment evidence, as
well as exculpatory evidence, falls within the Brady rule.15 But
Brady is not violated where the evidence is disclosed during
trial.16 And here, the State disclosed the pertinent evidence 1
week before trial. Clearly, Parnell’s right to due process was
not violated by the timing of the disclosure.
Second, we must determine whether the timing of the dis-
closure violated § 29-1912. That section governs discovery in
criminal cases in Nebraska.17 It sets out specific categories of
information that a defendant may request the court to order
the State to disclose. Of § 29-1912’s categories, only subsec-
tion (1)(e) is potentially applicable to O’Kelly’s late-disclosed
opinions. Section 29-1912(1) provides that a defendant may
request permission to “inspect and copy or photograph”: “(e)
The results and reports of physical or mental examinations,
and of scientific tests, or experiments made in connection with
the particular case, or copies thereof.” Parnell filed a motion
for discovery in July 2013, which included a request for this
information. The district court ordered “Mutual and Reciprocal
Discovery pursuant to statute.”
At first blush, it might seem that O’Kelly’s opinion (that a
drive test was required to place Parnell with certainty near the
crime scene) could be considered to be a result or report of a
physical examination or scientific test, because it was based on
his examination of the data provided by the State. But careful
consideration of our precedents and the federal courts’ interpre-
tation of similar language persuade us otherwise.
14
Brady v. Maryland, supra note 1; State v. Smith, 292 Neb. 434, 873
N.W.2d 169 (2016).
15
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481(1985); State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
16
U.S. v. Gonzales, 90 F.3d 1363 (8th Cir. 1996); State v. Smith, supra
note 14.
17
State v. Smith, supra note 14.
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Cite as 294 Neb. 551We conclude that O’Kelly’s opinion did not fall within the
scope of § 29-1912(1)(e) for two reasons. First, it was unre-
corded. Second, it was not a result or report. We explain each
reason in more detail.
Section 29-1912(1)(e) did not require the State to disclose
O’Kelly’s oral, unrecorded opinions. Although we have never
considered this issue, federal courts have. We may rely upon
federal court decisions for guidance, because discovery in
criminal cases, as authorized by § 29-1912, is patterned on the
Federal Rules of Criminal Procedure.18 Like § 29-1912(1)(e),
Fed. R. Crim. P. 16(a)(1)(F) provides that the government must
permit a defendant “to inspect and to copy or photograph the
results or reports of any physical or mental examination and of
any scientific test or experiment.”
Several federal circuit court decisions illustrate this reason-
ing. In United States v. Shue,19 an expert examined a photo-
graph the evening before he testified and he gave the govern-
ment his opinion regarding similarities between the subject of
the photograph and the defendant. The defendant claimed that
the government was required to disclose the expert’s conclu-
sions under an earlier version of the corresponding federal
rule. The Court of Appeals for the Seventh Circuit disagreed.
It reasoned that “[a]lthough the phrase ‘any results or reports’
does not exclude oral reports, the language ‘the government
shall permit the defendant to inspect and copy or photograph’
. . . suggests that [the rule] refers only to written reports.”20 It
also noted that the defendant had access to the photographs
the expert examined and only contended that the government
was required to disclose “the contents of oral statements made
by the expert after comparing the photographs.”21 The court
18
See State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
19
United States v. Shue, 766 F.2d 1122 (7th Cir. 1985).
20
Id. at 1135 (emphasis in original).
21
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Cite as 294 Neb. 551c­oncluded that disclosure was not required by the correspond-
ing federal rule. Similarly, in U.S. v. Smith,22 the government
did not reveal that a ballistics expert had test-fired a weapon
and reached conclusions based upon the test-firing. The defend­
ant claimed that the government violated its discovery obliga-
tions under the federal rule by failing to inform him about the
test. The Court of Appeals for the First Circuit disagreed. It
observed that “the words ‘inspect and copy or photograph’ log-
ically suggest that the items to be disclosed be tangible enough
to be susceptible to inspection, copying or photographing.”23
It held that “where the test result in question consisted of the
expert’s unrecorded comparison of the test-­firing casings with
those at the crime scene, [the federal rule] did not obligate the
government to produce in advance the expert’s conclusions.”24
And in U.S. v. Peters,25 the Court of Appeals for the Ninth
Circuit concluded that the federal rule “refer[s] only to infor-
mation recorded in some tangible form.”26
[7] We reach the same conclusion. Under the plain lan-
guage of § 29-1912(1), the defendant may request the court to
order the State to permit him to “inspect and copy or photo-
graph” the results and reports of physical or mental examina-
tions and scientific tests or experiments. (Emphasis supplied.)
Inspecting, copying, or photographing clearly require a tan-
gible item. Oral, unrecorded opinions do not fall within the
scope of this language.
Turning to the second reason, we conclude that O’Kelly’s
opinion did not constitute a result or report of an examina-
tion or test. In State v. Brown,27 we addressed whether experts’
22
U.S. v. Smith, 101 F.3d 202 (1st Cir. 1996).
23
Id. at 209.
24
Id. at 210.
25
U.S. v. Peters, 937 F.2d 1422 (9th Cir. 1991).
26
Id. at 1425.
27
State v. Brown, supra note 18.
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Cite as 294 Neb. 551opinions constituted reports of examinations. There, the defend­
ant learned through notes contained in a presentence report that
the police had obtained certain opinions from experts, which
had not been disclosed. The notes revealed that during the
investigation, the police contacted a psychologist and a pathol-
ogist. The psychologist opined that based upon the officers’
descriptions of the victim, the victim might be a pathological
liar. The pathologist examined photographs depicting the vic-
tim’s injuries and concluded that the injuries were not consist­
ent with the victim’s version of events. The defendant claimed
that the State should have disclosed the notes, because they
contained results or reports of physical or mental examinations
or scientific tests under § 29-1912(1)(e).
We drew a distinction between the opinions of the psycholo-
gist and the pathologist. We concluded that the State was not
required to disclose notes containing the psychologist’s opin-
ions, because
[t]he information from the psychologist was based upon
subjective data supplied by one of the investigating offi-
cers, which apparently included the officer’s impressions
and conclusions concerning [the victim]. The response
by the psychologist may have been a commentary on
the data supplied by the police, but the psychologist’s
response did not constitute a report of an examination
under the circumstances.28
By contrast, we concluded that the pathologist’s opinions did
constitute a report of an examination. We reasoned that
after his examination of [the victim’s] photographs, the
pathologist expressed an opinion to the police regarding
both the means used and the manner in which wounds
were inflicted upon the victim . . . . The pathologist’s
opinion concerning causation of the wounds was a report
within the purview of § 29-1912(1)(e), and the State
28
Id. at 675, 335 N.W.2d at 548.
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Cite as 294 Neb. 551should have disclosed those parts of the detective’s notes
containing the report from the pathologist.29
While our conclusion in Brown turned on the fact that the
psychologist had not performed an “examination,” at least
one federal court has focused instead on whether the infor-
mation at issue constituted a “result” or “report.” In U.S. v.
Iglesias,30 the defendant claimed that “‘log notes’” and other
documents from the drug testing laboratory constituted results
or reports. The Court of Appeals for the Ninth Circuit dis-
agreed. It characterized the log notes as “internal documents”
and concluded that they “do not have the requisite formality
or finality to be considered as either a ‘report’ or a ‘result.’”31
It reasoned that while defendants have “rights to inspect and
copy the actual results or reports of scientific tests, we are
not willing to force the government to disclose every single
piece of paper that is generated internally in conjunction with
such tests.”32
Taken together, Brown and Iglesias convince us that
O’Kelly’s late-disclosed opinions were not results or reports
of examinations or scientific tests. Like the psychologist’s
opinions in Brown, O’Kelly’s opinion that more testing was
required to place Parnell with certainty near the crime scene
was akin to commentary on the data supplied by the police;
he was commenting on the need for more data, rather than
reporting results or conclusions of an examination. His reports
and results were contained in the maps that he provided to
King, which were disclosed to Parnell early in discovery. And
like the log notes in Iglesias, O’Kelly’s opinions did not have
the requisite formality to be considered results or reports. His
opinions regarding the need for more testing were more akin to
an internal, informal document.
29
Id. at 675-76, 335 N.W.2d at 548.
30
U.S. v. Iglesias, 881 F.2d 1519, 1521 (9th Cir. 1989).
31
Id. at 1523.
32
Id. at 1524.
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Cite as 294 Neb. 551Because O’Kelly’s opinions do not fall within the scope of
§ 29-1912(1)(e), the State had no duty to disclose them pursu-
ant to that section.
Having concluded that Brady and § 29-1912 were not vio-
lated, we must now determine whether the district court abused
its discretion in overruling Parnell’s motion to continue the
trial or exclude Shute’s testimony.33 Parnell argues that the dis-
trict court abused its discretion because O’Kelly did not have
enough time to perform a drive test before trial. We disagree.
[8,9] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.34 And there is no abuse of discretion by the court
in denying a continuance unless it clearly appears that the
party seeking the continuance suffered prejudice as a result of
that denial.35
Parnell did not make it clear to the district court that O’Kelly
could not perform a drive test before trial. O’Kelly stated in his
affidavit that a drive test would take him “days if not weeks”
to complete. And the court noted at the hearing that because
the State planned to take more than a week to present its case,
O’Kelly would have 12 days to prepare to testify. It reasoned
that O’Kelly could prepare within that time. Parnell’s counsel
did not state that O’Kelly would need more than 12 days to
perform a drive test. Considering the evidence presented, it
was not unreasonable for the court to overrule the motion to
continue. We therefore conclude that the district court did not
abuse its discretion in overruling Parnell’s motion to continue
the trial or exclude Shute’s testimony.
2. New Trial
Parnell asserts that the district court erred in overruling his
motion for a new trial, because O’Kelly’s opinions constituted
33
See State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
34
Id.35
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Cite as 294 Neb. 551newly discovered evidence. He argues that he could not have
discovered and presented O’Kelly’s testimony at trial with
reasonable diligence. And he argues that O’Kelly’s testimony
would have been material, because “Shute’s testimony was
instrumental in placing [Parnell] near the crime scene.”36
[10] A new trial can be granted on grounds materially affect-
ing the substantial rights of the defendant, including “‘newly
discovered evidence material for the defendant which he or
she could not with reasonable diligence have discovered and
produced at the trial.’”37 A criminal defendant who seeks a new
trial because of newly discovered evidence must show that if
the evidence had been admitted at the former trial, it would
have probably produced a substantially different result.38 We
review the ruling denying a motion for new trial in a criminal
case for an abuse of discretion.39
This assignment fails. We assume that O’Kelly’s opinions
constituted newly discovered evidence. Nevertheless, they
did not warrant a new trial, because they did not create a
reasonable probability of a substantially different result. We
reach this conclusion for two reasons—first, O’Kelly’s conclu-
sions regarding the records would not have placed in doubt
Parnell’s presence at the location of the crime, and second,
Johnson’s and Nero’s testimonies against Parnell were power-
ful and compelling.
As the district court noted, O’Kelly’s opinions would not
have been particularly helpful to Parnell. O’Kelly was critical
of Shute’s methods of analysis and his conclusions regarding
the overlap area. But he also acknowledged that the crime
scene was “situated in a valley between Cell Sites 729 and
201” and that Parnell’s cell phone connected to tower 201
36
Brief for appellant at 20.
37
State v. Nelson, 282 Neb. 767, 782, 807 N.W.2d 769, 782 (2011) (quoting
Neb. Rev. Stat. § 29-2101(5) (Reissue 2008)).
38
State v. Nelson, supra note 37.
39
Id.
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Cite as 294 Neb. 551around the time of the shooting. And he placed Parnell’s
cell phone “in the general vicinity (1 - 2 miles of the crime
scene) before, during and after the shooting.” Thus, although
O’Kelly critiqued Shute’s methods, he reached conclusions
similar to Shute’s. O’Kelly’s opinions did not create a rea-
sonable probability of a substantially different outcome of
Parnell’s trial.
The State presented powerful and compelling evidence
against Parnell in the testimonies of Johnson and Nero.
Johnson testified that Parnell threatened her with a gun just
2 days before the shooting. And her description of the shoot-
er’s car—“a blue Nissan Altima with a messed up front
bumper”—matched the Altima Parnell drove. Additionally,
­
Nero’s testimony established that Parnell drove the Altima
on the evening of the shooting and that Parnell wanted her to
hide the car following the shooting. Furthermore, a detective
testified that Parnell lied and claimed that he had no knowl-
edge of an Altima, despite the fact that he had been stopped
while driving an Altima months earlier. This evidence substan-
tially diminishes the importance of the precision of the cell
phone information.
Because O’Kelly’s opinions did not create a reasonable
probability of a substantially different result, the district court
did not abuse its discretion in overruling Parnell’s motion for
a new trial.
3. Rule 404
Parnell assigns that the district court erred in concluding
that the evidence of his terroristic threat against Johnson was
inextricably intertwined with the crimes charged. He argues
that the evidence should have been excluded pursuant to rule
404. We disagree.
[11] Rule 404 provides:
(2) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may,
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Cite as 294 Neb. 551however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identify, or absence of mistake or accident.
(3) When such evidence is admissible pursuant to
this section, in criminal cases evidence of other crimes,
wrongs, or acts of the accused may be offered in evidence
by the prosecution if the prosecution proves to the court
by clear and convincing evidence that the accused com-
mitted the crime, wrong, or act. Such proof shall first be
made outside the presence of any jury.
[12,13] Rule 404(2), however, does not apply to evidence
of a defendant’s other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime.40 Inextricably
intertwined evidence includes evidence that forms part of the
factual setting of the crime, or evidence that is so blended
or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes
or bad acts, or if the other crimes or bad acts are neces-
sary for the prosecution to present a coherent picture of the
charged crime.41
We have previously concluded that a defendant’s threat-
ening behavior was inextricably intertwined with charged
crimes. In State v. Smith,42 the defendant was charged with
first degree murder and second degree assault in connection
with the shooting of several victims. The State introduced
testimony that the defendant had threatened two of the victims
twice in the month before the shooting. The testimony indi-
cated that the defendant had previously been friends with the
victims and that he threatened them because he believed they
were “‘snitches.’”43 The defendant claimed that the evidence
of his threats was subject to rule 404(2). We disagreed and
40
State v. Cullen, supra note 8.
41
See State v. Ash, 286 Neb. 681, 838 N.W.2d 273 (2013).
42
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
43
Id. at 860, 839 N.W.2d at 343.
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Cite as 294 Neb. 551concluded that the evidence of the threats “was part of the
factual setting of the instant crimes and was necessary to pre­
sent a coherent picture.”44 We noted that without the evidence
of the threats, it would have “appear[ed] to the jury that [the
defendant], who was a friend of [the victims], . . . aided and
abetted in the random shooting of five people.”45
Like Smith, the evidence of Parnell’s threat against Johnson
was necessary to present a coherent picture of the shoot-
ing. The evidence of the threats established that Parnell was
upset with Johnson just 2 days before the shooting, because
she brought a person from a rival gang to a party. Without
this evidence, it would have appeared to the jury that Parnell
randomly shot Carr and Johnson, because the only other inter-
action between Johnson and Parnell was at the birthday party
where Johnson complimented Parnell’s car.
The evidence was not used to establish that Parnell had
the propensity to shoot Carr and Johnson. It was used to
establish that Parnell threatened Johnson and acted upon that
threat 2 days later.46 Accordingly, the evidence was inextrica-
bly intertwined with the shooting and not subject to rule 404.
The district court did not abuse its discretion in admitting
this evidence.
4. Jury Instruction
Parnell assigns that the district court erred in refusing his
proposed jury instruction regarding accomplice testimony. We
disagree. The proposed jury instruction was not warranted by
the evidence.
[14,15] To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
44
Id. at 881, 839 N.W.2d at 355.
45
Id. at 881, 839 N.W.2d at 355-56.
46
See State v. Smith, supra note 42.
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Cite as 294 Neb. 551evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.47 All the jury instruc-
tions must be read together, and if, taken as a whole, they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and evidence, there is no
prejudicial error necessitating reversal.48
We addressed whether an accomplice jury instruction was
warranted by the evidence in State v. Mason.49 There, the
defendant argued that two witnesses constituted accomplices
because they were present when the defendant shot the victim
and because they later lied to the police about their involve-
ment. Like the instant case, the defendant requested a jury
instruction based upon NJI2d Crim. 5.6, and the court rejected
it and gave a more general credibility instruction.
[16] We concluded in Mason that the evidence did not war-
rant an accomplice instruction. We noted that an accomplice
“‘“must take some part in the crime, perform some act,
or owe some duty to the person in danger that makes
it incumbent on him to prevent the commission of the
crime. Mere presence, acquiescence, or silence, in the
absence of a duty to act, is not enough, however rep-
rehensible it may be, to constitute one an accomplice.
The knowledge that a crime is being or is about to be
committed cannot be said to constitute one an accom-
plice. . . .”’”50
And we reasoned that the witnesses were not accomplices,
because there was no evidence that they were involved in
a plan to shoot the victim. We also rejected the defendant’s
claim that their attempts to cover up the crime rendered
them accomplices. We said “such evidence point[ed] to their
47
State v. Duncan, supra note 9.
48
Id.
49
State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).
50
Id. at 29, 709 N.W.2d at 650-51 (quoting State v. Sutton, 231 Neb. 30, 434
N.W.2d 689 (1989)).
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Cite as 294 Neb. 551possibly being ‘accessories after the fact.’”51 We concluded
that the more general instruction regarding witness credibility
was sufficient.
Like Mason, Parnell’s proposed instruction was not war-
ranted by the evidence. Parnell argues that Nero could have
been considered an accomplice, because she provided Parnell
with access to the Altima and because she lied to the police.
But those actions did not render her an accomplice. The evi-
dence established that Parnell always had access to Nero’s
Altima. There was no evidence that Nero provided him access
on the night of the shooting for the purpose of helping with
the crime or that she was even aware of the crime. And Nero’s
lies to investigators, like the lies in Mason, happened after the
crime. They point to her being an accessory after the fact, not
an accomplice.
Because the accomplice instruction was not warranted by
the evidence, the general credibility instruction was sufficient
to address Nero’s testimony. Therefore, the district court did
not err in refusing the proposed jury instruction.
5. Ineffective Assistance
Parnell claims that his counsel was ineffective because he
did not call O’Kelly to testify at trial. He argues that even
though O’Kelly had not completed the drive test, his counsel
should have called O’Kelly to critique Shute’s methods and
conclusions.
(a) Different Counsel on Claims
of Ineffective Assistance
[17,18] We must first determine whether Parnell may raise
this claim in this direct appeal. Ordinarily, 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
51
Id. at 30, 709 N.W.2d at 651. See, also, State v. Banks, 278 Neb. 342, 771
N.W.2d 75 (2009).
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Cite as 294 Neb. 551of trial counsel’s ineffective performance which is known to
the defendant or is apparent from the record.52 Otherwise, the
issue will be procedurally barred.53 But when a defendant was
represented both at trial and on direct appeal by the same law-
yers, generally speaking, the defendant’s first opportunity to
assert ineffective assistance of trial counsel is in a motion for
postconviction relief.54
[19,20] These legal rules are driven by a fundamental prin-
ciple: The need for finality in the criminal process requires that
a defendant bring all claims for relief at the first opportunity.55
The purpose of affording postconviction relief is to correct
errors of constitutional proportion which otherwise could not
have been raised on direct appeal.56 It naturally follows that
a motion for postconviction relief cannot be used as a sub-
stitute for an appeal or to secure a further review of issues
already litigated on direct appeal or which were known to the
defendant and counsel at the time of the trial and which were
capable of being raised, but were not raised, in the defendant’s
direct appeal.57
(b) Appellate Rules of Procedure
We have several appellate rules governing counsel of
record. These rules are intended to ensure orderly proceed-
ings.58 And failure to follow them could not only disrupt the
proceedings, but also deprive a defendant of his or her con-
stitutional right to counsel.59 Where ineffective assistance of
52
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
53
Id.54
State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390 (2016).
55
State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015).
56
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
57
Id.58
See State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
59
See, e.g., State v. Agok, 22 Neb. App. 536, 857 N.W.2d 72 (2014).
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Cite as 294 Neb. 551counsel is urged, these rules have another substantive compo-
nent—they enable us to easily distinguish trial counsel from
appellate counsel. If these rules are not strictly followed, then
our review of ineffectiveness claims could be frustrated or
unnecessarily complicated.
One rule ensures that appointed counsel will take the
necessary steps to perfect an appeal. “Counsel appointed
in district court to represent a defendant in a criminal case
other than a postconviction action shall, upon request by the
defendant after judgment, file a notice of appeal and continue
to represent the defendant unless permitted to withdraw by
this court.”60
Another rule ensures continuity of counsel from the trial
court to the appellate court.
The attorneys of record . . . of the respective parties in the
court below shall be deemed the attorneys . . . of the same
parties in this court, until a withdrawal of appearance has
been filed . . . . Counsel in any criminal case pending in
this court may withdraw only after obtaining permission
of this court.61
Yet another rule requires the trial court clerk to certify to
the appellate court the names and contact information regard-
ing the attorneys of record in the court below.62 Together, these
rules ensure that the appellate court has been provided with
accurate and up-to-date identification of counsel representing
a defendant in a criminal case.
But noncompliance with the rules can thwart the reliability
of the process and add unnecessary complexity. If an attorney
fails to file a written motion seeking, and obtain a written order
granting, leave to withdraw, the record may continue to reflect
the appearance of a lawyer who is no longer representing a
60
Neb. Ct. R. App. P. § 2-103(A).
61
Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2015).
62
See § 2-101(B)(5)(b).
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Cite as 294 Neb. 551party. And this can easily lead to an incorrect certification
of counsel by the trial court clerk. If an attorney purports to
obtain permission to withdraw from a trial court but fails to
ensure that an order memorializing the withdrawal is timely
filed in the trial court, he or she has not fulfilled this duty. If
new counsel has been appointed for an appeal but the former
counsel has not withdrawn before an appeal is perfected, the
former counsel must promptly withdraw in the appellate court.
And if the trial court clerk fails to diligently and accurately
certify the counsel of record at the time of the taking of an
appeal, needless corrections will be required.
Because of the unnecessary disruption to orderly appellate
procedure, the appellate courts will strictly enforce the require-
ments of these rules.
(c) Identification of Parnell’s Counsel
The trial court initially certified four counsel of record
for Parnell: three private attorneys and one member of the
Douglas County public defender’s office, Kelly Steenbock. An
amended certificate deleted one of the private attorneys and
substituted Allyson Mendoza, another member of the public
defender’s office. Mendoza appeared on behalf of Parnell at a
pretrial hearing, and she was also one of the counsel designated
on Parnell’s appellate brief. Thus, the amended certificate
showed two members of the public defender’s office and two
private attorneys, Stockmann and Stephanie S. Shearer. The
bill of exceptions shows the same four attorneys as counsel
for Parnell.
As of the date of oral argument, none of these four attorneys
had sought leave to withdraw in this court. But Steenbock,
Stockmann, and Shearer were not listed as counsel on Parnell’s
appellate brief. And there was no other filing in this court sug-
gesting that Steenbock, Stockmann, or Shearer played any role
as counsel for Parnell on appeal.
[21] The certification of Steenbock as counsel on appeal
may be erroneous, but poses no difficulty on direct appeal.
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Cite as 294 Neb. 551Claims of ineffective assistance of counsel raised on direct
appeal by the same counsel who represented the defendant
at trial are premature and will not be addressed on direct
appeal.63 And because Steenbock and Mendoza work for the
same public defender’s office, they are considered as the
same counsel for purposes of that rule.64 Thus, we would not
address an ineffectiveness claim directed at Steenbock in this
direct appeal. It is clear from our record that Steenbock par-
ticipated in several pretrial proceedings. But it is also clear
from the record that she did not participate in any of the pro-
ceedings pertinent to the claim of ineffective assistance raised
in this appeal.
As to Stockmann and Shearer, the situation differs. They
were certified as counsel of record and did not initially file a
withdrawal in this court. And the bill of exceptions shows their
participation at trial on the precise matter raised—failure to
call O’Kelly as a witness. Because Parnell’s previous attorneys
were still counsel of record, the State was “unsure whether
Parnell can raise ineffective assistance of counsel claims on
direct appeal.”65
In order to resolve the uncertainty regarding Stockmann
and Shearer’s status as counsel on appeal, we issued an order
to show cause regarding their apparent failure to withdraw
as counsel for Parnell in this court. Stockmann, Shearer, and
Mendoza filed affidavits in response.
Mendoza explained that she and Steenbock were the initial
attorneys appointed to represent Parnell. They represented him
in “several pretrial matters, including the preliminary hear-
ing and plea in abatement.” When they became aware of a
conflict, the trial court removed the public defender’s office
and appointed Stockmann and Shearer to represent Parnell.
63
State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
64
See State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
65
Brief for appellee at 38.
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Cite as 294 Neb. 551Mendoza stated that Stockmann and Shearer represented
Parnell for the remainder of the case in the trial court. After
trial, the public defender’s office was reappointed to represent
Parnell because “the original conflict of interest . . . no longer
existed.” Mendoza and another attorney from the office were
assigned to represent Parnell on appeal.
Regarding their participation in this appeal, Stockmann and
Shearer stated that they represented Parnell throughout trial
and sentencing. After sentencing, they had no further contact
with Parnell and did not participate in this appeal. Mendoza
confirmed in her affidavit that Stockmann and Shearer did not
act as Parnell’s counsel at any time in this appeal.
Regarding their apparent failure to withdraw, Stockmann
and Shearer explained that Shearer asked the trial court to
allow them to withdraw after Parnell’s sentencing. The trial
judge informed Shearer that they were allowed to withdraw
and that he would appoint attorneys from the public defender’s
office to represent Parnell on appeal. Stockmann and Shearer
both stated that they did not comply with our rules requiring
formal withdrawal because they “did not consider [themselves]
to be the attorney of record when the notice of appeal in
[Parnell’s] case was filed in the court below.” Neither claimed
that they requested a formal order reflecting their withdrawal
in the trial court. And Shearer noted in her affidavit that
she “receiv[ed] notices from the Supreme Court concerning
[Parnell’s] case.” She said that she “contacted the Clerk of the
Supreme Court” and “was informed that the case was certified
indicating I was representing [Parnell].”
It is apparent that Stockmann and Shearer intended to with-
draw in the trial court. But our record does not contain an order
memorializing their withdrawal. If such an order existed and if
it was filed before Parnell’s appeal was perfected, it was error
for the clerk to certify them as counsel on appeal. But with-
out an order memorializing their withdrawal, Stockmann and
Shearer remained counsel of record and were properly certified
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Cite as 294 Neb. 551as appellate counsel to this court. Once certified, they had a
duty to file a request to withdraw in this court. They did not
do so.
We digress to urge attorneys not to ignore notices received
from this court or the Nebraska Court of Appeals. It does not
matter whether an attorney believes that he or she is no longer
counsel of record. Notices from this court’s clerk are sent only
to counsel of record; notices are not sent to counsel unless
counsel was certified as such by the trial court. If an attorney
receives a notice from our clerk but believes that he or she has
withdrawn, the attorney should promptly communicate with
the clerk’s office to resolve his or her status. Then, the attorney
should take the steps necessary to either (1) ensure that a cor-
rected certificate is transmitted by the trial court clerk to the
appellate court or (2) file and serve a motion to withdraw as
counsel in the appellate courts.
In light of the responses to our order to show cause, we
conclude that we can address this ineffectiveness claim on
direct appeal. Although Parnell was technically still repre-
sented by his previous attorneys when the appeal was per-
fected, they were not involved in this appeal. And Parnell
is aware of his ineffectiveness claim and capable of raising
it here. Delaying review of this claim to the postconviction
stage would not serve the purpose of postconviction review.
We therefore turn to the merits of Parnell’s ineffective-
ness claim.
(d) Merits of Ineffectiveness Claim
[22] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved.66 The determining factor is whether the record is
sufficient to adequately review the question.67
66
State v. Duncan, supra note 9.
67
Id.
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Cite as 294 Neb. 551[23-25] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,68 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.69
To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law.70 To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different.71
[26-28] When reviewing claims of alleged ineffective assist­
ance of counsel, an appellate court affords trial counsel due
deference to formulate trial strategy and tactics.72 The entire
ineffectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found
unreasonable, the error justifies setting aside the judgment
only if there was prejudice.73 Deficient performance and preju-
dice can be addressed in either order.74 If it is more appropri-
ate to dispose of an ineffectiveness claim due to lack of suf-
ficient prejudice, that course should be followed.75
Parnell’s ineffectiveness claim fails because there is no
reasonable probability that but for his counsel’s failure to call
O’Kelly, Parnell would have been acquitted. As we explained
above, there was compelling evidence against Parnell. At
most, O’Kelly’s opinions would have degraded the precision
68
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
69
State v. Duncan, supra note 9.
70
Id.
71
Id.
72
State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
73
State v. Duncan, supra note 9.
74
Id.
75
Id.
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Cite as 294 Neb. 551accorded to the cell phone testimony. O’Kelly ultimately con-
cluded that Parnell’s cell phone was near the crime scene when
the shooting occurred. The outcome would not have been dif-
ferent had O’Kelly testified and criticized Shute’s methods.
Therefore, the record conclusively refutes that Parnell was
prejudiced by his counsel’s conduct.
VI. CONCLUSION
We conclude that the district court did not abuse its discre-
tion in overruling Parnell’s motions to continue the trial and
for a new trial. We also conclude that the court did not abuse
its discretion in admitting evidence of Parnell’s threats against
Johnson. We conclude further that the district court did not err
in rejecting Parnell’s jury instruction and that Parnell did not
receive ineffective assistance of counsel. We therefore affirm
Parnell’s convictions.
A ffirmed.
Connolly, J., not participating