State v. Sierra , 31 Neb. Ct. App. 852 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
05/09/2023 12:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. SIERRA
Cite as 31 Neb. App. 852State of Nebraska, appellee, v.
Jonathan J. Sierra, appellant.
___ N.W.2d ___
Filed May 2, 2023. No. A-22-211.
1. Postconviction: Evidence. In an evidentiary hearing on a motion for
postconviction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact.
2. Appeal and Error. An appellate court upholds the trial court’s findings
unless they are clearly erroneous.
3. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law and
fact. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear
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.
4. 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
his or her counsel’s performance was deficient and that this deficient
perform­ance actually prejudiced the defendant’s defense.
5. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
6. Trial: Effectiveness of Counsel: Presumptions. In determining whether
trial counsel’s performance was deficient, there is a strong presumption
that counsel acted reasonably.
7. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic deci-
sion to present particular evidence, or not to present particular evidence,
will not, without more, sustain a finding of ineffective assistance of
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Cite as 31 Neb. App. 852counsel. Strategic decisions made by trial counsel will not be second-
guessed so long as those decisions are reasonable.
8. Effectiveness of Counsel: Proof. To show prejudice under the prejudice
component of the Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s deficient
perform­ance, the result of the proceeding would have been different.
9. Effectiveness of Counsel: Proof: Words and Phrases. A reasonable
probability does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the defend­
ant must show a probability sufficient to undermine confidence in the
outcome. The likelihood of a different result must be substantial, not
just conceivable.
10. Records: Appeal and Error. It is incumbent upon an appellant to sup-
ply a record which supports his or her appeal. Absent such a record, as
a general rule, the decision of the lower court as to those errors is to be
affirmed.
11. Criminal Law: Evidence: Proof. An alibi defense requires a defendant
to establish that (1) he or she was at a place other than where the crime
was committed and (2) he or she was at such other place for such a
length of time that it was impossible to have been at the place where and
when the crime was committed.
12. ____: ____: ____. A defendant asserting an alibi defense bears a heavy
evidentiary burden.
13. Probation and Parole: Search and Seizure. Generally, Nebraska
courts uphold warrantless searches pursuant to a condition of a proba-
tion order.
14. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed.
Stephen T. Knudsen, of Whitney, Newman, Mersch, Otto &
Grafton, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Riedmann, Bishop, and Arterburn, Judges.
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Cite as 31 Neb. App. 852Arterburn, Judge.
INTRODUCTION
Jonathan J. Sierra was convicted in 2018 in the York County
District Court of burglary, conspiracy to commit burglary, and
several counts of theft involving the theft of a truck, trailer,
and various mechanic’s tools from a local automotive repair
shop. Sierra filed a motion for postconviction relief in the York
County District Court asserting several claims that his trial
counsel was ineffective. Following an evidentiary hearing, the
district court found that Sierra had not met his burden in prov-
ing that his trial counsel was ineffective. Upon our review of
the record, we affirm.
BACKGROUND
In December 2017, Sierra was charged in an eight-count
information with one count of burglary, one count of con-
spiracy to commit burglary, four counts of theft by unlawful
taking ($5,000 or more), one count of theft by unlawful taking
($1,500 to $5,000), and one count of criminal mischief (less
than $500). The Nebraska Supreme Court summarized the
underlying circumstances of the crimes as follows:
Sierra was involved in the theft of a truck and trailer
which he then used to assist in the theft of automotive
tools from a mechanic’s garage in York, Nebraska. The
complaint was based in an incident which occurred in
the early morning of October 15, 2017, when a window
of [an automotive shop] in York was broken and tools
were stolen from the premises. The tools belonged,
separately, to a co-owner of the garage business and his
two employees. The co-owner, Andrew Wilkinson, noti-
fied the officer investigating the break-in, Sgt. Michael
Hanke, that his checkbook and debit card had also
been stolen.
State v. Sierra, 305 Neb. 249, 252, 939 N.W.2d 808, 816-
17 (2020).
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Cite as 31 Neb. App. 852The district court appointed the York County public defender
as Sierra’s counsel. On April 23, 2018, a hearing was held
due to Sierra’s request that his counsel withdraw, citing a
breakdown in the attorney-client relationship. Sierra informed
the court that his counsel had not spoken to him about any
of the discovery materials in his case despite his numerous
requests. Sierra said he eventually just stopped calling her,
because he was not getting answers. Trial counsel responded
that Sierra was not willing to accept her advice despite the fact
that she had provided him a significant amount of discovery
materials. Ultimately, Sierra’s request was denied and the pub-
lic defender remained as trial counsel.
Prior to trial, the State and trial counsel signed a discovery
stipulation agreeing to have any discovery materials deliv-
ered to opposing counsel by March 5, 2018, or as soon as
it was reasonably discovered. The parties also agreed that
the absolute deadline for production of discovery materials
was 10 days before the start of trial. Despite this agreement,
trial counsel provided the State just 5 days prior to the trial
with a list of five witnesses she intended to call at trial. The
witnesses included Sierra’s brother, Anthony Sierra; Sierra’s
mother, Cynthia Sierra; Sierra’s girlfriend; and two individ­
uals who were in jail with Sierra. In response, the State filed a
motion in limine to exclude those witnesses from testifying. At
the hearing, the State indicated that there was no explanation
as to the nature of the witnesses’ testimony, but that the State
suspected defense counsel intended to present an alibi defense.
However, the State also noted that defense counsel had not
filed a notice of alibi defense as required by Neb. Rev. Stat.
§ 29-1927 (Reissue 2016). Sierra’s trial counsel indicated she
no longer planned on calling Sierra’s girlfriend as a witness.
Trial counsel stated she did not necessarily intend to present
exhibits for an alibi defense but asked that the court allow her
to explore that defense should she choose to do so in the inter-
est of justice. The court granted the State’s motion in limine
prohibiting defense counsel from calling her witnesses with
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Cite as 31 Neb. App. 852the exception of Anthony, who was also named on the State’s
list of endorsed witnesses. The prohibition also extended to
exhibits related to an alibi defense.
At trial, Sgt. Michael Hanke of the York Police Department
presented a general timeline of the investigation after law
enforcement was notified of the theft at the automotive shop
on October 15, 2017. Hanke testified that upon arrival, law
enforcement first reviewed surveillance video from other busi-
nesses in the area. According to Hanke, the videos showed
that there were two individuals who stole a pickup truck from
the automotive shop parking lot. At approximately 4:45 a.m.,
the two individuals then took the truck to a nearby pizza
restaurant, where they stole an enclosed white trailer and
attached it to the truck before returning to the automotive shop.
Approximately 30 minutes later, video showed the truck and
trailer leaving the area.
Hanke testified that the next day, Wilkinson was notified
that someone had attempted to use the stolen debit card at a
Walmart store in Norfolk, Nebraska. Wilkinson provided that
information to the York Police Department. Hanke contacted
personnel at the Norfolk Walmart and was able to obtain pic-
tures from a security camera showing two individuals using
the stolen debit card on the afternoon of October 15, 2017.
Hanke also received photographs taken by surveillance cam-
eras in a Walmart store in York, Nebraska, showing the same
two individuals within that store at approximately 7:30 a.m.
on October 15, 2017, the same day as the burglary at the auto­
motive shop. Walmart personnel at the York store suspected
the individuals in the photographs had shoplifted clothing
there, given that one of them was wearing clothing when exit-
ing different from what he was wearing on entry.
Maggie Wolfe, an asset protection associate at the York
Walmart, testified about the process of obtaining the surveil-
lance footage of the two individuals. Wolfe identified the
individuals in the photograph from the surveillance video
as Johnathan Mally and Sierra. Defense counsel did not
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Cite as 31 Neb. App. 852object to the identification testimony during direct exami-
nation. However, after Wolfe’s identification, the following
exchange took place when the State offered the photographs
into evidence:
[Defense counsel:] I would object on foundation, your
Honor.
THE COURT: What foundation?
[Defense counsel:] She hasn’t identified what the
two — what led her to believe that one of the suspects
was . . . Sierra.
THE COURT: Objection overruled. Exhibit 1 will be
received.
On cross-examination, Sierra’s counsel asked Wolfe how she
learned the identities of the individuals in the photograph.
Wolfe admitted that she had only seen information in the
newspaper and did not independently identify Sierra from
the photograph.
Hanke testified that after he received the surveillance foot-
age, a notice went out to all law enforcement asking for assist­
ance in identifying the individuals in the pictures. Sgt. Andrew
Yost of the Butler County Sheriff’s Department testified at
trial that he and the Butler County Sheriff had seen the surveil-
lance photographs from the York Walmart and recognized one
of the individuals as Sierra. Based on the information from
the Butler County Sheriff’s Department, Hanke testified that
he was able to develop Mally and Sierra as suspects. Initially,
defense counsel did not object to Hanke’s testimony. However,
as the testimony regarding the identification of Sierra contin-
ued, the following exchange was had:
Q. [Prosecutor:] And [a deputy at the Butler County
Sheriff’s Department] was able to look at the picture from
the York Walmart and determine who it was?
A. Yeah, he believed it to be . . . Sierra with . . . Mally.
Q. Okay. Now, was he familiar with . . . Sierra as a
local probationer?
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Cite as 31 Neb. App. 852A. I’m not sure if he was familiar with him that way
but he did let me know —
[Defense counsel:] I’m going to object on this line of
questioning. It’s hearsay, your Honor.
THE COURT: Sustained.
Hanke went on to testify that after determining Sierra’s iden-
tity, he obtained a search warrant for Sierra’s cell phone data.
The data he recovered from the cell service provider showed
that Sierra’s phone “pinged off” of a cell tower in York, which
indicated that the phone was located within 20 miles of York
on October 15, 2017, the date of the burglary. Defense counsel
did not object to Hanke’s testimony about the cell phone data,
and the records are not in evidence.
In addition to retrieving the cell phone data, Hanke testi-
fied that the Butler County Sheriff’s Department conducted a
search of Sierra’s home. Yost, who participated in the search,
testified that the search was conducted with the permission
of Sierra’s probation officer. According to Yost, the probation
order allowed searches of Sierra’s residence without a warrant.
A copy of the probation order was not offered into evidence.
Yost testified that law enforcement officers found and seized
a majority of the tools that had been taken from the auto­
motive shop in York. Hanke testified that the stolen truck was
recovered after it was abandoned on a road north of the York
Walmart and that the stolen trailer was recovered after it was
abandoned on a road near St. Edward, Nebraska, not far from
where Sierra resided in Genoa, Nebraska.
Hanke testified that the next step in the investigation was an
interview with Sierra. According to Hanke, in this first inter-
view, Sierra denied ever being in York, claimed he had noth-
ing to do with the burglary, and stated he possessed the tools
because he had purchased them from Mally. Hanke testified
that in a second interview, Sierra admitted to being in York.
Defense counsel did not object to this line of testimony but
cross-examined Hanke about Sierra’s story.
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STATE v. SIERRA
Cite as 31 Neb. App. 852Mally was arrested in Columbus, Nebraska. Several of the
tools and financial items from the automotive shop were found
in his possession afterward. Mally subsequently entered into
a plea agreement with the State and testified against Sierra.
Mally testified that he knew Sierra through their employ-
ment at a truck repair shop. He provided a general timeline of
the events on October 15, 2017. Mally estimated that he had
met up with Sierra in York “[p]robably” around 11:30 p.m.
on October 14, 2017. He then recounted a series of events
wherein the window to the automotive shop had been broken
by Sierra, followed by his and Sierra’s leaving the area to
make sure that the window’s breaking did not trigger a bur-
glar alarm. Mally said that he and Sierra then returned to the
automotive shop, where they stole a truck outside the shop.
They then went in the stolen truck to the pizza restaurant,
where they stole the enclosed trailer. After obtaining the trailer,
they returned to the automotive shop, where they removed
some large upright toolboxes full of tools, rolled them into
the trailer, and then drove away. According to Mally, he
and Sierra stayed in York for a period thereafter, which stay
included going into the York Walmart, where he put on clothes
that he shoplifted therefrom and got rid of the clothes he had
worn during the burglary. Mally identified himself and Sierra
in the Walmart surveillance photographs taken at 7:30 a.m.
on October 15. Shortly after leaving the York Walmart, they
unhooked the trailer from the stolen truck, hooked it up to
Mally’s pickup truck, and then left. Mally testified that they
took the tools because Sierra needed the tools for his job as a
mechanic. The majority of the tools were taken to Sierra’s resi-
dence in Genoa, with Mally’s retaining the remainder. Mally
denied the existence of any arrangement with Sierra to buy
the tools. On cross-examination, defense counsel emphasized
the benefits Mally received from the State in exchange for
his cooperation.
The owners of the tools, the owner of the truck, and the
owner of the trailer all testified regarding the identity and
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Cite as 31 Neb. App. 852value of the items stolen. Several of the recovered tools,
along with photographs of other stolen items, were received
into evidence. Defense counsel made several objections dur-
ing the State’s presentation of evidence, some of which were
sustained. Sierra’s brother, Anthony, testified for the defense.
Anthony testified that he was with Sierra on October 14
and 15, 2017, but not in York. He further testified that on
October 15, Mally arrived with a white trailer at a house where
he helped unload several tools that Sierra had purchased from
Mally. Finally, Anthony said he did not recognize the person in
the store surveillance photographs from Walmart.
A jury found Sierra guilty on all counts except for crimi-
nal mischief. After the conclusion of the jury trial, but before
sentencing, defense counsel was charged with theft by unlaw-
ful taking ($5,000 or more) in an unrelated case. Sierra was
granted new counsel for sentencing. Sierra was sentenced
to 16 to 20 years’ imprisonment on each of the Class IIA
felony convictions and 1 to 2 years’ imprisonment on the
Class IV felony conviction. All sentences were ordered to be
served concurrently.
Sierra filed a direct appeal, which was heard by the
Supreme Court. On appeal, Sierra alleged the district court
erred by denying trial counsel’s motion to withdraw prior to
trial, granting the State’s motion in limine, and sentencing
Sierra on multiple charges of theft by unlawful taking, in vio-
lation of the Double Jeopardy Clause of the U.S. Constitution.
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020). In
addition, Sierra assigned 13 ineffective assistance of counsel
claims. Id. The Supreme Court agreed with Sierra’s double
jeopardy argument and vacated two of the three convictions
and sentences for theft by unlawful taking ($5,000 or more)
that were based on the theft of the tools from the automotive
shop. Id. The Supreme Court found the district court did not
abuse its discretion by overruling trial counsel’s motion to
withdraw. Id. As to Sierra’s ineffective assistance of coun-
sel claims, the Supreme Court found that nine of the claims
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Cite as 31 Neb. App. 852could not be resolved on the record before it. Id. One of the
claims was determined to be insufficiently pled. Id. The three
remaining ineffective assistance of counsel claims, as well as
Sierra’s other assignment of error, were found to be without
merit. Id.Sierra filed a timely motion for postconviction relief. Sierra
was appointed an attorney and subsequently filed a supplemen-
tal motion for postconviction relief alleging the same claims
of ineffective assistance of counsel the Supreme Court was not
able to resolve on direct appeal. The district court granted the
State’s motion to dismiss the original motion for postconvic-
tion relief and then proceeded to an evidentiary hearing on the
supplemental motion.
The evidentiary hearing was held on December 1, 2021.
Sierra testified at the hearing. He stated that he first met with
his trial counsel 3 or 4 weeks after she was appointed, while
they were in court. This first meeting lasted only about a
minute, according to Sierra. Sierra testified that he and trial
counsel met only once at the jail. Sierra stated that at this meet-
ing, trial counsel brought a laptop computer for them to use
to review surveillance videos together, but she fast-forwarded
through the videos. Sierra then said his trial counsel took a
phone call and left abruptly. According to Sierra, trial coun-
sel did not discuss trial strategy with him, did not take notes,
and did not return to the jail. Sierra testified that he attempted
to contact her regarding an alibi defense, but that she did not
respond. However, he admitted she did respond to him by mak-
ing the motions he requested to reduce his bond. Finally, Sierra
testified that he and trial counsel did not meet at all in the 7
days leading up to his trial.
At the evidentiary hearing, Sierra offered into evidence sev-
eral exhibits, including a copy of his trial record; a copy of the
Supreme Court’s opinion from his appeal; a copy of the State’s
motion in limine, as well as trial counsel’s list of witnesses;
an affidavit from Cynthia; and a deposition of trial counsel.
In trial counsel’s deposition, she stated she was suffering
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Cite as 31 Neb. App. 852from what’s called “Long Hauler Syndrome” from COVID-
19, which meant she was sick for a long period of time and
which in her case resulted in a loss of memory. Trial counsel
said she did not recall Sierra or anything about his trial or
representation. She was able to describe her general process in
meeting with and representing criminal defendants but could
not provide details regarding her representation of Sierra. Trial
counsel responded, “I have no idea,” “I do not remember,” or
“I don’t recall” to almost every question about Sierra. Trial
counsel’s case file and notes were also received into evidence
at the evidentiary hearing.
In Cynthia’s affidavit, she identified herself as Sierra’s
mother. She stated that she also tried to contact Sierra’s trial
counsel regarding a possible alibi defense for Sierra to no
avail. In the affidavit, Cynthia stated that if she had testified
at trial, she would have said that she, Sierra, Anthony, and
Sierra’s girlfriend were fixing the walls in the bathroom of
her house in Genoa until “approximately” 11 p.m. on October
14, 2017. Cynthia also stated she would have testified that
Sierra told her that his coworker was going to be bringing
a load of tools he was purchasing to their house and that
she saw the coworker coming with the truck and trailer on
October 15.
The district court took the matter under advisement. In an
order dated March 4, 2022, the district court denied Sierra’s
motion for postconviction relief. As to each of the allegations
of ineffective assistance, the district court found that Sierra
failed to establish either deficient performance of counsel or
prejudice. Sierra appeals from the district court’s order deny-
ing his motion for postconviction relief.
ASSIGNMENTS OF ERROR
On appeal, Sierra assigns that trial counsel was ineffective
for failing to (1) file notice of or present alibi evidence, (2)
file a witness and exhibit list, (3) effectively communicate
with Sierra, (4) file a motion to suppress evidence obtained
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Cite as 31 Neb. App. 852from Sierra’s residence, (5) object to or make motions regard-
ing the testimony of certain witnesses, (6) request a cautionary
jury instruction on accomplice testimony, and (7) maintain
her law license. He argues that the district court should have
sustained his postconviction motion based on each of the fore-
going bases.
STANDARD OF REVIEW
[1,2] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. State v. Stricklin,
310 Neb. 478, 967 N.W.2d 130 (2021). An appellate court
upholds the trial court’s findings unless they are clearly erro-
neous. Id.[3] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. Id. When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. Id. 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. State v. Stricklin, supra.ANALYSIS
General Principles of Ineffective
Assistance of Counsel.
[4-7] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, supra, the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. State v. Stricklin, supra. To show that
counsel’s performance was deficient, the defendant must show
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. In determining
whether trial counsel’s performance was deficient, there is
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Cite as 31 Neb. App. 852a strong presumption that counsel acted reasonably. State v.
Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). A reasonable
strategic decision to present particular evidence, or not to
present particular evidence, will not, without more, sustain a
finding of ineffective assistance of counsel. State v. Newman,
310 Neb. 463, 966 N.W.2d 860 (2021). Strategic decisions
made by trial counsel will not be second-guessed so long as
those decisions are reasonable. Id.[8,9] To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Stricklin, supra. A reasonable probability
does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
confidence in the outcome. Id. The likelihood of a different
result must be substantial, not just conceivable. See id. (quot-
ing Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011)).
[10] In an evidentiary hearing for postconviction relief,
the postconviction trial judge, as the trier of fact, resolves
conflicts in evidence and questions of fact, including witness
credibility and the weight to be given a witness’ testimony.
State v. Stricklin, supra. Where competent evidence supports
the district court’s findings, the appellate court will not substi-
tute its factual findings for those of the district court. Id. It is
incumbent upon an appellant to supply a record which supports
his or her appeal. State v. Britt, 310 Neb. 69, 963 N.W.2d 533(2021). Absent such a record, as a general rule, the decision of
the lower court as to those errors is to be affirmed. Id.Failing to File Notice of or Present Alibi
Evidence and Failing to Timely File
Witness and Exhibit List.
Sierra first assigns and argues that trial counsel was inef-
fective for failing to file notice of or present alibi evidence.
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Cite as 31 Neb. App. 852He further argues that trial counsel was ineffective by failing
to timely file witness and exhibit lists. As part of a discovery
agreement with the State, trial counsel was required to provide
any discovery, including a list of witnesses and exhibits the
defense intended to use at trial, no later than 10 days prior
to trial. Despite this, trial counsel did not present her witness
list until 5 days prior to the first day of trial. As a result, trial
counsel was prohibited from presenting the listed witnesses.
Similarly, Sierra was prohibited from putting on an alibi
defense due to trial counsel’s failure to file a notice of alibi.
The witness list produced by Sierra’s counsel for trial
named five witnesses: Anthony, Cynthia, Sierra’s girlfriend,
and two individuals who were in jail with Sierra prior to his
trial. Of those, one witness, Anthony, still testified for the
defense because he was on the State’s witness list. At the hear-
ing on the motion in limine, trial counsel informed the court
that she no longer intended to call Sierra’s girlfriend as a wit-
ness. Due to trial counsel’s failure to meet the discovery dead-
line, the court prohibited the defense from calling Cynthia,
as well as the two other individuals. In his postconviction
motion, Sierra has presented evidence relative only to what
Cynthia’s testimony would be. As such, we will not consider
the other witnesses Sierra, through trial counsel, sought to
add. We do, however, consider the testimony of Anthony
regarding Sierra’s whereabouts on the days in question which
was given at trial. In her deposition, trial counsel stated that
she could not remember any specifics regarding Sierra and
his trial due to memory loss from COVID-19. Therefore, we
have no evidence as to what reasons trial counsel may have
had for failing to file a notice of alibi and witness list in a
timely fashion.
It is clear that trial counsel was deficient in failing to meet
the foregoing deadlines. However, Sierra has not established
that he was prejudiced. Based on the record presented, the
only impact of trial counsel’s deficiency was that Cynthia
was prevented from testifying. According to Sierra, and the
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Cite as 31 Neb. App. 852affidavit provided by Cynthia at the evidentiary hearing, had
Cynthia been called as a witness, she would have testified that
Sierra was working at their home in Genoa until approximately
11 p.m. on the night preceding the burglary at the automotive
shop. At trial, Mally testified that he met up with Sierra in
York at around 11:30 p.m. on October 14, 2017. The district
court agreed with the State’s argument that Cynthia’s testi-
mony did not contradict the evidence presented at trial. In its
order, the district court explained:
The evidence presented indicated that the crime was com-
mitted sometime after working hours on Friday, October
13, 2017 but before Sunday, October 15, 2017. Given
the testimony of . . . Mally, Sergeant Hanke, [and the
victims], there is no reasonable probability the outcome
would have been different. [Sierra] failed to establish
a viable alibi through the evidence at the trial on the
Motion for Post-Conviction Relief. Cynthia . . . does not
place [Sierra] at a location other than where the crime
was committed at the time the crime was committed.
[Her] testimony does not make it impossible for [Sierra]
to have been in [York] at the time the crimes were com-
mitted. Cynthia . . . only accounts for the presence of her
son up to the time that he could or would have left to
travel to York to commit the crime.
[11,12] An alibi defense requires a defendant to establish
that (1) he or she was at a place other than where the crime
was committed and (2) he or she was at such other place for
such a length of time that it was impossible to have been at
the place where and when the crime was committed. State v.
Stricklin, 310 Neb. 478, 967 N.W.2d 130 (2021). A defendant
asserting an alibi defense bears a heavy evidentiary burden.
Id. Section 29-1927 requires a defendant to provide notice to
the county attorney of the intention to rely on an alibi defense
at least 30 days prior to trial. Such notice requirement may be
waived by the presiding judge if necessary in the interests of
justice. § 29-1927.
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Cite as 31 Neb. App. 852We first note that despite the court’s order denying Sierra
the ability to present an alibi defense, Anthony was allowed
to testify. Anthony testified that he and Sierra were together
on the day of the burglary and that he was not in York that
day. Clearly, the jury did not find Anthony’s testimony placing
Sierra in another town at the time of the burglary to be cred-
ible. Further, Sierra cannot show that the addition of Cynthia’s
testimony would have created a reasonable probability that the
result of the trial would have been different. At best, Cynthia’s
testimony indicates that Sierra left their home around 11 p.m.
Mally’s testimony was that he met Sierra in York “probably”
around 11:30 p.m. These times are not necessarily in con-
flict, particularly given that the times given are approximate.
Moreover, Mally’s testimony, along with the video evidence,
establishes that the actual burglary and thefts occurred over
the course of several hours on the morning of October 15,
2017. Mally and Sierra are captured in photographs leaving
the York Walmart at approximately 7:30 a.m. Based on the
totality of the evidence, we cannot see how the addition of
Cynthia’s testimony to that of Anthony would have created
a reasonable probability that the outcome of the trial would
be different. Her testimony would not make it impossible for
Sierra to have participated in the burglary and thefts occur-
ring in York over the course of the succeeding few hours. The
jury rejected Anthony’s testimony which, if believed, would
have provided an alibi. We cannot see how Cynthia’s testi-
mony would have made Anthony’s testimony more believable.
Therefore, we agree with the district court that Sierra was not
prejudiced by the exclusion of Cynthia’s testimony or by trial
counsel’s failure to timely file a notice of alibi and witness or
exhibit list.
Failing to Effectively Communicate.
Sierra next argues that his trial counsel was ineffective for
failing to effectively communicate with him. Sierra asserts
that trial counsel met with him only twice prior to trial.
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Cite as 31 Neb. App. 852The district court noted that trial counsel also communicated
with Sierra by responding to messages he sent and that she
requested recesses during trial at least four times to confer
with Sierra. The district court held that Sierra failed to demon-
strate prejudice based on trial counsel’s level of communica-
tion with Sierra. We agree.
During the evidentiary hearing, Sierra indicated that his big-
gest grievance was that he was unable to communicate with
trial counsel regarding his alibi defense. As we previously dis-
cussed, Sierra’s proffer of additional alibi evidence produced
at the postconviction hearing is not sufficient to demonstrate
a reasonable probability that the result of the trial would have
been different. The district court’s findings that trial counsel
communicated with Sierra through messages and during his
trial are supported by the record. Sierra claims that trial coun-
sel refused to answer any of his calls. He states trial counsel
met with him only twice and that one of those meetings was
cut short when she received a phone call and left abruptly.
Unfortunately, in her deposition, trial counsel offered no spe-
cific insights into the level of contact she had with Sierra
either prior to or during trial. However, the record made at
trial counsel’s first motion to withdraw offers some insight into
communications between Sierra and herself:
Your Honor, as [Sierra] stated in his attachment on the
Inmate Request Form, he feels there’s been a breakdown
in attorney-client relationship with a lack of trust and
drastically divergent views on best strategies for defense.
I have tried to talk to him about different things. He
will not take any of my advice. I provided him with
500 pages of discovery. He said, “This is all bogus.” So
it’s pretty hard to talk to somebody about their case and
about their discovery when they refuse to listen, and it’s
kind of reached that point.
In addition, in her deposition testimony, trial counsel tes-
tified to her standard practices with respect to contact with
clients who are being held in jail: She first provided an
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Cite as 31 Neb. App. 852information sheet to them to fill out and then provided them
with copies of discovery materials received from the prosecu-
tor as soon as they were received. She made it a point to meet
with incarcerated clients within 1 week of court appointment
after she had a chance to review the initial file. In a first
meeting, she would explain that conversations with her were
confidential and that she would not divulge any client com-
munication to other people. She preferred not to talk with
an incarcerated client on the phone about anything substan-
tive. She always provided materials requested in messages
from inmates and generally provided her clients with copies
of pleadings as she received them. Her practice was to meet
with her clients during the days immediately before hearings.
In general, trial counsel stated that she had a lot of contact
with her clients and that during meetings, she was engaged
and available to them. She stated that she would file motions,
such as a motion to suppress, if a client requested it. She also
testified that she would talk to potential witnesses suggested
by her clients.
Ultimately, the postconviction trial judge, as the trier of
fact, resolves conflicts in the evidence and questions of fact,
including witness credibility and the weight to be given a
witness’ testimony. See State v. Stricklin, 310 Neb. 478, 967
N.W.2d 130 (2021). Here, the district court discounted Sierra’s
testimony and found that Sierra had not demonstrated that
trial counsel failed to effectively communicate with him. The
court went on to find that Sierra also failed to demonstrate
any prejudice in this regard. We will not disturb the district
court’s finding. While it would be preferable to have trial
counsel’s testimony directly addressing her communication
with Sierra, we find that the totality of the record cited herein
and by the district court supports the court’s finding regarding
deficient performance.
Finally, Sierra has not established how the outcome of his
trial would have been different if there had been more com-
munication between him and trial counsel. Other than his
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Cite as 31 Neb. App. 852purported alibi defense, Sierra has not shown what points of
the trial, defense strategies, or other subject matter he would
have liked to discuss with his trial counsel. Sierra has failed to
show how he was prejudiced by the amount of communication
he had with trial counsel.
Failing to File Motion to Suppress.
Sierra next argues that trial counsel was ineffective for fail-
ing to file a motion to suppress the evidence removed from his
residence in Genoa. A large number of the tools stolen from
the automotive shop were recovered from Sierra’s residence.
Law enforcement investigators conducted a warrantless search
of this residence pursuant to a search clause in Sierra’s pro-
bation order in an unrelated case. According to Sierra, it was
unclear whether the residence searched was his residence.
However, Sierra does not aver the residence is not his. At the
evidentiary hearing, Sierra admitted he was on probation at
the time of the search. At trial, Yost testified that Sierra’s pro-
bation officer provided permission for the search of Sierra’s
residence. At trial, Anthony testified that he lived with Sierra,
Cynthia, and Sierra’s girlfriend in Genoa. In her affidavit,
Cynthia states that this very group was working on the bath-
room walls in the same residence and that tools were coming
to that residence. According to Cynthia’s affidavit, Sierra told
her he would not be able to help pay his share of the bills
because he was buying the tools from the person who was
bringing them to the residence. No evidence was presented
indicating Sierra was living at a place other than the residence
that was searched.
[13] Nebraska courts have long upheld warrantless searches
pursuant to a condition of a probation order. See State v.
Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008) (citing
State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980),
and State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981)).
Trial counsel will not be found deficient for failing to file a
frivolous motion to suppress. Because the search of Sierra’s
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Cite as 31 Neb. App. 852residence was a valid search with permission granted by
Sierra’s probation officer, trial counsel was not ineffective for
not filing a motion to suppress the evidence obtained from the
search of the residence.
Failing to Object to Certain
Testimony at Trial.
Sierra’s next assignment of error is that the court erred in
finding that trial counsel was not ineffective for “not object-
ing to or making motions regarding the testimony of certain
witnesses.” Sierra’s supplemental motion for postconviction
relief complained of several items of testimony that he alleged
to be objectionable. Those items included the testimony of
Wolfe and Hanke with respect to identifications of Mally and
Sierra in the Walmart surveillance photographs from both
York and Norfolk. He also alleged ineffective assistance with
respect to trial counsel’s failure to object to Hanke’s testi-
mony regarding the location where the trailer was recovered,
the items found in the search of Sierra’s residence, the cell
phone records that provided location data as to Sierra’s phone
on October 15, 2017, and statements made by Sierra in a
“proffer” interview. On appeal, however, Sierra argues only
that the district court erred in regard to finding no prejudice
with regard to trial counsel’s failure to object to the identifica-
tion testimony of Wolfe and Hanke.
We question whether Sierra’s referral to “the testimony of
certain witnesses” is sufficiently assigned as error. See State v.
Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). However, assum-
ing without deciding that this assignment of error has been suf-
ficiently stated, we will consider Sierra’s argument regarding
the identification testimony of Wolfe and Hanke.
Sierra argues that trial counsel was ineffective for fail-
ing to object to the identification testimony of Sierra by
Wolfe and Hanke. Wolfe identified Sierra as being one of
the persons depicted in the surveillance photographs from
the York Walmart. Hanke identified Sierra as being one of
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Cite as 31 Neb. App. 852the individuals seen in surveillance photographs taken in the
Norfolk Walmart. Sierra argues that this testimony was “at
least objectionable, and lacked the proper foundation and
hearsay protections which otherwise dissuade such evidence
from being offered.” Brief for appellant at 15. The district
court held that Sierra did not establish prejudice from this tes-
timony, because his codefendant, Mally, also identified Sierra
in the photographs.
While trial counsel did not object to Wolfe’s testimony, she
did object to the admission of the photographs. The photo-
graphs were received into evidence over trial counsel’s objec-
tion. She also exposed on cross-examination that Wolfe had
no independent basis for her identification of Sierra. After
hearing Wolfe’s full testimony, including that given under
cross-examination, the jurors were provided the opportunity
to review the photographs for themselves and make their
own judgments regarding the identification of the individ­
uals pictured.
Likewise, trial counsel did not initially object to Hanke’s
testimony regarding the identification of Sierra in the pho-
tographs. We note, as did the district court, that Hanke’s
testimony was not received as direct identification evidence.
Rather than offering the identification testimony for the truth
of the matter, Hanke was explaining the process law enforce-
ment went through to develop Sierra as a suspect, which ulti-
mately led officers to conduct a search of Sierra’s cell phone
records and his residence, where many of the tools stolen from
the automotive shop were recovered. As Hanke’s explanation
continued, trial counsel did make a hearsay objection that
was sustained.
In any event, the identification testimony of Wolfe and
Hanke was cumulative given the testimony provided by
Mally. As a codefendant, Mally provided a full timeline of
the events he and Sierra participated in throughout the night
of October 14, 2017, and the morning of October 15. As
part of that testimony, Mally explained that after stealing the
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Cite as 31 Neb. App. 852tools from the automotive shop, he and Sierra went to the
York Walmart to get a change of clothes. Mally positively
identified himself and Sierra in the surveillance photographs.
He also identified himself in the surveillance photographs
of the Norfolk Walmart where an attempt was made to use a
credit card stolen from the automotive shop. Clearly, Mally’s
testimony was also sufficient for admission of the photo-
graphs, which are remarkably clear, into evidence. Given
Mally’s testimony and the proper admission of the photo-
graphs, there is no reasonable probability that the outcome
of Sierra’s case would have been different had trial counsel
objected to Wolfe’s and Hanke’s testimony. Therefore, Sierra
has not established that his trial counsel was ineffective for
failing to object to the identification testimony.
Failing to Request Cautionary
Jury Instruction.
[14] Sierra next argues that trial counsel was ineffective
for failing to request a cautionary jury instruction regarding
accomplice testimony. We note that Sierra produced no evi-
dence of what the cautionary instruction should have been at
the evidentiary hearing. We further note that on appeal, Sierra’s
argument is simply a restatement of his assignment of error
and an assertion that he was prejudiced. No further argument
is given. We have long held that an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error to be considered by an appellate court.
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Therefore,
we will not address this assignment of error.
Failing to Maintain Her Law License.
Finally, Sierra assigns and argues that trial counsel was
ineffective for failing to maintain her law license. In support
of this assignment, Sierra cites to the meeting between trial
counsel and himself at the jail that was cut short when she
received a personal phone call. Sierra argues that “it can be
implied that the phone call was such that the investigation
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Cite as 31 Neb. App. 852and/or criminal charges played a role in her leaving” and
her ongoing criminal investigation affected her overall abil-
ity to represent him in this case. Brief for appellant at 16-17.
We disagree.
There is no evidence that trial counsel was not licensed to
practice law at the time she was representing Sierra. In fact,
trial counsel did not surrender her license until August 10,
2020, well after her representation of Sierra. See State ex rel.
Counsel for Dis. v. Waldron, 307 Neb. 343, 948 N.W.2d 795(2020). The circumstances relating to trial counsel’s legal
troubles and eventual forfeiture of her law license were unre-
lated to Sierra’s case. There is absolutely no evidence that
the phone call trial counsel received at the jail involved her
criminal investigation. We will not make such an assumption.
No other evidence was provided showing that trial counsel
was unable to adequately represent Sierra. In fact, after the
conclusion of the jury trial when trial counsel was formally
charged with a felony, she withdrew as Sierra’s attorney and
he received new counsel for sentencing. Sierra has not shown
that trial counsel was ineffective for failing to maintain her
law license after representing him.
CONCLUSION
Upon our review of the record, we hold that the district
court was not clearly erroneous in overruling Sierra’s supple-
mental motion for postconviction relief. The evidence pre-
sented at the evidentiary hearing demonstrates as to each of
Sierra’s allegations of ineffective assistance of counsel either
that he did not demonstrate trial counsel’s actions were defi-
cient or, if deficiency was proved, that he was not prejudiced
thereby. For the reasons set forth above, we affirm the order
of the district court denying Sierra’s motion for postconvic-
tion relief.
Affirmed.