State v. Weathers , 304 Neb. 402 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/31/2020 01:06 AM CST
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
State of Nebraska, appellee, v.
Brandon J. Weathers, appellant.
___ N.W.2d ___
Filed November 8, 2019. No. S-18-665.
1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
2. Effectiveness of Counsel: Appeal and Error. An appellate court deter-
mines as a matter of law whether the record conclusively shows that
(1) a defense counsel’s performance was deficient or (2) a defendant
was or was not prejudiced by a defense counsel’s alleged deficient
performance.
3. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
4. Right to Counsel: Appeal and Error. A trial court’s decision to sus-
tain or overrule a defendant’s motion to dismiss appointed counsel and
appoint substitute counsel is reviewed for an abuse of discretion.
5. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
6. 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.
The record is sufficient if it establishes either that trial counsel’s per­
formance was not deficient, that the appellant will not be able to estab-
lish prejudice, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy.
7. 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 per­
formance actually prejudiced the defendant’s defense.
8. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
9. ____: ____. 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.
10. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
the ineffective assistance of counsel test under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be
addressed in either order, and the entire ineffectiveness analysis should
be viewed with a strong presumption that counsel’s actions were
reasonable.
12. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
tive assistance of counsel claim is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
13. ____: ____: ____. General allegations that trial counsel performed defi-
ciently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal.
14. Effectiveness of Counsel: Records: Appeal and Error. Appellate
courts have generally reached ineffective assistance of counsel claims
on direct appeal only in those instances where it was clear from the
record that such claims were without merit or in the rare case where
trial counsel’s error was so egregious and resulted in such a high level
of prejudice that no tactic or strategy could overcome the effect of the
error, which effect was a fundamentally unfair trial.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
15. ____: ____: ____. An ineffective assistance of counsel claim made on
direct appeal can be found to be without merit if the record establishes
that trial counsel’s performance was not deficient or that the appellant
could not establish prejudice.
16. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. In the case of an argument presented for the purpose of avoiding
procedural bar to a future postconviction proceeding, appellate counsel
must present a claim with enough particularity for (1) an appellate court
to make a determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition for post-
conviction relief to be able to recognize whether the claim was brought
before the appellate court.
17. Claims. A claim insufficiently stated is no different from a claim not
stated at all.
18. DNA Testing: Convictions. The requirement for a convicted felon to
provide a DNA sample pursuant to Neb. Rev. Stat. § 29-4106(1)(a)
(Reissue 2016) exists once the convicted felon begins serving his or
her sentence.
19. ____: ____. Neb. Rev. Stat. § 29-4106 (Reissue 2016) inherently autho-
rizes the use of reasonable force to collect a DNA sample from a con-
victed felon.
20. Criminal Law: Trial: Evidence. Where objects pass through several
hands before being produced in court, it is necessary to establish a com-
plete chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing, the object
may not be introduced in evidence.
21. ____: ____: ____. Objects which relate to or explain the issues or
form a part of a transaction are admissible in evidence only when duly
identified and shown to be in substantially the same condition as at
the time in issue. It must be shown to the satisfaction of the trial court
that no substantial change has taken place in an exhibit so as to render
it misleading.
22. Evidence. Important in determining the chain of custody are the nature
of the evidence, the circumstances surrounding its preservation and cus-
tody, and the likelihood of intermeddlers tampering with the object.
23. Trial: Evidence. Whether there is sufficient foundation to admit physi-
cal evidence is determined on a case-by-case basis.
24. Right to Counsel. When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to the court
for the removal of counsel, his or her only alternative is to proceed pro
se if he or she is competent to do so.
25. ____. An indigent defendant’s right to have counsel does not give the
defendant the right to choose his or her own counsel.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
26. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not
enough to secure the appointment of substitute counsel.
27. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed coun-
sel must remain with an indigent accused unless one of the following
conditions is met: (1) The accused knowingly, voluntarily, and intel-
ligently waives the right to counsel and chooses to proceed pro se; (2)
appointed counsel is incompetent, in which case new counsel is to be
appointed; or (3) the accused chooses to retain private counsel.
28. Right to Counsel. Once a defendant requesting substitute counsel has
raised a seemingly substantial complaint about counsel, the court has a
duty to thoroughly inquire into the complaint.
29. Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. When an appellate court finds, on direct appeal, that the record
is not sufficient to resolve a claim of ineffective assistance, it should
not be misunderstood as a finding that the claim will necessarily
require an evidentiary hearing if raised in a motion for postconviction
relief, because that determination is governed by an entirely differ-
ent standard.
30. ____: ____: ____: ____. Just because an appellate court finds the
record on direct appeal is insufficient to resolve a claim of ineffective
assist­ance, it does not mean that a postconviction court will necessarily
be precluded from later finding the existing record affirmatively refutes
the same claim.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Brandon J. Weathers appeals his convictions in the district
court for Douglas County for four counts of first degree sexual
assault. Weathers, who has new counsel on direct appeal,
claims that his trial counsel provided ineffective assistance in
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
various respects, including in failing to adequately challenge
the admission of DNA evidence that linked him to the assaults
and that he claims was obtained in violation of his constitu-
tional rights and in violation of statutory limitations on the use
of DNA samples. He further claims, independent of his ineffec-
tive assistance of counsel claims, that admission of the DNA
evidence was plain error. Weathers also claims that the district
court erred when it refused to remove his counsel and appoint
new counsel after he asserted that his counsel had a conflict
of interest and had performed deficiently in other respects. We
affirm Weathers’ convictions and sentences.
STATEMENT OF FACTS
In 2014, Weathers was being investigated for sexual assault
of a child in a case unrelated to the charges in the present case.
Police obtained a DNA sample from Weathers in connection
with the investigation of the 2014 assaults. Following a trial in
December 2015, Weathers was convicted of two counts of first
degree sexual assault of a child based on the 2014 assaults,
and the district court sentenced Weathers to two consecutive
terms of imprisonment for 50 to 80 years. The Nebraska Court
of Appeals affirmed Weathers’ convictions and sentences for
the 2014 assaults. State v. Weathers, No. A-16-305, 2017 WL
24777 (Neb. App. Jan. 3, 2017) (selected for posting to court
website). As will be discussed below, Weathers asserts that the
DNA sample collected in connection with the investigation of
the 2014 assaults was used to connect him to the 2002 and
2004 assaults that are the subject of the present case.
As part of Weathers’ sentencing for the 2014 assaults, pursu-
ant to Neb. Rev. Stat. § 29-4106 (Reissue 2016), the district
court ordered Weathers to submit a DNA sample for use in the
State DNA Sample Bank. On June 5, 2017, the district court
entered an order in response to the State’s “Motion to Enforce
Order.” The court stated that employees of the Department of
Correctional Services had twice attempted to obtain a DNA
sample from Weathers but that he refused to comply voluntarily.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
The court further stated that despite Weathers’ refusal, he was
still required to submit a DNA sample. The court then cited
authority to the effect that it had “‘the power to enforce [its
decision] by making such orders as are necessary to carry its
judgment or decree into effect’” (quoting Evans v. Frakes,
293 Neb. 253, 259, 876 N.W.2d 626, 632 (2016)) and that
it had “authority to do such things as are reasonably neces-
sary for the proper administration of justice” (citing State v.
Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994)). Based on
such authority and on its finding that the law and its sentencing
order required Weathers to submit to the collection of a DNA
sample, the court ordered that “employees of the Department
of Correctional Services shall forthwith collect a DNA sample
from [Weathers] via buccal swab” and that “such employees
of the Department are hereby authorized to use such force as
is reasonably necessary to obtain or collect a DNA sample
from [Weathers].”
Under the authority of the June 5, 2017, order, a DNA
sample was collected from Weathers; the DNA sample was
then provided to the Nebraska State Patrol DNA identification
laboratory and entered into a state DNA database. On June 12,
Det. Christy Jaworski received a letter from the DNA database
“indicating that . . . Weathers was matched to four outstanding
sexual assaults” that had occurred in 2002 and 2004. Based
on protocol, that same day, Jaworski obtained a court order
to collect four additional DNA samples from Weathers to
be tested against the DNA evidence that had been collected
in each of the four outstanding cases. After the additional
samples were collected and tested, the results showed that
Weathers’ DNA profile matched that of the assailant in the
four sexual assaults from 2002 and 2004. The results of the
testing of the DNA samples obtained pursuant to the June 12
order would ultimately be admitted into evidence at the trial
in this case.
On August 9, 2017, the State filed an information charging
Weathers with four counts of first degree sexual assault related
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
to the 2002 and 2004 incidents. Prior to trial, Weathers filed a
motion to suppress evidence obtained as a result of the DNA
samples collected in June 2017. He asserted that the samples
were seized and collected from him in violation of his consti-
tutional rights and in violation of statutes governing the collec-
tion and use of DNA samples.
At a hearing on the motion to suppress, Jaworski testified
regarding her investigation of the present case and how she
went about obtaining the DNA samples that were used to tie
Weathers to the 2002 and 2004 assaults. The court received
into evidence the February 17, 2016, sentencing order related
to the 2014 assaults; the June 5, 2017, order authorizing cor-
rections employees to collect a DNA sample using reasonably
necessary force; and the June 12, 2017, court order requiring
collection of the DNA samples used in this case.
On cross-examination by Weathers at the suppression hear-
ing, Jaworski testified that it was her understanding that in
2014, when Weathers was being investigated for the 2014
assaults and a DNA sample had been collected from Weathers
in connection with that investigation and submitted to a labo-
ratory for testing, a laboratory technician “recognized a very
rare DNA allele that . . . Weathers has.” Jaworski was notified
in 2014 that “Weathers was a match to the serial rape case
[from 2002 and 2004] because they had been aware of this rare
allele.” Jaworski further testified on cross-examination that in
2014, she had asked Weathers to give his consent to provide a
DNA sample for use in the investigation of the sexual assaults
from 2002 and 2004 but he had declined. She testified that in
2014, she did not further pursue a DNA sample related to the
earlier assaults, because “the decision was made by the County
Attorney’s Office to try [the 2014 assaults] case first and
separately.” She testified, however, that “our department did
compare the [un]known suspect DNA in the four outstanding
sexual assaults against . . . Weathers’ buccal swab [in the 2014
case] and it was — at that time it was a match” and that “that’s
how we knew he was identified.”
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
On redirect, Jaworski testified that the DNA sample given
by Weathers in connection with the investigation in 2014
was not and could not have been entered into the state DNA
database. She testified, however, that the presence of the rare
allele in the DNA evidence from the earlier sexual assaults
had been “widely known” among law enforcement personnel
since 2002.
At the end of the suppression hearing, Weathers generally
argued that the DNA sample collected in connection with the
investigation of the 2014 assaults was improperly compared to
the DNA evidence from the 2002 and 2004 assaults, because
at that time, there was no probable cause to link Weathers to
the 2002 and 2004 assaults. He argued that the comparison to
the 2002 and 2004 DNA evidence violated his constitutional
rights and that it violated Neb. Rev. Stat. § 29-4126 (Reissue
2016), which he argued prohibited use of a DNA sample with-
out probable cause as to the particular crime being investi-
gated. He argued that the same limitations applied to the DNA
samples taken in 2017 and that the DNA evidence collected in
2017 was “fruit of the poisonous tree” because it was obtained
as a result of the unconstitutional comparison of the 2014
investigative DNA sample to the DNA evidence in the 2002
and 2004 assaults. He further argued that, independently of
what occurred in 2014, the State failed to show that the 2017
DNA samples were collected in compliance with the DNA
Identification Information Act, Neb. Rev. Stat. §§ 29-4101 to
29-4115.01 (Reissue 2016 & Cum. Supp. 2018).
The district court overruled Weathers’ motion to suppress
the DNA evidence. The court first addressed Weathers’ argu-
ments regarding the use of the DNA sample collected in 2014
as follows:
Much of [Weathers’] motion and his argument revolves
around the DNA collection from the unrelated 2014 inves-
tigation for first-degree sexual assault of a child, but there
was no evidence adduced during the hearing to support
a finding that the 2014 DNA sample was ever submitted
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
for comparison in this current case. Thus, the Court finds
the 2014 DNA collection and investigation irrelevant for
purposes of this motion . . . .
The court focused instead on the two collections of DNA
samples that occurred in June 2017.
Regarding the DNA sample collected pursuant to the June 5,
2017, order, the court determined that collection of the DNA
sample was authorized by § 29-4106 because Weathers was a
convicted felon. The court further determined that collection
of a DNA sample from a convicted felon pursuant to a statute
such as § 29-4106 did not violate the Fourth Amendment. The
court noted that the subsequent submission of the DNA sample
into the state DNA database was “anticipated under [the] DNA
Identification Information Act.”
Regarding the DNA samples collected pursuant to the June
12, 2017, order, the court determined that Jaworski’s affidavit
provided probable cause for the order, based on the notifica-
tion Jaworski received indicating that submission of the DNA
sample obtained based on the June 5 order to the state DNA
database showed that Weathers’ DNA profile “matched the
DNA profile of the previously unknown suspect from four
sexual assaults that occurred in 2002-2004.” The court deter-
mined that because it was supported by probable cause, the
June 12 order did not violate the Fourth Amendment, nor did
it violate Neb. Rev. Stat. § 29-3303 (Reissue 2016), which
requires probable cause for an order to collect identifying
physical characteristics, or § 29-4126, which provides that no
DNA sample may be obtained in connection with an inves-
tigation of a crime without probable cause, a court order, or
voluntary consent.
Having concluded that the State had met its burden to
establish that the Fourth Amendment had not been violated,
the court briefly addressed, and rejected, Weathers’ other argu-
ments. The court rejected Weathers’ argument that use of the
2014 DNA sample in connection with the 2002 and 2004
assaults was not supported by probable cause. The court
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
repeated its determination that there was no evidence that the
2014 investigative DNA sample “was ever submitted to be
tested against the DNA collected from the 2002-2004 sexual
assaults or put into [the state DNA database].” The court stated
that, instead, “law enforcement waited to do an investigatory
comparison of [Weathers’] DNA to the 2002-2004 sexual
assault DNA evidence until [2017, when] there was a match
to [Weathers’] DNA collected under the DNA Identification
Information Act.”
The court next rejected Weathers’ argument that collection of
the DNA samples in June 2017 violated the DNA Identification
Information Act because the act requires that a medical or cor-
rections professional, rather than a law enforcement officer,
collect the DNA from a defendant. The court stated that the
evidence presented at the suppression hearing showed only that
Jaworski did not personally collect the DNA samples and that
she did not know specifically who had collected the samples.
The court determined that Weathers had not provided evidence
to support his claim of a violation of the act, and the court
further determined that even if there was a violation, Weathers
cited no authority to the effect that such a violation would
require suppression of the DNA evidence. Having rejected
these and Weathers’ other arguments, the court overruled the
motion to suppress DNA evidence.
A few days prior to the date trial was scheduled to begin,
Weathers filed a pro se motion to dismiss his current counsel
and appoint new counsel. He alleged, inter alia, that counsel
had proved to be ineffective or incompetent because counsel
had missed a pretrial conference and had failed to meet with
Weathers prior to trial to discuss the case or to review dis-
covery. He further alleged that counsel, who worked for the
public defender’s office, had a conflict of interest, because
in a postconviction action in a separate criminal proceeding,
Weathers was raising ineffective assistance claims involving
a different attorney who also worked for the public defender’s
office. Weathers requested that new counsel be appointed and
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STATE v. WEATHERS
Cite as 304 Neb. 402
that a continuance be granted to allow new counsel to prepare
for trial.
The day after Weathers filed the motion, the court held
a hearing on it and other motions. The court asked whether
Weathers had any reason other than those set forth in his
motion why counsel should be dismissed, and Weathers replied
that there was not. The court then stated that the reasons set
forth by Weathers constituted mere dissatisfaction with coun-
sel, which would not be sufficient to justify removal of counsel
absent a showing of good cause. The court found that Weathers
had not shown good cause for removal of his counsel, and the
court then told Weathers that if it denied his request, Weathers’
only options would be to continue with his current counsel or
represent himself. Weathers stated that he would stay with his
appointed counsel.
At trial, the State presented witnesses, including the four
victims of the assaults in 2002 and 2004. The four victims
were not able to identify the person who committed the
assaults, because he had taken steps to conceal his identity,
but each of them gave descriptions of the perpetrator’s gen-
eral appearance and size that were similar to one another and
that were similar to Weathers’ general appearance and size.
The four victims each gave descriptions of how the assaults
were carried out, which included details that were similar to
the other victims’ accounts. The State also presented evidence
regarding the testing of the DNA samples that were obtained
from Weathers in 2017, which testing showed that Weathers’
DNA profile matched that of DNA evidence collected in the
investigations of the 2002 and 2004 assaults. Weathers’ coun-
sel did not renew the motion to suppress such evidence and
did not object to the admission on the bases presented in the
motion to suppress or on the basis that a chain of custody was
lacking for the DNA evidence collected in the investigation of
the assaults.
The jury found Weathers guilty of four counts of first degree
sexual assault, and the court accepted the verdicts. The court
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. WEATHERS
Cite as 304 Neb. 402
thereafter sentenced Weathers to imprisonment for 40 to 50
years for each count and ordered the sentences to be served
consecutively.
Weathers appeals his convictions.
ASSIGNMENTS OF ERROR
Weathers, who has new counsel on appeal, claims that his
trial counsel provided ineffective assistance in certain respects.
The first few claims of ineffective assistance of counsel relate
to the DNA evidence. Weathers claims that counsel provided
ineffective assistance of counsel when counsel at trial failed
to object to admission of the DNA evidence and renew the
motion to suppress on the bases that (1) the comparison of
the 2014 DNA sample to the DNA evidence in the 2002 and
2004 assaults violated § 29-4126 and Weathers’ constitutional
rights and (2) the June 5, 2017, order authorizing corrections
employees to obtain a DNA sample from Weathers using force
violated his constitutional rights. He further claims that apart
from the claims of ineffective assistance of counsel, it was
plain error for the court to admit the DNA evidence, because
it was obtained as the result of violations of his constitu-
tional rights.
Weathers also claims that counsel provided ineffective
assist­ance by failing to object to the DNA evidence on the
basis that the State failed to establish a chain of custody for
the DNA evidence collected in the investigations of three of
the four assaults.
Weathers further claims that the district court erred when it
refused to remove his trial counsel and appoint new counsel on
the basis of counsel’s alleged ineffective assistance in pretrial
proceedings and trial preparation and on the basis of an alleged
conflict of interest. Weathers also claims, independently of the
claim related to the court’s ruling on the motion to remove
counsel, that trial counsel provided ineffective assistance of
counsel as alleged in the motion—i.e., in failing to attend a
pretrial conference, in failing to meet with Weathers prior to
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STATE v. WEATHERS
Cite as 304 Neb. 402
trial to discuss the case or to review discovery, and in repre-
senting Weathers despite a conflict of interest.
Finally, Weathers makes two additional claims of ineffective
assistance of trial counsel: (1) that counsel failed to move for a
continuance of the trial on the bases that counsel had not ade-
quately prepared for trial and that the State had been granted
a motion to endorse an additional witness only 3 days prior to
the start of the trial and (2) that counsel failed to adequately
investigate and present several aspects of his defense.
STANDARDS OF REVIEW
[1,2] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a ques-
tion of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement. State v. Hood, 301 Neb. 207, 917
N.W.2d 880 (2018). We determine as a matter of law whether
the record conclusively shows that (1) a defense counsel’s
performance was deficient or (2) a defendant was or was not
prejudiced by a defense counsel’s alleged deficient perform­
ance. Id.
[3] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. Id.
[4] A trial court’s decision to sustain or overrule a defend­
ant’s motion to dismiss appointed counsel and appoint substi-
tute counsel is reviewed for an abuse of discretion. See State v.
Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). See, also, State
v. McPhail, 228 Neb. 117, 421 N.W.2d 433 (1988).
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STATE v. WEATHERS
Cite as 304 Neb. 402
ANALYSIS
Ineffective Assistance Claims.
Weathers, who has new counsel on appeal, makes several
claims on direct appeal that his trial counsel provided ineffec-
tive assistance in various respects. Before specifically address-
ing those and his other claims, we set forth standards appli-
cable to claims of ineffective assistance of counsel raised on
direct appeal.
[5,6] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. State v. Munoz, 303
Neb. 69, 927 N.W.2d 25 (2019). The fact that an ineffective
assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. Id. The determining
factor is whether the record is sufficient to adequately review
the question. Id. The record is sufficient if it establishes either
that trial counsel’s performance was not deficient, that the
appellant will not be able to establish prejudice, or that trial
counsel’s actions could not be justified as a part of any plau-
sible trial strategy. Id.
[7-11] 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. State v. Munoz, supra. To show that counsel’s per-
formance was deficient, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. 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. Id. A reasonable probability
is a probability sufficient to undermine confidence in the
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STATE v. WEATHERS
Cite as 304 Neb. 402
outcome. Id. The two prongs of this test may be addressed in
either order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel’s actions were
reasonable. State v. Manjikian, 303 Neb. 100, 927 N.W.2d
48 (2019).
[12,13] When an ineffective assistance of counsel claim is
raised in a direct appeal, the appellant is not required to allege
prejudice; however, an appellant must make specific allega-
tions of the conduct that he or she claims constitutes deficient
performance by trial counsel. State v. Sundquist, 301 Neb.
1006, 921 N.W.2d 131 (2019). General allegations that trial
counsel performed deficiently or that trial counsel was ineffec-
tive are insufficient to raise an ineffective assistance claim on
direct appeal. Id.
[14-17] Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims
were without merit or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect
of the error, which effect was a fundamentally unfair trial.
Id. An ineffective assistance of counsel claim made on direct
appeal can be found to be without merit if the record estab-
lishes that trial counsel’s performance was not deficient or that
the appellant could not establish prejudice. Id. In the case of
an argument presented for the purpose of avoiding procedural
bar to a future postconviction proceeding, appellate counsel
must present a claim with enough particularity for (1) an
appellate court to make a determination of whether the claim
can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate
court. State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
A claim insufficiently stated is no different from a claim not
stated at all. Id.
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Failure to Object to DNA Evidence and Renew
Motion to Suppress Was Not Ineffective
Assistance of Counsel, and It Was Not
Plain Error to Admit Such Evidence.
Weathers’ first three assignments of error relate to the admis-
sion of the DNA evidence that tied Weathers to the 2002 and
2004 sexual assaults. He claims that trial counsel provided
ineffective assistance when counsel failed to preserve chal-
lenges to admission of the DNA evidence for appeal by failing
to renew his motion to suppress and failing to object to the
admission of the evidence at trial. He further claims that in
light of the alleged constitutional violations in the collection
of the DNA evidence, it was plain error for the district court to
admit the evidence. We determine that the DNA evidence was
admissible and should not have been suppressed. We therefore
conclude that Weathers could not show ineffective assistance
of trial counsel in this respect and that the district court did not
commit plain error when it admitted the evidence. Weathers’
challenges to the admission of the DNA evidence are with-
out merit.
The DNA evidence admitted at trial consisted of the results
of the testing of the DNA samples that were collected from
Weathers pursuant to the June 12, 2017, order. In its order
overruling Weathers’ motion to suppress, the district court
concluded that the order was supported by probable cause
based on the notification investigators received from the state
DNA database indicating that Weathers’ DNA profile matched
the DNA profile of the previously unknown suspect from
the four sexual assaults that are the subject of the charges
in this case. On appeal, Weathers does not argue that the
match of his DNA profile to the DNA profiles in the state
DNA database did not provide probable cause to support
the June 12 order to collect DNA samples for purposes of
investigating the 2002 and 2004 assaults. Instead, he argues
that two prior DNA collections violated his constitutional
and statutory rights and that therefore the DNA samples
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collected pursuant to the June 12, 2017, order were “fruit of
the poisonous tree.”
Weathers argues that the DNA evidence should have been
suppressed because (1) the comparison of the 2014 DNA sam-
ple to the DNA evidence in the 2002 and 2004 assaults violated
§ 29-4126 and Weathers’ constitutional rights and (2) the June
5, 2017, order authorizing corrections employees to obtain a
DNA sample from Weathers using force violated his constitu-
tional rights. As discussed below, we determine that the June
12 order was not dependent on the 2014 DNA sample and that
therefore even if the collection or use of the 2014 DNA sample
were improper, evidence obtained pursuant to the June 12 order
did not need to be suppressed. We further determine that while
the June 12 order was dependent on the DNA sample collected
pursuant to the June 5 order, the collection of Weathers’ DNA
sample under the authority of the June 5 order did not violate
Weathers’ Fourth Amendment rights.
Regarding the 2014 DNA sample, Weathers argues that
the collection of the sample was in violation of his Fourth
Amendment rights, because in the present case, the State did
not provide “evidence that police had a court order allowing
police to take Weathers’ DNA in 2014, nor did the State intro-
duce evidence that an exception to the warrant requirement
applied.” Brief for appellant at 24. Weathers further argues
that once the DNA sample had been collected, it was improper
to compare the DNA sample collected in connection with the
2014 assaults to the DNA evidence in the unsolved cases from
2002 and 2004. He argues that such comparison violated his
Fourth Amendment rights and that it also violated § 29-4126.
Weathers argues that § 29-4126(1) requires “probable cause,
a court order, or voluntary consent” related to the investiga-
tion of a particular crime and that even if the collection of the
DNA sample in 2014 was justified as to the investigation of
the 2014 assaults, investigators did not have probable cause,
a court order, or Weathers’ consent to collect or use the DNA
sample for the investigation of the 2002 and 2004 assaults. He
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argues that “police simply chose to violate the law by compar-
ing Weathers’ 2014 sample, taken as part of an unrelated inves-
tigation, to the unknown suspect sample from the 2002-2004
sexual assaults.” Brief for appellant at 23.
In its order overruling the motion to suppress, with regard to
the 2014 DNA sample, the district court found that “there was
no evidence adduced during the hearing to support a finding
that the 2014 DNA sample was ever submitted for comparison
in this current case.” The district court determined that the
2014 DNA sample was “irrelevant” to the motion to suppress
and overruled the motion. The State in its brief on appeal
acknowledges that there was evidence in the record that “there
was some sort of comparison of Weathers’ DNA sample in
2014, though the extent of that comparison is unclear.” Brief
for appellee at 16. The State takes the position that even if the
DNA sample collected in connection with the 2014 assaults
was compared to the DNA evidence in the unsolved cases from
2002 and 2004, it does not follow that the State violated either
the Fourth Amendment or § 29-4126. The State contends that
once the DNA sample from the 2014 assaults was lawfully in
its possession, neither the Fourth Amendment nor § 29-4126
restricted its use of that sample.
The evidence of a comparison included Jaworski’s testimony
at the suppression hearing that “our department did compare
the [un]known suspect DNA in the four outstanding sexual
assaults against . . . Weathers’ buccal swab [in the 2014 case]
and it was — at that time it was a match” and that “that’s how
we knew he was identified.” However, Jaworski did not testify
that she had personally made such a comparison and she could
not testify as to exactly what sort of comparison was made in
2014 to the evidence from the 2002 and 2004 cases.
Instead, during the trial, Weathers made an offer of proof of
testimony by Kaye Shepard, a laboratory DNA analyst who in
2014 had analyzed Weathers’ DNA sample in connection with
the investigation of the 2014 assaults. Shepard testified that
she noted Weathers’ DNA contained “a very rare allele that
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we hadn’t seen for many, many years in the laboratory” and
that she remembered seeing the rare allele in a sample she had
analyzed in 2004. Shepard denied that the 2014 DNA sample
was put into a DNA system for a comparison, and she resisted
testifying that she compared Weathers’ entire DNA profile to a
suspect DNA profile, testifying instead that “I remember just
the [rare allele] standing out.” Shepard further acknowledged
that in 2014, she “may have called somebody at the Omaha
Police Department to tell them that we had” a DNA sample
with the rare allele, “which they know about from previ-
ous years.”
Jaworski testified that after being informed in 2014 by the
laboratory that “Weathers was a match to the serial rape case
because they had been aware of this rare allele,” she had asked
Weathers to give his consent to provide a DNA sample in con-
nection with the earlier serial rapes, but that after he declined
his consent, she did not further pursue a DNA sample related
to the earlier assaults, because “the decision was made by the
County Attorney’s Office to try [the 2014 assaults] case first
and separately.” Jaworski further testified that the DNA sample
given by Weathers in 2014 was not and could not have been
entered into the state DNA database and that the presence of
the rare allele in the DNA evidence from the earlier sexual
assaults had been “widely known” among law enforcement
personnel since 2002.
Therefore, the evidence in this case does not indicate a
“comparison” of the 2014 DNA sample to the evidence from
the 2002 and 2004 assaults, at least in the sense of a com-
parison of Weathers’ full DNA profile or the entry of his DNA
profile into a database. Instead, it indicates that a laboratory
technician noted the presence of a rare allele which might tie
Weathers to the earlier cases and that she had reported her
observation to investigators. Jaworski sought Weathers’ con-
sent to give a DNA sample to use in the investigation of the
earlier cases. However, after he refused consent, she did not
further pursue obtaining a DNA sample or obtaining evidence
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to tie Weathers to the prior assaults. Instead, it appears that
investigators determined, after consultation with the county
attorney, that the possible connection of Weathers to those prior
assaults would not be pursued at that time and that instead
they would wait to see whether Weathers was convicted of the
2014 assaults. Therefore, it appears the State made a strategic
decision to wait and see whether Weathers would become a
convicted felon, at which time his DNA would be collected
and put into the state DNA database pursuant to the DNA
Identification Information Act.
Even if we were to assume that Shepard’s observation of the
rare allele constituted a “comparison” of the 2014 DNA sample
to the evidence in the 2002 and 2004 cases and even if we were
to assume this comparison violated the Fourth Amendment
or § 29-4126, we agree with the district court’s determina-
tion that the collection and use of the 2014 DNA sample are
not relevant to the suppression issues in this case. The record
indicates that the DNA sample collected from Weathers in the
2014 investigation did not directly lead to the DNA evidence
that was offered and admitted at his trial in the present case
involving the 2002 and 2004 assaults. Instead, the evidence
admitted in this case directly resulted from the DNA samples
collected pursuant to the June 12, 2017, order, which in turn
was supported by probable cause based on evidence generated
by the collection of the DNA sample pursuant to the June 5,
2017, order. As we discuss below, the collection of the DNA
sample pursuant to the June 5 order was properly based on
the authority of § 29-4106 and Weathers’ status as a convicted
felon. Evidence generated from the DNA sample collected in
2014 was not directly used to support either of the collections
of DNA samples in 2017. Therefore, even if the collection and
the subsequent use of the DNA sample in 2014 were improper,
the DNA evidence admitted in this case was collected in 2017
and was not dependent on the 2014 DNA sample, and therefore
the DNA evidence at issue in the current appeal would not
have been suppressed based on any error that occurred in 2014.
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We therefore reject Weathers’ argument that trial counsel was
ineffective for failing to preserve a challenge to admission of
the DNA evidence based on alleged errors in the collection or
use of the 2014 DNA sample.
As noted above, the DNA evidence admitted in this case
was the product of the DNA samples collected pursuant to the
June 12, 2017, order and the probable cause which supported
that order was based on evidence that resulted from the DNA
sample collected pursuant to the June 5, 2017, order. Therefore,
error in the collection of the DNA sample pursuant to the June
5 order could have required suppression of the DNA evidence
in this case. However, we determine that the June 5 collection
was proper based on § 29-4106.
Weathers argues that the district court did not have authority
to issue the June 5, 2017, order and that therefore, the col-
lection of a DNA sample pursuant to that order violated his
Fourth Amendment rights. However, even if the district court
had not issued the June 5 order, the State was authorized by
§ 29-4106 to collect the DNA sample and to use reasonable
force to do so.
Section 29-4106 provides, in relevant part, as follows:
(1) A person who is convicted of a felony offense or
other specified offense on or after July 15, 2010, who
does not have a DNA sample available for use in the State
DNA Sample Bank, shall, at his or her own expense, have
a DNA sample collected:
(a) Upon intake to a prison, jail, or other detention
facility or institution to which such person is sentenced.
If the person is already confined at the time of sentenc-
ing, the person shall have a DNA sample collected imme-
diately after the sentencing. Such DNA sample shall be
collected at the place of incarceration or confinement.
Such person shall not be released unless and until a DNA
sample has been collected[.]
There is no dispute that Weathers was convicted of a felony
offense in connection with the 2014 assaults. Therefore, under
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§ 29-4106, Weathers was required to have a DNA sample col-
lected for use in the State DNA Sample Bank.
Weathers argues, however, that he could not have been
forced to supply a DNA sample on June 5, 2017. He notes
the last sentence of § 29-4106(1)(a), which provides that a
convicted felon “shall not be released unless and until a DNA
sample has been collected,” and he argues that this sentence
provides the exclusive mechanism authorized to enforce the
requirement for a convicted felon to provide a DNA sample.
That is, the only way a convicted felon may be forced to
provide a sample is at the completion of his or her sentence,
at which time the State may coerce him or her to provide a
sample by refusing to release him or her until the sample is
provided. However, we do no read this sentence as providing
an exclusive mechanism for enforcement or as prohibiting the
State from using other means to obtain the DNA sample that a
convicted felon is statutorily required to provide.
[18] We note in this regard that § 29-4106(1)(a) provides
that the requirement for a convicted felon to provide a DNA
sample becomes effective “[u]pon intake to a prison, jail, or
other detention facility or institution to which such person is
sentenced,” or “[i]f the person is already confined at the time
of sentencing, the person shall have a DNA sample collected
immediately after the sentencing.” The requirement therefore
exists once the convicted felon begins serving his or her sen-
tence. Although the convicted felon may not be released at
the end of the sentence unless or until he or she has provided
the DNA sample, the convicted felon’s obligation to provide a
DNA sample exists, and may be enforced, at the beginning of
the sentence.
On June 5, 2017, Weathers had been sentenced for the 2014
felonies and was confined pursuant to such sentences. Therefore,
on that day, he was legally required under § 29-4106(1)(a) to
have a DNA sample collected. Even without the June 5 order,
the State was authorized by § 29-4106(1)(a) to enforce the
requirement that Weathers provide a DNA sample. Weathers
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disagrees and instead contends that the collection of the DNA
sample was an unreasonable seizure that violated his Fourth
Amendment rights.
Courts have generally held that statutes such as § 29-4106
that require a convicted felon to provide a DNA sample for
inclusion in a DNA database do not violate Fourth Amendment
protections against unreasonable seizure. See U.S. v. Kraklio,
451 F.3d 922 (8th Cir. 2006), and cases cited therein. See,
also, Maryland v. King, 569 U.S. 435, 481, 133 S. Ct. 1958,
186 L. Ed. 2d 1 (2013) (collection of DNA sample pursuant
to statute authorizing such collection from arrestee does not
violate Fourth Amendment; in his dissent, Justice Scalia notes
that “[a]ll parties concede that it would have been entirely
permissible, as far as the Fourth Amendment is concerned, for
[the plaintiff] to take a sample of [the defendant’s] DNA as
a consequence of his conviction for second-degree assault”).
Therefore, to the extent Weathers might have challenged the
collection of his DNA on June 5, 2017, on the basis that
§ 29-4106 violated the Fourth Amendment by authorizing col-
lection of his DNA, such challenge would not have been suc-
cessful and counsel was not ineffective for failing to preserve
the challenge.
However, Weathers further argues that it was a Fourth
Amendment violation for the district court to authorize the
use of reasonable force to collect the DNA sample from him.
We determine that § 29-4106 inherently authorizes the use of
reasonable force to obtain a DNA sample. Other courts have
reached a similar result.
In State v. Banks, 321 Conn. 821, 839, 146 A.3d 1, 10 (2016),
the Connecticut Supreme Court affirmed a lower court’s ruling
interpreting a statute requiring that DNA samples be collected
from all persons convicted of a felony and determining that
the “ability to use reasonable force to obtain a DNA sample
is implicit in the statute as its fundamental purpose would be
subverted otherwise.” The Connecticut Supreme Court agreed
that “the use of reasonable force to obtain a DNA sample from
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an unwilling individual was ‘inherent’ in” the statute and rea-
soned that “[t]o conclude otherwise would result in absolute
frustration of the legislature’s objective in establishing and
maintaining a DNA data bank.” Id. at 842, 146 A.3d at 12. See,
also, Rendelman v. Scott, 378 Fed. Appx. 309, 313 (4th Cir.
2010) (“State’s right to obtain [a] DNA sample from designated
inmates must necessarily carry with it the right to use a reason-
able degree of force that is sufficient to ensure compliance.
Otherwise, the State’s right can be rendered meaningless by an
inmate who refuses to grant permission . . . ”).
[19] We conclude that § 29-4106 inherently authorizes the
use of reasonable force to collect a DNA sample from a con-
victed felon. We further conclude that use of reasonable force
does not violate the Fourth Amendment. Both the Fourth
Amendment to the U.S. Constitution and article I, § 7, of the
Nebraska Constitution guarantee against unreasonable searches
and seizures. State v. Seckinger, 301 Neb. 963, 920 N.W.2d
842 (2018). The ultimate touchstone is one of reasonableness.
Id. We believe that the Fourth Amendment would not prohibit
use of reasonable force to carry out an otherwise proper statu-
torily authorized seizure.
In the June 5, 2017, order, the district court specified that
“reasonable” force could be used to obtain the DNA sample,
and there is no indication in the record on direct appeal that
anything more than reasonable force was used to collect the
DNA sample; and, at least in connection with this claim,
Weathers does not assert that unreasonable force was used.
We note that in connection with his claim, discussed below,
that trial counsel failed to adequately investigate and pre­sent
several aspects of his defense, one of the specific failures
Weathers asserts relates to evidence the State allegedly turned
over during the trial, “including video of the forcible extrac-
tion of Weathers’ DNA sample.” Brief for appellant at 48. That
alleged evidence is not in the record on appeal, and Weathers
does not argue in connection with the present claim of ineffec-
tive assistance of counsel that counsel should have objected
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to admission of the DNA evidence on the basis that excessive
force was actually used to obtain the DNA sample on June
5. Instead, his argument is that the court could not authorize
reasonable force, and we conclude that § 29-4106 authorizes
reasonable force and that such authorization does not violate
the Fourth Amendment.
In sum, we conclude that the record on appeal refutes
Weathers’ first two claims of ineffective assistance of trial
counsel. Weathers could not show prejudice from counsel’s
failure to object to admission of the DNA evidence and to
renew the motion to suppress, because the challenges asserted
by Weathers related to the 2014 DNA sample and the June
5, 2017, DNA sample collected pursuant to the court’s order
would not have been successful. In addition, because the record
refutes Weathers’ claims that DNA evidence should have been
excluded based on alleged Fourth Amendment violations, we
further conclude that it was not plain error for the court to
admit the evidence, and we reject Weathers’ assignment of
error to that effect.
Failure to Object to DNA Evidence Based
on Chain of Custody Was Not
Ineffective Assistance.
Weathers next claims that trial counsel provided ineffec-
tive assistance by failing to object to the DNA evidence on
the basis that the State failed to establish a chain of custody
for the DNA evidence collected in the investigations of three
of the four assaults. We determine the record shows that this
claim is without merit.
Weathers’ arguments in this claim focus on three of the
four victims in this case. Regarding one victim, he asserts that
there was “no testimony in the record from the individual who
purportedly swabbed [the victim] during the rape kit examina-
tion.” Brief for appellant at 35. Regarding the second victim,
Weathers asserts that the State’s witness was a doctor who
“could only say that he ‘supervised’ [the victim’s] treatment,
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but he did not personally perform or witness these tasks” and
testified only that he assumed the samples taken from the
victim were properly taken and sealed. Id. at 36. Regarding
the third victim, Weathers similarly argues that the witness
was a doctor who had testified regarding the examination he
had given and testified regarding tasks performed by a nurse
with respect to the collection, packaging, and sealing of the
rape kit.
[20-23] In a case involving a foundational challenge regard-
ing hair specimens submitted for testing and the admission of
the results of the testing, we stated the following standards.
Where objects pass through several hands before being pro-
duced in court, it is necessary to establish a complete chain
of evidence, tracing the possession of the object or article to
the final custodian; and if one link in the chain is missing, the
object may not be introduced in evidence. State v. Glazebrook,
282 Neb. 412, 803 N.W.2d 767 (2011). Objects which relate to
or explain the issues or form a part of a transaction are admis-
sible in evidence only when duly identified and shown to be
in substantially the same condition as at the time in issue. Id.
It must be shown to the satisfaction of the trial court that no
substantial change has taken place in an exhibit so as to render
it misleading. Id. Important in determining the chain of custody
are the nature of the evidence, the circumstances surrounding
its preservation and custody, and the likelihood of intermed-
dlers tampering with the object. Id. Whether there is sufficient
foundation to admit physical evidence is determined on a case-
by-case basis. Id.
With regard to the first victim, the State notes that there was
testimony by the nurse who participated in the examination
of the victim and the collection of swabs and who testified
that she had put the collected evidence into sealed envelopes
and provided them to police. We agree with the State that this
testimony belies Weathers’ assertion that there was no testi-
mony by the person who collected the swab used to collect the
DNA sample.
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Regarding the second and third victims, the State argues
that the testimony of the physicians was sufficient to estab-
lish proper collection and handling of the samples even if the
physicians did not perform all the steps personally. Each of
the physicians testified regarding examinations they performed
of the respective victims and the procedures performed by
themselves and by nurses under their supervision to collect
samples. We determine the doctors’ testimony regarding their
examination of the specific victims and the procedures which
were followed in such examinations, when combined with
other evidence including the testimony of police officers who
collected packaged and sealed kits, was sufficient to establish
the chain of custody. Weathers does not cite authority requiring
that the specific person who physically collected and sealed
the samples must testify, and we think testimony by the doctor
who supervised the examination was sufficient to provide that
step in the chain.
We do not think a challenge to the admission of the DNA
evidence based on chain of custody would have been success-
ful, and therefore the record refutes that there was prejudice
from counsel’s failure to object on such basis. We therefore
conclude that this claim of ineffective assistance of counsel is
without merit.
District Court Did Not Err When It Overruled
Motion to Dismiss Counsel, and Counsel
Did Not Provide Ineffective Assistance
as Alleged in the Motion.
Weathers next claims that the district court abused its discre-
tion when it overruled his motion to dismiss his counsel and
appoint substitute counsel. He further claims that the reasons
he set forth in his motion to dismiss counsel also consti-
tute reasons that counsel provided ineffective assistance. We
conclude that the court did not abuse its discretion when it
refused to appoint substitute counsel and that the record refutes
Weathers’ claim of ineffective assistance of counsel.
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[24-27] When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to
the court for the removal of counsel, his or her only alternative
is to proceed pro se if he or she is competent to do so. State
v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). An indigent
defendant’s right to have counsel does not give the defendant
the right to choose his or her own counsel. State v. Wabashaw,
274 Neb. 394, 740 N.W.2d 583 (2007). Mere distrust of, or
dissatisfaction with, appointed counsel is not enough to secure
the appointment of substitute counsel. Id. Appointed counsel
must remain with an indigent accused unless one of the follow-
ing conditions is met: (1) The accused knowingly, voluntarily,
and intelligently waives the right to counsel and chooses to
proceed pro se; (2) appointed counsel is incompetent, in which
case new counsel is to be appointed; or (3) the accused chooses
to retain private counsel. State v. McGuire, 286 Neb. 494, 837
N.W.2d 767 (2013).
In this case, the court gave Weathers the option to proceed
pro se, and he rejected that option. Weathers also did not
choose to retain private counsel and instead sought appoint-
ment of substitute counsel. Therefore, under State v. McGuire,
supra, in order to remove his counsel and obtain new appointed
counsel, Weathers was required to establish not merely that he
distrusted or was dissatisfied with his counsel but that trial
counsel was incompetent.
[28] As a general matter, Weathers argues that the district
court erred because it did not hold an evidentiary hearing on
his motion to dismiss his counsel. We have said that once a
defendant requesting substitute counsel has raised a seemingly
substantial complaint about counsel, the court has a duty to
thoroughly inquire into the complaint. State v. Davlin, 265
Neb. 386, 658 N.W.2d 1 (2003). However, we have deter-
mined that when a defendant’s asserted grounds for discharg-
ing counsel and appointing new counsel were insufficient,
there was no reason for the court to conduct an evidentiary
hearing. See State v. Wabashaw, supra. In this case, Weathers’
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motion fully set forth his reasons for removing his counsel,
and when the court took up the motion, it asked Weathers
whether he had any reasons other than those set forth in his
motion why counsel should be dismissed and Weathers replied
that there were none. The court therefore had enough informa-
tion from which to determine whether Weathers’ assertions
had merit, and, as we discuss below, the court in its discretion
determined that Weathers’ asserted reasons did not require
removal of counsel and appointment of substitute counsel.
Therefore, the court’s failure to hold an evidentiary hearing
was not in itself error.
Weathers argues on appeal that the “[m]ost pressing” rea-
sons to dismiss counsel were that (1) counsel, who worked for
the public defender’s office, had a conflict of interest, because
in a prior case, Weathers’ counsel was a different attorney
from the same office and Weathers, in a postconviction action,
was currently challenging the effectiveness of that counsel’s
assistance in the prior case; (2) counsel had missed a pretrial
conference; and (3) counsel had failed to meet with Weathers
prior to trial to discuss the case or to review discovery. Brief
for appellant at 37.
Regarding Weathers’ assertion that counsel had a conflict
of interest, we have held that appointed counsel may be
removed because of a potential conflict of interest and that
such a conflict could, in effect, render a defendant’s counsel
incompetent to represent the defendant and warrant appoint-
ment of new counsel. State v. McGuire, supra. The conflict
alleged by Weathers was that in a postconviction action, he
was alleging that another public defender had provided inef-
fective assistance in a separate criminal proceeding. Weathers
argues that this created an actual conflict of interest with
the other public defender and that such conflict should be
imputed to his counsel, who was also a public defender.
Weathers cites cases to the effect that if one attorney in a firm
has an actual conflict of interest, the conflict is imputed to all
attorneys in the firm.
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However, in a case involving an assertion that an alleged
conflict of interest for one attorney in a county attorney’s office
should be imputed to the other prosecutors in the office, we
noted that rules regarding imputed conflicts of interest differ
between attorneys employed by law firms and those employed
by government agencies. In State v. Kinkennon, 275 Neb. 570,
577, 747 N.W.2d 437, 444 (2008), we described a “more flex-
ible rule” provided in Neb. Ct. R. of Prof. Cond. 1.11(d) (rev.
2005) (now Neb. Ct. R. of Prof. Cond. § 3-501.11(d)), which
addresses conflicts of interest for current government officers
and employees. We noted:
The official comment 2 to rule 1.11 explains that
“[b]ecause of the special problems raised by imputa-
tion within a government agency, paragraph (d) does not
impute the conflicts of a lawyer currently serving as an
officer or employee of the government to other associ-
ated government officers or employees, although ordinar-
ily it will be prudent to screen such lawyers.” This rule
recognizes the distinction between lawyers engaged in
the private practice of law, who have common financial
interests, and lawyers in a prosecutor’s office, who have a
public duty to seek justice, not profits.
State v. Kinkennon, 275 Neb. at 577, 747 N.W.2d at 444. We
think this reasoning applies as well to lawyers within a public
defender’s office, who also have a public duty to seek justice
for the defendants they represent. As to whether Weathers’
assertion of claims of ineffective assistance of counsel create
a conflict of interest for the specific public defender who rep-
resented him in the underlying prior conviction, any such con-
flict would not be imputed to a different public defender who
was representing him in the current proceeding. The district
court therefore did not abuse its discretion when it refused to
remove Weathers’ counsel on the basis of the alleged conflict
of interest.
Weathers also argues that counsel deprived him of his right
to effective representation and therefore should have been
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removed, because counsel missed a “pretrial conference” on
January 10, 2018. The record indicates that counsel attended a
“pretrial conference” that was held on November 28, 2017. At
that conference, the court mentioned that time had been sched-
uled on January 10, 2018, to consider “pretrial motions.” There
is no transcript in the record on appeal for a proceeding held
on January 10, but at a proceeding held on March 5, Weathers’
counsel acknowledges missing a hearing on January 10 due
to a misunderstanding that a hearing would not be held that
day, because counsel did not have motions ready to be heard
that day. The March 5 hearing then continued with, inter alia,
defense counsel presenting certain motions. Although counsel
missed the scheduled hearing on January 10, there is nothing
in the record indicating that anything occurred at that hearing
that materially affected Weathers’ defense, and it appears that
counsel presented motions at a later date. We do not think the
record shows that counsel was incompetent in this respect, and
therefore we do not think the court abused its discretion when
it refused to remove counsel on this basis.
Weathers further argues counsel should have been removed
for failing to meet with him prior to trial to discuss the case or
to review discovery. The State notes that the record indicates
that counsel had met with Weathers to discuss discovery, and
Weathers in his motion acknowledged that counsel had met
with him, although he alleged counsel did not provide him with
“full discovery,” which he asserted consisted of “3000 plus
pages of discovery.” The record also indicates that counsel had
made motions to continue the trial in order to allow additional
time to prepare with Weathers. These indicate that counsel was
engaged in preparation with Weathers, and we do not think it
shows that counsel was incompetent. We therefore do not think
the court abused its discretion when it refused to remove coun-
sel on this basis.
In addition to arguing that the three above-stated reasons
required the court to remove counsel, Weathers also claims
on direct appeal that each of the three reasons constituted
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ineffective assistance of trial counsel. As discussed above,
counsel did not have a conflict of interest based on Weathers’
postconviction claims regarding a different public defender;
because counsel had no such conflict of interest, it was not
deficient performance for counsel to represent Weathers in
this proceeding. With regard to the other two reasons, as
discussed above, the record on direct appeal does not indi-
cate that counsel was incompetent for either of the asserted
reasons. We therefore conclude that on direct appeal, there is
no merit to Weathers’ claim that trial counsel provided inef-
fective assistance for the reasons set forth in his motion to
remove counsel.
We note, however, that in his final claim of ineffective
assist­ance, which we discuss below, Weathers asserts various
claims that he argues cannot be reviewed on direct appeal but
that he sets forth to preserve for postconviction review. In that
claim, he sets forth various examples of how counsel could
have better prepared for trial. Among his specific claims are
that counsel was ineffective because counsel failed to inves-
tigate what occurred during the January 10, 2018, hearing
counsel failed to attend and that if counsel had met with him
to discuss discovery, he could have provided leads regarding
defenses, including alibi defenses. Our conclusion herein that
the record on direct appeal refutes the claim that counsel was
ineffective in the ways alleged in the motion to remove counsel
does not necessarily foreclose claims related to counsel’s per-
formance with respect to the January 10 hearing or to counsel’s
preparation of Weathers’ defense to the extent such claims can
be established based on information outside the record in this
direct appeal.
Counsel Was Not Ineffective for Failing
to Move for Continuance.
Weathers claims ineffective assistance of counsel when
counsel failed to move for a continuance of the trial a few
days before trial was scheduled to begin. Weathers asserts two
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reasons counsel should have moved for a continuance: (1)
Counsel had not adequately prepared with Weathers for trial,
and (2) the court granted the State’s motion to endorse a wit-
ness 3 days before trial was scheduled to start. We conclude the
record on direct appeal refutes this claim.
First, Weathers argues that counsel should have moved for
a continuance because counsel had not adequately prepared
with Weathers for trial. Weathers’ argument in this respect
simply refers back to his argument to support his claim that
the district court should have sustained his motion to remove
counsel on the basis that counsel had failed to meet with him
prior to trial to discuss the case or to review discovery. As dis-
cussed above, we determine that the record refutes Weathers’
claim that the district court should have removed counsel for
this reason. For the same reason, we conclude that the record
refutes that counsel was ineffective for failing to move for
a continuance on the basis of counsel’s failure to adequately
prepare with Weathers. In particular, we note that the record
indicates that counsel made motions for continuance that were
denied by the district court. In this respect, we also note that
in Weathers’ final claim of ineffective assistance of counsel on
direct appeal, he asserts that he could have provided counsel
leads to investigate defenses, including alibi defenses; such
alleged information is obviously not in the record on direct
appeal, and we consider below whether this aspect of the claim
is refuted in the record.
Weathers further argues counsel was ineffective for failing
to move for a continuance based on the court’s endorsement
of a State’s witness a few days before trial was scheduled
to begin. As discussed below, we determine that the record
shows that Weathers could not show prejudice from coun-
sel’s failure to move to continue based on endorsement of
the witness.
The record on direct appeal shows that on March 22, 2018,
the State filed a motion for leave to endorse John Cress as
a witness, and that on March 23, Weathers’ counsel filed an
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objection to the motion, noting that trial was set to begin on
March 26. Weathers’ counsel asserted that the motion should
be denied because the State’s request was filed after deadlines
had passed for endorsing witnesses and for filing motions.
The court heard the State’s motion and Weathers’ objection
on March 23. The transcript of the hearing showed that Cress
would testify regarding chain of custody for the DNA evidence,
specifically “transporting evidence to the State crime lab.”
After hearing argument on the motion and Weathers’ objection,
which included discussion regarding prejudice to the prepara-
tion of the defense, the court sustained the State’s motion to
endorse the witness but “require[d] that the State make [Cress]
available for a deposition for [Weathers] before he testifies.”
At trial, Cress testified as the last witness on March 27. He
generally testified that he was an Omaha police officer and that
on October 4, 2002, he was assigned to “pick up a rape kit at
central station property room and transport it to the Nebraska
State Patrol Crime Lab.” He testified further regarding com-
pleting this assignment. Cress’ testimony was relatively brief,
and Weathers’ counsel took the opportunity to cross-examine
and re-cross-examine Cress regarding his testimony.
We conclude that Weathers could not show prejudice result-
ing from counsel’s failure to move for a continuance based
on the endorsement of the witness shortly before trial. We
note that if counsel had moved for a continuance, the deci-
sion would have been left to the district court’s discretion. See
State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017) (stating
that decision whether to grant continuance in criminal case is
within discretion of trial court and will not be disturbed on
appeal absent abuse of discretion). Also, we have said that a
trial court, in the exercise of its discretion, may permit addi-
tional witnesses to be endorsed within the 30 days before trial
and even after the trial has begun, provided doing so does not
prejudice the rights of the defendant. State v. Smith, 292 Neb.
434, 873 N.W.2d 169 (2016). In this case, at the hearing on the
State’s motion to endorse Cress as a witness, the court took
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into consideration whether doing so a few days prior to trial
would prejudice Weathers in the preparation of his defense.
The court addressed any potential prejudice by requiring the
State to make Cress available to Weathers for a deposition
before he testified.
Considering the nature of Cress’ testimony, basically estab-
lishing a link in the chain of custody, we do not think the court
abused its discretion when it sustained the State’s motion to
endorse. Furthermore, the court addressed potential prejudice
by requiring that Cress be made available for a deposition.
Although it is not clear from the record whether Weathers
took Cress’ deposition, the record does show that Weathers
thoroughly cross-examined Cress on the matters to which he
testified and that Weathers re-cross-examined Cress after the
State’s redirect.
We note further that requiring Cress to be made avail-
able for a deposition adequately addressed the concerns that
would have been considered if Weathers’ counsel had moved
for a continuance. Therefore, if counsel had moved for a con-
tinuance, the court likely would have denied a continuance
and instead ordered the same remedy it gave in response to
Weathers’ objection to endorsement of the witness, and we do
not think it would have been an abuse of discretion to deny
such a motion to continue. Weathers cites State v. Ash, 286
Neb. 681, 838 N.W.2d 273 (2013), in which we held that the
trial court abused its discretion when it denied the defendant’s
request to continue trial based on a codefendant’s plea agree-
ment with the State, executed on the eve of trial, pursuant to
which she agreed to testify against the defendant. By contrast
to the testimony of a codefendant, Cress’ testimony in this case
was limited in scope and relatively minor given the entirety of
the evidence in the case. Making Cress available for a deposi-
tion without granting a continuance of the trial was sufficient
to protect against prejudice to Weathers’ preparation of his
defense. Therefore, the record refutes this claim of ineffective
assistance of counsel.
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Weathers’ Claims of Failures by Counsel
Relating to Investigation and Presentation
of Defenses Are Either Refuted by the
Record or Cannot Be Reviewed
on Direct Appeal.
Weathers finally claims that counsel failed to adequately
investigate and present several aspects of his defense. Weathers
asserts that the record on direct appeal is not sufficient to
review these claims but that he is setting them forth herein
in order to preserve the claims for postconviction review.
In each of these claims, Weathers asserts that counsel failed
to discover or to pursue certain information that could have
helped his defense. These claims therefore rely on evidence or
information that is not included in the record on appeal, and
we therefore agree with Weathers that the claims could not be
resolved on direct appeal. However, we determine that two of
the claims, which both relate to the alleged use of the 2014
DNA sample, are shown to be without merit because, as we
discussed above, the DNA evidence admitted at trial was not
dependent on the 2014 DNA sample.
In the argument section of his brief, Weathers sets forth the
following claims:
• Trial counsel failed to consult with or call as a witness
an expert in the field of DNA identification. A DNA
identification expert would have evaluated all the testing
done in this case, including the testing of other suspects’
profiles done by investigators, and testified that another
suspect, possibly an unknown relative of Weathers,
matched the unknown suspect’s profile, and that the
lab technicians called by the State made mistakes in the
testing and interpretation of DNA in this case.
• In relation to the ineffective assistance directly above,
trial counsel failed to investigate or subpoena DNA ana-
lyst “Christine.” This analyst would have testified that
investigators were told the person who committed the
sexual assaults could be a relative of Weathers because
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they shared most of the DNA core loci, yet police did
not use this information to further investigate other indi-
viduals who may have committed the sexual assaults.
• Trial counsel failed to investigate the circumstances
of the 2014 case against Weathers. Had he done so,
he would have discovered additional testimony by . . .
Jaworski confirming not only that an investigative com-
parison was illegally done between Weathers’ 2014
DNA sample and that of the unknown suspect, but
that investigators did upload Weathers’ DNA profile to
CODIS. The trial court found no evidence that either an
investigatory comparison or a CODIS search occurred
in 2014. . . .
• Trial counsel similarly failed to investigate or call for-
mer crime lab director James Wisecarver regarding
crime lab policies and procedures, which would have
provided evidence in addition to that provided by . . .
Jaworski that investigators both conducted an investiga-
tive comparison of Weathers’ 2014 DNA sample to the
unknown suspects in 2014.
• Trial counsel failed to request a continuance or mistrial
when, during trial, the State turned over evidence includ-
ing video of the forcible extraction of Weathers’ DNA
sample, evidence relevant not only to the motion to sup-
press the DNA evidence, but to . . . Weathers’ defense
that the State and the trial court targeted Weathers for
malicious prosecution.
• Trial counsel failed to investigate ex parte communica-
tions that occurred between the trial court and the pros-
ecutor that occurred during the January 10, 2018 pretrial
conference missed by trial counsel. . . . These com-
munications would have provided additional evidence
relevant to Weathers’ defense that the State and the trial
court targeted Weathers for malicious prosecution, and
would have supported a motion to recuse both the pros-
ecutors and trial court prior to trial.
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• Trial counsel failed to engage in meaningful discussions
of the case with Weathers prior to trial. Had he done
so and allowed Weathers to review all the discovery,
Weathers would have had an opportunity to provide
trial counsel with leads for possible defenses, includ-
ing potential alibi defenses. Trial counsel was therefore
ineffective in failing to further investigate these poten-
tial defenses.
Brief for appellant at 47-49.
The third and fourth claims above both relate to allegations
that counsel failed to pursue evidence that could have shown
that investigators in 2014 had made a comparison of the DNA
evidence from the 2002 and 2004 unsolved cases to the DNA
sample Weathers provided in connection with the investiga-
tion of the 2014 assaults. However, as we discussed above, the
DNA evidence that was admitted at the trial in this case was the
result of DNA samples that were collected in 2017, and such
evidence was obtained independently of the collection or use
of Weathers’ DNA sample in 2014. Therefore, even if Weathers
were able to show some impropriety in the collection or use of
the 2014 DNA sample, it would not have required suppression
of the DNA evidence that was admitted in the present case. We
therefore conclude that the record on direct appeal refutes the
third and fourth claims above.
Regarding the remaining claims above, each of the claims
relies on alleged evidence or information that is not included
in the record on direct appeal, and none of these claims are
clearly refuted by anything in the record. Therefore, we can-
not say on direct appeal that these claims are without merit.
We agree with Weathers’ assertion that these claims cannot
be determined on direct appeal, because the record on appeal
does not disclose what steps trial counsel took in regard to
these avenues of investigation, what would have been found
if the various actions had been taken by counsel, and whether
the findings would have helped Weathers’ defense. Weathers’
brief on appeal did not specifically assign these claims as error,
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as required by our recent decision in State v. Mrza, 302 Neb.
931, 926 N.W.2d 79 (2019), but his brief was filed prior to the
release of our Mrza decision. Therefore, we include this listing
so that a district court reviewing any petition for postconvic-
tion relief that Weathers might bring in the future will be able
to recognize what specific claims were brought before this
court on direct appeal.
[29,30] As we recently emphasized in State v. Stelly, ante
p. 33, 932 N.W.2d. 857 (2019), when an appellate court finds,
on direct appeal, that the record is not sufficient to resolve a
claim of ineffective assistance, it should not be misunderstood
as a finding that the claim will necessarily require an eviden-
tiary hearing if raised in a motion for postconviction relief,
because that determination is governed by an entirely different
standard. Also, just because an appellate court finds the record
on direct appeal is insufficient to resolve a claim of ineffective
assistance, it does not mean that a postconviction court will
necessarily be precluded from later finding the existing record
affirmatively refutes the same claim. Id.
CONCLUSION
Regarding Weathers’ assignments of error by the district
court, we conclude that the court did not commit plain error
when it admitted the DNA evidence in this case and that it did
not abuse its discretion when it overruled Weathers’ motion
to remove counsel and appoint substitute counsel. Regarding
Weathers’ claims of ineffective assistance of trial counsel, we
determine, as set forth above as to each specific claim, either
that the record on direct appeal shows the claim is without
merit or that the record on direct appeal is not sufficient to
review the claim. We therefore affirm Weathers’ convictions
and sentences for four counts of first degree sexual assault.
Affirmed.
Freudenberg, J., not participating.