State v. Sierra

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/22/2020 08:09 AM CDT
- 249 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
State of Nebraska, appellee, v.
Jonathan J. Sierra, appellant.
___ N.W.2d ___
Filed March 13, 2020. No. S-19-180.
1. Appeal and Error. An appellate court may, at its option, notice plain
error.
2. Right to Counsel: Appeal and Error. An appellate court reviews the
trial court’s decision on a motion to withdraw as counsel for an abuse
of discretion.
3. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
cretion with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an abuse
of discretion.
4. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law for which
an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
5. 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.
6. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
- 250 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
7. Constitutional Law: Double Jeopardy. The protection granted by the
Nebraska Constitution against double jeopardy is coextensive to the
protection granted by the U.S. Constitution.
8. Theft. Where a theft involves items taken from multiple owners at the
same time and in the same place, such theft constitutes a single offense.
9. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record, in order to preserve such claim.
11. ____: ____. Once issues of trial counsel’s ineffective performance are
properly raised, the appellate court will determine whether the record
on appeal is sufficient to review the merits of the ineffective perform­
ance claims.
12. 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. This is because the
trial record reviewed on appeal is generally devoted to issues of guilt or
innocence and does not usually address issues of counsel’s performance.
The determining factor is whether the record is sufficient to adequately
review the question.
13. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
14. Effectiveness of Counsel: Proof. To show deficient performance, a
defendant must show that counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law.
15. ____: ____. 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.
16. Rules of Evidence: Words and Phrases. In the context of Neb. Rev.
Stat. § 27-403 (Reissue 2016), unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis. Unfair prejudice
speaks to the capacity of some concededly relevant evidence to lure the
fact finder into declaring guilt on a ground different from proof specific
to the offense charged, commonly on an emotional basis.
- 251 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
17. Jury Instructions: Testimony: Appeal and Error. A defendant is
clearly entitled to a cautionary instruction on the weight and credibility
to be given to the testimony of an alleged accomplice, and the failure to
give such an instruction, when requested, is reversible error.
18. Jury Instructions: Evidence: Witnesses: Testimony. Whenever a
judge decides that the evidence supports a conclusion that a witness
is an accomplice and the defendant requests a cautionary instruction,
the instruction is appropriate and should be given. This is because any
alleged accomplice testimony should be examined more closely by the
trier of fact for any possible motive that the accomplice might have to
testify falsely.
19. Effectiveness of Counsel: Rules of the Supreme Court: Trial:
Records. When recordation of parts of a trial is not made mandatory by
the rules, the failure to require recordation cannot be said, ipso facto, to
constitute negligence or inadequacy of counsel.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed in part, and in part vacated.
Lisa M. Meyer, of Fillman Law Offices, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
Jonathan J. Sierra was convicted of burglary, conspiracy to
commit burglary, and several counts of theft involving a truck,
a trailer, and several tools from a garage. Sierra’s accomplice,
Jonathan Mally, entered into a plea agreement with the State
and testified against Sierra. The majority of Sierra’s claims in
this direct appeal are ineffective assistance of counsel claims.
Sierra also claims that his court-appointed trial counsel had a
personal conflict of interest because she was being investigated
for and was charged with theft during her representation of
Sierra. Finally, Sierra asserts that he was charged with separate
theft charges in violation of the Double Jeopardy Clause of the
U.S. Constitution.
- 252 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
II. BACKGROUND
In December 2017, the State filed an eight-count complaint
against Sierra alleging that 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 on an incident which occurred in the
early morning of October 15, 2017, when a window of Extreme
Automotive 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, notified the officer investigating the break-in, Sgt.
Michael Hanke, that his checkbook and debit card had also
been stolen.
Sierra was charged with eight counts: (1) burglary; (2) con-
spiracy to commit burglary; (3) three counts of theft by unlaw-
ful taking ($5,000 or more), which were related to the tools
taken; (4) theft by unlawful taking ($5,000 or more) for steal-
ing the truck; (5) theft by unlawful taking (less than $1,500 to
$5,000) for stealing the trailer; and (6) criminal mischief (less
than $500).
Upon Sierra’s request, the court appointed an attorney to
represent him in this matter. During preparation for trial, Sierra
became frustrated with the lack of action on his attorney’s
part and requested that she withdraw. Sierra’s attorney moved
to withdraw. At the hearing on the motion, Sierra’s attorney
indicated that there was a breakdown of the attorney-client
relationship. Sierra told the judge that he had stopped speak-
ing with his attorney and that he tried to have his fiance and
mother talk with his attorney in his stead. Sierra claims that
he spoke with his attorney only twice prior to the hearing. The
court denied the motion.
The court adopted the parties’ reciprocal discovery agree-
ment and set a deadline of March 5, 2018, or “as soon as it
becomes reasonably discovered, but not less than ten days
before trial.” Approximately 4 months after the reciprocal
discovery deadlines and 5 days before trial, Sierra’s attorney
- 253 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
filed, for the first time, a witness list identifying five witnesses
that the defense intended to call. The State responded by fil-
ing a motion in limine to preclude undisclosed witnesses, alibi
defense, and undisclosed exhibits. In the alternative, the State
asked for a 30-day continuance.
At the hearing to consider the motion, the State pointed out
that Sierra had failed to comply with the deadline for reciprocal
discovery and the 30-day deadline for notice of alibi defense
and had filed the witness list less than 10 days before trial.
Sierra’s attorney responded that all of the witnesses were
known to the State from its reports and that one witness was
on the State’s list, but Sierra’s attorney did not provide any
reason for not complying with the reciprocal discovery order.
Similarly, Sierra’s attorney also did not provide a reason for
failing to comply with the statutory notice requirements for an
alibi defense. Rather, she asked the judge to waive the notice
requirement in the interest of justice. The district court sus-
tained the State’s motion in limine. As a result, Sierra was able
to call only one of the five listed witnesses and was precluded
from pursuing his alibi defense.
At trial, Hanke’s testimony provided a general timeline of
the investigation. Hanke testified that after Wilkinson called
the York police about the break-in, police reviewed surveil-
lance videos taken from businesses in the area. The videos
revealed that two individuals stole a truck from the garage
parking lot and then drove to a nearby pizza restaurant, where
they stole a trailer before returning to the garage. Thirty min-
utes later, the truck and trailer left the garage.
Wilkinson’s bank notified him on October 15, 2017, that
someone had attempted to use the stolen debit card at a
Walmart store in Norfolk, Nebraska. Wilkinson notified law
enforcement of the bank’s report. Hanke used that informa-
tion to get pictures taken from the Norfolk Walmart’s secu-
rity cameras, which depicted two individuals using the stolen
debit card. Hanke testified that, based on information received
from the Butler County Sheriff’s Department, the investigators
- 254 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
eventually identified both of the individuals in the photographs
as Mally and Sierra.
A Walmart store in York provided photographs of two indi-
viduals to law enforcement, after the individuals were suspected
of shoplifting on the morning of October 15, 2017. Maggie
Wolfe, an asset protection associate for the York Walmart, and
Hanke presented identification testimony related to the photo-
graphs taken from the Walmarts in York and Norfolk. Wolfe
provided the authentication for exhibit 1, a collection of pho-
tographs taken from the York Walmart on the morning of the
burglary. During direct examination, Wolfe positively identi-
fied Sierra as being depicted in the photographs taken from the
York Walmart. On cross-examination, Wolfe admitted that her
identification of Sierra came after she read about the investiga-
tion in the newspaper.
Hanke testified that a cell phone traceable to Sierra “pinged
off [of]” a cell tower in York around the time that Mally’s testi-
mony placed them both in York. Hanke testified that cell phone
records placed Sierra’s cell phone within 20 miles of York
on the day of the burglary. Sierra’s attorney did not object to
Hanke’s testimony about the content of the cell phone records,
and the records themselves are not in evidence.
Evidence recovered from the search of Sierra’s home was
admitted based on the testimony provided by Hanke. According
to Hanke’s testimony at trial, based on the Butler County,
Nebraska, sheriff’s identification of Sierra in the photographs
taken from the York Walmart and pursuant to a clause in
Sierra’s probation order, police searched Sierra’s residence,
where they found a majority of the tools taken from Extreme
Automotive. The sheriff who identified Sierra in the photo-
graphs did not testify at trial. The law enforcement officers
who conducted the search did not testify at trial, and the proba-
tion order is not in the record.
Hanke testified that the stolen truck was recovered after
being abandoned on the road north of the York Walmart. The
stolen trailer was recovered after being abandoned on the road
- 255 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
near Genoa, Nebraska. Sierra’s attorney made no objections to
these portions of Hanke’s testimony. Hanke testified that dur-
ing his first interview of Sierra, Sierra claimed he had never
been to York, denied all involvement in the burglary, and said
that he possessed the tools because he had purchased them
from Mally.
Sierra’s attorney cross-examined Hanke about the story
Sierra gave to the York police as to how the tools ended up in
his possession. Hanke testified that during his first interview,
Sierra denied ever being in York, and that Sierra claimed he
had purchased the tools. Hanke testified that during a sec-
ond interview with Sierra, Sierra admitted to being in York.
Sierra’s attorney did not object to Hanke’s testimony regarding
either interview.
Mally was arrested in Columbus, Nebraska, for an unrelated
incident. A search revealed that Mally had on his person and
in his vehicle several of the tools and financial items taken
from Extreme Automotive. A warrant was executed for Mally’s
residence, where several more items from Extreme Automotive
were found. Mally subsequently entered into a plea agreement
with the State and testified against Sierra.
Mally testified as Sierra’s accomplice and provided a gen-
eral timeline for the events on October 15, 2017, similar to
that set forth by Hanke. Mally testified that he helped Sierra
commit the burglary and theft at Extreme Automotive because
Sierra needed mechanics tools. Mally asserted that the various
pictures taken at both Walmart locations accurately depicted
Sierra and him at those locations. Mally also testified that
he was receiving benefits from the State concerning various
charges in exchange for his cooperation.
Evidence concerning the value of the tools was presented
through various sources at trial. Several of the exhibits entered
into evidence by the State display tools that were recovered
from the search of Mally’s residence. During the presentation
of evidence recovered from Mally’s residence, Sierra’s attorney
made several objections, some of which were sustained. There
- 256 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
was also evidence of financial items, including checkbooks
and a debit card, that were recovered in Mally’s possession and
testimony by Mally that Sierra attempted to use the stolen debit
card to buy items. Mally denied the existence of any arrange-
ment with Sierra to buy the tools.
Sierra’s attorney elected to forgo the creation of a record
of the voir dire, closing arguments, and jury instructions. The
jury instructions that were given are preserved in the transcript.
A jury found Sierra guilty on all counts except the charge of
criminal mischief.
At some point after the trial, Sierra’s attorney was charged
with theft by unlawful taking ($5,000 or more) in an unre-
lated case. Sierra requested new counsel, and the request was
granted before sentencing. Sierra was sentenced to 16 to 20
years’ imprisonment on each of the Class IIA felonies and 1 to
2 years’ imprisonment on the Class IV felony, with orders for
the sentences to run concurrently. Sierra appeals.
III. ASSIGNMENTS OF ERROR
Three errors Sierra assigns, which are not ineffective assist­
ance of counsel claims, assert that the court erred by (1) deny-
ing Sierra’s attorney’s motion to withdraw, (2) granting the
State’s motion in limine, and (3) sentencing Sierra on multiple
charges of theft by unlawful taking, in violation of the Double
Jeopardy Clause of the U.S. Constitution.
Sierra also assigns 14 ineffective assistance of counsel
claims. Sierra first asserts that his attorney was “per se inef-
fective” for failing “to maintain her law license and appropri-
ate moral standing.” In his argument, Sierra elaborates that
his attorney had a personal conflict of interest such that she
failed to act in Sierra’s best interests because her focus was
torn between her own pending legal actions and represent-
ing Sierra.
Sierra also assigns that his attorney was deficient by fail-
ing to (1) comply with discovery; (2) serve notice of Sierra’s
alibi; (3) move for a continuance at the hearing on the motion
- 257 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
in limine; (4) call Sierra’s fiance as a witness for the defense;
(5) depose Sierra’s brother, mother, and fiance, as well as two
potential alibi witnesses, prior to trial; (6) communicate with
Sierra to prepare for trial; (7) assert a double jeopardy claim;
(8) move to suppress identification evidence and evidence
found from the search of Sierra’s home; (9) file a motion in
limine to exclude evidence discovered at Mally’s home; (10)
object to identification evidence during trial; (11) object to
“proffer interview” statements admitted in evidence during
trial; (12) maintain a sufficient record; and (13) request a jury
instruction on accomplice testimony.
IV. STANDARD OF REVIEW
[1] An appellate court may, at its option, notice plain error. 1
[2] We review the trial court’s decision on a motion to with-
draw as counsel for an abuse of discretion. 2
[3] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. 3
[4] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 4
[5] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 5 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 6 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
1
Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
2
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
3
State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).
4
In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
5
State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
6
Id.
- 258 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
articulated in Strickland v. Washington, 7 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 8
[6] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 9
V. ANALYSIS
1. Double Jeopardy
[7] We first address Sierra’s claim that he was charged with
three counts of theft related to the tools taken from Extreme
Automotive, in violation of the Double Jeopardy Clauses of
the Nebraska and U.S. Constitutions. The protection granted by
the Nebraska Constitution against double jeopardy is coexten-
sive to the protection granted by the U.S. Constitution. 10 Both
clauses are designed to protect against three distinct abuses: (1)
a second prosecution for the same offense after acquittal, (2) a
second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense. 11
[8] Though we have never been presented with a situation
where the multiple items belonged to multiple people, we have
held that an act of theft involving multiple items of property
stolen simultaneously at the same place constitutes one offense,
in which the value of the individual stolen items may be con-
sidered collectively for the aggregate or total value of the prop-
erty stolen to determine the grade of the theft offense under
7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
8
State v. Chairez, supra note 5.
9
Id.
10
See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
11
See State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
- 259 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
Neb. Rev. Stat. § 28-518 (Reissue 2016). 12 Moreover, the crim-
inal code forbids the amounts taken pursuant to one scheme or
course of conduct from being aggregated into more than one
offense. 13 This principle of considering theft of multiple items
as one offense has been applied by a majority of jurisdictions,
even when the property taken has more than one owner. 14 And
we likewise hold that where a theft involves items taken from
multiple owners at the same time and in the same place, such
theft constitutes a single offense.
Where the defendant is charged with and punished for mul-
tiple offenses based on each stolen item taken simultaneously
from the same place, the defendant is subjected to multiple
punishments for the same offense, in violation of the prohibi-
tion against double jeopardy. 15 The State concedes that Sierra
was improperly charged, convicted, and punished in violation
of the Double Jeopardy Clauses of the Nebraska and U.S.
Constitutions. We accordingly find that charging and convicting
Sierra with three separate offenses for theft by unlawful taking
($5,000 or more), each a Class IIA felony, violated the Double
Jeopardy Clauses of the Nebraska and U.S. Constitutions and
constituted plain error.
[9] Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fair-
ness of the judicial process. 16 Allowing three convictions for
the same offense is a clear violation of both the Nebraska and
12
See State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).
13
§ 28-518(7).
14
See, State v. White, 348 Md. 179, 702 A.2d 1263 (1997); People v. Dist.
Ct., 192 Colo. 355, 559 P.2d 1106 (1977). See, also, Annot., 37 A.L.R. 3d
1407 (1971).
15
See State v. Miner, supra note 10.
16
Mays v. Midnite Dreams, supra note 1.
- 260 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
U.S. Constitutions. Left uncorrected, this error would be a vio-
lation of Sierra’s fundamental rights and damage the integrity
of the judicial process. 17 The appropriate remedy for this plain
error is to vacate two of the three convictions and sentences for
theft by unlawful taking ($5,000 or more) that are based on the
theft of the tools from Extreme Automotive. 18
2. Exclusion of Witnesses
We next address Sierra’s assignments of error concerning the
court’s exclusion of defense witnesses who were not disclosed
by his attorney until 5 days before trial. Sierra asserts that these
witnesses would have provided alibi testimony and information
attacking the credibility of Mally.
(a) State’s Motion in Limine
We find no merit to Sierra’s contention that the district court
erred by granting the State’s motion in limine to exclude late-
disclosed defense witnesses.
A discovery stipulation was agreed to on February 12, 2018,
which designated a deadline to provide all discovery informa-
tion by March 5 or “as soon as it becomes reasonably discov-
ered, but not less than ten days before trial.” At the hearing
on the motion in limine, Sierra’s attorney’s only stated reason
for not complying with the order was that the individuals the
defense intended to call were named in the State’s reports and
one was also included in the witness list attached to the State’s
information filed in this matter.
Neb. Rev. Stat. § 29-1912 (Reissue 2016) describes the
types of information that are discoverable. Neb. Rev. Stat.
§ 29-1916 (Reissue 2016) provides the court discretion to
grant reciprocal discovery. Neb. Rev. Stat. § 29-1919 (Reissue
2016) specifies that when a party has failed to comply with
17
See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707
(1969).
18
See State v. Miner, supra note 10. See, also, State v. McHenry, 250 Neb.
614, 550 N.W.2d 364 (1996).
- 261 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
the discovery statutes, the court may (1) order such party to
permit the discovery or inspection of materials not previously
disclosed, (2) grant a continuance, (3) prohibit the party from
calling a witness not disclosed or introducing in evidence
the material not disclosed, or (4) enter such other order as it
deems just under the circumstances. In the present case, the
court prohibited Sierra from calling a witness or introducing
evidence that had not been disclosed pursuant to the court’s
discovery order.
Nevertheless, Sierra argues that our holding in State v.
Woods 19 relieved him of the burden to disclose witnesses
because he did not request a witness list from the State. In
Woods, we held that Neb. Rev. Stat. § 29-1927 (Reissue
2016) does not require disclosure of alibi witnesses and that
§ 29-1916 (reciprocal discovery) applies only when the defend­
ant requests “‘comparable items or information’” from the
State. 20 However, the situation in Woods differs from the pres-
ent case in two important ways.
First, in Woods, the State waived the notice requirement
for an alibi defense and so the issue on appeal was whether
§ 29-1919 required the filing of a witness list. Here, the State
did not waive notice and filed a motion in limine to keep the
alibi defense evidence from being admitted.
Second, all of the witnesses in Woods were to be used to
present alibi information. Sierra concedes that at least two of
the witnesses excluded by the State’s motion in limine were
intended to offer evidence impeaching Mally’s testimony and
not an alibi defense.
Thus, our holding in Woods does not shield Sierra from
the trial court’s sanctions for failing to file a witness list. The
court considered Sierra’s attorney’s failure to comply with
the discovery order and applied an authorized remedy under
§ 29-1919.
19
See State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).
20
See id. at 767, 587 N.W.2d at 130 (quoting § 29-1916).
- 262 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
We likewise find no merit to Sierra’s alternative argument
that the use of the definite article in § 29-1919(3), giving the
trial court discretion to prohibit a party from calling “a wit-
ness,” limits the court’s remedy to excluding only one undis-
closed witness. Sierra’s reading of § 29-1919 disregards our
rules for construction and the interchangeability of singular and
plural words. Neb. Rev. Stat. § 49-802 (Reissue 2010) specifies
as follows:
Unless such construction would be inconsistent with
the manifest intent of the Legislature, rules for construc-
tion of the statutes of Nebraska hereafter enacted shall be
as follows:
....
(6) Singular words may extend and be applied to sev-
eral persons or things as well as to one person or thing.
(7) Plural words may extend and be applied to one per-
son or thing as well as to several persons or things.
Under the plain meaning of § 29-1919, if a party fails to
comply with discovery and give notice of an intent to call a
witness, the court may prohibit that witness from being called.
Nothing in § 29-1919 suggests that the remedy cannot be
extended to prohibiting multiple witnesses.
Lastly, Sierra contends that the court’s order granting the
State’s motion in limine violated his constitutional right under
the Sixth Amendment to have process to compel the attendance
of witnesses on his behalf. The U.S. Supreme Court has estab-
lished that the Sixth Amendment does not provide an absolute
right to call witnesses; rather, the defendant’s right is weighed
against the concerns of the state to have a fair and efficient
administration of justice. 21 We have considered the same con-
cerns when determining whether other discovery sanctions
violate the Nebraska Constitution. 22 Sierra does not have an
21
Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
22
See, State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v.
McMillion, 23 Neb. Ct. App. 687, 875 N.W.2d 877 (2016).
- 263 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
absolute right to present witnesses and evidence. The State’s
interest in protecting itself against an 11th-hour defense is
merely one component of the broader public interest in a full
and truthful disclosure of critical facts. 23
We find that the trial court did not abuse its discretion in
granting the State’s motion in limine. Further, we conclude
that the court’s ruling granting the State’s motion in limine
did not violate Sierra’s constitutional rights under the Sixth
Amendment.
(b) Failure to Depose Witnesses, File Witness List,
and Serve Notice of Alibi
[10] In the alternative to Sierra’s challenge to the court’s rul-
ing granting the State’s motion in limine, Sierra asserts that his
attorney’s ineffective assistance of counsel led to that ruling.
Sierra has new counsel on direct appeal. 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, in order to preserve
such claim. 24
[11-13] Once such issues are properly raised, the appellate
court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. 25
We have said that the fact that an ineffective assistance of
counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. 26 This is because the trial record
reviewed on appeal is generally “‘“devoted to issues of guilt or
innocence”’” and does not usually address issues of counsel’s
performance. 27 The determining factor is whether the record is
23
See Taylor v. Illinois, supra note 21.
24
State v. Chairez, supra note 5.
25
Id.
26
Id.
27
Id. at 736, 924 N.W.2d at 730.
- 264 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
sufficient to adequately review the question. 28 An ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing. 29
[14,15] To show deficient performance, a defendant must
show that counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. 30 To show
prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different. 31
We cannot determine on the appellate record whether the
witnesses the court prohibited from testifying would have in
fact supported Sierra’s alibi defense and impeached Mally’s
testimony. Without such information, we can determine neither
deficiency nor prejudice. We find that the record is insufficient
for us to address this claim on direct appeal.
Sierra argues that his attorney’s “agreement” not to call
his fiance was an additional act of ineffective assistance of
counsel, separate from her failure to timely disclose defense
witnesses. 32 We find it indistinguishable from the claim of
ineffective assistance based on the failure to comply with the
reciprocal discovery order. Based on the record, it appears
Sierra’s attorney’s comments that Sierra characterizes as an
“agreement” were merely a concession of the facts that the
name of Sierra’s fiance did not appear in the State’s reports
and that his attorney’s failure to file a separate witness list had
precluded her from calling his fiance as a witness. Such com-
ments were mere observations of undisputed facts and cannot
constitute deficient performance. If the deficient performance
occurred, it was in the failure to timely file the witness list, not
the acknowledgment of the result of doing so.
28
State v. Chairez, supra note 5.
29
Id.
30
Id.
31
Id.
32
Brief for appellant at 35.
- 265 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
(c) Failure to Request Continuance
at Hearing on State’s
Motion in Limine
We find no merit to Sierra’s assertion that his attorney was
ineffective for failing to request a continuance at the hearing on
the State’s motion in limine. During the course of the hearing,
the State had already raised the possibility of a continuance,
as § 29-1919 lists a continuance as a possible remedy for an
untimely witness list. The trial court was fully informed of the
option to order a continuance and declined to do so. Sierra’s
attorney was not deficient for failing to bring an optional
remedy to the court’s attention that had already been raised
moments earlier by the State.
3. Lack of Communication With
Sierra’s Attorney
We turn next to Sierra’s assertions relating to his attorney’s
more generalized failure to communicate with Sierra while
preparing for trial.
(a) Motion to Withdraw
First, we find no merit to Sierra’s assertion that the district
court abused its discretion in denying his attorney’s motion
to withdraw. Appointed counsel must remain with an indigent
accused unless one of the following occurs: (1) The accused
knowingly, voluntarily, and intelligently waives the right to
counsel and chooses to proceed pro se; (2) appointed counsel
is incompetent; or (3) the accused chooses to retain private
counsel. 33 We review the trial court’s decision on a motion to
withdraw as counsel for an abuse of discretion. 34
Sierra argues that the district court had an obligation to
make a thorough inquiry concerning his attorney’s lack of
preparation for the trial and that the court would have realized,
through further inquiry, that trial counsel was incompetent.
33
State v. McGuire, supra note 2.
34
Id.
- 266 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
However, the record indicates that the court investigated
and addressed all of the specific examples of incompetency
alleged by Sierra at the time of the hearing. At the hearing
on the motion to withdraw, Sierra’s attorney indicated that
the reason for the motion was a breakdown of the attorney-
client relationship. Sierra indicated at the hearing that he
had stopped speaking with his attorney and had tried to have
his fiance and mother talk with her instead. Sierra’s attor-
ney explained that she did not respond to calls by Sierra’s
fiance and mother, because doing so would violate attorney-
client privilege.
The court heard each of Sierra’s complaints and determined
they did not warrant the withdrawal of counsel. The facts
demonstrated at the hearing do not indicate the district court
abused its discretion in concluding that under the evidence
presented, Sierra’s attorney was representing Sierra compe-
tently. Therefore, we find no merit to Sierra’s assignment
that the trial court erred in overruling his attorney’s motion
to withdraw.
(b) Ineffective Assistance
Relatedly, Sierra raises on direct appeal that the break-
down in communication with his attorney constituted inef-
fective assistance of counsel. Sierra asserts that he met with
his attorney only twice before trial. Sierra claims he pro-
vided his attorney with information and names of potential
witnesses at the first meeting. Sierra contends that at the
second meeting, she took a personal call and then was in a
hurry to leave. Sierra describes that he had more informa-
tion that he was attempting to provide his attorney concern-
ing his defense and that she did not consider that informa-
tion because she was distracted during their second meeting.
We find that the record is insufficient for us to address this
claim on direct appeal. The nature and extent of meetings in
preparation for trial between Sierra and his attorney are not
in the record.
- 267 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
4. Evidence of Tools Found in Sierra’s
and Mally’s Possession
We next address Sierra’s claims that various acts of defi-
cient conduct by his attorney led to the admission at trial of
prejudicial evidence of his and Mally’s possession of the sto-
len tools.
(a) Failure to Move to Suppress Search
of Sierra’s Residence
Sierra first argues that his attorney was ineffective by fail-
ing to move to suppress all of the evidence obtained from the
search of Sierra’s residence, on the ground that he did not
consent to the search. The record indicates that Sierra’s home
was searched without a warrant pursuant to a clause in his
probation order. We have held that certain probation orders
may contain conditions authorizing warrantless searches under
specific circumstances when such orders comply with consti-
tutional requirements and contribute to the rehabilitation of
the offender. 35 Because the probation order and evidence of
Sierra’s consent to the order are not in the record, we cannot
determine whether failure to file the motion to suppress was
deficient or prejudicial. We find that the record is insufficient
for us to address this claim on direct appeal.
(b) Failure to Move to Suppress Tools
Found in Mally’s Possession
as Unfairly Prejudicial
Second, Sierra argues that evidence related to tools found
in Mally’s possession was inadmissible under Neb. Rev. Stat.
§ 27-403 (Reissue 2016) and that his attorney was ineffec-
tive in failing to object to the evidence on this ground. Sierra
provides a specific list of exhibits and portions of testimony
which reflect the fact that stolen tools were found in Mally’s
possession and which Sierra asserts his attorney should have
35
See, U.S. v. Brown, 346 F.3d 808 (8th Cir. 2003); State v. Morgan, 206
Neb. 818, 295 N.W.2d 285 (1980).
- 268 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
objected to as unfairly prejudicial under § 27-403. Sierra con-
cedes that she objected to several of the exhibits in question
as lacking foundation or as irrelevant under Neb. Rev. Stat.
§ 27-402 (Reissue 2016). In fact, the court sustained some of
her objections to similar evidence.
[16] To show prejudice under Strickland, it must be shown
that a motion under § 27-403 should have resulted in the evi-
dence in question’s being ruled inadmissible and that, without
such evidence, there is a reasonable probability of a different
outcome in the trial. 36 In the context of § 27-403, unfair preju-
dice means an undue tendency to suggest a decision based on
an improper basis. 37 Unfair prejudice speaks to the capacity of
some concededly relevant evidence to lure the fact finder into
declaring guilt on a ground different from proof specific to the
offense charged, commonly on an emotional basis. 38
When the State is prosecuting an individual for conspiracy
to commit burglary, items found in the possession of a cocon-
spirator are undoubtedly relevant to the crime charged. In
fact, Sierra does not challenge on appeal the fact that the
district court overruled his attorney’s relevancy objections to
the evidence.
Sierra makes the conclusory statement that admitting evi-
dence of the tools found in Mally’s possession made it more
difficult for the jury to weigh Sierra’s defense, but Sierra
fails to articulate how this evidence could lead a jury to
convict Sierra for an incorrect reason. Sierra’s defense was
that he did not take part in the burglary, but bought the tools
found in his possession from Mally. The fact that Mally had
stolen tools in his home, which Sierra did not “purchase,”
is not inconsistent with this defense. It is not deficient con-
duct to fail to object on grounds that are likely to properly
be overruled.
36
See, Strickland v. Washington, supra note 7; State v. Chairez, supra note 5.
37
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
38
Id.
- 269 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
We find no merit to Sierra’s contention that his attorney was
ineffective for failing to object on § 27-403 grounds to evi-
dence that stolen tools were found in Mally’s possession.
5. Failure to Object to
Identification Evidence
Sierra asserts that his attorney was also ineffective by fail-
ing to make the appropriate motions or objections concerning
several pieces of identification evidence adduced during the
testimony of Wolfe and Hanke. Sierra contends that his attor-
ney was ineffective by failing to make hearsay, foundation, and
Confrontation Clause objections, presumably to each part of
the testimony and each exhibit specified.
We find that Sierra has failed to sufficiently assign and
argue any claim related to his attorney’s failure to object on
Confrontation Clause grounds. The protections afforded by the
Confrontation Clauses of the Nebraska and U.S. Constitutions
overlap with the purposes and policies of the rules on hearsay.
The Nebraska Evidence Rules provide that hearsay is generally
inadmissible except as provided by these rules, by other rules
adopted by the statutes of the State, or by the discovery rules
of the Nebraska Supreme Court. 39 Where testimonial state-
ments are at issue, the Confrontation Clause and the Nebraska
Constitution demand that hearsay statements be admitted at
trial only if the declarant is unavailable and there has been a
prior opportunity for cross-examination; if the statements are
nontestimonial, then no further Confrontation Clause analysis
is required. 40
While Sierra provides annotations to several large swaths of
Wolfe’s and Hanke’s testimony, he fails to describe with any
specificity even a single statement by either Wolfe or Hanke
that he alleges to be testimonial. We will not scour the record
to determine which portions of their testimony, or what portion
39
Neb. Rev. Stat. § 27-802 (Reissue 2016). See, also, Neb. Rev. Stat.
§§ 27-801 through 27-806 (Reissue 2016).
40
See State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
- 270 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
of the exhibits annotated to, Sierra contends were objectionable
on Confrontation Clause grounds.
We find that Sierra has failed to sufficiently argue his
attorney’s deficient conduct as to the alleged failure to make
Confrontation Clause objections. 41 An ineffective assistance
of counsel claim is raised on direct appeal when allegations of
deficient performance are made 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. 42 A claim insufficiently stated is no different
than a claim not stated at all. 43
(a) Photographic Exhibits and
Identification Statements
We next consider Sierra’s contention that his attorney should
have raised both foundation and hearsay objections to portions
of Wolfe’s and Hanke’s testimony identifying Sierra and Mally
as the individuals depicted in the photographs contained in
exhibits 1 and 23. Exhibit 1 consists of photographs provided
by Wolfe to law enforcement after Mally was suspected of
shoplifting from the York Walmart. During Wolfe’s testimony,
the State authenticated, picture by picture, each photograph
contained in exhibit 1. Exhibit 1 was received into evidence
after the court overruled Sierra’s attorney’s foundation objec-
tion. Exhibit 23 was entered into evidence based on the tes-
timony provided by Mally. Sierra does not assign error to the
admission of exhibits 1 and 23.
The photographs in exhibit 1 depict a person exiting the
York Walmart with Mally and then that person and Mally get-
ting into separate vehicles in the parking lot. Wolfe identified
41
See State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
42
Id.
43
Id.
 - 271 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
the second individual as Sierra. Sierra argues that his attorney
was ineffective for failing to move to strike Wolfe’s identifica-
tion of Sierra after evidence was adduced on cross-examination
that Wolfe identified Sierra based on reading his name in the
newspaper after the incident. We do not have sufficient evi-
dence on the record to determine deficiency or prejudice. We
find that the record is insufficient to determine this claim on
direct appeal.
Similarly, we find the record is insufficient to determine
Sierra’s assertion that his attorney was ineffective for failing to
object on foundation and hearsay grounds to Hanke’s identifi-
cation of Sierra in the photographs contained in exhibits 1 and
23. Hanke admitted that he did not personally identify Sierra as
the second person depicted in the photographs. Rather, Hanke
testified that he received information from the Butler County
sheriff identifying the second person in the photographs in
exhibit 1 as Sierra. Hanke also testified that the photographs
taken from the Norfolk Walmart, exhibit 23, depicted Sierra
and Mally.
Although Hanke lacked personal knowledge and his state-
ment relaying information from the Butler County sheriff was
inadmissible hearsay, 44 we do not have information in the record
concerning Sierra’s attorney’s trial strategy. Furthermore, we
do not know what theories of prejudice Sierra is alleging relat-
ing to this claim because an appellant is only required to allege
deficient conduct on direct appeal. 45 Accordingly, we find the
record is insufficient to resolve this claim on direct appeal.
(b) Testimony About Search of Sierra’s
Residence, Location of Trailer,
and Cell Phone Records
Sierra asserts that his attorney missed objections to three
other portions of Hanke’s testimony on foundation and hearsay
44
See §§ 27-801 and 27-803(23).
45
See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State v.
Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
- 272 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
grounds. Sierra contends that had she made the proper objec-
tions, the court would have sustained the objections, which
would have prevented the admission of several pieces of preju-
dicial evidence, unless the State called the proper witnesses to
adduce the evidence. Sierra identifies the testimony at issue
as statements about the location of the recovered trailer, tes-
timony related to the search of his residence, and cell phone
location data retrieved from a search warrant. Sierra argues
that assuming the State would not have called additional wit-
nesses to present such evidence, if Sierra’s attorney had made
objections that would have been sustained, there would have
been a void in the circumstantial evidence significant enough
to raise a reasonable doubt as to whether he committed the
crimes charged.
(i) Trailer
Hanke testified as to the location of the trailer without
specifying who recovered the trailer and whether he had per-
sonal knowledge of its recovery. We cannot determine whether
either a hearsay or a foundation objection would have had
merit without knowing whether Hanke had personal knowl-
edge of the trailer’s recovery. That information is not in the
trial record. Without being able to determine whether either
objection had merit, we cannot determine on direct appeal
whether Sierra’s attorney’s failure to object was deficient and
whether Sierra was prejudiced by deficient conduct. Thus,
we find the record is insufficient to resolve this claim on
direct appeal.
(ii) Tools Found in Sierra’s Residence
Evidence of the physical tools and photographs of tools
recovered from Sierra’s residence were admitted based upon
Hanke’s testimony despite the fact that Hanke did not take
part in the search of Sierra’s residence. Sierra argues that his
attorney was ineffective for failing to object on foundation and
hearsay grounds to this evidence, found in exhibits 3 and 14.
However, she objected to the admission of exhibit 3.
- 273 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
Exhibit 3 was a series of photographs of items taken from
Extreme Automotive and recovered during the search of Sierra’s
residence. Sierra’s attorney objected to exhibit 3 on foundation
and, after a clarification from the State, made a second objec-
tion on relevancy that was overruled. Sierra does not assign
error to the trial court’s rulings on any of these objections.
Sierra’s attorney did not object to exhibit 14. The record does
not reveal any grounds that would have warranted an objection
to exhibit 14. The record demonstrates Sierra’s attorney repeat-
edly made the appropriate hearsay and foundation objections
to the evidence at issue. Thus, we find no deficient conduct by
her related to Hanke’s testimony about items recovered from
the search of Sierra’s residence.
(iii) Cell Phone Records
Hanke was the sole source for the content of the cell phone
records. Hanke testified that he obtained a search warrant for
the records and that those records indicated Sierra was in York
on October 15, 2017. Neither the warrant nor the records are
in evidence, and no cell phone company represetnative testified
as to the authenticity of the records provided. Sierra’s attorney
made no objections to this testimony, and Sierra asserts that
this constituted ineffective assistance of counsel.
Hanke’s testimony about the contents of the cell phone
records very well may have violated evidence rules for foun-
dation and hearsay. 46 Although Sierra’s attorney’s failure to
object on these grounds may qualify as deficient conduct, we
cannot make that determination without information about her
trial strategy, which is not contained in the appellate record.
Moreover, we decline to speculate on direct appeal about
whether the State would have called additional witnesses to
authenticate the records if she had made the objections and
they had been sustained. Thus, we find the record is insuffi-
cient to resolve this claim on direct appeal.
46
See § 27-802 and Neb. Rev. Stat. § 27-901 (Reissue 2016).
- 274 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
6. Failure to Object to “Proffer
Interview” Evidence
Sierra contends that his attorney was also ineffective for
failing to object to Hanke’s testimony about Sierra’s statements
made during a “proffer interview.” Hanke testified to a second
interview that occurred with Sierra where Sierra admitted to
being in York. No information appears in the record about the
nature of this second interview. The term “proffer interview” is
one way of describing interviews that occur in order to arrive
at a negotiated plea in exchange for a defendant’s cooperation;
this is also referred to as “plea negotiations” 47 or, in federal
cases, as “‘cooperation-immunity agreements.’” 48
Typically, “proffer interviews” involve some sort of agree-
ment. The interpretation of such an agreement is governed by
general contract principles, and an alleged violation by the
State of the agreement implicates the due process rights of
the defendant. 49 The record does not contain any information
about any alleged agreements between the State and Sierra
prior to the interview. Thus, the record is insufficient to deter-
mine this claim on direct appeal.
7. Failure to Request Accomplice
Jury Instruction
Having addressed all of Sierra’s arguments concerning the
evidence adduced at trial, we now turn to the jury instruc-
tions. Sierra argues his attorney was ineffective because she
failed to request a cautionary jury instruction on accomplice
testimony. Sierra claims that she should have requested an
instruction, patterned from NJI2d Crim 5.6, which would
have read:
“There has been testimony from . . . Mally, a claimed
accomplice of [Sierra]. You should closely examine his
47
See State v. McGee, 282 Neb. 387, 395, 803 N.W.2d 497, 505 (2011).
48
See United States v. Brown, 801 F.2d 352, 354 (8th Cir. 1986).
49
See State v. Wacker, 268 Neb. 787, 688 N.W.2d 357 (2004).
- 275 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
testimony for any possible motive he might have to tes-
tify falsely. You should hesitate to convict [Sierra] if you
decide that . . . Mally testified falsely about an important
matter and that there is no other evidence to support his
testimony. In any event, you should convict [Sierra] only
if the evidence satisfies you beyond a reasonable doubt of
his guilt.” 50
Whether Sierra’s attorney was deficient for not requesting
an instruction on accomplice testimony depends in part on
whether such an instruction was warranted.
[17,18] A defendant is clearly entitled to a cautionary
instruction on the weight and credibility to be given to the tes-
timony of an alleged accomplice, and the failure to give such
an instruction, when requested, is reversible error. 51 We have
held that whenever a judge decides that the evidence supports
a conclusion that a witness is an accomplice and the defendant
requests a cautionary instruction, the instruction is appropriate
and should be given. 52 This is because any alleged accomplice
testimony should be examined more closely by the trier of fact
for any possible motive that the accomplice might have to tes-
tify falsely. 53
There is evidence on the record to indicate Mally was an
accomplice. Sierra’s attorney adduced evidence on cross-
examination of the benefits he was receiving from the State in
exchange for his testimony, and Mally’s plea deal was entered
into evidence. If she had requested a cautionary instruction on
accomplice testimony, the instruction should have been given.
It is unclear on the trial record why Sierra’s attorney did not
request such an instruction, but we cannot say on the record
before us that the failure to request a cautionary instruction
50
Brief for appellant at 45.
51
See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
52
See id.
53
Id.
 - 276 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
on accomplice testimony was deficient and prejudicial under
Strickland. 54 Thus, we find that the record is insufficient for
us to address this claim on direct appeal.
8. Failure to Maintain
Adequate Record
Sierra generally contends that his attorney was ineffective
for not maintaining a record of certain portions of the trial.
This contention rests on the idea that there could have been
potential due process violations during these parts of the trial.
The portions that went unrecorded included voir dire, clos-
ing arguments, and the reading of the instructions to the jury.
Without a sufficient record, Sierra argues that he is foreclosed
from assigning such violations as errors on appeal. Sierra
does not elaborate on what the alleged violations were, except
as to the error related to the accomplice jury instruction dis-
cussed above.
We have long held that both parties can waive the creation
of the record for nonevidentiary proceedings. 55 The burden
to create the trial record is on the trial court; however, this
burden only extends to the evidence offered at trial and other
evidentiary proceedings, and it may be waived for noneviden-
tiary proceedings. 56 None of the proceedings omitted from the
record involved the presentation of evidence at trial.
[19] Raising a claim of ineffective assistance based on
the mere conjecture that something inappropriate may have
occurred during these proceedings is not enough. Sierra was
present during each part of the trial, including those portions
not on the record. Thus, he has knowledge of what occurred
and was free to assign on appeal any specific claims of defi-
ciency by his attorney during the proceedings not on the
54
See Strickland v. Washington, supra note 7.
55
See Gerdes v. Klindt’s, Inc., 247 Neb. 138, 525 N.W.2d 219 (1995).
56
See, id.; Lockenour v. Sculley, 8 Neb. Ct. App. 254, 592 N.W.2d 161 (1999).
See, also, Neb. Ct. R. App. P. § 2-105(A)(2) (rev. 2018).
- 277 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
record. When recordation of parts of a trial is not made man-
datory by the rules, the failure to request recordation cannot
be said, ipso facto, to constitute negligence or inadequacy of
counsel. 57 When the defendant was present but does not allege
what specific deficient conduct was not recorded, the defendant
fails to allege with sufficient specificity how trial counsel was
deficient by simply alleging that counsel waived creation of a
trial record for nonevidentiary proceedings. 58
Other than the allegation relating to the accomplice jury
instruction, Sierra has not assigned any specific allegations of
deficient conduct; nor has he made any specific arguments,
related to voir dire or closing arguments. We do not address
those claims alleging simply that the failure to create a trial
record, in itself, constituted ineffective assistance.
Sierra has alleged specifically deficient conduct pertaining
to the jury instructions. However, the assignment of ineffec-
tive assistance is unrelated to the reading of the jury instruc-
tions. Rather, Sierra alleges the deficient conduct was in the
failure to request that the giving of the jury instructions be
recorded.
Counsel is not required to request a record of the reading of
the jury instructions, because instructions to the jury, whether
given or refused, when filed in a cause, are a part of the record
and need not be embodied in the bill of exceptions. 59 Thus, an
ineffective assistance claim asserting deficient conduct based
on a failure to request that a record be made of the reading of
the jury instructions would need to specifically allege that trial
counsel was deficient in conduct during the reading of the jury
instructions. Sierra has failed to specify deficient conduct by
his trial counsel during the reading of the jury instructions. We
find this claim to be without merit.
57
State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).
58
See, State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017);
State v. Jones, supra note 57.
59
See Bennett v. McDonald, 52 Neb. 278, 72 N.W. 268 (1897).
- 278 -
Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. SIERRA
Cite as 305 Neb. 249
9. Failure to Maintain Law License and
Appropriate Moral Standing
Lastly, Sierra claims that his attorney’s failure to maintain
her law license and the investigation into her criminal conduct
rendered his attorney per se ineffective. There is no evidence
in the record concerning Sierra’s attorney’s personal conduct
or any potential conflict of interest. At the original sentenc-
ing hearing, she made a motion to withdraw, it was granted,
and the trial court gave a newly appointed public defender
additional time to prepare for sentencing. No further details
are provided. We find that the record is insufficient for us to
address this claim on direct appeal.
VI. CONCLUSION
For the foregoing reasons, we vacate Sierra’s convictions
and sentences pursuant to counts III and IV of the State’s
amended information, which each asserted a separate offense
of theft by unlawful taking ($5,000 or more). Furthermore, we
find that the district court did not abuse its discretion in deny-
ing the motion to withdraw and in granting the State’s motion
in limine. We find the claims of ineffective assistance of coun-
sel for agreeing not to call Sierra’s fiance as a witness, failure
to request a continuance, failure to exclude evidence found in
Mally’s possession, and failure to object to Hanke’s testimony
about evidence found at Sierra’s residence to be without merit.
We find the claim of ineffective assistance of counsel for fail-
ure to maintain a sufficient record of voir dire, closing argu-
ments, and jury instructions to be insufficiently stated. We find
the record is insufficient to address the remaining ineffective
assistance of counsel claims on direct appeal.
Affirmed in part, and in part vacated.