Motions for Continuance: Appeal and Error.
An appellate court reviews a judge's ruling on a motion
to continue for an abuse of discretion.
Criminal Law: Motions for New Trial: Appeal and
Error. In a criminal case, a motion for new trial is
addressed to the discretion of the trial court, and unless an
abuse of discretion is shown, the trial court's
determination will not be disturbed.
Rules of Evidence: Other Acts: Appeal and
Error. It is within the discretion of the trial
court to determine relevancy and admissibility of evidence of
other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Cum. Supp. 2014), and the trial
court's decision will not be reversed absent an abuse of
Jury Instructions: Appeal and Error. Whether
a jury instruction is correct is a question of law, which an
appellate court independently decides.
Effectiveness of Counsel: Appeal and Error.
Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. In
reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only questions of
law: Are the undisputed facts contained within the record
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and was the defendant
prejudiced by counsel's alleged deficient performance?
Trial: Evidence: Prosecuting Attorneys: Due
Process. The nondisclosure by the prosecution of
material evidence favorable to the defendant, requested by
the defendant, violates due process, irrespective of the good
faith or bad faith of the prosecution. But due process is not
violated where the evidence is disclosed during trial.
Expert Witnesses: Evidence. An expert's
oral, unrecorded opinions do not fall within the scope of
Neb. Rev. Stat. § 29-1912(1)(e) (Cum. Supp. 2014).
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Motions for Continuance: Appeal and Error.
There is no abuse of discretion by the court in denying a
continuance unless it clearly appears that the party seeking
the continuance suffered prejudice as a result of that
Criminal Law: Motions for New Trial: Evidence:
Proof. A criminal defendant who seeks a new trial
because of newly discovered evidence must show that if the
evidence had been admitted at the former trial, it would have
probably produced a substantially different result.
Rules of Evidence: Other Acts. Under Neb.
Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp.
2014), evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he or she acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
___: ___. Neb. Evid. R. 404(2), Neb. Rev. Stat. §
27-404(2) (Cum. Supp. 2014), does not apply to evidence of a
defendant's other crimes or bad acts if the evidence is
inextricably intertwined with the charged crime.
_ . Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime, or evidence
that is so blended or connected to the charged crime that
proof of the charged crime will necessarily require proof of
the other crimes or bad acts, or if the other crimes or bad
acts are necessary for the prosecution to present a coherent
picture of the charged crime.
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's refusal to give the tendered instruction.
Jury Instructions: Appeal and Error. All the
jury instructions must be read together, and if, taken as a
whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
evidence, there is no prejudicial error necessitating
16. Criminal Law. To
constitute one an accomplice, he must take some part in the
crime, perform some act, or owe some duty to the person in
danger that makes it incumbent on him to prevent the
commission of the crime. Mere presence, acquiescence, or
silence, in the absence of a duty to act, is not enough to
constitute one an accomplice. The knowledge that a crime is
being committed cannot be said to constitute one an
Effectiveness of Counsel: 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
Postconviction: Effectiveness of Counsel: Appeal and
Error. When a defendant was represented both at
trial and on direct appeal by the same lawyers, generally
speaking, the defendant's first opportunity to assert
ineffective assistance of trial counsel is in a motion for
Postconviction. The need for finality in the
criminal process requires that a defendant bring all claims
for relief at the first opportunity.
Postconviction: Appeal and Error. A motion
for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have been
litigated on direct appeal.
Effectiveness of Counsel: Time: Appeal and
Error. Claims of ineffective assistance of counsel
raised on direct appeal by the same counsel who represented
the defendant at trial are premature and will not be
addressed on direct appeal.
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
Effectiveness of Counsel: Proof. To prevail
on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the defendant must show that
counsel's performance was deficient and that this
deficient performance actually prejudiced his or her defense.
_ . 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.
_ . To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel's deficient
performance, the result of the proceeding would have been
Trial: Attorneys at Law: Effectiveness of Counsel:
Appeal and Error. When reviewing claims of alleged
ineffective assistance of counsel, an [294 Neb. 554]
appellate court affords trial counsel due deference to
formulate trial strategy and tactics.
Effectiveness of Counsel: Presumptions: Appeal and
Error. The entire ineffectiveness analysis is viewed
with a strong presumption that counsel's actions were
reasonable and that even if found unreasonable, the error
justifies setting aside the judgment only if there was
Effectiveness of Counsel: Proof. In an
ineffective assistance of counsel claim, deficient
performance and prejudice can be addressed in either order.
If it is more appropriate to dispose of an ineffectiveness
claim due to lack of sufficient prejudice, that course should
from the District Court for Douglas County: Gary B. Randall,
C. Riley, Douglas County Public Defender, Ally son A.
Mendoza, and Mary Mullin Dvorak for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
appellee. Heavican, C.J., Wright, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ., and Bishop, Judge.
direct appeal, Tracy N. Parnell challenges his convictions,
pursuant to jury verdict, for first degree murder, attempted
first degree murder, two counts of use of a deadly weapon to
commit a felony, and possession of a weapon by a prohibited
person. His two primary arguments attack denials of his
motions to continue the trial and for a new trial. These
arguments are premised upon untimely disclosure of opinions
of a cellular analyst and rely on Brady v.
Maryland and a discovery statute. He also complains
that his earlier threats toward one of the victims were
admitted in evidence, [294 Neb. 555] his requested
instruction on accomplice testimony was refused, and his
trial counsel provided ineffective assistance. Finding no
merit in his arguments, we affirm.
October 30, 2012, at around 8:14 p.m., Eriana Carr and Nakia
Johnson were shot outside of Carr's residence in Omaha,
Nebraska. Carr was shot twice and died from her injuries.
Johnson was shot 11 times and survived. Johnson told
investigators that the shots came from "a blue Nissan
Altima with a messed up front bumper." She did not see
a pretrial hearing, Johnson explained how she met Parnell.
This occurred at a September 2012 birthday party for one of
Johnson's friends, who was involved with Parnell. Johnson
knew Parnell only by his nickname, "Laylow." At
that birthday party, Johnson had a short conversation with
Parnell regarding his car, a blue Nissan Altima. She told him
that a Nissan Altima was her favorite car, and Parnell
responded, "'That's what's up.'"
Then Parnell left.
told investigators that Parnell threatened her 2 days before
the shooting. Johnson testified that the threat occurred on
October 28, 2012, after "a little get-together" at
her friend's apartment, where she sometimes stayed
overnight. Parnell and several other people attended the
get-together. A man with whom Johnson was involved, Ryan
Fraiser, attended and later left. Fraiser is from another
"hood" and a different gang than the others at the
party. Johnson went to bed after the party and was awoken by
Parnell and three others. They were yelling at Johnson
because "they felt like [she] had brought someone into
the house from another side, " or "[a]nother
the others left, but Parnell remained. He paced back and
forth in front of Johnson's door and was "saying all
kind[s] of stuff . . . indirectly to [Johnson]." Johnson
[294 Neb. 556] told Pamell to "[s]hut the [expletive] up
talking to me, " and Parnell left. He returned with a
gun in his hand. Pamell stared at Johnson while holding the
gun. Johnson grabbed her cell phone, and Parnell told her to
call Fraiser and tell him that Parnell would "be outside
waiting for him." Johnson was scared and called the 911
emergency dispatch service because Parnell "was blocking
[her] way to the door" and she did not know "what
was about to happen." When Johnson ended the call,
was eventually prosecuted for the threat, but not until after
the shooting. At that point, the State filed an information
charging Parnell with committing terroristic threats. He pled
no contest and received a sentence of 20 to 24 months'
investigated the Nissan Altima involved in the shooting. They
discovered that Parnell had been stopped while driving a blue
Nissan Altima several months earlier. The registered owner of
the car was Jasmine Nero, who was also the mother of
investigator testified that she interviewed Parnell and asked
him about the Altima. Parnell claimed that he only drove his
aunt's car and that he never drove any of Nero's
vehicles. He denied any knowledge of an Altima.
call from jail, Parnell spoke to Nero about the Altima. Nero
testified at trial that she understood from that call that
Parnell wanted her "to get rid of the car. Nero moved
the car to a garage, where investigators later found it. The
car's front bumper was damaged, and it contained a box
with Parnell's thumbprint on it.
Pretrial Motions The State filed an information charging
Parnell with five counts: murder in the first degree, two
counts of use of a deadly weapon to commit a felony,
attempted first degree murder, and possession of a deadly
weapon by a prohibited [294 Neb. 557] person. The district
court ordered mutual and reciprocal discovery "pursuant
trial, the State filed a notice under rule 404 of its intent to
offer evidence of Parnell's terroristic threat against
Johnson to show motive, intent, and plan. Parnell filed a
motion in limine requesting to exclude the State's
cellular analyst pursuant to the standards of
DaubertlSchafersmart. The district court held a joint
hearing on the motions. Later, Parnell filed a motion to
continue the trial.
portion of the joint hearing related to rule 404, Johnson
testified regarding Parnell's threatening behavior before
the shooting. The State introduced Johnson's 911 call, a
certified copy of Parnell's conviction and sentence for
terroristic threats, and police reports about the threat.
written order, the district court concluded that
Parnell's threatening behavior was inextricably
intertwined with the crime charged and therefore not subject
to rule 404. It reasoned that it "forms part of the
factual setting of the murder. It is evidence that explains
an integral part of the immediate context of the crime
charged." The district court concluded further that even
if the threat was subject to rule 404, it would still be
admissible, because it "demonstrates [Parnell's]
motive and that the subsequent shooting was gang related;
thus it is admissible to show intent."
DaubertlSchafersman portion of the joint hearing,
the State's expert, William Shute, testified regarding
his qualifications and methods. Shute is a special agent with
the Federal Bureau of Investigation (FBI) and a member of the
[294 Neb. 558] FBI's "Cellular Analysis Survey
Team." He performs "historical cell site
analysis" using call detail records provided by cellular
explained that call detail records show the "first
serving cell site, " which is the tower a particular
cell phone used, and the "first serving cell face,
" which is the sector of the tower used. Cell towers
usually have three sectors. The FBI's survey team members
use call detail records to determine "what tower and
sector of the tower was being utilized for service" and
then plot the towers and sectors on a map. They then look for
patterns and "come up with a geographical plot as to
where [they] believe that individual is at that particular
also testified regarding the locations of Parnell's cell
phone around the time of the shooting. He prepared a
PowerPoint presentation that included Parnell's call
detail records. The records showed that Parnell's cell
phone connected to tower: (1) 201 at 7:52 p.m., (2) 729 at
8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20 p.m., and
(5) 201 at 8:20 p.m. Shute plotted the towers and their
coverage areas on a map. The map showed the coverage areas as
shaded "pie wedges."
testified that the coverage areas for towers 201 and 729
overlap. He said that the way that Parnell's cell phone
switched between towers 201 and 729 showed that it was
definitely located within the overlapping coverage area at
the time of the shooting. A map in his PowerPoint
presentation depicted the crime scene within the overlapping
court overruled Parnell's motion in limine. It concluded
that Shute was qualified to testify as an expert and that his
methods were reliable.
Motion for Supplemental Discovery
March 2015, Parnell filed a motion requesting supplemental
discovery from the State. The motion is not in our record.
Parnell's counsel, Daniel Stockmann, filed an affidavit
with the motion. This affidavit is in our record. In it, [294
Neb. 559] Stockmann states that he learned that certain
undisclosed discovery materials existed after he attended a
March 6, 2015. seminar where cellular analyst Michael
O'Kelly presented. In the discovery process, the State
had shared a police report and maps showing that O'Kelly
had performed basic cell phone mapping services for the Omaha
the seminar, Stockmann e-mailed O'Kelly and asked whether
he had performed services for the department which were not
disclosed in the police report. O'Kelly's counsel
responded and said that although O'Kelly could not
disclose what work he had performed for the department, he
could confirm that O'Kelly performed more services than
were disclosed in the report. Parnell then filed the motion
for supplemental discovery regarding O'Kelly's
services, which the district court granted.
the court ordered supplemental discovery, O'Kelly
provided Parnell's counsel with an affidavit detailing
his interactions with the State, and the State disclosed a
series of e-mails between O'Kelly, Det. Sherry King of
the Omaha Police Department, and Deputy Douglas County
Attorney Brenda Beadle.
affidavit, O'Kelly stated that he "reviewed the . .
. call detail records and concluded that [Parnell's cell
phone] appeared to travel from the west side of Omaha [where
Parnell lived] to the east side, then north and south and
then traveling back to the general area on the west
side." O'Kelly said that he "began processing
and mapping the individual cell site registrations. The
handset transition west to east, north/ south and east to
west activities were confirmed." He then "provided
Detective King with multiple maps depicting handset movements
consistent with cell site registrations that supported
physical movement from Omaha's west side to the east side
and possible travel movements north and south on the east
also stated that he informed King that "it is impossible
to identify a specific location stop(s), specific surface
[294 Neb. 560] roadway travels based upon the existing
cellular data." He told her that "drawing circles
and other shapes with defined boundaries is unreliable and at
best simple guessing with an agenda. The 'guessing'
may be based upon experience and training but will still have
no foundation and/or credible support that is rooted with
existing electronic wireless data." And he told her that
"in order to possibly place the subject [cell phone] in
the immediate area of the crime scene ... it will be
necessary to conduct an RF Signal Field Survey." He
"provided an explanation of the FBI's RF Signal
mapping approach versus the O'Kelly approach." And
he explained that his approach to performing such a survey,
or drive test, "is time consuming and labor intensive
covering days if not weeks." He said that after
performing the survey, the tower coverage areas would
"appear similar to that of an amoeba and will be unique
to each cell site."
e-mails, King asked O'Kelly whether he had a formal
report to present to the county attorney's office.
O'Kelly responded that a report in writing would be
"[discoverable" and that he "would recommend
the county attorney and I visiting and then letting them
decide." Although the documents do not contain a record
of a call, they do contain a followup e-mail that indicates
that O'Kelly spoke with Beadle.
Motion to Continue or Exclude
March 23, 2015, Parnell filed a motion asking the court to
exclude Shute's testimony or continue the trial, which
was scheduled to begin March 30. The motion was based on the
State's "belated disclosure of discovery
materials" related to O'Kelly. In the motion,
Parnell acknowledged that the State had previously disclosed
that O'Kelly worked on the case. He argued that the State
violated its duty under § 29-1912 and Brady v.
Maryland to disclose O'Kelly's opinions
that a drive test was necessary and that the FBI's
methods were not reliable. [294 Neb. 561]
hearing on the motion to continue, Parnell offered
0'Kelly's affidavit. He did not offer the series of
e-mails between O'Kelly, King, and Beadle. Stockmann
[T]he second that . . . Shute . . . provided the opinions to
the government, the government, whether through law
enforcement or the county attorney, was aware that an
exculpatory opinion from . . . O'Kelly existed. [It had]
an obligation to tell me about . . . O'Kelly's
exculpatory opinion. [It] didn't tell me about it; I had
to find it out on my own because I went to a seminar ....
State responded that O'Kelly's opinion was not
exculpatory and that he placed Parnell's cell phone in
the same area as had Shute, although he was not as specific.
court noted that because the State planned to take a week to
present its evidence at trial, Parnell had "12 days,
" and it said that "O'Kelly can get his stuff
together in 12 days" in order to testify. It also stated
that "[i]f [Parnell] wanted to hire a cell tower expert,
[he] could have done it at any time in the last two
written order, the district court found that the evidence
relating to O'Kelly was not exculpatory and that it
"[h]ad been provided to [Parnell] at an early
date." Therefore, it was not a valid reason for a
continuance. The court also entered an order permitting
Parnell to retain O'Kelly as an expert witness.
trial, Parnell renewed his motion to continue the trial. At
that time, he offered an exhibit containing the e-mail
exchanges between O'Kelly, King, and Beadle. He said that
he "neglected to offer" it at the earlier hearing.
The court overruled the renewed motion.
trial, Johnson testified and described the shooting, the blue
Nissan Altima, and the threatening incident days earlier.
Shute's testimony was consistent with his testimony at
the [294 Neb. 562] DaubertlSchafersman hearing-he
stated that towers 201 and 729 form an overlap area and that
Parnell must have been within the overlap area ...