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State v. Weathers

Supreme Court of Nebraska

November 8, 2019

State of Nebraska, appellee,
Brandon J. Weathers, appellant.

         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 determines 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 historical 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 independently of the trial court's determination.

         4. Right to Counsel: Appeal and Error. A trial court's decision to sustain 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.

         [304 Neb. 403] 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 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 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 performance actually prejudiced the defendant's defense.

         8.___:___. To show that counsel's performance 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.

         9.___:___. 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 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 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 allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

         13.___:___:___ . General allegations that trial counsel performed deficiently 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.

         [304 Neb. 404] 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 postconviction 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 authorizes the use of reasonable force to collect a DNA sample from a convicted felon.

         20. Criminal Law: Trial: Evidence. Where objects pass through several hands before being produced 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.

         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 custody, and the likelihood of intermeddlers tampering with the object.

         23. Trial: Evidence. Whether there is sufficient foundation to admit physical 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.

         [304 Neb. 405] 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 counsel must remain with an indigent accused unless one of the following 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.

         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 different 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.

          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.


         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 [304 Neb. 406] 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 constitutional rights and in violation of statutory limitations on the use of DNA samples. He further claims, independent of his ineffective 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.


         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, pursuant 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. [304 Neb. 407] 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 necessary 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 [304 Neb. 408] 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 constitutional rights and in violation of statutes governing the collection 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 corrections employees to collect a DNA sample using ...

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