State v. Rush
Citation317 Neb. 622
Date Filed2024-09-20
DocketS-23-076
Cited34 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/20/2024 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. RUSH
Cite as 317 Neb. 622
State of Nebraska, appellee, v.
Deontae C. Rush, appellant.
___ N.W.3d ___
Filed September 20, 2024. No. S-23-076.
1. Administrative Law: Statutes: Appeal and Error. The meaning
and interpretation of statutes and regulations are questions of law for
which an appellate court resolves independently of the lower court’s
conclusion.
2. Evidence: Appeal and Error. A trial court has the discretion to deter-
mine the relevancy and admissibility of evidence, and such determina-
tions will not be disturbed on appeal unless they constitute an abuse of
that discretion.
3. Trial: Evidence: Appeal and Error. Balancing the probative value of
evidence against the danger of unfair prejudice is within the discretion
of the trial court, whose decision an appellate court will not reverse
unless there is an abuse of discretion.
4. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence 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. Whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination. And where the facts are largely
undisputed, the ultimate question is an issue of law.
5. Appeal and Error. Consideration of plain error occurs at the discretion
of an appellate court.
6. Motions for Mistrial: Appeal and Error. The decision whether to
grant a motion for mistrial is within the trial court’s discretion and will
not be disturbed on appeal in the absence of an abuse of discretion.
7. Pretrial Procedure: Rules of Evidence. The rules of evidence do not
operate with full force at hearings before the judge to determine a pre-
liminary question of the admissibility of evidence.
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STATE V. RUSH
Cite as 317 Neb. 622
8. Pretrial Procedure: Rules of Evidence: Statutes: Words and Phrases.
There is no statutory indication the reference to preliminary hearings in
Neb. Rev. Stat. § 27-1101(4)(b) (Reissue 2016) was meant to carry a
special or limited meaning; thus, courts look to its ordinary meaning.
9. Criminal Law: Rules of Evidence: Other Acts. Neb. Rev. Stat.
§ 27-404(1) (Cum. Supp. 2022) operates as a broad exclusionary rule
of relevant evidence that speaks to a criminal defendant’s propensity to
have committed the crime or crimes charged; meanwhile, § 27-404(2)
operates as an inclusionary rule of evidence that provides that evi-
dence that raises a propensity inference is admissible for other proper
purposes, including proof of motive, intent, preparation, or absence of
mistake or accident.
10. Pretrial Procedure: Rules of Evidence: Other Acts: Legislature:
Intent. It was the manifest intention of the Legislature in Neb. Rev. Stat.
§ 27-404 (Cum. Supp. 2022) that the question of whether a prior bad act
is admissible at trial as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident be ruled on
and finally determined before the jury learns of such evidence.
11. Criminal Law: Pretrial Procedure: Rules of Evidence. A hearing pur-
suant to Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) precedes the main
discourse of a criminal case.
12. Trial: Rules of Evidence: Other Acts: Appeal and Error. A defendant
must make an objection at trial to the offer of evidence of other crimes,
wrongs, or acts, which was the subject of a hearing pursuant to Neb.
Rev. Stat. § 27-404 (Cum. Supp. 2022), in order to preserve an alleged
error in its admission during the trial.
13. Pretrial Procedure: Rules of Evidence: Words and Phrases. A hear-
ing conducted under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) is
a preliminary hearing for purposes of Neb. Rev. Stat. § 27-1101(4)(b)
(Reissue 2016), exempting it from the evidence rules.
14. Pretrial Procedure: Rules of Evidence: Hearsay: Judges. In a hear-
ing conducted pursuant to Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022),
the trial judge’s experience and legal training can be relied on to inform
crucial distinctions and to reveal the inherent weakness of evidence by
hearsay.
15. Evidence: Words and Phrases. Relevant evidence is that which has
any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it
would be without the evidence.
16. Evidence. The probative value of evidence involves a measurement of
the degree to which the evidence persuades the trier of fact that the par-
ticular fact exists and the distance of the fact from the ultimate issue of
the case.
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17. ____. Evidence is not irrelevant simply because there is other evidence
admitted at trial supporting a similar inference.
18. Prosecuting Attorneys: Evidence. The State is allowed to present a
coherent picture of the facts of the crimes charged, and it may generally
choose its evidence in so doing.
19. Evidence: Stipulations. A defendant cannot negate an exhibit’s proba-
tive value through a tactical decision to stipulate.
20. Evidence. Most, if not all, evidence offered by a party is calculated to
be prejudicial to the opposing party.
21. Evidence: Words and Phrases. Unfair prejudice means an undue ten-
dency to suggest a decision based on an improper basis.
22. Criminal Law: Evidence: Words and Phrases. 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.
23. Evidence: Other Acts: Convictions. When considering whether evi-
dence of other acts is unfairly prejudicial, courts consider whether the
evidence tends to make conviction of the defendant more probable for
an incorrect reason.
24. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.
The failure to object to evidence at trial, even if the evidence was the
subject of a previous motion to suppress, waives the objection, and a
party will not be heard to complain of the alleged error on appeal.
25. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
26. 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.
27. Criminal Law: Effectiveness of Counsel: Proof. To show that coun-
sel’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.
28. Effectiveness of Counsel: Presumptions. In determining whether trial
counsel’s performance was deficient, courts give counsel’s acts a strong
presumption of reasonableness.
29. Trial: Effectiveness of Counsel: Appeal and Error. An appellate court
will not judge an ineffectiveness of counsel claim in hindsight, and it
will not second-guess trial counsel’s reasonable strategic decisions.
30. Trial: Attorney and Client. The decision to object or not to object is
part of trial strategy.
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STATE V. RUSH
Cite as 317 Neb. 622
31. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
32. Trial: Effectiveness of Counsel: Appeal and Error. When considering
the prejudice prong of ineffective assistance of counsel, appellate courts
focus on whether a trial counsel’s deficient performance renders the
result of the trial unreliable or fundamentally unfair.
33. 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.
34. Effectiveness of Counsel: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal.
35. Effectiveness of Counsel: Records: Appeal and Error. When a claim
of ineffective assistance of trial counsel is raised in a direct appeal, the
appellant is not required to allege prejudice; however, it is advisable
for appellate counsel to specifically argue prejudice if appellate counsel
believes the details in the trial record are sufficient to adequately review
the question on direct appeal.
36. Trial: Effectiveness of Counsel: Records: Appeal and Error.
Regardless of whether appellate counsel believes the details in the trial
record are sufficient to adequately review the question, an appellant
must make specific allegations on direct appeal of the conduct that the
appellant claims constitutes deficient performance by trial counsel.
37. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
38. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
prohibit unreasonable searches and seizures.
39. Constitutional Law: Search and Seizure: Words and Phrases. A
search under the Fourth Amendment occurs whenever an expectation of
privacy that society is prepared to consider reasonable is infringed.
40. Search and Seizure: Search Warrants: Probable Cause. When an
individual seeks to preserve something as private, and the individual’s
expectation of privacy is one that society is prepared to recognize as
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STATE V. RUSH
Cite as 317 Neb. 622
reasonable, official intrusion into that private sphere generally qualifies
as a search and requires a warrant supported by probable cause.
41. Constitutional Law. Under the third-party doctrine, depending on the
nature of the particular documents sought, a person has no legitimate
expectation of privacy in information voluntarily turned over to third
parties, even if revealed on the assumption that it will be used only for
a limited purpose.
42. Constitutional Law: Telecommunications: Records. A cell service
customer does not have a reasonable expectation of privacy in the
records maintained by a third-party service provider of the telephone
numbers that text messages or calls were sent to or received from or in
the times when those communications took place.
43. Trial: Effectiveness of Counsel. As a matter of law, counsel is not inef-
fective for failing to make an objection that has no merit.
44. Witnesses: Testimony. Questions about the extent of a witness’ famil-
iarity with the defendant’s appearance go to the weight of the testimony
and not its admissibility.
45. Evidence: Appeal and Error. The erroneous admission of evidence is
harmless error and does not require reversal if the evidence is cumula-
tive and other relevant evidence, properly admitted, supports the finding
by the trier of fact.
46. Evidence: Photographs. The admission of photographs into evidence
rests largely within the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against their pos-
sible prejudicial effect.
47. ____: ____. A relevant photograph should not be excluded from evi-
dence unless its prejudicial effect is greater than its probative value.
48. Homicide: Evidence: Photographs. In a homicide prosecution, pho-
tographs of a victim may be received into evidence for, among other
things, purposes of identification.
49. Homicide: Photographs. A photograph of the victim of a homicide,
taken before the alleged murder, is admissible for the purpose of identi-
fication, even if there exists no dispute over the identity of the deceased.
50. Effectiveness of Counsel: Witnesses: Appeal and Error. When the
claim of ineffective assistance on direct appeal involves uncalled wit-
nesses, vague assertions that counsel was deficient for failing to call
“witnesses” are little more than placeholders and do not sufficiently
preserve the claim.
51. Effectiveness of Counsel: Postconviction: Witnesses: Appeal and
Error. Appellate counsel must give on direct appeal at least the names
or descriptions of any uncalled witnesses forming the basis of a claim
of ineffective assistance of trial counsel so that a postconviction court
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STATE V. RUSH
Cite as 317 Neb. 622
may later identify whether a particular claim of failing to investigate a
witness is the same one that was raised on direct appeal.
52. Witnesses: Appeal and Error. An appellate court does not need spe-
cific factual allegations as to what an uncalled person or persons would
have said, which will not be found in the appellate record.
53. Effectiveness of Counsel: Records: Appeal and Error. The trial record
reviewed on appeal is devoted to issues of guilt or innocence and does
not usually address issues of counsel’s performance.
54. Effectiveness of Counsel: Appeal and Error. It is not usually an
appellant’s allegations of prejudice that have guided review of ineffec-
tive assistance claims on direct appeal, but the allegations of deficient
conduct.
55. Motions for New Trial: Motions for Continuance. A motion for new
trial on the ground of surprise is properly overruled where a request for
a continuance for that reason was not made at the trial.
56. Trial: Prosecuting Attorneys. In assessing allegations of prosecuto-
rial misconduct in closing arguments, a court first determines whether
the prosecutor’s remarks were improper. If the remarks are found to
be improper, it is then necessary to determine whether the improper
remarks had a prejudicial effect on the defendant’s right to a fair trial.
57. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is nec-
essary to grant a mistrial for prosecutorial misconduct, the defendant
must show that a substantial miscarriage of justice has actually occurred.
58. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of a trial that is
of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
59. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence, and such
matters are for the finder of fact. The relevant question for an appellate
court in reviewing a criminal conviction for sufficiency of the evidence
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
60. Circumstantial Evidence. Circumstantial evidence is entitled to be
treated by the trier of fact in the same manner as direct evidence.
Appeal from the District Court for Lancaster County, Kevin
R. McManaman, Judge. Affirmed.
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STATE V. RUSH
Cite as 317 Neb. 622
Sanford J. Pollack, of Pollack & Ball, L.L.C., and Alexander
Kleinjan, Senior Certified Law Student, for appellant.
Michael T. Hilgers, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant was convicted by a jury of murder in the
first degree and use of a firearm to commit a felony. He
argues on appeal that the district court erred in making several
evidentiary determinations and in failing to grant his motion
for mistrial for prosecutorial misconduct during closing argu-
ments. He also alleges several errors in relation to the failure
to subpoena a law enforcement officer who took the report
of a domestic assault that the defendant contends provided
an alibi for the murder. The defendant makes numerous argu-
ments of ineffective assistance of trial counsel, including that
counsel was ineffective by failing to object to the admission
of his cell site location information, which was obtained by
a warrant that he argues was tainted by information obtained
through an unconstitutional subpoena. Finally, the defendant
asserts that the evidence adduced at trial was insufficient
to find beyond a reasonable doubt that he used a firearm.
We affirm.
II. BACKGROUND
On March 1, 2021, law enforcement was dispatched to North
20th Street in Lincoln, Nebraska, after a neighbor reported that
a door of a trailer home had been open for several days. After
observing signs of a forced entry, officers entered the trailer
and discovered James Shekie, deceased, lying on the floor with
blood around his waist. An autopsy confirmed that Shekie died
from a gunshot wound, which caused him to bleed to death.
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317 Nebraska Reports
STATE V. RUSH
Cite as 317 Neb. 622
1. Police Investigation and Charges
During a search of Shekie’s trailer, law enforcement located
several cell phones, which helped them identify Anna Feilen as
a person of interest in Shekie’s death. Officers located Feilen
and transported her to the Lincoln Police Department, where
she was interviewed. During the interview, Feilen implicated
Deontae C. Rush and her biological brother, Marques Moten
(Marques), in Shekie’s murder.
While in custody, Feilen agreed to participate in a controlled
call with Rush. Rush requested that Feilen take a video of her
location to ensure the police were not involved. During the
call, Rush was deleting messages as he typed them to Feilen.
To preserve the communications, Feilen took screenshots of the
messages, which showed Rush asking Feilen to “delete [her]
side of the conversation” and “keep shut” and stating he had
his alibi “covered.”
Several days later, law enforcement located and arrested
Rush in Chicago, Illinois. He denied any knowledge of or
involvement in Shekie’s murder.
The State charged Rush by information in the district court
for Lancaster County, Nebraska, with first degree murder, a
Class IA felony, and use of a firearm to commit a felony in
violation of Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016),
a Class IC felony. The information alleged that Rush killed
Shekie while committing or attempting to commit a robbery or
burglary. Rush entered a not guilty plea to both charges.
2. Rush’s Pretrial Motions
Before trial, Rush filed several motions to suppress, each of
which related to evidence obtained from his cell phone, cell
phone records, and social media accounts via a subpoena sent
to Verizon Wireless (Verizon) and subsequent probable cause
warrants.
(a) First Motion to Suppress
In his first motion, Rush sought to suppress the cell phone
records subpoenaed from Verizon. Rush claimed the State
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STATE V. RUSH
Cite as 317 Neb. 622
was required to obtain a warrant before seizing his cell phone
records, because a defendant has a reasonable expectation
of privacy in his or her detailed physical movements. The
State’s subpoena had directed Verizon to produce subscriber
information; call detail records; detailed text message records
that excluded content; and, specifically, “IP Destination and
Sessions Without Cell Site Information” for the time period
between February 19 and March 9, 2021.
(b) Second Motion to Suppress
In his second motion, Rush moved to suppress cell phone
records later obtained from Verizon via a search warrant.
He argued these records were improperly obtained, because
the search warrant was tainted by an unlawful subpoena, the
affidavit in support of the warrant did not establish probable
cause, and the affidavit contained false and misleading infor-
mation or material omissions.
The search warrant was issued by the Lancaster County
Court on April 2, 2021. For two telephone numbers belonging
to Marques and Rush, the search warrant demanded, among
other things, subscriber information and all communications
from February 20 to March 10, 2021, including cell calls and
“tower locations and azimuth for the sectors accessed during
the communication[s].” It also demanded “[a]ll content for
SMS messages” for the same time period.
The affidavit supporting the search warrant detailed the
discovery of Shekie’s body and cellular devices in the home,
which led to the identification of Feilen, who had told law
enforcement that Marques and Rush had developed a plan
to break into Shekie’s home and take his marijuana. The
affidavit further specified that on the day of the crime,
Marques and Rush picked up Feilen and drove to Shekie’s
mobile home. Feilen observed that Rush had a firearm with
him in the vehicle. When they arrived, Rush approached the
back door of Shekie’s home, forced the door open, and went
inside, after which Feilen heard multiple gunshots and Shekie
scream. The affidavit continued to describe events following
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STATE V. RUSH
Cite as 317 Neb. 622
the shooting that implicated Rush in Shekie’s death. The affi-
davit set forth that digital evidence obtained from Feilen’s
cell phone showed Feilen and Rush had communicated about
the robbery before and after its commission. In one mes-
sage, Rush told Feilen his cell phone number, and in another,
Feilen provided Marques with Shekie’s address.
The affidavit also referred to the results of the subpoena
served on Verizon. Specifically, the results showed that Marques
called Rush on February 23, 2021, at 12:40 a.m. and that Rush
called Marques at 4:28 a.m. Marques and Rush also exchanged
text messages on March 2.
Investigator Timothy Cronin, who prepared the affidavit,
explained that in his training and experience, location data is
maintained by the cell phone service provider, which in the
present case could corroborate or disprove Rush’s whereabouts
on the date of the murder. Cronin also stated that cell phone
service providers keep records of subscriber information, bill-
ing information, call lists, tower locations, text messages, and
“GPS coordinates.”
(c) Third Motion to Suppress
In a third motion to suppress, Rush sought to suppress all
evidence obtained from a search warrant for his cell phone.
Similarly to the second motion to suppress, Rush maintained
that this evidence should be suppressed because the search
warrant was tainted by an unlawful subpoena, the support-
ing affidavit did not establish probable cause, and the affi-
davit contained false and misleading information or material
omissions.
The search warrant for a black Apple iPhone with a speci-
fied identification number was issued on April 2, 2021, by the
Lancaster County Court. The warrant allowed for the search of
messages, emails, data regarding internet usage, photographs,
videos, and location information. The factual basis for the
affidavit in support of the search warrant, also submitted by
Cronin, was consistent with the affidavit supporting the war-
rant for the search of cellular records.
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In the affidavit, Cronin elaborated, based on his training and
experience, on the frequent use of electronic devices in crimi-
nal activity. He stated that digital storage devices, such as cell
phones, “can be used to create, edit, delete, share, and store
files and other data including, live and deleted documents,
photographs, videos, electronic mail (e-mail), search history
and other relevant user information.” He further specified that
such devices are often used to share data with others and that
the information associated with that data may show, among
other things, “evidence of current, on-going, future, and past
criminal activity.” He also explained that such data can be
used to “identify and locate potential victims, witnesses, and
co-conspirators.”
(d) Fourth Motion to Suppress
In his fourth motion to suppress, Rush moved to suppress
all data from his Facebook social media account obtained via
a search warrant issued by the Lancaster County Court on
March 5, 2021. Rush claimed the evidence must be suppressed
because the affidavit in support of the warrant did not establish
probable cause and contained false or misleading information
and material omissions.
The warrant allowed for the search of certain data associated
with Rush’s Facebook account, including location information,
posts, photographs, videos, status updates, and messages for
the time period of January 1 to March 4, 2021.
The affidavit supporting the search warrant, submitted by
Investigator Christopher Schamber, recited facts consistent with
the affidavits described above. In addition, Schamber stated in
the affidavit that Feilen told law enforcement she communi-
cated with Rush about the homicide through their Facebook
accounts and that Feilen identified Rush’s Facebook accounts
by username and gave a description of his profile pictures.
(e) Fifth Motion to Suppress
In his fifth motion, Rush moved to suppress all evidence
obtained from his Snapchat social media account via a search
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Cite as 317 Neb. 622
warrant issued by the Lancaster County Court on March 16,
2021. Rush again claimed the evidence must be suppressed
because the affidavit in support of the warrant for his Snapchat
account did not establish probable cause and contained false
or misleading information and material omissions.
The search warrant allowed for the search of information
associated with Rush’s Snapchat account with the “user ID
. . . tae402boy.” This included the search of calls, messages,
photographs, videos, and location information for the period of
February 18 to March 10, 2021.
In support of the search warrant, the affidavit, signed
by Investigator Lacey Reha, contained facts consistent with
Cronin’s affidavits described above. In addition, the affidavit
stated that digital evidence from Feilen’s cell phone shows
that she and Rush communicated using Snapchat and that
“[d]igital evidence identified . . . Rush’s Snapchat user ID
[as] tae402boy.”
3. District Court’s Resolution of
Rush’s Motions to Suppress
In a written order, the district court denied all five motions
to suppress. With respect to Rush’s first suppression motion
regarding the subpoenaed records from Verizon, the court
applied the third-party doctrine, which holds that a person
does not have a reasonable expectation of privacy in informa-
tion provided to third parties. The court concluded that Rush
had no reasonable expectation of privacy in the subpoenaed
records. The court recognized an exception to the third-party
doctrine for cell phone records that provide a comprehensive
chronicle of the user’s physical location. However, because
the subpoena excluded any cell site information or other data
regarding Rush’s physical location, the court determined that
the subpoenaed records from Verizon did not involve a search
for which a warrant was required.
The court overruled Rush’s remaining motions to sup-
press on the ground that the search warrants were supported
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by probable cause. It reasoned that the affidavits described
substantial evidence that Rush shot and killed Shekie while
attempting to steal Shekie’s drugs. The court reasoned the affi-
davits showed that Rush communicated about the crime with
his alleged accomplices using his cell phone and his Facebook
and Snapchat accounts. Finally, the court found the affidavits
showed a fair probability that evidence of a crime would be
found on Rush’s cell phone and in the records of Verizon,
Facebook, and Snapchat.
4. Bad Acts Hearing
The State filed a pretrial “Notice of Intention to Use Evidence
of Other Crimes, Wrongs, or Acts” pursuant to Neb. Rev. Stat.
§ 27-404(Cum. Supp. 2022). According to the notice, the State intended to offer at trial evidence obtained from Rush’s cell phone indicating he was distributing marijuana. Before trial, the court held a hearing on the State’s motion. The State offered police reports indicating Shekie was mur- dered during a robbery of his drugs. The State also offered conversation threads from Rush’s cell phone suggesting Rush was distributing marijuana in the weeks leading up to Shekie’s death. The State believed this evidence would be relevant to show Rush’s motive, intent, or plan to forcefully attempt to take marijuana from Shekie’s home. Rush objected to the police reports and conversation threads on hearsay grounds. According to Rush, the district court could not consider this evidence, because it contained hearsay state- ments. He argued that a bad acts hearing under § 27-404(3) (rule 404 hearing) is not a “preliminary examination[] or hear- ing[]” exempt from the Nebraska rules of evidence underNeb. Rev. Stat. § 27-1101
(4)(b) (Reissue 2016).
The district court overruled Rush’s hearsay objection on the
ground that the rule 404 hearing was a preliminary hearing
for purposes of § 27-1101(4)(b). Thus, the court received the
police reports and conversation threads for the purpose of the
rule 404 hearing.
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In a subsequent written order, the court found that the State
had proved by clear and convincing evidence that Rush was
involved in selling marijuana at the time of Shekie’s death.
5. Order Granting State’s
Motion for Mistrial
Rush’s initial trial began on August 8, 2022. Both parties
provided opening statements before the jury, and the State
began its presentation of evidence. When the district court
judge tested positive for COVID-19, the State filed a motion
for mistrial due to the judge’s ongoing illness and various
logistical problems created by the delay. The jury was not
sequestered.
The State set forth in the motion that if trial resumed on
August 15, 2022, the jury would be outside the courtroom,
unsequestered, for a full 6 days before trial resumed. The State
claimed that if convicted, Rush would “certainly argue that the
jury . . . had the opportunity to engage in jury misconduct or
ha[d] . . . been exposed to improper influence given the media
attention to this case.” The State also asserted in the motion
that it would not be able to secure several witnesses after
August 19, which would impede its ability to execute its trial
strategy and prove its case beyond a reasonable doubt. Defense
counsel stipulated to the facts set forth in the motion and did
not object to a mistrial. The court granted the State’s motion.
6. Evidence at Jury Trial
Rush’s new trial was scheduled for, and began on, October
28, 2022.
(a) Testimony of Feilen
Feilen testified under a cooperation agreement with the
State. In exchange for her truthful testimony, the State agreed
to charge Feilen with conspiracy to commit robbery and
not to pursue any additional charges against her related to
Shekie’s death.
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Feilen grew up with her adoptive parents in Bellevue,
Nebraska. She testified that she ran away from her adoptive
home when she was 16 years old and made contact with her
biological sister. After Feilen ran away from home a second
time, Feilen’s biological sister introduced her to Marques.
Around this time, Feilen also met her biological mother, “Lisa.”
Feilen testified that she ran away from her adoptive home in
Bellevue three times in total. At the time of trial, her adoptive
parents lived in Arizona.
According to Feilen, Rush contacted her through Facebook
in October 2020 when Feilen was 17 years old. Feilen went
to visit Rush at his home in Omaha, Nebraska. The two had
sex and smoked marijuana. Feilen lived with Rush for a short
period of time but left him after he became abusive. She then
began living with Lisa in Council Bluffs, Iowa.
A few months later, Feilen met Shekie through a “dat-
ing app.” At some point, Shekie arranged to pick up Feilen
from her friend’s house in Omaha. They traveled together to
Shekie’s trailer in Lincoln, where Feilen stayed for approxi-
mately 2½ weeks. During this time, they engaged in sex and
smoked marijuana. At one point, Feilen and Shekie discussed
filming their sexual interactions, but Feilen expressed she was
not interested.
Shekie obtained a large quantity of marijuana while Feilen
was staying in his trailer. According to Feilen, Shekie asked
her to help him sell the drugs. Feilen agreed and posted
photographs of the drugs on Snapchat. She also shared these
photographs with Marques.
Feilen left Shekie after she learned Shekie was secretly
recording their sexual interactions. Feilen and other witnesses
testified throughout the trial regarding Shekie’s poor char-
acter. Several witnesses testified that Shekie used and sold
marijuana. Further testimony established Shekie would record
his sexual interactions with women and engage in unprotected
sex despite having genital warts. Shekie also attempted to sell
pornographic videos on the internet.
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Feilen moved into Lisa’s apartment in Lincoln. Feilen testi-
fied that on the morning of the robbery, Marques and Rush
called her while she was sleeping at Lisa’s apartment. They
indicated they wanted to steal Shekie’s marijuana. Shortly
thereafter, Marques and Rush arrived at Lisa’s apartment to
try persuading Feilen to join in the robbery. Feilen initially
resisted but later agreed to join them after Rush threatened
her with a gun.
Feilen, Marques, and Rush left Lisa’s apartment and drove
to Shekie’s trailer home. Rush was driving. Other evidence
adduced at trial established that the vehicle Rush was driving,
a van, belonged to Marques’ girlfriend. Feilen observed a gun
on the “floor of the driver’s seat.”
According to Feilen, they arrived around 3 a.m. and, after
about 10 minutes, Rush got out of the van with the gun. He
proceeded to Shekie’s trailer and kicked in the door. Feilen
heard two or three gunshots and then heard Shekie scream.
Marques moved to the driver’s seat, and he and Feilen drove
away. Feilen observed Rush exit the trailer and run.
A few minutes later, Rush contacted Feilen and Marques
and they picked him up at a nearby building. Rush told Feilen
and Marques that Shekie was “squirming” and so he fired
shots in the air. He never made any statements about shooting
Shekie during the robbery. The group initially drove back to
Lisa’s apartment but could not get in. They ended up driving to
Omaha to drop off Rush between 4 and 5 a.m.
Feilen testified that sometime the next day, Rush told her
“to stay low and to not say anything.” He also told her via
“Facebook Messenger” to keep quiet and delete their prior
conversations. He asked Feilen whether Shekie had any cam-
eras in his trailer.
During cross-examination, defense counsel impeached
Feilen numerous times with prior statements she made to law
enforcement during the investigation. Feilen previously told
law enforcement that she “never stayed with . . . Shekie,” but
admitted at trial that was not true. Feilen told investigators
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she had “never exchanged sex for money,” but admitted at
trial that was untrue. Feilen stated to law enforcement that
she had “never had sex with . . . Shekie,” but then testified
at trial that she lied and had previously had sex with Shekie
“five or six times.” When asked during the investigation
when she had last seen Shekie, Feilen told officers she had
not contacted him since Valentine’s Day 2021, but she admit-
ted at trial that was not true; she admitted she had contacted
him the day before his murder. Feilen also admitted at trial
that she lied when she told law enforcement that she did not
have “anything to do with . . . Shekie’s death.” She told law
enforcement she was sleeping at Lisa’s house the night of the
murder, but admitted at trial that that was a lie and that she
was “in the van.”
Feilen told law enforcement in her proffer interview that
it “made [her] mad” when she heard Shekie was having sex
with other women. She testified at trial, however, that she
exaggerated her anger and did not fully tell the truth in her
proffer interview. Feilen also told law enforcement that she
was “okay” with Shekie’s recording their sexual interactions
but admitted at trial that was not true. Feilen admitted she had
lied to law enforcement by stating that Shekie was angry she
was leaving him. Feilen admitted Shekie was unaware of her
plan to leave him. When asked by defense counsel whether
she was aware Rush impregnated other women while she was
living with him, Feilen responded, “I did not know that.” But
defense counsel adduced evidence that Feilen had previously
told law enforcement that Rush had impregnated other women
while she lived with him. Feilen also testified that she was
not living with Lisa on the Valentine’s Day before Shekie’s
death. She admitted she lied during the investigation by tell-
ing law enforcement she was living with Lisa at that time.
Feilen admitted during cross-examination that she told an
officer during an interview, “I lie, I do it all the time.” Finally,
defense counsel adduced Feilen’s testimony that around the
time of Shekie’s death, she “lie[d] all the time.”
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(b) Testimony of Marques
Marques also testified at trial under a cooperation agreement
with the State.
Around the time of Shekie’s death, Marques was living in
Council Bluffs with his girlfriend. He had been previously shot
in a robbery in 2014. As a result, he was paralyzed from the
waist down and cannot walk without therapy and custom-made
braces. Marques testified that he had not used his braces since
2019 and that he was using a wheelchair around the time of
Shekie’s death.
Marques testified that he met Rush for the first time in
January 2021, when Rush wanted to purchase drugs from him.
Thereafter, Rush would communicate with Marques through
Facebook on a friendly level.
On February 19, 2021, Feilen sent Marques photographs
and videos of large quantities of drugs located at Shekie’s
trailer. Hours before the robbery, Marques messaged Feilen in
response, asking if they were going to take the drugs from the
trailer. According to Marques, Feilen knew where the drugs
were in the trailer and was going to take them when Shekie
was not home. Around 2 a.m., Marques sent another message
to Feilen, asking where the drugs were.
Marques testified that later that morning, he drove with Rush
to Lisa’s apartment in Lincoln with the intent to take the drugs
from Shekie’s trailer. During the drive, Marques observed a
firearm in the van. After arriving at Lisa’s apartment, the group
planned the robbery.
Just after 3 a.m., Feilen, Marques, and Rush left Lisa’s
apartment and went in the van to Shekie’s trailer home, using
“GPS” for directions. Rush was driving. A few minutes after
arriving, Rush pulled out a black gun, put on his gloves, and
started walking toward the trailer.
Marques apparently told Feilen to get in the driver’s seat
and pull up to the curb. Marques testified that after a few
seconds, he heard two or three gunshots and a loud scream
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from inside Shekie’s trailer. Marques told Feilen to drive away
because they “didn’t come [there] for that.”
Feilen and Marques drove away, leaving Rush behind.
Rush called Marques and told him to pick him up at a nearby
building. Feilen and Marques located Rush and drove toward
Lisa’s apartment. When they could not gain access to the
apartment, the group eventually drove to Omaha to drop off
Rush at his home. Feilen and Marques then drove to Marques’
home in Council Bluffs.
On cross-examination, defense counsel inquired about a
conversation between Marques and Emmanuel Winns, one of
Marques’ friends, that occurred shortly before Shekie’s death.
Marques testified that the day before the robbery, he sent a
message to Winns that stated, “[B]ro, me and my lil sis got a
couple stains on deck.” Winns replied, “U know I’m down.”
Marques then asked Winns whether he had any guns, and
Winns responded, “They around.” Marques sent another mes-
sage to Winns that stated, “Bro im talmout 1k @some hotel
& if you got [gas money] its 4 lbs in Lincoln we can go get
tonight. Both these stains.”
Marques indicated that the 4 pounds of drugs discussed in
the messages with Winns were unrelated to Shekie’s drugs and
that the similarities between the planned robberies were “just a
coincidence.” Marques further stated that the “lil sis” referred
to in the message was a friend and not a reference to Feilen.
Marques testified that investigators never spoke with him
about Winns until shortly before the trial began.
(c) Photograph of Marques’ Pressure Sore
Since his paralysis, Marques has suffered a severe pressure
sore. The State offered a photograph of Marques’ pressure sore
for the purpose of showing that Marques was not physically
capable of walking or of robbing Shekie. Rush objected to the
photograph based on foundation, relevance, confusion of the
issues, and its prejudicial effect. The district court overruled
the motion and received the photograph into evidence.
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(d) Messages With Heather Brand
and Shekie’s Photograph
The State called Heather Brand, who testified she was in a
relationship with Shekie around the time of his death. Brand
was called to testify regarding her communications with
Shekie to prove the date that Rush committed the offenses.
Brand testified that she communicated almost every day with
Shekie through telephone calls, text messages, and video
calls. To establish the time of Shekie’s death, the State offered
text messages between Shekie and Brand to show Brand’s
regular communication with Shekie, which then ceased. Rush
objected to these messages based on relevance. The court
overruled the objection but instructed the jury to ignore the
content of the messages and consider only their dates and
time stamps.
According to the text messages, Shekie regularly com-
municated with Brand from January 7, 2021, until their last
text communication on February 22. Brand testified that on
February 22, Shekie told her during a call that “something’s
not right.” After hanging up, Brand received a final text com-
munication from Shekie on February 22 at 7:55 p.m.
(e) Photograph of Shekie
Brand and several other witnesses identified Shekie at trial
using a photograph introduced by the State depicting Shekie
wearing a hardhat and smiling in the direction of the cam-
era. Some of these witnesses did not know Shekie by name.
One of Shekie’s neighbors testified he had observed the door
of Shekie’s trailer open for several days. When shown a
photograph of Shekie, the neighbor stated, “That could be
him.” Although the prosecutor did not ask the neighbor about
Shekie’s character, the neighbor continued, “He was that kind
of person.” Another neighbor testified that she called the
police after also observing the trailer door open. She acknowl-
edged she did not know Shekie by name. When shown the
photograph of Shekie, she testified, “Yes, that does look like
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him.” At no point during the trial did Rush object to the admis-
sibility of this photograph, even when it was presented to wit-
nesses who knew Shekie by name or had a prior relationship
with him.
(f) Identification of Rush
in Surveillance Video
The State offered several clips of motion-activated sur-
veillance footage depicting the inside corridor and outside
parking lot of Lisa’s apartment building on February 23,
2021, between 3 a.m. and 7 a.m., which was near the time of
Shekie’s death.
At approximately 2:17 a.m., the outdoor footage shows
an individual wearing a “dark hoodie” pulling Marques in a
wheelchair away from a van and toward the front door of the
apartment building. The motion-activated cameras did not cap-
ture Marques and the other individual exiting the van.
At 2:59 a.m., the indoor footage shows Feilen, wearing a
red hat, walking down the stairs from Lisa’s apartment with
Marques and the dark-hooded individual. Subsequently, the
outdoor footage shows Feilen entering the back seat of the
van, Marques entering the front passenger seat, and the dark-
hooded individual entering the driver’s seat. At 3:02 a.m., the
van leaves the parking lot.
The next clip shows the van driving back into the parking
lot at Lisa’s apartment building shortly before 5 a.m. During
the investigation, law enforcement believed Shekie’s death
occurred between the time the van left Lisa’s apartment and
when it returned. Marques confirmed in his testimony that the
robbery occurred before the van returned to Lisa’s apartment
shortly before 5 a.m. on February 23, 2021.
According to one investigator’s testimony, the surveillance
footage does not provide a clear picture of the dark-hooded
individual’s face and does not allow identification of the
individual. However, Chris Fields, an investigator with the
Lincoln Police Department, testified he could identify Rush as
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the dark-hooded individual in the surveillance footage. While
Fields acknowledged his total time with Rush was “[n]ot
long,” he explained that he was familiar with Rush’s appear-
ance because he was the lead investigator into Shekie’s death
and traveled to Chicago to contact Rush, who had been taken
into police custody. While in Chicago, Fields was present dur-
ing an interview with Rush. He also obtained a buccal swab
from Rush after he was brought back to Lincoln. Fields testi-
fied he spent “hours . . . watching that video and dealing with
. . . Rush.”
Rush did not object to this identification at trial; nor did he
attempt to cross-examine Fields after this testimony.
Later in the trial, Feilen also identified Rush as the person
in the surveillance footage in the dark hoodie, stating she saw
him at Lisa’s apartment that morning. Marques also testified
that the person in the surveillance footage was Rush. Rush did
not object to these statements.
(g) Cell Phone Evidence
The State offered at trial evidence obtained from Rush’s
cell phone during the investigation. This evidence included
Facebook messages from Rush’s cell phone sent near the time
of Shekie’s death. In one Facebook message sent on February
23, 2021, at 11:51 p.m., Rush told a friend, “I need to get
away ASAP.” In another message, sent on February 24, Rush
said, “I need to get out and stay low Ass.” On March 5, Rush
sent a Facebook message to his mother that said, “I’m sorry
mom I love you and I disrespected the family I fucked up I’ll
be by to see you but it’s deep and excuse my language.”
The State’s evidence also included Facebook messages
between Rush and Feilen after Shekie’s death. On March
4, 2021, Rush sent a message to Feilen that said, “Aye man
I’m gone plane to hot, train to hot, bus to hot but I’m gone
hitting back to Vegas.” Two days later, after Feilen provided
statements to law enforcement, Rush sent her another mes-
sage, which said, “Rat pack.” Rush had also sent a message
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on March 5 to Marques that said, “Y’all rats?” On March 8,
Rush sent a message to another acquaintance that said, “I
need a[n] Escape plan.”
Cell tower data showed that Rush’s cell phone was in the
area of Shekie’s residence at the time of the robbery. His
cell phone records showed that Rush made several internet
searches after Shekie’s death regarding warrants, penalties
for first degree murder in Nebraska, and how to sneak into
Canada and Mexico. He also asked a friend how to obtain a
fake identification document and indicated that he intended to
leave town.
Defense counsel did not object at trial to the admission of
this evidence. Nor did defense counsel object to the subpoe-
naed cell phone records and the more detailed records obtained
through a search warrant, when the State offered them as
evidence.
The State also offered text messages from Rush’s cell phone
that were the subject of the rule 404 hearing. Defense coun-
sel objected to the admission of these messages “under Rule
404(2).” The court overruled the objection and instructed the
jury the messages were to be considered “for the purpose of
showing motive and for no other purpose.” According to trial
testimony, the messages were consistent with language used in
drug transactions.
(h) Other Evidence
Evidence was received demonstrating that during a search
of Shekie’s trailer and the surrounding area, law enforcement
officers located several .45-caliber shell casings and bullets.
Law enforcement also observed a shoeprint on a door of
the trailer. Using photographs of Rush’s shoes from social
media, forensic analysis confirmed that the tread of Rush’s
shoes in those photographs shared a similar pattern with the
shoeprint on Shekie’s door. The forensic analyst testified
that the shoeprint was associated with “numerous models of
Jordan by Nike footwear.” The photographs of Rush from
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social media were entered into evidence. Those photographs
depict Rush wearing “Jordan by Nike” shoes that are primar-
ily black. There was testimony suggesting that the shoes Rush
was wearing in these photographs had characteristics similar
to those of the shoes he appeared to be wearing in the surveil-
lance footage from Lisa’s apartment.
The State introduced at trial screenshots from Feilen’s con-
trolled conversation with Rush after Shekie’s death, showing
Rush asking Feilen via Facebook Messenger to “delete [her]
side of the conversation” and “keep shut” and stating he had
his alibi “covered.”
The State also offered surveillance footage depicting the
area near Shekie’s trailer between 3 and 5 a.m. on February
23, 2021, which law enforcement believed was the period dur-
ing which the homicide occurred. According to law enforce-
ment testimony, the footage depicts an individual running
southbound on North 20th Street near Shekie’s trailer around
the time of the robbery. Law enforcement believed Rush was
the individual seen running in the footage, which was consist
ent with the information provided by Feilen and Marques.
(i) Testimony of Rush
Rush testified at trial in his own defense. Rush described
that in February 2021, he lived on Mary Street in Omaha with
his nephew and a high school friend.
Rush testified that he met Feilen through Facebook and
began having a sexual relationship with her in October 2020.
According to Rush, Feilen stayed at his home for about 3
weeks because she refused to leave. Feilen eventually left after
getting into a fight with one of Rush’s friends.
Rush testified that he was at his house in Omaha with his
girlfriend, Aniya Young, when the robbery occurred. Rush
stated that early that morning, Young began to attack him
after she found videos on his phone of “flings” with other
women. In response, Rush stated he “hemmed [Young] up” and
restrained her arms. Young left between 4 and 6 a.m. The next
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day, Young apparently reported Rush to the police and Rush
began searching for warrants related to the altercation.
Rush testified that days before the robbery, he had acciden-
tally left his cell phone in Marques’ vehicle. On February 24,
2021, Rush’s dogs located his cell phone in the front yard of
his residence. Rush appeared to testify on cross-examination
that Marques left the cell phone out by the street and that he
was angry with Marques for doing so.
Rush testified that he and Young reconciled and that they
fled on March 5, 2021, to Chicago after learning he was
wanted for the altercation with Young and as a suspect in
Shekie’s murder. Rush confirmed that he was involved in
four high-speed chases with the police in Illinois. Rush testi-
fied that he did not turn himself in and try and speak with
law enforcement because “young black men [were] getting
shot left and right.” Eventually, law enforcement located and
arrested Rush in Chicago.
During cross-examination, Rush denied sending certain
messages in his Facebook Messenger account, claiming his
account was hacked. When asked why he failed to notify
law enforcement of this, he responded, “It’s not my job to let
people know that they fucked up.”
Rush was confronted with a prior statement to law enforce-
ment that declared, “I don’t own no black Jordan shoes.” Rush
testified he sold the shoes to someone in Las Vegas.
The prosecution questioned Rush’s timeline of the assault
based on a conversation he had on February 24, 2021, with
Lonna Lane, Young’s older sister. Rush sent a message to
Lane via Facebook Messenger on February 24 at 5:52 a.m. that
stated, “Come get this lying cheating ass bitch off my shit.”
Minutes later, Rush messaged Lane, “She gone and she prob-
ably gone throw me in jail hood.” Lane replied, “Boy get my
sister out that fucking cold and take her home you should’ve
never went and picked her up if you was gone be putting her
out and putting yo hands on her.” Rush stated he sent this
message “when [Young] came back” after leaving. In other
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words, Rush appeared to testify that Young left his residence
after the initial domestic assault on February 23, returned to
Rush’s residence, and then left again on February 24.
While testifying, Rush at times appeared combative and
callous. During cross-examination, Rush tried to question the
prosecution from the witness stand. Rush interjected, “But
did y’all—I got a question, sir. How well did y’all do—,” at
which point the prosecution responded, “No. Sir, you don’t get
to do that.” Also, Rush indicated that he was not concerned
about the safety of others during high-speed chases with law
enforcement, because he “know[s] how to drive.”
(j) Subpoena for Absent Witness and
Warrant for Domestic Assault
Defense counsel expressed concerns in a sidebar conference
during Rush’s testimony regarding an absent witness he wished
to call to testify, Officer James Bruning. In April 2022, Rush
filed a notice of alibi revolving around the domestic assault
altercation with Young that allegedly occurred around the time
of the murder and robbery of Shekie and resulted in a war-
rant for Rush’s arrest. During the sidebar conference, defense
counsel stated that he had attempted to subpoena Bruning, the
officer who had obtained the warrant related to this altercation,
to testify at trial.
Although defense counsel had filed a praecipe for the sub-
poena of Bruning 2 or 3 days prior, he did not receive an
email from the clerk of the Lancaster County District Court
with the subpoena for him to forward to Douglas County to
have it served. Defense counsel discovered this was because
the clerk had inadvertently sent the subpoena to the prosecu-
tion. Defense counsel discussed the matter with the clerk, who
discussed the matter with Douglas County and determined the
best course of action was to email the subpoena directly to
Bruning. The clerk apparently sent the subpoena to Bruning,
but Bruning never responded.
The prosecutor explained during the sidebar conference
that the prosecution had also sent a subpoena to Bruning.
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However, the prosecution ultimately decided not to call him as
a witness. When the prosecutor told Bruning the State would
not be calling him as a witness, he informed Bruning that
if the defense served him with a subpoena, “he would need
to honor that.” The prosecutor explained that he was never
aware of whether the defense had actually served Bruning
with a subpoena. The prosecution later realized it had emailed
Bruning two subpoenas by mistake, not knowing one of them
was for the defense.
The transcript contains a praecipe dated July 18, 2022, by
defense counsel for a subpoena to be served on Bruning. A
copy of the corresponding subpoena to testify as a witness
for the defense, dated July 18, 2022, is also in the transcript.
The transcript contains another praecipe to subpoena Bruning,
dated October 21, 2022, by defense counsel. The transcript
contains a subpoena dated October 21, 2022, with record of
service on October 28 for Bruning to testify as a witness, but
it stated this was “on behalf of [the] State of Nebraska.” The
transcript contains a copy of the State’s praecipe for subpoena
of Bruning dated September 29, 2022. It contains a corre-
sponding subpoena dated September 30, 2022, to appear to
testify for the State. A process service return, stating Bruning
was not served because no address was provided, is dated
October 3, 2022; however, another filing indicates the State’s
subpoena was eventually served on October 12. Finally, the
transcript contains a praecipe, dated December 15, 2022, by
defense counsel for a subpoena to be served on Bruning,
and it contains a copy of another subpoena dated December
15, 2022.
Defense counsel neither sought a continuance of the trial to
secure Bruning’s attendance nor asked for a mistrial based on
the clerk’s error. Rather than pursuing Bruning’s attendance,
defense counsel asked if the prosecution would agree that
“the arrest warrant could just come in.” Defense counsel con-
ceded that the arrest warrant reflected only the date Bruning
responded to the report of the offense and not necessarily
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the date the offense occurred. Defense counsel also said he was
“not offering this as an alibi,” since he was no longer pursuing
an alibi defense. He wished only to corroborate Rush’s testi-
mony that part of the reason he fled to Chicago was because
there was an arrest warrant for him on the domestic assault
charge. Defense counsel conceded Rush also fled because he
learned he was a suspect in the murder, but counsel said he
wanted to admit evidence of the domestic assault to corroborate
Rush’s testimony and avoid a situation where the prosecution
could undermine Rush’s credibility by arguing to the jury that
there was no evidence to support Rush’s claim that he commit-
ted a domestic assault the day of the robbery and murder.
Defense counsel warned that if he were not permitted to
admit the arrest warrant into evidence without Bruning’s testi-
mony, “then [he was] going to insist, or . . . going to request,
[a] delay . . . until [he could] get that cop here so he—he can
testify.” And he did not “know how easy [that was] going to
be.” The prosecution was not amenable to defense counsel’s
suggestion that, to avoid a delay, it stipulate to the timeframe
of the assault. The prosecution believed the assault was “made
up” to give Rush an alibi. The prosecutor said he would
object to the warrant as hearsay if it were offered. Rush never
offered the warrant as evidence at trial.
7. Prosecution’s Closing Arguments
and Motion for Mistrial
Before closing arguments, defense counsel expressed con-
cern that it would be misconduct if the State indicated to the
jury that there is no evidence of an arrest warrant to support
Rush’s testimony. In response, the prosecution stated that “I’m
not going to talk too much about the warrant” and that “[Rush]
claims that there was a warrant issued, and that’s why he was
running, but there’s nothing to corroborate, you know, when,
where, and how that happened that led to whatever warrant
was issued.” Defense counsel responded, “All right, be careful
because there was a warrant. There is a warrant.”
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In closing arguments, the prosecutor told the jury, with
respect to the domestic assault: “[T]here is absolutely no cor-
roboration to show when, what, where, or how that warrant
came about. [Rush] said there was a warrant for his arrest.
There’s nothing to support how that all came about.” The
prosecutor did not contest that a domestic assault occurred or
that a warrant was issued in relation to the domestic assault,
but proposed that the assault did not occur at the same time
as the murder, again stating, “there’s absolutely nothing that
corroborates when, where, and how that happened.” The
prosecutor’s closing arguments are set forth in more detail in
the analysis.
Defense counsel moved for a mistrial on the ground that
the State knowingly made a false statement by telling the jury
there is nothing to corroborate Rush’s testimony regarding the
domestic assault warrant. The court overruled the motion.
8. Motion for New Trial
After the verdicts were entered, defense counsel moved for
a new trial based on the errors relating to the failure to sub-
poena Bruning and on alleged prosecutorial misconduct during
closing arguments. A hearing on the motion for new trial was
held on December 29, 2022.
At the hearing, defense counsel said that he had subpoenaed
Bruning to testify at the trial and that Bruning “didn’t show
up.” Defense counsel then clarified that his subpoena had been
emailed to the prosecution and sent with the State’s subpoena
to Bruning and that the State then told Bruning the prosecu-
tion would not be calling him. Defense counsel initially told
the court he was unsure if there was ever a second subpoena.
However, defense counsel then said that another subpoena was
issued and that the clerk “tried to serve him with that and it
seemed he managed to avoid service.”
In response to the court’s questioning, defense counsel con-
ceded that he knew at trial that Bruning was not going to
appear. Defense counsel conceded that despite knowing this,
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he did not request a continuance of the trial to have Bruning
subpoenaed and brought in by warrant if necessary.
For the purpose of the motion, the court allowed into evi-
dence an affidavit by defense counsel averring that on October
21, 2022, he filed a subpoena duces tecum for Bruning to
appear at trial on November 9. He learned during trial that the
clerk of the district court’s office emailed the subpoena to the
prosecution rather than to the defense and that the prosecu-
tion “forwarded the subpoena to someone in Omaha/Douglas
County because Officer Bruning was served with the subpoena
on October 28, 2021.” Defense counsel averred that the pros-
ecutor had told him he had spoken to Bruning and had told
Bruning he did not need to honor the prosecution’s subpoena
but that he would have to honor any other subpoena.
During the hearing on the motion for new trial, defense
counsel explained that Bruning was, in the end, successfully
subpoenaed to appear at the hearing but had not appeared.
Defense counsel wanted Bruning to testify as to why he had
not appeared at trial. Defense counsel asked that the court con-
tinue the hearing on the motion for new trial until Bruning’s
attendance could be secured.
The trial court granted a continuance, apparently in part
because it wished to have a transcription of the closing argu-
ments, which was not yet available. The hearing on the motion
for new trial was continued to a later date to correspond to
the sentencing hearing. Defense counsel said he had a witness
from the clerk of the district court’s office who was prepared
to testify at the hearing. However, apparently because of the
continuance, that witness was not called.
On the date scheduled for the continued hearing on the
defense’s motion for new trial, defense counsel announced he
was withdrawing the motion.
9. Theory of Defense
Defense counsel’s theory of defense was that “Feilen hated
. . . Shekie so much she wanted him dead” and that she also
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hated Rush, so she conspired with Marques and Winns to
commit the murder and robbery of Shekie and falsely impli-
cate Rush in the crimes. Defense counsel argued that the jury
cannot find Rush guilty beyond a reasonable doubt, because
to do so, the jury must believe the testimony of Feilen and
Marques, both of whom “lie all the time.” Defense counsel
also argued that on the night of the murder, Rush was in
Omaha with Young when an argument escalated into domestic
violence. While defense counsel acknowledged that Rush’s
fleeing to Chicago could indicate a consciousness of guilt,
he claimed Rush’s behavior was also “consistent with some-
body who’s innocent, who’s been falsely accused, at least
of murder.”
10. Verdicts and Sentencing
The jury returned verdicts finding Rush guilty of murder in
the first degree and use of a firearm to commit a felony. The
district court accepted the jury’s verdicts and ordered a presen-
tence investigation.
The district court sentenced Rush to life imprisonment for
the murder conviction and 25 to 35 years’ imprisonment on the
weapon conviction, to be served consecutively. Rush appeals.
Rush has new counsel on appeal.
III. ASSIGNMENTS OF ERROR
Rush assigns, consolidated, reordered, and restated, that
(1) the trial court erred by overruling defense counsel’s hear-
say objection to evidence introduced at his rule 404 hearing;
(2) the trial court erred in admitting, over defense counsel’s
objections, Shekie’s text messages to Brand; (3) the trial court
erred in admitting, over defense counsel’s objections, a pho-
tograph of Marques’ pressure sore; (4) trial counsel was inef-
fective for failing to object to, and the district court erred or
committed plain error in denying defense counsel’s motion to
suppress, his cell phone records that were allegedly obtained
through a warrant tainted by an unlawful subpoena; (5) trial
counsel was ineffective for failing to object to, and the district
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court erred or committed plain error in allowing, Fields’ iden-
tification of Rush in the surveillance video; (6) trial counsel
was ineffective for failing to object to, and the district court
erred or committed plain error in admitting, an allegedly irrel-
evant photograph of Shekie; (7) trial counsel was ineffective
by failing to adequately impeach Feilen; (8) trial counsel was
ineffective by inadequately preparing Rush to testify; (9) the
district court clerk committed plain error by failing to prop-
erly issue defense counsel’s subpoena of Bruning; (10) the
prosecution committed misconduct by interfering with the
subpoena of Bruning; (11) trial counsel was ineffective by
withdrawing the motion for new trial based on the failure to
properly subpoena Bruning; (12) trial counsel was ineffective
by failing to properly pursue an alibi defense; (13) the district
court committed plain error by denying Rush’s motion for
mistrial after the prosecution committed misconduct during
closing arguments by knowingly making false statements; (14)
trial counsel was ineffective for withdrawing Rush’s motion
for new trial based on prosecutorial misconduct during clos-
ing arguments; (15) the evidence adduced at trial was insuf-
ficient to sustain a finding that Rush used a firearm in the
commission of a felony; and (16) trial counsel was ineffective
by stipulating to the State’s motion for mistrial due to delays
caused by COVID-19.
IV. STANDARD OF REVIEW
[1] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court resolves
independently of the lower court’s conclusion. 1
[2] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. 2
1
State v. Earnest, 315 Neb. 527,997 N.W.2d 589
(2023).
2
State v. Jennings, 305 Neb. 809,942 N.W.2d 753
(2020).
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[3] Balancing the probative value of evidence against the
danger of unfair prejudice is within the discretion of the trial
court, whose decision we will not reverse unless there is an
abuse of discretion. 3
[4] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, an appellate court applies a two-part standard of
review. 4 Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. 5 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. 6 And where the facts are largely undis-
puted, the ultimate question is an issue of law. 7
[5] Consideration of plain error occurs at the discretion of
an appellate court. 8
[6] The decision whether to grant a motion for mistrial is
within the trial court’s discretion and will not be disturbed on
appeal in the absence of an abuse of discretion. 9
V. ANALYSIS
1. Hearsay at Rule 404 Hearing
We first address Rush’s assignment that the court erred
during the rule 404 hearing by overruling his hearsay objec-
tion to text messages and police reports evidencing he was
dealing marijuana at the time of the murder and robbery.
Without such alleged hearsay evidence, argues Rush, the State
was unable, as required by § 27-404(3), to prove by clear and
3
See State v. Thomas, 303 Neb. 964,932 N.W.2d 713
(2019). 4 State v. Simons,315 Neb. 415
,996 N.W.2d 607
(2023). 5Id.
6Id.
7 Seeid.
8 State v. Mabior,314 Neb. 932
,994 N.W.2d 65
(2023). 9 State v. Robinson,271 Neb. 698
,715 N.W.2d 531
(2006).
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Cite as 317 Neb. 622convincing evidence that he committed the crime, wrong, or act of dealing marijuana. Rush conceded that motive was a proper purpose for use of the evidence. The trial court over- ruled Rush’s hearsay objection on the ground that the rules of evidence do not apply to rule 404 hearings and overruled his renewed objection to the evidence at trial. Evidence that Rush was dealing marijuana was admitted at trial as relevant to Rush’s motive for the murder and robbery. Rush does not argue that the State relied at trial on hearsay to establish that he was dealing marijuana. We agree with the trial court that the rules of evidence do not apply to rule 404 hearings. [7] We have generally held that the rules of evidence do not operate with full force at hearings before a judge to determine a preliminary question of the admissibility of evidence. 10 The trial judge’s experience and legal training can instead be relied on to inform crucial distinctions and to reveal the inher- ent weakness of evidence by affidavit or hearsay. 11 Section 27-1101(2) states that the Nebraska rules of evi- dence “apply generally to all civil and criminal proceed- ings.” However, § 27-1101(4)(b) exempts from the evidence rules “preliminary examinations or hearings in criminal cases.” (Emphasis supplied.) [8] Our rules of evidence do not specify what types of hear- ings qualify as preliminary hearings, 12 but we explained in State v. Piper 13 that there is no statutory indication the refer- ence to preliminary hearings in § 27-1101(4)(b) was meant to carry a special or limited meaning. Thus, we look to its ordinary meaning. 14 Something that is “preliminary” is 10 See State v. Pullens,281 Neb. 828
,800 N.W.2d 202
(2011). 11 Seeid.
12 See State v. Piper,289 Neb. 364
,855 N.W.2d 1
(2014). 13Id.
14Id.
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Cite as 317 Neb. 622“‘something that precedes a main discourse, work, design, or business’ or ‘something introductory or preparatory.’” 15 Applying this definition, we held in Piper that a sup- pression hearing is a preliminary hearing for purposes of § 27-1101(4)(b). We first observed that under the statute 16 governing motions to suppress, it is clearly the intention that, with certain exceptions contained in the statute, the motion to suppress be ruled on and finally determined before trial. 17 Thus, the suppression hearing precedes the main discourse of a criminal case in the sense that a motion to suppress is decided before the trial. 18 Secondly, a defendant must make a specific objection at trial to the offer of evidence that was the subject of an unsuccess- ful motion to suppress, in order to preserve an alleged error in its admission. 19 This, we explained, indicates a suppression hearing is preparatory and precedes the main discourse of the trial. 20 Finally, we said that a suppression hearing “relates to auxiliary issues not immediately relevant to the question of guilt and is held in anticipation of certain evidence being introduced at a forthcoming trial.” 21 [9] Section 27-404(1) operates as a broad exclusionary rule of relevant evidence that speaks to a criminal defendant’s propensity to have committed the crime or crimes charged; meanwhile, § 27-404(2) operates as an inclusionary rule of evidence that provides that evidence that raises a propensity inference is admissible for other proper purposes, including 15 Id. at 374, 855 N.W.2d at 9, quoting Webster’s Third New International Dictionary of the English Language, Unabridged (1993). 16Neb. Rev. Stat. § 29-822
(Reissue 2016).
17
State v. Piper, supra note 12.
18
Id.
19
Id.
20
Id.
21
Id. at 374, 855 N.W.2d at 9 (internal quotation marks omitted).
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Cite as 317 Neb. 622proof of motive, intent, preparation, or absence of mistake or accident. 22 Under § 27-404(3), a proponent of evidence offered pur- suant to § 27-404(2), upon objection to its admissibility, is required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court must similarly state, on the record, the purpose or purposes for which such evidence is received. 23 Pursuant to § 27-404(3), before the admission of such evidence, the prosecution must prove to the court, outside the presence of the jury, “by clear and convincing evidence that the accused committed the crime, wrong, or act.” 24 [10,11] Similarly to the intent expressed in the statute gov- erning a hearing on a motion to suppress, it was the manifest intention of the Legislature in § 27-404 that the question of whether a prior bad act is admissible at trial as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident be ruled on and finally determined before the jury learns of such evidence. Thus, the rule 404 hearing precedes the main discourse of a criminal case. [12] Like the subject of a suppression hearing, the defend ant must make an objection at trial to the offer of evidence of other crimes, wrongs, or acts, which was the subject of a rule 404 hearing, in order to preserve an alleged error in its admission during the trial. 25 Finally, a rule 404 hearing relates to evidence supporting the inference of guilt when viewed in conjunction with other evidence admitted at trial; thus, it relates to auxiliary issues not immediately relevant to the 22 State v. Esch,315 Neb. 482
,997 N.W.2d 569
(2023). 23Id.
24 Id. at 503, 997 N.W.2d at 586 (internal quotation marks omitted). 25 See, e.g., State v. Wheeler,314 Neb. 282
,989 N.W.2d 728
(2023); State v. Herrera,289 Neb. 575
,856 N.W.2d 310
(2014); State v. Faust,265 Neb. 845
,660 N.W.2d 844
(2003), disapproved on other grounds, State v. McCulloch,274 Neb. 636
,742 N.W.2d 727
(2007).
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Cite as 317 Neb. 622question of guilt and held in anticipation of certain evidence to be introduced at a forthcoming trial. [13] We have previously described the court’s determination regarding the admissibility of evidence at a rule 404 hearing as a “preliminary determination.” 26 We now expressly hold that a hearing conducted under § 27-404 is a preliminary hear- ing for purposes of § 27-1101(4)(b), exempting it from the evidence rules. We have not previously had occasion to address the correct- ness of State v. Wilson, 27 an opinion by the Nebraska Court of Appeals decided in 1996, holding that the rules of evidence apply to rule 404 hearings. We now expressly disapprove of that decision to the extent it holds that a rule 404 hearing is not a preliminary hearing. We observe that while the Court of Appeals rejected the idea that the rules of evidence are inapplicable at “any hearing in a criminal case,” 28 it did not articulate why a 404 hearing is not a preliminary hearing under § 27-1101(4)(b). Also, at the time of the Court of Appeals’ decision, we had not yet decided Piper. 29 Thus, the Court of Appeals did not have available to it our reasoning as set forth therein. [14] Assuming without deciding that the evidence at the rule 404 hearing of Rush’s drug dealing was in fact hearsay, the trial court did not err in overruling Rush’s hearsay objection. In a hearing conducted pursuant to § 27-404, the trial judge’s experience and legal training can be relied on to inform crucial distinctions and to reveal the inherent weakness of evidence by hearsay. The State proved by clear and convincing evidence that Rush was involved in selling marijuana at the time of the murder and robbery of Shekie. The district court did not err in admitting the evidence of those prior bad acts at trial. 26 State v.Esch, supra note 22
, 315 Neb. at 503, 997 N.W.2d at 586. 27 State v. Wilson,5 Neb. App. 125
,556 N.W.2d 643
(1996). 28Id. at 127
,556 N.W.2d at 652
.
29
State v. Piper, supra note 12.
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2. Admission of Evidence at
Trial Over Objection
We next address Rush’s assignments that the court erred
in admitting at trial, over Rush’s objections, the evidence of
Shekie’s text messages and Marques’ pressure sore.
(a) Shekie’s Text Messages to Brand
Rush argues the court erred in overruling his objection to
the admission of text messages from Shekie to Brand, which
showed regular contact with Brand until the day before Shekie
was murdered. The State offered the text messages to establish
the time of the murder, and Rush objected only on the ground
of relevance. Even though Rush did not object on the ground
of unfair prejudice, the court instructed the jury to consider the
date and time stamps of the messages and not their content.
[15,16] Relevant evidence is that which has any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence. 30 The probative value
of evidence involves a measurement of the degree to which
the evidence persuades the trier of fact that the particular fact
exists and the distance of the fact from the ultimate issue of
the case. 31 A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. 32
[17] While Rush complains that the content of the messages
illustrates Shekie treated Brand with genuine affection, this
point pertains to unfair prejudice, and Rush does not assign
as error that trial counsel was ineffective for failing to object
on that basis. Rush’s only argument pertaining to relevance
is that the time of death was established by other evidence
and that therefore, the messages were cumulative. However,
30
State v. Oldson, 293 Neb. 718,884 N.W.2d 10
(2016). 31Id.
32 State v.Jennings, supra note 2
.
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evidence is not irrelevant simply because there is other evi-
dence admitted at trial supporting a similar inference. The
trial court did not abuse its discretion in determining that the
messages were relevant.
(b) Marques’ Pressure Sore
Rush argues the court erred in admitting a photograph of
Marques’ pressure sore, because it was shocking and presented
the danger of evoking sympathy for Marques. As relevant
to this assignment of error, Rush objected on the grounds of
unfair prejudice and confusion of the issues. The State offered
the photograph to support the inference that Marques was
unable to walk and, thus, was not the shooter.
[18,19] Rush argues on appeal that any relevance of the
photograph to show that Marques could not walk was minor
in comparison, because Marques’ inability to walk was estab-
lished by other evidence and Rush no longer asserted, as
part of his theory of defense, that Marques was the shooter.
But the State is allowed to present a coherent picture of the
facts of the crimes charged, and it may generally choose its
evidence in so doing. 33 While Rush points out that he offered
to stipulate that Marques was paralyzed, a defendant cannot
negate an exhibit’s probative value through a tactical decision
to stipulate. 34
[20,21] Under Neb. Rev. Stat. § 27-403(Reissue 2016), relevant evidence may be excluded if its probative value is sub- stantially outweighed by the danger of unfair prejudice. 35 Most, if not all, evidence offered by a party is calculated to be preju- dicial to the opposing party. 36 Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 37 33 State v. Britt,305 Neb. 363
,940 N.W.2d 270
(2020). 34 State v. Abdulkadir,286 Neb. 417
,837 N.W.2d 510
(2013). 35 State v. Chauncey,295 Neb. 453
,890 N.W.2d 453
(2017). 36 State v.Oldson, supra note 30
. 37Id.
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[22,23] 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
considering whether evidence of other acts is unfairly prejudi-
cial, we consider whether the evidence tends to make convic-
tion of the defendant more probable for an incorrect reason. 39
Balancing the probative value of evidence against the danger
of unfair prejudice is within the discretion of the trial court,
whose decision we will not reverse unless there is an abuse
of discretion. 40
The photograph of Marques’ pressure sore might have
evoked an emotional response of sympathy in the jurors, but
it is unlikely that response would have lured the jury into
declaring Rush guilty for an incorrect reason. As the trial court
pointed out, the jury was already aware through other evi-
dence that Marques was paralyzed in some capacity and used
a wheelchair. Furthermore, the instructions directed the jury
not to “indulge in any speculation, guess or conjecture” and
not to allow “sympathy or prejudice” to impact the verdict.
We cannot say on appeal that the trial court abused its discre-
tion in determining that the probative value of the photograph
outweighed any danger to Rush of unfair prejudice.
3. Evidence Not Objected to
We next address Rush’s assignments of error relating to the
admission of evidence not objected to at trial: (1) a photograph
of Shekie smiling, (2) Rush’s cell phone location informa-
tion, and (3) Fields’ identification of Rush in the surveil-
lance footage outside of Lisa’s apartment. Rush argues that
trial counsel was ineffective for failing to object and that the
trial court committed plain error in allowing the admission of
this evidence.
38
Id.39Id.
40 See State v.Thomas, supra note 3
.
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[24,25] Rush also assigns and argues that the trial court com-
mitted reversible error in admitting this evidence. However,
the failure to object to evidence at trial, even if the evidence
was the subject of a previous motion to suppress, waives the
objection, and a party will not be heard to complain of the
alleged error on appeal. 41 Failure to make a timely objection
waives the right to assert prejudicial error on appeal. 42 Thus,
we will address only whether trial counsel was ineffective
and whether the court committed plain error in relation to
this evidence.
(a) General Principles of
Ineffective Assistance
[26] Generally, to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 43 the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. 44
(i) Deficient Performance
[27,28] 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. 45 In determining whether trial counsel’s performance was
deficient, courts give counsel’s acts a strong presumption of
reasonableness. 46
[29,30] An appellate court will not judge an ineffectiveness
of counsel claim in hindsight, and it will not second-guess
41
State v. Lowman, 308 Neb. 482,954 N.W.2d 905
(2021). 42 State v. Devers,306 Neb. 429
,945 N.W.2d 470
(2020). 43 Strickland v. Washington,466 U.S. 668
,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984). 44 State v. Clark,315 Neb. 736
,1 N.W.3d 487
(2024). 45 See State v. Henderson,301 Neb. 633
,920 N.W.2d 246
(2018). 46Id.
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trial counsel’s reasonable strategic decisions. 47 We must assess
trial counsel’s performance from counsel’s perspective when
counsel provided the assistance. 48 And it is well settled that the
decision to object or not to object is part of trial strategy. 49
(ii) Prejudice
[31,32] To show prejudice in a claim of ineffective assist
ance of counsel, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. 50 A reason-
able probability is a probability sufficient to undermine confi-
dence in the outcome. 51 When considering the prejudice prong
of ineffective assistance of counsel, we focus on whether a
trial counsel’s deficient performance renders the result of the
trial unreliable or fundamentally unfair. 52
(iii) On Direct Appeal
[33] It is well settled that when a defendant’s trial coun-
sel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial coun-
sel’s ineffective performance which is known to the defend
ant or is apparent from the record. 53 Otherwise, the issue
will be procedurally barred in a subsequent postconviction
proceeding. 54
[34] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it
47
Id.48Id.
49 See, State v. Wickline,241 Neb. 488
,488 N.W.2d 581
(1992); State v. Lieberman,222 Neb. 95
,382 N.W.2d 330
(1986). 50 State v.Clark, supra note 44
. 51Id.
52 See State v. Dubray,289 Neb. 208
,854 N.W.2d 584
(2014). 53 State v. Stelly,304 Neb. 33
,932 N.W.2d 857
(2019). 54Id.
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Cite as 317 Neb. 622can be resolved on direct appeal. 55 In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows whether counsel did or did not pro- vide effective assistance, and whether the record conclusively shows the defendant was or was not prejudiced by counsel’s alleged deficient performance. 56 [35] When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, it is advisable for appellate counsel to specifically argue prejudice if appellate counsel believes the details in the trial record are sufficient to adequately review the question on direct appeal. 57 [36] Regardless of whether appellate counsel believes the details in the trial record are sufficient to adequately review the question, an appellant must make specific allegations on direct appeal of the conduct that the appellant claims con- stitutes deficient performance by trial counsel. 58 In order to know whether the record is insufficient to address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough par- ticularity 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. 59 Mere conclusions of fact or law are not sufficient. 60 55 Seeid.
56 Seeid.
See, also, e.g., State v. Miller,315 Neb. 951
,2 N.W.3d 345
(2024). 57 See State v. Garcia,315 Neb. 74
,994 N.W.2d 610
(2023). 58 Seeid.
59 State v. Lee,304 Neb. 252
,934 N.W.2d 145
(2019). 60 State v.Stelly, supra note 53
.
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(b) Plain Error Principles
[37] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. 61 We are not inclined to readily find plain error in
testimony to which the opposing party did not object. 62 Even
when a question or answer is arguably improper, sua sponte
action by the trial court may interfere with a party’s trial tac-
tics by bringing unwanted attention to the testimony. 63 “‘[T]he
plain-error exception to the contemporaneous-objection rule is
to be “used sparingly, solely in those circumstances in which
a miscarriage of justice would otherwise result.”’” 64
(c) Cell Phone Location Records
In arguing error in the admission of his cell phone records,
Rush focuses solely on his location records and does not spec-
ify any other specific cell phone information he believes coun-
sel was ineffective in failing to object to. We have long held
that an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error
to be considered by an appellate court. 65 Thus, we address
only the location records. Although trial counsel moved to
suppress his cell phone records, he did not renew the motion
at trial.
Rush asserts that the warrant used to obtain the cell site
location records was secured through evidence obtained
from a subpoena that was unlawful either because no cell
phone information can lawfully be obtained through a sub-
poena or because the subpoena asked for “IP Destination and
61
Castillo v. Libert Land Holdings 4, 316 Neb. 287,4 N.W.3d 377
(2024). 62 State v.Mabior, supra note 8
. 63Id.
64 State v. Barfield,272 Neb. 502, 511
,723 N.W.2d 303, 312
(2006), disapproved on other grounds, State v.McCulloch, supra note 25
, quoting United States v. Young,470 U.S. 1
,105 S. Ct. 1038
,84 L. Ed. 2d 1
(1985). 65 State v. Mrza,302 Neb. 931
,926 N.W.2d 79
(2019).
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Cite as 317 Neb. 622Sessions”—albeit “without cell site information.” Because of the alleged unlawfulness of the subpoena, Rush asserts the subsequent warrant and the cell site location information obtained therefrom were tainted as the fruit of the poison- ous tree. [38,39] The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution prohibit unreason- able searches and seizures. 66 “[A] ‘search’ under the Fourth Amendment occurs whenever an ‘expectation of privacy that society is prepared to consider reasonable is infringed.’” 67 [40,41] When an individual seeks to preserve something as private, and the individual’s expectation of privacy is one that society is prepared to recognize as reasonable, official intru- sion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. 68 Under the third-party doctrine, depending on the nature of the par- ticular documents sought, a person has no legitimate expecta- tion of privacy in information voluntarily turned over to third parties, even if revealed on the assumption that it will be used only for a limited purpose. 69 Accordingly, in State v. Knutson, 70 we held that the defend ant had no reasonable expectation of privacy in cell phone records demonstrating multiple contacts with the victim of child enticement, because this information was voluntarily turned over to the cell phone company as part of the service contract. As such, law enforcement did not violate the Fourth Amendment by obtaining these records by subpoena rather than by warrant. 66 State v.Simons, supra note 4
. 67 State v. Wiedeman,286 Neb. 193, 207
,835 N.W.2d 698, 709
(2013), quoting United States v. Jacobsen,466 U.S. 109
,104 S. Ct. 1652
,80 L. Ed. 2d 85
(1984). 68 Carpenter v. United States,585 U.S. 296
,138 S. Ct. 2206
,201 L. Ed. 2d 507
(2018). 69 Seeid.
70 State v. Knutson,288 Neb. 823
,852 N.W.2d 307
(2014).
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Cite as 317 Neb. 622In so holding, we relied on the U.S. Supreme Court case Smith v. Maryland, 71 in which the Court held that law enforce- ment does not need a warrant to obtain a telephone company’s record of numbers dialed because it is not a search under the Fourth Amendment. The Court observed that the pen register used to obtain such records did not contain “the contents of communications,” 72 and it explained that the defendant had “voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business.” 73 In Carpenter v. United States, 74 decided in 2018, the U.S. Supreme Court issued what it deemed a “narrow” holding that individuals have a reasonable expectation of privacy in the record of all physical movements captured by cell site location information over an extended period of time. 75 The Court rea- soned that “while the third-party doctrine applies to telephone numbers and bank records,” “cell-site records” are “qualita- tively different.” 76 Such location information is “unique” 77 in part because it provides “a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” 78 Later, in United States v. Walker, 79 a federal district court illustrated the narrowness of the Court’s holding in Carpenter. The district court found that there was no reasonable expec- tation of privacy for cell phone location information for a 71 Smith v. Maryland,442 U.S. 735
,99 S. Ct. 2577
,61 L. Ed. 2d 220
(1979). 72Id.,
442 U.S. at 741
. 73Id.,
442 U.S. at 744
. 74 Carpenter v. United States, supra note 68,585 U.S. at 316
. 75 See State v. Brown,302 Neb. 53
,921 N.W.2d 804
(2019). 76 Carpenter v. United States, supra note 68,585 U.S. at 309
. 77Id.,
585 U.S. at 315
. 78Id.
79 United States v. Walker, No. 2:18-CR-37-FL-1,2020 WL 4065980
at *7
(E.D.N.C. July 20, 2020).
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Cite as 317 Neb. 622particular place at a limited time, obtained through a cell tower “‘dump request.’” Similarly, in United States v. Rhodes, 80 another lower federal court held there was no reasonable expectation of privacy in the identifying information, telephone numbers calling or called, and information related to those communications, pertaining to all phones within the radius of 12 different towers on 12 separate days for specific, limited identified hours connected to the time and location of certain robberies. The court explained that unlike the information in Carpenter, this information did not track the defendant’s move- ments in detail over a lengthy period or the substance of the communications. Relying on Walker and Rhodes, in State v. Elias, 81 we recently held that the defendant had no reasonable expectation of privacy in his cell phone location information obtained from the cell tower nearest the scene of the crime. The information was limited to a period of time 15 minutes before the crime through 15 minutes after. No cell site location information relating to Rush’s cell phone was obtained without a warrant. The subpoena neither sought nor obtained cell site location information. Relevant to obtaining the warrant, the subpoena obtained cell phone records showing that Marques and Rush spoke on the phone twice the morning of the murder and robbery and exchanged text messages on March 2, 2021. The majority of the informa- tion set forth in the affidavit supporting the search warrants was discovered during law enforcement’s independent investi- gation into Shekie’s death and not through Rush’s cell phone records. The subpoena did not seek, nor did it obtain, the con- tent of these communications. We find it insignificant that the subpoena sought “IP Destination and Sessions,” since no cell 80 United State v. Rhodes, No. 1:19-CR-73-AT-LTW,2021 WL 1541050
(N.D. Ga. Apr. 20, 2021). 81 State v. Elias,314 Neb. 494
,990 N.W.2d 905
(2023).
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Cite as 317 Neb. 622phone information indicative of Rush’s physical movements was obtained without a warrant. We find no merit to Rush’s argument that there is a reason- able expectation of privacy in all cell phone records maintained by the cell phone service provider. In making this argument, Rush relies on our opinion in State v. Jennings. 82 In Jennings, the State had acquired the defendant’s cell site location infor- mation without a warrant. No other cell phone information was apparently at issue on appeal. We said that the defendant had correctly asserted that under Carpenter, 83 the warrantless “seizure of his cell phone records and [cell site location infor- mation] was a violation of his Fourth Amendment rights.” 84 Because Carpenter had not yet been decided at the time of the search, however, the exclusionary rule did not apply. [42] It is not clear what “cell phone records” in Jennings we were referring to apart from the cell site location infor- mation. 85 In any event, there is no indication that we were referring to non-content-based call and text logs maintained by the cell service provider. Jennings did not overrule State v. Knutson. 86 As recognized in Carpenter, cell phone logs fall within the traditional ambit of the third-party doctrine. A cell service customer does not have a reasonable expectation of privacy in the records maintained by a third-party service pro- vider of the phone numbers that text messages or calls were sent to or received from or in the times when those communi- cations took place. [43] As a matter of law, counsel is not ineffective for fail- ing to make an objection that has no merit. 87 Because there was no reasonable expectation of privacy in the cell phone 82 State v.Jennings, supra note 2
. 83 Carpenter v. United States, supra note 68. 84 State v.Jennings, supra note 2
, 305 Neb. at 820,942 N.W.2d at 764
. 85 Seeid.
86 See State v.Knutson, supra note 70
. 87 See State v. Tyler,301 Neb. 365
,918 N.W.2d 306
(2018).
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records law enforcement obtained by subpoena and utilized
in affidavits supporting requests for warrants that ultimately
obtained Rush’s cell site location information, trial counsel
was not ineffective for failing to object to the admission of
that evidence at trial. There is no contention on appeal that the
warrants lacked probable cause. For similar reasons, the trial
court did not commit a miscarriage of justice by admitting
into evidence at trial Rush’s location information; therefore,
we refuse to exercise our discretion to find plain error in the
admission of these records.
(d) Fields’ Identification of
Rush in Video Footage
Rush argues trial counsel was ineffective for failing to
object on the ground of lack of foundation to Fields’ identifi-
cation of Rush in the apartment surveillance footage, because
Fields allegedly lacked sufficient personal knowledge of
Rush’s appearance to do so. Because of this alleged lack of
foundation, Rush also argues the trial court committed plain
error in allowing Fields to identify Rush. We disagree with
these contentions.
[44] Fields testified that he interviewed Rush in Chicago
and collected buccal swabs from him in Lincoln. He explained
that there are places in the video where the face of the man
in question is visible in profile and that he could positively
identify that man as Rush. Fields also testified that he had seen
Rush wearing the same clothing the man in the video wore.
This was sufficient foundation for Fields to identify Rush.
While Rush argues that Fields’ time with him was limited,
questions about the extent of a witness’ familiarity with the
defendant’s appearance go to the weight of the testimony and
not its admissibility. 88
[45] Furthermore, both Marques and Feilen independently
identified Rush as the man in the video and Rush does not
88
See People v. Leon, 61 Cal. 4th 569,352 P.3d 289
,189 Cal. Rptr. 3d 703
(2015).
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take issue with their testimony. The erroneous admission of
evidence is harmless error and does not require reversal if the
evidence is cumulative and other relevant evidence, properly
admitted, supports the finding by the trier of fact. 89
Trial counsel was not ineffective in failing to object to
Fields’ identification of Rush, and the trial court did not com-
mit plain error in admitting Fields’ testimony.
(e) Photograph of Shekie Smiling
Rush asserts plain error and ineffective assistance of trial
counsel in relation to the admission of a photograph of Shekie
wearing a hardhat and smiling. The photograph was offered
by the State to enable several witnesses, two of whom knew
Shekie only by appearance and not by name, to identify him.
At no point during trial did the prosecution ask witnesses in
relation to the photograph about Shekie’s character. Defense
counsel did not object to the admission of the photograph.
On appeal, Rush argues admission of the photograph was not
necessary, because the identity of the victim was undisputed
and other photographs, which Rush apparently believes to be
less sympathetic, could have been used instead. Rush argues
he was unfairly prejudiced because the photograph “served
to paint Shekie as a hardworking and kind man and draw the
jury’s sympathy.” 90
[46,47] The admission of photographs into evidence rests
largely within the discretion of the trial court, which must
determine their relevancy and weigh their probative value
against their possible prejudicial effect. 91 A relevant photo-
graph should not be excluded from evidence unless its preju-
dicial effect is greater than its probative value. 92
89
See State v. Kidder, 299 Neb. 232,908 N.W.2d 1
(2018). 90 Brief for appellant at 46. 91 State v. Clark,255 Neb. 1006
,588 N.W.2d 184
(1999). 92 State v. Forster,616 S.W.3d 436
(Mo. App. 2020).
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Cite as 317 Neb. 622[48,49] In a homicide prosecution, photographs of a victim may be received into evidence for, among other things, pur- poses of identification. 93 It is generally agreed that a photo- graph of the victim of the homicide, taken before the alleged murder, is admissible for the purpose of identification, even if there exists no dispute over the identity of the deceased. 94 “[T]he state is not required to prove its case shorn of photo- graphic evidence merely because the defendant agrees with a witness or stipulates to a fact.” 95 Without providing any apposite authority, Rush assumes that to be admissible for identification purposes, an in-life photograph of a victim must be devoid of any humanizing or positive attributes that give insight into the person whose life has been lost. But an otherwise relevant photograph of the victim in life need not be excluded despite the possibility it could elicit a sympathetic response from the jury. 96 For example, in State v. Forster, 97 the appellate court held that the trial court did not err in admitting a photograph of the victim in his police uniform, identified by his wife at trial, because its relevancy outweighed any danger of unfair prejudice. Similarly, in Browning v. State, 98 the appellate court found it reasonable for defense counsel not to object to the admission of an in-life photograph of the victim with a small child on his lap. The court rejected the defendant’s argu- ment that the photograph amounted to victim impact evidence and discerned nothing prejudicial or inflammatory about the photograph. 93 See State v. Clark, supra note 44. 94 See Russell v. State,272 So. 3d 1134
(Ala. Crim. App. 2017). 95 People v. Boyette,29 Cal. 4th 381, 424
,58 P.3d 391, 419
,127 Cal. Rptr. 2d 544, 577
(2002) (internal quotation marks omitted). 96 People v. Parker,13 Cal. 5th 1
,510 P.3d 404
,293 Cal. Rptr. 3d 813
(2022). 97 State v. Forster, supra note 92. 98 Browning v. State,120 Nev. 347
,91 P.3d 39
(2004).
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In contrast, in Salazar v. State, 99 the appellate court held that
the danger of unfair prejudice outweighed the probative value
of a 17-minute video montage of photographs depicting the
murder victim’s life and set to music. It held that the trial court
abused its discretion in admitting the evidence.
Here we are presented with a simple photograph of the
victim smiling and wearing a hardhat. The trial court did not
abuse its discretion in admitting the photograph, let alone com-
mit plain error. And because the photograph was not in fact
unduly prejudicial, trial counsel was not ineffective in failing
to object to it.
4. Alleged Ineffective Impeachment
Rush argues that his trial counsel was ineffective by failing
to call Feilen’s adoptive parents or “any other character wit-
ness” to impeach Feilen’s character as to truthfulness. 100 While
Rush recognizes that trial counsel successfully impeached
Feilen during cross-examination by confronting her with
numerous prior inconsistent statements to law enforcement,
he argues trial counsel was ineffective for “pursuing only this
single avenue of impeachment.” 101
[50,51] The alleged failure to call “any other character wit-
ness” fails to sufficiently raise a claim of ineffective assist
ance of counsel. When the claim of ineffective assistance on
direct appeal involves uncalled witnesses, vague assertions
that counsel was deficient for failing to call “witnesses” are
little more than placeholders and do not sufficiently preserve
the claim. 102 Appellate counsel must give on direct appeal
at least the names or descriptions of any uncalled witnesses
forming the basis of a claim of ineffective assistance of trial
99
Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002).
100
Brief for appellant at 60.
101
Id.
102
State v. Blake, 310 Neb. 769,969 N.W.2d 399
(2022).
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counsel. 103 Such specificity is necessary so that a postconvic-
tion court may later identify whether a particular claim of fail-
ing to investigate a witness is the same one that was raised on
direct appeal. 104
[52] In contrast, the alleged ineffective assistance in failing
to call Feilen’s adoptive parents was sufficiently raised. An
appellate court does not need specific factual allegations as to
what an uncalled person or persons would have said, which
will not be found in the appellate record. 105
Rush claims that testimony by Feilen’s adoptive parents
about her poor character as to truthfulness “would have pro-
vided a more convincing impeachment.” 106 However, defense
counsel’s impeachment of Feilen was extensive. She was con-
fronted with numerous statements to law enforcement that
she admitted were lies. Feilen acknowledged during cross-
examination that she had said she lies “all the time.”
In other circumstances, we might not be able to resolve this
claim on direct appeal, since the record does not tell us what
instances of dishonesty Feilen’s adoptive parents could have
testified about. However, in this instance, the impeachment of
Feilen by her own inconsistent statements and admissions was
so complete that the record conclusively demonstrates trial
counsel was not constitutionally deficient by failing to conduct
more impeachment through the testimony of Feilen’s adoptive
parents. We find no merit to this assignment of error.
5. Preparation of Rush to Testify
Rush also argues that trial counsel was ineffective by
“inadequately prepar[ing] Rush to testify.” 107 Rush’s appel-
late counsel argues that Rush’s “combative stance toward
103
See id.
104
Id.
105
Id.
106
Brief for appellant at 60.
107
Id.
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the prosecutor” and “off-color statements” while testifying in
his own defense evidenced that his trial counsel was “preju-
dicially ineffective for failing to properly prepare Rush to
testify.” 108 Appellate counsel argues this prejudiced Rush
because he undermined his own credibility in testimony that
was essential to his alibi defense, such as that he was apart
from his cell phone on the night of the robbery and that he
was with Young when the robbery occurred. Rush also points
to his testimony that he did not participate in a controlled call
with Feilen, did not accuse Marques of having “ratted [him]
out,” and no longer owned “black Jordan shoes” by the time
the robbery occurred.
It is, of course, entirely possible that Rush’s behavior while
testifying was not a result of constitutionally deficient prepa-
ration by trial counsel. Still, the record on appeal does not
contain trial counsel’s testimony or any other evidence dem-
onstrating how trial counsel did or did not prepare Rush to
testify. In State v. Young, 109 we addressed a similar claim that
trial counsel was ineffective in “failing to adequately pre-
pare [the defendant] to testify,” resulting in impeachment that
could have been avoided. We held that the record on direct
appeal was inadequate to review the claim. 110 Likewise, here,
the record is insufficient to determine whether trial counsel
was ineffective in his preparation of Rush to testify in his
own defense.
[53,54] The State asserts we can determine on direct appeal
as a matter of law that there was no prejudice, even if trial
counsel was ineffective in his preparation of Rush to tes-
tify. However, we have repeatedly observed that the trial
record reviewed on appeal is devoted to issues of guilt or
108
Id. at 30.
109
State v. Young, 279 Neb. 602, 610,780 N.W.2d 28, 36
(2010). See, also,
State v. Johnson, No. A-20-048, 2021 WL 243792 (Neb. App. Jan. 26,
2021) (selected for posting to court website).
110
State v. Young, supra note 109.
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innocence and does not usually address issues of counsel’s
performance. 111 Furthermore, it is not usually an appellant’s
allegations of prejudice that have guided review of ineffective
assistance claims on direct appeal, but the allegations of defi-
cient conduct. 112 We cannot determine as a matter of law on
direct appeal that because of a lack of corroborating evidence
of Rush’s alibi, Rush’s allegedly inadequate preparation for
trial, which undermined his credibility as the sole witness sup-
porting his alibi defense, did not prejudice him.
6. Domestic Assault
Several of Rush’s remaining assignments of error pertain to
the alleged undermining of his ability to prove, through other
evidence, his alibi that he was assaulting Young in Omaha at
the time of the robbery and murder.
Rush argues that trial counsel was ineffective for failing
to “adequately pursue” the alibi defense that he was assault-
ing Young in Omaha at the time of the murder and robbery
in Lincoln. 113
Rush assigns that “the district court clerk committed plain
error” by failing to properly issue defense counsel’s subpoena
of Bruning, who received Young’s report of the domestic
assault on February 24, 2021, and did not appear to testify at
trial. Rush also assigns that the prosecution committed mis-
conduct by interfering with the subpoena of Bruning. Neither
of these assignments are independently cognizable claims of
error by the trial court. 114 However, we will consider these
allegations in relation to Rush’s assignment of error that trial
counsel was ineffective in withdrawing a motion for new trial
based on the clerk’s failure to properly subpoena Bruning and
on the alleged prosecutorial interference with the same.
111
See, e.g., State v. Filholm, 287 Neb. 763,848 N.W.2d 571
(2014).
112
See id.
113
Brief for appellant at 31.
114
See Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022).
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Rush assigns that the prosecutor committed misconduct
during closing arguments by knowingly making false state-
ments pertaining to the lack of evidence supporting Rush’s
alleged alibi of domestic assault. This, also, is not a cog-
nizable stand-alone assignment of error. However, we will
address Rush’s related assignments that (1) the district court
committed “plain error” by denying trial counsel’s motion for
mistrial and (2) trial counsel was ineffective for withdrawing
his motion for new trial pertaining to the alleged prosecutorial
misconduct.
(a) Failure to Properly Pursue
Alibi Defense
The appellate record is insufficient to resolve Rush’s assign-
ment that trial counsel was ineffective in his pursuit of an
alibi defense, which claim is sufficiently raised only as to trial
counsel’s failure to call Young to testify in support of Rush’s
alibi defense.
Rush initially filed a notice of alibi. Later, however, defense
counsel told the court he was not pursuing an alibi instruc-
tion. Defense counsel reasoned that even if he proved Rush
assaulted Young the day of the robbery and murder, the
evidence would show that there was time for Rush to get to
Lincoln to commit the crimes there. Whereas defense counsel
had thought Young and her roommates were going to testify
to a more precise time of the assault that was favorable to
the defense, he told the court these witnesses all “flaked out,”
i.e., would not testify. As a result of this development, defense
counsel told the court he was not going to ask for an alibi
instruction.
In his brief on appeal, Rush asserts trial counsel failed to
“adequately pursue an alibi defense.” 115 Standing alone, this
is a conclusory assertion that is not a sufficiently specific
115
Brief for appellant at 62.
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argument of ineffective assistance of counsel. 116 However,
appellate counsel elaborates that trial counsel was ineffective
by failing to “secure[] the attendance” of Young and the other
“multiple eyewitnesses” to the domestic assault, who “were
apparently available at some time.” 117 He thus argues that trial
counsel “made insufficient efforts to secure alibi witnesses for
trial.” 118 He alleges Rush was prejudiced because Rush was
left as the only witness who provided evidence of an alibi.
As already stated, to effectively raise on direct appeal a
claim of ineffective assistance of trial counsel in relation to
the failure to call witnesses, appellate counsel must give on
direct appeal the names or descriptions of any uncalled wit-
nesses forming the basis of a claim of ineffective assistance
of trial counsel. 119 In State v. Mora, 120 we found that appellate
counsel’s reference to trial counsel’s failure to call “character
witnesses,” even with some allusion to what they would have
said, was insufficiently specific to raise a claim of ineffective
assistance on direct appeal. Likewise, here, Rush’s references
to “multiple eyewitnesses” 121 to the domestic assault and to
“alibi witnesses” 122 are insufficiently specific to effectively
raise a claim of ineffective assistance on direct appeal based on
the failure to call witnesses.
In contrast, Rush has sufficiently raised a specific claim that
trial counsel was ineffective by failing to call Young to testify
about the domestic assault and when it occurred. However,
the appellate record does not tell us how Young “flaked out.”
116
See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775,947 N.W.2d 510
(2020).
117
Brief for appellant at 31.
118
Id. at 62.
119
See State v. Lee, supra note 59. See, also, State v.Blake, supra note 102
;
State v. Abdullah, 289 Neb. 123,853 N.W.2d 858
(2014).
120
State v. Mora, 298 Neb. 185, 201,903 N.W.2d 244
, 258 (2017).
121
Brief for appellant at 31.
122
Id. at 62.
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Nor does it tell us how impactful her testimony would have
been in support of Rush’s alibi defense. Therefore, we find
that Rush’s claim that trial counsel was ineffective for failing
to call Young to support his alibi defense cannot be deter-
mined on direct appeal.
(b) Withdrawal of Motion for
New Trial re Subpoena
We next consider whether trial counsel was ineffective
in withdrawing Rush’s motion for new trial in relation to
Bruning’s subpoena. Rush argues that a new trial was war-
ranted because the clerk’s alleged plain error and the State’s
alleged misconduct in interfering with the subpoena deprived
him of evidence that would have supported his alibi. Under
Neb. Rev. Stat. § 25-1142 (Reissue 2016):
The former verdict, report, or decision shall be vacated
and a new trial granted on the application of the party
aggrieved for any of the following causes affecting mate-
rially the substantial rights of such party: (1) Irregularity
in the proceedings of the court, jury, referee, or prevail-
ing party or any order of the court or referee or abuse of
discretion by which the party was prevented from hav-
ing a fair trial; (2) misconduct of the jury or prevailing
party; (3) accident or surprise, which ordinary prudence
could not have guarded against; (4) excessive damages,
appearing to have been given under the influence of
passion or prejudice; (5) error in the assessment of the
amount of recovery, whether too large or too small, if the
action is upon a contract or for the injury or detention of
property; (6) that the verdict, report, or decision is not
sustained by sufficient evidence or is contrary to law; (7)
newly discovered evidence, material for the party apply-
ing, which the moving party could not, with reasonable
diligence, have discovered and produced at the trial; and
(8) error of law occurring at the trial and excepted to by
the party making the application.
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Rush does not clearly explain on what statutory grounds the
motion would have had merit, but presumably he is appealing
to the grounds of unfair surprise and alleged misconduct by
the State.
There is no evidence that the State committed misconduct
in relation to the subpoena, and Rush does not assign or argue
that trial counsel was ineffective for failing to present fur-
ther evidence that would have established such misconduct.
During the trial and at the hearing on the motion for new trial,
there was no suggestion that the prosecutor did not in fact tell
Bruning he had to honor any subpoena by the defense. Indeed,
the prosecutor’s report of this conversation with Bruning is
reiterated in defense counsel’s affidavit that was entered into
evidence at the hearing on the motion for new trial.
Further, contrary to appellate counsel’s assertion, there
was no evidence that the State intentionally sent Bruning the
defense’s subpoena or even realized it had done so. Rather,
the prosecutor said, “[W]e sent two subpoenas to [Bruning] by
mistake.” There was no evidence that the State otherwise acted
with the purpose of preventing Bruning from testifying at trial.
The record simply does not support appellate counsel’s claim
that the prosecution acted intentionally to “thwart any efforts to
introduce Bruning’s police report, or the arrest warrant based
on that report.” 123
While defense counsel may have been initially surprised
by the clerk of the court’s errors in relation to the subpoe-
nas, defense counsel admitted that he was aware at trial that
Bruning was not going to appear and had discussions with
the clerk of the court about what had occurred. Despite this,
defense counsel did not ask for a continuance to have Bruning
properly subpoenaed and brought in by warrant if necessary.
[55] We have repeatedly held that a motion for new trial on
the ground of surprise is properly overruled where a request
123
Brief for appellant at 58.
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for a continuance for that reason was not made at the trial. 124
In a similar case, Schroll v. Fulton, 125 we accordingly held
that the plaintiff’s motion for new trial was properly over-
ruled despite evidence that a witness was never served and
had failed to appear at trial because of a misunderstanding.
We reasoned that the plaintiff’s counsel had discovered at trial
that the witness would not be present and had failed to move
for a continuance. 126 Because defense counsel became aware
of the issue during trial and did not move for a continuance,
the motion for new trial on the basis of surprise had no merit.
We observe in the instant case that trial counsel likely
abandoned his pursuit of Bruning’s testimony because it was
of little consequence to Rush’s defense. Bruning could testify
only that he made the report based on information given to
him. While the import of Bruning’s testimony was appar-
ently to enter the warrant obtained in relation to the domestic
assault into evidence, defense counsel conceded the warrant
would not support an alibi defense. Instead, defense coun-
sel said the purpose of the warrant was to add credibility to
Rush’s testimony that he fled to Chicago not just because he
had learned he was a suspect in the murder and robbery of
Shekie, but also because he knew he had a warrant for his
arrest in relation to the domestic assault. Bolstering Rush’s
credibility on such a claim was of minor significance to
Rush’s defense, and the absence of this evidence therefore did
not materially affect Rush’s substantial rights.
In sum, because the motion for new trial in relation to the
subpoena of Bruning had no merit, trial counsel was not inef-
fective for withdrawing the motion.
124
Plambeck v. Union Pacific RR. Co., 232 Neb. 590,441 N.W.2d 614
(1989); Schroll v. Fulton, 213 Neb. 310,328 N.W.2d 780
(1983); State v.
Mills, 199 Neb. 295,258 N.W.2d 628
(1977); Kehm v. Dumpert,183 Neb. 568
,162 N.W.2d 520
(1968).
125
Schroll v. Fulton, supra note 124.
126
Id.
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(c) Alleged Prosecutorial Misconduct
During Closing Arguments
Rush argues that the prosecutor took advantage of the fact
that the warrant relating to the report of domestic assault was
not in evidence and committed misconduct during closing
arguments by knowingly making false statements to the jury
that undermined Rush’s alibi. More specifically, Rush argues
that the prosecutor told the jury there was “absolutely nothing”
corroborating the existence of the domestic assault warrant and
Rush’s testimony that he was with Young at the time of the
robbery and murder. 127
Rush argues that, accordingly, the trial court erred in over-
ruling his motion for mistrial. We observe that Rush’s argu-
ment differs from his assignment of error because he assigns
“plain error,” rather than reversible error by the trial court.
Because we ultimately conclude there was no prosecutorial
misconduct, this distinction is insignificant. We find that the
court committed neither reversible error nor plain error in this
respect. For similar reasons, we find no merit to this assertion
that counsel was ineffective by withdrawing his motion for
new trial based on prosecutorial misconduct.
[56,57] In assessing allegations of prosecutorial miscon-
duct in closing arguments, a court first determines whether
the prosecutor’s remarks were improper. 128 If the remarks
are found to be improper, it is then necessary to determine
whether the improper remarks had a prejudicial effect on the
defendant’s right to a fair trial. 129 Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant
must show that a substantial miscarriage of justice has actu-
ally occurred. 130 The decision whether to grant a motion for
127
Brief for appellant at 28.
128
State v. Gleaton, 316 Neb. 114,3 N.W.3d 334
(2024).
129
Id.
130
State v. Robinson, supra note 9.
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mistrial is within the trial court’s discretion and will not be
disturbed on appeal in the absence of an abuse of discretion. 131
It is important to view the prosecution’s statements in con-
text. While the prosecutor repeatedly referred in closing argu-
ments to there being “nothing to corroborate” various aspects
of Rush’s testimony that the prosecutor discussed, these were
true statements.
During the prosecution’s closing arguments, the prosecutor
reviewed with the jury Rush’s version of events around the
time of the murder and robbery. The prosecutor talked about
how Rush claimed the messages about having to “lay low”
were “just in regard to” the domestic assault that occurred
on February 23, 2021, which the prosecutor pointed out was
“coincidentally at the same time that this homicide occurred.”
The prosecutor then began to talk about Rush’s testimony that
he had lost his cell phone or had left it in Marques’ vehicle
and said:
There’s nothing to support that, no corroboration of that
testimony that he left—[Marques] wasn’t asked that ques-
tion about finding a phone in his van, and, what, three—
what, five days later, from the 15th or the 16th or the
20th, and then all of a sudden, the 24th, his dog finds it
out by the street.
The prosecutor also talked about Rush’s unlikely story that
his social media accounts had been compromised and Rush’s
supposition that Feilen was talking to some other man during
the controlled phone conversation made in cooperation with
law enforcement.
The prosecutor then moved on to the testimony of Feilen
and Marques and pointed out that although they were both
engaged in criminal behavior and perhaps not the best wit-
nesses, there were things that corroborated their versions of
the events. The prosecutor said, in contrast, “I would tell you
131
Id.
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that there is absolutely nothing that corroborates anything
that . . . Rush said.” The prosecutor elaborated, “So, what do
I mean by that?” and proceeded to detail how Feilen’s and
Marques’ reports of events to law enforcement were consistent
with other evidence later discovered during the investigation.
After detailing this incriminating evidence, the prosecutor
talked about the shoeprint on Shekie’s door and Rush’s testi-
mony that he had sold the shoes and did not own them at the
time of the murder, pointing out that there was “[n]o corrobora-
tion for that whatsoever.” Similarly, with respect to the dogs’
finding Rush’s cell phone that he said he lost, the prosecutor
said, “[T]here’s no corroboration for that whatsoever.”
Only after all this did the prosecutor circle back to the
domestic assault. Pertaining to the alibi of the domestic assault,
the prosecutor argued there was nothing corroborating Rush’s
testimony of the exact time of the domestic assault, and he
pointed out it would take only approximately 45 minutes to 1
hour to drive from Omaha to Lincoln.
The prosecutor did not assert there was nothing corroborat-
ing the existence of an arrest warrant for a domestic assault
or that there was nothing corroborating the fact that Rush
assaulted Young in Omaha sometime on or around the day
Shekie was murdered in Lincoln. To the contrary, the prosecu-
tor speculated that the domestic assault occurred on February
24, 2021, during the evening hours. The prosecutor speculated
that Young was upset with Rush for being with Feilen on
February 23 and maybe had even found out about the mur-
der. He speculated that a fight ensued that led to the domestic
assault charges.
“But,” said the prosecutor, “there’s absolutely nothing that
corroborates when, where, and how that happened.” The
prosecutor said, “The whole [domestic violence] thing, as far
as what happened at the same time that this murder occurred
in the early morning hours of the 23rd, there is absolutely
no corroboration to show when, what, where, or how that
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warrant came about.” The prosecutor continued, “[Rush] said
there was a warrant for his arrest. There’s nothing to support
how that all came about.”
In other words, viewed in their entirety and in context,
the prosecutor’s closing arguments did not dispute that there
was a warrant related to the domestic assault or even that the
domestic assault happened. Rather, the prosecutor disputed
whether the domestic assault happened “at the same time
that this murder occurred.” The “when, what, where, or how”
comment may have been hyperbole, but, viewed in context, it
would not communicate to a reasonable juror that the prosecu-
tor was asserting there was no corroboration of the fact that
a report of domestic assault was made around the time of the
robbery and murder or the fact that a warrant for Rush’s arrest
resulted from the same.
That there was no corroboration of Rush’s testimony that
the assault occurred at the same time as the murder was a true
statement. In the sidebar during Rush’s testimony, defense
counsel expressly recognized that the arrest warrant reflected
only the date Bruning responded to the report of the offense
and not necessarily the date the offense occurred. And there
was no indication that Bruning’s testimony would have pro-
vided anything other than inadmissible hearsay with respect
to exactly when the domestic assault, as opposed to Young’s
report of it, occurred.
The prosecutor was not being false or misleading in stating
there was nothing to corroborate Rush’s alibi testimony about
the time of the assault. A prosecutor’s conduct that does not
mislead and unduly influence the jury is not misconduct. 132 As
such, the trial court did not err in denying Rush’s motion for
mistrial and trial counsel did not err in withdrawing the motion
for new trial on the ground of prosecutorial misconduct.
132
State v. Garcia, supra note 57.
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7. Stipulation to Mistrial Because
of COVID-19 Delays
[58] We next address Rush’s assignment of error that
defense counsel was ineffective by stipulating to the State’s
motion for mistrial related to COVID-19, which occurred
shortly after the first trial began. A mistrial is properly granted
in a criminal case where an event occurs during the course of
a trial that is of such a nature that its damaging effect cannot
be removed by proper admonition or instruction to the jury
and thus prevents a fair trial. 133 As stated, decisions regard-
ing motions for mistrial are directed to the discretion of the
trial court. 134
After the jury was impaneled, opening statements were
given by both parties, the State called two witnesses, and trial
was delayed for several days after the judge and three of the
State’s witnesses yet to testify tested positive for COVID-19.
The jury was unsequestered, and it was still unclear when the
judge would be asymptomatic and test negative for COVID-19.
The State, in its motions for mistrial, raised concerns about the
jurors’ ability to have a fresh recollection of the arguments and
evidence presented and its ability to secure witnesses beyond
the period of their subpoenas, based on the original estimation
of the duration of the trial.
Rush discussed the motion with defense counsel and stipu-
lated to the facts set forth in the motion. He did not object to
a mistrial. The court declared a mistrial and scheduled a new
trial. In its order, the court found that a mistrial was necessary
to avoid manifest prejudice and injustice to both Rush and
the State.
To make a successful claim that trial counsel was ineffec-
tive, the defendant must show both that counsel’s perform
ance was deficient and that the deficient performance caused
133
State v. Esch, supra note 22.
134
Id.
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prejudice. 135 But Rush presents no specific argument on appeal
as to how his defense counsel was deficient. His vague refer-
ence to the stipulation’s being “apparently based in part on
[counsel’s] personal feelings about pandemics” 136 is not a
coherent argument of deficient conduct.
Rush focuses only on the argument that he was prejudiced
because his opening statements revealed his theory of defense
and the mistrial gave the State more time to prepare to rebut
that theory. Even assuming Rush suffered some disadvantage
from the mistrial, it does not follow that trial counsel’s per-
formance in stipulating to the facts and failing to object to
the mistrial was deficient performance. It also does not follow
that the court would have abused its discretion in granting
a mistrial but for defense counsel’s stipulation and failure
to object.
In several cases in state and federal courts, mistrials granted
by the court because of delays in trial due to COVID-19, espe-
cially when of indeterminate length, have been held to be not
only proper, but of manifest necessity. 137 Trial counsel is not
deficient for failing to object to a mistrial where a mistrial
was warranted.
We find no merit to Rush’s assignment of error that trial
counsel was ineffective in relation to the mistrial granted due
to delays from COVID-19.
8. Sufficiency of Evidence of
Use of Firearm to
Commit Felony
Rush’s final challenge on appeal is that the evidence was
insufficient to support his conviction of use of a firearm to
135
See State v. Ammons, 314 Neb. 433,990 N.W.2d 897
(2023).
136
Brief for appellant at 31.
137
See, U.S. v. Islam, 102 F.4th 143(2024); U.S. v. Dennison,73 F.4th 70
(1st
Cir. 2023); Hightower v. State, 315 Ga. 399,883 S.E.2d 335
(2023); State
v. Smith, 465 N.J. Super. 515,244 A.3d 296
(2020).
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commit a felony. Under § 28-1205(1), “[a]ny person who uses
a firearm, a knife, brass or iron knuckles, or any other deadly
weapon to commit any felony which may be prosecuted in
a court of this state commits the offense of use of a deadly
weapon to commit a felony” and “[u]se of a deadly weapon,
which is a firearm, to commit a felony is a Class IC felony.”
He argues the evidence was insufficient because there was no
physical evidence linking him to a firearm.
[59] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence, and
such matters are for the finder of fact. 138 The relevant ques-
tion for an appellate court in reviewing a criminal conviction
for sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. 139
[60] Under the evidence presented, any rational trier of fact
could have found the essential elements of use of a firearm
to commit a felony. As Rush concedes, it was undisputed that
Shekie was killed by gunshot wounds. Shell casings and bul-
lets were found in and near his trailer. Feilen and Marques
both testified that Rush had a gun during the robbery and that
they heard gunshots and Shekie scream after Rush entered
Shekie’s trailer. It does not matter that this evidence is cir-
cumstantial. Circumstantial evidence is entitled to be treated
by the trier of fact in the same manner as direct evidence. 140
Nor do we pass on the credibility of these witnesses. We
find no merit to Rush’s contention that there was insufficient
138
State v. Clark, supra note 44.
139
See id.
140
State v. Buchanan, 210 Neb. 20,312 N.W.2d 684
(1981).
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evidence to support his conviction of use of a firearm to com-
mit a felony.
VI. CONCLUSION
We find that we cannot resolve on direct appeal Rush’s
claims of ineffective assistance of counsel by failing to call
Young to testify as to Rush’s alibi and by failing to adequately
prepare Rush to testify in his own defense. As to all other
assignments of error, we find that they lack merit. We affirm
the judgment of the district court.
Affirmed.