State v. Garcia

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/08/2023 09:07 AM CDT




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                               Nebraska Supreme Court Advance Sheets
                                        315 Nebraska Reports
                                                   STATE V. GARCIA
                                                   Cite as 

                                        State of Nebraska, appellee, v.
                                        Anthony J. Garcia, appellant.
                                                     ___ N.W.2d ___

                                         Filed September 8, 2023.   No. S-18-979.

                 1. Appeal and Error. To be considered by an appellate court, the party
                    asserting the alleged error must both specifically assign and specifically
                    argue it in the party’s initial brief.
                 2. ____. Where an appellant’s brief contains conclusory assertions unsup-
                    ported by a coherent analytical argument, the appellant fails to satisfy
                    the requirement that the party asserting the alleged error must both spe-
                    cifically assign and specifically argue it in the party’s initial brief.
                 3. Records: Appeal and Error. In both the criminal and postconviction
                    context, an appellate court will not ordinarily scour the record in search
                    of facts that might support an appellant’s claim.
                 4. Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion
                    to suppress 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, but whether those facts trigger or violate
                    Fourth Amendment protections is a question of law that an appellate
                    court reviews independently of the trial court’s determination. And
                    where the facts are largely undisputed, the ultimate question is an issue
                    of law.
                 5. Effectiveness of Counsel: Appeal and Error. With regard to the
                    questions of counsel’s performance or prejudice to the defendant as
                    part of the two-pronged test articulated in Strickland v. Washington,
                    

, 

, 

 (1984), an appellate
                    court reviews such legal determinations independently of the lower
                    court’s decision.
                 6. Effectiveness of Counsel: Proof: Appeal and Error. To prevail
                    on a claim of ineffective assistance of counsel under Strickland v.
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                               STATE V. GARCIA
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      Washington, 

, 

, 

 (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. An appellate court may address the two prongs of
      this test, deficient performance and prejudice, in either order.
 7.   Effectiveness of Counsel: Proof. 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.
 8.   Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
      dice, 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 confidence in the outcome.
 9.   Effectiveness of Counsel: Trial: Presumptions: Appeal and Error.
      There is a strong presumption that counsel acted reasonably, and an
      appellate court will not second-guess reasonable strategic decisions.
      When reviewing claims of alleged ineffective assistance of counsel,
      trial counsel is afforded due deference to formulate trial strategy
      and tactics.
10.   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.
11.   Effectiveness of Counsel: Appeal and Error. Assignments of error
      on direct appeal regarding ineffective assistance of trial counsel must
      specifically allege deficient performance, and an appellate court will not
      scour the remainder of the brief in search of such specificity.
12.   Effectiveness of Counsel: Records: Proof: Appeal and Error. An
      appellate court can determine whether the record proves or rebuts the
      merits of a claim of ineffective assistance of trial counsel only if it
      has knowledge of the specific conduct alleged to constitute deficient
      performance.
13.   Effectiveness of Counsel: Appeal and Error. In order to preserve a
      claim of ineffective assistance of counsel when new counsel represents
      the defendant on direct appeal, the appellant must make specific allega-
      tions of the conduct the appellant claims constituted deficient perform­
      ance by trial counsel.
14.   Effectiveness of Counsel: Waiver: Records: Appeal and Error.
      Appellate counsel does not waive a claim of ineffective assistance
      of trial counsel by failing to specifically allege and argue prejudice,
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             Nebraska Supreme Court Advance Sheets
                      315 Nebraska Reports
                               STATE V. GARCIA
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      because doing so would often require details unlikely to be found
      in the record or known to the defendant without further inquiry. It
      is nevertheless advisable for appellate counsel to specifically argue
      prejudice if counsel believes the details in the trial record pertinent to
      the prejudice prong of the ineffective assistance of counsel inquiry are
      sufficient to adequately review the question.
15.   Effectiveness of Counsel: Records: Proof: Appeal and Error.
      Appellate courts are free to determine on direct appeal the effectiveness
      of trial counsel on the prejudice prong if the record affirmatively proves
      or rebuts the claim on that ground.
16.   Courts: Motions for Mistrial: Motions for New Trial: Appeal and
      Error. A trial court is vested with considerable discretion in passing on
      motions for mistrial and for a new trial, and an appellate court will not
      disturb a trial court’s decision whether to grant a motion for mistrial or
      a motion for new trial unless the court has abused its discretion.
17.   Judges: Witnesses: Appeal and Error. An appellate court’s deference
      to the trial court stems in part from the recognition that the trial judge
      is better situated than a reviewing court to pass on questions of wit-
      ness credibility and the surrounding circumstances and atmosphere of
      the trial.
18.   Judges: Evidence: Verdicts: Jurors: Appeal and Error. The trial
      judge has a special perspective on the relationship between the evidence
      and the verdict which cannot be recreated by a reviewing court from the
      printed record. The trial court is likewise in a better position to make
      credibility determinations of jurors’ statements concerning whether they
      were influenced by extraneous information.
19.   Constitutional Law: Trial: Joinder. There is no constitutional right to
      a separate trial.
20.   Trial: Joinder: Appeal and Error. Whether offenses were properly
      joined involves a two-stage analysis: (1) whether the offenses were suf-
      ficiently related so as to be joinable and (2) whether the joinder was
      prejudicial to the defendant.
21.   Trial: Joinder: Presumptions. There is a strong presumption against
      severing properly joined counts.
22.   Trial: Joinder: Appeal and Error. While 

      (Reissue 2016) presents two separate questions, there is no error under
      either subsection (1) or subsection (3) if joinder was not prejudicial, and
      a denial of a motion to sever will be reversed only if clear prejudice and
      an abuse of discretion are shown.
23.   ____: ____: ____. An appellate court will find an abuse of discretion in
      the denial of a motion to sever only where the denial caused the defend­
      ant substantial prejudice amounting to a miscarriage of justice.
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                              STATE V. GARCIA
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24. Trial: Joinder: Proof. A defendant opposing joinder of charges has the
    burden of proving prejudice. To carry that burden, a defendant must
    show compelling, specific, and actual prejudice from the court’s refusal
    to grant the motion to sever.
25. Trial: Joinder. Severe prejudice occurs when a defendant is deprived
    of an appreciable chance for an acquittal, a chance that the defendant
    would have had in a severed trial.
26. ____: ____. Prejudice from joinder cannot be shown if evidence of one
    charge would have been admissible in a separate trial of another charge.
27. Trial: Joinder: Juries: Evidence. Joined charges do not usually result
    in prejudice if the evidence is sufficiently simple and distinct for the
    jury to easily separate evidence of the charges during deliberations.
28. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to
    be kept together before submission of the cause in a criminal trial is left
    to the discretion of the trial court.
29. ____: ____: ____: ____. To warrant reversal, denial of a motion to
    sequester the jury before submission of the cause must be shown to have
    prejudiced the defendant.
30. Venue: Appeal and Error. An appellate court reviews the denial of a
    motion to change venue for abuse of discretion.
31. Juror Qualifications. The law does not require that a juror be totally
    ignorant of the facts and issues involved; it is sufficient if the juror can
    lay aside his or her impressions or opinions and render a verdict based
    upon the evidence presented in court.
32. Courts: Trial: Mental Competency. The question of competency to
    stand trial is one of fact to be determined by the district court.
33. Courts: Trial: Mental Competency: Appeal and Error. A court’s
    decision regarding competency will not be disturbed absent insufficient
    evidence to support that finding.
34. Trial: Pleas: Mental Competency. A person is competent to plead or
    stand trial if he or she has the capacity to understand the nature and
    object of the proceedings against him or her, to comprehend his or her
    own condition in reference to such proceedings, and to make a ratio-
    nal defense.
35. Trial: Mental Competency. The competency standard includes both (1)
    whether the defendant has a rational as well as factual understanding of
    the proceedings against him or her and (2) whether the defendant has
    sufficient present ability to consult with his or her lawyer with a reason-
    able degree of rational understanding.
36. Mental Competency. There are no fixed or immutable signs of
    incompetence, and a defendant can meet the modest aim of legal
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                               STATE V. GARCIA
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      competency, despite paranoia, emotional disorders, unstable mental
      conditions, and suicidal tendencies.
37.   Criminal Law: Evidence: Jury Instructions. In order to justify an
      alibi instruction, there must be evidence that the defendant was at some
      other place during the commission of the crime.
38.   Criminal Law: Evidence: Proof. The evidence must show that the
      defendant was at such other place for a length of time that it was impos-
      sible for him or her to have been at the place where the crime was com-
      mitted, either before or after the time he or she was at such other place.
39.   Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
      has not preserved a claim of prosecutorial misconduct for direct appeal,
      an appellate court will review the record only for plain error.
40.   Appeal and Error. Appellate courts apply the plain error exception to
      the contemporaneous-objection rule sparingly.
41.   Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
      conduct encompasses conduct that violates legal or ethical standards for
      various contexts because the conduct will or may undermine a defend­
      ant’s right to a fair trial.
42.   Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
      misconduct, a court first determines whether the prosecutor’s remarks
      were improper. It is then necessary to determine the extent to which the
      improper remarks had a prejudicial effect on the defendant’s right to a
      fair trial.
43.   Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
      prejudices a defendant’s right to a fair trial when the misconduct so
      infected the trial that the resulting conviction violates due process.
44.   Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
      prejudicial depends largely on the context of the trial as a whole.
45.   Trial: Prosecuting Attorneys: Appeal and Error. In determining
      whether a prosecutor’s improper conduct prejudiced the defendant’s
      right to a fair trial, appellate courts consider the following factors:
      (1) the degree to which the prosecutor’s conduct or remarks tended
      to mislead or unduly influence the jury, (2) whether the conduct or
      remarks were extensive or isolated, (3) whether trial counsel invited the
      remarks, (4) whether the court provided a curative instruction, and (5)
      the strength of the evidence supporting the conviction.
46.   Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
      not mislead and unduly influence the jury is not misconduct.
47.   Constitutional Law: Statutes: Appeal and Error. The constitutionality
      of a statute presents a question of law, which an appellate court indepen-
      dently reviews.
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                             STATE V. GARCIA
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48. Sentences:     Death      Penalty: Aggravating         and    Mitigating
    Circumstances: Appeal and Error. When reviewing the sufficiency
    of the evidence to sustain the trier of fact’s finding of an aggravating
    circumstance, the relevant question for the Nebraska Supreme Court is
    whether, after viewing the evidence in the light most favorable to the
    State, any rational trier of fact could have found the essential elements
    of the aggravating circumstance beyond a reasonable doubt.
49. Constitutional Law: Sentences: Death Penalty: Aggravating and
    Mitigating Circumstances: Appeal and Error. When an appellate
    court reviewing a death penalty invalidates one or more of the aggra-
    vating circumstances, or finds as a matter of law that any mitigating
    circumstance exists that the sentencing panel did not consider in its
    balancing, the appellate court may, consistent with the U.S. Constitution,
    conduct a harmless error analysis or remand the cause to the district
    court for a new sentencing hearing.
50. Sentences: Death Penalty: Jury Instructions: Appeal and Error.
    In order for a state appellate court to affirm a death sentence after the
    sentencer was instructed to consider an invalid factor, the court must
    determine what the sentencer would have done absent the factor.
51. Constitutional Law: Convictions: Appeal and Error. Even a consti-
    tutional error which was harmless beyond a reasonable doubt does not
    warrant the reversal of a criminal conviction.
52. Sentences:     Death      Penalty: Aggravating         and    Mitigating
    Circumstances: Proof: Appeal and Error. Harmless error review in a
    capital sentencing case looks to whether it is clear beyond a reasonable
    doubt that the sentencing court’s decision would have been the same
    absent any reliance on an invalid aggravator.
53. Sentences: Death Penalty: Appeal and Error. In a capital sentencing
    proceeding, this court conducts an independent review of the record
    to determine if the evidence is sufficient to support imposition of the
    death penalty.
54. Sentences:     Death      Penalty: Aggravating         and    Mitigating
    Circumstances: Appeal and Error. When reviewing the sufficiency
    of the evidence to sustain the trier of fact’s finding of an aggravating
    circumstance, the relevant question for the Nebraska Supreme Court is
    whether, after viewing the evidence in the light most favorable to the
    State, any rational trier of fact could have found the essential elements
    of the aggravating circumstance beyond a reasonable doubt.
55. ____: ____: ____: ____. A sentencing panel’s determination of the exis-
    tence or nonexistence of a mitigating circumstance is subject to de novo
    review by the Nebraska Supreme Court.
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                              STATE V. GARCIA
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56. ____: ____: ____: ____. In reviewing a sentence of death, the Nebraska
    Supreme Court conducts a de novo review of the record to determine
    whether the aggravating and mitigating circumstances support the impo-
    sition of the death penalty.
57. Sentences:      Death     Penalty: Aggravating        and      Mitigating
    Circumstances: Juries: Waiver. Under Nebraska’s capital sentencing
    scheme, a jury, if not waived, only determines the existence of aggravat-
    ing circumstances.
58. ____: ____: ____: ____: ____. A jury’s participation in the death pen-
    alty sentencing phase, if not waived, ceases after the determination of
    aggravating circumstances. A three-judge panel determines the existence
    of mitigating circumstances, weighs aggravating and mitigating circum-
    stances, and determines the sentence.
59. Sentences: Death Penalty: Appeal and Error. Proportionality review
    requires the Nebraska Supreme Court to compare the aggravating and
    mitigating circumstances with those present in other cases in which
    a district court imposed the death penalty to ensure that the sentence
    imposed in the case under review is no greater than those imposed in
    other cases with the same or similar circumstances.
60. Sentences:      Death     Penalty: Aggravating        and      Mitigating
    Circumstances: Appeal and Error. If an error is harmless beyond a
    reasonable doubt in a capital sentencing case, the Nebraska Supreme
    Court should affirm the sentence of the district court. If the error is not
    harmless, the Nebraska Supreme Court cannot reweigh the aggravators
    and mitigators and resentence a defendant; rather, it must remand the
    matter to the district court for resentencing.
61. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
    Whether cumulative error deprived a criminal defendant of his or her
    Sixth Amendment right to a trial by an impartial jury presents a question
    of law to be reviewed de novo.

   Appeal from the District Court for Douglas County: Gary
B. Randall, Judge. Affirmed.
  Jeffery A. Pickens and Sarah P. Newell, of Nebraska
Commission on Public Advocacy, for appellant.
   Michael T. Hilgers, Attorney General, and James D. Smith
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Arterburn, Judge.
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                     315 Nebraska Reports
                             STATE V. GARCIA
                             Cite as 

    Heavican, C.J.
                      I. INTRODUCTION
   The appellant, Anthony J. Garcia, was convicted of four
counts of first degree murder, four counts of use of a weapon
to commit a felony, and one count of attempted burglary. He
was sentenced to death for each of the four murder convictions,
19 to 20 years’ imprisonment for two of the use of a weapon
convictions, 49 to 50 years’ imprisonment for the remain-
ing use of a weapon convictions, and 20 months’ to 5 years’
imprisonment for the attempted burglary conviction. This auto-
matic appeal follows. 1
                       II. BACKGROUND
   These facts involve two sets of murders committed 5 years
apart. On March 13, 2008, William Hunter discovered the bod-
ies of his 11-year-old son, Thomas Hunter (Hunter), and Shirlee
Sherman, aged 57 and employed as the family’s cleaner, at
the Hunter home in the Dundee neighborhood of Omaha,
Nebraska. Both Hunter’s and Sherman’s carotid arteries and
jugular veins were severed, and the knives used to inflict those
wounds were left in the victims’ necks.
   Just over 5 years later, on May 14, 2013, the bodies of
Roger Brumback and Mary Brumback were discovered in their
home, also in Omaha. Roger and Mary were stabbed in the
neck; Roger was also shot. Mary’s carotid artery and jugular
vein were severed, as was Roger’s carotid artery.
   The Brumback murders revived the investigation into the
Hunter/Sherman murders because of a connection between
William Hunter and Roger, who were both employed by
Creighton University (Creighton) in Omaha in its pathology
department. Further investigation led law enforcement to sus-
pect Garcia of both sets of murders. Garcia was eventually
arrested in Illinois on July 15, 2013. Search warrants were
then obtained and executed for Garcia’s home in Terre Haute,
Indiana, and at his parents’ home in California. Garcia was
1
    See 

 (Reissue 2016).
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         Nebraska Supreme Court Advance Sheets
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                        STATE V. GARCIA
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later charged with both sets of murders and the associated
weapons charges, as well as an attempted burglary at the
home of Chhanda Bewtra, another individual employed in
Creighton’s pathology department.
   The State’s theory of the crimes was that Garcia commit-
ted each set of murders as revenge for his termination from
Creighton’s pathology residency program. In support of this
theory, in addition to presenting factual evidence regarding
the two murder scenes and Garcia’s physical and digital move-
ments at the time of the murders, the State presented evidence
of Garcia’s time at Creighton. The State also offered evidence
of Garcia’s professional and personal life between the two
sets of murders to show that his termination from Creighton’s
residency program, at least occasionally, prevented Garcia
from obtaining a medical license in different states and from
generally considering himself to be successful.
   Garcia was represented by “Team Motta,” composed of
lawyers primarily practicing in Chicago, Illinois, but admitted
pro hac vice in Nebraska for purposes of representing Garcia.
The Chicago members of Team Motta were Robert Motta, Sr.;
Robert Motta, Jr.; and Alison Motta. In order to be admit-
ted pro hac vice, Team Motta was required to associate with
local counsel; at some point prior to trial in Douglas County,
original local counsel withdrew, and new local counsel—
notably including Omaha attorney Jeremy Jorgenson—joined
as counsel.
   As will be noted in more detail below, when original local
counsel withdrew, Team Motta needed to be readmitted pro
hac vice. At this time, Alison Motta’s motion to be admitted
pro hac vice was denied, while the motions of the remainder of
Team Motta were granted. As such, by the time of trial, Alison
Motta was not able to appear in court to represent Garcia.
Throughout our opinion, we refer to Team Motta as defense or
trial counsel; where referencing Alison Motta specifically, we
refer to her as “Motta.”
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                  315 Nebraska Reports
                        STATE V. GARCIA
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   Trial eventually began in late September 2016, after which
the jury found Garcia guilty on all charges. A notice of aggra-
vation had been filed with regard to the four murder charges,
and thus, Garcia was death eligible. Following a hearing on
aggravating factors, the jury found two aggravators each as to
the Hunter/Sherman murders and three aggravators each as to
the Brumback murders.
   At this point in time, the district court appointed the
Commission on Public Advocacy (Commission) as cocoun-
sel for purposes of Garcia’s sentencing hearing. The details
surrounding this are also set forth in more detail below. By
the time this sentencing hearing was held, however, Team
Motta had withdrawn from representing Garcia and only the
Commission acted as representation for Garcia. Following a
further sentencing hearing at which Garcia produced evidence
of mitigating factors, a three-judge panel sentenced Garcia to
death for each of the four murder convictions. The Commission
continues to represent Garcia on appeal.
   Additional factual and procedural background is incorpo-
rated below.
                III. ASSIGNMENTS OF ERROR
   Garcia assigns 130 separate assignments of error, which
generally comprise 15 separate topic areas: (1) motions to
suppress and evidentiary objections, (2) testimony of Cecilia
Hoffmann, (3) interlocutory appeals, (4) motion to sever, (5)
change of venue and jury sequestration, (6) competency, (7)
discovery, (8) DNA and digital evidence, (9) miscellaneous
claims of ineffective assistance of counsel, (10) closing argu-
ments, (11) aggravating circumstances, (12) mitigating cir-
cumstances, (13) constitutionality of the death penalty, (14)
balancing and proportionality, and (15) broad-scale ineffective-
ness and procedural bar. We have adopted this framework to
address Garcia’s assignments of errors. We set forth in detail a
pertinent list of assigned errors—consolidated and restated—at
the commencement of each topic area.
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                           STATE V. GARCIA
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   We note that throughout his brief, Garcia often “incorpo-
rates” facts, propositions of law, legal standards, assignments
of error, arguments, or any combination thereof from other sec-
tions of his brief and, at times, even other parts of the record.
Sometimes, these “incorporations” identify the source of the
incorporated material. At other times, they do not. We deter-
mine that, generally, Garcia’s incorporations are insufficient
for us to consider the “incorporated” materials as part of the
related argument. This outcome is supported by several propo-
sitions of this court.
   [1-3] First, we have long held that to be considered by
an appellate court, the party asserting the alleged error must
both specifically assign and specifically argue the error in
the party’s initial brief. 2 Where an appellant’s brief contains
conclusory assertions unsupported by a coherent analytical
argument, the appellant fails to satisfy such requirement. 3
Moreover, we have held that, in both the criminal and post-
conviction context, an appellate court will not ordinarily scour
the record in search of facts that might support an appel-
lant’s claim. 4
   Additionally, in the context of petitions for further review,
we have noted that incorporation by reference of the assign-
ments of error and arguments made in one’s appellate brief is
not an appropriate way to separately and concisely set forth the
assignments of error in a petition for further review. 5
   For the purposes of briefs filed with the appellate courts,
we do not encourage the practice of incorporating by refer-
ence any content material to a party’s argument, particularly
2
  Timothy L. Ashford, PC LLO v. Roses, 

, 

  (2023).
3
  

4
  See State v. Wood, 

, 

 (2021); State v. Childs,
  

, 

 (2021).
5
  State v. Kays, 

, 

 (2014), overruled on other
  grounds, State v. Malone, 

, 

 (2021).
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when such references are unclear, and any party who does
incorporate by reference does so at the party’s own peril. 6
                          IV. ANALYSIS
                  1. Motions to Suppress and
                     Evidentiary Objections
                     (a) Assignments of Error
   Collectively, Garcia’s first 13 assignments of error discuss
Garcia’s allegations of district court error and ineffective
assist­ance of trial counsel with regard to evidence obtained
through the stop and subsequent search warrants undertaken
of Garcia’s vehicle and home, as well as of the home of his
parents. We consolidate and renumber those assignments for
ease of disposition.
   Garcia assigns that (1) the district court erred in overruling
his motion to suppress evidence from his warrantless stop and
arrest in Illinois because the arresting officer had no knowl-
edge of the facts supporting Garcia’s arrest and because the
collective knowledge doctrine was inapplicable.
   In addition, Garcia assigns that his trial counsel was inef-
fective in (2) not preserving his suppression arguments with
regard to the evidence obtained from the stop of his vehicle,
including the failure to prepare for, make, and preserve objec-
tions to items and documents seized from Garcia’s vehicle;
(3) not preserving his suppression arguments with regard to
the evidence obtained from searches under the remaining
warrants, including the failure to prepare for, make, and pre-
serve objections to documents seized under those warrants;
(4) failing to prepare for, make, and preserve objections to
records and testimony relating to Garcia’s behavior as a medi-
cal resident; (5) stipulating to the admissibility of records and
testimony relating to Garcia’s behavior as a medical resident;
(6) failing to argue that the State’s motion in limine was time
barred in light of the district court’s January 28, 2016, order;
6
    See State v. Buol, 

, ___ N.W.2d ___ (2023).
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(7) failing to argue that the State did not carry its burden
regarding the sufficiency of the warrants by omitting proof of
the May 25, 2013, warrant upon which all other warrants were
premised; (8) failing to properly assert and prove the allega-
tions in Garcia’s Franks v. Delaware 7 motion; (9) failing to
submit a brief in support of Garcia’s motion in limine; (10)
failing to seek a jury instruction clarifying the limited purpose
for which various documents from Garcia’s home and vehicle
were admitted; and (11) failing to seek a jury instruction
clarifying the limited purpose for which Garcia’s employment
records and history were admitted.
                      (b) Standard of Review
   [4] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review. 8
Regarding historical facts, we review the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that we
review independently of the trial court’s determination. 9 And
where the facts are largely undisputed, the ultimate question
is an issue of law. 10
                  (c) Additional Background
   The Omaha Police Department (OPD) and the Federal
Bureau of Investigation (FBI) were working together to inves-
tigate the Hunter/Sherman and Brumback murders, which law
enforcement had theorized were connected. The investigation
led to Garcia, who resided in Terre Haute. FBI agents and
OPD officers traveled to that area in July 2013 to surveille and
eventually arrest Garcia, whose cell phone was being moni-
tored by OPD.
7
   Franks v. Delaware, 

, 

, 

 (1978).
8
   State v. Miller, 

, 

 (2022).
 9
   

10
   

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    Upon arrival in Terre Haute, the investigating FBI agents
learned from OPD that Garcia had recently left the Terre Haute
area and had traveled to southern Illinois. The agents then
traveled to the same area in an effort to locate Garcia, making
contact with agents from the FBI office located in Springfield,
Illinois, while en route to southern Illinois. Garcia’s vehicle
was located outside a hotel in Salem, Illinois.
    The agents checked into a hotel with a vantage point over
Garcia’s hotel and vehicle and made a plan for the next day’s
surveillance. That plan called for the agents who were watch-
ing Garcia’s hotel and vehicle to begin surveillance at 5 a.m.
One agent awoke a few minutes before that time and discov-
ered that Garcia’s vehicle was no longer parked at the hotel.
Agents contacted OPD, whose monitoring indicated that Garcia
was headed south on Interstate 57, and so those agents also
drove south on Interstate 57.
    Because Garcia was not being monitored in real time, but
instead only every 30 minutes, agents did not immediately
locate Garcia. But Garcia’s vehicle was eventually located near
Benton, Illinois, heading southbound. In consultation with FBI
agents from the Springfield office, a decision was made to
have the Illinois State Patrol stop Garcia’s vehicle so that FBI
agents could arrest him. At approximately 6:30 a.m., Garcia
was arrested and transported first to Jonesboro, Illinois, and
eventually to Omaha.
                      (d) District Court Error
   On appeal, Garcia contends that the district court erred in
not suppressing the evidence derived from Garcia’s stop and
arrest in Illinois. Specifically, Garcia contends that the arrest-
ing officer had no knowledge of the facts justifying the arrest
and the collective knowledge doctrine was inapplicable in
these circumstances. As such, Garcia contends that the failure
to suppress this evidence violated his rights under the 4th,
5th, and 14th Amendments to the U.S. Constitution and article
I, §§ 3, 7, and 11, of the Nebraska Constitution. Garcia does
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not assign on appeal that there was insufficient probable cause
to support his arrest.
   The parties are in agreement that at the time of Garcia’s
arrest, an arrest warrant had been contemplated by Nebraska
authorities, but had not yet been issued. As such, Garcia’s
arrest was warrantless. Under Illinois law, an officer may arrest
someone when they have “reasonable grounds” to believe that
a warrant for the person’s arrest has been issued in Illinois
or in another jurisdiction or if there are “reasonable grounds
to believe that the person is committing or has committed an
offense.” 11 The statutory phrase “reasonable grounds” has the
same substantive meaning as “probable cause.” 12 “Where offi-
cers are acting in concert in investigating a crime or possible
crime, probable cause can be established from all the informa-
tion collectively received by the officers even if not known to
the arresting officer.” 13
   We read Garcia’s argument as conceding that he could be
arrested without a warrant upon a finding of probable cause
and agreeing that probable cause to support an arrest can be
gathered via the collective knowledge doctrine. But Garcia
argues that in this case, there was insufficient collective
knowledge to support a finding of probable cause. Specifically,
Garcia argues that the Illinois troopers had no involvement or
knowledge of the underlying investigation into Garcia, as nei-
ther those troopers nor their agency were involved in investi-
gating the murders. Rather, the only Illinois law enforcement
officials involved were the FBI agents from the Springfield
office, and the Illinois troopers were only contacted after the
investigating officers lost track of Garcia. Moreover, the FBI
11
   725 Ill. Comp. Stat. Ann. 5/107-2 (LexisNexis 2000). See 

 (Cum. Supp. 2022).
12
   People v. Lee, 

, 

, 

   (2005).
13
   People v. Fox, 

, 

, 

 (1987). See State v. Huff, 

, 

   (2011).
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agents investigating Garcia were not the same FBI agents
contacting the troopers who ultimately effected the stop.
Additionally, Garcia notes that only one of the Illinois troop-
ers involved was in direct contact with the FBI, and he was
only told to follow a vehicle matching a particular description.
He was not told who he was stopping and learned just before
he made the stop that it was in connection with a homicide
investigation.
   To the extent that Garcia argues the collective knowledge
doctrine is inapplicable because the Illinois troopers were
from Illinois and not Nebraska, we reject this assertion. Garcia
directs us to no authority, and we can find none, that sug-
gests that law enforcement agencies cannot utilize the col-
lective knowledge doctrine when sharing information across
jurisdictions. In fact, case law and secondary sources suggest
the contrary. 14
   Garcia ultimately suggests that the collective knowledge
doctrine is inapplicable because the FBI agents with knowl-
edge of the investigation were not in direct communication
with the troopers who stopped Garcia, and those troopers, as
well as the FBI agents who communicated with them, did not
possess any knowledge about Garcia or the investigation. But
as we have noted above, both Illinois and Nebraska law pro-
vide that probable cause can be established from all the infor-
mation collectively received by the officers even if not known
to the arresting officer. And Garcia directs us to no authority
that limits this rule. As such, we reject this assertion.
   Garcia cites to several cases—U.S. v. Blair, 15 U.S. v. Lyons, 16
and U.S. v. Nafzager 17—which he argues support his posi-
tion. Having reviewed these cases, we find them distinguish-
able on their facts. Because, contrary to Garcia’s argument,
14
   Annot., 

 (2015) (collecting cases).
15
   U.S. v. Blair, 

 (6th Cir. 2008).
16
   U.S. v. Lyons, 

 (6th Cir. 2012).
17
   U.S. v. Nafzager, 

 (7th Cir. 1992).
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the collective knowledge doctrine is applicable and because
Garcia does not otherwise challenge the finding that there
was probable cause to support his arrest, we find no merit to
Garcia’s first assignment of error.

               (e) Ineffective Assistance of Counsel
         (i) Standard of Review and Propositions of Law
   [5] With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 18 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 19
   [6-8] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland, the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 20 An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. 21
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. 22 To
show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. 23 A reason-
able probability is a probability sufficient to undermine confi-
dence in the outcome. 24
18
   Strickland v. Washington, 

, 

, 

   (1984).
19
   State v. Jennings, 

, 

 (2022).
20
   State v. 

.
21
   

22
   State v. Mrza, 

, 

 (2019).
23
   

24
   

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   [9] There is a strong presumption that counsel acted reason-
ably, and an appellate court will not second-guess reasonable
strategic decisions. 25 When reviewing claims of alleged inef-
fective assistance of counsel, trial counsel is afforded due def-
erence to formulate trial strategy and tactics. 26
   [10] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 27
   [11-13] Assignments of error on direct appeal regarding
effective assistance of trial counsel must specifically allege
deficient performance, and an appellate court will not scour
the remainder of the brief in search of such specificity. 28
Moreover, an appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assistance
of trial counsel only if it has knowledge of the specific con-
duct alleged to constitute deficient performance. 29 Thus, in
order to preserve a claim of ineffective assistance of counsel
when new counsel represents the defendant on direct appeal,
the appellant must make specific allegations of the conduct
the appellant claims constituted deficient performance by
trial counsel. 30
   [14,15] In contrast, appellate counsel does not waive a claim
of ineffective assistance of trial counsel by failing to specifi-
cally allege and argue prejudice, because doing so would often
require details unlikely to be found in the record or known
25
   State v. Anders, 

, 

 (2022).
26
   

27
   

28
   State v. 

.
29
   State v. 

.
30
   

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to the defendant without further inquiry. 31 It is, nevertheless,
advisable for appellate counsel to specifically argue prejudice
if counsel believes the details in the trial record pertinent to the
prejudice prong of the ineffective assistance of counsel inquiry
are sufficient to adequately review the question. 32 Appellate
courts are free to determine on direct appeal the effectiveness
of trial counsel on the prejudice prong if the record affirma-
tively proves or rebuts the claim on that ground. 33
                    (ii) Evidence From Stop and
                         Remaining Warrants
   In his second and third assignments of error, Garcia assigns
that his trial counsel erred in failing to object to the receipt
of evidence obtained from the stop of his vehicle and also
from “the Receipt of Evidence Obtained from the Remaining
Warrants.” More specifically, Garcia argues that counsel was
ineffective in the failure to prepare for, make, and preserve
objections to items and documents, including a shoulder bag
with an “LSU” logo and its contents, seized from Garcia’s
vehicle and from his home.
   We generally agree with Garcia’s contention that trial coun-
sel’s objections to these items were haphazard. For example,
prior to officers’ testifying to the stop, counsel sought a renewal
of the motions to suppress and motion to quash. But objections
to specific pieces of evidence were inconsistent. For example,
objections to the admission of a cell phone retrieved at the
stop appear to have been made, but no objection was made to
the admission of Garcia’s wallet or its contents, or the LSU
shoulder bag and its contents. One item that was not admitted
was an LSU laboratory coat; however, a tablet computer was
found in the pocket of that laboratory coat and no objection
was raised to that item.
31
   

32
   

33
   

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   In addition to now asserting that trial counsel was ineffec-
tive in failing to preserve his suppression arguments, Garcia
argues that counsel was generally unprepared to deal with the
admissibility of the documents seized from Garcia’s vehicle
and home. Garcia continues:
          Because of the volume of the documents submitted,
      the inability to track the Mottas’ objections through the
      proceedings, and the admission of three separate boxes
      of materials in their entirety summed up simply by a
      one-word objection: “403”, successor counsel cannot
      individually demonstrate the extent of deficient per-
      formance or resulting prejudice as to each and every
      document seized and admitted. . . . Certainly, not all of
      the prejudicial evidence would have been excluded, but
      . . . it stands to reason that a significant number of these
      items would have been excluded had the Mottas been
      more prepared. 34
   As we have noted above, in order to preserve a claim of
ineffective assistance of counsel when new counsel represents
the defendant on direct appeal, the appellant must make spe-
cific allegations of conduct the appellant claims constituted
deficient performance by trial counsel. We find the allegations
here lacking.
   On appeal, Garcia takes issue with documents that were
admitted at trial. While this record is undoubtedly large, what
is contained within it is known. In order for us to determine
whether trial counsel was deficient in not objecting to certain
documents, appellate counsel has an obligation to inform this
court of the specific documents complained of. A reference to
all documents would generally be insufficient in any case, and
especially where counsel also concedes that certain documents
would no doubt be admissible. We decline to search through
every document offered in this case to determine which may
or may not be inadmissible for any variety of prohibited
34
     Brief for appellant at 173.
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reasons under our rules of evidence. We accordingly conclude
that the allegation of ineffective assistance of counsel on these
issues is insufficient.
   Garcia also takes more specific issue with the LSU shoulder
bag. This bag was found in Garcia’s vehicle at the time of his
arrest, along with a laboratory coat, also with the LSU logo.
Law enforcement had theorized that Garcia might be headed
to Louisiana in order to kill individuals connected with the
Louisiana State University School of Medicine.
   The laboratory coat was excluded from evidence, but the
record indicates that trial counsel objected too late to a photo-
graph taken of the LSU shoulder bag. On appeal, Garcia argues
that trial counsel failed to object to this bag and its contents.
Garcia does not allege what the contents of the bag were, and
such is not apparent from the photographs offered at trial.
Garcia does suggest that these contents were later added to
other documents offered in this case. We discussed such docu-
ments above.
   However, we conclude that trial counsel failed to object to
the LSU shoulder bag and appellate counsel has adequately
alleged deficient conduct as much here. But we conclude that
there was no prejudice in the admission of the LSU shoulder
bag. We observe that the jury was aware that Garcia had ear-
lier been affiliated with LSU. Unlike the LSU laboratory coat
found in Garcia’s vehicle (which, as we note, was objected
to and excluded from evidence), the presence of a university
shoulder bag belonging to a person who had previously been a
medical resident at that university is not prejudicial.
   Garcia also suggests that counsel was deficient in not object-
ing to the admission of the bank cards in his wallet, as well as
the cell phone and tablet computer. We conclude that we lack
the record to determine what information might have been
found on those devices, and thus, we conclude that we cannot
determine whether counsel was ineffective in failing to prop-
erly object to these items.
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             (iii) Evidence Regarding Time Spent as
                    Creighton Medical Resident
   In his fourth, fifth, and sixth assignments of error, Garcia
contends that his counsel was ineffective in handling the
admission of evidence relating to his time spent as a Creighton
medical resident, including whether counsel properly prepared
for, made, and preserved objections to that evidence; whether
counsel was ineffective in stipulating to the admissibility of
that evidence as a business record under 

(5) (Reissue 2016); and whether counsel was inef-
fective in failing to argue that the State effectively waived the
admissibility of such evidence by filing its motion in limine
out of time.
   We first reject the argument that the admission of this evi-
dence was effectively waived because it was filed after the
court’s deadline set in its order of January 28, 2016. A review
of the record shows that as of that date, the court and the parties
anticipated that trial would be held on April 4. Subsequently, a
new judge was assigned the case, local counsel withdrew, new
local counsel joined the case, many more evidentiary motions
were filed both by the State and by Garcia, and trial did not
occur until October 2016. In short, even if there was deficient
conduct by counsel in failing to object on those grounds, we
find no prejudice in the court’s allowing the filing of this
motion on these facts.
   We turn to Garcia’s twin contentions that trial counsel erred
in stipulating to the admission of the employment records and
in their general handling of the admissibility of those records.
As noted above, the appellant must make specific allegations
of conduct the appellant claims constituted deficient perform­
ance. Though aware of what records were offered at trial,
Garcia has failed to identify the records that he now asserts
were inadmissible. For this reason, we find that these allega-
tions of ineffective assistance of counsel are insufficient.
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              (iv) Proof of May 25, 2013, Warrant
   Garcia assigns that trial counsel erred in failing to argue
that the State did not carry the burden of showing the suf-
ficiency of the search warrants executed against him because
the State did not offer proof of the May 25, 2013, warrant
upon which all other warrants were premised. According to
Garcia, this May 25 warrant was for Garcia’s cell phone and
cell tower records, and the information gathered from this war-
rant informed all subsequent warrants, including the one for
Garcia’s home and for businesses that Garcia patronized prior
to and following the Brumback murders. As Garcia notes, this
warrant is not part of our record. We conclude that we lack a
record on direct appeal to decide this allegation of ineffective
assistance of counsel.

                        (v) Franks Motion
   Garcia also assigns that his counsel was ineffective in fail-
ing to preserve his suppression arguments by failing to prop-
erly assert and prove the allegations contained in his Franks
motion. 35 Garcia further argues that “[i]n addition to raising the
issue above from a failure of proof standpoint, [trial counsel]
should also have argued the issue as a material omission under
Franks. Similarly, [trial counsel] failed to present sufficient
evidence relating to alternate suspects as discussed below and
incorporated herein.” 36
   When considered in conjunction with Garcia’s June 11,
2014, motion under Franks, we understand Garcia to be argu-
ing that certain misrepresentations and omissions were made
in the affidavits in support of several search warrants executed
against Garcia. In that motion, Garcia directs us to language
in the affidavits regarding Garcia’s time with Creighton’s
pathology department and contends that certain paragraphs
35
     See Franks v. 

.
36
     Brief for appellant at 169.
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of the probable cause affidavit were misleading. Garcia notes
that one affidavit stated that, when asked, William Hunter and
Roger verified that Garcia was terminated and did not com-
plete the program, when, in fact, “Garcia received at least two
excellent letters of reference from Drs. Hunter and Brumback
[that] outlined the work . . . Garcia completed and indicated
that he completed the year. Both of these letters were inten-
tionally omitted [from the affidavit].”
   In addition, Garcia’s motion directs the court to five evalu-
ation forms, also omitted from the affidavit, from Garcia’s
time at Creighton in which Garcia was given “‘high scores’”
and was rated as “diligent, a hard worker, and with a great
attitude.” Garcia also contends that the affidavits did not
include information that there were other suspects that had
essentially the same motive as the State alleges Garcia did—a
grudge against Creighton’s pathology department. Garcia sug-
gests that this omission was also misleading. Finally, Garcia
argues that the affidavits state that he was arrested pursuant
to an OPD warrant, when, in fact, he was arrested without
a warrant. Garcia also points to some inconsistencies in wit-
ness lineups. The district court held a hearing on the Franks
motion and concluded that Garcia had not met his initial bur-
den of a “‘substantial preliminary showing,’ . . . of ‘deliberate
falsehood or a reckless disregard for the truth,’ supported by
an offer of proof.” 37
   Generously construed, Garcia seems to limit his assignment
to his two primary allegations as raised in his Franks motion—
the Creighton letters of reference and the existence of alternate
suspects. To the extent other allegations that may fit under
Franks might exist, those have not been sufficiently alleged on
appeal or for a postconviction action.
   The basis of Garcia’s argument is that counsel failed to
introduce sufficient evidence to support the Franks motion.
37
     See State v. Stickelman, 

, 

 (1980).
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We note that Garcia does not identify what evidence ought to
have been offered with regard to either the letters of reference
or the alternate suspects. However, we recognize that the dis-
covery provided to counsel was alleged to be incomplete and
thus conclude there may be evidence that was not provided
to appellate counsel prior to this filing of Garcia’s brief on
appeal. As such, we conclude that we lack a sufficient record
to determine the issue on direct appeal.
            (vi) Brief in Support of Motion in Limine
   Garcia alleges that his trial counsel was ineffective in fail-
ing to submit a brief in support of Garcia’s second motion
in limine. The record shows that Garcia filed this motion in
limine specifically referencing 15 items that Garcia sought
to prohibit the State from mentioning at trial. Garcia men-
tions only three items in his brief: The State should not have
been permitted to (1) introduce any “post homicide behav-
ior,” including “travel, purchases, restaurants, casinos” as
“immaterial, and irrelevant, and [as] likely [to] confuse the
issues and mislead the jury”; (2) argue that “suicide [was an]
acknowledgement and/or inference of guilt” due to Garcia’s
long history of depression; or (3) admit argument or evi-
dence “indicating suspicions of law enforcement relating to
uncharged crimes,” where “law enforcement [might] believe
[Garcia] planned to commit but where [crimes were] never
actually committed.” As such, we limit our consideration to
these three.
   Although Garcia’s categories are perhaps less vague than
those noted above regarding the searches of his vehicle, home,
or employment records, we still find that Garcia has not suf-
ficiently alleged what specific evidence counsel should have
objected to and why. Without these specific allegations, we
cannot determine whether the absence of a brief had any
impact on the court’s decisionmaking with regard to these cat-
egories. We conclude that Garcia has not adequately pled his
ineffective assistance claim.
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                      (vii) Jury Instructions
   Finally, Garcia alleges that his counsel was ineffective in
failing to seek jury instructions clarifying the limited purpose
for which the documents from his vehicle and home, as well
as his employment records, were offered. But we have con-
cluded above that Garcia has failed to sufficiently allege his
allegations of ineffective assistance of counsel with regard to
the admissibility of these documents and records. As such, it
is immaterial whether the jury was given instructions as to its
consideration of those records.
                         (f) Conclusion
   We find Garcia’s assignments of error regarding the district
court to be without merit. We further find that, except as set
forth below, Garcia has failed to allege his claims of ineffective
assistance of counsel with the required specificity with respect
to the searches associated with his stop, arrest, and other war-
rants, as well as with respect to the documents relating to his
time as a medical resident at Creighton. We find no prejudice
with regard to the admittance of the LSU shoulder bag. Finally,
we conclude that Garcia has sufficiently alleged deficient
conduct regarding his bank card and the cell phone and tablet
computer found in his vehicle when he was stopped, as well as
regarding the May 25 warrant and discovery issues related to
his Franks motion.
            2. Testimony of Cecilia Hoffmann
                   (a) Assignments of Error
   Garcia assigns a number of assignments of error relating
to Cecilia Hoffmann. He assigns, restated, that the trial court
erred (1) by not granting a mistrial when the State violated
a court order to not discuss a phone call between Hoffmann,
Motta, and Steve Yahnke, who was a private investigator that
worked for defense counsel; (2) by not allowing Garcia to
play portions of a recorded interview between Hoffmann and
Yahnke; and (3) by not inquiring about a conflict of interest
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when Garcia’s defense team continued as counsel after witness
tampering allegations.
   Garcia further assigns, restated, that his trial counsel was
ineffective in (4) engaging in behavior akin to witness tam-
pering during interactions with Hoffmann; (5) failing to ade-
quately prepare for Hoffmann’s testimony, including filing
and preserving motions in limine to exclude testimony relat-
ing to allegations of witness tampering; (6) failing to object
to the State’s examination of Hoffmann wherein a question
was asked again after an objection was sustained, where the
State prematurely rehabilitated Hoffmann’s testimony, and
where the State had Hoffmann testify to an earlier consistent
statement prior to Garcia’s having impugned her motive to
fabricate; (7) failing to call Hoffmann’s coworkers to testify
that law enforcement used leading interview techniques; (8)
failing to make an offer of proof of a recorded interview so
that it could be reviewed on direct appeal; (9) failing to reof-
fer the recorded interview to impeach Hoffmann’s testimony
during Garcia’s case in chief; (10) failing to sequester Motta
and Yahnke so that both could testify to impeach Hoffmann’s
testimony that she felt threatened by them; (11) failing, due
to a conflict of interest, to call Motta and Yahnke to testify to
impeach Hoffmann’s testimony; (12) failing to object to the
district court’s allowing the State to impute consciousness of
guilt and the weakness of the case from the defense to Garcia;
(13) failing to withdraw as defense counsel following wit-
ness tampering allegations; (14) failing to consult with Garcia
about the implications of the witness tampering allegations;
(15) failing to pursue plea negotiations wherein Garcia could
testify against Motta or Yahnke in exchange for leniency;
(16) prioritizing publicity over Garcia’s right to a fair trial by
soliciting news outlets to cover the case; and (17) failing to
secure Garcia’s consent and a waiver of confidentiality and
privilege before participating in a national news television
show about the case.
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                   (b) Standard of Review and
                       Propositions of Law
   [16-18] A trial court is vested with considerable discre-
tion in passing on motions for mistrial and for a new trial, 38
and an appellate court will not disturb a trial court’s decision
whether to grant a motion for mistrial or a motion for new
trial unless the court has abused its discretion. 39 It is an abuse
of discretion to make an error of law or clear errors of factual
determination. 40 An appellate court’s deference to the trial
court stems in part from the recognition that the trial judge
is better situated than a reviewing court to pass on questions
of witness credibility and the surrounding circumstances and
atmosphere of the trial. 41 The trial judge has a special per-
spective on the relationship between the evidence and the
verdict which cannot be recreated by a reviewing court from
the printed record. 42 The trial court is likewise in a better
position to make credibility determinations of jurors’ state-
ments concerning whether they were influenced by extrane-
ous information. 43
                   (c) Additional Background
   Hoffmann was a dancer at a club located in Terre Haute,
which club was frequented by Garcia. After Garcia was
arrested in July 2013, OPD officers visited this club and spoke
with Hoffmann. During those interviews, Hoffmann told law
enforcement that Garcia had informed her that he had killed
“an old lady and a kid.”
   Several years later, after Hoffmann’s identity was released,
Hoffmann was approached and interviewed by Yahnke.
38
   State v. Trail, 

, 

 (2022).
39
   

40
   See 

41
   

42
   

43
   

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During that interview, which occurred on or about June 3,
2015, Hoffmann was asked by Yahnke whether she would
be willing to “recant [her] story” about Garcia’s statement.
During that interview, Hoffmann indicated that she would be
willing to do so, though she “d[id]n’t think [she] was lying”
in her earlier statement to law enforcement. With prompting
from Yahnke, Hoffmann suggested that due to her drug use at
the time Garcia made his statement, she should “retract the
statement.” Hoffmann testified that she emailed Ryan Davis,
the detective with the OPD who had initially interviewed her,
about this incident while Yahnke was still at her home.
   A portion of the conversation between Hoffmann and Yahnke
was recorded. The recording was not admitted into evidence,
nor was an offer of proof made with regard to the recording. A
transcript of the recorded portion of this conversation is con-
tained in our record.
   Hoffmann, Motta, and Yahnke later spoke via telephone
regarding Hoffmann’s recantation. There was no recording
or transcript of any part of this conversation, but Hoffmann
later spoke to an officer of the Indiana State Patrol about
both the interview and the phone call with Motta and Yahnke.
According to the affidavit of the officer who conducted the
interview of Hoffmann, Hoffmann related that Yahnke showed
up at her home, presented a badge, and advised her that he
was a detective. It was only after she allowed Yahnke into her
home that she realized that he was working for Garcia; she had
initially believed he was an OPD detective.
   The officer’s affidavit noted that Hoffmann had reported
that Motta was aggressive, telling Hoffmann that she was a
drug addict—and either did not remember what had happened
or had heard the story elsewhere—and that people would not
believe her. According to the affidavit, Hoffmann said that
Motta and Yahnke convinced her that her testimony was not
necessary for the case and that she would be “torn part on
the stand given her background.” Hoffmann then apparently
informed the pair that she did not want her or her family
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to have to go through a trial, but that she “stood firm” with
what she heard Garcia say. According to Hoffmann, Motta
then said: “‘Honey, I would love for you to disappear.’” Motta
asked Hoffmann to sign an affidavit recanting her statement,
and Hoffmann agreed.
   Hoffmann further indicated that Motta stated Garcia was
innocent and that they would get him out, which frightened
Hoffmann because she believed that since she gave a statement
against Garcia, he might harm her and her family. Hoffmann
further stated that Yahnke showed up at her place of work the
next day and questioned her more about her statement.
   In fact, Hoffmann never signed any affidavit retracting or
recanting her statement about Garcia’s admission, and at trial,
she testified consistently with her initial statement. Hoffmann
testified that she worked as a dancer at a club from about June
2012 to July 2013 and that in about November 2012, Garcia
told her that he had killed “an old lady and a boy.” Hoffmann
testified that she thought Garcia was joking at the time he told
her this and that she last saw Garcia at the club in February or
March 2013.
   Officers from OPD arrived at the club to speak to its employ-
ees in mid-July 2013. At that time, Hoffmann was aware that
Garcia had been arrested. Hoffmann testified that she spoke to
Davis and told him the story that Garcia had told her.
   Hoffmann said she next spoke to Davis when her name was
mentioned in court during pretrial proceedings. After her name
was public, she and her family were subjected to media atten-
tion. Hoffmann specifically testified that “his lawyer was actu-
ally, like, Tweeting things about me.”
   Defense counsel objected to Hoffmann’s testimony that
“his lawyer” was “Tweeting” about her. At a sidebar and
subsequent discussion in chambers, counsel argued over
the extent to which Hoffmann could be questioned about
whether she felt harassed or intimidated by Motta and Yahnke.
Counsel for Garcia also sought to offer the recording of the
conversation between Hoffmann and Yahnke and asked for
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additional time to prepare for cross-examination, expressing
surprise that Hoffmann had “re-change[d] her story back after
the recantation.”
   The district court allowed additional time for Garcia to pre-
pare for cross-examination, but declined to admit the recording,
noting that Garcia could still impeach Hoffmann with state-
ments made during that interview. At the conclusion of this
discussion in chambers, Garcia made an oral motion in limine
before the jury with the intent of limiting the State’s abil-
ity to impeach Hoffmann given her recantation. That motion
was denied.
   The State then concluded its direct examination, at one point
asking Hoffmann if she had told Davis everything that she had
testified to in court. Though counsel for Garcia had expressed
concern during the discussion in chambers that the State was
attempting to bolster Hoffmann’s credibility before she had
been cross-examined, there was no objection to this question
by Garcia.
   After a break, Hoffmann’s cross-examination began.
Hoffmann was asked about her recollection of Garcia’s state-
ment and her drug use and was questioned about her interview
with Yahnke. Garcia sought to refresh Hoffmann’s recollec-
tion by having her listen, over headphones, to a portion of
her interview with Yahnke. It was at this point that it was
determined a partial transcript of that interview existed. There
was some confusion about whether there was more than one
version of a transcript available, with the State’s noting, appar-
ently within the hearing of the jury, that it had received a
copy of a transcript of that interview from “their lawyer.”
Eventually, that transcript was provided to Hoffmann so that
she might refresh her recollection of the conversation and
cross-examination continued.
   The State was then allowed redirect. Hoffmann testified
that she felt harassed and intimidated by Yahnke. During
redirect, Garcia sought a sidebar and again sought to offer
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the recording. The court again refused to admit the record-
ing, but held that any statements made by Motta were also
inadmissible:
     We’re talking about [Hoffmann’s] recollection of the con-
     versation with . . . Garcia. It’s in. That’s already been in.
     We’re talking about whether somebody else interviewed
     her and tried to get her to change her statement. That’s
     in. And she clearly is testifying, [h]e did try to get me to
     change that statement and I’m not changing it.
        ....
        And [Motta’s actions took place] after [Yahnke’s inter-
     view], so nothing changed.
   On recross-examination, Garcia’s counsel again questioned
Hoffmann about whether she was really “terrified” by Yahnke.
In response, Hoffmann mentioned the phone call with Yahnke
and “your wife,” referring to Motta. Counsel for Garcia
objected. The objection was sustained over the State’s argu-
ment that counsel had opened the door to the question. The
State then asked, on further direct:
        Q. Did anybody else talk to you where you said, No
     that’s not what I said; I know what I heard, when you
     were talking about what Garcia told you?
        A. Yes.
        Q. Who was that?
        A. It was his wife.
        [Defense counsel:] Objection. She [the State] went into
     the spoliation issue.
        [State:] No, I didn’t.
        [Defense counsel:] Oh, you most certainly did.
        THE COURT: Yeah, the objection is sustained. The
     jury will disregard it.
                    (d) District Court Error
                          (i) Mistrial
   We turn first to Garcia’s assertion on appeal that the dis-
trict court erred in not granting a mistrial based upon the
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State’s reference to Hoffmann’s phone call with Motta. Garcia
focuses on three exchanges: first, a sidebar where the court
ruled that the State could not inquire about the phone call
between Hoffmann, Motta, and Yahnke; second, questioning
of Hoffmann on further direct in which Hoffmann alluded
to the phone call with Motta; and third, the reference to
the transcript of the recorded portion of the Yahnke inter-
view that was obtained from “their lawyer” and used during
Hoffmann’s testimony.
   Specifically, Garcia notes the State was told that testimony
about the phone call was inadmissible, but that it still ques-
tioned Hoffmann regarding the phone call and that this was
compounded by the fact that the State had referenced “their
attorney” in the presence of the jury, effectively letting the jury
know that defense counsel had found it necessary to retain their
own legal counsel. Garcia relies on State v. Beeder. 44
   In Beeder, the State indicated in closing arguments that the
defendant’s counsel had said, with reference to the third degree
assault charge that the defendant stood accused of, that no
defense would be put on, and then insinuated that the defend­
ant had admitted to that charge. Following an objection, the
jury was admonished to disregard the statement. Immediately
thereafter, the State repeated essentially the same point—that
the defendant offered no defense on that charge. Another
objection and admonishment followed, and a motion for mis-
trial was denied. We reversed.
   We find Beeder distinguishable on its facts. In Beeder, the
statement went to the very essence of the charges against the
defendant and suggested that he did not contest those charges.
That is very different from here, where we have one com-
ment by Hoffmann, which was not directly responsive to the
question asked by the State. The comment was immediately
44
     State v. Beeder, 

, 

 (2006), disapproved on
     other grounds, State v. McCulloch, 

, 

 (2007).
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objected to and an admonishment was immediately given.
The jury was later instructed that it should not rely on any
evidence that the court had ordered stricken.
   Given the discretion granted to the district court, and that
court’s perspective of the issues in a case, we find no error in
the district court’s denial of Garcia’s motion for mistrial.

              (ii) Refusal to Admit Audio of Yahnke
                     Interview With Hoffmann
   We turn to the court’s refusal to admit the audio of the
Yahnke interview with Hoffmann. Garcia sought to have the
audio recording of the interview with Hoffmann entered into
evidence to impeach Hoffmann’s testimony that she was ter-
rified by Yahnke and that he misled her about his employer.
Garcia argues that Hoffmann’s testimony was crucial to his
convictions with respect to the 2008 murders and that “dis-
proving her purported terror would significantly undermine
her credibility by calling into question her motive to fabricate
these points.” 45
   Because the audio recording is not in the appellate record,
we conclude that Garcia has waived any argument that the
court erred in not admitting the audio recording. Consequently,
we find this assignment of error without merit.

              (iii) Inquiring Into Conflict of Interest
   Finally, Garcia assigns that the trial court erred in not
inquiring into whether his counsel had an actual conflict of
interest when continuing as defense counsel after the allega-
tions of witness tampering were leveled against Motta and
Yahnke. Garcia argues that his counsel had an actual conflict
of interest insofar as counsel was in the position of represent-
ing Garcia while also maintaining an ongoing personal and
professional relationship with Motta. Garcia further contended
that the trial court had a duty to inquire into this conflict
of interest.
45
     Brief for appellant at 200.
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   The Sixth Amendment guarantees the right to representa-
tion that is free from conflicts of interest. 46 To protect this
right, a trial court must hold a hearing and inquire into a
defense counsel’s potential conflict of interest when the court
knows or reasonably should know that a particular conflict
exists, even in the absence of an objection. 47 And if a trial
court had a duty to inquire because a potential conflict was
apparent, an appellate court has discretion to consider the
issue and remand a cause for a hearing into the matter. This
is true even if the defendant did not raise the issue. 48 Also, a
defendant can raise his or her attorney’s conflict of interest
for the first time on appeal if the defendant shows that an
actual conflict existed and that it adversely affected the attor-
ney’s performance. 49
   At the time of the allegations, the State filed a motion for
discovery and/or motion in limine seeking discovery of any
information or recorded contact between Hoffmann, Motta,
and Yahnke. A hearing was held on that motion. At that time,
the State withdrew its motion. Though counsel for Motta
appeared at that hearing, the hearing on the matter was brief,
with the State’s seeking either dismissal or withdrawal of the
request. Other than seeking the sealing of the motion, which
the State took no position on, there was virtually no discussion
of the motion.
   As noted above, a trial court has a duty to inquire when it
knows or reasonably should know that a particular conflict
exists. But our review of the record demonstrates that there
was nothing in the motion or in the later withdrawal of the
motion that would have put the court on notice that further
inquiry was needed after the State withdrew its motion. As
46
   State v. Bain, 

, 

 (2016). See, also, State v.
   Aldaco, 

, 

 (2006).
47
   State v. 

.
48
   

49
   

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such, we find no error in the court’s failure to conduct any
further inquiry.
              (e) Ineffective Assistance of Counsel
                (i) Witness Tampering Allegations
   We turn to Garcia’s allegation that his counsel was ineffec-
tive in engaging in behavior akin to witness tampering during
interactions with Hoffmann. Garcia argues that it was deficient
conduct for counsel to have their investigator meet with a wit-
ness with the goal of securing the witness’ recantation of an
earlier statement without maintaining a recording of the inter-
view and, moreover, to encourage the witness to recant even
after the witness indicated that the earlier statement was not
a lie.
   We do not know the full extent of the conversations between
Hoffmann, Motta, and Yahnke because, as noted by Garcia, we
have only a written transcript of a partial audio recording, and
we lack testimony from Motta and Yahnke on the topic. Nor
does the record include testimony from Hoffmann about the
details of those conversations as they were subject to a motion
in limine. As such, we conclude that we lack a sufficient record
to determine this allegation on direct appeal.
           (ii) Preparation for Hoffmann’s Testimony
   Garcia next assigns that counsel was ineffective in failing
to adequately prepare for Hoffmann’s testimony. Specifically,
Garcia alleges that counsel was ineffective in seeking a motion
in limine, or in renewing his existing motions, to exclude tes-
timony relating to allegations of witness tampering by Motta
and the whole of the interview with Yahnke and that counsel
failed to adequately prepare for and anticipate the substance of
Hoffmann’s testimony.
   The record shows that one pretrial motion in limine regard-
ing Hoffmann was filed, seeking to exclude her testimony
altogether on the basis of a “lack of foundation” due to
Hoffmann’s drug use and because of her “recant[ation] in a
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recorded statement” made to Yahnke. That motion in limine
was denied on the grounds that Hoffmann’s purported recanta-
tion and drug and alcohol use went to the weight of that tes-
timony. Thus, a motion in limine was sought and counsel was
accordingly not deficient in that respect.
   We also find no deficient conduct in counsel’s failure to
renew the motion in limine. We agree that both Hoffmann’s
possible recantation and her intoxication are relevant to the
credibility of the statement and that her statement can be
impeached on those grounds. But as we have held, such issues
go to the weight of the evidence offered and not to the admis-
sibility of that evidence. 50 Because the court did not err in its
ruling on the motion in limine, counsel’s failure to renew that
motion or otherwise object was not deficient and counsel was
not ineffective.
   In addition to the written motion in limine, an oral motion
in limine was sought and granted during trial with regard to
the phone call between Hoffmann, Motta, and Yahnke regard-
ing Hoffmann’s possible recantation. Though Garcia argues on
appeal that his counsel argued an incorrect basis for this motion
in limine, the record shows that the court ultimately concluded
the State was not permitted to elicit evidence regarding the
phone call in question. And, as we discussed in more detail
above, Hoffmann’s response was not directly responsive to
the question asked, but once given, counsel’s objection to that
answer was sustained and the jury was told to disregard the
answer. Thus, counsel’s conduct was not deficient and counsel
was not ineffective.
   Finally, Garcia contends that his counsel was ineffective
in failing to adequately prepare for Hoffmann’s testimony.
Specifically, Garcia argues that counsel should have been
aware that Hoffmann was planning to testify as to her original
statement and had not recanted that statement. In addition,
counsel should have been prepared to play excerpts from the
50
     See, e.g., State v. Blackman, 

, 

 (1998).
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audio recording in order to impeach Hoffmann’s testimony or
have Motta testify to prove what Hoffmann disputed during
her testimony.
   We find no merit to the allegation that counsel was inef-
fective for failing to call Motta. Hoffmann was not permit-
ted to testify about her interactions with Motta, only about
those with Yahnke. Thus, Motta’s testimony would have been
inadmissible to rebut Hoffmann’s. As such, we find no defi-
cient conduct insofar as not calling or otherwise utilizing
Motta’s testimony.
   We otherwise observe that we lack the record to determine
these allegations on direct appeal. As we have noted above
with respect to the district court’s actions, the record does
not include the audio recording of Yahnke’s interview with
Hoffmann, and thus, we lack the record to determine whether
that evidence was admissible or whether counsel could have
more effectively used it on cross-examination or otherwise
been more prepared for Hoffmann’s testimony.
            (iii) Counsel’s Failure to Object During
                 State’s Questioning of Hoffmann
   Garcia assigns that counsel was ineffective in failing to
object to the State’s examination of Hoffmann wherein a ques-
tion was asked again after an objection was sustained, where
the State prematurely rehabilitated Hoffmann’s testimony, and
where the State had Hoffmann testify to a prior consistent
statement previous to Garcia’s having impugned her motive
to fabricate.
   We turn first to the assertion that counsel was ineffective
in failing to object when the State had Hoffmann testify to
a prior consistent statement on direct examination and, relat-
edly, when the State prematurely rehabilitated Hoffmann’s
testimony. As relevant, the record shows that Hoffmann was
asked, on two occasions near the conclusion of her direct
examination, whether she had told officers the same thing that
she had just testified to, and she answered affirmatively. In
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addition, Hoffmann was asked whether the events that she had
testified to occurred, and she answered that they had.
   Trial counsel did not object at the time of any of these state-
ments, though it did note during a sidebar that the State had
been trying to rehabilitate Hoffmann’s testimony prior to cross-
examination, which was at a time prior to Garcia’s having the
opportunity to insinuate a motive or to fabricate an improper
influence. Now on appeal, Garcia suggests that Hoffmann’s
two statements, as noted here, were hearsay and that the third
was improper bolstering.
   We find no deficient conduct insofar as counsel failed to
object on hearsay grounds—having examined the statements,
we do not find them to be hearsay statements. But we agree
that all three statements amounted to the improper bolstering
of Hoffmann on direct examination, which is not permitted
by 

(1)(b) (Reissue 2016). Section
27-608(1)(b) provides that “evidence of truthful character is
admissible only after the character of the witness for truthful-
ness has been attacked by opinion or reputation evidence or
otherwise.” As such, we find that trial counsel was arguably
deficient in failing to object on those grounds.
   We turn to whether Garcia was prejudiced by counsel’s fail-
ure to object. We conclude that he was not. As we have noted,
to show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. 51 A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. 52 We cannot conclude that these
three questions, asked in relatively quick succession, of just
one witness, in a monthlong trial, was prejudicial.
   Finally, we turn to whether counsel was ineffective in
failing to object to the State’s attempt, during Hoffmann’s
51
     State v. 

.
52
     

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direct examination, to “loop[] the substance of the objected-
to-hearsay into her follow-up question.” 53 On direct, Hoffmann
was asked a series of questions about her interview with
Yahnke. This line of questioning was objected to on the basis
of hearsay on more than one occasion, with Garcia’s arguing
essentially that the questions would lead to hearsay answers,
even if the questions did not necessarily call for such an
answer. The court overruled those objections.
   Hoffmann continued to testify generally about her interac-
tion with Yahnke, and then made the following statement: “But
he kind of—he kind of gave me an out a little bit. He kind of
said, [y]ou know, well, you—you could —.” Garcia objected,
and the court sustained the objection. The State then asked
Hoffmann: “So . . . he kind of gave you an out. And did you
go with that out[?]” Hoffmann replied that she did, noting that
she was uncomfortable with Yahnke in her home.
   Garcia now assigns that counsel erred in not objecting to the
State’s question about Hoffmann’s taking Yahnke’s “out” as
hearsay and “loop[ing]” the prior answer, to which an objection
had been sustained, into its followup question. 54
   We disagree that the statements complained of on appeal
were hearsay and find no deficient conduct in failing to object.
We understand the court to have been sustaining the objection
to that portion of Hoffmann’s answer that attempted to tell the
jury what Yahnke had said—such an answer would have been
hearsay and inadmissible. 55 But the part of the answer that
was “looped” into the next question did not include hearsay or
require a hearsay answer, but instead only asked Hoffmann to
answer what she did in response to Yahnke’s visit. 56 We find no
ineffective assistance as to this allegation.
53
   Brief for appellant at 216.
54
   

55
   See 

 and 27-802 (Reissue 2016).
56
   Brief for appellant at 216.
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           (iv) Failure to Call Hoffmann’s Coworkers
   Garcia contends that his counsel was ineffective for failing
to call other dancers who would have testified that OPD used
leading interview techniques “to Try to Persuade Them to Say
That Garcia Confessed to Killing ‘an Old Lady and a Little
Kid.’” Garcia argues that the reason counsel sent Yahnke to
interview Hoffmann was a report from other dancers that OPD
was using leading interview techniques.
   We first note that Hoffmann was asked on the stand about
the interview techniques used by OPD during her interview,
including whether OPD had suggested to those dancers that
Garcia might have made such a statement to one or more of the
dancers. Hoffmann denied that OPD used those tactics. Still,
we understand Garcia to argue that the testimony of these other
dancers regarding their interactions with OPD would under-
mine Hoffmann’s credibility. And we cannot make this deter-
mination on the record on appeal; as such, we cannot decide
this assignment of error on direct appeal.
                  (v) Offer of Proof of Yahnke
                    Interview With Hoffmann
   We turn to Garcia’s assertion that trial counsel was inef-
fective in failing to make an offer of proof of the recorded
Yahnke interview with Hoffmann. He also asserts that coun-
sel was ineffective in failing to reoffer that interview during
Hoffmann’s testimony. We have previously addressed this con-
tention in connection with other assignments of error and reach
the same conclusion here—we lack a record to determine on
direct appeal whether counsel was ineffective with respect to
their failure to make an offer of proof or to reoffer the record-
ing. As such, we cannot reach this assignment of error on
direct appeal.
                   (vi) Remaining Allegations
   Garcia assigns various allegations regarding the ineffec-
tiveness of trial counsel due to a conflict of interest based on
the witness tampering allegations. In particular, Garcia alleges
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that his counsel was ineffective in failing to sequester or call
both Motta and Yahnke as witnesses to rebut Hoffmann’s
testimony about her interactions with both of those individu-
als, in failing to object to the State’s imputing consciousness
of guilt from trial counsel to Garcia, in failing to withdraw
as counsel once the witness tampering allegations arose,
in failing to consult with Garcia about the implications of
the witness tampering allegations, and in failing to pursue
plea negotiations where Garcia could testify against Motta
and Yahnke regarding the witness tampering allegations in
exchange for leniency.
   We conclude that we lack a record to determine whether
Motta and Yahnke engaged in witness tampering and a record
to determine whether there was any conflict of interest on the
part of remaining counsel, or what effect that conflict might
have had on Garcia’s defense. For this reason, we do not con-
sider the preceding assignments of error further.
            (vii) Counsel’s Pursuit of News Coverage
   Finally, we turn to Garcia’s allegations that trial counsel was
ineffective in pursuing news coverage, including a national
news television show, in an attempt to prioritize their own
interests and doing so without obtaining Garcia’s consent. But
we have no record to determine the scope of this news cover-
age, nor do we know for what purposes it was pursued or what
consent or other notice might have been given to Garcia. As
such, we cannot determine these final assignments of error on
direct appeal.
                         (f) Conclusion
   We find no error with respect to actions by the district
court. We also find no merit to Garcia’s allegations that
counsel was deficient in their handling of Garcia’s motions
in limine as relevant to Hoffmann’s testimony, in failing to
call Motta to testify, and in failing to object to Hoffmann’s
testimony as set forth above. We conclude that Garcia has
sufficiently alleged, but we lack the record to determine, the
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remainder of his ineffective assistance of counsel allegations
regarding Hoffmann’s testimony and the associated allegations
of witness tampering.
                   3. Interlocutory Appeals
                     (a) Assignments of Error
   On appeal, Garcia takes issue with two separate interlocu-
tory appeals filed during the course of these proceedings. The
first was filed by defense counsel in response to the failure of
the district court to renew the pro hac vice status of Motta,
who served as one of defense counsel prior to trial. As to
this appeal, Garcia assigns, restated, that his trial counsel was
ineffective (1) in pursuing interlocutory appeals on Garcia’s
behalf following Motta’s loss of her pro hac vice status; (2) in
pursuing an interlocutory appeal on Motta’s behalf following
her loss of pro hac vice status; (3) in supplanting their own
judgment for Garcia’s, in pursuing these appeals; (4) in not
withdrawing as counsel after Garcia stopped talking to them
as a result of the interlocutory appeals filed regarding Motta’s
pro hac vice status; and (5) in failing to consult with Garcia
prior to pursuing the interlocutory appeal and in considering
the wishes of Garcia’s family over Garcia. In addition, Garcia
assigns that the district court erred (6) by not inquiring about
actual conflicts of interest when counsel continued to represent
him after the pro hac vice appeals were filed.
   The second appeal was filed by defense counsel after trial,
but before the mitigation hearing, in response to the appoint-
ment of the Commission to serve as additional counsel. As to
that appeal, Garcia assigns, again restated, that counsel erred
(7) in pursuing an interlocutory appeal with respect to the dis-
trict court’s appointment of the Commission in order to prevent
ineffective assistance of trial counsel on appeal, (8) in pursu-
ing an interlocutory appeal in order to remain on the case to
maintain leverage for payment of outstanding trial expenses,
and (9) in pursuing an appeal to use it as a vehicle to continue
to challenge the censure of Motta.
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               (b) Appeal of Pro Hac Vice Denial
                    (i) Additional Background
   There were two appeals filed with this court on this issue:
one filed by Garcia on April 21, 2016, in case No. A-16-409,
relating to the withdrawal of prior local counsel and also
regarding Motta’s pro hac vice status, and a second filed on
April 25, in case No. S-16-418, by Motta regarding her pro
hac vice status. On April 29, Garcia wrote a letter to the dis-
trict court that indicated he did not wish for Motta to be his
attorney. That letter was forwarded to this court. Following
the issuance of an order to show cause, we treated the letter
as a motion to dismiss. As such, we dismissed both appeals on
May 18.
           (ii) Pro Hac Vice and Related Allegations
   We turn first to Garcia’s allegations surrounding the appeals
of the revocation of Motta’s pro hac vice status. At the same
time, we consider the related assignment that counsel was
ineffective in supplanting their own judgment for Garcia’s,
considering the wishes of Garcia’s family over Garcia’s
wishes, failing to consult with Garcia prior to pursuing the
interlocutory appeal on Motta’s pro hac vice status, and failing
to withdraw as counsel when Garcia stopped communicating
with them.
   Having considered these allegations and the appellate
record, we conclude that we cannot determine their merit
on direct appeal. Our record does not include any evidence
that would allow us to determine when or if Garcia indicated
opposition to the filing of these appeals prior to the filing
of the appeals or before the letter he wrote to the court on
April 29, 2016. Nor do we have specific information about
when, in relation to the filing of the appeals, counsel might
have been informed of Garcia’s wishes. The only evidence in
the record besides Garcia’s letter to the court was found not
in the record of this case, but instead in a related case, and
in questioning of Garcia where he indicated that he did not
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want to appeal the denial of pro hac vice status, but instead
wanted to move forward with his trial. In addition, the record
is devoid of evidence concerning interactions between coun-
sel and Garcia or Garcia’s family. Because we lack a record
to do so, we decline to reach these assignments of error on
direct appeal.
               (c) District Court’s Duty to Inquire
   We turn to Garcia’s assignment of error regarding the district
court. He argues that the district court had a duty to inquire
into whether trial counsel had an actual conflict of interest fol-
lowing the dismissal of the various appeals relating to Motta’s
pro hac vice status.
   As noted above in our discussion of whether the court
breached its duty to inquire after witness tampering allegations
were made against Motta, a trial court has a duty to inquire
when it knows or reasonably should know that a particular
conflict exists.
   We find that as to this allegation, the district court complied
with its duty to inquire. The letter sent by Garcia that this court
treated as a motion to dismiss clearly stated that he wished for
all of his defense counsel to remain, except for Motta. When
the various pro hac vice appeals were dismissed and proceed-
ings recommenced in the district court, the court inquired of
Garcia. At that time, Garcia suggested that he did not care
who represented him and reiterated that he simply wanted to
proceed to trial. Also at that time, the district court allowed
argument into whether Garcia’s capacity to choose counsel
was diminished. After that argument, and accompanied by its
own inquiry of Garcia, the district court concluded that any
“diminished capacity” was a tactic and that he did not find
competency to currently be at issue.
   For these reasons, we conclude that the court complied with
its duty to inquire and we find no error in the district court’s
failure to conduct further inquiry into possible conflicts of
interest. There is no merit to this assignment of error.
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           (d) Appeal of Appointment of Commission
   We now turn to Garcia’s allegations that counsel was inef-
fective in appealing from the appointment of the Commission
as cocounsel prior to the mitigating circumstances hearing.
Specifically, he argues that trial counsel did so to avoid having
to raise ineffective assistance of trial counsel claims on direct
appeal in an effort to maintain leverage for the payment of
certain expenses of the appeal and in order to continue to chal-
lenge Motta’s censure.
   While Garcia points to some facts in the record that seem
to support his assertions regarding the motivation to appeal the
Commission’s appointment, those assertions are nevertheless
speculative. Moreover, we fail to see how on these facts Garcia
was prejudiced by this appeal. As such, we find that this allega-
tion is without merit.
                         (e) Conclusion
   We conclude that we lack a record to determine any of these
allegations related to the first set of interlocutory appeals on
the pro hac vice matters, which were sufficiently pled. But
we find that Garcia cannot show that he was prejudiced by
the filing of the appeal from the Commission’s appointment,
and as such, there is no merit to that allegation of ineffective
assistance of counsel. Finally we find that the district court
complied with its duty to inquire into whether defense counsel
had an actual conflict of interest.
                     4. Motions to Sever
                   (a) Assignments of Error
   Garcia next argues several assignments of error relat-
ing to the joinder of the 2008 and 2013 homicide charges.
Garcia assigns that the district court erred in finding that (1)
these homicides were properly joined under 

 (Reissue 2016) and (2) a hearing under 

 (Reissue 2016) was unnecessary because the
charges had been joined.
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   Garcia further assigns, restated, that his trial counsel was
ineffective (3) by failing to offer adequate evidence to support
the prejudice prong of their motion to sever, (4) by failing to
request a jury instruction that the jury was to keep the charges
separate and come to a separate decision regarding each charge,
(5) by failing to request a jury instruction that the jury was not
to consider Garcia’s purported admission to the 2008 charges
when considering the 2013 charges, (6) by offering expert
testimony regarding joinder when the issue is best determined
by a fact finder, (7) by stipulating to the foundation and report
of the State’s expert on joinder, (8) by failing to vet the expert
retained to offer his opinion regarding the motion to sever, (9)
by introducing evidence regarding aggravating factors through
the use of an expert on joinder, and (10) by wasting money on
unqualified or unnecessary experts.
                  (b) Standard of Review and
                      Propositions of Law
   [19] There is no constitutional right to a separate trial. 57
Instead, the joinder or separation of charges for trial is gov-
erned by § 29-2002, which states, in relevant part:
        (1) Two or more offenses may be charged in the same
     indictment, information, or complaint in a separate count
     for each offense if the offenses charged, whether felonies
     or misdemeanors, or both, are of the same or similar
     character or are based on the same act or transaction or
     on two or more acts or transactions connected together or
     constituting parts of a common scheme or plan.
        (2) The court may order two or more indictments,
     informations, or complaints, or any combination thereof,
     to be tried together if the offenses could have been
     joined in a single indictment, information, or complaint
     or if the defendants, if there is more than one, are alleged
     to have participated in the same act or transaction or in
57
     State v. Benson, 

, 

 (2020).
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      the same series of acts or transactions constituting an
      offense or offenses. The procedure shall be the same as
      if the prosecution were under such single indictment,
      information, or complaint.
         (3) If it appears that a defendant or the state would
      be prejudiced by a joinder of offenses in an indictment,
      information, or complaint or by such joinder of offenses
      in separate indictments, informations, or complaints for
      trial together, the court may order an election for separate
      trials of counts, indictments, informations, or complaints,
      grant a severance of defendants, or provide whatever
      other relief justice requires.
   [20-23] Whether offenses were properly joined involves a
two-stage analysis: (1) whether the offenses were sufficiently
related so as to be joinable and (2) whether the joinder was
prejudicial to the defendant. 58 There is a strong presumption
against severing properly joined counts. 59 While § 29-2002
presents two separate questions, there is no error under either
subsection (1) or subsection (3) if joinder was not prejudi-
cial, and a denial of a motion to sever will be reversed only
if clear prejudice and an abuse of discretion are shown. 60 An
appellate court will find such an abuse only where the denial
caused the defendant substantial prejudice amounting to a
miscarriage of justice. 61
   [24,25] A defendant opposing joinder of charges has the
burden of proving prejudice. 62 To carry that burden, a defend­
ant must show compelling, specific, and actual prejudice from
the court’s refusal to grant the motion to sever. 63 Severe preju-
58
   Id.
59
   Id.
60
   Id.
61
   State v. Briggs, 

, 

 (2019).
62
   

63
   

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dice occurs when a defendant is deprived of an appreciable
chance for an acquittal, a chance that the defend­ant would
have had in a severed trial. 64
   [26,27] Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial
of another charge. 65 Additionally, joined charges do not usually
result in prejudice if the evidence is sufficiently simple and
distinct for the jury to easily separate evidence of the charges
during deliberations. 66
                   (c) Additional Background
   Garcia was charged by one information with a total of four
counts of murder and one count of attempted burglary. Garcia
filed a motion to sever, seeking three different trials—one for
the Hunter/Sherman murders, one for the Brumback murders,
and a third for the attempted burglary at the Bewtra home.
The State and Garcia each presented evidence in the form of
expert testimony regarding whether the cases were sufficiently
linked to meet the standard for joinder. Following that hear-
ing, the district court denied Garcia’s motion to sever. In so
ruling, the court noted that the experts’ testimony offered an
aid in making its findings, but that the question of joinder and
severance was one of fact, and as such, it would have made
the same decision without the experts’ testimony.
                    (d) District Court Error
                  (i) Sufficiently Related for
                      Purposes of Joinder
  We turn first to whether the crimes for which Garcia was
charged were sufficiently related for purposes of joinder.
We agree they were. As the district court noted, the victims
were each connected to Creighton’s pathology department,
64
   

65
   State v. 

.
66
   

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from which Garcia’s employment had been terminated. And
that termination had been central to Garcia’s life experi-
ences at various points, including just prior to the 2008 and
2013 murders.
   The record further shows that the assailant in each charge
gained access to the Hunter and Brumback homes, as well as
attempted to gain access to the Bewtra home, without force.
Nothing of value was taken from any crime scene. All four of
the murder victims suffered similar knife wounds to the neck,
causing similar injuries—though Roger Brumback’s cause of
death was a gunshot wound.
   We reject Garcia’s contention that only the State’s theory
ties these crimes together. As demonstrated by the common­
alities noted above, this is not an accurate statement of the
events of this case, and even if it were, we have previously
considered the State’s theory of prosecution as relevant to the
question of joinder. 67 As such, we conclude that these cases
were sufficiently related.
   We note that Garcia does not challenge on appeal that he did
not meet his burden to show that he would have been preju-
diced by the joinder of these charges. For those reasons, we
find no error in the district court’s denial of Garcia’s motion
to sever.

                 (ii) Hearing Under § 27-404(3)
   In his second assignment of error, Garcia assigns that
the district court erred in concluding that a hearing under
§ 27-404(3) was not necessary in order to determine whether
the evidence from each crime scene would have been admis-
sible in a separate trial of another charge. Garcia argues that
“nothing in the joinder statutes alleviates the Court’s respon-
sibility to find by clear and convincing evidence that [Garcia]
committed the other acts.” 68 Garcia cites us to no authority
67
     See State v. Golyar, 

, 

 (2018).
68
     Brief for appellant at 281.
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that affirmatively requires a hearing under § 27-404(3) under
these circumstances.
   But, as noted above, our case law provides that prejudice
from joinder cannot be shown if evidence of one charge
would have been admissible in a separate trial of another
charge. 69 This court has previously engaged in such analysis,
at an appellate level, of whether § 27-404 would operate to
prohibit the admission of evidence of one charge in a trial of
another charge. 70
   In conducting such an analysis now, we conclude that these
separate charges would be admissible at trials on the other
charges. As we noted, all four murders involved similar knife
wounds, and all three crime scenes showed that little to no
force was used to gain entry. Both of these factors are rel-
evant to show the identity of the perpetrator. The victims all
had a relationship to Creighton’s pathology department, which
relationship was relevant to show motive. And because these
crimes are all charged by the information filed against Garcia,
the State has a burden to show that all of those events occurred
beyond a reasonable doubt.
   There is no requirement for the court to hold a hearing
under § 27-404, and in any case, the evidence from each crime
scene would have been admissible in a separate trial of another
charge. We find no merit to these assignments of error.

              (e) Ineffective Assistance of Counsel
             (i) Failure to Offer Adequate Evidence
                      as to Prejudice Prong
   Garcia first assigns that his trial counsel was ineffective in
failing to offer adequate evidence to show that he was preju-
diced by the joinder of the three sets of charges. Garcia argues
that he was prejudiced in several ways, as detailed below,
69
     State v. 

.
70
     Cf. State v. Freeman, 

, 

 (1997).
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and that his trial counsel was deficient in not raising these
areas of prejudice before the trial court.
   In his brief on appeal, Garcia asserts that he was prejudiced
by joinder because (1) his purported admission to Hoffmann
regarding the 2008 charges would have been inadmissible in
a separate trial on the 2013 charges; (2) Motta’s and Yahnke’s
purported tampering with Hoffmann’s testimony “infected”
that portion of his trial dealing with the 2013 murders 71; (3)
his testimony concerning why he was in Omaha in May 2013
was necessary to provide context, but he would be harmed by
testifying in a trial on the 2008 charges; (4) the joinder of the
cases allowed the State to introduce 16 years of prejudicial
evidence without a hearing under § 27-404 or a finding that
the evidence was inextricably intertwined; (5) the trial court
failed to instruct the jury to disregard evidence inadmissible
in the other case; (6) the trial court failed to instruct the jury
that the evidence of each crime should be considered sepa-
rately; (7) the trial court failed to instruct the jury that certain
evidence was admitted for a limited purpose; and (8) had trial
counsel been allowed to introduce evidence regarding alter-
native suspects and motives, the case would have been far
more complicated.
   Garcia first argues that his purported admission to the 2008
murders would have been inadmissible in a separate trial deal-
ing with the 2013 murders, and he was therefore prejudiced by
the denial of his motion to sever. But we concluded above that
the evidence of the 2008 crimes would have been admissible in
a separate trial on the 2013 events, and thus, we find no merit
to this assertion.
   Garcia next argues that the allegations regarding witness
tampering as to the 2008 charges would infect that portion
of the trial on the 2013 homicides. We disagree. The timing
of these events does not factually allow such an “infection.”
Garcia filed the motion to sever charges, and after a hearing,
71
     Brief for appellant at 283.
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the motion was denied, all at a time prior to the alleged wit-
ness tampering. Counsel could not have been ineffective for
failing to raise that prejudice at the time of the motion to
sever because the events allegedly causing said prejudice
had not yet occurred. Additionally, though it is not raised by
appellate counsel, we note that trial counsel did not renew
Garcia’s motion to sever in light of the alleged tampering. We
find no merit to these assertions.
   We turn to Garcia’s assertion that he was prejudiced by the
court’s failure to sever the charges because he would have
testified regarding the events of 2013 that brought him to
Omaha, but would be harmed by testifying in a trial on the
2008 charges. He explains in his brief that he would have testi-
fied that
      in 2013 he was drinking heavily and was depressed.
      When he lived in Omaha, he had a casual acquaintance
      with whom he frequently shared adjacent bar stools at a
      particular bar in town. When he talked to this individual,
      it always made him feel better. At the time Garcia drove
      a lot for work and thus hopped in his car to drive to
      Omaha to seek counsel from his friend. However, when
      he arrived, he realized he could not find the bar, nor his
      friend, and decided to return home after getting food in
      the area where he thought the bar was located. He would
      also testify that he had searched for various addresses
      including those at issue because he was constantly sub-
      mitting job applications and seeking references. 72
   Based on our review of the content of Garcia’s explanation
for being in Omaha at the time of the Brumback murders,
we cannot find that defense counsel was deficient in failing
to offer this in support of their argument that Garcia was
prejudiced by the failure to sever the charges against him.
In addition to being dubious that this testimony would have
helped Garcia’s defense, his explanation does not preclude
72
     Id. at 285.
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his involvement in the 2013 murders, or otherwise entitle him
to an alibi defense. 73 We find no merit in this allegation.
   Garcia argues that he was prejudiced by the introduction of
“16 years of prejudicial evidence including numerous behav-
iors that occurred after each of the crimes without a 404 hear-
ing or an explicit finding [that] the evidence was inextricably
intertwined,” when the charges were not severed. 74 But, as we
note above, a § 27-404 hearing was not required, and in any
case, that analysis shows that the evidence of each crime would
have been admissible in separate trials on the other charges.
There is no merit to this assertion of prejudice.
   Garcia next argues that he was prejudiced by the failure of
counsel to seek jury instructions that the jury should keep the
charges separate, that the jury should not consider Garcia’s
admission to the 2008 charges when considering the 2013
charges, and that the jury should be told that certain evidence
was offered for only a limited purpose.
   In analyzing this, we note our current framework—namely,
what evidence should have been offered by counsel in an
attempt to show that Garcia would be prejudiced by joinder. A
jury instruction, when properly given, can limit prejudice. But
the giving of a jury instruction is not evidence that a defendant
can offer in an attempt to prove prejudice as a result of joinder.
As such, we do not address this further here, but observe that
Garcia separately assigns this failure as ineffective assistance
of counsel, as noted below.
   Garcia finally argues that he was prejudiced because if his
trial counsel had been allowed to introduce evidence regard-
ing alternative suspects and motives for each crime, each
case would have been far more complicated. We first note
that trial counsel was, in fact, permitted to offer some of this
evidence of other suspects. To the extent the court failed to
73
     See State v. El-Tabech, 

, 

 (1987).
74
     Brief for appellant at 283.
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admit certain evidence on other suspects, Garcia does not
adequately argue that failure on appeal, and we need not
address it here.
   The test for joinder is ultimately similarity and prejudice.
There is no prohibition to the joinder of cases simply because
they might be more complicated if heard together. We find no
merit to this allegation of prejudice.
                   (ii) Failure to Request Certain
                          Jury Instructions
   Garcia assigns that his trial counsel was ineffective in fail-
ing to seek certain jury instructions: specifically, one that
instructed the jury that it was to keep the charges against
Garcia separate, and a second one to instruct that the jury was
not to consider the 2008 purported admission of the Hunter/
Sherman murders when considering the 2013 charges.
   We find Garcia’s contentions here are without merit. We
have noted that these types of instructions may be considered
in a determination of whether prejudice has resulted from
joinder. 75 Still, while such an instruction simplifies the ques-
tion of prejudice, it is not required in order for a court to find
that a defendant was not prejudiced by the joinder of charges.
We accordingly find no merit to Garcia’s fourth and fifth
assignments of error.
           (iii) Offering Expert Testimony at Joinder
                 Hearing and Related Arguments
   Garcia makes a number of assignments alleging the ineffec-
tive assistance of counsel with regard to the expert testimony
offered at the hearing on the motion to sever. He assigns that
his counsel was ineffective in offering unnecessary expert tes-
timony, stipulating to the report by the State’s expert, failing
to vet his expert, introducing evidence regarding aggravat-
ing factors through use of the expert on joinder, and wasting
money on expert witnesses.
75
     See State v. Knutson, 

, 

 (2014).
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   As the facts above note, expert testimony was offered by
both the State and Garcia at the motion to sever, but the court
indicated that such was unnecessary as the issue preserved a
factual question which it, as the fact finder, was to make. The
district court further noted that the testimony offered aided it
in making its finding, but that it would have made the same
decision regardless. Garcia does not challenge the court’s
assurance that it did not rely on the offered expert testimony in
reaching its decision on the motion to sever. Thus, Garcia was
not prejudiced by the offer of the expert testimony, the stipula-
tion by his counsel to the State’s expert’s reports, or counsel’s
purported failure to vet the witness.
   Garcia next argues that the expert offered evidence that went
to the issue of aggravating factors and that counsel was ineffec-
tive for offering that evidence. But again, Garcia cannot show
that he was prejudiced by this, as aggravating factors are deter-
mined by the jury, and this expert testimony was not presented
to the jury.
   Finally, Garcia argues that his counsel was ineffective in
wasting money on expert witnesses, including the expert
retained to testify as to the motion to sever. We conclude that
even if counsel was deficient in spending funds on unneces-
sary witnesses, Garcia cannot show he was prejudiced by
such deficiency.
                         (f) Conclusion
   We find no merit to any of Garcia’s assertions as to error
by the district court or ineffective assistance of counsel as to
his motion to sever.
                 5. Change of Venue and
                    Jury Sequestration
                  (a) Assignments of Error
  We turn to Garcia’s arguments relating to various assign-
ments of error about the jury, as well as his motion for a
change of venue. As to the district court, Garcia alleges that
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it erred in (1) failing to take adequate steps to prevent outside
influence during the evidentiary portion of the trial.
   Garcia also assigns, restated, various allegations of district
court error and of ineffectiveness of trial counsel regarding
his motion for a change of venue and for jury sequestration.
Specifically, Garcia alleges that counsel was ineffective in (2)
submitting inadequate evidence in support of the motion to
change venue; (3) applying the wrong standard when selecting
evidence to support their motion to change venue; (4) failing
to investigate jurors’ media exposure and biases through back-
ground investigation, individual voir dire, and supplemental
jury questionnaires; (5) passing the jury for cause; (6) solicit-
ing news coverage regarding the case insofar as it undermined,
or even waived, Garcia’s change of venue argument; (7) fail-
ing to submit adequate evidence in support of their motion to
sequester the jury during trial; (8) failing to insist upon further
inquiry of potential juror misconduct reported upon by defense
counsel and by failing to seek a mistrial; and (9) entering the
jury room during the trial.

                      (b) Standard of Review
   [28,29] Whether a jury is to be kept together before sub-
mission of the cause in a criminal trial is left to the discretion
of the trial court. 76 To warrant reversal, denial of a motion
to sequester the jury before submission of the cause must be
shown to have prejudiced the defendant. 77
   [30] An appellate court reviews the denial of a motion to
change venue for abuse of discretion. 78

                  (c) District Court Error
  We turn to Garcia’s argument that the district court erred
in failing to take adequate steps to prevent the outside
76
   State v. Oliveira-Coutinho, 

, 

 (2015).
77
   

78
   State v. Dixon, 

, 

 (2011).
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influence of the jury during the evidentiary portion of the trial.
Specifically, Garcia argues that the district court should have
(1) admonished jurors that it was “their duty” to not listen to
coverage or discuss the case, (2) properly questioned jurors
about their exposure to outside information, and (3) confis-
cated jurors’ cell phones during trial proceedings.
   A review of the record shows that the jury was reminded
before every recess at trial not to read or consume any media
about the case or to discuss the case with anyone, including
any other jurors. As such, we find no merit to Garcia’s asser-
tion that the court failed to inform the jury of “their duty” to
not listen to coverage of or otherwise discuss the case.
   As to the instance noted by appellate counsel wherein a
member of the defense team entered the jury room and over-
heard what counsel believed may have been members of the
jury discussing the case, the court immediately located those
jurors and questioned them on the record, as well as all other
jurors that might have been in the proximity at the time and
found no juror misconduct. We are not aware of any other
instances where Garcia alleges there was juror misconduct, let
alone any misconduct that was not addressed by the court.
   Finally, Garcia argues that the court should have confis-
cated jurors’ cell phones for the duration of the trial, as he
had requested. This request was made as part of his motion to
sequester the jury for the duration of the trial, a request that
was denied because the court concluded that at the time of
the request, it was not impossible for Garcia to receive a fair
trial based on pretrial publicity, the publicity was not biased
against Garcia, and it was not possible to predict that future
publicity would be biased against him. In short, the court
acknowledged the publicity, but concluded that it was prema-
ture to conclude that Garcia could not receive a fair trial in
Douglas County or that the jury needed to be sequestered for
the duration of the trial.
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   We review both a motion for a change of venue 79 and one
for the sequestration of the jury 80 for an abuse of discretion and
find none. This assignment of error is without merit.
              (d) Ineffective Assistance of Counsel
                   (i) Venue and Sequestration
   We turn now to Garcia’s various allegations of ineffective
assistance of counsel. Garcia’s first set of allegations argues
that his counsel was ineffective in failing to produce adequate
evidence to support Garcia’s motion to change venue and his
motion to sequester the jury during trial, and that counsel did
not understand or argue the relevant standard to determine
whether venue should be changed. Relatedly, Garcia alleges
that counsel was ineffective in soliciting news coverage regard-
ing the case.
   The record shows that counsel did file motions to change
venue and sequester the jury, and thus, to this extent, coun-
sel was not deficient. And indeed, the crux of Garcia’s inef-
fective assistance of counsel allegations is not that counsel
failed to seek such venue changes and sequestration, but that
the evidence in support of such changes was both insufficient
and premature.
   Our review of the record shows that at the time of the
motions, the trial court was fully aware of the media attention
centered on this case. Thus, any failure of counsel to offer
more evidence in support of those motions, even if deficient,
was not prejudicial. The trial court’s decision rested more
on the prematurity of the motions, not on a lack of proof of
the allegations.
   In the same way, even if trial counsel was somehow defi-
cient for failing to argue to the proper standard regarding
venue and sequestration, as Garcia also assigns, that defi-
ciency would not be prejudicial. It is apparent from the record
79
     See 

80
     See State v. Gales, 

, 

 (2005).
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that the district court understood what it was being asked to
determine and did not apply a standard designed to trap Garcia
on these issues.
   Ultimately, we understand Garcia’s argument on appeal to
primarily be that counsel was ineffective for not raising these
motions at a more opportune time—such as closer to trial when
the level of publicity and its impact on the trial could better be
judged. Related to this issue is Garcia’s assignment of error
regarding the ineffectiveness of trial counsel in passing the jury
for cause.
   We briefly address the concept of passing the jury for
cause. We suggested in State v. McHenry 81 that a defendant
who challenged members of the venire on the basis that those
individuals had been exposed to pretrial publicity waived his
or her right to challenge those individuals on appeal when
the defendant had passed the jury for cause. But thereafter,
in Rees v. State, 82 we concluded that a party who unsuccess-
fully challenged a member of the venire and later passed the
jury for cause suggests only that the party is ready to exercise
its peremptory challenges without forfeiting the previously
made cause objection. Now on appeal, Garcia contends that he
assigns as ineffective his trial counsel’s action in passing the
jury for cause only insofar as he wishes to preserve his argu-
ment regarding change of venue. Accordingly, we consider this
alongside such related assignments of error.
   As to this limited issue, essentially whether trial counsel
was ineffective in failing to renew his motions for a change
of venue and sequestration, we lack the record on appeal to
determine it. We also lack a record to determine on direct
appeal Garcia’s final allegation—that counsel was ineffective
for soliciting news coverage of the case, thus contributing
to the publicity around the case—which may have preju-
diced him.
81
     State v. McHenry, 

, 

 (1995).
82
     Rees v. State, 

, 

 (1997).
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                            (ii) Voir Dire
    We turn next to Garcia’s allegations that counsel was inef-
fective in their handling of jury voir dire. Garcia alleges that
counsel should have conducted more investigation into poten-
tial jurors, including sending out individual jury question-
naires, as well as supplemental jury questionnaires, and also
should have conducted individual voir dire. Garcia also sug-
gests that not enough investigation was done into the jurors’
level of media exposure to the various aspects of this case.
    We first note that allegations Garcia makes in his brief lack
the particularity required and do not set forth precisely what
trial counsel should have done differently and how trial coun-
sel’s actions were deficient.
    [31] In addition, we have held that the law does not require
that a juror be totally ignorant of the facts and issues involved;
it is sufficient if the juror can lay aside his or her impressions
or opinions and render a verdict based upon the evidence pre-
sented in court. 83
    We observe that the record at voir dire shows that the jury
pool in this case was questioned, both in groups and individu-
ally, about the amount of media to which members had been
exposed regarding the charges against Garcia. The record
further shows that a sufficient number of the venire members
either had limited to no exposure to media regarding the case
or had indicated that they could put aside that prior exposure
and consider only the evidence adduced at trial.
    Thus, we conclude that these allegations either have not been
sufficiently alleged or are affirmatively refuted by the record.
                   (iii) Juror Misconduct
  We turn to Garcia’s allegations relating to juror misconduct.
According to trial counsel, a member of the defense team
overhead two jurors discussing a text message that one juror
83
     State v. Gonzalez, 

, 

 (2023); State v. Bradley,
     

, 

 (1990). See, also, Murphy v. Florida, 

, 

, 

 (1975).
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received from her boss. Apparently, in the text message, the
boss referenced media coverage wherein it was mentioned that
one member of the jury looked bored, and the boss had asked
this juror whether the media coverage was referring to her.
This alleged misconduct was discovered when a member of
Garcia’s defense counsel team entered the jury room to empty
a water glass in the sink located in that room and overheard
the juror who received the text message discussing it with
another juror. Counsel brought this conversation to the atten-
tion of the court, after which the jurors were identified and
questioned in the presence of the State and defense counsel.
After determining that no misconduct had occurred, the court
reiterated the media warnings to the jurors in question, as well
as to the jury at large. Counsel did not seek any additional
relief at that time.
   On appeal, Garcia now argues that trial counsel was ineffec-
tive in failing to insist that further inquiry into the above inci-
dent be made and was ineffective in failing to seek a mistrial
as well.
   We conclude that trial counsel’s actions were not deficient.
To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. 84 In determining whether trial counsel’s performance was
deficient, there is a strong presumption that counsel acted
reasonably. 85
   Our record contains a transcript of the court’s examina-
tion of these jurors. It shows that the concern raised by
Garcia at the time of the alleged juror misconduct was
that the jurors had read and were discussing media cover-
age of the case. Accordingly, the court questioned the jurors
about the overheard conversation and was satisfied with the
jurors’ responses that neither had been reading media coverage
84
     State v. 

.
85
     

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of the trial. Based on our review of the record, we conclude
that any counsel with ordinary training and skill would find
that the trial court’s examination of the jurors, in conjunc-
tion with the jurors’ actions, adequately demonstrated that no
misconduct had occurred. We find no merit to this assignment
of error.
                (iv) Counsel Entering Jury Room
   Garcia argues that his trial counsel was ineffective by enter-
ing the jury room during the trial. We disagree.
   We assume without deciding that trial counsel’s action in
entering the jury room when it was occupied by members of
the jury was deficient conduct. We certainly do not approve of
the practice. But in our review of the record, we cannot con-
clude that Garcia was prejudiced by trial counsel’s entry into
the room. A hearing was held on the alleged juror misconduct
that counsel witnessed while in the room, and thus, we have a
contemporaneous record of counsel’s actions. There is nothing
in that record to suggest that counsel spoke with or otherwise
interacted with the jurors in the room or that those jurors were
even aware of counsel’s presence in the room. There is no
merit to this assignment of error.
                         (e) Conclusion
   We cannot determine on direct appeal whether counsel was
ineffective in failing to renew Garcia’s motions to sequester
and for a change of venue, nor can we determine on this record
whether counsel was deficient in their investigation of the
jury and the voir dire process. Finally, we cannot determine
whether counsel solicited news coverage. We otherwise find
Garcia’s assertions as discussed above to be without merit.
                        6. Competency
                   (a) Assignments of Error
   Garcia’s competency was at issue at multiple points dur-
ing these proceedings. As to the district court, Garcia assigns,
restated, that the district court erred in (1) finding Garcia
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competent to stand trial when the court was aware that Garcia
had stopped communicating with defense counsel; (2) finding
Garcia competent, without holding a full hearing on the third
occasion of Garcia’s competency being questioned; (3) not
granting Garcia a new trial sua sponte when defense counsel
filed an appeal, contrary to Garcia’s wishes, regarding Motta’s
pro hac vice status; (4) refusing to reassess Garcia’s com-
petency when defense counsel filed an interlocutory appeal
against Garcia’s wishes and defended that appeal on the basis
of Garcia’s diminished capacity; (5) failing to directly inquire
of Garcia regarding his symptoms after the symptoms were
brought to the court’s attention; and (6) failing to order another
competency hearing after the presentation of mitigating evi-
dence at his sentencing hearing.
   In addition, Garcia assigns, restated, that trial counsel was
ineffective in (7) failing to raise the issue of Garcia’s compe-
tency at the time of his second competency hearing; (8) failing
to seek a third competency evaluation when Garcia stopped
communicating with counsel; (9) failing to object to the third
competency evaluation by Klaus Hartmann of the Lincoln
Regional Center (LRC), or seeking a continuance to review it;
(10) unintentionally waiving Garcia’s attorney-client privilege
by providing letters to their competency expert to rely upon in
forming his opinion; (11) failing to research the intersection of
attorney-client privilege and competency as relating to Garcia’s
letters to counsel; (12) the handling of Garcia’s “‘Diminished
Capacity’” because, in doing so, the defense lost credibility
with the trial court and caused the trial court to view Garcia’s
condition as a “‘Tactic’”; (13) insufficiently preparing for
Garcia’s competency hearings; and (14) failing to inform the
district court at the point in time when Garcia stopped com-
municating with counsel.

                 (b) Additional Background
  Garcia’s competency to stand trial was raised at several
points throughout his prosecution. Garcia was charged in
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August 2013. In February 2014, defense counsel reported
concerns about Garcia’s mental health and competency. The
district court ordered Garcia to be admitted to the LRC for a
competency evaluation. In May, following that evaluation and
a hearing, Garcia was found to be competent. That finding was
supported by the opinions of both Hartmann of the LRC and
by an expert retained by the defense.
   In August 2015, the issue of Garcia’s competency was
again raised after Garcia made allegations of sexual assault
by correctional officers at the Douglas County Correctional
Center. Those claims were investigated by the Douglas County
Department of Corrections and were found to be unsubstanti-
ated. Accompanying mental health evaluations were conducted
by the Douglas County Department of Corrections, and it was
suggested that Garcia may have been delusional. As such,
Garcia was returned to the LRC for further evaluation.
   In January 2016, a second hearing on Garcia’s competency
was held, at which Hartmann again testified that he did not
find Garcia was delusional, suggested that Garcia was malin-
gering, and ultimately found Garcia to be competent to stand
trial. An expert retained by Garcia also testified that Garcia
was competent to stand trial.
   A few months later, in April 2016, Motta’s pro hac vice
status was revoked. Two appeals were then filed challenging
that revocation, one by Motta and the other by Garcia, who
also challenged other related decisions of the district court.
Garcia wrote a letter to this court asserting that he did not
wish to pursue these appeals, and this court accordingly dis-
missed them in May 2016. Trial followed in September and
October 2016.
   In February 2017, following his convictions, Garcia did not
attend a hearing seeking payment from the county for certain
expert witness fees. It is not entirely clear from the record,
but it appears that Garcia did not attend the hearing, because
the court did not feel his presence was necessary, and that his
counsel was consulted and did not object.
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   However, before a hearing scheduled for March 7, 2017,
it appears defense counsel and the court both anticipated
that Garcia would refuse to attend. As such, the district court
ordered that Garcia be read a statement informing him of his
right to attend. A correctional officer testified that he had read
the statement to Garcia and that he believed Garcia understood
the statement.
   Defense counsel, however, informed the court that Garcia
currently refused to communicate with them and that he had
apparently refused to do so for several months. As such, coun-
sel was concerned about how a mitigation hearing would be
conducted if Garcia refused to participate with them. The par-
ties and the court discussed the possibility of a third compe-
tency evaluation, as well as forcibly requiring Garcia to come
before the court for questioning. The district court commented
that other evidence suggested Garcia was making a choice to
not communicate with his counsel.
   Another hearing was held March 13, 2017, and Garcia was
forcibly required to attend. Garcia did not respond to question-
ing from the court during that hearing. The State offered prison
communications written by Garcia to prison officials from
December 2016 to February 2017 and maintained there was
no suggestion that Garcia was incompetent or mentally unwell.
Ultimately, the court ordered a third competency evaluation
and Hartmann was ordered to update his prior competency
evaluations. Hartmann did so and found that in his opinion,
Garcia continued to be competent.
   Following a hearing on March 24, 2017, the court found
Garcia competent for sentencing.

                (c) Standard of Review and
                    Propositions of Law
  [32-36] The question of competency to stand trial is one
of fact to be determined by the district court. 86 A court’s
86
     State v. Surber, 

, 

 (2022).
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decision regarding competency will not be disturbed absent
insufficient evidence to support that finding. 87 A person is
competent to plead or stand trial if he or she has the capac-
ity to understand the nature and object of the proceedings
against him or her, to comprehend his or her own condition
in reference to such proceedings, and to make a rational
defense. 88 The competency standard includes both (1) whether
the defend­ant has a rational as well as factual understanding
of the proceedings against him or her and (2) whether the
defend­ant has sufficient present ability to consult with his or
her lawyer with a reasonable degree of rational understand-
ing. 89 There are no fixed or immutable signs of incompetence,
and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental condi-
tions, and suicidal tendencies. 90

                     (d) District Court Error
   On appeal, Garcia assigns seven errors regarding compe-
tency and related issues to the trial court.
   Garcia first argues that the trial court committed plain
error in finding him competent to stand trial when the court
was aware that he had stopped communicating with defense
counsel. But our review of the record suggests that the district
court was not informed that Garcia had stopped communicating
with his counsel until the March 7, 2017, hearing, which was
after the trial. As soon as the court was informed, it ordered
an updated competency evaluation. The district court did not
plainly err in finding Garcia competent at a specific point in
time where defense counsel failed to alert it to Garcia’s lack
of communication.
87
   See 

88
   

89
   

90
   

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   For the same basic reasons, we decline to find that the dis-
trict court erred in not sua sponte granting Garcia a new trial
at the time that defense counsel appealed from the revocation
of Motta’s pro hac vice status, as Garcia alleges in his third
assignment of error. This argument presupposes that the trial
court was aware not only that Garcia was no longer speaking
to defense counsel, but also that this lack of communication
began at the time the appeal regarding Motta’s pro hac vice sta-
tus was filed. But the court did not discover anything regarding
this lack of communication until the March 7, 2017, hearing,
well after that appeal was filed and dismissed and trial was
held, ending with Garcia’s convictions.
   Garcia also argues that the district court erred in determining
that he was competent without a full hearing on the third occa-
sion of determining his competency in March 2017. On this
occasion, Garcia’s counsel had, on March 7, brought the issue
of Garcia’s competency to the attention of the State and the
district court. The court accordingly requested that Hartmann
update his report regarding Garcia’s competency.
   Another hearing was held on March 24, 2017. The updated
report was sent to defense counsel, though likely just prior to
this hearing. Despite this, defense counsel indicated that the
report had been received, that they were aware of Hartmann’s
opinion regarding competency, and that this opinion would be
in line with Hartmann’s prior reports. Counsel did not object to
the admission of the report.
   At a hearing a few days later, counsel for Garcia sought the
opportunity to cross-examine Hartmann on the contents of this
report. The request was denied on the basis that Hartmann’s
report had not been objected to at the earlier hearing. We agree
with the district court that the failure to object to Hartmann’s
report at the March 24, 2017, hearing waived any objection to
that hearing and waived any right to cross-examine Hartmann
as the author of that report. 91 We find no merit to Garcia’s
91
     See State v. Devers, 

, 

 (2020).
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assertion that the trial court erred in the manner in which it
conducted the March 24 hearing.
   Garcia next argues that the district court erred when it did
not reassess his competency after his counsel filed a sec-
ond interlocutory appeal regarding the appointment of the
Commission and defended it on the basis of Garcia’s dimin-
ished capacity. This appeal was filed on April 27, 2017,
approximately a month after the court’s March 24 holding that
Garcia was competent. Our review of the record shows no
demonstrated difference in Garcia’s behavior or manner in the
time from the March 24 finding of competency until the April
27 appeal of the appointment of the Commission. Given that
the district court had approximately a month earlier decided
that Garcia was competent based on an updated evaluation,
and based further on the fact that no change to Garcia’s behav-
iors had been reported to the court in that time period, it was
not error for the court to determine that Garcia continued to
be competent to stand trial at the time of the second interlocu-
tory appeal.
   Garcia also contends that the district court erred in not
inquiring directly of him in 2014 after trial counsel continued
to raise Garcia’s ongoing mental health symptoms. We also
find no error in this. Garcia is correct that the court declined
to make such an inquiry. However, the record shows that
immediately after indicating that it would not inquire of Garcia
because it did not find that to be appropriate, the district court
ordered a competency evaluation of Garcia. The court did not
err in declining to question Garcia as to his mental health and
in instead ordering that Garcia be examined by a medical pro-
fessional as to that issue. There is no merit to this assignment
of error.
   Finally, Garcia assigns that the district court erred in
not ordering a fourth competency hearing after the miti-
gation hearing at which evidence of Garcia’s history of
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psychological treatment was offered. We find this to be with-
out merit. While Garcia offered the evidence of his mental
health history through his own witnesses, the State also offered
Hartmann’s testimony on the topic of Garcia’s treatment and
various mental health evaluations while in prison awaiting
trial. The court was free to make its own factual determina-
tions regarding the weight to assign the testimony of those
witnesses. 92 Moreover, the mental health history may be rel-
evant to Garcia’s competency, but it is not dispositive. We are
concerned, not with the status of Garcia’s mental health in
the past, but its status at the time of trial or, as here, his sen-
tencing. 93 There is no merit to this final assignment of district
court error regarding Garcia’s competency.

              (e) Ineffective Assistance of Counsel
   Garcia assigns that trial counsel was ineffective in (15)
failing to raise the issue of Garcia’s competency at the time
of his second competency hearing; (16) failing to seek a third
competency evaluation when Garcia stopped communicating
with counsel; (17) failing to object to Hartmann’s third com-
petency evaluation or seeking a continuance to review it;
(18) unintentionally waiving Garcia’s attorney-client privi-
lege by providing letters to expert witness Stephen Peterson
to rely upon in forming his opinion; (19) failing to research
the intersection of attorney-client privilege in competency as
related to Garcia’s letters to counsel; (20) handling Garcia’s
“‘Diminished Capacity’” because in doing so, the defense lost
credibility with the trial court and caused the trial court to
view Garcia’s condition as a “‘Tactic’”; (21) failing to inform
the district court at the point when Garcia stopped commu-
nicating with counsel; and (22) insufficiently preparing for
Garcia’s competency hearing.
92
     See State v. 

.
93
     See State v. Guatney, 

, 

 (1980).
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              (i) Failure to Raise Competency Prior
                  to Second Competency Hearing
   Garcia first argues that his counsel was ineffective in failing
to raise the issue of his competency prior to the second com-
petency hearing. He argues that counsel should have known he
was not competent based upon the allegations he made about
being sexually assaulted. However, Garcia cannot show that
he was prejudiced by this alleged deficient conduct. The State
brought the issue to the attention of the court, and a second
competency evaluation was sought, in part, due to these same
allegations of sexual assault, although this time by machines,
as well as mind control allegations, and the opinion of a psy-
chiatrist at the Douglas County Department of Corrections that
Garcia might be delusional.
                    (ii) Failure to Seek Third
                       Competency Hearing
   Garcia contends that his counsel was ineffective in fail-
ing to seek a third competency hearing when he stopped
communicating with his counsel prior to trial. This lack of
communication was eventually brought to the attention of the
court after trial and before Garcia’s mitigation hearing. At that
time, a competency evaluation was attempted. Due to Garcia’s
lack of cooperation, the doctors at the LRC could determine
only that Garcia’s condition was consistent with his condition
at the time of the second evaluation. The competency report
was updated accordingly, but with the same finding of compe-
tency. Accordingly, the court found that Garcia was competent
at that time.
   Because an evaluation was done with respect to Garcia’s
failure to communicate, and because it was determined that he
was competent, we conclude that this assertion is without merit.
         (iii) Failure to Object to Hartmann’s Report
                on Third Competency Evaluation
   Garcia argues that his counsel was ineffective in failing
to object to Hartmann’s third competency evaluation or, at a
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minimum, to seek a continuance to review the results of that
evaluation and that counsel further erred in not objecting to the
admission of that competency report.
   The crux of Garcia’s argument is that he had insufficient
notice the district court was going to proceed on the issue
of competency at the March 24, 2017, hearing and that thus,
his counsel did not have adequate time to prepare to cross-
examine the State’s expert, challenge the State’s report, or
present their own expert. That trial counsel lacked notice was
particularly evident when, at a hearing held less than a week
later, counsel sought an independent evaluation of Garcia’s
competency but was denied. Garcia argues that counsel ought
to have identified the lack of notice at the March 24 hear-
ing and, at a minimum, requested a continuance to review
the matter.
   There is a strong presumption that counsel acted reason-
ably, and we will not second-guess reasonable strategic deci-
sions. 94 Moreover, trial counsel is afforded due deference
to formulate trial strategy and tactics. 95 Having considered
Garcia’s allegations, given our deference to trial counsel, as
well as the presumption that counsel has acted reasonably, we
cannot find that counsel’s failure to object was deficient. As
such, we find no ineffective assistance of counsel.
            (iv) Waiver of Attorney-Client Privilege
                 on Garcia’s Letters to Counsel
   Garcia next argues that counsel was ineffective in waiving
his attorney-client privilege with regard to letters written from
Garcia to counsel. In sum, Garcia wrote letters to counsel that
were unintelligible, and counsel provided those letters to their
expert at the time of the second competency hearing.
   Upon learning about the letters, the State argued that
Garcia’s attorney-client privilege had been waived and that
it should be permitted to review the letters. But the court
94
     State v. 

.
95
     

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denied the State’s request, and there is no indication that the
court even reviewed the letters. Instead, the court concluded
that the letters were collateral to the issue of Garcia’s com-
petency in that both the State’s expert and Garcia’s expert
agreed that Garcia was competent.
   We find no merit to Garcia’s assignment of error. Garcia
cannot show that he was prejudiced by the actions of his
counsel in providing the letters to their expert when the letters
were not given to the State or reviewed by the court. Similarly,
Garcia’s argument that he was prejudiced by the alleged fail-
ure of counsel to research the attorney-client privilege as to
this topic is also without merit because Garcia cannot show
that the documents were ever provided to the State.
               (v) Counsel’s Handling of Garcia’s
                    “Diminished Capacity”
   Garcia also assigns that counsel erred in their handling of
his “diminished capacity.” The basis of Garcia’s argument
is not entirely clear, but it appears to be related to the filing
by counsel of the interlocutory appeal regarding the denial
of Motta’s pro hac vice status. In his brief, Garcia notes
that defense counsel rationalized this appeal by reference to
Garcia’s diminished capacity and that over time, this argument
caused counsel to lose credibility with the district court and
made the court view Garcia’s competency issues as a “tactic.”
We find that allegation to be without merit. We have reviewed
the record that demonstrates the district court engaged in its
own investigation into Garcia’s mental state at all relevant
times and was not swayed by any assertion by defense counsel
regarding any diminished capacity.
                   (vi) Failure to Prepare for
                     Competency Hearings
   Finally, Garcia argues that his counsel was ineffective in
their preparation for his competency hearings. We find this
allegation to be conclusory in nature and without merit.
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                         (f) Conclusion
   We find no error in the district court’s handling of the issues
surrounding Garcia’s competency, nor do we find ineffective
assistance of trial counsel.
                           7. Discovery
                     (a) Assignments of Error
   We turn to allegations relating to the discovery process in
this case. Garcia assigns that trial counsel was ineffective in
(1) submitting inadequate evidence in support of allegations
of violations of Brady v. Maryland 96, (2) failing to adequately
document the discovery process in order to preserve Garcia’s
Brady allegations, (3) failing to fully cooperate with successor
counsel, and (4) proceeding with a significant pretrial eviden-
tiary hearing telephonically without Garcia present. Relatedly,
Garcia assigns that the trial court erred in (5) holding the sig-
nificant pretrial evidentiary hearing telephonically and without
Garcia or Nebraska counsel present.
                   (b) Additional Background
   Garcia asserts error related to his Brady motion. That
motion, filed August 3, 2015, and heard on August 7, is enti-
tled “Combined Motion to Vacate Protective Order and Brady
Motion for Production of All Discovery.” It appears from the
record that neither Garcia nor local counsel was present at this
hearing and that the hearing occurred telephonically.
   At issue was Garcia’s access to information related to the
2007 murder of Joy Blanchard in Omaha. The motion alleged
that counsel had reviewed a “limited amount of discovery
related to” Blanchard’s murder, that the crimes were similar,
and that Garcia was not linked to the Blanchard murder. As
such, the motion alleged that the Blanchard evidence sug-
gested there might be a connection to the Hunter/Sherman
murders, which evidence may have exculpated Garcia. The
96
     Brady v. Maryland, 

, 

, 

 (1963).
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motion sought the lifting of the protective order on the evi-
dence and a fuller review of the Blanchard discovery.
   A hearing was held. At that hearing, the State argued that
some of the evidence sought “aren’t ours to give; they’re
the City of Omaha’s,” because it was an open police inves-
tigation and not a pending case with the Douglas County
Attorney. The State further argued that the material was not
Brady material.
   Garcia’s counsel argued to the contrary, outlining the simi-
larities between the Blanchard murder and the 2008 Hunter/
Sherman murders. During the hearing, Garcia’s counsel ini-
tially argued and made what they termed “an offer of proof,”
and they sought judicial notice of certain prior evidence in
an apparent attempt to show the similarities between the
Blanchard murder and the Hunter/Sherman murders. The State
suggested that “an offer of proof” was not evidence. Even­
tually, the information that Garcia’s counsel had reviewed was
made part of the record and the court also agreed to take judi-
cial notice of the testimony of certain prior witnesses.
   Following the hearing, the court denied the motion to vacate
the protective order but granted Garcia access to the discov-
ery sought in the motion. In the months leading up to trial,
Garcia indicated that some of this evidence would be utilized
by him at trial. The record reflects that several witnesses were
asked at trial about the Blanchard case and that Blanchard’s
boyfriend testified at trial regarding the crime scene. Some
photographs of that scene were also offered at trial. It appears
the only substantive limitation set on Garcia was that he was
not permitted, due to a lack of evidence, to connect Sherman’s
son-in-law to the Blanchard murder.
                (c) Evidence of Brady Violations
   We turn first to Garcia’s assignment of error alleging that his
counsel was ineffective in “Submitting Inadequate Evidence
to Support” his Brady violations. Our review of that hear-
ing shows a motion was made and argued and evidence was
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offered. At the conclusion of the hearing, Garcia’s motion was
granted and the State was ordered to provide the requested dis-
covery. At least some of that material was offered in Garcia’s
defense at trial. Trial counsel could not have been ineffective
in obtaining the result that appellate counsel now, inexplicably,
argues was not reached.
                      (d) Discovery Process
   While Garcia was ultimately successful as to this Brady
motion, we understand him to also be arguing in his second
and third assignments of error that his trial counsel’s procedure
in documenting the discovery process was deficient and that
counsel was accordingly ineffective. Garcia suggests that trial
counsel was unaware of what discovery had been received or
included initially, and then was uncooperative in sharing that
discovery with successor counsel.
   In short, Garcia contends that the state of the discovery
provided to successor counsel from trial counsel was disor-
ganized and potentially incomplete and that thus, it was not
possible for appellate counsel to determine all instances of
trial counsel’s ineffectiveness regarding discovery in general.
Garcia does not allege that the State failed to turn over the
discovery, but, rather, he suggests that it is not possible, given
the current state of the record of trial counsel, for appel-
late counsel to definitively know, and therefore preserve, all
potential issues of ineffective assistance of counsel. We lack
a record to conclude whether appellate counsel had a suf-
ficient record, and thus, we cannot determine this issue on
direct appeal.
   We conclude that as to these broader assignments of error, we
lack a sufficient record to determine the issue on direct appeal.
               (e) Telephonic Hearing Absent
                  Garcia and Local Counsel
  We turn to the assertion that the district court erred in
holding a significant pretrial evidentiary hearing by phone
and without Garcia or Nebraska counsel present and that
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counsel was ineffective in failing to object. Garcia is refer-
ring to the hearing as detailed above. We agree that Nebraska
counsel was absent and that the hearing was held telephoni-
cally. Moreover, we agree that trial counsel did not object to
the holding of the hearing. Given the lack of objection, we
find any error as to the district court has been waived and we
proceed to analyze this issue only as an ineffective assistance
of trial counsel claim.
   We turn to Garcia’s allegation that the absence of Nebraska
counsel amounts to structural error. Garcia cites to no author-
ity that would support the conclusion on these facts that local
counsel’s absence was structural error.
   In fact, we find that it was not error at all. Pro hac vice
admission in Nebraska is governed by Neb. Ct. R. § 3-122
(rev. 2019). It provides, as relevant, that “[t]he associating
attorney . . . shall . . . personally appear at all proceed-
ings before the court, unless excused by the court.” 97 And
here, the record is clear that the district court was aware of
Nebraska counsel’s absence and allowed the proceedings to
continue despite that absence. As such, local counsel’s per-
sonal appearance was excused by the court and trial counsel
was not ineffective.
   We next consider the allegation that the hearing was tel-
ephonic and not open to the public. We likewise find no error.
Nebraska statute provides in part that “[t]he judge, in his or
her discretion, may in any proceeding authorized by the provi-
sions of this section not involving testimony of witnesses by
oral examination, use telephonic, videoconferencing, or similar
methods to conduct such proceedings.” 98 The record shows
that no witnesses testified at this hearing. Moreover, we note
that the topic of this hearing was sensitive—involving a pro-
tective order regarding evidence relating to the Blanchard
97
     § 3-122(E).
98
     

(3) (Reissue 2016). See, also, 

 (Reissue 2016).
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murder. As such, we find no abuse of the trial court’s discre-
tion in holding the hearing telephonically and, in turn, no inef-
fective assistance by trial counsel.
   Finally, we turn to Garcia’s alleged absence. We cannot
tell for certain that Garcia was not in attendance—in the tran-
scription of other hearings, the court reporter explicitly states
that Garcia either was present or was not present, but for this
hearing, the record is silent. And if Garcia was not present,
we have no information about why he was not present or what
precipitated his absence.
   Garcia notes that he was prejudiced by not attending this
hearing because, at this hearing, one of his attorneys had
a “temper tantrum” that Garcia was unaware of. 99 Having
reviewed the record, we do not disagree with this charac-
terization of the attorney’s behavior. As such, we determine
that our record is insufficient to decide this allegation on
direct appeal.

                         (f) Conclusion
   We find no merit to Garcia’s allegations regarding the
adequacy of the evidence offered on his Brady motion and his
allegation that a hearing proceeded telephonically and in the
absence of local counsel. We find that we lack the record to
determine on direct appeal Garcia’s allegation that he should
have attended the telephonic hearing and his allegation regard-
ing the state of discovery provided to appellate counsel.

               8. DNA and Digital Evidence
                      (a) DNA Evidence
   Garcia makes several assignments of error relating to the
DNA evidence presented at trial, which assignments we con-
solidate. He alleges that trial counsel was ineffective in (1)
failing to challenge the admissibility of the State’s DNA
99
     Brief for appellant at 377.
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evidence as derived from unreliable methodology under
Daubert v. Merrell Dow Pharmaceuticals, Inc. 100; (2) failing
to prepare to cross-examine and also adequately and effec-
tively cross-examine the State’s DNA experts during pretrial
hearings; (3) failing to present DNA expert testimony at pre-
trial hearings, as well as at trial, regarding the unreliability of
“Suspect-Centric Mixture Analysis”; (4) failing to effectively
cross-examine the State’s expert at trial regarding the use and
unreliability of “Suspect-Centric Mixture Analysis”; (5) fail-
ing to adequately prepare, understand, and cross-examine trial
witnesses regarding DNA; and (6) stipulating to the creden-
tials of the State’s DNA expert.
   Though Garcia assigns several points of error, they all relate
to the ineffectiveness of trial counsel in their preparation and
implementation of Garcia’s defense regarding the State’s evi-
dence that his DNA was found on the handle of Bewtra’s back
door. We find such allegations conclusory and thus insufficient
to raise a challenge to the effectiveness of counsel.

                       (b) Digital Evidence
   Garcia also assigns that his trial counsel was ineffective in
(7) retaining an unqualified digital forensic expert and (8) fail-
ing to research and adequately prepare to cross-examine the
State’s digital forensic expert.
   As with the DNA evidence, we conclude that the allegations
made by Garcia in his brief are conclusory and not sufficient
to raise an allegation of ineffective assistance of counsel.
   We note that, elsewhere in his brief, Garcia also suggests
that counsel was ineffective in “Wasting” money on an unqual-
ified digital evidence expert. To the extent that this argument
was raised, we conclude that Garcia cannot show that he was
prejudiced by the expenditure of such funds.
100
      Daubert v. Merrell Dow Pharmaceuticals, Inc., 

, 

, 

 (1993).
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                         (c) Conclusion
   We find that with respect to Garcia’s allegations on DNA
and digital evidence, Garcia has failed to allege a claim of inef-
fective assistance of counsel with sufficient specificity. To the
extent Garcia could be read to argue that counsel “Wast[ed]”
funds in their retention of a digital evidence witness, we find
that Garcia cannot demonstrate prejudice.

       9. Miscellaneous Allegations of Ineffective
                     Assistance of Counsel
   Garcia assigns that his trial counsel was ineffective in fail-
ing to request an alibi instruction. In addition, Garcia assigns
multiple allegations of ineffectiveness of trial counsel, which
he contends cannot be addressed on direct appeal: that trial
counsel was ineffective in (1) failing to discuss the State’s
plea offer with Garcia, (2) failing to discuss with Garcia his
right to testify, (3) failing to adequately prepare for trial, (4)
failing to explain to Garcia his options relating to an insan-
ity defense, (5) failing to explain to Garcia the problems
regarding the evidence in this case, (6) failing to offer evi-
dence of alternative suspects, (7) failing to effectively cross-
examine the Dundee neighborhood identification witnesses
in the Hunter/Sherman murders, and (8) pressuring Garcia to
waive his speedy trial rights.

                       (a) Alibi Instruction
   We turn first to Garcia’s allegations regarding counsel’s
failure to seek an alibi instruction. Garcia acknowledges that
a proposed instruction was not requested from the trial court.
He argues that this was deficient conduct and prejudicial
because the alibi instruction was warranted by the evidence.
We find this allegation to be without merit.
   We note that though Garcia argues that he was entitled to an
alibi instruction, he does not explicitly explain what evidence
might support such an instruction. From our review of the
record, it appears Garcia would be relying on evidence from
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his time in Des Moines, Iowa, in the evening hours of May 12,
2013. The record shows that a few hours after Garcia’s loca-
tion data indicated he was in Omaha, that data showed that he
had left Omaha and was near Des Moines. A hotel clerk testi-
fied that she remembered Garcia’s checking into the hotel and
that she later saw him at the hotel with an unidentified woman.
Presumably, both of these witnesses are the alibi to which
Garcia refers.
   [37,38] In order to justify an alibi instruction, there must
be evidence that the defendant was at some other place during
the commission of the crime. 101 In addition, the evidence must
show that the defendant was at such other place for a length of
time that it was impossible for him or her to have been at the
place where the crime was committed, either before or after
the time he or she was at such other place. 102 While the record
shows that Garcia might have been in Des Moines around
the time of the Brumback murders, it does not show that it
was impossible for Garcia to have been in Omaha and at the
Brumback home for all of the time period at issue.
   Rather, the evidence shows that the Brumbacks were killed
sometime between 2:40 p.m. on May 12, 2013, and 9:40 a.m.
on May 14, but most likely sometime on May 12. Garcia’s
phone records show a call was received on his cell phone at
approximately 5:15 p.m. on May 12 that “pinged” off a tower
in Atlantic, Iowa, about an hour east of Omaha. Evidence fur-
ther shows that Garcia was in the area of West Des Moines,
Iowa, approximately 2 hours from Omaha, by approximately
7 p.m. Thus, Garcia’s alibi does not show that he was some-
where else for a length of time making it impossible for him to
have committed the crime.
   We find no merit to this allegation of ineffective assistance
of counsel.
101
    See State v. 

. See, also, State v. Cobos, 

, 

 (2015).
102
    

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           (b) Miscellaneous Allegations of Ineffective
                      Assistance of Counsel
   We turn to Garcia’s various allegations of ineffective assist­
ance of counsel that Garcia claims cannot be reached on
direct appeal. We agree with Garcia that we lack a sufficient
record to determine whether trial counsel (1) failed to discuss
the State’s plea offer with Garcia, (2) failed to discuss with
Garcia his right to testify, (3) failed to adequately prepare for
trial, (4) failed to explain to Garcia his options relating to an
insanity defense, (5) failed to explain to Garcia the problems
regarding the evidence in this case, and (6) pressured Garcia
to waive his speedy trial rights.
   This leaves the allegations that trial counsel was ineffec-
tive in failing to investigate and properly present evidence of
alternate suspects and in failing to effectively cross-examine
the Dundee identification witnesses. We turn to the alter-
nate suspects.

                      (i) Alternate Suspects
   At trial, trial counsel attempted to introduce evidence of
other potential suspects. We note that in the argument on this
assignment of error, counsel does not identify these “Alternate
Suspects,” suggesting that that failure might be due to lack of
access to trial discovery. Though Garcia does not name any
of these “Alternate Suspects,” we note that evidence about
other Creighton medical residents and Sherman’s son-in-law
was admitted at trial. In addition, certain evidence about the
murder of Blanchard, which occurred near the time of the
Hunter/Sherman murders, was offered.
   Now on direct appeal, Garcia contends the trial court
“restricted much of their ability to introduce a coherent pic-
ture of these suspects largely because [trial counsel] struggled
to articulate the evidence in the relevant terms the Court
requested” and that trial counsel was ineffective for failing
to present a coherent picture of these alternate suspects so
that the district court could allow the defense to introduce
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that evidence. 103 But Garcia suggests that “this issue cannot
be addressed without further investigation and an evidentiary
hearing because successor counsel, too, lacks time for [an]
independent investigation and access to the full discovery—
particularly the FBI reports detailing the investigation into
these alternate suspects.” 104
   In sum, Garcia suggests that more might be found in a
perusal of discovery in this case, including FBI files, but that
their access to that information is limited. We agree that to the
extent those records might include other suspects not apparent
from the trial record, those allegations cannot be considered
on direct appeal because we lack a sufficient record.

                 (ii) Cross-Examination of Dundee
                       Identification Witnesses
   Finally, Garcia alleges that trial counsel was ineffective in
their cross-examination of the Dundee identification witnesses.
Specifically, Garcia argues that trial counsel
      misunderstood the hearsay rule on this issue and also
      missed significant opportunities to properly establish that
      the witnesses to the 2008 Dundee murders did not pro-
      vide a consistent description of the suspect they saw
      walking through the neighborhood. . . .
         . . . Failing to effectively demonstrate differences in the
      eye witness’ descriptions prejudiced Garcia. 105
   Again, Garcia notes that the lack of a complete record of
trial counsel’s activities and copies of the relevant discovery
stymies appellate counsel’s ability to determine what might
have been missing from this cross-examination.
   We find that this was not sufficiently alleged. Garcia argues
that counsel “misunderstood” the hearsay rule, but does not
explain how the hearsay rule was “misunderstood.” Further,
103
    Brief for appellant at 384.
104
    

105
    Id. at 385.
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Garcia argues that the witnesses did not provide a “consistent
description,” but does not explain how the descriptions were
not “consistent” or how counsel might have more “effectively
demonstrate[d]” the differences in the description. Garcia does
direct us to the testimony of the State’s expert on joinder,
which is part of the record. However, he neglects to detail the
points made in that testimony, which are allegedly at issue
here, though acknowledging that the testimony is part of the
record before this court on appeal.
   Finally, Garcia suggests that these issues cannot be deter-
mined on direct appeal because the record lacks “a full copy
of the police reports in this case,” and thus counsel cannot
“specify the facts omitted . . . beyond those identified” in the
testimony of the State’s expert on joinder which, we note,
were in fact not identified. 106 But, as set forth in his brief and
restated above, Garcia’s allegations are largely focused not on
the omission of facts, but on the failure to demonstrate the dif-
ference in testimony.
   We conclude that this allegation lacks the specificity required
to support a claim on deficient conduct.

                         (c) Conclusion
   We find that there is no merit to Garcia’s allegation regard-
ing his right to an alibi instruction and that he did not suf-
ficiently plead his claim regarding the cross-examination of
the Dundee witnesses. We find that we cannot determine the
remainder of his allegations on direct appeal.

                  10. Closing Arguments
                  (a) Assignments of Error
   Garcia assigns several errors relating to the State’s clos-
ing arguments. Specifically, Garcia alleges (1) that the State
engaged in prosecutorial misconduct with regard to inappro-
priate statements made during closing arguments. He further
106
      

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alleges that his counsel was ineffective in (2) failing to seek a
mistrial in response to the State’s closing arguments, (3) invit-
ing the inappropriate comments made in the State’s closing
arguments, and (4) failing to research and abide by Nebraska
law with regard to closing arguments.
                     (b) Standard of Review and
                         Propositions of Law
   [39,40] When a defendant has not preserved a claim of
prosecutorial misconduct for direct appeal, we will review the
record only for plain error. 107 We apply the plain error excep-
tion to the contemporaneous-objection rule sparingly. 108
   [41,42] Prosecutorial misconduct encompasses conduct that
violates legal or ethical standards for various contexts because
the conduct will or may undermine a defendant’s right to a
fair trial. 109 In assessing allegations of prosecutorial miscon-
duct, a court first determines whether the prosecutor’s remarks
were improper. 110 It is then necessary to determine the extent
to which the improper remarks had a prejudicial effect on the
defendant’s right to a fair trial. 111
   [43-46] Prosecutorial misconduct prejudices a defendant’s
right to a fair trial when the misconduct so infected the trial
that the resulting conviction violates due process. 112 Whether
prosecutorial misconduct is prejudicial depends largely on
the context of the trial as a whole. 113 In determining whether
a prosecutor’s improper conduct prejudiced the defendant’s
right to a fair trial, we consider the following factors: (1) the
degree to which the prosecutor’s conduct or remarks tended
107
    State v. Kipple, 

, 

 (2022).
108
    

109
    

110
    

111
    

112
    State v. McSwine, 

, 

 (2016).
113
    

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to mislead or unduly influence the jury, (2) whether the con-
duct or remarks were extensive or isolated, (3) whether trial
counsel invited the remarks, (4) whether the court provided a
curative instruction, and (5) the strength of the evidence sup-
porting the conviction. 114 A prosecutor’s conduct that does not
mislead and unduly influence the jury is not misconduct. 115

                  (c) Prosecutorial Misconduct
   Garcia takes issue with statements made both by the State
during its closing argument and by his trial counsel during
closing arguments.
   We turn first to the allegations of prosecutorial miscon-
duct. We note that Garcia did not object to these statements,
and thus we review for plain error. Garcia argues that several
statements were plain error. 116 Specifically, Garcia directs us
to statements wherein the State described trial counsel’s argu-
ments as the “rantings of a lunatic” and implied that trial coun-
sel was not trustworthy, reminding the jury that trial counsel
said “‘trust me,’” but continuing “[a]ll I can say to that is
yikes, don’t trust him.”
   At another point, Garcia argues, the State implied that
defense counsel lied about the State’s failure to turn over
data from Garcia’s electronic devices so Garcia’s expert could
review it:
      [T]he defense is caught, like, Oh, shoot, we got caught.
      What do they say? Oh, we didn’t get it from the State.
      We’re used to that, ladies and gentlemen. So what did we
      have? A receipt that . . . Motta signed back in 2013 show-
      ing they picked up that raw data. Appalling.
   Garcia took further issue with several instances where the
State notes that its experts have “integrity,” while Garcia’s
experts are “hired gun[s],” and that Garcia’s experts created
114
    

115
    State v. Figures, 

, 

 (2021).
116
    See State v. 

.
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a “new industry” of creating “smoke screen[s]” to detract from
the State’s evidence. We note that Garcia takes issue with a
few other exchanges that we do not set forth here but have
reviewed, and upon our plain error review, we do not find
those exchanges improper.
   As for the comments specifically noted above, we conclude
that these comments were certainly provocative; nevertheless,
we find that they were not prejudicial. In coming to this con-
clusion, we consider the factors noted above. We first observe,
as in the past, that juries are generally able to ignore these
types of hyperbole and decide cases submitted to them based
upon the evidence. 117
   Moreover, we note that the challenged statements were
largely not about the evidence and thus would not tend to
mislead or unduly influence the jury as to what the evidence
showed. We also note that while Garcia argues that the state-
ments made were extensive, the trial as a whole, and closing
arguments specifically, were also extensive. To give some idea
of this, the trial spanned over a month’s time and comprises
21 volumes of the bill of exceptions prepared for this court’s
review. Of that, closing arguments span 212 pages, while only
about 5 pages comprise the argument that Garcia now dis-
putes. We also note that the jury was instructed that arguments
were not evidence. Finally, we have extensively considered
this record and find that the evidence supporting Garcia’s con-
victions was ample.
   We find no plain error in the State’s closing arguments and
find this assignment of error to be without merit.

             (d) Ineffective Assistance of Counsel
   Garcia assigns several errors relating to the State’s clos-
ing arguments. Because we find that the State did not engage
in prosecutorial misconduct during its closing arguments, we
find that counsel was not ineffective either in failing to seek
117
      

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a mistrial or in allegedly inviting the State’s comments dur-
ing closing arguments. As for the final allegation that coun-
sel failed to engage in research regarding Nebraska law, we
conclude that this allegation is conclusory in nature and we
decline to address it further.

                      (e) Conclusion
   We find no merit to any of Garcia’s allegations regarding
closing arguments.

                      11. Death Penalty
   We turn to the imposition of the death penalty in this case.
On appeal, Garcia takes issue with the constitutionality of the
death penalty, the aggravating and mitigating factors found in
his case, and their weighing. He also argues that death sen-
tences in this case were not proportional to other cases.

                    (a) Additional Background
   On October 26, 2016, Garcia was convicted of four counts
of first degree murder, four counts of use of a weapon to com-
mit a felony, and one count of attempted robbery. A notice
of aggravation was filed with respect to each of the murder
convictions. That notice alleged that as to all four victims—
Hunter, Sherman, Roger, and Mary—the State intended to
adduce evidence of three aggravating circumstances: (1) the
murder was committed in an effort to conceal the commis-
sion of a crime, or to conceal the identity of the perpetrator
of such crime 118; (2) the murder was especially heinous, atro-
cious, or cruel or manifested exceptional depravity by ordi-
nary standards of morality and intelligence 119; and (3) at the
time the murder was committed, the offender also committed
another murder. 120
118
    See 

(1)(b) (Cum. Supp. 2022).
119
    See § 29-2523(1)(d).
120
    See § 29-2523(1)(e).
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   Garcia was found guilty following a jury trial. Two days
later, an aggravation hearing was held before the same jury that
had found Garcia guilty. No additional evidence was offered,
and only brief arguments were had.
   The jury was instructed as to the aggravating circumstances
alleged by the State as to each of the four victims as follows:
       MURDER TO CONCEAL COMMISSION OF ANOTHER
       CRIME OR TO CONCEAL THE IDENTITY OF ITS
       PERPETRATOR.
          The essential elements necessary to prove this aggra-
       vating circumstance beyond a reasonable doubt are:
          1. The defendant committed the murder of [victim] for
       the specific purpose of trying to conceal the commission
       of another crime; or
          2. The defendant committed the murder of [victim] for
       the specific purpose of trying to conceal the identity of
       the perpetrator of another crime.
          ....
          . . . MURDER THAT IS ESPECIALLY HEINOUS,
       ATROCIOUS, OR CRUEL, OR MURDER MANIFEST­
       ING EXCEPTIONAL DEPRAVITY.
          The essential elements necessary to prove this aggra-
       vating circumstance beyond a reasonable doubt are:
          On the especially heinous, atrocious, or cruel prong:
          1. The defendant inflicted serious mental anguish or
       serious physical abuse - meaning torture, sadism, or sex-
       ual abuse - on [victim] before his [or her] death. Mental
       anguish includes a victim’s uncertainty as to his or her
       ultimate fate.
          On the exceptional depravity prong:
          1. The defendant apparently relished the murder of
       [victim]; or
          2. The defendant inflicted gratuitous violence on [vic-
       tim]; or
          3. The defendant needlessly mutilated [victim]; or
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         4. There was a cold, calculated planning of [victim’s]
      death, as exemplified by experimentation with the method
      of causing the death or by the purposeful selection of
      [victim] on the basis of specific characteristics.
         ....
         . . . MURDER COMMITTED AT THE TIME
      THE OFFENDER ALSO COMMITTED ANOTHER
      MURDER.
         The essential elements necessary to prove this aggra-
      vating circumstance beyond a reasonable doubt are:
         1. The offender murdered more than one person dur-
      ing the same criminal transaction in which [victim]
      was murdered.
   Following the hearing, the jury found the following aggrava-
tors: As to Hunter and Sherman, the jury found that the murder
of each was especially heinous, atrocious, or cruel or mani-
fested exceptional depravity by ordinary standards of morality
and intelligence and that at the time each murder was commit-
ted, the offender also committed another murder. As to Roger
and Mary, the jury found that the murders were committed in
an effort to conceal the commission of a crime or to conceal
the identity of the perpetrator of such crime; that the murder of
each was especially heinous, atrocious, or cruel or manifested
exceptional depravity by ordinary standards of morality and
intelligence; and that at the time each murder was committed,
the offender also committed another murder.
   Nearly 2 years later, Garcia’s mitigation hearing was held.
Following that hearing, the sentencing panel found only one
statutory mitigating circumstance—that Garcia had no sig-
nificant history of prior criminal activity. Further, while the
sentencing panel noted that Garcia had previously sought
psychiatric and psychological treatment, such did not rise to
the level of a mitigating circumstance. After conducting its
required proportionality review and finding no concerns, the
panel considered the aggravating circumstances found by the
jury, as well as the statutory mitigating circumstance found
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by the panel, and sentenced Garcia to death on each of his
four convictions for first degree murder.
                    (b) Standard of Review and
                        Propositions of Law
   [47] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews. 121
   [48] When reviewing the sufficiency of the evidence to
sustain the trier of fact’s finding of an aggravating circum-
stance, the relevant question for the Nebraska Supreme Court
is whether, after viewing the evidence in the light most favor-
able to the State, any rational trier of fact could have found the
essential elements of the aggravating circumstance beyond a
reasonable doubt. 122
   [49] When an appellate court reviewing a death penalty
invalidates one or more of the aggravating circumstances, or
finds as a matter of law that any mitigating circumstance exists
that the sentencing panel did not consider in its balancing,
the appellate court may, consistent with the U.S. Constitution,
conduct a harmless error analysis or remand the cause to the
district court for a new sentencing hearing. 123
   [50] In order for a state appellate court to affirm a death
sentence after the sentencer was instructed to consider an
invalid factor, the court must determine what the sentencer
would have done absent the factor. 124
   [51] Even a constitutional error which was harmless beyond
a reasonable doubt does not warrant the reversal of a crimi-
nal conviction. 125
   [52] Harmless error review in a capital sentencing case
looks to whether it is clear beyond a reasonable doubt that
121
    State v. Trail, supra note 38.
122
    State v. Sandoval, 

, 

 (2010).
123
    

124
    

125
    

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the sentencing court’s decision would have been the same
absent any reliance on an invalid aggravator. 126
   [53-56] In a capital sentencing proceeding, this court con-
ducts an independent review of the record to determine if
the evidence is sufficient to support imposition of the death
penalty. 127 When reviewing the sufficiency of the evidence to
sustain the trier of fact’s finding of an aggravating circum-
stance, the relevant question for this court is whether, after
viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential ele-
ments of the aggravating circumstance beyond a reasonable
doubt. 128 A sentencing panel’s determination of the existence
or nonexistence of a mitigating circumstance is subject to
de novo review by this court. 129 In reviewing a sentence
of death, the Nebraska Supreme Court conducts a de novo
review of the record to determine whether the aggravating
and mitigating circumstances support the imposition of the
death penalty. 130
   [57,58] Under Nebraska’s capital sentencing scheme, a jury,
if not waived, 131 only determines the existence of aggravating
circumstances. 132 A jury’s participation in the death penalty
sentencing phase, if not waived, 133 ceases after the determi-
nation of aggravating circumstances. 134 A three-judge panel
determines the existence of mitigating circumstances, weighs
aggravating and mitigating circumstances, and determines
126
    

127
    State v. Schroeder, 

, 

 (2020).
128
    

129
    

130
    

131
    See 

(3) (Cum. Supp. 2022).
132
    See § 29-2520(4)(g).
133
    See § 29-2520(3).
134
    See § 29-2520(4)(g).
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the sentence. 135 

 (Cum. Supp. 2022)
provides the guidelines for the three-judge panel’s sentenc-
ing determination:
        The panel of judges for the sentencing determination
     proceeding shall either unanimously fix the sentence at
     death or, if the sentence of death was not unanimously
     agreed upon by the panel, fix the sentence at life impris-
     onment. Such sentence determination shall be based upon
     the following considerations:
        (1) Whether the aggravating circumstances as deter-
     mined to exist justify imposition of a sentence of death;
        (2) Whether sufficient mitigating circumstances exist
     which approach or exceed the weight given to the aggra-
     vating circumstances; or
        (3) Whether the sentence of death is excessive or dis-
     proportionate to the penalty imposed in similar cases,
     considering both the crime and the defendant.
        In each case, the determination of the panel of judges
     shall be in writing and refer to the aggravating and
     mitigating circumstances weighed in the determination of
     the panel.
   [59] Under 

 (Cum. Supp.
2022), the Nebraska Supreme Court is required upon appeal
to determine the propriety of a death sentence by conduct-
ing a proportionality review. Proportionality review requires
the Nebraska Supreme Court to compare the aggravating and
mitigating circumstances with those present in other cases in
which a district court imposed the death penalty. 136 This is to
ensure that the sentence imposed in the case under review is
no greater than those imposed in other cases with the same or
similar circumstances. 137
135
    See 

 (Cum. Supp. 2022).
136
    State v. Trail, supra note 38.
137
    Id.
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              (c) Constitutionality of Death Penalty
                     (i) Assignments of Error
   Garcia assigns error regarding the constitutionality of the
death penalty. Specifically, he assigns, restated and consoli-
dated, that the district court, sitting as the presiding judge
of the three-judge sentencing panel, erred in not granting
the Commission’s motion to find the death penalty uncon-
stitutional (1) as arbitrarily and capriciously administered in
light of geographical discrepancies; (2) as violating Hurst v.
Florida 138 with respect to the finding of aggravating factors,
mitigating factors, and imposition of a death sentence; (3)
as violating United States v. Jackson 139; (4) as racially and
geographically discriminatory; (5) as improperly delegating
a legislative function to the executive branch in violation of
the Nebraska Constitution; (6) as violating evolving standards
of decency; and (7) in light of referendum violations. Garcia
argues, relatedly, that the district court erred (8) in not finding
that the lethal injection protocols violated Garcia’s rights under
the Administrative Procedure Act, as well as the state and
federal constitutions, and (9) in not excluding victim impact
statements requesting a specific outcome or characterizing the
crime or the victim.

                      (ii) Death Penalty
                     Not Unconstitutional
   Garcia first assigns that the district court, sitting as the
presiding judge of the three-judge sentencing panel, erred in
not finding the death penalty unconstitutional as arbitrarily
and capriciously administered in light of geographical dis-
crepancies in violation of Furman v. Georgia, 140 Parker v.
138
    Hurst v. Florida, 

, 

, 

 (2016).
139
    United States v. Jackson, 

, 

, 

    (1968).
140
    Furman v. Georgia, 

, 

, 

    (1972).
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Dugger, 141 and the 5th, 8th, and 14th Amendments to the U.S.
Constitution, as well as article I, §§ 1, 3, 9, and 11, of the
Nebraska Constitution, and also as racially and geographi-
cally discriminatory in violation of Furman, under the Equal
Protection Clause and the Due Process Clause, as well as under
the 8th and 14th Amendments to the U.S. Constitution and
article I, §§ 1, 3, 9, and 11, of the Nebraska Constitution.
   But this court has found this argument to be without merit. 142
Garcia acknowledges as much, but urges us to reconsider this
precedent. We decline to revisit this authority and, as such,
find this argument to be without merit.
   Garcia also assigns that the presiding judge erred in not find-
ing the death penalty unconstitutional under Hurst, 143 because
Nebraska’s statutes (1) prohibit the jury from assigning weight
to aggravating circumstances, (2) prohibit presenting mitigat-
ing evidence to the jury, and (3) do not allow a jury to make
the life or death determination in violation of the 6th, 8th,
and 14th Amendments to the U.S. Constitution and article I,
§§ 1, 3, 9, and 11, of the Nebraska Constitution.
   We recently reiterated our rejection of this argument:
         In Hurst, the Court held that a “hybrid” sentencing
      scheme, in which the jury made a merely “advisory” rec-
      ommendation of life or death and did not make a binding
      finding as to the existence of any aggravating circum-
      stance, violated the Sixth Amendment. The sentencing
      scheme required the jury to render an advisory verdict
      of life or death while the sentencing judge then exer-
      cised independent judgment to determine the existence
      of aggravating and mitigating factors and made an inde-
      pendent judgment, after weighing the aggravating and
      mitigating factors, about whether the sentence should
      be life or death. The sentencing statute specified that a
141
    Parker v. Dugger, 

, 

, 

 (1991).
142
    See State v. Gales, 

, 

 (2003).
143
    Hurst v. 

.
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defendant was not death eligible until the court (not a
jury) made independent findings that the person shall
be punished by death—which included finding that suf-
ficient aggravating circumstances existed and that there
were insufficient mitigating circumstances to outweigh
the aggravating circumstances.
   The Supreme Court in Hurst rejected the State’s argu-
ment that the scheme was constitutional because a jury
implicitly found at least one aggravating circumstance
when it recommended the death penalty. The Court
explained, “The State fails to appreciate the central and
singular role the judge plays” under the law wherein
“[t]he trial court alone must” make the “critical findings
necessary to impose the death penalty” without which the
defendant’s maximum authorized punishment would be
life imprisonment.
   We recently addressed Hurst in State v. Jenkins. We
held on direct appeal from the defendant’s conviction
and sentence to the death penalty that Hurst did not
require us to reexamine our prior conclusion that the
Sixth Amendment does not require the jury to determine
mitigating circumstance, perform the balancing function,
or conduct the proportionality review.
   Similarly, in State v. Lotter, we held, for purposes of
the statute of limitations for a postconviction action, that
Hurst did not announce a new rule of law. We explained
Hurst was merely an application of Ring to the sentencing
scheme under which the judge alone found the existence
of any aggravating circumstance that made the defendant
death eligible.
   We explained in Lotter that isolated references in Hurst
to the sentencing scheme’s requirement that the court find
there were insufficient mitigating circumstances to out-
weigh the aggravating circumstances did not mean that
the Supreme Court had held the jury rather than a judge
must find that the aggravating circumstances outweigh
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the mitigating ones. Rather, we sided with the opinion
of most federal and state courts, which agree Hurst does
not stand for the proposition that a jury must find beyond
a reasonable doubt that the aggravating factors outweigh
the mitigating circumstances.
   After Jenkins and Lotter, the U.S. Supreme Court, in
McKinney v. Arizona, implicitly confirmed the validity of
our analysis and the majority view. The Court held that
on remand for a reweighing of the aggravating and miti-
gating circumstances (after federal habeas corpus review
found the trial court had erred by refusing to consider the
mitigating circumstance of the defendant’s post-traumatic
stress disorder), a judge, rather than a jury, could con-
duct the reweighing. The Supreme Court specifically
rejected the defendant’s argument that its holding in
Hurst required a jury to reweigh aggravating and mitigat-
ing circumstances. The Court reiterated, “[I]n a capital
sentencing proceeding just as in an ordinary sentencing
proceeding, a jury (as opposed to a judge) is not constitu-
tionally required to weigh the aggravating and mitigating
circumstances or to make the ultimate sentencing deci-
sion within the relevant sentencing range.” The Court
explained that Ring and Hurst stand only for the proposi-
tion that a jury must find an aggravating circumstance
that makes the defendant death eligible. “In short,” said
the Court, “Ring and Hurst did not require jury weigh-
ing of aggravating and mitigating circumstances” and
“‘States that leave the ultimate life-or-death decision to
the judge may continue to do so.’”
   By leaving to the three-judge panel the ultimate life-
or-death decision upon making the selection decisions of
whether the aggravating circumstances justify the death
penalty and whether sufficient mitigating circumstances
exist that approach or exceed the weight given to the
aggravating circumstances, Nebraska’s sentencing scheme
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      does not violate the Sixth Amendment right to a jury trial
      or article I, § 6, of the Nebraska Constitution. 144
   Garcia’s assignments of error with respect to Hurst are with-
out merit.
   Garcia next assigns that the presiding judge erred in not
finding that the death penalty was unconstitutional as violating
Jackson, insofar as Nebraska’s statutes discourage defendants
from exercising their right to a jury determination of aggrava-
tors because the three-judge panel is required to make written
unanimous findings of fact explaining the basis for their deci-
sion, but juries are not, in violation of the 6th, 8th, and 14th
Amendments to the U.S. Constitution and article I, §§ 1, 3, 9,
and 11, of the Nebraska Constitution.
   As acknowledged by Garcia, we addressed and rejected this
particular argument in State v. Hessler 145:
      In Jackson, the U.S. Supreme Court found unconstitu-
      tional a federal statutory provision that authorized the
      imposition of a death sentence only when a jury rec-
      ommended the death sentence. Under the statute, if the
      defendant waived jury trial or pled guilty, the maximum
      possible sentence the court could impose was a life
      sentence. The Court determined that the statutory provi-
      sion was unconstitutional because it improperly coerced
      or encouraged the defendant to waive his or her Sixth
      Amendment right to a jury or his or her Fifth Amendment
      right to plead not guilty and because it needlessly penal-
      ized the defendant who asserted such rights.
         We do not find [the defendant’s] reliance on Jackson
      applicable or persuasive. Unlike Jackson, under the
      Nebraska death penalty statutes, a defendant cannot
      avoid the risk of a death penalty by waiving the right to
      a jury determination of aggravating circumstances; even
      if the defendant waived such right, the sentencing panel
144
      State v. Trail, supra note 38, 312 Neb. at 898-901, 951 N.W.2d at 307-09.
145
      State v. Hessler, 

, 

 (2007).
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     could still impose a death penalty. Under the statutory
     provision in Jackson, the defendant could completely
     avoid the death penalty by waiving a jury trial or by
     pleading guilty. Under the Nebraska statutes, there is no
     such direct benefit achieved at the expense of waiving
     the right to a jury as there was in Jackson. By waiving
     the right to a jury under the Nebraska statutes, the sole
     benefit is that the defendant avoids the circumstance
     wherein the jury as fact finder finds aggravating circum-
     stances and the judicial panel as fact finder determines
     the sentence. While the sentencing panel might be more
     thoroughly versed about the case if it had also found
     aggravating circumstances, this does not mean that the
     sentencing panel would necessarily make a sentenc-
     ing decision that was more favorable to the defendant.
     Unlike Jackson, in which the benefit to waiving the
     right to a jury was the elimination of exposure to the
     death penalty, the Nebraska statutory scheme does not
     provide a clear advantage to a defendant who waives
     his or her right to have a jury determine aggravating
     circumstances. The Nebraska statutory scheme does not
     improperly coerce or encourage a defendant to waive his
     or her right to a jury and does not penalize a defendant
     who asserts such right.
   We decline Garcia’s request that we reconsider this decision
and find that this assignment of error is without merit.
   Garcia additionally assigns several errors relating to
Nebraska’s lethal injection execution protocols: namely, that
the presiding judge erred in not finding that 

 (Reissue 2014), which, among other things, grants
the director of the Department of Correctional Services the
authority to “create, modify, and maintain a written execu-
tion protocol,” improperly delegates a legislative function
to the executive branch in violation of article II, § 1, of the
Nebraska Constitution, and further that the protocol violates
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Garcia’s rights under the Administrative Procedure Act, 146 as
well as his rights under the 6th, 8th, and 14th Amendments
to the U.S. Constitution, and article I, §§ 1, 3, 9, and 11, and
article II, § 11, of the Nebraska Constitution.
   We turn first to the argument that the Legislature improperly
delegated to the director of the Department of Correctional
Services its power over the written execution protocol. In
support of this argument, Garcia relies on Lincoln Dairy
Co. v. Finigan, 147 Clemens v. Harvey, 148 Kwik Shop, Inc. v.
City of Lincoln, 149 and an Arkansas case, Hobbs v. Jones. 150
We disagree.
   Lincoln Dairy Co. holds that the Legislature could not dele-
gate to the Department of Agriculture the power to create rules
and regulations, the violation of which would be a criminal
offense. Clemens held that the precursor to the Department of
Health and Human Services did not have the power to elimi-
nate certain individuals from eligibility for medical assistance
benefits. And Kwik Shop held that a statutory scheme for
approval of a liquor license was unconstitutionally vague.
   Jones is from Arkansas but is directly on point. There, the
Arkansas Supreme Court held that the Arkansas Legislature
had improperly delegated the creation of the state’s lethal
injection protocol to the Department of Correction. Since then,
the Arkansas Legislature has revised the delegation and that
revision has passed constitutional muster. 151
   Garcia fails to direct this court to our decision in State v.
Ellis, 152 in which we held that it was not an unconstitutional
delegation of power for the Legislature to grant the
146
    See 

 et seq. (Reissue 2014).
147
    Lincoln Dairy v. Finigan, 

, 

 (1960).
148
    Clemens v. Harvey, 

, 

 (1994).
149
    Kwik Shop v. City of Lincoln, 

, 

 (1993).
150
    Hobbs v. Jones, 

, 

 (2012).
151
    Hobbs v. McGehee, 

, 

 (2015).
152
    State v. Ellis, 

, 

 (2011).
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ability to create a lethal injection protocol to the Department of
Correctional Services. We have previously declined to revisit
that decision 153 and continue to do so today. Garcia’s assign-
ment of error is without merit.
   Garcia also assigns that Nebraska’s lethal injection proto-
cols violated his rights under the Administrative Procedure
Act. Specifically, Garcia alleges that “[a]llowing the Director
to determine which substance to use based upon the avail-
ability of the necessary substance(s)” is allowing the director
to make a new “‘rule, regulation, or standard,’” and further,
that the “execution protocol allows the Director to make an
independent determination of which lethal substance to use
in executions and in what quantities without following [the
Administrative Procedure Act] requirements at set forth [in]

(1) (Reissue 2014).”
   A similar issue arose in Indiana in Ward v. Carter. 154 There,
the applicable rules and regulations allowed the director of
the Department of Correction to change the lethal injection
protocol. A change was made to the protocol, altering the
three-drug combination used. A death row inmate challenged
the change, and the trial court dismissed the inmate’s com-
plaint. The Court of Appeals reversed, holding that the depart-
ment must follow the Indiana version of the Administrative
Procedure Act and that further, the execution protocol “consti-
tuted a ‘rule.’” 155
   In Ward, the Indiana Supreme Court reversed, reasoning
that only those rules that carry the effect of law are governed
by the Indiana version of the Administrative Procedure Act.
After analyzing the details of the lethal injection protocol,
the court concluded that the lethal injection protocol did not
carry the effect of law. As such, the court held that it could be
modified without offending that act.
153
    State v. Torres, 

, 

 (2012).
154
    Ward v. Carter, 

 (Ind. 2018).
155
    

.
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   Garcia cites us to no other authority beyond the now-reversed
Indiana Court of Appeals decision in Ward v. Carter. 156 Garcia
suggests that the Indiana Court of Appeals’ reasoning was
sound and that we should follow it. We disagree.
   In Griffith v. Nebraska Dept. of Corr. Serv., 157 this court
found that citizen taxpayers lacked standing to challenge the
director’s power over the lethal injection protocol. There, the
State acknowledged that a death row inmate would probably
have standing, and it even suggested that “a death row inmate
who would not have ‘receive[d] notice from the Attorney
General’s office that we will soon seek a death warrant’ could
assert a claim.” 158
   But the procedural posture of those cases is different in that
this is Garcia’s direct appeal. The Department of Correctional
Services is not a party to this litigation. There has been no
record created to effectuate a determination on the issue raised
by Garcia. We decline to further address the issue raised here
because we conclude that it is not yet justiciable. 159
   Garcia also argues that the presiding judge erred in not find-
ing that the death penalty was unconstitutional for violating
evolving standards of decency under the 5th, 8th, and 14th
Amendments to the U.S. Constitution, and article I, §§ 9, 11,
13, and 15, of the Nebraska Constitution. We have repeatedly
found this argument to be without merit. We noted in State
v. Jenkins 160:
      [In 2016,] Nebraskans had the opportunity to eliminate
      the death penalty and 61 percent voted to retain capital
156
    Ward v. Carter, 

 (Ind. App. 2017), reversed, Ward v. Carter,
    supra note 154.
157
    Griffith v. Nebraska Dept. of Corr. Servs., 

, 

    (2019).
158
    Id. at 301, 934 N.W.2d at 179 (Miller-Lerman, J., concurring).
159
    See Griffith v. Nebraska Dept. of Corr. 

.
160
    State v. Jenkins, 

, 

 (2019).
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      punishment. This vote demonstrates that the people of
      Nebraska do not view the death penalty as being con-
      trary to standards of decency. As the majority of the U.S.
      Supreme Court recently explained: That the Constitution
      allows capital punishment “doesn’t mean the American
      people must continue to use the death penalty. The same
      Constitution that permits States to authorize capital pun-
      ishment also allows them to outlaw it. But it does mean
      that the judiciary bears no license to end a debate reserved
      for the people and their representatives.” In Nebraska, the
      people have spoken.
         The U.S. Supreme Court has not found the death pen-
      alty to be unconstitutional in all cases. As the Fifth Circuit
      determined, “We are bound by Supreme Court prece­
      dent which forecloses any argument that the death pen-
      alty violates the Constitution under all circumstance[s].”
      Similarly, we do not find the death penalty to be a viola-
      tion of the Nebraska Constitution.
   And we recently rejected a claim that “Nebraska’s delega-
tion of the selection criteria and ultimate life-or-death deci-
sion to the three-judge panel violates the Eighth Amendment
to the U.S. Constitution and article I, § 9, of the Nebraska
Constitution” made in State v. Trail. 161
   There is no merit to Garcia’s contention that the death pen-
alty violates evolving standards of decency.
   Garcia next argues that the presiding judge erred in not
finding that the imposition of the death penalty in light
of referendum violations was contrary to 

(1) (Reissue 2016) and article II, § 1, of the
Nebraska Constitution.
   Some background is necessary.
         “In May 2015, the Nebraska Legislature passed 2015
      Neb. Laws, L.B. 268,—which abolished the death pen-
      alty in Nebraska—and then overrode the Governor’s
161
      State v. Trail, supra note 38, 312 Neb. at 901, 981 N.W.2d at 309.
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      veto of the bill. The Legislature adjourned sine die on
      May 29. Because L.B. 268 did not contain an emergency
      clause, it was to take effect on August 30.
         “Following the passage of L.B. 268, opponents of
      the bill sponsored a referendum petition to repeal it. On
      August 26, 2015, the opponents filed with the Nebraska
      Secretary of State signatures of approximately 166,000
      Nebraskans in support of the referendum. On October
      16, the Secretary of State certified the validity of suf-
      ficient signatures. Enough signatures were verified to
      suspend the operation of L.B. 268 until the referendum
      was approved or rejected by the electors at the upcom-
      ing election. During the November 2016 election, the
      referendum passed and L.B. 268 was repealed, that is, in
      the language of the constitution, the act of the Legislature
      was ‘reject[ed].’” 162
Since that time, several criminal defendants have relied upon
this set of facts to argue that their death sentences were
invalid. 163 We have rejected this argument on each occasion,
reasoning that because of the initiation of the referendum
proc­ess and the eventual approval of the referendum language,
the repeal of the death penalty as passed by the Legislature in
2015 Neb. Laws, L.B. 268, was rejected without ever having
taken effect.
   Garcia acknowledges this case law but notes, correctly, that
although we stated in Hargesheimer v. Gale 164 that the then-
Governor was not implicated as a sponsor under § 32-1405,
we have never determined whether the involvement of then-
Governor Pete Ricketts in the referendum process was a
162
    State v. Lotter, 

, 

 (2022),
    quoting State v. 

.
163
    See, State v. 

; State v. Torres, 

, 

 (2020); State v. Mata, 

, 

 (2019);
    State v. 

.
164
    Hargesheimer v. Gale, 

, 

 (2016).
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violation of the doctrine of separation of powers. Garcia cites
one case in support of this argument—State ex rel. Spire v.
Conway. 165 There, a tenured faculty member with Wayne State
College was elected to the Legislature. The Legislature, in
charge of the qualifications of its members, concluded that
this employment (of which the professor was on unpaid leave)
did not prevent him from taking his seat. We did not disturb
that finding directly, but concluded that the professor, even
when on unpaid leave, was employed by, and therefore a
member of, the executive branch. We further concluded that
the language of our constitution prohibited a member of one
branch of government from exercising the authority of another
and that thus, the professor, as a member of the executive
branch, could not simultaneously exercise the authority of the
legislative branch.
   We find Governor Ricketts’ actions during the referendum
process distinguishable. In Conway, the professor was undis-
putedly acting as a member of the legislative branch in his role
as a state senator. But the referendum process at issue here
is expressly reserved for the people 166 and is not a legislative
action at all, but instead sits outside of the three-branch struc-
ture. Even if we assume that Governor Ricketts was acting as
a member of the executive branch at all relevant times, he was
not exercising the authority of any other branch of govern-
ment. This assignment of error is without merit.
   Finally, we turn to Garcia’s assertion that the presiding
judge erred in not excluding victim impact statements request-
ing a specific outcome or characterizing the crime or the vic-
tim, in violation of the 5th, 8th and 14th Amendments to the
U.S. Constitution, and article I, §§ 9, 11, 13, and 15, of the
Nebraska Constitution.
   Victim impact information may be considered in sentenc-
ing a convicted murderer, because “‘“just as the murderer
165
      State ex rel. Spire v. Conway, 

, 

 (1991).
166
      See Neb. Const. art. III, § 3.
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should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and
in particular to his family.”’” 167 Nebraska’s capital sentenc-
ing statutes authorize the sentencing panel to consider “[a]ny
evidence at the sentencing determination proceeding which the
presiding judge deems to have probative value.” 168 And victim
impact statements are admissible in evidentiary hearings con-
ducted pursuant to § 29-2521(3), notwithstanding the fact that
the statute does not make specific reference to them. 169 There
is a substantive limitation on the admissibility of victim impact
information: a victim’s family members’ characterizations and
opinions about the crime, the defendant, or the appropriate
sentence may not be received in evidence. 170
   Garcia complains that the probation office sent out requests
for victim impact statements that specifically sought responses
that were inadmissible. This issue was raised and argued to the
district court. At that time, the court noted that part of its job
was to wade through admissible versus inadmissible evidence
like this and indicated that it would do so in this situation.
Garcia does not suggest that the court failed to do this, nor
is there any indication from the record that this inadmissible
information was considered in sentencing Garcia. This assign-
ment of error is without merit.

                    (d) Aggravating Factors
                    (i) Assignments of Error
   Garcia assigns that the presiding judge erred in (1) instruct-
ing the jury regarding various aggravating circumstances
and (2) not granting the Commission’s motion to correct the
aggravators prior to mitigation and weighing, and he further
167
    State v. Vela, 

, 

 (2010).
168
    § 29-2521(2).
169
    See State v. Galindo, 

, 

 (2009).
170
    State v. 

.
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assigns that the sentencing panel erred in (3) considering vari-
ous aggravating circumstances.
   In addition, Garcia assigns that his trial counsel was ineffec-
tive in (4) failing to request jury instructions specifying other
crimes committed under § 29-2523(1); (5) failing to request
jury instructions relating to overlap under State v. Williams 171
and State v. Stewart 172; (6) failing to object to the State’s argu-
ment that the order of the Brumback murders did not matter;
(7) failing to object to the State’s argument that the victims suf-
fered mental anguish; (8) arguing in closing that jurors should
“look to [their] religions” in reaching their decisions; and (9)
failing to research Nebraska’s system of capital punishment
and acquaint themselves with the aggravating circumstances
prior to the aggravation hearing.
                     (ii) Presiding Judge and
                     Sentencing Panel Errors
   In the three assignments of error regarding the aggravating
circumstances considered in his death sentences, Garcia argues
that the trial court erred (1) in not instructing the jury as to the
“crime” for which Garcia sought to conceal his identity, and
thus, the panel ought not to have considered aggravator (1)(b);
(2) in not finding that aggravators (1)(b) and (1)(e) overlapped;
and (3) with respect to aggravator (1)(d), by instructing the
jury as to the term “mental anguish,” which is not part of that
(or any) aggravator and, as such, was error.
                       a. Aggravator (1)(b)
   Before the sentencing panel and on appeal, Garcia suggests
that the jury instructions were erroneous and that the sentenc-
ing panel erred because the “predicate crime(s) for which
Garcia sought to conceal his identity” were not identified. 173
171
    State v. Williams, 

, 

 (1984).
172
    State v. Stewart, 

, 

 (1977), disapproved on
    other grounds, State v. Palmer, 

, 

 (1986).
173
    Brief for appellant at 420.
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Garcia further argues that contrary to the State’s argument, it
matters in what order the Brumbacks were killed.
   To the extent that Garcia suggests this court has previously
held that the predicate crime must be identified in the jury
instructions, this is without merit. We held in State v. Lotter 174
that “for subsection (1)(b) to apply, a defendant must commit
the murder in an effort to conceal some crime or to conceal
the identity of the perpetrator of some crime other than the
murder itself.” But this court has uncovered no authority
requiring a reference to the specific crime, and in fact, we
have repeatedly affirmed the application of aggravator (1)
(b) in the absence of such a specific instruction or identifica-
tion. 175 None of the case law to which Garcia cites stands for
that proposition.
   We find no merit to Garcia’s contention.
          b. Aggravators (1)(b) and (1)(e)—Overlap as
                   Prohibiting Finding of Both
   Garcia argues that on these facts there is overlap in the
facts supporting both aggravator (1)(b), murder to conceal the
identity of the perpetrator, and aggravator (1)(e), the defendant
killed another at the time he killed the victim. Garcia asserts
that this overlap is impermissible and that the sentencing panel
should not have considered aggravator (1)(b) when weighing
aggravating and mitigating circumstances.
   A review of our case law suggests this court first noted that
aggravating circumstances could not overlap in Stewart. 176 In
Stewart, we concluded that on the facts presented, a rob-
bery committed at the same time as a murder could not
fulfill both aggravators (1)(b) and (1)(c) (murder for pecu-
niary gain), noting that the aggravators were “separate and
174
    State v. Lotter, 

, 

 (1998),
    modified on denial of rehearing 

, 

 (1999).
175
    See, e.g, State v. 

; State v. Sandoval, supra note 122;
    State v. 

.
176
    State v. 

.
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distinct circumstances and should be construed so as not
to overlap.” 177
   A few years later, in Williams, we expanded on this subject:
         [The defendant] asserts that the sentencing court “over-
      lapped” statutory aggravating circumstances subsection
      (1)(b), “The murder was committed in an apparent effort
      to conceal the commission of a crime, or to conceal the
      identity of the perpetrator of a crime,” and subsection (1)
      (e), “At the time the murder was committed, the offender
      also committed another murder.” [The defendant] relies
      on State v. Stewart . . . “that subsections (1)(b) and (1)
      (c) are separate and distinct circumstances and should
      be construed so as not to overlap.” The record before
      us demonstrates that the aggravating circumstances
      described by subsections (1)(b) and (e) were not com-
      prised of the same facts and did not overlap. The aggra-
      vating circumstance of subsection (1)(b) existed because
      “the murder of Catherine M. Brooks was committed in
      an apparent effort to conceal the identity of the perpetra-
      tor of a crime,” while the aggravating circumstance of
      subsection (1)(e) existed because [the defendant] killed
      both Catherine M. Brooks and Patricia A. McGarry “at
      or about the same time.” The statutory aggravating cir-
      cumstances indicated in subsections (1)(b) and (e) were
      distinct from each other. The existence of the aggravat-
      ing circumstance described in subsection (1)(b) had no
      mutuality to the aggravating circumstance described in
      subsection (1)(e). Such independent existence of aggra-
      vating circumstances in this case prevents an overlapping
      of the statutory aggravating circumstances. [The defend­
      ant’s] claim of overlapping aggravating circumstances
      has no merit. 178
177
      Id. at 522, 

.
178
      State v. 

, 

, 

-
      42 (citation omitted).
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   The sentencing panel rejected Garcia’s overlap argument
simply by noting that it had the discretion to consider any
aggravators found by the jury, without touching on the conten-
tion that the jury ought not to have found both aggravators as
a result of the overlap.
   We find partial merit to Garcia’s argument, at least insofar
as the jury found both aggravator (1)(b) and aggravator (1)
(e). The State’s theory was that Roger was the target of the
killings and that Mary was killed in an effort to keep her
from disclosing the identity of the person who killed Roger.
Alternatively, the State argued that Mary was killed first and
that Roger was killed in an effort to keep him from disclosing
who killed Mary.
   When considered in this way, there is an overlap in facts.
The State does not suggest that there was some other crime
besides the murders—it explicitly argues that each victim was
killed so there were no witnesses left to the murder of the
other. These same facts set forth the basis for aggravator (1)
(e), that at the time the murder was committed another murder
was also committed. This is unlike the facts of Williams, where
one victim was sexually assaulted and then both victims were
killed. In Williams, the court explicitly found aggravator (1)(e)
as to both victims, but aggravator (1)(b) only as to the assault
victim. In other words, the sexual assault victim was killed so
that she could not disclose the identity of her attacker, while
another victim was killed at the same time, but not for any
identified reason.
   We find merit to the contention that on these facts there is
overlap in aggravators (1)(b) and (1)(e). The impact of this will
be discussed below.

                      c. Aggravator (1)(d)
   Garcia argues that the district court erred in instructing the
jury on the term “mental anguish” because it is not an element
of aggravator (1)(d) and thus was confusing to the jury.
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                        i. Mental Anguish
   Garcia’s argument is based on our decision in State v.
Sandoval. 179 There, we first addressed the term “mental
anguish” and its (lack of) place in our death penalty instruc-
tions. We noted that “‘[m]ental anguish,’ although included in
Nebraska’s pattern jury instructions, [did] not have any basis in
Nebraska law. Neither the courts nor the Legislature has used
the term ‘mental anguish’ as a part of . . . § 29-2523(1)(d).” 180
We continued:
         A jury instruction should correctly state the Nebraska
      law applicable to the issues in the case. Neb. Ct. R.
      § 6-801. Beginning with State v. Rust, . . . we have held
      that “especially heinous, atrocious, or cruel” includes
      murders involving torture, sadism, sexual abuse, or
      the imposition of extreme suffering, or where the mur-
      der was preceded by acts “performed for the satisfac-
      tion of inflicting either mental or physical pain or that
      pain existed for any prolonged period of time.” . . .
      “‘[H]einous, atrocious, or cruel’” was to be directed to
      the “conscienceless or pitiless crime which is unneces-
      sarily torturous to the victim.” . . .
         In the three decades since Rust, this court has not
      strayed from this definition. . . .
         ....
         In addition to the traditional definition of “especially
      heinous, atrocious, or cruel,” pattern jury instruction
      NJI2d Crim. 10.4 added “mental anguish” to the first
      prong of aggravator (1)(d). The comment to this instruc-
      tion cites Walton v. Arizona . . . as the source of this
      language. However, neither the Nebraska Legislature nor
      Nebraska courts have adopted “mental anguish” as a
      part of aggravator (1)(d). Although we acknowledged
      the addition of “mental anguish” to the definition of the
179
      State v. Sandoval, supra note 122.
180
      Id. at 351, 788 N.W.2d at 211.
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     aggravator in Gales II, its inclusion was not raised in that
     appeal and we did not consider its propriety. Now, given
     the opportunity to review the issue, we conclude that
     the inclusion of “mental anguish” was improper. Mental
     anguish is not a component of aggravator (1)(d), and it
     was error to include it in the instruction.
        Even if the inclusion of “mental anguish” was sup-
     ported by Nebraska law, we conclude that mental anguish
     defined as “a victim’s uncertainty as to his or her ultimate
     fate” is not sufficiently narrow such that it would apply
     only to a subclass of defendants. . . . Whenever a State
     seeks to impose the death penalty, the discretion of the
     sentencing body “‘must be suitably directed and limited
     so as to minimize the risk of wholly arbitrary and capri-
     cious action.’” . . . The sentencing authority’s discretion
     must be “‘guided and channeled by requiring examination
     of specific factors that argue in favor of or against impo-
     sition of the death penalty.’” . . .
        Although the U.S. Supreme Court upheld “‘a victim’s
     uncertainty as to his [or her] ultimate fate’” as a consti-
     tutional definition in Walton, . . . most, if not all, victims
     who are conscious before their death would suffer mental
     anguish as to the uncertainty of their ultimate fate. All
     victims threatened by a deadly weapon would have uncer-
     tainty as to their ultimate fate. Accordingly, we conclude
     that “a victim’s uncertainty as to his or her ultimate fate”
     is not a meaningful distinction between cases that warrant
     the death penalty and those that do not. Mental anguish as
     defined is an improper ground for finding the existence of
     aggravator (1)(d). 181
   For the reasons plainly stated in Sandoval, the instruction
as given to the jury in this case, which instructed the jury
that it could find that the murder was “especially heinous,
181
      Id. at 351-54, 788 N.W.2d at 211-12 (citations omitted).
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atrocious, or cruel” if the “defendant inflicted serious mental
anguish” on the victims and further defined “mental anguish,”
was in error.

                     ii. Exceptional Depravity
   This does not end our inquiry. In the past, this court has
approached an incorrect instruction on this aggravator in a few
ways, dependent on the nature of the aggravator as a whole.
We have interpreted aggravator (1)(d) in the disjunctive, where
the first prong, “heinous, atrocious, [or] cruel,” focuses on the
experience of the victim, while the second prong, “exceptional
depravity,” focuses on the defendant’s state of mind. 182
   In Sandoval, the issue was the improper mental anguish
instruction and its impact on the defendant’s death sentences.
Relying on State v. Reeves (Reeves III), 183 we reviewed the
giving of this instruction in Sandoval for harmless error and
found that it was harmless:
         It is of particular importance that § 29-2522 instructs
      the sentencing panel to consider whether sufficient miti-
      gating circumstances exist which approach or exceed
      the weight given to the aggravating circumstances. In
      Reeves III, . . . we could not conclude that the district
      court’s error of failing to consider the statutory mitiga-
      tor of intoxication was harmless, because “[w]e [did]
      not know what weight the judges may have given this
      circumstance if they had found it to exist.” Had it con-
      sidered the mitigator of intoxication, the Reeves III court
      could have determined that the weight of that mitigator
      approached or exceeded the weight the court gave to the
      aggravators. Therefore, failure to consider the mitigator
      was not harmless error.
         Unlike Reeves III, we know the weight the sentenc-
      ing panel attributed to the aggravators and mitigators.
182
      State v. Moore, 

, 

 (1982).
183
      State v. Reeves, 

, 

 (1991).
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         It stated that each aggravator was “significant and sub-
         stantial” and that “there are no statutory mitigating
         circumstances to weigh against the four aggravating
         circumstances and only one nonstatutory mitigating cir-
         cumstance to which the panel gives little weight.”
             Absent consideration of aggravator (1)(d) with respect
         to each of the five counts of murder, the sentencing
         panel would have been left with three “significant and
         substantial” aggravators establishing that [the defendant]
         killed five victims to conceal his identity in the commis-
         sion of a carefully planned bank robbery and, in doing
         so, placed three other people at great risk of death. The
         panel would have weighed these three “significant and
         substantial” aggravators against no statutory mitigators
         and only one nonstatutory mitigator—that [the defendant]
         suffered from a bad childhood—to which the panel gave
         little weight.
             Knowing that the sentencing panel gave little weight
         to the lone nonstatutory mitigator it weighed against
         the aggravators, we are convinced beyond a reasonable
         doubt that the sentencing panel would have imposed
         sentences of death even in the absence of a finding that
         the murders were exceptionally heinous, atrocious, cruel,
         or manifested exceptional depravity. Accordingly, the
         consideration of aggravator (1)(d) was harmless error.
         It would be futile to vacate the sentences of death and
         require the sentencing panel to reweigh three “signifi-
         cant and substantial” aggravators against the lone non-
         statutory mitigator, to which the panel gave little weight.
         Because the error is harmless, it is not necessary to
         vacate the sentences of death and remand the cause, as
         was required in Reeves IV. 184
184
      State v. Sandoval, supra note 122, 280 Neb. at 362-63, 788 N.W.2d at
      217-18 (citation omitted).
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  But we did not reach a harmless error analysis in State v.
Torres, 185 where the mental anguish instruction was also erro-
neously considered:
         We agree with [the defendant] insofar as he argues
     that mental anguish should have not been considered by
     the sentencing panel, and thus, the findings made by the
     panel to that end were erroneous. A jury may not consider
     a victim’s mental anguish in finding the existence of the
     aggravating circumstance set forth in § 29-2523(1)(d).
     But unlike in Sandoval, where the error resulted in a find-
     ing that the aggravator was not established, in this case,
     the failure of this one finding does not mean the failure of
     the entire aggravator.
         Sandoval dealt with an erroneous jury instruction with
     regard to mental anguish. The jury in Sandoval was asked
     to determine only whether the various aggravators were
     established and did not provide any additional factual
     findings. Thus, where the jury instruction was incorrect,
     it was not possible for this court to determine whether
     the jury’s finding of the aggravator had been based upon
     the incorrect instruction and the entire aggravator had
     to be disregarded.
         But aggravator (1)(d) provides as an aggravating cir-
     cumstance that “[t]he murder was especially heinous,
     atrocious, cruel, or manifested exceptional depravity by
     ordinary standards of morality and intelligence.” This
     aggravating circumstance contains two separate disjunc-
     tive components which may operate together or indepen-
     dently of one another. In Sandoval, the jury instruction
     and verdict form did not permit us to determine upon
     which prong the jury’s finding of aggravator (1)(d) had
     been based—thus, we could not conclude that the jury’s
     finding had not been based on the inclusion of “‘men-
     tal anguish’” in the court’s instruction on “‘especially
185
      State v. 

, 283 Neb. at 176-77, 812 N.W.2d at 243-44.
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      heinous, atrocious, or cruel.’” In this case, however, the
      sentencing panel made detailed findings and explained
      that both prongs of the aggravator had been proved.
      As a result, [the defendant] was not prejudiced by the
      sentencing panel’s erroneous understanding of aggrava-
      tor (1)(d)’s “especially heinous, atrocious, [or] cruel”
      provision so long as the evidence was sufficient to sup-
      port the panel’s finding that the murder exhibited excep-
      tional depravity.
   We then addressed whether the State had met its burden to
prove the exceptional depravity prong of aggravator (1)(d) and
concluded that it had.
   Garcia’s case is similar to Torres, in that both prongs of
aggravator (1)(d) were implicated. So, like Torres, we can con-
sider whether there was evidence to support the finding that the
murder was exceptionally depraved:
      “Exceptional depravity” pertains to the state of mind
      of the actor and may be proved by or inferred from the
      defendant’s conduct at or near the time of the offense. .
      . . This court has identified specific narrowing factors that
      support a finding of exceptional depravity. These five
      factors are: (1) apparent relishing of the murder by the
      killer, (2) infliction of gratuitous violence on the victim,
      (3) needless mutilation of the victim, (4) senselessness of
      the crime, or (5) helplessness of the victim. 186
   In addition, this court 187 and the Eighth Circuit Court of
Appeals 188 have approved of another narrowing factor that
was alleged in this case: that “[t]here was a cold, calcu-
lated planning of [the victims’] death[s], as exemplified by
186
    State v. Sandoval, supra note 122, 280 Neb. at 354, 788 N.W.2d at 212
    (citation omitted).
187
    State v. Moore, 

, 

 (1996), disapproved on
    other grounds, State v. Reeves, 

, 

 (2000);
    State v. Moore, supra note 182.
188
    Moore v. Kinney, 

 (8th Cir. 2003) (en banc).
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experimentation with the method of causing the death or
by the purposeful selection of [the victims] on the basis of
specific characteristics.” “[O]nly . . . those elements that are
supported by the pleadings and sufficient evidence” should be
submitted. 189
   In Sandoval, the jury was instructed on whether the defend­
ant apparently relished the murders. As noted above, this court
ultimately found that the consideration of prong 1 (“especially
heinous, atrocious, [or] cruel”) was harmless. We addressed
exceptional depravity in dicta, suggesting that the facts were
insufficient to support the aggravator.
   In Sandoval, the State presented evidence that the defend­
ant was smiling during the murders and after being appre-
hended. A witness who unknowingly interrupted the robbery
and murders in progress testified that the defendant smiled at
her from behind the counter as he stood amid the bodies of
his victims. Later that day, when an investigator photographed
the defend­ant as he was booked into jail for the murders, the
defendant smiled broadly for the photograph. We questioned
whether this evidence was sufficient to support the jury’s find-
ing of this aggravator; however, we did not need to further
consider the issue, because we concluded that the jury’s find-
ing of aggravator (1)(d) was harmless error.
   We also considered the facts with respect to exceptional
depravity in Torres:
         The evidence in this case was sufficient to show
      beyond a reasonable doubt the presence of this aggrava-
      tor with regard to Hall’s death. A “helpless” victim is
      readily understood to be one who is unable to defend one-
      self, or to act without help. The evidence establishes that
      Hall was bound and gagged when he was shot, showing
      not only that Hall was helpless, but that the murder was
      senseless because Hall posed no threat to [the defendant].
      And Hall was not simply shot to death—he had been
189
      NJI2d Crim. 10.4.
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      gagged and strangled to the point of asphyxiation, dem-
      onstrating the infliction of gratuitous violence. 190
   In State v. Joubert, 191 we affirmed the finding of the sen-
tencing panel that the defendant’s actions were exceptionally
depraved, noting that the victims had been manually strangled
and then stabbed multiple times. We observed that the evi-
dence showed that except for the identity of the victims, the
murders had been planned well in advance—driven by the
defendant’s need for intellectual and sexual curiosity—and that
the victims were chosen based on the defendant’s perception
of whether the victim was defenseless or prepubescent. We
also affirmed the finding that the murders were heinous, atro-
cious, and cruel.
   And we recently agreed in Trail that the murder of the
victim “reflected cold, calculated planning to find and kill a
helpless victim to satisfy [the defendant’s] curiosity and sexual
proclivities” and that the “carvings . . . and other acts of stra-
tegic mutilation demonstrated he relished the murder” and held
“‘no regard’” for the victim’s life. 192 As such, we agreed with
the conclusion that the defendant in Trail acted with excep-
tional depravity.
   The State’s argument during Garcia’s aggravation hearing
was focused on the heinous, atrocious, or cruel prong. Still,
the jury was instructed as to four of the six regularly employed
factors with respect to exceptional depravity: relishing the
murders; inflicting gratuitous violence during the murders;
needless mutilation; and a cold, calculated plan. The court,
in response to Garcia’s motion asking it to disregard certain
aggravators as found by the jury, explicitly concluded that the
State had met its burden on “exceptional depravity.”
   Finally, there was evidence at trial to support that prong
of the aggravator. In particular, there was evidence that the
190
    State v. 

, 283 Neb. at 178, 812 N.W.2d at 244-45.
191
    State v. Joubert, 

, 

 (1986).
192
    State v. Trail, supra note 38, 312 Neb. at 906, 981 N.W.2d at 312.
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carotid arteries of all four victims were severed; in addition,
three of the four victims had severed jugular veins. The knives
used to kill Hunter and Sherman were left in the victims’
necks. Roger was killed by a gunshot wound but was also
stabbed. Mary’s body showed defensive wounds and other
stab marks unrelated to the wounds that killed her, including
evidence that one of her thumbs was nearly severed.
   Extensive evidence was presented as to the State’s theory of
the case—that all of the victims were killed due to their con-
nection to Creighton’s pathology department that had, in 2000,
terminated Garcia from its residency program. The State’s
theory alleged that Garcia traveled to Nebraska from Louisiana
in 2008 to kill Hunter and Sherman and that 5 years later, in
2013, he returned to Nebraska, this time from Indiana, to kill
the Brumbacks.
   While the jury was erroneously instructed as to mental
anguish, it was also instructed as to exceptional depravity.
The district court specifically found that the State has met
its burden with respect to exceptional depravity. And we find
that the evidence presented clearly supported a finding of
the exceptional depravity prong of aggravator (1)(d), show-
ing at a minimum that Garcia inflicted gratuitous violence
and needlessly mutilated the victims and that he had a cold,
calculated plan and purposefully selected the victims in line
with that plan. We are confident beyond a reasonable doubt
that the jury would have found this aggravator even in the
absence of the instruction regarding mental anguish.
                 d. Harmless Error Analysis
   [60] We turn to the issue of whether the consideration by
the sentencing panel of aggravator (1)(b) as to the Brumback
murders was harmless. If an error is harmless beyond a rea-
sonable doubt in a capital sentencing case, an appellate court
should affirm the sentence of the district court. 193 If the error
193
      See State v. Sandoval, supra note 122.
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is not harmless, we cannot reweigh the aggravators and miti-
gators and resentence a defendant; rather, we must remand the
matter to the district court for resentencing. 194
   In Sandoval, we concluded that the erroneous consider-
ation of aggravator (1)(d) was harmless because the sentenc-
ing panel’s order was sufficiently detailed with respect to the
weight accorded the various aggravators and statutory mitiga-
tor. 195 We lack such a specific order in this case.
   But this is not dispositive here. Based on our analysis
above, the only aggravator that must be disregarded is aggra-
vator (1)(b) with respect to the Brumback murders (because
it overlaps with aggravator (1)(e)). The sentencing panel sen-
tenced Garcia to death for the Hunter/Sherman murders, where
aggravators (1)(d) and (1)(e) were found, but aggravator (1)
(b) was not. We therefore know that the facts of those murders
were sufficient for the sentencing panel to ultimately conclude
that death sentences were appropriate.
   Because both of those aggravators were correctly found,
Garcia has been sentenced to death on those murders. Whether
his death sentences as to the Brumback murders remain stand-
ing is largely semantics—he can only be executed once.
Moreover, the theory of the State as to these murders was
that they were part and parcel of the same revenge scheme,
and the evidence shows many similarities between the crimes.
As such, we are confident beyond a reasonable doubt that the
sentencing panel would have sentenced Garcia to death for
the Brumback murders even if only two aggravators, and not
three, had been found by the jury.
   There was no error in the sentencing panel’s consideration
of aggravator (1)(d), but the panel did err in considering
aggravator (1)(b). Any error was harmless, however, because
Garcia was sentenced to death on the basis of a jury’s find-
ing of two aggravators in the Hunter/Sherman murders. Those
194
      See 

195
      

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aggravators support Garcia’s death sentences and are enough
to support Garcia’s total sentence. In addition, given the simi-
larity in the four murders, any consideration of an inapplicable
aggravator (1)(b) in the Brumback murders was harmless. We
accordingly find Garcia’s three assignments of error to the pre-
siding judge and sentencing panel to be without merit.
              (iii) Ineffective Assistance of Counsel
   Garcia first assigns that his trial counsel was ineffective in
failing to request jury instructions specifying the other crime
committed under § 29-2523(1). We found above that Nebraska
law does not require such an instruction. As such, trial counsel
was not deficient in seeking such an instruction and we find no
merit to this assignment of error.
   Garcia next assigns that his trial counsel was ineffective
in failing to request jury instructions relating to overlaps. We
have concluded above that any error arising from such overlap
was harmless and, as such, not prejudicial. There is no merit to
this assignment of error.
   Garcia also assigns that his trial counsel was ineffective in
failing to object to the State’s assertion that the order of the
Brumback murders did not matter. Specifically, Garcia sug-
gests that if his intent was to murder Roger, then in order to
conceal his identity as the perpetrator of that murder, he must
kill Roger, then Mary. But there is no such temporal require-
ment in this case. There is nothing to suggest that Garcia
could not have first killed Mary in an attempt to conceal his
identity as the person who was moments away from also kill-
ing Roger.
   Because there was no error in the State’s assertion regard-
ing the order of the Brumback murders, counsel was not defi-
cient in failing to object. There is no merit to this assignment
of error.
   Garcia next argues that trial counsel was ineffective in fail-
ing to object to the State’s contention that the victims suffered
mental anguish. We concluded above that this was error, but
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that it was harmless, and that therefore, Garcia suffered no
prejudice. There is no merit to this assignment of error.
   Garcia assigns that his trial counsel was ineffective in tell-
ing jurors that they should “look to [their] respective religions
and God” when making a determination about the aggravating
circumstances. Garcia further directs us to case law in which
the prosecution 196 and the court 197 made religious references
before a jury. He argues that it is improper to make reference to
such beliefs because to do so appeals to the jury’s passions and
prejudices and seeks to inflame or misinform the jury.
   But it was not the State or the court who made these
statements—it was Garcia’s counsel. We neither endorse nor
reject the statement, but Garcia has a Sixth Amendment
right to present his own defense. 198 While that right is not
unfettered, 199 we find no prohibition in our case law against
a defendant making statements which essentially seek to
remind the jury that it is not necessarily bound to find aggra-
vating factors if it chooses not to do so. While a defendant
might not be entitled to an instruction on jury nullification,
a jury is still entitled to nullify a verdict 200—and that is
effectively what Garcia’s counsel was doing in making this
argument to the jury. Counsel’s conduct was not prejudicial,
and thus, there is no merit to Garcia’s assertion that counsel
was ineffective.
   Finally, Garcia argues that counsel was ineffective in fail-
ing to research Nebraska’s system of capital punishment prior
to Garcia’s aggravation hearing. We find that Garcia cannot
show that he was prejudiced by any such deficiency. As we
have concluded, there was no error in the jury’s finding of
196
    Cunningham v. Zant, 

 (11th Cir. 1991).
197
    U.S. v. Ornelas-Rodriguez, 

 (5th Cir. 1994).
198
    See, e.g., McKaskle v. Wiggins, 

, 

, 

 (1984).
199
    State v. Clausen, 

, 

 (2020).
200
    See State v. Green, 

, 

 (1991).
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the aggravating factors and the sentencing panel’s consider-
ation of those factors. There is no merit to this assignment
of error.

                    (e) Mitigating Factors and
                        Weighing of Factors
                     (i) Assignments of Error
   Garcia makes several assignments of error relating to the
mitigation hearing. He assigns that the sentencing panel erred
in (1) not finding and affording more weight to various mitigat-
ing circumstances. In addition, he assigns that his trial counsel
was ineffective in (2) failing to research and gather mitigating
evidence from the outset of the case and (3) failing to facilitate
the work of successor counsel.

                   (ii) Sentencing Panel Error
    We turn to Garcia’s assignment of error alleging that the
sentencing panel erred in not affording more weight to other
mitigating circumstances, both statutory and nonstatutory, and
in turn not finding that the mitigating factors approached or
exceeded the weight of the aggravating circumstances and jus-
tified the death penalty.
    Garcia first argues that § 29-2523(2)(b) should have been
found applicable and given some weight. That statute pro-
vides that “[t]he offender acted under unusual pressures or
influences . . . .” 201 Garcia contends that he felt pressure to
succeed in medicine and that “without feeling this pressure,
Garcia would not have persisted at his [S]isyphean task of
continuing to pursue medicine despite his apparent inability
to succeed. And, had he abandoned medicine in favor of a
more suitable career path, he would not have felt repeatedly
thwarted by the Creighton Pathology Department.” 202
201
      § 29-2523(2)(b).
202
      Brief for appellant at 433.
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   Our de novo review of the record affirms the sentencing
panel’s failure to find such a factor applicable. We reiterated in
Lotter that the “‘provision contemplates only outside pressures,
not those created by the defendant’s own acts.’” 203 Garcia
chose to remain in the medical field and continue to place
himself under the pressures he perceived from that choice. This
mitigating circumstance is not applicable on these facts.
   Garcia also argues that the panel erred in rejecting the miti-
gating circumstances of § 29-2523(2)(c) and (2)(g). Subsection
(2)(c) provides that “[t]he crime was committed while the
offender was under the influence of extreme mental or emo-
tional disturbance,” and subsection (2)(g) states that “[a]t the
time of the crime, the capacity of the defendant to appreci-
ate the wrongfulness of his or her conduct or to conform his
or her conduct to the requirements of law was impaired as a
result of mental illness, mental defect, or intoxication.”
   The sentencing panel, in concluding that § 29-2523(2)(c)
and (2)(g) did not apply, noted that it was not supported by
the evidence. In our de novo review, we agree. While there
was evidence that Garcia was an alcoholic, the record shows
that the impact of that alcoholism on Garcia’s functioning
varied over time. Moreover, we note that there was no evi-
dence that Garcia was intoxicated at the time of either the
2008 or 2013 murders. We find persuasive the finding of the
panel that these murders were separated by 5 years, “during
which time [Garcia] worked full time as a physician, sup-
ported himself, purchased a home[,] and demonstrated he was
capable of being a law abiding citizen.” The record further
showed that Garcia was raised in a home with an attentive
father and mother and a positive relationship with his family.
While he struggled some during his educational career, his IQ
was average and he graduated from high school, college, and
medical school. In short, our review of the record does not
support a conclusion that Garcia was under the influence of
203
      State v. Lotter, supra note 174, 255 Neb. at 515, 

.
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an “extreme mental or emotional disturbance” under subsec-
tion (2)(c), or any impairment of Garcia’s ability to appreciate
the wrongfulness of his conduct or conform his conduct to the
requirements of law under subsection (2)(g).
                (f) Balancing and Proportionality
                     (i) Assignments of Error
   Garcia argues on appeal several assignments relating to the
presiding judge and sentencing panel’s balancing and weighing
of aggravating and mitigating factors in reaching its eventual
decision to sentence Garcia to death. Garcia assigns that the
sentencing panel erred in (1) not finding that the mitigating
factors approached or exceeded the weight of the aggravating
factors; (2) finding that his death sentences were proportional
in this instance; (3) considering only first degree murder sen-
tences that resulted in death sentences when conducting its
proportionality review; and (4) concluding, after conducting
its balancing of aggravating and mitigating circumstances, that
Garcia’s case merited death.
                         (ii) Balancing
   Our de novo review of the record does not suggest that the
sentencing panel erred in its weighing of aggravating and miti-
gating factors. Though as discussed above, the jury found an
additional aggravator, such finding was harmless. We conclude
that the two aggravators as to each of the four murder convic-
tions outweigh the one statutory mitigator—that Garcia had no
significant criminal history—along with the limited evidence
of non-statutory mitigation.
                      (iii) Proportionality
   We find that the sentencing panel did not err with regard to
its proportionality analysis. Garcia argues that the panel erred
in considering only first degree murder cases that resulted in
the death penalty as opposed to considering all first degree
murder cases. And Garcia contends that the panel erred in
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finding that his death sentences were proportional to other
death sentences.
    First, we consider and reject Garcia’s contention that we
should consider all first degree murder cases and not just those
that resulted in the death penalty. This court held in State v.
Palmer 204 that it was appropriate to consider only those cases
where the death penalty had been imposed because in such
cases, an aggravating factor has been found, and that only such
cases are “‘similar’” for purposes of the imposition of the
death penalty. We have continued to apply this rule since that
time, as recently as in Trail, 205 and we decline to reconsider
it today.
    Moreover, we conclude that the imposition of a death sen-
tence in this case is proportional to other cases where the
death penalty has been imposed. Our proportionality review,
required by § 29-2521.03, is designed to ensure that no sen-
tence imposed shall be greater than those imposed in other
cases with the same or similar circumstances and that, as noted
above, such review should include only those cases in which
the death penalty was imposed. 206
    The evidence here shows that Garcia traveled to Nebraska
from Louisiana in 2008, took certain precautions so as not to
be identified, then murdered two people, after which he left
the state. The evidence further shows that Garcia waited nearly
5 years, during which time he attempted to further his educa-
tion, obtained employment, and bought a house and a vehi-
cle—in short, he lived a normal life. But in 2013, Garcia began
investigating individuals connected to his time at Creighton,
before returning to Nebraska to murder two more people.
Garcia did so in an effort to exact revenge on Creighton’s
204
    State v. Palmer, 

, 

 (1986),
    overruled on other grounds, State v. Chambers, 

, 

 (1989).
205
    See State v. Trail, supra note 38.
206
    Id.
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pathology department, because it had terminated him from
its residency program. In effecting these murders, he severed
the jugular veins of all four of his victims, the carotid arteries
of three of his victims, left the knives in at least two of his
victims, both stabbed and shot one victim, and left multiple
puncture marks on another.
   We have reviewed our relevant decisions on direct appeal
from other cases in which the death penalty was imposed and
do not find the imposition of the death penalty is a greater
penalty than the sentences imposed in other cases with similar
circumstances. For example, in Trail, 207 and in Joubert, 208 we
affirmed convictions for murders that the evidence showed
were “coldly planned,” in a manner similar to this case. And
in Trail, Joubert, and State v. Mata, 209 the death penalty was
imposed in cases involving instances of gratuitous violence and
unnecessary mutilation. The crimes committed against Hunter,
Sherman, Roger, and Mary were utterly senseless and cruel.
The sentences of death in this case are not excessive or dispro-
portionate to the penalty imposed in similar cases. We uphold
the sentencing panel’s imposition of the death penalty.
                        (g) Conclusion
   We conclude that the sentencing panel erred in considering
aggravator (1)(b) with respect to the Brumback murders, but
that this error was harmless. Otherwise, we find no error in
the imposition of the death penalty.
             12. Broad-Scale Ineffectiveness
                   and Procedural Bar
                  (a) Assignments of Error
  We turn to Garcia’s final assignments of error. Garcia assigns
on appeal that (1) the cumulative effect of trial counsel’s
207
    Id. at 907, 981 N.W.2d at 313.
208
    State v. 

, 224 Neb. at 432, 399 N.W.2d at 251.
209
    State v. Mata, 

, 

 (2008).
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ineffectiveness constructively denied him assistance of counsel
and (2) this court should abolish the procedural bar in postcon-
viction motions.
                    (b) Standard of Review
   [61] Whether cumulative error deprived a criminal defendant
of his or her Sixth Amendment right to a trial by an impartial
jury presents a question of law to be reviewed de novo. 210
                      (c) Cumulative Error
   We turn first to Garcia’s assignment regarding cumulative
error. Although one or more trial errors might not, standing
alone, constitute prejudicial error, their cumulative effect may
be to deprive the defendant of his or her constitutional right to
a public trial by an impartial jury. 211
   But we found no merit to any of Garcia’s assigned errors.
We concluded that approximately half of Garcia’s claims of
ineffective assistance are either without merit or not alleged
with sufficient particularity. Nor are we able, on direct appeal,
to resolve Garcia’s remaining claims of ineffective assistance
of trial counsel. Those unresolved claims cannot form the basis
for a claim of cumulative error. Garcia’s cumulative error argu-
ment is without merit.
                       (d) Procedural Bar
   Garcia asserts that this court should “abandon its precedent
concluding that a party cannot raise an issue in a postconvic-
tion motion if he or she could have raised that same issue on
direct appeal.” 212 We recently set forth this underlying rule
with approval in Lotter. 213 We decline Garcia’s request that
we reconsider our procedural bar, and we find Garcia’s final
assignment of error to be without merit.
210
    State v. Anders, supra note 25.
211
    Id.
212
    Brief for appellant at 461.
213
    State v. Lotter, supra note 162.
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                      V. CONCLUSION
   We cannot determine on direct appeal whether counsel was
ineffective in certain regards. We otherwise affirm Garcia’s
convictions and sentences.
                                                 Affirmed.