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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

State of Nebraska, appellee, v. Jose J. 

Santos-Romero, appellant.

___ N.W.2d ___

Filed May 10, 2022. No. A-21-389.

1. Juries: Waiver. A defendant’s express agreement or consent is no 

longer required to waive the right to have the jury sequestered after the 

case has been submitted to it.

2. Records: Appeal and Error. A party’s brief may not expand the evidentiary record, nor may it expand an appellate court’s transcript.

3. ____: ____. It is incumbent upon an appellant to supply a record which 

supports his or her appeal.

4. 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.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed.

Jim K. McGough and Mark J. Foxall, of McGoughLaw, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Jose J. Santos-Romero appeals his convictions of two 

counts of first degree sexual assault of a child. On appeal, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/17/2022 01:05 AM CDT
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

he claims that the district court failed to sequester the jury 

and challenges the procedure for obtaining privileged mental 

health records. He also asserts that he received ineffective 

assistance of trial counsel in two respects. We affirm.

BACKGROUND

In November 2019, C.G., then age 12, disclosed that her 

mother’s boyfriend, Santos-Romero, had sexually assaulted her. 

Santos-Romero was ultimately charged with two counts of first 

degree sexual assault of a child. Prior to trial, Santos-Romero 

filed a motion pursuant to the procedure the Nebraska Supreme 

Court set forth in State v. Trammell, 231 Neb. 137, 435 

N.W.2d 197 (1989), requesting an order requiring the State 

to make available to the court for an in-camera inspection all 

documents prepared by C.G.’s therapist in treatment of her. 

After holding a hearing, the district court granted the motion 

and ordered the State to make available to the court for an 

in-camera inspection the materials outlined in the motion.

A jury trial commenced in October 2020. The evidence generally revealed that in the summer of 2019, when C.G. was 12 

years old and Santos-Romero was 41 years old, he subjected 

her to sexual penetration on several occasions.

The parties finished presenting evidence just before lunch 

on October 20, 2020. The court informed the jurors that they 

would get an extended lunch period so it could finalize the jury 

instructions with the attorneys and told them that it would read 

the instructions to them after closing arguments. Thus, the court 

asked the jurors to return at 2 p.m., “and hopefully[,] we’ll all 

be hearing closing arguments from both sides. And then if we 

have some time, I’ll give you some — the jury instructions, but 

you won’t begin to decide this case until tomorrow morning at 

9 o’clock, okay?”

During the lunch break, outside the presence of the jury, 

the court reviewed the jury instructions with the parties, and 

once the jury returned from lunch, closing arguments were 

given. After closing arguments, the court read the first 14 of 

15 jury instructions and dismissed the jury at 3:44 p.m. to 
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

return the following day at 9 a.m. for the final jury instruction 

and to begin deliberating.

The case was submitted to the jury at 9:21 a.m. on October 

21, 2020, and the jury reached its verdicts at 2:20 p.m., finding 

Santos-Romero guilty of both counts. He was sentenced to 25 

to 30 years’ imprisonment for each conviction, with the sentences to run consecutively. Santos-Romero timely appeals.

ASSIGNMENTS OF ERROR

Santos-Romero assigns that the district court erred in (1) 

failing to sequester the jury after the case had been submitted 

and (2) violating his Sixth Amendment right to confrontation 

and right to a fair trial. He also assigns that his trial counsel 

was ineffective in failing to investigate the case and limiting 

his defense.

ANALYSIS

Jury Sequestration.

Santos-Romero first argues that the district court erred in 

failing to sequester the jury after the case was submitted. We 

find that the jury was sequestered from the time the case was 

submitted to it until it reached its verdicts; therefore, we reject 

this assignment of error.

[1] Nebraska law provides that in a criminal case, when a 

case is finally submitted to the jury, its members must be kept 

together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the 

court. Neb. Rev. Stat. § 29-2022 (Reissue 2016). A defendant’s 

express agreement or consent is no longer required to waive 

the right under § 29-2022 to sequester the jury. State v. Collins, 

281 Neb. 927, 799 N.W.2d 693 (2011).

In the present case, the parties concluded presenting evidence just before lunch on October 20, 2020. After the jury 

returned from an extended lunch break, closing arguments 

were given, and the court read the first 14 of 15 jury instructions and dismissed the jury to return the following morning 

for the final jury instruction and to begin deliberating.
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

The final jury instruction indicates that the case was submitted to the jury at 9:21 a.m. on October 21, 2020, and the record 

shows that the jury reached its verdict at 2:20 p.m. The jury 

remained together from the time of submission until it reached 

its verdicts approximately 5 hours later. Thus, the jury was 

sequestered as required by § 29-2022.

Santos-Romero also challenges the procedure the court used 

in releasing the jury the previous night and completing its 

recitation of the jury instructions the following morning before 

submitting the case to the jury. He relies on Neb. Rev. Stat. 

§ 29-2016 (Reissue 2016), which provides the order of procedure for jury trials, including that after closing arguments are 

concluded, the court “shall immediately and before proceeding 

with other business charge the jury.” He claims that the court’s 

procedure here violated this requirement and intentionally circumvented the need to sequester the jury. However, he did not 

assign this issue as error, nor did he object to this procedure at 

trial. We therefore find no reversible error related to sequestration of the jury.

Procedure for Access to 

Mental Health Records.

Santos-Romero asserts that the procedure the Supreme Court 

established in State v. Trammell, 231 Neb. 137, 435 N.W.2d 

197 (1989), for obtaining privileged medical records violated 

his right to confrontation and right to a fair trial. Our record 

reveals that Santos-Romero filed a motion under Trammell

for an in-camera review of C.G.’s mental health records and 

that the district court ordered the State to produce the records 

for that in-camera review. The record does not reveal, however, whether the State complied with that order, whether an 

in-camera review was conducted, whether any records were 

ordered to be released to Santos-Romero, or whether any 

records were withheld from him.

[2,3] In his brief, Santos-Romero claims that the district 

court released 19 pages of therapy records to him. A party’s 

brief may not expand the evidentiary record, nor may it 
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

expand this court’s transcript. Aflague v. Luger, 8 Neb. App. 

150, 589 N.W.2d 177 (1999). Because our record contains no 

information following the court’s order requiring the State 

to submit the records for in-camera review, we are unable 

to determine whether Santos-Romero’s rights were violated. 

It is incumbent upon an appellant to supply a record which 

supports his or her appeal. State v. Custer, 292 Neb. 88, 871 

N.W.2d 243 (2015). We therefore reject this argument.

Santos-Romero argues that the process set forth in State 

v. Trammell, supra, is fundamentally unfair to a defendant 

because there is no oversight of the district court’s action 

in determining what, if any, records should be released to a 

defendant. He states that it is unknown to a defendant, and 

will be unknown to an appellate court, what records a district 

court receives and reviews during an in-camera inspection and 

whether all relevant material was provided to the defendant. To 

the extent Santos-Romero attacks the Trammell procedure, we 

reject his argument.

The procedure set forth in Trammell is derived from State v. 

Esposito, 192 Conn. 166, 471 A.2d 949 (1984). In Esposito, the 

Connecticut Supreme Court detailed the process to be used for 

review of a witness’ privileged records. It explained:

If, however, the claimed impeaching information is privileged there must be a showing that there is reasonable ground to believe that the failure to produce the 

information is likely to impair the defendant’s right of 

confrontation such that the witness’ direct testimony 

should be stricken. Upon such a showing the court may 

then afford the state an opportunity to secure the consent 

of the witness for the court to conduct an in camera 

inspection of the claimed information and, if necessary, 

to turn over to the defendant any relevant material for 

the purposes of cross-examination. If the defendant does 

make such showing and such consent is not forthcoming 

then the court may be obliged to strike the testimony 

of the witness. If the consent is limited to an in camera 
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

inspection and such inspection, in the opinion of the 

trial judge, does not disclose relevant material then the 

resealed record is to be made available for inspection on 

appellate review. If the in camera inspection does reveal 

relevant material then the witness should be given an 

opportunity to decide whether to consent to release of 

such material to the defendant or to face having [the] 

testimony stricken in the event of refusal.

Id. at 179-80, 471 A.2d at 956 (emphasis supplied).

In adopting the Connecticut Supreme Court’s procedure, the 

Nebraska Supreme Court omitted the italicized language, using 

ellipses, presumably because the issue presented involved the 

initial procedure of producing the records, not what should 

occur if some or all of the records were withheld. Regardless, 

the procedure set forth in Trammell does not address, and 

therefore does not prevent, a defendant’s request that the 

records reviewed be sealed and included as part of an appellate record. In fact, State v. Esposito, supra, anticipates such 

action. Accordingly, we cannot find that the procedure set forth 

in Trammell is fundamentally unfair to defendants, as argued 

by Santos-Romero.

Ineffective Assistance of Counsel.

Santos-Romero assigns that his trial counsel was ineffective in “failing to investigate the case and in limiting [his] 

defense.” In the argument section of his brief, he expounds 

on these claims, asserting that his trial counsel was ineffective 

in failing to investigate the case because she never sought to 

depose C.G.’s mother or even speak to her prior to trial and 

in limiting his defense because trial counsel filed a pretrial 

motion in limine seeking to exclude statements C.G.’s mother 

made to law enforcement that she had no reason to suspect 

Santos-Romero of these allegations and that sometimes he and 

C.G. did not get along because he was very strict with her.

[4] Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege 
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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SANTOS-ROMERO

Cite as 31 Neb. App. 14

deficient performance, and an appellate court will not scour 

the remainder of the brief in search of such specificity. State 

v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). The Supreme 

Court has found that an error assigning that trial counsel 

was ineffective in “‘fail[ing] to adequately investigate [the 

defendant’s] defenses’” lacked the specificity we demand on 

direct appeal. Id. at 935, 926 N.W.2d at 86. Likewise, the 

Supreme Court recently held that an error assigning that trial 

counsel was ineffective in “‘Failing to Investigate the Case 

Fully’” lacked the requisite specificity as to what component 

of investigation counsel was allegedly deficient in failing to 

conduct. State v. Wood, 310 Neb. 391, 436, 966 N.W.2d 825, 

858 (2021).

We find the same is true here. Santos-Romero’s assignment 

of error does not specifically identify which aspects of the case 

trial counsel failed to investigate or in what manner she limited 

his defense. We therefore do not address his claims.

CONCLUSION

We find no error in the procedures the district court followed 

regarding jury sequestration or reviewing and releasing mental 

health records, and we do not address the ineffective assistance 

of counsel claims raised here. Santos-Romero’s convictions 

and sentences are therefore affirmed.

Affirmed.