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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. WEATHERS

Cite as 304 Neb. 402

State of Nebraska, appellee, v. 

Brandon J. Weathers, appellant.

___ N.W.2d ___

Filed November 8, 2019. No. S-18-665.

1. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

2. Effectiveness of Counsel: Appeal and Error. An appellate court determines as a matter of law whether the record conclusively shows that 

(1) a defense counsel’s performance was deficient or (2) a defendant 

was or was not prejudiced by a defense counsel’s alleged deficient 

performance.

3. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. When reviewing a trial court’s ruling on a motion 

to suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

4. Right to Counsel: Appeal and Error. A trial court’s decision to sustain or overrule a defendant’s motion to dismiss appointed counsel and 

appoint substitute counsel is reviewed for an abuse of discretion.

5. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record; otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

Nebraska Supreme Court Online Library

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

12/20/2019 09:07 AM CST
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. WEATHERS

Cite as 304 Neb. 402

6. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor 

is whether the record is sufficient to adequately review the question. 

The record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a 

part of any plausible trial strategy.

7. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his 

or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.

8. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

9. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different.

10. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of 

the ineffective assistance of counsel test under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be 

addressed in either order, and the entire ineffectiveness analysis should 

be viewed with a strong presumption that counsel’s actions were 

reasonable.

12. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffective assistance of counsel claim is raised in a direct appeal, the appellant 

is not required to allege prejudice; however, an appellant must make 

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

13. ____: ____: ____. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an 

ineffective assistance claim on direct appeal.

14. Effectiveness of Counsel: Records: Appeal and Error. Appellate 

courts have generally reached ineffective assistance of counsel claims 

on direct appeal only in those instances where it was clear from the 

record that such claims were without merit or in the rare case where 

trial counsel’s error was so egregious and resulted in such a high level 

of prejudice that no tactic or strategy could overcome the effect of the 

error, which effect was a fundamentally unfair trial.
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Nebraska Supreme Court Advance Sheets

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STATE v. WEATHERS

Cite as 304 Neb. 402

15. ____: ____: ____. An ineffective assistance of counsel claim made on 

direct appeal can be found to be without merit if the record establishes 

that trial counsel’s performance was not deficient or that the appellant 

could not establish prejudice.

16. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. In the case of an argument presented for the purpose of avoiding 

procedural bar to a future postconviction proceeding, appellate counsel 

must present a claim with enough particularity for (1) an appellate court 

to make a determination of whether the claim can be decided upon the 

trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought 

before the appellate court.

17. Claims. A claim insufficiently stated is no different from a claim not 

stated at all.

18. DNA Testing: Convictions. The requirement for a convicted felon to 

provide a DNA sample pursuant to Neb. Rev. Stat. § 29-4106(1)(a) 

(Reissue 2016) exists once the convicted felon begins serving his or 

her sentence.

19. ____: ____. Neb. Rev. Stat. § 29-4106 (Reissue 2016) inherently authorizes the use of reasonable force to collect a DNA sample from a convicted felon.

20. Criminal Law: Trial: Evidence. Where objects pass through several 

hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article 

to the final custodian; and if one link in the chain is missing, the object 

may not be introduced in evidence.

21. ____: ____: ____. Objects which relate to or explain the issues or 

form a part of a transaction are admissible in evidence only when duly 

identified and shown to be in substantially the same condition as at 

the time in issue. It must be shown to the satisfaction of the trial court 

that no substantial change has taken place in an exhibit so as to render 

it misleading.

22. Evidence. Important in determining the chain of custody are the nature 

of the evidence, the circumstances surrounding its preservation and custody, and the likelihood of intermeddlers tampering with the object.

23. Trial: Evidence. Whether there is sufficient foundation to admit physical evidence is determined on a case-by-case basis.

24. Right to Counsel. When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to the court 

for the removal of counsel, his or her only alternative is to proceed pro 

se if he or she is competent to do so.

25. ____. An indigent defendant’s right to have counsel does not give the 

defendant the right to choose his or her own counsel.
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STATE v. WEATHERS

Cite as 304 Neb. 402

26. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not 

enough to secure the appointment of substitute counsel.

27. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of the following 

conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) 

appointed counsel is incompetent, in which case new counsel is to be 

appointed; or (3) the accused chooses to retain private counsel.

28. Right to Counsel. Once a defendant requesting substitute counsel has 

raised a seemingly substantial complaint about counsel, the court has a 

duty to thoroughly inquire into the complaint.

29. Postconviction: Effectiveness of Counsel: Records: Appeal and 

Error. When an appellate court finds, on direct appeal, that the record 

is not sufficient to resolve a claim of ineffective assistance, it should 

not be misunderstood as a finding that the claim will necessarily 

require an evidentiary hearing if raised in a motion for postconviction 

relief, because that determination is governed by an entirely different standard.

30. ____: ____: ____: ____. Just because an appellate court finds the 

record on direct appeal is insufficient to resolve a claim of ineffective 

assistance, it does not mean that a postconviction court will necessarily 

be precluded from later finding the existing record affirmatively refutes 

the same claim.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

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

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Brandon J. Weathers appeals his convictions in the district 

court for Douglas County for four counts of first degree sexual 

assault. Weathers, who has new counsel on direct appeal, 

claims that his trial counsel provided ineffective assistance in 
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304 Nebraska Reports

STATE v. WEATHERS

Cite as 304 Neb. 402

various respects, including in failing to adequately challenge 

the admission of DNA evidence that linked him to the assaults 

and that he claims was obtained in violation of his constitutional rights and in violation of statutory limitations on the use 

of DNA samples. He further claims, independent of his ineffective assistance of counsel claims, that admission of the DNA 

evidence was plain error. Weathers also claims that the district 

court erred when it refused to remove his counsel and appoint 

new counsel after he asserted that his counsel had a conflict 

of interest and had performed deficiently in other respects. We 

affirm Weathers’ convictions and sentences.

STATEMENT OF FACTS

In 2014, Weathers was being investigated for sexual assault 

of a child in a case unrelated to the charges in the present case. 

Police obtained a DNA sample from Weathers in connection 

with the investigation of the 2014 assaults. Following a trial in 

December 2015, Weathers was convicted of two counts of first 

degree sexual assault of a child based on the 2014 assaults, 

and the district court sentenced Weathers to two consecutive 

terms of imprisonment for 50 to 80 years. The Nebraska Court 

of Appeals affirmed Weathers’ convictions and sentences for 

the 2014 assaults. State v. Weathers, No. A-16-305, 2017 WL 

24777 (Neb. App. Jan. 3, 2017) (selected for posting to court 

website). As will be discussed below, Weathers asserts that the 

DNA sample collected in connection with the investigation of 

the 2014 assaults was used to connect him to the 2002 and 

2004 assaults that are the subject of the present case.

As part of Weathers’ sentencing for the 2014 assaults, pursuant to Neb. Rev. Stat. § 29-4106 (Reissue 2016), the district 

court ordered Weathers to submit a DNA sample for use in the 

State DNA Sample Bank. On June 5, 2017, the district court 

entered an order in response to the State’s “Motion to Enforce 

Order.” The court stated that employees of the Department of 

Correctional Services had twice attempted to obtain a DNA 

sample from Weathers but that he refused to comply voluntarily. 
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STATE v. WEATHERS

Cite as 304 Neb. 402

The court further stated that despite Weathers’ refusal, he was 

still required to submit a DNA sample. The court then cited 

authority to the effect that it had “‘the power to enforce [its 

decision] by making such orders as are necessary to carry its 

judgment or decree into effect’” (quoting Evans v. Frakes, 

293 Neb. 253, 259, 876 N.W.2d 626, 632 (2016)) and that 

it had “authority to do such things as are reasonably necessary for the proper administration of justice” (citing State v. 

Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994)). Based on 

such authority and on its finding that the law and its sentencing 

order required Weathers to submit to the collection of a DNA 

sample, the court ordered that “employees of the Department 

of Correctional Services shall forthwith collect a DNA sample 

from [Weathers] via buccal swab” and that “such employees 

of the Department are hereby authorized to use such force as 

is reasonably necessary to obtain or collect a DNA sample 

from [Weathers].”

Under the authority of the June 5, 2017, order, a DNA 

sample was collected from Weathers; the DNA sample was 

then provided to the Nebraska State Patrol DNA identification 

laboratory and entered into a state DNA database. On June 12, 

Det. Christy Jaworski received a letter from the DNA database 

“indicating that . . . Weathers was matched to four outstanding 

sexual assaults” that had occurred in 2002 and 2004. Based 

on protocol, that same day, Jaworski obtained a court order 

to collect four additional DNA samples from Weathers to 

be tested against the DNA evidence that had been collected 

in each of the four outstanding cases. After the additional 

samples were collected and tested, the results showed that 

Weathers’ DNA profile matched that of the assailant in the 

four sexual assaults from 2002 and 2004. The results of the 

testing of the DNA samples obtained pursuant to the June 12 

order would ultimately be admitted into evidence at the trial 

in this case.

On August 9, 2017, the State filed an information charging 

Weathers with four counts of first degree sexual assault related 
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STATE v. WEATHERS

Cite as 304 Neb. 402

to the 2002 and 2004 incidents. Prior to trial, Weathers filed a 

motion to suppress evidence obtained as a result of the DNA 

samples collected in June 2017. He asserted that the samples 

were seized and collected from him in violation of his constitutional rights and in violation of statutes governing the collection and use of DNA samples.

At a hearing on the motion to suppress, Jaworski testified 

regarding her investigation of the present case and how she 

went about obtaining the DNA samples that were used to tie 

Weathers to the 2002 and 2004 assaults. The court received 

into evidence the February 17, 2016, sentencing order related 

to the 2014 assaults; the June 5, 2017, order authorizing corrections employees to collect a DNA sample using reasonably 

necessary force; and the June 12, 2017, court order requiring 

collection of the DNA samples used in this case.

On cross-examination by Weathers at the suppression hearing, Jaworski testified that it was her understanding that in 

2014, when Weathers was being investigated for the 2014 

assaults and a DNA sample had been collected from Weathers 

in connection with that investigation and submitted to a laboratory for testing, a laboratory technician “recognized a very 

rare DNA allele that . . . Weathers has.” Jaworski was notified 

in 2014 that “Weathers was a match to the serial rape case 

[from 2002 and 2004] because they had been aware of this rare 

allele.” Jaworski further testified on cross-examination that in 

2014, she had asked Weathers to give his consent to provide a 

DNA sample for use in the investigation of the sexual assaults 

from 2002 and 2004 but he had declined. She testified that in 

2014, she did not further pursue a DNA sample related to the 

earlier assaults, because “the decision was made by the County 

Attorney’s Office to try [the 2014 assaults] case first and 

separately.” She testified, however, that “our department did 

compare the [un]known suspect DNA in the four outstanding 

sexual assaults against . . . Weathers’ buccal swab [in the 2014 

case] and it was — at that time it was a match” and that “that’s 

how we knew he was identified.”
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. WEATHERS

Cite as 304 Neb. 402

On redirect, Jaworski testified that the DNA sample given 

by Weathers in connection with the investigation in 2014 

was not and could not have been entered into the state DNA 

database. She testified, however, that the presence of the rare 

allele in the DNA evidence from the earlier sexual assaults 

had been “widely known” among law enforcement personnel 

since 2002.

At the end of the suppression hearing, Weathers generally 

argued that the DNA sample collected in connection with the 

investigation of the 2014 assaults was improperly compared to 

the DNA evidence from the 2002 and 2004 assaults, because 

at that time, there was no probable cause to link Weathers to 

the 2002 and 2004 assaults. He argued that the comparison to 

the 2002 and 2004 DNA evidence violated his constitutional 

rights and that it violated Neb. Rev. Stat. § 29-4126 (Reissue 

2016), which he argued prohibited use of a DNA sample without probable cause as to the particular crime being investigated. He argued that the same limitations applied to the DNA 

samples taken in 2017 and that the DNA evidence collected in 

2017 was “fruit of the poisonous tree” because it was obtained 

as a result of the unconstitutional comparison of the 2014 

investigative DNA sample to the DNA evidence in the 2002 

and 2004 assaults. He further argued that, independently of 

what occurred in 2014, the State failed to show that the 2017 

DNA samples were collected in compliance with the DNA 

Identification Information Act, Neb. Rev. Stat. §§ 29-4101 to 

29-4115.01 (Reissue 2016 & Cum. Supp. 2018).

The district court overruled Weathers’ motion to suppress 

the DNA evidence. The court first addressed Weathers’ arguments regarding the use of the DNA sample collected in 2014 

as follows:

Much of [Weathers’] motion and his argument revolves 

around the DNA collection from the unrelated 2014 investigation for first-degree sexual assault of a child, but there 

was no evidence adduced during the hearing to support 

a finding that the 2014 DNA sample was ever submitted 
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STATE v. WEATHERS

Cite as 304 Neb. 402

for comparison in this current case. Thus, the Court finds 

the 2014 DNA collection and investigation irrelevant for 

purposes of this motion . . . .

The court focused instead on the two collections of DNA 

samples that occurred in June 2017.

Regarding the DNA sample collected pursuant to the June 5, 

2017, order, the court determined that collection of the DNA 

sample was authorized by § 29-4106 because Weathers was a 

convicted felon. The court further determined that collection 

of a DNA sample from a convicted felon pursuant to a statute 

such as § 29-4106 did not violate the Fourth Amendment. The 

court noted that the subsequent submission of the DNA sample 

into the state DNA database was “anticipated under [the] DNA 

Identification Information Act.”

Regarding the DNA samples collected pursuant to the June 

12, 2017, order, the court determined that Jaworski’s affidavit 

provided probable cause for the order, based on the notification Jaworski received indicating that submission of the DNA 

sample obtained based on the June 5 order to the state DNA 

database showed that Weathers’ DNA profile “matched the 

DNA profile of the previously unknown suspect from four 

sexual assaults that occurred in 2002-2004.” The court determined that because it was supported by probable cause, the 

June 12 order did not violate the Fourth Amendment, nor did 

it violate Neb. Rev. Stat. § 29-3303 (Reissue 2016), which 

requires probable cause for an order to collect identifying 

physical characteristics, or § 29-4126, which provides that no 

DNA sample may be obtained in connection with an investigation of a crime without probable cause, a court order, or 

voluntary consent.

Having concluded that the State had met its burden to 

establish that the Fourth Amendment had not been violated, 

the court briefly addressed, and rejected, Weathers’ other arguments. The court rejected Weathers’ argument that use of the 

2014 DNA sample in connection with the 2002 and 2004 

assaults was not supported by probable cause. The court 
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STATE v. WEATHERS

Cite as 304 Neb. 402

repeated its determination that there was no evidence that the 

2014 investigative DNA sample “was ever submitted to be 

tested against the DNA collected from the 2002-2004 sexual 

assaults or put into [the state DNA database].” The court stated 

that, instead, “law enforcement waited to do an investigatory 

comparison of [Weathers’] DNA to the 2002-2004 sexual 

assault DNA evidence until [2017, when] there was a match 

to [Weathers’] DNA collected under the DNA Identification 

Information Act.”

The court next rejected Weathers’ argument that collection of 

the DNA samples in June 2017 violated the DNA Identification 

Information Act because the act requires that a medical or corrections professional, rather than a law enforcement officer, 

collect the DNA from a defendant. The court stated that the 

evidence presented at the suppression hearing showed only that 

Jaworski did not personally collect the DNA samples and that 

she did not know specifically who had collected the samples. 

The court determined that Weathers had not provided evidence 

to support his claim of a violation of the act, and the court 

further determined that even if there was a violation, Weathers 

cited no authority to the effect that such a violation would 

require suppression of the DNA evidence. Having rejected 

these and Weathers’ other arguments, the court overruled the 

motion to suppress DNA evidence.

A few days prior to the date trial was scheduled to begin, 

Weathers filed a pro se motion to dismiss his current counsel 

and appoint new counsel. He alleged, inter alia, that counsel 

had proved to be ineffective or incompetent because counsel 

had missed a pretrial conference and had failed to meet with 

Weathers prior to trial to discuss the case or to review discovery. He further alleged that counsel, who worked for the 

public defender’s office, had a conflict of interest, because 

in a postconviction action in a separate criminal proceeding, 

Weathers was raising ineffective assistance claims involving 

a different attorney who also worked for the public defender’s 

office. Weathers requested that new counsel be appointed and 
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STATE v. WEATHERS

Cite as 304 Neb. 402

that a continuance be granted to allow new counsel to prepare 

for trial.

The day after Weathers filed the motion, the court held 

a hearing on it and other motions. The court asked whether 

Weathers had any reason other than those set forth in his 

motion why counsel should be dismissed, and Weathers replied 

that there was not. The court then stated that the reasons set 

forth by Weathers constituted mere dissatisfaction with counsel, which would not be sufficient to justify removal of counsel 

absent a showing of good cause. The court found that Weathers 

had not shown good cause for removal of his counsel, and the 

court then told Weathers that if it denied his request, Weathers’ 

only options would be to continue with his current counsel or 

represent himself. Weathers stated that he would stay with his 

appointed counsel.

At trial, the State presented witnesses, including the four 

victims of the assaults in 2002 and 2004. The four victims 

were not able to identify the person who committed the 

assaults, because he had taken steps to conceal his identity, 

but each of them gave descriptions of the perpetrator’s general appearance and size that were similar to one another and 

that were similar to Weathers’ general appearance and size. 

The four victims each gave descriptions of how the assaults 

were carried out, which included details that were similar to 

the other victims’ accounts. The State also presented evidence 

regarding the testing of the DNA samples that were obtained 

from Weathers in 2017, which testing showed that Weathers’ 

DNA profile matched that of DNA evidence collected in the 

investigations of the 2002 and 2004 assaults. Weathers’ counsel did not renew the motion to suppress such evidence and 

did not object to the admission on the bases presented in the 

motion to suppress or on the basis that a chain of custody was 

lacking for the DNA evidence collected in the investigation of 

the assaults.

The jury found Weathers guilty of four counts of first degree 

sexual assault, and the court accepted the verdicts. The court 
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STATE v. WEATHERS

Cite as 304 Neb. 402

thereafter sentenced Weathers to imprisonment for 40 to 50 

years for each count and ordered the sentences to be served 

consecutively.

Weathers appeals his convictions.

ASSIGNMENTS OF ERROR

Weathers, who has new counsel on appeal, claims that his 

trial counsel provided ineffective assistance in certain respects. 

The first few claims of ineffective assistance of counsel relate 

to the DNA evidence. Weathers claims that counsel provided 

ineffective assistance of counsel when counsel at trial failed 

to object to admission of the DNA evidence and renew the 

motion to suppress on the bases that (1) the comparison of 

the 2014 DNA sample to the DNA evidence in the 2002 and 

2004 assaults violated § 29-4126 and Weathers’ constitutional 

rights and (2) the June 5, 2017, order authorizing corrections 

employees to obtain a DNA sample from Weathers using force 

violated his constitutional rights. He further claims that apart 

from the claims of ineffective assistance of counsel, it was 

plain error for the court to admit the DNA evidence, because 

it was obtained as the result of violations of his constitutional rights.

Weathers also claims that counsel provided ineffective 

assistance by failing to object to the DNA evidence on the 

basis that the State failed to establish a chain of custody for 

the DNA evidence collected in the investigations of three of 

the four assaults.

Weathers further claims that the district court erred when it 

refused to remove his trial counsel and appoint new counsel on 

the basis of counsel’s alleged ineffective assistance in pretrial 

proceedings and trial preparation and on the basis of an alleged 

conflict of interest. Weathers also claims, independently of the 

claim related to the court’s ruling on the motion to remove 

counsel, that trial counsel provided ineffective assistance of 

counsel as alleged in the motion—i.e., in failing to attend a 

pretrial conference, in failing to meet with Weathers prior to 
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STATE v. WEATHERS

Cite as 304 Neb. 402

trial to discuss the case or to review discovery, and in representing Weathers despite a conflict of interest.

Finally, Weathers makes two additional claims of ineffective 

assistance of trial counsel: (1) that counsel failed to move for a 

continuance of the trial on the bases that counsel had not adequately prepared for trial and that the State had been granted 

a motion to endorse an additional witness only 3 days prior to 

the start of the trial and (2) that counsel failed to adequately 

investigate and present several aspects of his defense.

STANDARDS OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to 

address the claim without an evidentiary hearing or whether 

the claim rests solely on the interpretation of a statute or 

constitutional requirement. State v. Hood, 301 Neb. 207, 917 

N.W.2d 880 (2018). We determine as a matter of law whether 

the record conclusively shows that (1) a defense counsel’s 

performance was deficient or (2) a defendant was or was not 

prejudiced by a defense counsel’s alleged deficient performance. Id.

[3] When reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. State 

v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019). 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. Id.

[4] A trial court’s decision to sustain or overrule a defendant’s motion to dismiss appointed counsel and appoint substitute counsel is reviewed for an abuse of discretion. See State v. 

Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). See, also, State 

v. McPhail, 228 Neb. 117, 421 N.W.2d 433 (1988).
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ANALYSIS

Ineffective Assistance Claims.

Weathers, who has new counsel on appeal, makes several 

claims on direct appeal that his trial counsel provided ineffective assistance in various respects. Before specifically addressing those and his other claims, we set forth standards applicable to claims of ineffective assistance of counsel raised on 

direct appeal.

[5,6] 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. State v. Munoz, 303 

Neb. 69, 927 N.W.2d 25 (2019). The fact that an ineffective 

assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved. Id. The determining 

factor is whether the record is sufficient to adequately review 

the question. Id. The record is sufficient if it establishes either 

that trial counsel’s performance was not deficient, that the 

appellant will not be able to establish prejudice, or that trial 

counsel’s actions could not be justified as a part of any plausible trial strategy. Id.

[7-11] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show 

that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s 

defense. State v. Munoz, supra. 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. Id. 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. Id. A reasonable probability 

is a probability sufficient to undermine confidence in the 
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outcome. Id. The two prongs of this test may be addressed in 

either order, and the entire ineffectiveness analysis should be 

viewed with a strong presumption that counsel’s actions were 

reasonable. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 

48 (2019).

[12,13] When an ineffective assistance of counsel claim is 

raised in a direct appeal, the appellant is not required to allege 

prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient 

performance by trial counsel. State v. Sundquist, 301 Neb. 

1006, 921 N.W.2d 131 (2019). General allegations that trial 

counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on 

direct appeal. Id.

[14-17] Appellate courts have generally reached ineffective 

assistance of counsel claims on direct appeal only in those 

instances where it was clear from the record that such claims 

were without merit or in the rare case where trial counsel’s 

error was so egregious and resulted in such a high level of 

prejudice that no tactic or strategy could overcome the effect 

of the error, which effect was a fundamentally unfair trial. 

Id. An ineffective assistance of counsel claim made on direct 

appeal can be found to be without merit if the record establishes that trial counsel’s performance was not deficient or that 

the appellant could not establish prejudice. Id. In the case of 

an argument presented for the purpose of avoiding procedural 

bar to a future postconviction proceeding, appellate counsel 

must present a claim with enough particularity for (1) an 

appellate court to make a determination of whether the claim 

can be decided upon the trial record and (2) a district court 

later reviewing a petition for postconviction relief to be able to 

recognize whether the claim was brought before the appellate 

court. State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018). 

A claim insufficiently stated is no different from a claim not 

stated at all. Id.
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Failure to Object to DNA Evidence and Renew 

Motion to Suppress Was Not Ineffective 

Assistance of Counsel, and It Was Not 

Plain Error to Admit Such Evidence.

Weathers’ first three assignments of error relate to the admission of the DNA evidence that tied Weathers to the 2002 and 

2004 sexual assaults. He claims that trial counsel provided 

ineffective assistance when counsel failed to preserve challenges to admission of the DNA evidence for appeal by failing 

to renew his motion to suppress and failing to object to the 

admission of the evidence at trial. He further claims that in 

light of the alleged constitutional violations in the collection 

of the DNA evidence, it was plain error for the district court to 

admit the evidence. We determine that the DNA evidence was 

admissible and should not have been suppressed. We therefore 

conclude that Weathers could not show ineffective assistance 

of trial counsel in this respect and that the district court did not 

commit plain error when it admitted the evidence. Weathers’ 

challenges to the admission of the DNA evidence are without merit.

The DNA evidence admitted at trial consisted of the results 

of the testing of the DNA samples that were collected from 

Weathers pursuant to the June 12, 2017, order. In its order 

overruling Weathers’ motion to suppress, the district court 

concluded that the order was supported by probable cause 

based on the notification investigators received from the state 

DNA database indicating that Weathers’ DNA profile matched 

the DNA profile of the previously unknown suspect from 

the four sexual assaults that are the subject of the charges 

in this case. On appeal, Weathers does not argue that the 

match of his DNA profile to the DNA profiles in the state 

DNA database did not provide probable cause to support 

the June 12 order to collect DNA samples for purposes of 

investigating the 2002 and 2004 assaults. Instead, he argues 

that two prior DNA collections violated his constitutional 

and statutory rights and that therefore the DNA samples 
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collected pursuant to the June 12, 2017, order were “fruit of 

the poisonous tree.”

Weathers argues that the DNA evidence should have been 

suppressed because (1) the comparison of the 2014 DNA sample to the DNA evidence in the 2002 and 2004 assaults violated 

§ 29-4126 and Weathers’ constitutional rights and (2) the June 

5, 2017, order authorizing corrections employees to obtain a 

DNA sample from Weathers using force violated his constitutional rights. As discussed below, we determine that the June 

12 order was not dependent on the 2014 DNA sample and that 

therefore even if the collection or use of the 2014 DNA sample 

were improper, evidence obtained pursuant to the June 12 order 

did not need to be suppressed. We further determine that while 

the June 12 order was dependent on the DNA sample collected 

pursuant to the June 5 order, the collection of Weathers’ DNA 

sample under the authority of the June 5 order did not violate 

Weathers’ Fourth Amendment rights.

Regarding the 2014 DNA sample, Weathers argues that 

the collection of the sample was in violation of his Fourth 

Amendment rights, because in the present case, the State did 

not provide “evidence that police had a court order allowing 

police to take Weathers’ DNA in 2014, nor did the State introduce evidence that an exception to the warrant requirement 

applied.” Brief for appellant at 24. Weathers further argues 

that once the DNA sample had been collected, it was improper 

to compare the DNA sample collected in connection with the 

2014 assaults to the DNA evidence in the unsolved cases from 

2002 and 2004. He argues that such comparison violated his 

Fourth Amendment rights and that it also violated § 29-4126. 

Weathers argues that § 29-4126(1) requires “probable cause, 

a court order, or voluntary consent” related to the investigation of a particular crime and that even if the collection of the 

DNA sample in 2014 was justified as to the investigation of 

the 2014 assaults, investigators did not have probable cause, 

a court order, or Weathers’ consent to collect or use the DNA 

sample for the investigation of the 2002 and 2004 assaults. He 
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argues that “police simply chose to violate the law by comparing Weathers’ 2014 sample, taken as part of an unrelated investigation, to the unknown suspect sample from the 2002-2004 

sexual assaults.” Brief for appellant at 23.

In its order overruling the motion to suppress, with regard to 

the 2014 DNA sample, the district court found that “there was 

no evidence adduced during the hearing to support a finding 

that the 2014 DNA sample was ever submitted for comparison 

in this current case.” The district court determined that the 

2014 DNA sample was “irrelevant” to the motion to suppress 

and overruled the motion. The State in its brief on appeal 

acknowledges that there was evidence in the record that “there 

was some sort of comparison of Weathers’ DNA sample in 

2014, though the extent of that comparison is unclear.” Brief 

for appellee at 16. The State takes the position that even if the 

DNA sample collected in connection with the 2014 assaults 

was compared to the DNA evidence in the unsolved cases from 

2002 and 2004, it does not follow that the State violated either 

the Fourth Amendment or § 29-4126. The State contends that 

once the DNA sample from the 2014 assaults was lawfully in 

its possession, neither the Fourth Amendment nor § 29-4126 

restricted its use of that sample.

The evidence of a comparison included Jaworski’s testimony 

at the suppression hearing that “our department did compare 

the [un]known suspect DNA in the four outstanding sexual 

assaults against . . . Weathers’ buccal swab [in the 2014 case] 

and it was — at that time it was a match” and that “that’s how 

we knew he was identified.” However, Jaworski did not testify 

that she had personally made such a comparison and she could 

not testify as to exactly what sort of comparison was made in 

2014 to the evidence from the 2002 and 2004 cases.

Instead, during the trial, Weathers made an offer of proof of 

testimony by Kaye Shepard, a laboratory DNA analyst who in 

2014 had analyzed Weathers’ DNA sample in connection with 

the investigation of the 2014 assaults. Shepard testified that 

she noted Weathers’ DNA contained “a very rare allele that 
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we hadn’t seen for many, many years in the laboratory” and 

that she remembered seeing the rare allele in a sample she had 

analyzed in 2004. Shepard denied that the 2014 DNA sample 

was put into a DNA system for a comparison, and she resisted 

testifying that she compared Weathers’ entire DNA profile to a 

suspect DNA profile, testifying instead that “I remember just 

the [rare allele] standing out.” Shepard further acknowledged 

that in 2014, she “may have called somebody at the Omaha 

Police Department to tell them that we had” a DNA sample 

with the rare allele, “which they know about from previous years.”

Jaworski testified that after being informed in 2014 by the 

laboratory that “Weathers was a match to the serial rape case 

because they had been aware of this rare allele,” she had asked 

Weathers to give his consent to provide a DNA sample in connection with the earlier serial rapes, but that after he declined 

his consent, she did not further pursue a DNA sample related 

to the earlier assaults, because “the decision was made by the 

County Attorney’s Office to try [the 2014 assaults] case first 

and separately.” Jaworski further testified that the DNA sample 

given by Weathers in 2014 was not and could not have been 

entered into the state DNA database and that the presence of 

the rare allele in the DNA evidence from the earlier sexual 

assaults had been “widely known” among law enforcement 

personnel since 2002.

Therefore, the evidence in this case does not indicate a 

“comparison” of the 2014 DNA sample to the evidence from 

the 2002 and 2004 assaults, at least in the sense of a comparison of Weathers’ full DNA profile or the entry of his DNA 

profile into a database. Instead, it indicates that a laboratory 

technician noted the presence of a rare allele which might tie 

Weathers to the earlier cases and that she had reported her 

observation to investigators. Jaworski sought Weathers’ consent to give a DNA sample to use in the investigation of the 

earlier cases. However, after he refused consent, she did not 

further pursue obtaining a DNA sample or obtaining evidence 
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to tie Weathers to the prior assaults. Instead, it appears that 

investigators determined, after consultation with the county 

attorney, that the possible connection of Weathers to those prior 

assaults would not be pursued at that time and that instead 

they would wait to see whether Weathers was convicted of the 

2014 assaults. Therefore, it appears the State made a strategic 

decision to wait and see whether Weathers would become a 

convicted felon, at which time his DNA would be collected 

and put into the state DNA database pursuant to the DNA 

Identification Information Act.

Even if we were to assume that Shepard’s observation of the 

rare allele constituted a “comparison” of the 2014 DNA sample 

to the evidence in the 2002 and 2004 cases and even if we were 

to assume this comparison violated the Fourth Amendment 

or § 29-4126, we agree with the district court’s determination that the collection and use of the 2014 DNA sample are 

not relevant to the suppression issues in this case. The record 

indicates that the DNA sample collected from Weathers in the 

2014 investigation did not directly lead to the DNA evidence 

that was offered and admitted at his trial in the present case 

involving the 2002 and 2004 assaults. Instead, the evidence 

admitted in this case directly resulted from the DNA samples 

collected pursuant to the June 12, 2017, order, which in turn 

was supported by probable cause based on evidence generated 

by the collection of the DNA sample pursuant to the June 5, 

2017, order. As we discuss below, the collection of the DNA 

sample pursuant to the June 5 order was properly based on 

the authority of § 29-4106 and Weathers’ status as a convicted 

felon. Evidence generated from the DNA sample collected in 

2014 was not directly used to support either of the collections 

of DNA samples in 2017. Therefore, even if the collection and 

the subsequent use of the DNA sample in 2014 were improper, 

the DNA evidence admitted in this case was collected in 2017 

and was not dependent on the 2014 DNA sample, and therefore 

the DNA evidence at issue in the current appeal would not 

have been suppressed based on any error that occurred in 2014. 
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We therefore reject Weathers’ argument that trial counsel was 

ineffective for failing to preserve a challenge to admission of 

the DNA evidence based on alleged errors in the collection or 

use of the 2014 DNA sample.

As noted above, the DNA evidence admitted in this case 

was the product of the DNA samples collected pursuant to the 

June 12, 2017, order and the probable cause which supported 

that order was based on evidence that resulted from the DNA 

sample collected pursuant to the June 5, 2017, order. Therefore, 

error in the collection of the DNA sample pursuant to the June 

5 order could have required suppression of the DNA evidence 

in this case. However, we determine that the June 5 collection 

was proper based on § 29-4106.

Weathers argues that the district court did not have authority 

to issue the June 5, 2017, order and that therefore, the collection of a DNA sample pursuant to that order violated his 

Fourth Amendment rights. However, even if the district court 

had not issued the June 5 order, the State was authorized by 

§ 29-4106 to collect the DNA sample and to use reasonable 

force to do so.

Section 29-4106 provides, in relevant part, as follows:

(1) A person who is convicted of a felony offense or 

other specified offense on or after July 15, 2010, who 

does not have a DNA sample available for use in the State 

DNA Sample Bank, shall, at his or her own expense, have 

a DNA sample collected:

(a) Upon intake to a prison, jail, or other detention 

facility or institution to which such person is sentenced. 

If the person is already confined at the time of sentencing, the person shall have a DNA sample collected immediately after the sentencing. Such DNA sample shall be 

collected at the place of incarceration or confinement. 

Such person shall not be released unless and until a DNA 

sample has been collected[.]

There is no dispute that Weathers was convicted of a felony 

offense in connection with the 2014 assaults. Therefore, under 
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§ 29-4106, Weathers was required to have a DNA sample collected for use in the State DNA Sample Bank.

Weathers argues, however, that he could not have been 

forced to supply a DNA sample on June 5, 2017. He notes 

the last sentence of § 29-4106(1)(a), which provides that a 

convicted felon “shall not be released unless and until a DNA 

sample has been collected,” and he argues that this sentence 

provides the exclusive mechanism authorized to enforce the 

requirement for a convicted felon to provide a DNA sample. 

That is, the only way a convicted felon may be forced to 

provide a sample is at the completion of his or her sentence, 

at which time the State may coerce him or her to provide a 

sample by refusing to release him or her until the sample is 

provided. However, we do no read this sentence as providing 

an exclusive mechanism for enforcement or as prohibiting the 

State from using other means to obtain the DNA sample that a 

convicted felon is statutorily required to provide.

[18] We note in this regard that § 29-4106(1)(a) provides 

that the requirement for a convicted felon to provide a DNA 

sample becomes effective “[u]pon intake to a prison, jail, or 

other detention facility or institution to which such person is 

sentenced,” or “[i]f the person is already confined at the time 

of sentencing, the person shall have a DNA sample collected 

immediately after the sentencing.” The requirement therefore 

exists once the convicted felon begins serving his or her sentence. Although the convicted felon may not be released at 

the end of the sentence unless or until he or she has provided 

the DNA sample, the convicted felon’s obligation to provide a 

DNA sample exists, and may be enforced, at the beginning of 

the sentence.

On June 5, 2017, Weathers had been sentenced for the 2014 

felonies and was confined pursuant to such sentences. Therefore, 

on that day, he was legally required under § 29-4106(1)(a) to 

have a DNA sample collected. Even without the June 5 order, 

the State was authorized by § 29-4106(1)(a) to enforce the 

requirement that Weathers provide a DNA sample. Weathers 
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disagrees and instead contends that the collection of the DNA 

sample was an unreasonable seizure that violated his Fourth 

Amendment rights.

Courts have generally held that statutes such as § 29-4106 

that require a convicted felon to provide a DNA sample for 

inclusion in a DNA database do not violate Fourth Amendment 

protections against unreasonable seizure. See U.S. v. Kraklio, 

451 F.3d 922 (8th Cir. 2006), and cases cited therein. See, 

also, Maryland v. King, 569 U.S. 435, 481, 133 S. Ct. 1958, 

186 L. Ed. 2d 1 (2013) (collection of DNA sample pursuant 

to statute authorizing such collection from arrestee does not 

violate Fourth Amendment; in his dissent, Justice Scalia notes 

that “[a]ll parties concede that it would have been entirely 

permissible, as far as the Fourth Amendment is concerned, for 

[the plaintiff] to take a sample of [the defendant’s] DNA as 

a consequence of his conviction for second-degree assault”). 

Therefore, to the extent Weathers might have challenged the 

collection of his DNA on June 5, 2017, on the basis that 

§ 29-4106 violated the Fourth Amendment by authorizing collection of his DNA, such challenge would not have been successful and counsel was not ineffective for failing to preserve 

the challenge.

However, Weathers further argues that it was a Fourth 

Amendment violation for the district court to authorize the 

use of reasonable force to collect the DNA sample from him. 

We determine that § 29-4106 inherently authorizes the use of 

reasonable force to obtain a DNA sample. Other courts have 

reached a similar result.

In State v. Banks, 321 Conn. 821, 839, 146 A.3d 1, 10 (2016), 

the Connecticut Supreme Court affirmed a lower court’s ruling 

interpreting a statute requiring that DNA samples be collected 

from all persons convicted of a felony and determining that 

the “ability to use reasonable force to obtain a DNA sample 

is implicit in the statute as its fundamental purpose would be 

subverted otherwise.” The Connecticut Supreme Court agreed 

that “the use of reasonable force to obtain a DNA sample from 
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an unwilling individual was ‘inherent’ in” the statute and reasoned that “[t]o conclude otherwise would result in absolute 

frustration of the legislature’s objective in establishing and 

maintaining a DNA data bank.” Id. at 842, 146 A.3d at 12. See, 

also, Rendelman v. Scott, 378 Fed. Appx. 309, 313 (4th Cir. 

2010) (“State’s right to obtain [a] DNA sample from designated 

inmates must necessarily carry with it the right to use a reasonable degree of force that is sufficient to ensure compliance. 

Otherwise, the State’s right can be rendered meaningless by an 

inmate who refuses to grant permission . . . ”).

[19] We conclude that § 29-4106 inherently authorizes the 

use of reasonable force to collect a DNA sample from a convicted felon. We further conclude that use of reasonable force 

does not violate the Fourth Amendment. Both the Fourth 

Amendment to the U.S. Constitution and article I, § 7, of the 

Nebraska Constitution guarantee against unreasonable searches 

and seizures. State v. Seckinger, 301 Neb. 963, 920 N.W.2d 

842 (2018). The ultimate touchstone is one of reasonableness. 

Id. We believe that the Fourth Amendment would not prohibit 

use of reasonable force to carry out an otherwise proper statutorily authorized seizure.

In the June 5, 2017, order, the district court specified that 

“reasonable” force could be used to obtain the DNA sample, 

and there is no indication in the record on direct appeal that 

anything more than reasonable force was used to collect the 

DNA sample; and, at least in connection with this claim, 

Weathers does not assert that unreasonable force was used. 

We note that in connection with his claim, discussed below, 

that trial counsel failed to adequately investigate and present 

several aspects of his defense, one of the specific failures 

Weathers asserts relates to evidence the State allegedly turned 

over during the trial, “including video of the forcible extraction of Weathers’ DNA sample.” Brief for appellant at 48. That 

alleged evidence is not in the record on appeal, and Weathers 

does not argue in connection with the present claim of ineffective assistance of counsel that counsel should have objected 
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to admission of the DNA evidence on the basis that excessive 

force was actually used to obtain the DNA sample on June 

5. Instead, his argument is that the court could not authorize 

reasonable force, and we conclude that § 29-4106 authorizes 

reasonable force and that such authorization does not violate 

the Fourth Amendment.

In sum, we conclude that the record on appeal refutes 

Weathers’ first two claims of ineffective assistance of trial 

counsel. Weathers could not show prejudice from counsel’s 

failure to object to admission of the DNA evidence and to 

renew the motion to suppress, because the challenges asserted 

by Weathers related to the 2014 DNA sample and the June 

5, 2017, DNA sample collected pursuant to the court’s order 

would not have been successful. In addition, because the record 

refutes Weathers’ claims that DNA evidence should have been 

excluded based on alleged Fourth Amendment violations, we 

further conclude that it was not plain error for the court to 

admit the evidence, and we reject Weathers’ assignment of 

error to that effect.

Failure to Object to DNA Evidence Based 

on Chain of Custody Was Not 

Ineffective Assistance.

Weathers next claims that trial counsel provided ineffective assistance by failing to object to the DNA evidence on 

the basis that the State failed to establish a chain of custody 

for the DNA evidence collected in the investigations of three 

of the four assaults. We determine the record shows that this 

claim is without merit.

Weathers’ arguments in this claim focus on three of the 

four victims in this case. Regarding one victim, he asserts that 

there was “no testimony in the record from the individual who 

purportedly swabbed [the victim] during the rape kit examination.” Brief for appellant at 35. Regarding the second victim, 

Weathers asserts that the State’s witness was a doctor who 

“could only say that he ‘supervised’ [the victim’s] treatment, 
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but he did not personally perform or witness these tasks” and 

testified only that he assumed the samples taken from the 

victim were properly taken and sealed. Id. at 36. Regarding 

the third victim, Weathers similarly argues that the witness 

was a doctor who had testified regarding the examination he 

had given and testified regarding tasks performed by a nurse 

with respect to the collection, packaging, and sealing of the 

rape kit.

[20-23] In a case involving a foundational challenge regarding hair specimens submitted for testing and the admission of 

the results of the testing, we stated the following standards. 

Where objects pass through several hands before being produced in court, it is necessary to establish a complete chain 

of evidence, tracing the possession of the object or article to 

the final custodian; and if one link in the chain is missing, the 

object may not be introduced in evidence. State v. Glazebrook, 

282 Neb. 412, 803 N.W.2d 767 (2011). Objects which relate to 

or explain the issues or form a part of a transaction are admissible in evidence only when duly identified and shown to be 

in substantially the same condition as at the time in issue. Id. 

It must be shown to the satisfaction of the trial court that no 

substantial change has taken place in an exhibit so as to render 

it misleading. Id. Important in determining the chain of custody 

are the nature of the evidence, the circumstances surrounding 

its preservation and custody, and the likelihood of intermeddlers tampering with the object. Id. Whether there is sufficient 

foundation to admit physical evidence is determined on a caseby-case basis. Id.

With regard to the first victim, the State notes that there was 

testimony by the nurse who participated in the examination 

of the victim and the collection of swabs and who testified 

that she had put the collected evidence into sealed envelopes 

and provided them to police. We agree with the State that this 

testimony belies Weathers’ assertion that there was no testimony by the person who collected the swab used to collect the 

DNA sample.
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Regarding the second and third victims, the State argues 

that the testimony of the physicians was sufficient to establish proper collection and handling of the samples even if the 

physicians did not perform all the steps personally. Each of 

the physicians testified regarding examinations they performed 

of the respective victims and the procedures performed by 

themselves and by nurses under their supervision to collect 

samples. We determine the doctors’ testimony regarding their 

examination of the specific victims and the procedures which 

were followed in such examinations, when combined with 

other evidence including the testimony of police officers who 

collected packaged and sealed kits, was sufficient to establish 

the chain of custody. Weathers does not cite authority requiring 

that the specific person who physically collected and sealed 

the samples must testify, and we think testimony by the doctor 

who supervised the examination was sufficient to provide that 

step in the chain.

We do not think a challenge to the admission of the DNA 

evidence based on chain of custody would have been successful, and therefore the record refutes that there was prejudice 

from counsel’s failure to object on such basis. We therefore 

conclude that this claim of ineffective assistance of counsel is 

without merit.

District Court Did Not Err When It Overruled 

Motion to Dismiss Counsel, and Counsel 

Did Not Provide Ineffective Assistance 

as Alleged in the Motion.

Weathers next claims that the district court abused its discretion when it overruled his motion to dismiss his counsel and 

appoint substitute counsel. He further claims that the reasons 

he set forth in his motion to dismiss counsel also constitute reasons that counsel provided ineffective assistance. We 

conclude that the court did not abuse its discretion when it 

refused to appoint substitute counsel and that the record refutes 

Weathers’ claim of ineffective assistance of counsel.
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[24-27] When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to 

the court for the removal of counsel, his or her only alternative 

is to proceed pro se if he or she is competent to do so. State 

v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). An indigent 

defendant’s right to have counsel does not give the defendant 

the right to choose his or her own counsel. State v. Wabashaw, 

274 Neb. 394, 740 N.W.2d 583 (2007). Mere distrust of, or 

dissatisfaction with, appointed counsel is not enough to secure 

the appointment of substitute counsel. Id. Appointed counsel 

must remain with an indigent accused unless one of the following conditions is met: (1) The accused knowingly, voluntarily, 

and intelligently waives the right to counsel and chooses to 

proceed pro se; (2) appointed counsel is incompetent, in which 

case new counsel is to be appointed; or (3) the accused chooses 

to retain private counsel. State v. McGuire, 286 Neb. 494, 837 

N.W.2d 767 (2013).

In this case, the court gave Weathers the option to proceed 

pro se, and he rejected that option. Weathers also did not 

choose to retain private counsel and instead sought appointment of substitute counsel. Therefore, under State v. McGuire, 

supra, in order to remove his counsel and obtain new appointed 

counsel, Weathers was required to establish not merely that he 

distrusted or was dissatisfied with his counsel but that trial 

counsel was incompetent.

[28] As a general matter, Weathers argues that the district 

court erred because it did not hold an evidentiary hearing on 

his motion to dismiss his counsel. We have said that once a 

defendant requesting substitute counsel has raised a seemingly 

substantial complaint about counsel, the court has a duty to 

thoroughly inquire into the complaint. State v. Davlin, 265 

Neb. 386, 658 N.W.2d 1 (2003). However, we have determined that when a defendant’s asserted grounds for discharging counsel and appointing new counsel were insufficient, 

there was no reason for the court to conduct an evidentiary 

hearing. See State v. Wabashaw, supra. In this case, Weathers’ 
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motion fully set forth his reasons for removing his counsel, 

and when the court took up the motion, it asked Weathers 

whether he had any reasons other than those set forth in his 

motion why counsel should be dismissed and Weathers replied 

that there were none. The court therefore had enough information from which to determine whether Weathers’ assertions 

had merit, and, as we discuss below, the court in its discretion 

determined that Weathers’ asserted reasons did not require 

removal of counsel and appointment of substitute counsel. 

Therefore, the court’s failure to hold an evidentiary hearing 

was not in itself error.

Weathers argues on appeal that the “[m]ost pressing” reasons to dismiss counsel were that (1) counsel, who worked for 

the public defender’s office, had a conflict of interest, because 

in a prior case, Weathers’ counsel was a different attorney 

from the same office and Weathers, in a postconviction action, 

was currently challenging the effectiveness of that counsel’s 

assistance in the prior case; (2) counsel had missed a pretrial 

conference; and (3) counsel had failed to meet with Weathers 

prior to trial to discuss the case or to review discovery. Brief 

for appellant at 37.

Regarding Weathers’ assertion that counsel had a conflict 

of interest, we have held that appointed counsel may be 

removed because of a potential conflict of interest and that 

such a conflict could, in effect, render a defendant’s counsel 

incompetent to represent the defendant and warrant appointment of new counsel. State v. McGuire, supra. The conflict 

alleged by Weathers was that in a postconviction action, he 

was alleging that another public defender had provided ineffective assistance in a separate criminal proceeding. Weathers 

argues that this created an actual conflict of interest with 

the other public defender and that such conflict should be 

imputed to his counsel, who was also a public defender. 

Weathers cites cases to the effect that if one attorney in a firm 

has an actual conflict of interest, the conflict is imputed to all 

attorneys in the firm.
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However, in a case involving an assertion that an alleged 

conflict of interest for one attorney in a county attorney’s office 

should be imputed to the other prosecutors in the office, we 

noted that rules regarding imputed conflicts of interest differ 

between attorneys employed by law firms and those employed 

by government agencies. In State v. Kinkennon, 275 Neb. 570, 

577, 747 N.W.2d 437, 444 (2008), we described a “more flexible rule” provided in Neb. Ct. R. of Prof. Cond. 1.11(d) (rev. 

2005) (now Neb. Ct. R. of Prof. Cond. § 3-501.11(d)), which 

addresses conflicts of interest for current government officers 

and employees. We noted:

The official comment 2 to rule 1.11 explains that 

“[b]ecause of the special problems raised by imputation within a government agency, paragraph (d) does not 

impute the conflicts of a lawyer currently serving as an 

officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” This rule 

recognizes the distinction between lawyers engaged in 

the private practice of law, who have common financial 

interests, and lawyers in a prosecutor’s office, who have a 

public duty to seek justice, not profits.

State v. Kinkennon, 275 Neb. at 577, 747 N.W.2d at 444. We 

think this reasoning applies as well to lawyers within a public 

defender’s office, who also have a public duty to seek justice 

for the defendants they represent. As to whether Weathers’ 

assertion of claims of ineffective assistance of counsel create 

a conflict of interest for the specific public defender who represented him in the underlying prior conviction, any such conflict would not be imputed to a different public defender who 

was representing him in the current proceeding. The district 

court therefore did not abuse its discretion when it refused to 

remove Weathers’ counsel on the basis of the alleged conflict 

of interest.

Weathers also argues that counsel deprived him of his right 

to effective representation and therefore should have been 
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removed, because counsel missed a “pretrial conference” on 

January 10, 2018. The record indicates that counsel attended a 

“pretrial conference” that was held on November 28, 2017. At 

that conference, the court mentioned that time had been scheduled on January 10, 2018, to consider “pretrial motions.” There 

is no transcript in the record on appeal for a proceeding held 

on January 10, but at a proceeding held on March 5, Weathers’ 

counsel acknowledges missing a hearing on January 10 due 

to a misunderstanding that a hearing would not be held that 

day, because counsel did not have motions ready to be heard 

that day. The March 5 hearing then continued with, inter alia, 

defense counsel presenting certain motions. Although counsel 

missed the scheduled hearing on January 10, there is nothing 

in the record indicating that anything occurred at that hearing 

that materially affected Weathers’ defense, and it appears that 

counsel presented motions at a later date. We do not think the 

record shows that counsel was incompetent in this respect, and 

therefore we do not think the court abused its discretion when 

it refused to remove counsel on this basis.

Weathers further argues counsel should have been removed 

for failing to meet with him prior to trial to discuss the case or 

to review discovery. The State notes that the record indicates 

that counsel had met with Weathers to discuss discovery, and 

Weathers in his motion acknowledged that counsel had met 

with him, although he alleged counsel did not provide him with 

“full discovery,” which he asserted consisted of “3000 plus 

pages of discovery.” The record also indicates that counsel had 

made motions to continue the trial in order to allow additional 

time to prepare with Weathers. These indicate that counsel was 

engaged in preparation with Weathers, and we do not think it 

shows that counsel was incompetent. We therefore do not think 

the court abused its discretion when it refused to remove counsel on this basis.

In addition to arguing that the three above-stated reasons 

required the court to remove counsel, Weathers also claims 

on direct appeal that each of the three reasons constituted 
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ineffective assistance of trial counsel. As discussed above, 

counsel did not have a conflict of interest based on Weathers’ 

postconviction claims regarding a different public defender; 

because counsel had no such conflict of interest, it was not 

deficient performance for counsel to represent Weathers in 

this proceeding. With regard to the other two reasons, as 

discussed above, the record on direct appeal does not indicate that counsel was incompetent for either of the asserted 

reasons. We therefore conclude that on direct appeal, there is 

no merit to Weathers’ claim that trial counsel provided ineffective assistance for the reasons set forth in his motion to 

remove counsel.

We note, however, that in his final claim of ineffective 

assistance, which we discuss below, Weathers asserts various 

claims that he argues cannot be reviewed on direct appeal but 

that he sets forth to preserve for postconviction review. In that 

claim, he sets forth various examples of how counsel could 

have better prepared for trial. Among his specific claims are 

that counsel was ineffective because counsel failed to investigate what occurred during the January 10, 2018, hearing 

counsel failed to attend and that if counsel had met with him 

to discuss discovery, he could have provided leads regarding 

defenses, including alibi defenses. Our conclusion herein that 

the record on direct appeal refutes the claim that counsel was 

ineffective in the ways alleged in the motion to remove counsel 

does not necessarily foreclose claims related to counsel’s performance with respect to the January 10 hearing or to counsel’s 

preparation of Weathers’ defense to the extent such claims can 

be established based on information outside the record in this 

direct appeal.

Counsel Was Not Ineffective for Failing 

to Move for Continuance.

Weathers claims ineffective assistance of counsel when 

counsel failed to move for a continuance of the trial a few 

days before trial was scheduled to begin. Weathers asserts two 
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reasons counsel should have moved for a continuance: (1) 

Counsel had not adequately prepared with Weathers for trial, 

and (2) the court granted the State’s motion to endorse a witness 3 days before trial was scheduled to start. We conclude the 

record on direct appeal refutes this claim.

First, Weathers argues that counsel should have moved for 

a continuance because counsel had not adequately prepared 

with Weathers for trial. Weathers’ argument in this respect 

simply refers back to his argument to support his claim that 

the district court should have sustained his motion to remove 

counsel on the basis that counsel had failed to meet with him 

prior to trial to discuss the case or to review discovery. As discussed above, we determine that the record refutes Weathers’ 

claim that the district court should have removed counsel for 

this reason. For the same reason, we conclude that the record 

refutes that counsel was ineffective for failing to move for 

a continuance on the basis of counsel’s failure to adequately 

prepare with Weathers. In particular, we note that the record 

indicates that counsel made motions for continuance that were 

denied by the district court. In this respect, we also note that 

in Weathers’ final claim of ineffective assistance of counsel on 

direct appeal, he asserts that he could have provided counsel 

leads to investigate defenses, including alibi defenses; such 

alleged information is obviously not in the record on direct 

appeal, and we consider below whether this aspect of the claim 

is refuted in the record.

Weathers further argues counsel was ineffective for failing 

to move for a continuance based on the court’s endorsement 

of a State’s witness a few days before trial was scheduled 

to begin. As discussed below, we determine that the record 

shows that Weathers could not show prejudice from counsel’s failure to move to continue based on endorsement of 

the witness.

The record on direct appeal shows that on March 22, 2018, 

the State filed a motion for leave to endorse John Cress as 

a witness, and that on March 23, Weathers’ counsel filed an 
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objection to the motion, noting that trial was set to begin on 

March 26. Weathers’ counsel asserted that the motion should 

be denied because the State’s request was filed after deadlines 

had passed for endorsing witnesses and for filing motions. 

The court heard the State’s motion and Weathers’ objection 

on March 23. The transcript of the hearing showed that Cress 

would testify regarding chain of custody for the DNA evidence, 

specifically “transporting evidence to the State crime lab.” 

After hearing argument on the motion and Weathers’ objection, 

which included discussion regarding prejudice to the preparation of the defense, the court sustained the State’s motion to 

endorse the witness but “require[d] that the State make [Cress] 

available for a deposition for [Weathers] before he testifies.” 

At trial, Cress testified as the last witness on March 27. He 

generally testified that he was an Omaha police officer and that 

on October 4, 2002, he was assigned to “pick up a rape kit at 

central station property room and transport it to the Nebraska 

State Patrol Crime Lab.” He testified further regarding completing this assignment. Cress’ testimony was relatively brief, 

and Weathers’ counsel took the opportunity to cross-examine 

and re-cross-examine Cress regarding his testimony.

We conclude that Weathers could not show prejudice resulting from counsel’s failure to move for a continuance based 

on the endorsement of the witness shortly before trial. We 

note that if counsel had moved for a continuance, the decision would have been left to the district court’s discretion. See 

State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017) (stating 

that decision whether to grant continuance in criminal case is 

within discretion of trial court and will not be disturbed on 

appeal absent abuse of discretion). Also, we have said that a 

trial court, in the exercise of its discretion, may permit additional witnesses to be endorsed within the 30 days before trial 

and even after the trial has begun, provided doing so does not 

prejudice the rights of the defendant. State v. Smith, 292 Neb. 

434, 873 N.W.2d 169 (2016). In this case, at the hearing on the 

State’s motion to endorse Cress as a witness, the court took 
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into consideration whether doing so a few days prior to trial 

would prejudice Weathers in the preparation of his defense. 

The court addressed any potential prejudice by requiring the 

State to make Cress available to Weathers for a deposition 

before he testified.

Considering the nature of Cress’ testimony, basically establishing a link in the chain of custody, we do not think the court 

abused its discretion when it sustained the State’s motion to 

endorse. Furthermore, the court addressed potential prejudice 

by requiring that Cress be made available for a deposition. 

Although it is not clear from the record whether Weathers 

took Cress’ deposition, the record does show that Weathers 

thoroughly cross-examined Cress on the matters to which he 

testified and that Weathers re-cross-examined Cress after the 

State’s redirect.

We note further that requiring Cress to be made available for a deposition adequately addressed the concerns that 

would have been considered if Weathers’ counsel had moved 

for a continuance. Therefore, if counsel had moved for a continuance, the court likely would have denied a continuance 

and instead ordered the same remedy it gave in response to 

Weathers’ objection to endorsement of the witness, and we do 

not think it would have been an abuse of discretion to deny 

such a motion to continue. Weathers cites State v. Ash, 286 

Neb. 681, 838 N.W.2d 273 (2013), in which we held that the 

trial court abused its discretion when it denied the defendant’s 

request to continue trial based on a codefendant’s plea agreement with the State, executed on the eve of trial, pursuant to 

which she agreed to testify against the defendant. By contrast 

to the testimony of a codefendant, Cress’ testimony in this case 

was limited in scope and relatively minor given the entirety of 

the evidence in the case. Making Cress available for a deposition without granting a continuance of the trial was sufficient 

to protect against prejudice to Weathers’ preparation of his 

defense. Therefore, the record refutes this claim of ineffective 

assistance of counsel.
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Weathers’ Claims of Failures by Counsel 

Relating to Investigation and Presentation 

of Defenses Are Either Refuted by the 

Record or Cannot Be Reviewed 

on Direct Appeal.

Weathers finally claims that counsel failed to adequately 

investigate and present several aspects of his defense. Weathers 

asserts that the record on direct appeal is not sufficient to 

review these claims but that he is setting them forth herein 

in order to preserve the claims for postconviction review. 

In each of these claims, Weathers asserts that counsel failed 

to discover or to pursue certain information that could have 

helped his defense. These claims therefore rely on evidence or 

information that is not included in the record on appeal, and 

we therefore agree with Weathers that the claims could not be 

resolved on direct appeal. However, we determine that two of 

the claims, which both relate to the alleged use of the 2014 

DNA sample, are shown to be without merit because, as we 

discussed above, the DNA evidence admitted at trial was not 

dependent on the 2014 DNA sample.

In the argument section of his brief, Weathers sets forth the 

following claims:

•Trial counsel failed to consult with or call as a witness 

an expert in the field of DNA identification. A DNA 

identification expert would have evaluated all the testing 

done in this case, including the testing of other suspects’ 

profiles done by investigators, and testified that another 

suspect, possibly an unknown relative of Weathers, 

matched the unknown suspect’s profile, and that the 

lab technicians called by the State made mistakes in the 

testing and interpretation of DNA in this case.

•In relation to the ineffective assistance directly above, 

trial counsel failed to investigate or subpoena DNA analyst “Christine.” This analyst would have testified that 

investigators were told the person who committed the 

sexual assaults could be a relative of Weathers because 
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they shared most of the DNA core loci, yet police did 

not use this information to further investigate other individuals who may have committed the sexual assaults.

•Trial counsel failed to investigate the circumstances 

of the 2014 case against Weathers. Had he done so, 

he would have discovered additional testimony by . . . 

Jaworski confirming not only that an investigative comparison was illegally done between Weathers’ 2014 

DNA sample and that of the unknown suspect, but 

that investigators did upload Weathers’ DNA profile to 

CODIS. The trial court found no evidence that either an 

investigatory comparison or a CODIS search occurred 

in 2014. . . .

•Trial counsel similarly failed to investigate or call former crime lab director James Wisecarver regarding 

crime lab policies and procedures, which would have 

provided evidence in addition to that provided by . . . 

Jaworski that investigators both conducted an investigative comparison of Weathers’ 2014 DNA sample to the 

unknown suspects in 2014.

•Trial counsel failed to request a continuance or mistrial 

when, during trial, the State turned over evidence including video of the forcible extraction of Weathers’ DNA 

sample, evidence relevant not only to the motion to suppress the DNA evidence, but to . . . Weathers’ defense 

that the State and the trial court targeted Weathers for 

malicious prosecution.

•Trial counsel failed to investigate ex parte communications that occurred between the trial court and the prosecutor that occurred during the January 10, 2018 pretrial 

conference missed by trial counsel. . . . These communications would have provided additional evidence 

relevant to Weathers’ defense that the State and the trial 

court targeted Weathers for malicious prosecution, and 

would have supported a motion to recuse both the prosecutors and trial court prior to trial.
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•Trial counsel failed to engage in meaningful discussions 

of the case with Weathers prior to trial. Had he done 

so and allowed Weathers to review all the discovery, 

Weathers would have had an opportunity to provide 

trial counsel with leads for possible defenses, including potential alibi defenses. Trial counsel was therefore 

ineffective in failing to further investigate these potential defenses.

Brief for appellant at 47-49.

The third and fourth claims above both relate to allegations 

that counsel failed to pursue evidence that could have shown 

that investigators in 2014 had made a comparison of the DNA 

evidence from the 2002 and 2004 unsolved cases to the DNA 

sample Weathers provided in connection with the investigation of the 2014 assaults. However, as we discussed above, the 

DNA evidence that was admitted at the trial in this case was the 

result of DNA samples that were collected in 2017, and such 

evidence was obtained independently of the collection or use 

of Weathers’ DNA sample in 2014. Therefore, even if Weathers 

were able to show some impropriety in the collection or use of 

the 2014 DNA sample, it would not have required suppression 

of the DNA evidence that was admitted in the present case. We 

therefore conclude that the record on direct appeal refutes the 

third and fourth claims above.

Regarding the remaining claims above, each of the claims 

relies on alleged evidence or information that is not included 

in the record on direct appeal, and none of these claims are 

clearly refuted by anything in the record. Therefore, we cannot say on direct appeal that these claims are without merit. 

We agree with Weathers’ assertion that these claims cannot 

be determined on direct appeal, because the record on appeal 

does not disclose what steps trial counsel took in regard to 

these avenues of investigation, what would have been found 

if the various actions had been taken by counsel, and whether 

the findings would have helped Weathers’ defense. Weathers’ 

brief on appeal did not specifically assign these claims as error, 
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as required by our recent decision in State v. Mrza, 302 Neb. 

931, 926 N.W.2d 79 (2019), but his brief was filed prior to the 

release of our Mrza decision. Therefore, we include this listing 

so that a district court reviewing any petition for postconviction relief that Weathers might bring in the future will be able 

to recognize what specific claims were brought before this 

court on direct appeal.

[29,30] As we recently emphasized in State v. Stelly, ante

p. 33, 932 N.W.2d. 857 (2019), when an appellate court finds, 

on direct appeal, that the record is not sufficient to resolve a 

claim of ineffective assistance, it should not be misunderstood 

as a finding that the claim will necessarily require an evidentiary hearing if raised in a motion for postconviction relief, 

because that determination is governed by an entirely different 

standard. Also, just because an appellate court finds the record 

on direct appeal is insufficient to resolve a claim of ineffective 

assistance, it does not mean that a postconviction court will 

necessarily be precluded from later finding the existing record 

affirmatively refutes the same claim. Id.

CONCLUSION

Regarding Weathers’ assignments of error by the district 

court, we conclude that the court did not commit plain error 

when it admitted the DNA evidence in this case and that it did 

not abuse its discretion when it overruled Weathers’ motion 

to remove counsel and appoint substitute counsel. Regarding 

Weathers’ claims of ineffective assistance of trial counsel, we 

determine, as set forth above as to each specific claim, either 

that the record on direct appeal shows the claim is without 

merit or that the record on direct appeal is not sufficient to 

review the claim. We therefore affirm Weathers’ convictions 

and sentences for four counts of first degree sexual assault.

Affirmed.

Freudenberg, J., not participating.