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STATE v. ANDERSON

Cite as 305 Neb. 978

State of Nebraska, appellee, v. 

Melvin Anderson, appellant.

___ N.W.2d ___

Filed May 29, 2020. No. S-19-1038.

1. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

2. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine 

whether counsel did or did not provide effective assistance and whether 

the defendant was or was not prejudiced by counsel’s alleged deficient 

performance.

3. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest 

waives all defenses to a criminal charge.

4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or 

no contest, he or she is limited to challenging whether the plea was 

understandingly and voluntarily made and whether it was the result of 

ineffective assistance of counsel.

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

assistance of counsel, the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.

6. Effectiveness of Counsel: Appeal and Error. In reviewing claims of 

ineffective assistance of counsel on direct appeal, an appellate court 

decides only whether the undisputed facts contained within the record 

are sufficient to conclusively determine whether counsel did or did not 

provide deficient performance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance.

7. Effectiveness of Counsel: Records: Appeal and Error. The record on 

direct appeal is sufficient to review a claim of ineffective assistance of 

trial counsel if it establishes either that trial counsel’s performance was 

Nebraska Supreme Court Online Library

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

07/10/2020 12:08 AM CDT
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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.

8. Effectiveness of Counsel: Proof. To show that counsel’s performance 

was deficient, a defendant must show that counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law.

9. ____: ____. To show prejudice in a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding 

would have been different.

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

to undermine confidence in the outcome.

11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a plea of no contest, the prejudice requirement for 

an ineffective assistance of counsel claim is satisfied if the defendant 

shows a reasonable probability that but for the errors of counsel, the 

defendant would have insisted on going to trial rather than pleading 

no contest.

12. Preliminary Hearings: Probable Cause. The purpose of a preliminary 

hearing is to ascertain whether or not a crime has been committed and 

whether or not there is probable cause to believe the accused committed it; it is not a trial of a person accused to determine his or her guilt 

or innocence, but is a procedural safeguard to prevent a person from 

being detained in custody without probable cause existing that the crime 

charged was committed by that person.

13. Preliminary Hearings: Plea in Abatement. A plea in abatement is used 

to challenge the sufficiency of the evidence at a preliminary hearing.

14. Motions to Dismiss: Plea in Abatement. Generally, a motion in the 

nature to dismiss is permitted in criminal cases in various forms, including a motion to quash and a plea in abatement.

15. Plea in Abatement: Evidence: Probable Cause: Verdicts. In order to 

resist a challenge by a plea in abatement, the evidence received by the 

committing magistrate need show only that a crime was committed and 

that there is probable cause to believe that the accused committed it; the 

evidence need not be sufficient to sustain a verdict of guilty beyond a 

reasonable doubt.

16. Effectiveness of Counsel. As a matter of law, counsel is not ineffective 

for failing to make a meritless objection.

17. Preliminary Hearings: Probable Cause: Witnesses. A full adversarial 

hearing in which witnesses are called is not required for a determination of probable cause in a preliminary hearing under Neb. Rev. Stat. 

§ 29-1607 (Reissue 2016).
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18. Constitutional Law: Preliminary Hearings: Probable Cause. In an 

informal preliminary hearing, it does not violate the Confrontation 

Clause to rely on out-of-court statements to determine probable cause 

for purposes of continuing a defendant’s pretrial detention.

19. Criminal Law: Depositions: Pretrial Procedure. There is no obligation for the State to produce the victim or assist in locating the victim 

for purposes of a pretrial deposition by defense counsel.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In an appeal from a plea-based conviction, the defendant, 

through new counsel, asserts that his plea was the result of 

ineffective assistance of trial counsel. The majority of the allegations of deficient conduct revolve around the victim’s failure 

to appear at the preliminary hearing and law enforcement’s 

inability to serve her with subpoenas for her appearance at the 

preliminary hearing and subsequent deposition. The defendant 

also argues that trial counsel was ineffective by failing to move 

to suppress his inculpatory statement to law enforcement in 

relation to the charge of third degree domestic assault to which 

he pleaded.

BACKGROUND

Melvin Anderson was originally charged in county court with 

strangulation, in violation of Neb. Rev. Stat. § 28-310.01(2) 

(Reissue 2016), in relation to events occurring on March 14, 
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2019. Following a hearing on March 15, the court issued an 

order of probable cause and further detention.

The probable cause affidavit described that law enforcement had responded to a call of domestic assault on March 

14, 2019. Law enforcement observed red marks on both sides 

of the victim’s neck consistent with being choked. The victim 

described that while she was at her and Anderson’s apartment, 

Anderson grabbed her around the neck with one hand and 

held her against the wall for several minutes while threatening to kill her. She said there were moments when she could 

not breathe. The victim’s cousin witnessed the assault and was 

able to eventually assist the victim and accompany her out 

of the apartment. Law enforcement later contacted Anderson, 

who admitted only to grabbing the victim by her coat so that 

he could get his wallet and telephone from her. Anderson 

described that he grabbed the front of the victim’s coat near 

her neck and that it was possible he could have grabbed her 

neck with the coat.

On April 25, 2019, trial counsel filed a praecipe for a 

subpoena to be served upon the victim, commanding her 

appearance at the preliminary hearing scheduled for May 

22. The journal entry for the preliminary hearing on May 

22 reflects that the court found probable cause and that the 

case was bound over to the district court for trial. It does not 

describe the court’s reasoning in finding probable cause. The 

only witness at the hearing was a law enforcement officer. 

The journal entry does not reflect that the victim appeared at 

the hearing.

On June 26, 2019, an amended information was filed in 

district court charging Anderson with the original count of 

strangulation in violation of § 28-310.01(2) and new counts of 

tampering with a witness or informant in violation of Neb. Rev. 

Stat. § 28-919 (Reissue 2016) and violating a protection order 

in violation of Neb. Rev. Stat § 42-924(4) (Cum. Supp. 2018). 

The new counts related to events occurring between June 1 

and 12. Anderson waived appearance at the arraignment of the 
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amended information. There is no record that a preliminary 

hearing was held on the amended charges.

A reciprocal discovery order was entered on June 25, 2019, 

with depositions to be taken by Anderson within 30 days. A 

praecipe for a subpoena was filed on June 25, commanding 

the victim to appear as a witness before the district court on 

July 16. Records show that the sheriff attempted to serve the 

subpoena on July 1, 9, and 12. On July 16, at the request of the 

county attorney, the subpoena was returned unserved.

Another subpoena was issued on July 16, 2019, commanding the victim to appear as a witness before the district court 

on July 22. Records show that the sheriff attempted to serve 

the subpoena on July 18, 19, and 22, and it was returned as not 

served on July 23.

On August 23, 2019, Anderson entered pleas of no contest 

to the State’s second amended information, which then charged 

Anderson with one count of third degree domestic assault 

in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue 

2016), one count of attempted tampering with a witness or 

informant in violation of Neb. Rev. Stat. §§ 28-201(4)(e) and 

28-919 (Reissue 2016), and one count of violating a protection 

order under § 42-924(4).

The factual basis provided by the State asserted that on 

March 14, 2019, law enforcement responded to a report of 

domestic assault. A protection order had been granted for the 

victim against Anderson earlier that day, but had not yet been 

served. Anderson went to the victim’s apartment, there was an 

argument, and Anderson grabbed the victim by the neck, applying so much pressure to her neck that there were moments she 

was unable to breathe and telling her that he would kill her. 

The victim’s cousin was a witness to the assault and was able 

to assist the victim in leaving the apartment. Anderson later 

indicated to law enforcement that he had an argument with 

the victim and admitted to grabbing her coat, but denied strangling her.
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While Anderson was in custody for this offense, the victim 

received a letter addressed to her from an inmate at the jail 

who identified himself as “Lucky Luciano.” The victim did not 

open the letter. She knew that “Lucky” was Anderson’s nickname. Law enforcement opened the letter, which informed the 

victim she should tell the courts that there was no fight and no 

choking, that she feels protected and safe around “Lucky,” and 

that it was a mistake putting him in jail. The letter directed the 

victim to report that she was off her medication and did not 

know what she was doing when she made the report. Enclosed 

with the letter was a piece of a dreadlock that the victim 

believed was from Anderson. There was a protection order in 

place when this letter was delivered to the victim.

After an extensive colloquy with Anderson, the court 

accepted Anderson’s pleas as voluntarily, freely, knowingly, 

and intelligently made, and it found that there was a factual 

basis for the pleas. Despite trial counsel’s request to sentence 

Anderson immediately, the court ordered a presentence investigation be completed. The State noted that it was trying to reach 

the victim in order to obtain a victim impact statement, but that 

its last contact with her had been in May 2019.

Once the presentence investigation was completed, the court 

proceeded to sentencing. The State noted at the sentencing 

hearing that the probation office was able to obtain a victim 

impact statement, which was somewhat surprising because the 

State had been having difficulty locating her. The State noted 

that Anderson “had the benefit of a very generous plea agreement from the State simply because we were having difficulty 

finding [the victim] after we tried to subpoena her several 

times for a deposition and trying to locate her by mail and 

by phone.”

The court sentenced Anderson to imprisonment for 180 days 

on count 1, 360 days on count 2, and 360 days on count 3. The 

sentences on counts 2 and 3 were ordered to be served concurrently to each other and consecutively to count 1.
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Anderson appeals, seeking to set aside his pleas and the 

resulting convictions and sentences, as the result of ineffective assistance of trial counsel. He obtained new counsel for 

his appeal.

ASSIGNMENTS OF ERROR

Anderson assigns that trial counsel provided ineffective 

assistance by (1) failing to move to continue the plea in abatement, when the subpoena issued by Anderson was not served 

on the alleged victim; (2) failing to file a plea in abatement, 

because there was insufficient evidence to support a probable 

cause finding that Anderson strangled the alleged victim; (3) 

failing to move the trial court to require the State to produce 

the alleged victim for deposition and exclude the alleged victim as a witness; (4) failing to move to suppress Anderson’s 

statement; and (5) counseling Anderson to enter a plea. We 

disregard Anderson’s broad assignment of error that trial counsel provided ineffective assistance of counsel to Anderson in 

violation of his Sixth Amendment rights, because 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. 1

STANDARD OF REVIEW

[1] Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. 2

[2] In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to 

conclusively determine whether counsel did or did not provide 

effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance. 3

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

2 Id.

3 Id.
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ANALYSIS

[3,4] Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. 4 Thus, when a 

defendant pleads guilty or no contest, he or she is limited to 

challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective 

assistance of counsel. 5 For this direct appeal, Anderson has 

obtained counsel different from trial counsel, and he asserts 

that his pleas were the result of ineffective assistance of trial 

counsel. He does not challenge whether his pleas were otherwise understandingly and voluntarily made.

[5-7] To prevail on a claim of ineffective assistance of 

counsel, the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense. 6 In reviewing 

claims of ineffective assistance of counsel on direct appeal, 

an appellate court decides only whether the undisputed facts 

contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide deficient 

performance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 7 The record 

on direct appeal is sufficient to review a claim of ineffective 

assistance of trial counsel 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. 8

[8-11] To show that counsel’s performance was deficient, a 

defendant must show that counsel’s performance did not equal 

4 State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).

5 Id.

6 See, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984); State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).

7 See State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).

8 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
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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 A reasonable probability is a probability sufficient to 

undermine confidence in the outcome. 11 When a conviction 

is based upon a plea of no contest, the prejudice requirement 

for an ineffective assistance of counsel claim is satisfied if the 

defendant shows a reasonable probability that but for the errors 

of counsel, the defendant would have insisted on going to trial 

rather than pleading no contest. 12

Anderson asserts that but for trial counsel’s failure to pursue various pretrial motions pertaining to the victim’s lack 

of appearance at the preliminary hearing and the inability to 

serve a subpoena upon her, the charges against him would 

have been dismissed; therefore, he would not have pleaded no 

contest. He also asserts that counsel was deficient by failing to 

move in limine to suppress his statements to law enforcement. 

Anderson’s assignment of error that counsel was ineffective 

in advising him to plead no contest is intertwined with these 

assertions because, he argues, it was deficient conduct for 

trial counsel to advise him to plead before pursuing the pretrial motions.

Preliminary Hearing

Anderson first argues that but for trial counsel’s ineffective 

assistance in failing to file a plea in abatement or a motion 

to continue at the preliminary hearing, the charges against 

him would have been dismissed before he decided to plead 

no contest. The undisputed facts contained within the record 

are sufficient to conclusively determine that trial counsel was 

9 Mrza, supra note 1.

10 Id.

11 Id.

12 See Privett, supra note 4.
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not deficient by failing to file a plea in abatement. Further, 

we are able to conclusively determine upon the record that 

Anderson will be unable to demonstrate that but for trial counsel’s failure to file another motion to continue the preliminary 

hearing, the charges would have been dismissed—the premise 

upon which he asserts he would have declined to enter into a 

plea bargain agreement with the State. Accordingly, the record 

conclusively demonstrates that the allegedly deficient act of 

failing to move to continue the preliminary hearing did not 

prejudice Anderson.

[12] The purpose of a preliminary hearing is to ascertain 

whether or not a crime has been committed and whether or not 

there is probable cause to believe the accused committed it. 13 It 

is not a trial of a person accused to determine his or her guilt 

or innocence, but is a procedural safeguard to prevent a person 

from being detained in custody without probable cause existing 

that the crime charged was committed by that person. 14

Anderson asserts that the court stated during the preliminary 

hearing that it was binding the matter over because Anderson 

had admitted he strangled the victim, and he argues that 

because the probable cause affidavit did not contain such an 

admission, the case would have been dismissed had counsel 

filed a plea in abatement on the grounds of lack of probable 

cause. With this reasoning, Anderson concludes that trial counsel was ineffective for failing to file a plea in abatement.

[13-15] A plea in abatement is used to challenge the sufficiency of the evidence at a preliminary hearing. 15 It has been 

observed that, generally, a motion in the nature to dismiss 

is permitted in criminal cases in various forms, including a 

motion to quash and a plea in abatement. 16 In order to resist 

a challenge by a plea in abatement, the evidence received by 

13 State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).

14 Id.

15 State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).

16 See State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
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the committing magistrate need show only that a crime was 

committed and that there is probable cause to believe that the 

accused committed it. 17 The evidence need not be sufficient to 

sustain a verdict of guilty beyond a reasonable doubt. 18

Anderson acknowledges that the county court’s alleged statement as to its reasoning in concluding there was probable cause 

is not in the record, because the preliminary hearing was not 

preserved. He does not assert that trial counsel was ineffective 

in failing to insist that the preliminary hearing be part of the 

record. In any event, whatever was said by the county court 

at the preliminary hearing, the undisputed facts of the record 

affirmatively demonstrate there was probable cause to show 

that a crime was committed and that Anderson committed it.

At the time of the preliminary hearing, Anderson had not yet 

sent the letter from “Lucky,” and his allegations of ineffective 

assistance of trial counsel at the preliminary hearing appear 

limited to count 1, strangulation, which was reduced to third 

degree domestic assault pursuant to the plea bargain agreement.

The affidavit of probable cause described that law enforcement had observed red marks on both sides of the victim’s 

neck consistent with being choked and that the victim reported 

Anderson had grabbed her around the neck with one hand and 

held her against the wall for several minutes while threatening 

to kill her. She told law enforcement there were moments when 

she could not breathe.

[16] The affidavit provided sufficient evidence to support 

the court’s finding of probable cause. A plea in abatement, had 

it been made, would have lacked merit. And, as a matter of 

law, counsel is not ineffective for failing to make a meritless 

objection. 19

Anderson also asserts that trial counsel was ineffective for 

failing to move to continue the preliminary hearing, because 

17 Id.

18 See id.

19 See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
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the victim did not appear at the hearing despite the issuance of 

a subpoena. We observe that trial counsel moved to continue 

the preliminary hearing, albeit not before issuing a summons 

for the victim’s appearance. Anderson articulates his argument 

as follows:

Rather than moving to continue the hearing in order to 

obtain [the victim’s] presence and testimony, Anderson’s 

counsel allowed the matter to proceed through the preliminary hearing denying Anderson the right to confront 

[the victim] at the first opportunity which could have 

produced the first opportunity to have the case dismissed 

by the Court. 20

In his summary of the arguments, Anderson also argues that 

trial counsel’s failure to move to continue the preliminary hearing “theoretically waived Anderson’s ability to use the Court’s 

power to enforce the subpoena regarding [the victim’s] refusal 

to appear if she had been served.” 21

[17,18] Anderson’s reliance on the right to confrontation 

under these facts is misplaced. A full adversarial hearing in 

which witnesses are called is not required for a determination 

of probable cause in a preliminary hearing under Neb. Rev. 

Stat. § 29-1607 (Reissue 2016). 22 In an informal preliminary 

hearing, it does not violate the Confrontation Clause to rely on 

out-of-court statements to determine probable cause for purposes of continuing a defendant’s pretrial detention. 23

Nor is it clear how trial counsel’s inability to cross-examine 

the victim at the preliminary hearing could have resulted in 

the dismissal of the strangulation charge. Even if trial counsel 

could have obtained another continuance and the victim would 

20 Brief for appellant at 20.

21 Id. at 15.

22 See, Neb. Rev. Stat. § 27-1101 (Reissue 2016); State v. Wilkinson, 219 

Neb. 685, 365 N.W.2d 478 (1985); Daniel A. Morris, Nebraska Trials 

§ 4:11 (2019).

23 See Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
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have eventually appeared and been cross-examined at the preliminary hearing, Anderson does not argue that she would have 

recanted her report to law enforcement. Nor would it follow 

that the court would have dismissed the case if she had. There 

was a witness to the strangulation, and law enforcement had 

observed the victim’s injuries.

As already stated, with or without the victim’s testimony, 

there was probable cause to conclude that a crime was committed. The record, accordingly, conclusively demonstrates that 

Anderson would be unable, in an evidentiary hearing, to prove 

the strangulation charge would have been dismissed if trial 

counsel had moved to continue the preliminary hearing. The 

undisputed facts in the record demonstrate that Anderson was 

not prejudiced by an alleged failure to obtain dismissal because 

of trial counsel’s failure to move to continue the preliminary hearing.

As for any argument that the failure to move to continue the 

preliminary hearing prejudiced Anderson because he thereby 

waived his ability to move for an order compelling the State 

to produce the victim for a pretrial deposition, as explained in 

the next section, a motion for an order compelling the State to 

produce the victim would have lacked merit. Trial counsel’s 

alleged waiver of a nonexistent right could not have prejudiced Anderson.

Alleged Unavailability 

of Victim

Anderson asserts trial counsel was ineffective by failing to 

move for a court order that the State produce the victim or 

otherwise assist in making the victim available for the deposition ordered by the court pursuant to Neb. Rev. Stat. § 29-1917 

(Reissue 2016) and for which a subpoena under Neb. Rev. Stat. 

§ 25-1223 (Cum. Supp. 2018) had been issued at trial counsel’s 

request. In conjunction with this allegation, Anderson asserts 

that his trial counsel was ineffective by failing to move to suppress the victim’s testimony.
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According to Anderson, if trial counsel had made a request 

that the State produce the victim or assist in locating her and 

the request had been granted, and if the State had thereafter 

acted in bad faith by failing to comply with the order, then 

trial counsel could have requested that the victim’s testimony 

be excluded as a sanction against the State. Anderson asserts 

that if this had been done, the court would have granted such 

a motion and he would have insisted on going to trial. Again, 

these allegations appear limited to the charge of strangulation 

that was reduced to third degree domestic assault under the 

plea bargain agreement.

[19] The long chain of hypothetical variables in this allegation of ineffective assistance of counsel is not amenable to 

evidentiary proof. Most notably, it fails at its first premise. As 

Anderson admits, there is no obligation for the State to produce the victim or assist in locating the victim for purposes 

of a pretrial deposition by defense counsel. There would have 

been no merit to a motion for a court order compelling the 

State to produce the victim or otherwise assist in making the 

victim available for the court-ordered deposition. As a matter 

of law, counsel is not ineffective for failing to make a meritless 

objection. 24 Because there is no merit to Anderson’s assertion 

that trial counsel was ineffective for failing to move to compel 

the State in this manner, it follows that there is no merit to his 

assertion that trial counsel was ineffective for failing to move 

to suppress the victim’s testimony, under the hypothetical that 

had such motion been made and granted, the State would have 

acted in bad faith.

We also note that while there generally are remedies for 

the State’s fault or bad faith, Anderson does not assert that the 

State was concealing access to exculpatory evidence in any 

sort of a violation of Brady v. Maryland.

 25 He does not assert 

that the victim’s testimony would be exculpatory. Nor does he 

24 See State v. Schwaderer, supra note 19.

25 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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assert that the State was concealing the victim’s whereabouts. 

Indeed, the record indicates that the State had been unable to 

contact her despite its attempts to do so. The allegation that 

the State somehow would have acted in bad faith if there had 

been an order to supply the victim for the deposition is entirely 

too speculative to be susceptible to proof at an evidentiary 

hearing. Prejudice for purposes of ineffective assistance of 

counsel cannot be founded on hypothetical bad acts that did 

not occur but allegedly would have occurred had counsel not 

acted deficiently.

We are able to conclusively determine on the record that 

counsel was not ineffective for failing to move the court to 

compel the State to produce the victim or assist in locating her 

so that she could be deposed by trial counsel.

Anderson’s Statement to 

Law Enforcement

Lastly, Anderson argues that trial counsel was ineffective for 

failing to move to suppress his statement to law enforcement 

as involuntarily made. Anderson asserts that he was heavily medicated and therefore unable to understandably waive 

his Miranda rights when he made the statement. Anderson 

does not assert that any statements are at issue other than 

those described in the affidavit in support of probable cause. 

According to that report, Anderson specifically denied that he 

had strangled the victim. Anderson admitted only that he “did 

grab the victim by her coat” so that he could get his wallet and 

telephone from her.

Anderson describes this as a “confession.” 26 It clearly was 

not a confession to the original charge of strangulation, but 

perhaps could be described as such in relation to the charge of 

third degree domestic assault to which he pleaded. It cannot 

be determined on the appellate record whether this “confession” was voluntarily made, and thus, we cannot determine on 

26 Brief for appellant at 20.
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this record whether a motion to suppress the statement would 

have had any merit. Neither does the record affirmatively disprove Anderson’s assertion that if the statement would have 

been suppressed, he would not have pleaded no contest to the 

charge of third degree domestic assault. Therefore, we do not 

resolve on direct appeal the merits of this allegation of ineffective assistance.

CONCLUSION

For the foregoing reasons, we affirm the judgment below.

Affirmed.