Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 435

Cite as 22 Neb. App. 435

State of Nebraska, appellee, v. 

Corey A. Brooks, appellant.

___ N.W.2d ___

Filed October 14, 2014. No. A-13-761.

1. Constitutional Law: Miranda Rights: Self-Incrimination. In Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the U.S. 

Supreme Court sought to protect the Fifth Amendment privilege against compelled self-incrimination from the inherently compelling pressures of custodial 

interrogation. To do so, the Court required law enforcement to give a particular 

set of warnings to a person in custody before interrogation: that he has the right 

to remain silent, that any statement he makes may be used as evidence against 

him, and that he has the right to an attorney, either retained or appointed.

2. Miranda Rights: Self-Incrimination. While the particular rights delineated 

under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), 

are absolute, the language used to apprise suspects of those rights is not.

3. ____: ____. The inquiry in reviewing Miranda warnings is simply whether the 

warnings reasonably convey to a suspect his rights.

4. Constitutional Law: Right to Counsel. Once the adversary process has been 

initiated, the Sixth Amendment guarantees a defendant the right to have counsel 

present at all “critical” stages of the criminal proceedings.

5. Constitutional Law: Right to Counsel: Waiver. The Sixth Amendment right to 

counsel may be waived by a defendant, so long as the relinquishment of the right 

is voluntary, knowing, and intelligent.

6. Constitutional Law: Miranda Rights: Right to Counsel: Waiver. When a 

defendant is read his Miranda rights (which include the right to have counsel 

present during interrogation) and agrees to waive those rights, that typically 

“does the trick” with regard to the requirement that such waiver be voluntary, 

knowing, and intelligent, even though the Miranda rights purportedly have their 

source in the Fifth Amendment.

7. ____: ____: ____: ____. As a general matter, an accused who is admonished with 

the warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

L. Ed. 2d 694 (1966), has been sufficiently apprised of the nature of his Sixth 

Amendment rights, and of the consequences of abandoning those rights, so that 

his waiver on this basis will be considered a knowing and intelligent one.

8. Right to Counsel. Once an accused has invoked his right to counsel, he is not 

subject to further interrogation by the authorities until counsel has been made 

available, unless he initiates the contact.

9. Constitutional Law: Right to Counsel: Attorney and Client. Inherent in the 

Sixth Amendment right to counsel is the assurance of confidentiality and privacy 

of communication with counsel.

10. Right to Counsel. The right to counsel is violated when a state agent is present 

at confidential attorney-client conferences.

11. 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; 
Decisions of the Nebraska Court of Appeals

436 22 NEBRASKA APPELLATE REPORTS

and if one link in the chain is missing, the object may not be introduced 

in evidence.

12. Trial: Evidence. In determining whether the State has established a sufficient 

chain of custody, a court decides the issue on a case-by-case basis, considering 

the following factors: the nature of the evidence, the circumstances surrounding 

its preservation and custody, and the likelihood of intermeddlers tampering with 

the object.

13. ____: ____. 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.

14. ____: ____. 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. As long as 

the article can be identified, it is immaterial in how many or in whose hands it 

has been.

15. Trial: Evidence: Proof. Proof that an exhibit remained in the custody of law 

enforcement officials is sufficient to prove a chain of possession and is sufficient 

foundation to permit its introduction into evidence.

16. Trial: Evidence: Appeal and Error. Appellate review concerning the admissibility of evidence is for an abuse of discretion.

17. Effectiveness of Counsel: Proof: Appeal and Error. 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.

18. Effectiveness of Counsel: Records: Appeal and Error. On direct appeal, the 

resolution of ineffective assistance of counsel claims turns upon the sufficiency 

of the record.

19. ____: ____: ____. 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.

20. Criminal Law: Effectiveness of Counsel: Records: Appeal and Error. The 

trial record reviewed on appeal in a criminal case is devoted to issues of guilt and 

innocence and does not usually address issues of counsel’s performance.

21. Effectiveness of Counsel: Appeal and Error. A defendant alleging that trial 

counsel was ineffective is required to specifically assign and argue his trial counsel’s allegedly deficient conduct.

22. Effectiveness of Counsel: Records: Proof: Appeal and Error. On direct appeal, 

an appellate court can determine whether the record proves or rebuts the merits of 

a claim of ineffective assistance of trial counsel only if it has knowledge of the 

specific conduct alleged to constitute deficient performance.

23. Effectiveness of Counsel: Appeal and Error. Specific allegations of prejudice are not required when the issue of counsel’s performance is raised on 

direct appeal.

Appeal from the District Court for Douglas County: Joseph

S. Troia, Judge. Affirmed.
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 437

Cite as 22 Neb. App. 435

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

appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Inbody, Chief Judge, and Irwin and Bishop, Judges.

Irwin, Judge.

I. INTRODUCTION

Corey A. Brooks appeals his convictions for possession of 

a deadly weapon by a prohibited person and possession with 

intent to deliver methamphetamine. On appeal, Brooks challenges the denial of motions to suppress and alleges his various trial attorneys provided ineffective assistance of counsel. 

We find that Brooks’ assertions regarding counsel cannot be 

resolved on the record provided, and we otherwise find no 

merit to Brooks’ assertions on appeal. We affirm.

II. BACKGROUND

This case is closely related to and interwoven with State 

v. Brooks, ante p. 419, ___ N.W.2d ___ (2014). The charges 

in the instant case arose largely out of evidence seized upon 

Brooks’ arrest upon the execution of an arrest warrant issued 

related to the charges in State v. Brooks. Because of the 

interwoven nature of the evidence and procedural posture of 

the two cases, we take judicial notice of the appellate record 

presented in State v. Brooks. See Dowd Grain Co. v. County 

of Sarpy, 19 Neb. App. 550, 810 N.W.2d 182 (2012) (appellate court may examine and take judicial notice of proceedings and judgment of interwoven cases). See, also, Pennfield 

Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008) 

(appellate court may take judicial notice of documents filed in 

separate but related action).

As set forth in the opinion in State v. Brooks, supra, 

Brooks was implicated in the homicide of James Asmus 

that occurred in September 2011. The investigation into that 

homicide eventually led Omaha Police Department (OPD) 

officers to obtain and execute an arrest warrant to take 

Brooks into custody.
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438 22 NEBRASKA APPELLATE REPORTS

OPD officers executed the arrest warrant on September 10, 

2011. After conducting surveillance on a location at which 

they believed Brooks to be located, officers identified Brooks 

getting into a vehicle. As officers approached, Brooks ran. 

Numerous officers gave chase and eventually apprehended 

Brooks. A search of Brooks’ person and the area through 

which he had run resulted in the location of drugs, cash, and 

a gun.

On September 11, 2011, after being arrested and booked, 

Brooks indicated to corrections officers that he wished to 

speak to OPD officers. Brooks was transported to an OPD 

interview room. Brooks’ attorney, Bill Eustice, had previously contacted OPD Sgt. Donald Ficenec during OPD’s 

investigation into the homicide of Asmus and had indicated 

that Brooks “wanted to come make a statement to the Omaha 

police,” but Eustice was at that time out of town and wanted 

to arrange a time for Brooks to make a statement. Prior to 

arrangements’ being made and Brooks’ making a statement, 

however, OPD officers obtained and executed the arrest warrant. In light of Eustice’s prior contact, Ficenec called Eustice 

and allowed Brooks to speak with Eustice on the telephone, 

privately, prior to any OPD interview of Brooks. After Brooks 

finished speaking with Eustice, Brooks gave the telephone 

to Ficenec and Eustice indicated to Ficenec that “Brooks 

had indicated to [Eustice] that he was going to tell [OPD 

officers] the same information that . . . Brooks had already 

told . . . Eustice.” After Brooks spoke with Eustice, he was 

advised of his Miranda rights and was interviewed by another 

OPD officer.

During the course of the interview, Brooks made statements 

about the drugs found on his person “two to three” times. 

When Ficenec made a statement about OPD’s having “located 

four and a half grams” of drugs, Brooks “corrected him and 

said ounces.” Brooks also stated during the interview, “I got 

caught with the drugs, I did get caught with the gun, that’s 

mine.” Finally, Brooks also made a statement about the cash 

found on his person; Ficenec made a statement indicating that 

approximately $2,500 had been located, and Brooks indicated 

that “it should be closer to [$]4,000.”
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 439

Cite as 22 Neb. App. 435

Brooks also spoke with OPD officers in interviews that 

occurred on October 30 and December 22, 2011. Both times, 

in events comparable to the September 11 interview, Brooks 

requested to speak with OPD officers despite having counsel. 

Ficenec indicated that Brooks contacted him approximately 13 

times between late October and December 2011.

In February 2012, Eustice was allowed to withdraw from 

representing Brooks. Another attorney entered an appearance 

on behalf of Brooks. In July, this second attorney was allowed 

to withdraw from representing Brooks. A third attorney was 

appointed to represent Brooks. Additionally, another attorney appeared as cocounsel with the third attorney on behalf 

of Brooks.

In July 2012, during the second attorney’s argument to the 

court concerning his request to withdraw from representation 

of Brooks, he indicated that he had given Brooks a copy of 

police reports concerning the investigation into Brooks’ case. 

Brooks’ personal possession of police reports while incarcerated was contrary to a “Receipt of Discovery” agreement that 

had been signed on behalf of Eustice, during his representation of Brooks, and signed by the second attorney during 

his representation of Brooks. The State alleged that Brooks’ 

personal possession of police reports violated “office policies and create[d] a risk of witness interference, harassment 

and tampering.” As a result, the State contacted the Douglas 

County Department of Corrections and asked that all police 

reports be confiscated from Brooks’ possession. The confiscated materials were then sealed and eventually turned over 

to the State.

The State then attempted to have Brooks’ then-counsel, 

the aforementioned third attorney, review the materials and 

remove any work product. The sealed materials were opened, 

and the attorney was requested to take possession of the materials and remove any work product; he refused to take possession of the materials. The materials were then locked in an 

evidence room.

In July 2012, Brooks filed a second amended motion to 

suppress, in which he sought to suppress, “from use against 

[Brooks], any and all evidence contained in the police reports 
Decisions of the Nebraska Court of Appeals

440 22 NEBRASKA APPELLATE REPORTS

associated with” the instant case. Brooks alleged that a variety 

of his constitutional rights had been violated by the confiscation of police reports from his cell. In August, the State filed a 

motion seeking to have Brooks compelled to review the confiscated material and remove any work product.

At a hearing on Brooks’ motion to suppress evidence contained in the police reports, Brooks testified at length about the 

police reports that had been confiscated from his possession. 

He testified that he had previously reviewed the police reports 

with his counsel, that together they had made notes and underlined information on the police reports, and that the reports 

had his “writing, underlining and notes written on almost every 

page.” When Brooks was shown the reports confiscated from 

his possession, he testified that a number of pages appeared to 

be missing.

The two exhibits that compose the reports confiscated 

from Brooks’ possession are together more than 500 pages in 

length. Although the testimony before the trial court reflected 

that the reports were contained in a variety of “envelopes” and 

were testified to in conjunction with references to the reports 

in each of approximately nine envelopes, the exhibits presented to this court on appeal do not contain those envelopes 

and, instead, include simply a series of police reports with a 

blank blue sheet inserted occasionally between them, throughout; our review suggests that the blue sheets and the contents 

between them do not correspond to any particular envelopes 

or to any indication of the specific reports within a particular 

envelope as testified to before the trial court. A review of the 

police reports presented to this court indicates that few of the 

more than 500 pages include any kind of markings, and the 

markings that do appear generally consist of either underlining 

of small portions of a report or a handwritten reference, at the 

top of a page, to the name of the particular witness that the 

report concerns.

At the conclusion of the hearing on Brooks’ motion to suppress, the trial court expressed confusion about what Brooks 

was seeking to suppress. When the court specifically asked 

Brooks’ counsel what he was seeking to suppress, counsel 

indicated, “the evidence that is contained in the police reports.” 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 441

Cite as 22 Neb. App. 435

The court indicated that it was not going to suppress all of 

the evidence contained in police reports on the basis of copies of the reports’ being confiscated from Brooks. The court 

ultimately granted the State’s motion to compel and denied 

Brooks’ motion to suppress.

In December 2012, Brooks filed a third amended motion 

to suppress, seeking to exclude from evidence the drugs, the 

cash, and the gun located at the time of his arrest. In support 

of the motion, Brooks asserted that OPD reports related to 

the evidence listed “recovery date[s]” that were inconsistent 

with his September 11, 2011, arrest. Brooks asserted that 

problems with the chain of custody required exclusion of 

the evidence.

This case was tried before a jury in July 2013. The jury 

returned verdicts of guilty on the charges of possession with 

intent to deliver methamphetamine and possession of a deadly 

weapon by a prohibited person. The trial court entered judgment, Brooks was sentenced, and this appeal followed.

III. ASSIGNMENTS OF ERROR

In this appeal, Brooks has assigned four errors. First, 

Brooks asserts that “[t]he trial court erred in failing to suppress the evidence obtained during Brooks’ September 11, 

2011 interview.” Second, Brooks asserts that his case should 

be dismissed as a result of the State’s confiscation of the 

police reports that had been in his possession; alternatively, 

he asserts that he should be granted a new trial. Third, Brooks 

asserts that “[t]he trial court erred when it admitted gun and 

drug evidence despite the State’s failure to adequately demonstrate that the evidence remained in the custody of law 

enforcement . . .” prior to trial. Fourth, Brooks asserts that his 

“respective trial counsels [sic] provided prejudicial ineffective assistance.”

IV. ANALYSIS

1. September 11, 2011, Interview

Brooks first assigns as error that the district court erred 

“in failing to suppress the evidence obtained during Brooks’ 

September 11, 2011 interview.” The record demonstrates that 
Decisions of the Nebraska Court of Appeals

442 22 NEBRASKA APPELLATE REPORTS

Brooks was advised of his rights, was afforded the opportunity to speak with his counsel, initiated contact with law 

enforcement, and voluntarily waived his right to counsel. This 

assigned error is without merit.

[1-3] In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), the U.S. Supreme Court sought 

to protect the Fifth Amendment privilege against compelled 

self-incrimination from the inherently compelling pressures 

of custodial interrogation. State v. Nave, 284 Neb. 477, 821 

N.W.2d 723 (2012). To do so, the Court required law enforcement to give a particular set of warnings to a person in custody 

before interrogation: that he has the right to remain silent, 

that any statement he makes may be used as evidence against 

him, and that he has the right to an attorney, either retained 

or appointed. Id. While the particular rights delineated under 

Miranda are absolute, the language used to apprise suspects 

of those rights is not. State v. Nave, supra. The inquiry is simply whether the warnings reasonably convey to a suspect his 

rights. Id.

[4-7] The U.S. Supreme Court has noted that once the 

adversary process has been initiated, the Sixth Amendment 

guarantees a defendant the right to have counsel present at 

all “critical” stages of the criminal proceedings. Montejo v. 

Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 

955 (2009). Interrogation by the State is such a stage. Id.

The Sixth Amendment right to counsel may be waived by a 

defendant, so long as the relinquishment of the right is voluntary, knowing, and intelligent. Montejo v. Louisiana, supra.

When a defendant is read his Miranda rights (which include 

the right to have counsel present during interrogation) and 

agrees to waive those rights, that typically “does the trick,” 

even though the Miranda rights purportedly have their source 

in the Fifth Amendment. Montejo v. Louisiana, 556 U.S. at 

786. As a general matter, an accused who is admonished with 

the warnings prescribed in Miranda has been sufficiently 

apprised of the nature of his Sixth Amendment rights, and 

of the consequences of abandoning those rights, so that his 

waiver on this basis will be considered a knowing and intelligent one. Montejo v. Louisiana, supra, quoting Patterson 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 443

Cite as 22 Neb. App. 435

v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 

261 (1988).

In this case, Brooks was read his rights verbatim from the 

OPD’s rights advisory form, after he had already been afforded 

the opportunity to speak to his counsel. Brooks indicated that 

he understood his rights and proceeded to speak with officers. 

The warnings were reasonably conveyed to Brooks, he actually 

spoke with counsel, and he waived his rights.

[8] In Montejo v. Louisiana, supra, the Court recognized 

that once an accused has invoked his right to counsel, he is not 

subject to further interrogation by the authorities until counsel 

has been made available, unless he initiates the contact. See, 

also, Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. 

Ed. 2d 378 (1981). Brooks points to Edwards as support for his 

argument that he had invoked his right to counsel and that the 

right was infringed by the September 11, 2011, interrogation. 

We disagree.

The record in this case is clear. Brooks initiated the contact with law enforcement before each interview, including 

the September 11, 2011, interview. Indeed, at the time of the 

September 11 interview, Brooks requested to speak to law 

enforcement and law enforcement contacted Brooks’ counsel 

and had Brooks speak with his counsel. Brooks indicated a 

desire to speak with law enforcement after speaking with his 

counsel and affirmatively waived his rights.

Brooks argues on appeal that evidence should have been 

suppressed because his waiver was limited to an authorization 

“to elicit a specific statement regarding the homicide” and that 

the specific statement was an exculpatory statement. Brief for 

appellant at 14. Specifically, Brooks argues in his brief that 

law enforcement “accepted Brooks’ subsequent waiver of his 

[Miranda] rights after [counsel] advised both Brooks and [law 

enforcement] that police were authorized to elicit a specific 

statement regarding the homicide charged [in State v. Brooks, 

ante p. 419, ___ N.W.2d ___ (2014)].” Brief for appellant at 

14. The record does not support this assertion.

The portion of the record cited by Brooks in support of the 

above assertion does not include any such testimony. Rather, 

the record indicates that Ficenec spoke with Brooks’ counsel, 
Decisions of the Nebraska Court of Appeals

444 22 NEBRASKA APPELLATE REPORTS

Eustice; that Eustice did not communicate any issues or problems with an interview of Brooks; and that Eustice indicated 

that Brooks “was going to tell [law enforcement] the same 

information that [he] had already told” Eustice. Ficenic testified that Eustice did not put any parameters on the interview 

that was to take place and did not indicate that anything 

was “off limits.” Eustice also testified, but he did not testify 

that he put any restrictions or limitations on the interview 

of Brooks.

In his brief on appeal, Brooks asserts that “Ficenec knew 

that Eustice did not have any information concerning the new 

gun and drug offenses that the State eventually filed in the 

case” and that “Eustice advised both Brooks and Ficenec that 

police were authorized to elicit a specific statement regarding the homicide” at issue in State v. Brooks, supra. Brief for 

appellant at 14. Our review of the portions of the record cited 

by Brooks, however, indicates that the cited portions of the 

record do not include any such testimony. Rather, the cited portions of the record indicate that Ficenec testified that Eustice 

did not communicate any issues or problems with interviewing 

Brooks and that Eustice told Ficenec that Brooks “was going 

to tell [law enforcement] the same information that [he] had 

already told” Eustice.

There is no indication in our record of what, precisely, 

Brooks had previously told Eustice. There is, obviously, no 

indication in our record of what Brooks and Eustice discussed 

or whether Brooks had informed Eustice of anything related to 

the charges in the instant case. It does not appear that Eustice 

was ever actually asked if he had been aware of anything 

related to the charges in the instant case.

Eustice was asked if, during his telephone conversation 

with Brooks on September 11, 2011, any information was 

given to him “about [Brooks’] actually being in the homicide interrogation room and being under arrest for murder,” 

and Eustice indicated that although “[n]othing specifically” 

had been said, he “just assumed that [Brooks] was” because 

Ficenec had initiated the telephone call. Eustice also testified 

that his “reasoning behind suggesting that . . . Brooks talk 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 445

Cite as 22 Neb. App. 435

to [officers] is because [Brooks’] version of what occurred 

was exculpatory.”

Brooks repeatedly asserts throughout his argument that 

OPD officers violated his rights and did not effectively 

make counsel available because they “knowingly exceeded 

the scope of the authorization granted . . . by Eustice when 

[they] questioned Brooks regarding the gun and drug offenses 

the State eventually charged in the case at bar.” Brief for 

appellant at 14. Brooks argues that officers “failed to recognize or failed to honor the limitations placed on the interview by Eustice” and that the information Eustice authorized 

officers to get from Brooks “consisted of a specific exculpatory statement concerning only the homicide.” Id. at 17. 

The record presented by Brooks, however, does not support 

this suggestion.

Finally, we note that although the interviews of Brooks were 

recorded, sometimes with both audio and visual recording and 

sometimes with only audio recording, the actual recordings of 

the interviews were not offered as evidence to the jury. Rather, 

the State offered exhibits which comprised two of the interviews and a “redacted” version of the interviews “for limited 

purpose for the Court and the record.” Evidence was adduced 

in the form of testimony of Ficenec and another officer concerning the interviews and statements that Brooks had made, 

but it is not apparent that any recording of the interviews was 

ever played for the jury.

In this case, Brooks initiated contact with law enforcement, was afforded the opportunity to speak with his counsel, 

was advised of all of his rights, and voluntarily waived those 

rights. The district court did not err in overruling the motion 

to suppress.

2. Confiscation of

Police Reports

Brooks next assigns as error that the charges brought 

against him “should be dismissed because the State violated 

Brooks’ constitutional right to private communications with 

counsel when it raided Brooks’ cell without his knowledge 
Decisions of the Nebraska Court of Appeals

446 22 NEBRASKA APPELLATE REPORTS

and confiscated his confidential work product.” In the alternative, Brooks seeks to have the convictions reversed and 

the matter remanded for a new trial. This assigned error 

is meritless.

As noted above in the background section, during the course 

of these proceedings, one of Brooks’ attorneys provided him 

with copies of police reports, in violation of Douglas County 

policies and discovery agreements signed by Brooks’ counsel. 

The State then had law enforcement confiscate the materials 

and took steps to have Brooks’ counsel review the materials 

and remove any work product. The evidence adduced at trial 

uniformly indicated that the State never looked at any of the 

materials and was not aware of whether any work product 

appeared on any of the materials.

Brooks argues that the privacy of his communications with 

his counsel was violated because the confiscated materials 

included “work produced by Brooks both by himself and 

while working on his case with trial counsel.” Brief for appellant at 21. Brooks urges us to reach a conclusion similar to 

that of the California Supreme Court in Barber v. Municipal 

Court, etc., 24 Cal. 3d 742, 598 P.2d 818, 157 Cal. Rptr. 658 

(1979). We decline to do so.

In Barber v. Municipal Court, etc., participants of a “sit-in” 

near a nuclear power facility as a demonstration of opposition 

to the use of nuclear power were charged with trespassing and 

unlawful assembly. As it turned out, one of the codefendants 

was actually an undercover police officer, who had become 

intimately involved with the group and attended numerous 

planning meetings. After the participants were arrested, attorneys arrived at the jail and conducted a confidential attorneyclient conference with the arrestees, including the undercover 

officer. The undercover officer was present for the confidential 

attorney-client conference with the defendants and testified that 

he was sure defense strategy had been discussed, but that he 

had not paid close attention.

At or around the time of the defendants’ arraignment, the 

presiding judge and the prosecuting attorney were informed 

that one of the defendants was an undercover officer, but 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 447

Cite as 22 Neb. App. 435

defense counsel was not informed. The undercover officer 

continued to pose as a codefendant with the defendants and as 

a client of defense counsel. He attended numerous confidential 

attorney-client conferences that included detailed discussions 

about the case and defense strategy. He participated in discussion about the defense.

Throughout the pretrial proceedings, the undercover officer 

reported to his superiors. His superiors testified that they could 

not remember what information he had conveyed to them, but 

that they were sure he had given them no information about 

defense strategy.

At some point, approximately 2 months after the arrests, 

the undercover officer’s identity as an undercover officer 

was made known to defense counsel and to the defendants. 

Evidence indicated that after this information was revealed, 

the defendants became paranoid, distrustful of one another and 

their counsel, and reluctant to actively participate in preparing 

a defense.

The defendants filed a motion seeking to have the charges 

dismissed. The trial court denied the motion on the ground 

that there was no evidence any confidential information had 

been transmitted to the prosecution, but ordered suppression 

of any evidence gained from the undercover officer or derived 

from his presence at any meetings between the defendants and 

their counsel.

[9,10] On appeal, the California Supreme Court reversed. 

Id. The court recognized that inherent in the Sixth Amendment 

right to counsel is the assurance of confidentiality and privacy 

of communication with counsel. Thus, the court held that the 

right to counsel is violated “when a state agent is present at 

confidential attorney-client conferences.” Barber v. Municipal 

Court, etc., 24 Cal. App. 3d at 752, 598 P.2d at 823, 157 Cal. 

Rptr. at 663.

The California Supreme Court, relying heavily on the evidence of the impact on the relationship between the defendants 

and their counsel of discovering the undercover officer’s true 

identity, concluded that on the facts of that case, dismissal was 

the only appropriate remedy. Id.
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448 22 NEBRASKA APPELLATE REPORTS

The present case, however, is substantially distinguishable. 

This case does not involve any situation where any representative of the State was “sitting in on” any conversations between 

Brooks and counsel. The present case does not present a situation where any member of the prosecution or the investigating officers was privy to any discussions between Brooks and 

his counsel or aware of any aspects of defense strategy. The 

unrefuted evidence in this case is that once the materials were 

confiscated, nobody associated with the State actually read or 

reviewed any of the contents of the materials.

In this case, Brooks did not move for dismissal at the 

trial level. Rather, he moved “that any evidence contained 

in the police reports, . . . containing [Brooks’] protected 

defense work product, be excluded from use against him at 

trial.” Although it was not entirely clear what relief Brooks 

was seeking at trial and the trial court expressed confusion 

about the relief being sought, there was no request for dismissal of any charges. Brooks has not assigned as error the 

district court’s denial of the relief he actually requested at 

trial, suppression.

We are thus left with a situation where Brooks requested 

a particular relief at trial, was denied that relief, and has not 

assigned error to the denial of that relief, but where he asserts 

on appeal that the district court erred in not granting other 

relief that was never requested. The only way this assigned 

error could be found to have merit would be on the basis of a 

finding of plain error.

To the extent Brooks appears to have requested the trial 

court to suppress the entire contents of all police reports in this 

case because copies of them were confiscated from his cell—

confiscated on the basis that his possession thereof violated 

Douglas County policies and disclosure agreements signed by 

his counsel—we find no plain error in the district court’s denial 

of the motion.

To the extent Brooks seeks to have us grant relief never 

requested below, either in the form of dismissal of all charges 

or in the form of a new trial, we similarly find no plain error 

meriting such relief. The record in this case is clear that 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 449

Cite as 22 Neb. App. 435

the State did not look at any of the confiscated materials to 

determine any content therein, contrary to the undercover 

officer’s continued participation and awareness of specific 

defense strategies in Barber v. Municipal Court, etc., 24 Cal. 

3d 742, 598 P.2d 818, 157 Cal. Rptr. 658 (1979). Moreover, 

although the confiscated materials are presented as exhibits 

that together appear to be at least 500 pages in length, our 

review of the materials indicates that there is little to no 

information contained therein that was added to the original 

reports by Brooks or his counsel. Indeed, the most that can be 

said about the confiscated reports appears to be that someone 

underlined some portions of witness testimony on a handful of 

the police reports and wrote the name of particular witnesses 

who are mentioned in the reports at the top of a handful of 

pages. The vast majority of the 500 or more pages contain 

absolutely no markings whatsoever.

The denial of the relief requested at trial has not been 

appealed to us. The relief urged on appeal was not requested 

at trial. We find no plain error and find this assigned error to 

be meritless.

3. Chain of Custody

Brooks next assigns as error that the district court erred 

“when it admitted gun and drug evidence despite the State’s 

failure to adequately demonstrate that the evidence remained 

in the custody of law enforcement for the entire period prior 

to trial.” Brooks’ argument in this regard is primarily focused 

on the fact that “[w]ritten forms relating to both the gun and 

the drugs introduced during Brooks’ trial contained dates of 

recovery that did not match the dates of recovery testified to 

by the officers.” Brief for appellant at 28. We find no merit to 

this assigned error.

[11,12] 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); State 
Decisions of the Nebraska Court of Appeals

450 22 NEBRASKA APPELLATE REPORTS

v. Veatch, 16 Neb. App. 50, 740 N.W.2d 817 (2007). In determining whether the State has established a sufficient chain of 

custody, a court decides the issue on a case-by-case basis, considering the following factors: the nature of the evidence, the 

circumstances surrounding its preservation and custody, and 

the likelihood of intermeddlers tampering with the object. State 

v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012). See, also, 

State v. Glazebrook, supra.

[13-16] 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. State v. Glazebrook, supra; 

State v. Veatch, supra. 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. As long as the article 

can be identified, it is immaterial in how many or in whose 

hands it has been. State v. Veatch, supra. Proof that an exhibit 

remained in the custody of law enforcement officials is sufficient to prove a chain of possession and is sufficient foundation 

to permit its introduction into evidence. Id. Appellate review 

concerning the admissibility of evidence is for an abuse of 

discretion. See id.

In this case, Brooks first filed a motion to suppress the drugs 

found on his person at the time of his arrest and the gun found 

at the time of his arrest, arguing that there was a problem with 

the chain of custody because OPD forms concerning the evidence included a “recovery date” that was not consistent with 

the date of his arrest. At the hearing on Brooks’ motion, the 

OPD employees responsible for completing the forms testified 

that it appeared that a mistake had been made concerning the 

recovery date. The State argued that a motion to suppress was 

not the proper way to challenge the chain of custody, because 

the State could prove the chain of custody through testimony at 

trial. See, e.g., State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 

(1990) (assertion concerning chain of custody goes to weight 

to be given to evidence presented rather than to admissibility 

of evidence). The trial court agreed and held that the testimony 

concerning clerical error was sufficient to support denial of the 

motion to suppress.
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 451

Cite as 22 Neb. App. 435

At trial, the State adduced additional evidence concerning 

the chain of custody for the drugs and the gun. Officer Robert 

Laney testified that he counted the money and put the money 

and drugs that were found on Brooks’ person into evidence. 

An OPD crime laboratory technician testified that she received 

the drugs from Laney and made sure that the packaging all 

matched up with the actual contents and that the paperwork 

was properly completed to check the drugs in as evidence. 

An employee in OPD’s property and evidence unit testified 

that the crime laboratory technician booked the drugs into a 

locker and that he then took the drugs from the locker to the 

property room and documented everything in the crime laboratory book.

Laney testified about the process of putting items into evidence and testified that another employee was responsible for 

then filling out the form identifying the drugs and allowing for 

tracking of the drugs while they remained in the custody of 

law enforcement and for checking them out for testing. That 

employee testified that she filled out the form and that she put 

the wrong date on the form as the date of recovery. A forensic chemist testified that he checked out the drugs for testing, 

that he personally picked the drugs up from OPD, and that the 

drugs were in his possession while checked out. He testified 

that another employee returned the drugs to OPD. Another 

employee of the property and evidence unit testified that he 

checked the drugs back in when the forensic chemist returned 

them after testing.

With respect to the gun, an OPD crime laboratory technician testified that she went to the scene of Brooks’ arrest on 

September 11, 2011, marked items of evidence for photographing, collected items of evidence, and transported evidence 

back to OPD’s crime laboratory. She testified that the gun and 

ammunition located at the time of Brooks’ arrest were placed 

into a safe and that she made the necessary notations in the 

property book. An employee of the property and evidence unit 

testified that the crime laboratory technician checked the gun 

into a property locker and that the employee then retrieved the 

gun from the locker and placed it into an OPD evidence storage location.
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452 22 NEBRASKA APPELLATE REPORTS

The evidence adduced at trial demonstrated that the drugs 

and the gun were in the possession of OPD from the time they 

were located at Brooks’ arrest until trial. The evidence demonstrated that logbooks and records were kept to document each 

person who took possession of the items throughout the time 

leading up to trial. The evidence indicated that a clerical error 

was made with regard to the date of recovery on two of the 

chain of custody forms, but there was no evidence adduced 

to suggest that the items were ever out of law enforcement’s 

control, tampered with by any intermeddlers, or subject to 

any substantial change so as to render them misleading. See 

State v. Veatch, 16 Neb. App. 50, 740 N.W.2d 817 (2007). 

We find no abuse of discretion in the district court’s allowing admission of the evidence at trial. This assigned error is 

without merit.

4. Assistance of Counsel

Finally, Brooks assigns as error that his “respective trial 

counsels [sic] provided prejudicial ineffective assistance.” He 

argues that “all of his trial counsels [sic]” provided ineffective assistance “at various points throughout the proceedings.” 

Brief for appellant at 32. Brooks asserts that his trial attorneys were ineffective in a variety of ways, including failing 

to interview, depose, or subpoena a variety of witnesses, and 

that Eustice was ineffective in advising Brooks to speak with 

police without his presence on several occasions. We find 

that these assertions cannot properly be considered in this 

direct appeal.

[17] The test for ineffective assistance of counsel is well settled. 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. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

[18-20] On direct appeal, the resolution of ineffective assistance of counsel claims turns upon the sufficiency of the record. 

Id. The fact that an ineffective assistance of counsel claim is 
Decisions of the Nebraska Court of Appeals

STATE v. BROOKS 453

Cite as 22 Neb. App. 435

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. Id. This is because the 

trial record reviewed on appeal in a criminal case is devoted 

to issues of guilt and innocence and does not usually address 

issues of counsel’s performance. Id.

[21-23] A defendant alleging that trial counsel was ineffective is required to specifically assign and argue his trial 

counsel’s allegedly deficient conduct. Id. On direct appeal, an 

appellate court can determine whether the record proves or 

rebuts the merits of a claim of ineffective assistance of trial 

counsel only if it has knowledge of the specific conduct alleged 

to constitute deficient performance. Id. Specific allegations of 

prejudice, however, are not required when the issue is raised on 

direct appeal. Id.

In this case, the record presented on direct appeal is not sufficient for us to resolve Brooks’ assertions that his trial counsel 

performed ineffectively. Although Brooks asserts that counsel 

performed ineffectively in failing to independently interview, 

depose, or subpoena a variety of witnesses, there is no record 

presented to us to demonstrate that counsel actually did fail 

to interview or depose any of the witnesses. Although Brooks 

makes assertions in his brief about what the various witnesses 

would have testified, there is obviously no record to support 

his assertions or to indicate what any of the witnesses might 

have testified.

Finally, although the record does indicate that Eustice 

advised Brooks to speak with law enforcement without his 

presence, the record has not been developed to fully indicate 

Eustice’s motivations for such a decision, beyond his expectation that Brooks would provide an exculpatory statement. 

Moreover, it is not apparent from the record presented how 

Eustice’s advice in this regard resulted in prejudice, inasmuch 

as there was substantial evidence adduced to the trial court 

concerning Brooks’ involvement in the homicide.

On the record presented on direct appeal, we cannot find 

that Brooks’ trial counsel performed deficiently or that any 

alleged deficient performance prejudiced Brooks’ defense. 
Decisions of the Nebraska Court of Appeals

454 22 NEBRASKA APPELLATE REPORTS

At this time, the record is insufficient to further address 

the merits of Brooks’ assertions about the effectiveness of 

his counsel.

V. CONCLUSION

We find no merit to Brooks’ assertions on appeal. We affirm.

Affirmed.

State of Nebraska, appellee, v. 

John P. Tharp, appellant.

___ N.W.2d ___

Filed October 14, 2014. No. A-13-959.

1. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and 

Error. In a criminal trial, after a pretrial hearing and order denying a motion to 

suppress, the defendant must object at trial to the admission of evidence sought 

to be suppressed to preserve an appellate question concerning the admissibility of 

that evidence.

2. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A failure to 

object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and that party will not be heard to 

complain of the alleged error on appeal.

3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.

4. ____: ____. An appellate court gives statutory language its plain and ordinary meaning.

5. Statutes: Legislature: Intent. In construing a statute, a court must determine 

and give effect to the purpose and intent of the Legislature as ascertained from 

the entire language of the statute considered in its plain, ordinary, and popular sense.

6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence 

is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of the evidence, 

or failure to prove a prima facie case, the standard is the same: In reviewing a 

criminal conviction, an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; such matters are for 

the finder of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to 

the State, is sufficient to support the conviction.

Appeal from the District Court for Scotts Bluff County: 

Randall L. Lippstreu, Judge. Affirmed.