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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

State of Nebraska, appellee, v.

Deontae C. Rush, appellant.

___ N.W.3d ___

Filed September 20, 2024. No. S-23-076.

1. Administrative Law: Statutes: Appeal and Error. The meaning 

and interpretation of statutes and regulations are questions of law for 

which an appellate court resolves independently of the lower court’s 

conclusion.

2. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of 

that discretion.

3. Trial: Evidence: Appeal and Error. Balancing the probative value of 

evidence against the danger of unfair prejudice is within the discretion 

of the trial court, whose decision an appellate court will not reverse 

unless there is an abuse of discretion.

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

Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, 

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

historical facts, an appellate court reviews the trial court’s findings for 

clear error. Whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination. And where the facts are largely 

undisputed, the ultimate question is an issue of law.

5. Appeal and Error. Consideration of plain error occurs at the discretion 

of an appellate court.

6. Motions for Mistrial: Appeal and Error. The decision whether to 

grant a motion for mistrial is within the trial court’s discretion and will 

not be disturbed on appeal in the absence of an abuse of discretion.

7. Pretrial Procedure: Rules of Evidence. The rules of evidence do not 

operate with full force at hearings before the judge to determine a preliminary question of the admissibility of evidence.

Nebraska Supreme Court Online Library

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

09/20/2024 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

8. Pretrial Procedure: Rules of Evidence: Statutes: Words and Phrases.

There is no statutory indication the reference to preliminary hearings in 

Neb. Rev. Stat. § 27-1101(4)(b) (Reissue 2016) was meant to carry a 

special or limited meaning; thus, courts look to its ordinary meaning.

9. Criminal Law: Rules of Evidence: Other Acts. Neb. Rev. Stat. 

§ 27-404(1) (Cum. Supp. 2022) operates as a broad exclusionary rule 

of relevant evidence that speaks to a criminal defendant’s propensity to 

have committed the crime or crimes charged; meanwhile, § 27-404(2) 

operates as an inclusionary rule of evidence that provides that evidence that raises a propensity inference is admissible for other proper 

purposes, including proof of motive, intent, preparation, or absence of 

mistake or accident.

10. Pretrial Procedure: Rules of Evidence: Other Acts: Legislature: 

Intent. It was the manifest intention of the Legislature in Neb. Rev. Stat. 

§ 27-404 (Cum. Supp. 2022) that the question of whether a prior bad act 

is admissible at trial as proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident be ruled on 

and finally determined before the jury learns of such evidence.

11. Criminal Law: Pretrial Procedure: Rules of Evidence. A hearing pursuant to Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) precedes the main 

discourse of a criminal case.

12. Trial: Rules of Evidence: Other Acts: Appeal and Error. A defendant 

must make an objection at trial to the offer of evidence of other crimes, 

wrongs, or acts, which was the subject of a hearing pursuant to Neb. 

Rev. Stat. § 27-404 (Cum. Supp. 2022), in order to preserve an alleged 

error in its admission during the trial.

13. Pretrial Procedure: Rules of Evidence: Words and Phrases. A hearing conducted under Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022) is 

a preliminary hearing for purposes of Neb. Rev. Stat. § 27-1101(4)(b) 

(Reissue 2016), exempting it from the evidence rules.

14. Pretrial Procedure: Rules of Evidence: Hearsay: Judges. In a hearing conducted pursuant to Neb. Rev. Stat. § 27-404 (Cum. Supp. 2022), 

the trial judge’s experience and legal training can be relied on to inform 

crucial distinctions and to reveal the inherent weakness of evidence by 

hearsay.

15. Evidence: Words and Phrases. Relevant evidence is that which has 

any tendency to make the existence of any fact that is of consequence 

to the determination of the action more probable or less probable than it 

would be without the evidence.

16. Evidence. The probative value of evidence involves a measurement of 

the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the fact from the ultimate issue of 

the case.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

17. ____. Evidence is not irrelevant simply because there is other evidence 

admitted at trial supporting a similar inference.

18. Prosecuting Attorneys: Evidence. The State is allowed to present a 

coherent picture of the facts of the crimes charged, and it may generally 

choose its evidence in so doing.

19. Evidence: Stipulations. A defendant cannot negate an exhibit’s probative value through a tactical decision to stipulate.

20. Evidence. Most, if not all, evidence offered by a party is calculated to 

be prejudicial to the opposing party.

21. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

22. Criminal Law: Evidence: Words and Phrases. Unfair prejudice 

speaks to the capacity of some concededly relevant evidence to lure the 

fact finder into declaring guilt on a ground different from proof specific 

to the offense charged, commonly on an emotional basis.

23. Evidence: Other Acts: Convictions. When considering whether evidence of other acts is unfairly prejudicial, courts consider whether the 

evidence tends to make conviction of the defendant more probable for 

an incorrect reason.

24. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error.

The failure to object to evidence at trial, even if the evidence was the 

subject of a previous motion to suppress, waives the objection, and a 

party will not be heard to complain of the alleged error on appeal.

25. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

26. 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.

27. Criminal Law: 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.

28. Effectiveness of Counsel: Presumptions. In determining whether trial 

counsel’s performance was deficient, courts give counsel’s acts a strong 

presumption of reasonableness.

29. Trial: Effectiveness of Counsel: Appeal and Error. An appellate court 

will not judge an ineffectiveness of counsel claim in hindsight, and it 

will not second-guess trial counsel’s reasonable strategic decisions.

30. Trial: Attorney and Client. The decision to object or not to object is 

part of trial strategy.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

31. Effectiveness of Counsel: Proof: Words and Phrases. 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. 

A reasonable probability is a probability sufficient to undermine confidence in the outcome.

32. Trial: Effectiveness of Counsel: Appeal and Error. When considering 

the prejudice prong of ineffective assistance of counsel, appellate courts 

focus on whether a trial counsel’s deficient performance renders the 

result of the trial unreliable or fundamentally unfair.

33. 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.

34. Effectiveness of Counsel: 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 on direct appeal.

35. Effectiveness of Counsel: Records: Appeal and Error. When a claim 

of ineffective assistance of trial counsel is raised in a direct appeal, the 

appellant is not required to allege prejudice; however, it is advisable 

for appellate counsel to specifically argue prejudice if appellate counsel 

believes the details in the trial record are sufficient to adequately review 

the question on direct appeal.

36. Trial: Effectiveness of Counsel: Records: Appeal and Error.

Regardless of whether appellate counsel believes the details in the trial 

record are sufficient to adequately review the question, an appellant 

must make specific allegations on direct appeal of the conduct that the 

appellant claims constitutes deficient performance by trial counsel.

37. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

38. Constitutional Law: Search and Seizure. The Fourth Amendment to 

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

prohibit unreasonable searches and seizures.

39. Constitutional Law: Search and Seizure: Words and Phrases. A 

search under the Fourth Amendment occurs whenever an expectation of 

privacy that society is prepared to consider reasonable is infringed.

40. Search and Seizure: Search Warrants: Probable Cause. When an 

individual seeks to preserve something as private, and the individual’s 

expectation of privacy is one that society is prepared to recognize as 
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STATE V. RUSH

Cite as 317 Neb. 622

reasonable, official intrusion into that private sphere generally qualifies 

as a search and requires a warrant supported by probable cause.

41. Constitutional Law. Under the third-party doctrine, depending on the 

nature of the particular documents sought, a person has no legitimate 

expectation of privacy in information voluntarily turned over to third 

parties, even if revealed on the assumption that it will be used only for 

a limited purpose.

42. Constitutional Law: Telecommunications: Records. A cell service 

customer does not have a reasonable expectation of privacy in the 

records maintained by a third-party service provider of the telephone 

numbers that text messages or calls were sent to or received from or in 

the times when those communications took place.

43. Trial: Effectiveness of Counsel. As a matter of law, counsel is not ineffective for failing to make an objection that has no merit.

44. Witnesses: Testimony. Questions about the extent of a witness’ familiarity with the defendant’s appearance go to the weight of the testimony 

and not its admissibility.

45. Evidence: Appeal and Error. The erroneous admission of evidence is 

harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding 

by the trier of fact.

46. Evidence: Photographs. The admission of photographs into evidence 

rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect.

47. ____: ____. A relevant photograph should not be excluded from evidence unless its prejudicial effect is greater than its probative value.

48. Homicide: Evidence: Photographs. In a homicide prosecution, photographs of a victim may be received into evidence for, among other 

things, purposes of identification.

49. Homicide: Photographs. A photograph of the victim of a homicide, 

taken before the alleged murder, is admissible for the purpose of identification, even if there exists no dispute over the identity of the deceased.

50. Effectiveness of Counsel: Witnesses: Appeal and Error. When the 

claim of ineffective assistance on direct appeal involves uncalled witnesses, vague assertions that counsel was deficient for failing to call 

“witnesses” are little more than placeholders and do not sufficiently 

preserve the claim.

51. Effectiveness of Counsel: Postconviction: Witnesses: Appeal and 

Error. Appellate counsel must give on direct appeal at least the names 

or descriptions of any uncalled witnesses forming the basis of a claim 

of ineffective assistance of trial counsel so that a postconviction court 
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STATE V. RUSH

Cite as 317 Neb. 622

may later identify whether a particular claim of failing to investigate a 

witness is the same one that was raised on direct appeal.

52. Witnesses: Appeal and Error. An appellate court does not need specific factual allegations as to what an uncalled person or persons would 

have said, which will not be found in the appellate record.

53. Effectiveness of Counsel: Records: Appeal and Error. The trial record 

reviewed on appeal is devoted to issues of guilt or innocence and does 

not usually address issues of counsel’s performance.

54. Effectiveness of Counsel: Appeal and Error. It is not usually an 

appellant’s allegations of prejudice that have guided review of ineffective assistance claims on direct appeal, but the allegations of deficient 

conduct.

55. Motions for New Trial: Motions for Continuance. A motion for new 

trial on the ground of surprise is properly overruled where a request for 

a continuance for that reason was not made at the trial.

56. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether 

the prosecutor’s remarks were improper. If the remarks are found to 

be improper, it is then necessary to determine whether the improper 

remarks had a prejudicial effect on the defendant’s right to a fair trial.

57. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant 

must show that a substantial miscarriage of justice has actually occurred.

58. Criminal Law: Motions for Mistrial. A mistrial is properly granted in 

a criminal case where an event occurs during the course of a trial that is 

of such a nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair trial.

59. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence, and such 

matters are for the finder of fact. The relevant question for an appellate 

court in reviewing a criminal conviction for sufficiency of the evidence 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

60. Circumstantial Evidence. Circumstantial evidence is entitled to be 

treated by the trier of fact in the same manner as direct evidence.

Appeal from the District Court for Lancaster County, Kevin 

R. McManaman, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

Sanford J. Pollack, of Pollack & Ball, L.L.C., and Alexander 

Kleinjan, Senior Certified Law Student, for appellant.

Michael T. Hilgers, Attorney General, and Melissa R. 

Vincent for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant was convicted by a jury of murder in the 

first degree and use of a firearm to commit a felony. He 

argues on appeal that the district court erred in making several 

evidentiary determinations and in failing to grant his motion 

for mistrial for prosecutorial misconduct during closing arguments. He also alleges several errors in relation to the failure 

to subpoena a law enforcement officer who took the report 

of a domestic assault that the defendant contends provided 

an alibi for the murder. The defendant makes numerous arguments of ineffective assistance of trial counsel, including that 

counsel was ineffective by failing to object to the admission 

of his cell site location information, which was obtained by 

a warrant that he argues was tainted by information obtained 

through an unconstitutional subpoena. Finally, the defendant 

asserts that the evidence adduced at trial was insufficient 

to find beyond a reasonable doubt that he used a firearm. 

We affirm.

II. BACKGROUND

On March 1, 2021, law enforcement was dispatched to North 

20th Street in Lincoln, Nebraska, after a neighbor reported that 

a door of a trailer home had been open for several days. After 

observing signs of a forced entry, officers entered the trailer 

and discovered James Shekie, deceased, lying on the floor with 

blood around his waist. An autopsy confirmed that Shekie died 

from a gunshot wound, which caused him to bleed to death.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

1. Police Investigation and Charges

During a search of Shekie’s trailer, law enforcement located 

several cell phones, which helped them identify Anna Feilen as 

a person of interest in Shekie’s death. Officers located Feilen 

and transported her to the Lincoln Police Department, where 

she was interviewed. During the interview, Feilen implicated 

Deontae C. Rush and her biological brother, Marques Moten 

(Marques), in Shekie’s murder.

While in custody, Feilen agreed to participate in a controlled 

call with Rush. Rush requested that Feilen take a video of her 

location to ensure the police were not involved. During the 

call, Rush was deleting messages as he typed them to Feilen. 

To preserve the communications, Feilen took screenshots of the 

messages, which showed Rush asking Feilen to “delete [her] 

side of the conversation” and “keep shut” and stating he had 

his alibi “covered.”

Several days later, law enforcement located and arrested 

Rush in Chicago, Illinois. He denied any knowledge of or 

involvement in Shekie’s murder.

The State charged Rush by information in the district court 

for Lancaster County, Nebraska, with first degree murder, a 

Class IA felony, and use of a firearm to commit a felony in 

violation of Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016), 

a Class IC felony. The information alleged that Rush killed 

Shekie while committing or attempting to commit a robbery or 

burglary. Rush entered a not guilty plea to both charges.

2. Rush’s Pretrial Motions

Before trial, Rush filed several motions to suppress, each of 

which related to evidence obtained from his cell phone, cell 

phone records, and social media accounts via a subpoena sent 

to Verizon Wireless (Verizon) and subsequent probable cause 

warrants.

(a) First Motion to Suppress

In his first motion, Rush sought to suppress the cell phone 

records subpoenaed from Verizon. Rush claimed the State 
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

was required to obtain a warrant before seizing his cell phone 

records, because a defendant has a reasonable expectation 

of privacy in his or her detailed physical movements. The 

State’s subpoena had directed Verizon to produce subscriber 

information; call detail records; detailed text message records 

that excluded content; and, specifically, “IP Destination and 

Sessions Without Cell Site Information” for the time period 

between February 19 and March 9, 2021.

(b) Second Motion to Suppress

In his second motion, Rush moved to suppress cell phone 

records later obtained from Verizon via a search warrant. 

He argued these records were improperly obtained, because 

the search warrant was tainted by an unlawful subpoena, the 

affidavit in support of the warrant did not establish probable 

cause, and the affidavit contained false and misleading information or material omissions.

The search warrant was issued by the Lancaster County 

Court on April 2, 2021. For two telephone numbers belonging 

to Marques and Rush, the search warrant demanded, among 

other things, subscriber information and all communications 

from February 20 to March 10, 2021, including cell calls and 

“tower locations and azimuth for the sectors accessed during 

the communication[s].” It also demanded “[a]ll content for 

SMS messages” for the same time period.

The affidavit supporting the search warrant detailed the 

discovery of Shekie’s body and cellular devices in the home, 

which led to the identification of Feilen, who had told law 

enforcement that Marques and Rush had developed a plan 

to break into Shekie’s home and take his marijuana. The 

affidavit further specified that on the day of the crime, 

Marques and Rush picked up Feilen and drove to Shekie’s 

mobile home. Feilen observed that Rush had a firearm with 

him in the vehicle. When they arrived, Rush approached the 

back door of Shekie’s home, forced the door open, and went 

inside, after which Feilen heard multiple gunshots and Shekie 

scream. The affidavit continued to describe events following 
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

the shooting that implicated Rush in Shekie’s death. The affidavit set forth that digital evidence obtained from Feilen’s 

cell phone showed Feilen and Rush had communicated about 

the robbery before and after its commission. In one message, Rush told Feilen his cell phone number, and in another, 

Feilen provided Marques with Shekie’s address.

The affidavit also referred to the results of the subpoena 

served on Verizon. Specifically, the results showed that Marques 

called Rush on February 23, 2021, at 12:40 a.m. and that Rush 

called Marques at 4:28 a.m. Marques and Rush also exchanged 

text messages on March 2.

Investigator Timothy Cronin, who prepared the affidavit, 

explained that in his training and experience, location data is 

maintained by the cell phone service provider, which in the 

present case could corroborate or disprove Rush’s whereabouts 

on the date of the murder. Cronin also stated that cell phone 

service providers keep records of subscriber information, billing information, call lists, tower locations, text messages, and 

“GPS coordinates.”

(c) Third Motion to Suppress

In a third motion to suppress, Rush sought to suppress all 

evidence obtained from a search warrant for his cell phone. 

Similarly to the second motion to suppress, Rush maintained 

that this evidence should be suppressed because the search 

warrant was tainted by an unlawful subpoena, the supporting affidavit did not establish probable cause, and the affidavit contained false and misleading information or material 

omissions.

The search warrant for a black Apple iPhone with a specified identification number was issued on April 2, 2021, by the 

Lancaster County Court. The warrant allowed for the search of 

messages, emails, data regarding internet usage, photographs, 

videos, and location information. The factual basis for the 

affidavit in support of the search warrant, also submitted by 

Cronin, was consistent with the affidavit supporting the warrant for the search of cellular records.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. RUSH

Cite as 317 Neb. 622

In the affidavit, Cronin elaborated, based on his training and 

experience, on the frequent use of electronic devices in criminal activity. He stated that digital storage devices, such as cell 

phones, “can be used to create, edit, delete, share, and store 

files and other data including, live and deleted documents, 

photographs, videos, electronic mail (e-mail), search history 

and other relevant user information.” He further specified that 

such devices are often used to share data with others and that 

the information associated with that data may show, among 

other things, “evidence of current, on-going, future, and past 

criminal activity.” He also explained that such data can be 

used to “identify and locate potential victims, witnesses, and 

co-conspirators.”

(d) Fourth Motion to Suppress

In his fourth motion to suppress, Rush moved to suppress 

all data from his Facebook social media account obtained via 

a search warrant issued by the Lancaster County Court on 

March 5, 2021. Rush claimed the evidence must be suppressed 

because the affidavit in support of the warrant did not establish 

probable cause and contained false or misleading information 

and material omissions.

The warrant allowed for the search of certain data associated 

with Rush’s Facebook account, including location information, 

posts, photographs, videos, status updates, and messages for 

the time period of January 1 to March 4, 2021.

The affidavit supporting the search warrant, submitted by 

Investigator Christopher Schamber, recited facts consistent with 

the affidavits described above. In addition, Schamber stated in 

the affidavit that Feilen told law enforcement she communicated with Rush about the homicide through their Facebook 

accounts and that Feilen identified Rush’s Facebook accounts 

by username and gave a description of his profile pictures.

(e) Fifth Motion to Suppress

In his fifth motion, Rush moved to suppress all evidence 

obtained from his Snapchat social media account via a search 
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Nebraska Supreme Court Advance Sheets

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STATE V. RUSH

Cite as 317 Neb. 622

warrant issued by the Lancaster County Court on March 16, 

2021. Rush again claimed the evidence must be suppressed 

because the affidavit in support of the warrant for his Snapchat 

account did not establish probable cause and contained false 

or misleading information and material omissions.

The search warrant allowed for the search of information 

associated with Rush’s Snapchat account with the “user ID 

. . . tae402boy.” This included the search of calls, messages, 

photographs, videos, and location information for the period of 

February 18 to March 10, 2021.

In support of the search warrant, the affidavit, signed 

by Investigator Lacey Reha, contained facts consistent with 

Cronin’s affidavits described above. In addition, the affidavit 

stated that digital evidence from Feilen’s cell phone shows 

that she and Rush communicated using Snapchat and that 

“[d]igital evidence identified . . . Rush’s Snapchat user ID 

[as] tae402boy.”

3. District Court’s Resolution of 

Rush’s Motions to Suppress

In a written order, the district court denied all five motions 

to suppress. With respect to Rush’s first suppression motion 

regarding the subpoenaed records from Verizon, the court 

applied the third-party doctrine, which holds that a person 

does not have a reasonable expectation of privacy in information provided to third parties. The court concluded that Rush 

had no reasonable expectation of privacy in the subpoenaed 

records. The court recognized an exception to the third-party 

doctrine for cell phone records that provide a comprehensive 

chronicle of the user’s physical location. However, because 

the subpoena excluded any cell site information or other data 

regarding Rush’s physical location, the court determined that 

the subpoenaed records from Verizon did not involve a search 

for which a warrant was required.

The court overruled Rush’s remaining motions to suppress on the ground that the search warrants were supported 
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Cite as 317 Neb. 622

by probable cause. It reasoned that the affidavits described 

substantial evidence that Rush shot and killed Shekie while 

attempting to steal Shekie’s drugs. The court reasoned the affidavits showed that Rush communicated about the crime with 

his alleged accomplices using his cell phone and his Facebook 

and Snapchat accounts. Finally, the court found the affidavits 

showed a fair probability that evidence of a crime would be 

found on Rush’s cell phone and in the records of Verizon, 

Facebook, and Snapchat.

4. Bad Acts Hearing

The State filed a pretrial “Notice of Intention to Use Evidence 

of Other Crimes, Wrongs, or Acts” pursuant to Neb. Rev. Stat. 

§ 27-404 (Cum. Supp. 2022). According to the notice, the State 

intended to offer at trial evidence obtained from Rush’s cell 

phone indicating he was distributing marijuana.

Before trial, the court held a hearing on the State’s motion. 

The State offered police reports indicating Shekie was murdered during a robbery of his drugs. The State also offered 

conversation threads from Rush’s cell phone suggesting Rush 

was distributing marijuana in the weeks leading up to Shekie’s 

death. The State believed this evidence would be relevant to 

show Rush’s motive, intent, or plan to forcefully attempt to 

take marijuana from Shekie’s home.

Rush objected to the police reports and conversation threads 

on hearsay grounds. According to Rush, the district court could 

not consider this evidence, because it contained hearsay statements. He argued that a bad acts hearing under § 27-404(3) 

(rule 404 hearing) is not a “preliminary examination[] or hearing[]” exempt from the Nebraska rules of evidence under Neb. 

Rev. Stat. § 27-1101(4)(b) (Reissue 2016).

The district court overruled Rush’s hearsay objection on the 

ground that the rule 404 hearing was a preliminary hearing 

for purposes of § 27-1101(4)(b). Thus, the court received the 

police reports and conversation threads for the purpose of the 

rule 404 hearing.
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STATE V. RUSH

Cite as 317 Neb. 622

In a subsequent written order, the court found that the State 

had proved by clear and convincing evidence that Rush was 

involved in selling marijuana at the time of Shekie’s death.

5. Order Granting State’s 

Motion for Mistrial

Rush’s initial trial began on August 8, 2022. Both parties 

provided opening statements before the jury, and the State 

began its presentation of evidence. When the district court 

judge tested positive for COVID-19, the State filed a motion 

for mistrial due to the judge’s ongoing illness and various 

logistical problems created by the delay. The jury was not 

sequestered.

The State set forth in the motion that if trial resumed on 

August 15, 2022, the jury would be outside the courtroom, 

unsequestered, for a full 6 days before trial resumed. The State 

claimed that if convicted, Rush would “certainly argue that the 

jury . . . had the opportunity to engage in jury misconduct or 

ha[d] . . . been exposed to improper influence given the media 

attention to this case.” The State also asserted in the motion 

that it would not be able to secure several witnesses after 

August 19, which would impede its ability to execute its trial 

strategy and prove its case beyond a reasonable doubt. Defense 

counsel stipulated to the facts set forth in the motion and did 

not object to a mistrial. The court granted the State’s motion.

6. Evidence at Jury Trial

Rush’s new trial was scheduled for, and began on, October 

28, 2022.

(a) Testimony of Feilen

Feilen testified under a cooperation agreement with the 

State. In exchange for her truthful testimony, the State agreed 

to charge Feilen with conspiracy to commit robbery and 

not to pursue any additional charges against her related to 

Shekie’s death.
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STATE V. RUSH

Cite as 317 Neb. 622

Feilen grew up with her adoptive parents in Bellevue, 

Nebraska. She testified that she ran away from her adoptive 

home when she was 16 years old and made contact with her 

biological sister. After Feilen ran away from home a second 

time, Feilen’s biological sister introduced her to Marques. 

Around this time, Feilen also met her biological mother, “Lisa.” 

Feilen testified that she ran away from her adoptive home in 

Bellevue three times in total. At the time of trial, her adoptive 

parents lived in Arizona.

According to Feilen, Rush contacted her through Facebook 

in October 2020 when Feilen was 17 years old. Feilen went 

to visit Rush at his home in Omaha, Nebraska. The two had 

sex and smoked marijuana. Feilen lived with Rush for a short 

period of time but left him after he became abusive. She then 

began living with Lisa in Council Bluffs, Iowa.

A few months later, Feilen met Shekie through a “dating app.” At some point, Shekie arranged to pick up Feilen 

from her friend’s house in Omaha. They traveled together to 

Shekie’s trailer in Lincoln, where Feilen stayed for approximately 21⁄2 weeks. During this time, they engaged in sex and 

smoked marijuana. At one point, Feilen and Shekie discussed 

filming their sexual interactions, but Feilen expressed she was 

not interested.

Shekie obtained a large quantity of marijuana while Feilen 

was staying in his trailer. According to Feilen, Shekie asked 

her to help him sell the drugs. Feilen agreed and posted 

photographs of the drugs on Snapchat. She also shared these 

photographs with Marques.

Feilen left Shekie after she learned Shekie was secretly 

recording their sexual interactions. Feilen and other witnesses 

testified throughout the trial regarding Shekie’s poor character. Several witnesses testified that Shekie used and sold 

marijuana. Further testimony established Shekie would record 

his sexual interactions with women and engage in unprotected 

sex despite having genital warts. Shekie also attempted to sell 

pornographic videos on the internet.
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Feilen moved into Lisa’s apartment in Lincoln. Feilen testified that on the morning of the robbery, Marques and Rush 

called her while she was sleeping at Lisa’s apartment. They 

indicated they wanted to steal Shekie’s marijuana. Shortly 

thereafter, Marques and Rush arrived at Lisa’s apartment to 

try persuading Feilen to join in the robbery. Feilen initially 

resisted but later agreed to join them after Rush threatened 

her with a gun.

Feilen, Marques, and Rush left Lisa’s apartment and drove 

to Shekie’s trailer home. Rush was driving. Other evidence 

adduced at trial established that the vehicle Rush was driving, 

a van, belonged to Marques’ girlfriend. Feilen observed a gun 

on the “floor of the driver’s seat.”

According to Feilen, they arrived around 3 a.m. and, after 

about 10 minutes, Rush got out of the van with the gun. He 

proceeded to Shekie’s trailer and kicked in the door. Feilen 

heard two or three gunshots and then heard Shekie scream. 

Marques moved to the driver’s seat, and he and Feilen drove 

away. Feilen observed Rush exit the trailer and run.

A few minutes later, Rush contacted Feilen and Marques 

and they picked him up at a nearby building. Rush told Feilen 

and Marques that Shekie was “squirming” and so he fired 

shots in the air. He never made any statements about shooting 

Shekie during the robbery. The group initially drove back to 

Lisa’s apartment but could not get in. They ended up driving to 

Omaha to drop off Rush between 4 and 5 a.m.

Feilen testified that sometime the next day, Rush told her 

“to stay low and to not say anything.” He also told her via 

“Facebook Messenger” to keep quiet and delete their prior 

conversations. He asked Feilen whether Shekie had any cameras in his trailer.

During cross-examination, defense counsel impeached 

Feilen numerous times with prior statements she made to law 

enforcement during the investigation. Feilen previously told 

law enforcement that she “never stayed with . . . Shekie,” but 

admitted at trial that was not true. Feilen told investigators 
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she had “never exchanged sex for money,” but admitted at 

trial that was untrue. Feilen stated to law enforcement that 

she had “never had sex with . . . Shekie,” but then testified 

at trial that she lied and had previously had sex with Shekie 

“five or six times.” When asked during the investigation 

when she had last seen Shekie, Feilen told officers she had 

not contacted him since Valentine’s Day 2021, but she admitted at trial that was not true; she admitted she had contacted 

him the day before his murder. Feilen also admitted at trial 

that she lied when she told law enforcement that she did not 

have “anything to do with . . . Shekie’s death.” She told law 

enforcement she was sleeping at Lisa’s house the night of the 

murder, but admitted at trial that that was a lie and that she 

was “in the van.”

Feilen told law enforcement in her proffer interview that 

it “made [her] mad” when she heard Shekie was having sex 

with other women. She testified at trial, however, that she 

exaggerated her anger and did not fully tell the truth in her 

proffer interview. Feilen also told law enforcement that she 

was “okay” with Shekie’s recording their sexual interactions 

but admitted at trial that was not true. Feilen admitted she had 

lied to law enforcement by stating that Shekie was angry she 

was leaving him. Feilen admitted Shekie was unaware of her 

plan to leave him. When asked by defense counsel whether 

she was aware Rush impregnated other women while she was 

living with him, Feilen responded, “I did not know that.” But 

defense counsel adduced evidence that Feilen had previously 

told law enforcement that Rush had impregnated other women 

while she lived with him. Feilen also testified that she was 

not living with Lisa on the Valentine’s Day before Shekie’s 

death. She admitted she lied during the investigation by telling law enforcement she was living with Lisa at that time.

Feilen admitted during cross-examination that she told an 

officer during an interview, “I lie, I do it all the time.” Finally, 

defense counsel adduced Feilen’s testimony that around the 

time of Shekie’s death, she “lie[d] all the time.”
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(b) Testimony of Marques

Marques also testified at trial under a cooperation agreement 

with the State.

Around the time of Shekie’s death, Marques was living in 

Council Bluffs with his girlfriend. He had been previously shot 

in a robbery in 2014. As a result, he was paralyzed from the 

waist down and cannot walk without therapy and custom-made 

braces. Marques testified that he had not used his braces since 

2019 and that he was using a wheelchair around the time of 

Shekie’s death.

Marques testified that he met Rush for the first time in 

January 2021, when Rush wanted to purchase drugs from him. 

Thereafter, Rush would communicate with Marques through 

Facebook on a friendly level.

On February 19, 2021, Feilen sent Marques photographs 

and videos of large quantities of drugs located at Shekie’s 

trailer. Hours before the robbery, Marques messaged Feilen in 

response, asking if they were going to take the drugs from the 

trailer. According to Marques, Feilen knew where the drugs 

were in the trailer and was going to take them when Shekie 

was not home. Around 2 a.m., Marques sent another message 

to Feilen, asking where the drugs were.

Marques testified that later that morning, he drove with Rush 

to Lisa’s apartment in Lincoln with the intent to take the drugs 

from Shekie’s trailer. During the drive, Marques observed a 

firearm in the van. After arriving at Lisa’s apartment, the group 

planned the robbery.

Just after 3 a.m., Feilen, Marques, and Rush left Lisa’s 

apartment and went in the van to Shekie’s trailer home, using 

“GPS” for directions. Rush was driving. A few minutes after 

arriving, Rush pulled out a black gun, put on his gloves, and 

started walking toward the trailer.

Marques apparently told Feilen to get in the driver’s seat 

and pull up to the curb. Marques testified that after a few 

seconds, he heard two or three gunshots and a loud scream 
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from inside Shekie’s trailer. Marques told Feilen to drive away 

because they “didn’t come [there] for that.”

Feilen and Marques drove away, leaving Rush behind. 

Rush called Marques and told him to pick him up at a nearby 

building. Feilen and Marques located Rush and drove toward 

Lisa’s apartment. When they could not gain access to the 

apartment, the group eventually drove to Omaha to drop off 

Rush at his home. Feilen and Marques then drove to Marques’ 

home in Council Bluffs.

On cross-examination, defense counsel inquired about a 

conversation between Marques and Emmanuel Winns, one of 

Marques’ friends, that occurred shortly before Shekie’s death. 

Marques testified that the day before the robbery, he sent a 

message to Winns that stated, “[B]ro, me and my lil sis got a 

couple stains on deck.” Winns replied, “U know I’m down.” 

Marques then asked Winns whether he had any guns, and 

Winns responded, “They around.” Marques sent another message to Winns that stated, “Bro im talmout 1k @some hotel 

& if you got [gas money] its 4 lbs in Lincoln we can go get 

tonight. Both these stains.”

Marques indicated that the 4 pounds of drugs discussed in 

the messages with Winns were unrelated to Shekie’s drugs and 

that the similarities between the planned robberies were “just a 

coincidence.” Marques further stated that the “lil sis” referred 

to in the message was a friend and not a reference to Feilen. 

Marques testified that investigators never spoke with him 

about Winns until shortly before the trial began.

(c) Photograph of Marques’ Pressure Sore

Since his paralysis, Marques has suffered a severe pressure 

sore. The State offered a photograph of Marques’ pressure sore 

for the purpose of showing that Marques was not physically 

capable of walking or of robbing Shekie. Rush objected to the 

photograph based on foundation, relevance, confusion of the 

issues, and its prejudicial effect. The district court overruled 

the motion and received the photograph into evidence.
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(d) Messages With Heather Brand 

and Shekie’s Photograph

The State called Heather Brand, who testified she was in a 

relationship with Shekie around the time of his death. Brand 

was called to testify regarding her communications with 

Shekie to prove the date that Rush committed the offenses. 

Brand testified that she communicated almost every day with 

Shekie through telephone calls, text messages, and video 

calls. To establish the time of Shekie’s death, the State offered 

text messages between Shekie and Brand to show Brand’s 

regular communication with Shekie, which then ceased. Rush 

objected to these messages based on relevance. The court 

overruled the objection but instructed the jury to ignore the 

content of the messages and consider only their dates and 

time stamps.

According to the text messages, Shekie regularly communicated with Brand from January 7, 2021, until their last 

text communication on February 22. Brand testified that on 

February 22, Shekie told her during a call that “something’s 

not right.” After hanging up, Brand received a final text communication from Shekie on February 22 at 7:55 p.m.

(e) Photograph of Shekie

Brand and several other witnesses identified Shekie at trial 

using a photograph introduced by the State depicting Shekie 

wearing a hardhat and smiling in the direction of the camera. Some of these witnesses did not know Shekie by name. 

One of Shekie’s neighbors testified he had observed the door 

of Shekie’s trailer open for several days. When shown a 

photograph of Shekie, the neighbor stated, “That could be 

him.” Although the prosecutor did not ask the neighbor about 

Shekie’s character, the neighbor continued, “He was that kind 

of person.” Another neighbor testified that she called the 

police after also observing the trailer door open. She acknowledged she did not know Shekie by name. When shown the 

photograph of Shekie, she testified, “Yes, that does look like 
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him.” At no point during the trial did Rush object to the admissibility of this photograph, even when it was presented to witnesses who knew Shekie by name or had a prior relationship 

with him.

(f) Identification of Rush 

in Surveillance Video

The State offered several clips of motion-activated surveillance footage depicting the inside corridor and outside 

parking lot of Lisa’s apartment building on February 23, 

2021, between 3 a.m. and 7 a.m., which was near the time of 

Shekie’s death.

At approximately 2:17 a.m., the outdoor footage shows 

an individual wearing a “dark hoodie” pulling Marques in a 

wheelchair away from a van and toward the front door of the 

apartment building. The motion-activated cameras did not capture Marques and the other individual exiting the van.

At 2:59 a.m., the indoor footage shows Feilen, wearing a 

red hat, walking down the stairs from Lisa’s apartment with 

Marques and the dark-hooded individual. Subsequently, the 

outdoor footage shows Feilen entering the back seat of the 

van, Marques entering the front passenger seat, and the darkhooded individual entering the driver’s seat. At 3:02 a.m., the 

van leaves the parking lot.

The next clip shows the van driving back into the parking 

lot at Lisa’s apartment building shortly before 5 a.m. During 

the investigation, law enforcement believed Shekie’s death 

occurred between the time the van left Lisa’s apartment and 

when it returned. Marques confirmed in his testimony that the 

robbery occurred before the van returned to Lisa’s apartment 

shortly before 5 a.m. on February 23, 2021.

According to one investigator’s testimony, the surveillance 

footage does not provide a clear picture of the dark-hooded 

individual’s face and does not allow identification of the 

individual. However, Chris Fields, an investigator with the 

Lincoln Police Department, testified he could identify Rush as 
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the dark-hooded individual in the surveillance footage. While 

Fields acknowledged his total time with Rush was “[n]ot 

long,” he explained that he was familiar with Rush’s appearance because he was the lead investigator into Shekie’s death 

and traveled to Chicago to contact Rush, who had been taken 

into police custody. While in Chicago, Fields was present during an interview with Rush. He also obtained a buccal swab 

from Rush after he was brought back to Lincoln. Fields testified he spent “hours . . . watching that video and dealing with 

. . . Rush.”

Rush did not object to this identification at trial; nor did he 

attempt to cross-examine Fields after this testimony.

Later in the trial, Feilen also identified Rush as the person 

in the surveillance footage in the dark hoodie, stating she saw 

him at Lisa’s apartment that morning. Marques also testified 

that the person in the surveillance footage was Rush. Rush did 

not object to these statements.

(g) Cell Phone Evidence

The State offered at trial evidence obtained from Rush’s 

cell phone during the investigation. This evidence included 

Facebook messages from Rush’s cell phone sent near the time 

of Shekie’s death. In one Facebook message sent on February 

23, 2021, at 11:51 p.m., Rush told a friend, “I need to get 

away ASAP.” In another message, sent on February 24, Rush 

said, “I need to get out and stay low Ass.” On March 5, Rush 

sent a Facebook message to his mother that said, “I’m sorry 

mom I love you and I disrespected the family I fucked up I’ll 

be by to see you but it’s deep and excuse my language.”

The State’s evidence also included Facebook messages 

between Rush and Feilen after Shekie’s death. On March 

4, 2021, Rush sent a message to Feilen that said, “Aye man 

I’m gone plane to hot, train to hot, bus to hot but I’m gone 

hitting back to Vegas.” Two days later, after Feilen provided 

statements to law enforcement, Rush sent her another message, which said, “Rat pack.” Rush had also sent a message 
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on March 5 to Marques that said, “Y’all rats?” On March 8, 

Rush sent a message to another acquaintance that said, “I 

need a[n] Escape plan.”

Cell tower data showed that Rush’s cell phone was in the 

area of Shekie’s residence at the time of the robbery. His 

cell phone records showed that Rush made several internet 

searches after Shekie’s death regarding warrants, penalties 

for first degree murder in Nebraska, and how to sneak into 

Canada and Mexico. He also asked a friend how to obtain a 

fake identification document and indicated that he intended to 

leave town.

Defense counsel did not object at trial to the admission of 

this evidence. Nor did defense counsel object to the subpoenaed cell phone records and the more detailed records obtained 

through a search warrant, when the State offered them as 

evidence.

The State also offered text messages from Rush’s cell phone 

that were the subject of the rule 404 hearing. Defense counsel objected to the admission of these messages “under Rule 

404(2).” The court overruled the objection and instructed the 

jury the messages were to be considered “for the purpose of 

showing motive and for no other purpose.” According to trial 

testimony, the messages were consistent with language used in 

drug transactions.

(h) Other Evidence

Evidence was received demonstrating that during a search 

of Shekie’s trailer and the surrounding area, law enforcement 

officers located several .45-caliber shell casings and bullets.

Law enforcement also observed a shoeprint on a door of 

the trailer. Using photographs of Rush’s shoes from social 

media, forensic analysis confirmed that the tread of Rush’s 

shoes in those photographs shared a similar pattern with the 

shoeprint on Shekie’s door. The forensic analyst testified 

that the shoeprint was associated with “numerous models of 

Jordan by Nike footwear.” The photographs of Rush from 
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social media were entered into evidence. Those photographs 

depict Rush wearing “Jordan by Nike” shoes that are primarily black. There was testimony suggesting that the shoes Rush 

was wearing in these photographs had characteristics similar 

to those of the shoes he appeared to be wearing in the surveillance footage from Lisa’s apartment.

The State introduced at trial screenshots from Feilen’s controlled conversation with Rush after Shekie’s death, showing 

Rush asking Feilen via Facebook Messenger to “delete [her] 

side of the conversation” and “keep shut” and stating he had 

his alibi “covered.”

The State also offered surveillance footage depicting the 

area near Shekie’s trailer between 3 and 5 a.m. on February 

23, 2021, which law enforcement believed was the period during which the homicide occurred. According to law enforcement testimony, the footage depicts an individual running 

southbound on North 20th Street near Shekie’s trailer around 

the time of the robbery. Law enforcement believed Rush was 

the individual seen running in the footage, which was consistent with the information provided by Feilen and Marques.

(i) Testimony of Rush

Rush testified at trial in his own defense. Rush described 

that in February 2021, he lived on Mary Street in Omaha with 

his nephew and a high school friend.

Rush testified that he met Feilen through Facebook and 

began having a sexual relationship with her in October 2020. 

According to Rush, Feilen stayed at his home for about 3 

weeks because she refused to leave. Feilen eventually left after 

getting into a fight with one of Rush’s friends.

Rush testified that he was at his house in Omaha with his 

girlfriend, Aniya Young, when the robbery occurred. Rush 

stated that early that morning, Young began to attack him 

after she found videos on his phone of “flings” with other 

women. In response, Rush stated he “hemmed [Young] up” and 

restrained her arms. Young left between 4 and 6 a.m. The next 
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day, Young apparently reported Rush to the police and Rush 

began searching for warrants related to the altercation.

Rush testified that days before the robbery, he had accidentally left his cell phone in Marques’ vehicle. On February 24, 

2021, Rush’s dogs located his cell phone in the front yard of 

his residence. Rush appeared to testify on cross-examination 

that Marques left the cell phone out by the street and that he 

was angry with Marques for doing so.

Rush testified that he and Young reconciled and that they 

fled on March 5, 2021, to Chicago after learning he was 

wanted for the altercation with Young and as a suspect in 

Shekie’s murder. Rush confirmed that he was involved in 

four high-speed chases with the police in Illinois. Rush testified that he did not turn himself in and try and speak with 

law enforcement because “young black men [were] getting 

shot left and right.” Eventually, law enforcement located and 

arrested Rush in Chicago.

During cross-examination, Rush denied sending certain 

messages in his Facebook Messenger account, claiming his 

account was hacked. When asked why he failed to notify 

law enforcement of this, he responded, “It’s not my job to let 

people know that they fucked up.”

Rush was confronted with a prior statement to law enforcement that declared, “I don’t own no black Jordan shoes.” Rush 

testified he sold the shoes to someone in Las Vegas.

The prosecution questioned Rush’s timeline of the assault 

based on a conversation he had on February 24, 2021, with 

Lonna Lane, Young’s older sister. Rush sent a message to 

Lane via Facebook Messenger on February 24 at 5:52 a.m. that 

stated, “Come get this lying cheating ass bitch off my shit.” 

Minutes later, Rush messaged Lane, “She gone and she probably gone throw me in jail hood.” Lane replied, “Boy get my 

sister out that fucking cold and take her home you should’ve 

never went and picked her up if you was gone be putting her 

out and putting yo hands on her.” Rush stated he sent this 

message “when [Young] came back” after leaving. In other 
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words, Rush appeared to testify that Young left his residence 

after the initial domestic assault on February 23, returned to 

Rush’s residence, and then left again on February 24.

While testifying, Rush at times appeared combative and 

callous. During cross-examination, Rush tried to question the 

prosecution from the witness stand. Rush interjected, “But 

did y’all—I got a question, sir. How well did y’all do—,” at 

which point the prosecution responded, “No. Sir, you don’t get 

to do that.” Also, Rush indicated that he was not concerned 

about the safety of others during high-speed chases with law 

enforcement, because he “know[s] how to drive.”

(j) Subpoena for Absent Witness and 

Warrant for Domestic Assault

Defense counsel expressed concerns in a sidebar conference 

during Rush’s testimony regarding an absent witness he wished 

to call to testify, Officer James Bruning. In April 2022, Rush 

filed a notice of alibi revolving around the domestic assault 

altercation with Young that allegedly occurred around the time 

of the murder and robbery of Shekie and resulted in a warrant for Rush’s arrest. During the sidebar conference, defense 

counsel stated that he had attempted to subpoena Bruning, the 

officer who had obtained the warrant related to this altercation, 

to testify at trial.

Although defense counsel had filed a praecipe for the subpoena of Bruning 2 or 3 days prior, he did not receive an 

email from the clerk of the Lancaster County District Court 

with the subpoena for him to forward to Douglas County to 

have it served. Defense counsel discovered this was because 

the clerk had inadvertently sent the subpoena to the prosecution. Defense counsel discussed the matter with the clerk, who 

discussed the matter with Douglas County and determined the 

best course of action was to email the subpoena directly to 

Bruning. The clerk apparently sent the subpoena to Bruning, 

but Bruning never responded.

The prosecutor explained during the sidebar conference 

that the prosecution had also sent a subpoena to Bruning. 
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However, the prosecution ultimately decided not to call him as 

a witness. When the prosecutor told Bruning the State would 

not be calling him as a witness, he informed Bruning that 

if the defense served him with a subpoena, “he would need 

to honor that.” The prosecutor explained that he was never 

aware of whether the defense had actually served Bruning 

with a subpoena. The prosecution later realized it had emailed 

Bruning two subpoenas by mistake, not knowing one of them 

was for the defense.

The transcript contains a praecipe dated July 18, 2022, by 

defense counsel for a subpoena to be served on Bruning. A 

copy of the corresponding subpoena to testify as a witness 

for the defense, dated July 18, 2022, is also in the transcript. 

The transcript contains another praecipe to subpoena Bruning, 

dated October 21, 2022, by defense counsel. The transcript 

contains a subpoena dated October 21, 2022, with record of 

service on October 28 for Bruning to testify as a witness, but 

it stated this was “on behalf of [the] State of Nebraska.” The 

transcript contains a copy of the State’s praecipe for subpoena 

of Bruning dated September 29, 2022. It contains a corresponding subpoena dated September 30, 2022, to appear to 

testify for the State. A process service return, stating Bruning 

was not served because no address was provided, is dated 

October 3, 2022; however, another filing indicates the State’s 

subpoena was eventually served on October 12. Finally, the 

transcript contains a praecipe, dated December 15, 2022, by 

defense counsel for a subpoena to be served on Bruning, 

and it contains a copy of another subpoena dated December 

15, 2022.

Defense counsel neither sought a continuance of the trial to 

secure Bruning’s attendance nor asked for a mistrial based on 

the clerk’s error. Rather than pursuing Bruning’s attendance, 

defense counsel asked if the prosecution would agree that 

“the arrest warrant could just come in.” Defense counsel conceded that the arrest warrant reflected only the date Bruning 

responded to the report of the offense and not necessarily 
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the date the offense occurred. Defense counsel also said he was 

“not offering this as an alibi,” since he was no longer pursuing 

an alibi defense. He wished only to corroborate Rush’s testimony that part of the reason he fled to Chicago was because 

there was an arrest warrant for him on the domestic assault 

charge. Defense counsel conceded Rush also fled because he 

learned he was a suspect in the murder, but counsel said he 

wanted to admit evidence of the domestic assault to corroborate 

Rush’s testimony and avoid a situation where the prosecution 

could undermine Rush’s credibility by arguing to the jury that 

there was no evidence to support Rush’s claim that he committed a domestic assault the day of the robbery and murder.

Defense counsel warned that if he were not permitted to 

admit the arrest warrant into evidence without Bruning’s testimony, “then [he was] going to insist, or . . . going to request, 

[a] delay . . . until [he could] get that cop here so he—he can 

testify.” And he did not “know how easy [that was] going to 

be.” The prosecution was not amenable to defense counsel’s 

suggestion that, to avoid a delay, it stipulate to the timeframe 

of the assault. The prosecution believed the assault was “made 

up” to give Rush an alibi. The prosecutor said he would 

object to the warrant as hearsay if it were offered. Rush never 

offered the warrant as evidence at trial.

7. Prosecution’s Closing Arguments 

and Motion for Mistrial

Before closing arguments, defense counsel expressed concern that it would be misconduct if the State indicated to the 

jury that there is no evidence of an arrest warrant to support 

Rush’s testimony. In response, the prosecution stated that “I’m 

not going to talk too much about the warrant” and that “[Rush] 

claims that there was a warrant issued, and that’s why he was 

running, but there’s nothing to corroborate, you know, when, 

where, and how that happened that led to whatever warrant 

was issued.” Defense counsel responded, “All right, be careful 

because there was a warrant. There is a warrant.”
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In closing arguments, the prosecutor told the jury, with 

respect to the domestic assault: “[T]here is absolutely no corroboration to show when, what, where, or how that warrant 

came about. [Rush] said there was a warrant for his arrest. 

There’s nothing to support how that all came about.” The 

prosecutor did not contest that a domestic assault occurred or 

that a warrant was issued in relation to the domestic assault, 

but proposed that the assault did not occur at the same time 

as the murder, again stating, “there’s absolutely nothing that 

corroborates when, where, and how that happened.” The 

prosecutor’s closing arguments are set forth in more detail in 

the analysis.

Defense counsel moved for a mistrial on the ground that 

the State knowingly made a false statement by telling the jury 

there is nothing to corroborate Rush’s testimony regarding the 

domestic assault warrant. The court overruled the motion.

8. Motion for New Trial

After the verdicts were entered, defense counsel moved for 

a new trial based on the errors relating to the failure to subpoena Bruning and on alleged prosecutorial misconduct during 

closing arguments. A hearing on the motion for new trial was 

held on December 29, 2022.

At the hearing, defense counsel said that he had subpoenaed 

Bruning to testify at the trial and that Bruning “didn’t show 

up.” Defense counsel then clarified that his subpoena had been 

emailed to the prosecution and sent with the State’s subpoena 

to Bruning and that the State then told Bruning the prosecution would not be calling him. Defense counsel initially told 

the court he was unsure if there was ever a second subpoena. 

However, defense counsel then said that another subpoena was 

issued and that the clerk “tried to serve him with that and it 

seemed he managed to avoid service.”

In response to the court’s questioning, defense counsel conceded that he knew at trial that Bruning was not going to 

appear. Defense counsel conceded that despite knowing this, 
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he did not request a continuance of the trial to have Bruning 

subpoenaed and brought in by warrant if necessary.

For the purpose of the motion, the court allowed into evidence an affidavit by defense counsel averring that on October 

21, 2022, he filed a subpoena duces tecum for Bruning to 

appear at trial on November 9. He learned during trial that the 

clerk of the district court’s office emailed the subpoena to the 

prosecution rather than to the defense and that the prosecution “forwarded the subpoena to someone in Omaha/Douglas 

County because Officer Bruning was served with the subpoena 

on October 28, 2021.” Defense counsel averred that the prosecutor had told him he had spoken to Bruning and had told 

Bruning he did not need to honor the prosecution’s subpoena 

but that he would have to honor any other subpoena.

During the hearing on the motion for new trial, defense 

counsel explained that Bruning was, in the end, successfully 

subpoenaed to appear at the hearing but had not appeared. 

Defense counsel wanted Bruning to testify as to why he had 

not appeared at trial. Defense counsel asked that the court continue the hearing on the motion for new trial until Bruning’s 

attendance could be secured.

The trial court granted a continuance, apparently in part 

because it wished to have a transcription of the closing arguments, which was not yet available. The hearing on the motion 

for new trial was continued to a later date to correspond to 

the sentencing hearing. Defense counsel said he had a witness 

from the clerk of the district court’s office who was prepared 

to testify at the hearing. However, apparently because of the 

continuance, that witness was not called.

On the date scheduled for the continued hearing on the 

defense’s motion for new trial, defense counsel announced he 

was withdrawing the motion.

9. Theory of Defense

Defense counsel’s theory of defense was that “Feilen hated 

. . . Shekie so much she wanted him dead” and that she also 
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hated Rush, so she conspired with Marques and Winns to 

commit the murder and robbery of Shekie and falsely implicate Rush in the crimes. Defense counsel argued that the jury 

cannot find Rush guilty beyond a reasonable doubt, because 

to do so, the jury must believe the testimony of Feilen and 

Marques, both of whom “lie all the time.” Defense counsel 

also argued that on the night of the murder, Rush was in 

Omaha with Young when an argument escalated into domestic 

violence. While defense counsel acknowledged that Rush’s 

fleeing to Chicago could indicate a consciousness of guilt, 

he claimed Rush’s behavior was also “consistent with somebody who’s innocent, who’s been falsely accused, at least 

of murder.”

10. Verdicts and Sentencing

The jury returned verdicts finding Rush guilty of murder in 

the first degree and use of a firearm to commit a felony. The 

district court accepted the jury’s verdicts and ordered a presentence investigation.

The district court sentenced Rush to life imprisonment for 

the murder conviction and 25 to 35 years’ imprisonment on the 

weapon conviction, to be served consecutively. Rush appeals. 

Rush has new counsel on appeal.

III. ASSIGNMENTS OF ERROR

Rush assigns, consolidated, reordered, and restated, that 

(1) the trial court erred by overruling defense counsel’s hearsay objection to evidence introduced at his rule 404 hearing; 

(2) the trial court erred in admitting, over defense counsel’s 

objections, Shekie’s text messages to Brand; (3) the trial court 

erred in admitting, over defense counsel’s objections, a photograph of Marques’ pressure sore; (4) trial counsel was ineffective for failing to object to, and the district court erred or 

committed plain error in denying defense counsel’s motion to 

suppress, his cell phone records that were allegedly obtained 

through a warrant tainted by an unlawful subpoena; (5) trial 

counsel was ineffective for failing to object to, and the district 
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court erred or committed plain error in allowing, Fields’ identification of Rush in the surveillance video; (6) trial counsel 

was ineffective for failing to object to, and the district court 

erred or committed plain error in admitting, an allegedly irrelevant photograph of Shekie; (7) trial counsel was ineffective 

by failing to adequately impeach Feilen; (8) trial counsel was 

ineffective by inadequately preparing Rush to testify; (9) the 

district court clerk committed plain error by failing to properly issue defense counsel’s subpoena of Bruning; (10) the 

prosecution committed misconduct by interfering with the 

subpoena of Bruning; (11) trial counsel was ineffective by 

withdrawing the motion for new trial based on the failure to 

properly subpoena Bruning; (12) trial counsel was ineffective 

by failing to properly pursue an alibi defense; (13) the district 

court committed plain error by denying Rush’s motion for 

mistrial after the prosecution committed misconduct during 

closing arguments by knowingly making false statements; (14) 

trial counsel was ineffective for withdrawing Rush’s motion 

for new trial based on prosecutorial misconduct during closing arguments; (15) the evidence adduced at trial was insufficient to sustain a finding that Rush used a firearm in the 

commission of a felony; and (16) trial counsel was ineffective 

by stipulating to the State’s motion for mistrial due to delays 

caused by COVID-19.

IV. STANDARD OF REVIEW

[1] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court resolves 

independently of the lower court’s conclusion. 1

[2] A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations 

will not be disturbed on appeal unless they constitute an abuse 

of that discretion. 2

1 State v. Earnest, 315 Neb. 527, 997 N.W.2d 589 (2023).

2 State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).
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[3] Balancing the probative value of evidence against the 

danger of unfair prejudice is within the discretion of the trial 

court, whose decision we will not reverse unless there is an 

abuse of discretion. 3

[4] In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth 

Amendment, an appellate court applies a two-part standard of 

review. 4 Regarding historical facts, an appellate court reviews 

the trial court’s findings for clear error. 5 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. 6 And where the facts are largely undisputed, the ultimate question is an issue of law. 7

[5] Consideration of plain error occurs at the discretion of 

an appellate court. 8

[6] The decision whether to grant a motion for mistrial is 

within the trial court’s discretion and will not be disturbed on 

appeal in the absence of an abuse of discretion. 9

V. ANALYSIS

1. Hearsay at Rule 404 Hearing

We first address Rush’s assignment that the court erred 

during the rule 404 hearing by overruling his hearsay objection to text messages and police reports evidencing he was 

dealing marijuana at the time of the murder and robbery. 

Without such alleged hearsay evidence, argues Rush, the State 

was unable, as required by § 27-404(3), to prove by clear and 

3 See State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).

4 State v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023).

5 Id.

6 Id.

7 See id.

8 State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).

9 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
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convincing evidence that he committed the crime, wrong, or 

act of dealing marijuana. Rush conceded that motive was a 

proper purpose for use of the evidence. The trial court overruled Rush’s hearsay objection on the ground that the rules 

of evidence do not apply to rule 404 hearings and overruled 

his renewed objection to the evidence at trial. Evidence that 

Rush was dealing marijuana was admitted at trial as relevant 

to Rush’s motive for the murder and robbery. Rush does not 

argue that the State relied at trial on hearsay to establish that 

he was dealing marijuana. We agree with the trial court that 

the rules of evidence do not apply to rule 404 hearings.

[7] We have generally held that the rules of evidence do not 

operate with full force at hearings before a judge to determine 

a preliminary question of the admissibility of evidence. 10

The trial judge’s experience and legal training can instead be 

relied on to inform crucial distinctions and to reveal the inherent weakness of evidence by affidavit or hearsay. 11

Section 27-1101(2) states that the Nebraska rules of evidence “apply generally to all civil and criminal proceedings.” However, § 27-1101(4)(b) exempts from the evidence 

rules “preliminary examinations or hearings in criminal cases.” 

(Emphasis supplied.)

[8] Our rules of evidence do not specify what types of hearings qualify as preliminary hearings, 12 but we explained in 

State v. Piper 13 that there is no statutory indication the reference to preliminary hearings in § 27-1101(4)(b) was meant 

to carry a special or limited meaning. Thus, we look to 

its ordinary meaning. 14 Something that is “preliminary” is 

10 See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

11 See id.

12 See State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

13 Id.

14 Id.
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“‘something that precedes a main discourse, work, design, or 

business’ or ‘something introductory or preparatory.’” 15

Applying this definition, we held in Piper that a suppression hearing is a preliminary hearing for purposes of 

§ 27-1101(4)(b). We first observed that under the statute 16

governing motions to suppress, it is clearly the intention that, 

with certain exceptions contained in the statute, the motion 

to suppress be ruled on and finally determined before trial. 17

Thus, the suppression hearing precedes the main discourse of a 

criminal case in the sense that a motion to suppress is decided 

before the trial. 18

Secondly, a defendant must make a specific objection at trial 

to the offer of evidence that was the subject of an unsuccessful motion to suppress, in order to preserve an alleged error 

in its admission. 19 This, we explained, indicates a suppression 

hearing is preparatory and precedes the main discourse of the 

trial. 20 Finally, we said that a suppression hearing “relates 

to auxiliary issues not immediately relevant to the question 

of guilt and is held in anticipation of certain evidence being 

introduced at a forthcoming trial.” 21

[9] Section 27-404(1) operates as a broad exclusionary rule 

of relevant evidence that speaks to a criminal defendant’s 

propensity to have committed the crime or crimes charged; 

meanwhile, § 27-404(2) operates as an inclusionary rule of 

evidence that provides that evidence that raises a propensity 

inference is admissible for other proper purposes, including 

15 Id. at 374, 855 N.W.2d at 9, quoting Webster’s Third New International 

Dictionary of the English Language, Unabridged (1993).

16 Neb. Rev. Stat. § 29-822 (Reissue 2016).

17 State v. Piper, supra note 12.

18 Id.

19 Id.

20 Id.

21 Id. at 374, 855 N.W.2d at 9 (internal quotation marks omitted).
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proof of motive, intent, preparation, or absence of mistake 

or accident. 22

Under § 27-404(3), a proponent of evidence offered pursuant to § 27-404(2), upon objection to its admissibility, is 

required to state on the record the specific purpose or purposes 

for which the evidence is being offered, and the trial court 

must similarly state, on the record, the purpose or purposes for 

which such evidence is received. 23 Pursuant to § 27-404(3), 

before the admission of such evidence, the prosecution must 

prove to the court, outside the presence of the jury, “by clear 

and convincing evidence that the accused committed the crime, 

wrong, or act.” 24

[10,11] Similarly to the intent expressed in the statute governing a hearing on a motion to suppress, it was the manifest 

intention of the Legislature in § 27-404 that the question 

of whether a prior bad act is admissible at trial as proof 

of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident be ruled on and 

finally determined before the jury learns of such evidence. 

Thus, the rule 404 hearing precedes the main discourse of a 

criminal case.

[12] Like the subject of a suppression hearing, the defendant must make an objection at trial to the offer of evidence 

of other crimes, wrongs, or acts, which was the subject of a 

rule 404 hearing, in order to preserve an alleged error in its 

admission during the trial. 25 Finally, a rule 404 hearing relates 

to evidence supporting the inference of guilt when viewed 

in conjunction with other evidence admitted at trial; thus, 

it relates to auxiliary issues not immediately relevant to the 

22 State v. Esch, 315 Neb. 482, 997 N.W.2d 569 (2023).

23 Id.

24 Id. at 503, 997 N.W.2d at 586 (internal quotation marks omitted).

25 See, e.g., State v. Wheeler, 314 Neb. 282, 989 N.W.2d 728 (2023); State 

v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014); State v. Faust, 265 

Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds, State v. 

McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
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question of guilt and held in anticipation of certain evidence to 

be introduced at a forthcoming trial.

[13] We have previously described the court’s determination 

regarding the admissibility of evidence at a rule 404 hearing 

as a “preliminary determination.” 26 We now expressly hold 

that a hearing conducted under § 27-404 is a preliminary hearing for purposes of § 27-1101(4)(b), exempting it from the 

evidence rules.

We have not previously had occasion to address the correctness of State v. Wilson,

 27 an opinion by the Nebraska Court of 

Appeals decided in 1996, holding that the rules of evidence 

apply to rule 404 hearings. We now expressly disapprove of 

that decision to the extent it holds that a rule 404 hearing is 

not a preliminary hearing. We observe that while the Court 

of Appeals rejected the idea that the rules of evidence are 

inapplicable at “any hearing in a criminal case,” 28 it did not 

articulate why a 404 hearing is not a preliminary hearing under 

§ 27-1101(4)(b). Also, at the time of the Court of Appeals’ 

decision, we had not yet decided Piper.

 29 Thus, the Court 

of Appeals did not have available to it our reasoning as set 

forth therein.

[14] Assuming without deciding that the evidence at the rule 

404 hearing of Rush’s drug dealing was in fact hearsay, the 

trial court did not err in overruling Rush’s hearsay objection. 

In a hearing conducted pursuant to § 27-404, the trial judge’s 

experience and legal training can be relied on to inform crucial 

distinctions and to reveal the inherent weakness of evidence 

by hearsay. The State proved by clear and convincing evidence 

that Rush was involved in selling marijuana at the time of the 

murder and robbery of Shekie. The district court did not err in 

admitting the evidence of those prior bad acts at trial.

26 State v. Esch, supra note 22, 315 Neb. at 503, 997 N.W.2d at 586.

27 State v. Wilson, 5 Neb. App. 125, 556 N.W.2d 643 (1996).

28 Id. at 127, 556 N.W.2d at 652.

29 State v. Piper, supra note 12.
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2. Admission of Evidence at 

Trial Over Objection

We next address Rush’s assignments that the court erred 

in admitting at trial, over Rush’s objections, the evidence of 

Shekie’s text messages and Marques’ pressure sore.

(a) Shekie’s Text Messages to Brand

Rush argues the court erred in overruling his objection to 

the admission of text messages from Shekie to Brand, which 

showed regular contact with Brand until the day before Shekie 

was murdered. The State offered the text messages to establish 

the time of the murder, and Rush objected only on the ground 

of relevance. Even though Rush did not object on the ground 

of unfair prejudice, the court instructed the jury to consider the 

date and time stamps of the messages and not their content.

[15,16] Relevant evidence is that which has any tendency 

to make the existence of any fact that is of consequence to 

the determination of the action more probable or less probable 

than it would be without the evidence. 30 The probative value 

of evidence involves a measurement of the degree to which 

the evidence persuades the trier of fact that the particular fact 

exists and the distance of the fact from the ultimate issue of 

the case. 31 A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations 

will not be disturbed on appeal unless they constitute an abuse 

of that discretion. 32

[17] While Rush complains that the content of the messages 

illustrates Shekie treated Brand with genuine affection, this 

point pertains to unfair prejudice, and Rush does not assign 

as error that trial counsel was ineffective for failing to object 

on that basis. Rush’s only argument pertaining to relevance 

is that the time of death was established by other evidence 

and that therefore, the messages were cumulative. However, 

30 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

31 Id.

32 State v. Jennings, supra note 2.
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evidence is not irrelevant simply because there is other evidence admitted at trial supporting a similar inference. The 

trial court did not abuse its discretion in determining that the 

messages were relevant.

(b) Marques’ Pressure Sore

Rush argues the court erred in admitting a photograph of 

Marques’ pressure sore, because it was shocking and presented 

the danger of evoking sympathy for Marques. As relevant 

to this assignment of error, Rush objected on the grounds of 

unfair prejudice and confusion of the issues. The State offered 

the photograph to support the inference that Marques was 

unable to walk and, thus, was not the shooter.

[18,19] Rush argues on appeal that any relevance of the 

photograph to show that Marques could not walk was minor 

in comparison, because Marques’ inability to walk was established by other evidence and Rush no longer asserted, as 

part of his theory of defense, that Marques was the shooter. 

But the State is allowed to present a coherent picture of the 

facts of the crimes charged, and it may generally choose its 

evidence in so doing. 33 While Rush points out that he offered 

to stipulate that Marques was paralyzed, a defendant cannot 

negate an exhibit’s probative value through a tactical decision 

to stipulate. 34

[20,21] Under Neb. Rev. Stat. § 27-403 (Reissue 2016), 

relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 35 Most, 

if not all, evidence offered by a party is calculated to be prejudicial to the opposing party. 36 Unfair prejudice means an undue 

tendency to suggest a decision based on an improper basis. 37

33 State v. Britt, 305 Neb. 363, 940 N.W.2d 270 (2020).

34 State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).

35 State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).

36 State v. Oldson, supra note 30.

37 Id.
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[22,23] Unfair prejudice speaks to the capacity of some 

concededly relevant evidence to lure the fact finder into 

declaring guilt on a ground different from proof specific to 

the offense charged, commonly on an emotional basis. 38 When 

considering whether evidence of other acts is unfairly prejudicial, we consider whether the evidence tends to make conviction of the defendant more probable for an incorrect reason. 39

Balancing the probative value of evidence against the danger 

of unfair prejudice is within the discretion of the trial court, 

whose decision we will not reverse unless there is an abuse 

of discretion. 40

The photograph of Marques’ pressure sore might have 

evoked an emotional response of sympathy in the jurors, but 

it is unlikely that response would have lured the jury into 

declaring Rush guilty for an incorrect reason. As the trial court 

pointed out, the jury was already aware through other evidence that Marques was paralyzed in some capacity and used 

a wheelchair. Furthermore, the instructions directed the jury 

not to “indulge in any speculation, guess or conjecture” and 

not to allow “sympathy or prejudice” to impact the verdict. 

We cannot say on appeal that the trial court abused its discretion in determining that the probative value of the photograph 

outweighed any danger to Rush of unfair prejudice.

3. Evidence Not Objected to

We next address Rush’s assignments of error relating to the 

admission of evidence not objected to at trial: (1) a photograph 

of Shekie smiling, (2) Rush’s cell phone location information, and (3) Fields’ identification of Rush in the surveillance footage outside of Lisa’s apartment. Rush argues that 

trial counsel was ineffective for failing to object and that the 

trial court committed plain error in allowing the admission of 

this evidence.

38 Id.

39 Id.

40 See State v. Thomas, supra note 3.
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[24,25] Rush also assigns and argues that the trial court committed reversible error in admitting this evidence. However, 

the failure to object to evidence at trial, even if the evidence 

was the subject of a previous motion to suppress, waives the 

objection, and a party will not be heard to complain of the 

alleged error on appeal. 41 Failure to make a timely objection 

waives the right to assert prejudicial error on appeal. 42 Thus, 

we will address only whether trial counsel was ineffective 

and whether the court committed plain error in relation to 

this evidence.

(a) General Principles of 

Ineffective Assistance

[26] Generally, to prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

 43 the defendant 

must show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

defendant’s defense. 44

(i) Deficient Performance

[27,28] 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. 45 In determining whether trial counsel’s performance was 

deficient, courts give counsel’s acts a strong presumption of 

reasonableness. 46

[29,30] An appellate court will not judge an ineffectiveness 

of counsel claim in hindsight, and it will not second-guess 

41 State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021).

42 State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

43 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

44 State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024).

45 See State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).

46 Id.
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trial counsel’s reasonable strategic decisions. 47 We must assess 

trial counsel’s performance from counsel’s perspective when 

counsel provided the assistance. 48 And it is well settled that the 

decision to object or not to object is part of trial strategy. 49

(ii) Prejudice

[31,32] 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. 50 A reasonable probability is a probability sufficient to undermine confidence in the outcome. 51 When considering the prejudice prong 

of ineffective assistance of counsel, we focus on whether a 

trial counsel’s deficient performance renders the result of the 

trial unreliable or fundamentally unfair. 52

(iii) On Direct Appeal

[33] It is well settled that 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. 53 Otherwise, the issue 

will be procedurally barred in a subsequent postconviction 

proceeding. 54

[34] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that it 

47 Id.

48 Id.

49 See, State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992); State v. 

Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986).

50 State v. Clark, supra note 44.

51 Id.

52 See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

53 State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).

54 Id.
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can be resolved on direct appeal. 55 In reviewing a claim of 

ineffective assistance of trial counsel on direct appeal, an 

appellate court determines as a matter of law whether the 

record conclusively shows whether counsel did or did not provide effective assistance, and whether the record conclusively 

shows the defendant was or was not prejudiced by counsel’s 

alleged deficient performance. 56

[35] When a claim of ineffective assistance of trial counsel 

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

allege prejudice; however, it is advisable for appellate counsel 

to specifically argue prejudice if appellate counsel believes the 

details in the trial record are sufficient to adequately review 

the question on direct appeal. 57

[36] Regardless of whether appellate counsel believes the 

details in the trial record are sufficient to adequately review 

the question, an appellant must make specific allegations on 

direct appeal of the conduct that the appellant claims constitutes deficient performance by trial counsel. 58 In order to 

know whether the record is insufficient to address assertions 

on direct appeal that trial counsel was ineffective, appellate 

counsel must assign and argue deficiency 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. 59 Mere conclusions of fact or law 

are not sufficient. 60

55 See id.

56 See id. See, also, e.g., State v. Miller, 315 Neb. 951, 2 N.W.3d 345 (2024).

57 See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).

58 See id.

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

60 State v. Stelly, supra note 53.
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(b) Plain Error Principles

[37] Plain error is error plainly evident from the record and 

of such a nature that to leave it uncorrected would result in 

damage to the integrity, reputation, or fairness of the judicial 

process. 61 We are not inclined to readily find plain error in 

testimony to which the opposing party did not object. 62 Even 

when a question or answer is arguably improper, sua sponte 

action by the trial court may interfere with a party’s trial tactics by bringing unwanted attention to the testimony. 63 “‘[T]he 

plain-error exception to the contemporaneous-objection rule is 

to be “used sparingly, solely in those circumstances in which 

a miscarriage of justice would otherwise result.”’” 64

(c) Cell Phone Location Records

In arguing error in the admission of his cell phone records, 

Rush focuses solely on his location records and does not specify any other specific cell phone information he believes counsel was ineffective in failing to object to. We have long held 

that an alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error 

to be considered by an appellate court. 65 Thus, we address 

only the location records. Although trial counsel moved to 

suppress his cell phone records, he did not renew the motion 

at trial.

Rush asserts that the warrant used to obtain the cell site 

location records was secured through evidence obtained 

from a subpoena that was unlawful either because no cell 

phone information can lawfully be obtained through a subpoena or because the subpoena asked for “IP Destination and 

61 Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024).

62 State v. Mabior, supra note 8.

63 Id.

64 State v. Barfield, 272 Neb. 502, 511, 723 N.W.2d 303, 312 (2006), 

disapproved on other grounds, State v. McCulloch, supra note 25, quoting 

United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).

65 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Sessions”—albeit “without cell site information.” Because 

of the alleged unlawfulness of the subpoena, Rush asserts 

the subsequent warrant and the cell site location information 

obtained therefrom were tainted as the fruit of the poisonous tree.

[38,39] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution prohibit unreasonable searches and seizures. 66 “[A] ‘search’ under the Fourth 

Amendment occurs whenever an ‘expectation of privacy that 

society is prepared to consider reasonable is infringed.’” 67

[40,41] When an individual seeks to preserve something as 

private, and the individual’s expectation of privacy is one that 

society is prepared to recognize as reasonable, official intrusion into that private sphere generally qualifies as a search 

and requires a warrant supported by probable cause. 68 Under 

the third-party doctrine, depending on the nature of the particular documents sought, a person has no legitimate expectation of privacy in information voluntarily turned over to third 

parties, even if revealed on the assumption that it will be used 

only for a limited purpose. 69

Accordingly, in State v. Knutson,

 70 we held that the defendant had no reasonable expectation of privacy in cell phone 

records demonstrating multiple contacts with the victim of 

child enticement, because this information was voluntarily 

turned over to the cell phone company as part of the service 

contract. As such, law enforcement did not violate the Fourth 

Amendment by obtaining these records by subpoena rather 

than by warrant.

66 State v. Simons, supra note 4.

67 State v. Wiedeman, 286 Neb. 193, 207, 835 N.W.2d 698, 709 (2013), 

quoting United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. 

Ed. 2d 85 (1984).

68 Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L. Ed. 2d 

507 (2018).

69 See id.

70 State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
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In so holding, we relied on the U.S. Supreme Court case 

Smith v. Maryland,

 71 in which the Court held that law enforcement does not need a warrant to obtain a telephone company’s 

record of numbers dialed because it is not a search under the 

Fourth Amendment. The Court observed that the pen register 

used to obtain such records did not contain “the contents of 

communications,” 72 and it explained that the defendant had 

“voluntarily conveyed numerical information to the telephone 

company and ‘exposed’ that information to its equipment in 

the ordinary course of business.” 73

In Carpenter v. United States,

 74 decided in 2018, the U.S. 

Supreme Court issued what it deemed a “narrow” holding that 

individuals have a reasonable expectation of privacy in the 

record of all physical movements captured by cell site location 

information over an extended period of time. 75 The Court reasoned that “while the third-party doctrine applies to telephone 

numbers and bank records,” “cell-site records” are “qualitatively different.” 76 Such location information is “unique” 77 in 

part because it provides “a detailed chronicle of a person’s 

physical presence compiled every day, every moment, over 

several years.” 78

Later, in United States v. Walker,

 79 a federal district court 

illustrated the narrowness of the Court’s holding in Carpenter. 

The district court found that there was no reasonable expectation of privacy for cell phone location information for a 

71 Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).

72 Id., 442 U.S. at 741.

73 Id., 442 U.S. at 744.

74 Carpenter v. United States, supra note 68, 585 U.S. at 316.

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

76 Carpenter v. United States, supra note 68, 585 U.S. at 309.

77 Id., 585 U.S. at 315.

78 Id.

79 United States v. Walker, No. 2:18-CR-37-FL-1, 2020 WL 4065980 at *7 

(E.D.N.C. July 20, 2020).
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particular place at a limited time, obtained through a cell tower 

“‘dump request.’” Similarly, in United States v. Rhodes,

 80

another lower federal court held there was no reasonable 

expectation of privacy in the identifying information, telephone 

numbers calling or called, and information related to those 

communications, pertaining to all phones within the radius of 

12 different towers on 12 separate days for specific, limited 

identified hours connected to the time and location of certain 

robberies. The court explained that unlike the information in 

Carpenter, this information did not track the defendant’s movements in detail over a lengthy period or the substance of the 

communications.

Relying on Walker and Rhodes, in State v. Elias,

 81 we 

recently held that the defendant had no reasonable expectation 

of privacy in his cell phone location information obtained from 

the cell tower nearest the scene of the crime. The information 

was limited to a period of time 15 minutes before the crime 

through 15 minutes after.

No cell site location information relating to Rush’s cell 

phone was obtained without a warrant. The subpoena neither 

sought nor obtained cell site location information. Relevant 

to obtaining the warrant, the subpoena obtained cell phone 

records showing that Marques and Rush spoke on the phone 

twice the morning of the murder and robbery and exchanged 

text messages on March 2, 2021. The majority of the information set forth in the affidavit supporting the search warrants 

was discovered during law enforcement’s independent investigation into Shekie’s death and not through Rush’s cell phone 

records. The subpoena did not seek, nor did it obtain, the content of these communications. We find it insignificant that the 

subpoena sought “IP Destination and Sessions,” since no cell 

80 United State v. Rhodes, No. 1:19-CR-73-AT-LTW, 2021 WL 1541050 

(N.D. Ga. Apr. 20, 2021).

81 State v. Elias, 314 Neb. 494, 990 N.W.2d 905 (2023).
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phone information indicative of Rush’s physical movements 

was obtained without a warrant.

We find no merit to Rush’s argument that there is a reasonable expectation of privacy in all cell phone records maintained 

by the cell phone service provider. In making this argument, 

Rush relies on our opinion in State v. Jennings. 82 In Jennings, 

the State had acquired the defendant’s cell site location information without a warrant. No other cell phone information 

was apparently at issue on appeal. We said that the defendant 

had correctly asserted that under Carpenter,

 83 the warrantless 

“seizure of his cell phone records and [cell site location information] was a violation of his Fourth Amendment rights.” 84

Because Carpenter had not yet been decided at the time of the 

search, however, the exclusionary rule did not apply.

[42] It is not clear what “cell phone records” in Jennings 

we were referring to apart from the cell site location information. 85 In any event, there is no indication that we were 

referring to non-content-based call and text logs maintained 

by the cell service provider. Jennings did not overrule State 

v. Knutson.

 86 As recognized in Carpenter, cell phone logs fall 

within the traditional ambit of the third-party doctrine. A cell 

service customer does not have a reasonable expectation of 

privacy in the records maintained by a third-party service provider of the phone numbers that text messages or calls were 

sent to or received from or in the times when those communications took place.

[43] As a matter of law, counsel is not ineffective for failing to make an objection that has no merit. 87 Because there 

was no reasonable expectation of privacy in the cell phone 

82 State v. Jennings, supra note 2.

83 Carpenter v. United States, supra note 68.

84 State v. Jennings, supra note 2, 305 Neb. at 820, 942 N.W.2d at 764.

85 See id.

86 See State v. Knutson, supra note 70.

87 See State v. Tyler, 301 Neb. 365, 918 N.W.2d 306 (2018).
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records law enforcement obtained by subpoena and utilized 

in affidavits supporting requests for warrants that ultimately 

obtained Rush’s cell site location information, trial counsel 

was not ineffective for failing to object to the admission of 

that evidence at trial. There is no contention on appeal that the 

warrants lacked probable cause. For similar reasons, the trial 

court did not commit a miscarriage of justice by admitting 

into evidence at trial Rush’s location information; therefore, 

we refuse to exercise our discretion to find plain error in the 

admission of these records.

(d) Fields’ Identification of 

Rush in Video Footage

Rush argues trial counsel was ineffective for failing to 

object on the ground of lack of foundation to Fields’ identification of Rush in the apartment surveillance footage, because 

Fields allegedly lacked sufficient personal knowledge of 

Rush’s appearance to do so. Because of this alleged lack of 

foundation, Rush also argues the trial court committed plain 

error in allowing Fields to identify Rush. We disagree with 

these contentions.

[44] Fields testified that he interviewed Rush in Chicago 

and collected buccal swabs from him in Lincoln. He explained 

that there are places in the video where the face of the man 

in question is visible in profile and that he could positively 

identify that man as Rush. Fields also testified that he had seen 

Rush wearing the same clothing the man in the video wore. 

This was sufficient foundation for Fields to identify Rush. 

While Rush argues that Fields’ time with him was limited, 

questions about the extent of a witness’ familiarity with the 

defendant’s appearance go to the weight of the testimony and 

not its admissibility. 88

[45] Furthermore, both Marques and Feilen independently 

identified Rush as the man in the video and Rush does not 

88 See People v. Leon, 61 Cal. 4th 569, 352 P.3d 289, 189 Cal. Rptr. 3d 703 

(2015).
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take issue with their testimony. The erroneous admission of 

evidence is harmless error and does not require reversal if the 

evidence is cumulative and other relevant evidence, properly 

admitted, supports the finding by the trier of fact. 89

Trial counsel was not ineffective in failing to object to 

Fields’ identification of Rush, and the trial court did not commit plain error in admitting Fields’ testimony.

(e) Photograph of Shekie Smiling

Rush asserts plain error and ineffective assistance of trial 

counsel in relation to the admission of a photograph of Shekie 

wearing a hardhat and smiling. The photograph was offered 

by the State to enable several witnesses, two of whom knew 

Shekie only by appearance and not by name, to identify him. 

At no point during trial did the prosecution ask witnesses in 

relation to the photograph about Shekie’s character. Defense 

counsel did not object to the admission of the photograph. 

On appeal, Rush argues admission of the photograph was not 

necessary, because the identity of the victim was undisputed 

and other photographs, which Rush apparently believes to be 

less sympathetic, could have been used instead. Rush argues 

he was unfairly prejudiced because the photograph “served 

to paint Shekie as a hardworking and kind man and draw the 

jury’s sympathy.” 90

[46,47] The admission of photographs into evidence rests 

largely within the discretion of the trial court, which must 

determine their relevancy and weigh their probative value 

against their possible prejudicial effect. 91 A relevant photograph should not be excluded from evidence unless its prejudicial effect is greater than its probative value. 92

89 See State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).

90 Brief for appellant at 46.

91 State v. Clark, 255 Neb. 1006, 588 N.W.2d 184 (1999).

92 State v. Forster, 616 S.W.3d 436 (Mo. App. 2020).
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[48,49] In a homicide prosecution, photographs of a victim 

may be received into evidence for, among other things, purposes of identification. 93 It is generally agreed that a photograph of the victim of the homicide, taken before the alleged 

murder, is admissible for the purpose of identification, even 

if there exists no dispute over the identity of the deceased. 94

“[T]he state is not required to prove its case shorn of photographic evidence merely because the defendant agrees with a 

witness or stipulates to a fact.” 95

Without providing any apposite authority, Rush assumes 

that to be admissible for identification purposes, an in-life 

photograph of a victim must be devoid of any humanizing or 

positive attributes that give insight into the person whose life 

has been lost. But an otherwise relevant photograph of the 

victim in life need not be excluded despite the possibility it 

could elicit a sympathetic response from the jury. 96

For example, in State v. Forster,

 97 the appellate court held 

that the trial court did not err in admitting a photograph of 

the victim in his police uniform, identified by his wife at 

trial, because its relevancy outweighed any danger of unfair 

prejudice. Similarly, in Browning v. State,

 98 the appellate court 

found it reasonable for defense counsel not to object to the 

admission of an in-life photograph of the victim with a small 

child on his lap. The court rejected the defendant’s argument that the photograph amounted to victim impact evidence 

and discerned nothing prejudicial or inflammatory about the 

photograph.

93 See State v. Clark, supra note 44.

94 See Russell v. State, 272 So. 3d 1134 (Ala. Crim. App. 2017).

95 People v. Boyette, 29 Cal. 4th 381, 424, 58 P.3d 391, 419, 127 Cal. Rptr. 

2d 544, 577 (2002) (internal quotation marks omitted).

96 People v. Parker, 13 Cal. 5th 1, 510 P.3d 404, 293 Cal. Rptr. 3d 813 

(2022).

97 State v. Forster, supra note 92.

98 Browning v. State, 120 Nev. 347, 91 P.3d 39 (2004).
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In contrast, in Salazar v. State,

 99 the appellate court held that 

the danger of unfair prejudice outweighed the probative value 

of a 17-minute video montage of photographs depicting the 

murder victim’s life and set to music. It held that the trial court 

abused its discretion in admitting the evidence.

Here we are presented with a simple photograph of the 

victim smiling and wearing a hardhat. The trial court did not 

abuse its discretion in admitting the photograph, let alone commit plain error. And because the photograph was not in fact 

unduly prejudicial, trial counsel was not ineffective in failing 

to object to it.

4. Alleged Ineffective Impeachment

Rush argues that his trial counsel was ineffective by failing 

to call Feilen’s adoptive parents or “any other character witness” to impeach Feilen’s character as to truthfulness. 100 While 

Rush recognizes that trial counsel successfully impeached 

Feilen during cross-examination by confronting her with 

numerous prior inconsistent statements to law enforcement, 

he argues trial counsel was ineffective for “pursuing only this 

single avenue of impeachment.” 101

[50,51] The alleged failure to call “any other character witness” fails to sufficiently raise a claim of ineffective assistance of counsel. When the claim of ineffective assistance on 

direct appeal involves uncalled witnesses, vague assertions 

that counsel was deficient for failing to call “witnesses” are 

little more than placeholders and do not sufficiently preserve 

the claim. 102 Appellate counsel must give on direct appeal 

at least the names or descriptions of any uncalled witnesses 

forming the basis of a claim of ineffective assistance of trial 

99 Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002).

100Brief for appellant at 60.

101 Id.

102 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
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counsel. 103 Such specificity is necessary so that a postconviction court may later identify whether a particular claim of failing to investigate a witness is the same one that was raised on 

direct appeal. 104

[52] In contrast, the alleged ineffective assistance in failing 

to call Feilen’s adoptive parents was sufficiently raised. An 

appellate court does not need specific factual allegations as to 

what an uncalled person or persons would have said, which 

will not be found in the appellate record. 105

Rush claims that testimony by Feilen’s adoptive parents 

about her poor character as to truthfulness “would have provided a more convincing impeachment.” 106 However, defense 

counsel’s impeachment of Feilen was extensive. She was confronted with numerous statements to law enforcement that 

she admitted were lies. Feilen acknowledged during crossexamination that she had said she lies “all the time.”

In other circumstances, we might not be able to resolve this 

claim on direct appeal, since the record does not tell us what 

instances of dishonesty Feilen’s adoptive parents could have 

testified about. However, in this instance, the impeachment of 

Feilen by her own inconsistent statements and admissions was 

so complete that the record conclusively demonstrates trial 

counsel was not constitutionally deficient by failing to conduct 

more impeachment through the testimony of Feilen’s adoptive 

parents. We find no merit to this assignment of error.

5. Preparation of Rush to Testify

Rush also argues that trial counsel was ineffective by 

“inadequately prepar[ing] Rush to testify.” 107 Rush’s appellate counsel argues that Rush’s “combative stance toward 

103 See id.

104 Id.

105 Id.

106Brief for appellant at 60.

107 Id.
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the prosecutor” and “off-color statements” while testifying in 

his own defense evidenced that his trial counsel was “prejudicially ineffective for failing to properly prepare Rush to 

testify.” 108 Appellate counsel argues this prejudiced Rush 

because he undermined his own credibility in testimony that 

was essential to his alibi defense, such as that he was apart 

from his cell phone on the night of the robbery and that he 

was with Young when the robbery occurred. Rush also points 

to his testimony that he did not participate in a controlled call 

with Feilen, did not accuse Marques of having “ratted [him] 

out,” and no longer owned “black Jordan shoes” by the time 

the robbery occurred.

It is, of course, entirely possible that Rush’s behavior while 

testifying was not a result of constitutionally deficient preparation by trial counsel. Still, the record on appeal does not 

contain trial counsel’s testimony or any other evidence demonstrating how trial counsel did or did not prepare Rush to 

testify. In State v. Young,

 109 we addressed a similar claim that 

trial counsel was ineffective in “failing to adequately prepare [the defendant] to testify,” resulting in impeachment that 

could have been avoided. We held that the record on direct 

appeal was inadequate to review the claim. 110 Likewise, here, 

the record is insufficient to determine whether trial counsel 

was ineffective in his preparation of Rush to testify in his 

own defense.

[53,54] The State asserts we can determine on direct appeal 

as a matter of law that there was no prejudice, even if trial 

counsel was ineffective in his preparation of Rush to testify. However, we have repeatedly observed that the trial 

record reviewed on appeal is devoted to issues of guilt or 

108 Id. at 30.

109 State v. Young, 279 Neb. 602, 610, 780 N.W.2d 28, 36 (2010). See, also, 

State v. Johnson, No. A-20-048, 2021 WL 243792 (Neb. App. Jan. 26, 

2021) (selected for posting to court website).

110 State v. Young, supra note 109.
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innocence and does not usually address issues of counsel’s 

performance. 111 Furthermore, it is not usually an appellant’s 

allegations of prejudice that have guided review of ineffective 

assistance claims on direct appeal, but the allegations of deficient conduct. 112 We cannot determine as a matter of law on 

direct appeal that because of a lack of corroborating evidence 

of Rush’s alibi, Rush’s allegedly inadequate preparation for 

trial, which undermined his credibility as the sole witness supporting his alibi defense, did not prejudice him.

6. Domestic Assault

Several of Rush’s remaining assignments of error pertain to 

the alleged undermining of his ability to prove, through other 

evidence, his alibi that he was assaulting Young in Omaha at 

the time of the robbery and murder.

Rush argues that trial counsel was ineffective for failing 

to “adequately pursue” the alibi defense that he was assaulting Young in Omaha at the time of the murder and robbery 

in Lincoln. 113

Rush assigns that “the district court clerk committed plain 

error” by failing to properly issue defense counsel’s subpoena 

of Bruning, who received Young’s report of the domestic 

assault on February 24, 2021, and did not appear to testify at 

trial. Rush also assigns that the prosecution committed misconduct by interfering with the subpoena of Bruning. Neither 

of these assignments are independently cognizable claims of 

error by the trial court. 114 However, we will consider these 

allegations in relation to Rush’s assignment of error that trial 

counsel was ineffective in withdrawing a motion for new trial 

based on the clerk’s failure to properly subpoena Bruning and 

on the alleged prosecutorial interference with the same.

111 See, e.g., State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

112 See id.

113Brief for appellant at 31.

114 See Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022).
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Rush assigns that the prosecutor committed misconduct 

during closing arguments by knowingly making false statements pertaining to the lack of evidence supporting Rush’s 

alleged alibi of domestic assault. This, also, is not a cognizable stand-alone assignment of error. However, we will 

address Rush’s related assignments that (1) the district court 

committed “plain error” by denying trial counsel’s motion for 

mistrial and (2) trial counsel was ineffective for withdrawing 

his motion for new trial pertaining to the alleged prosecutorial 

misconduct.

(a) Failure to Properly Pursue 

Alibi Defense

The appellate record is insufficient to resolve Rush’s assignment that trial counsel was ineffective in his pursuit of an 

alibi defense, which claim is sufficiently raised only as to trial 

counsel’s failure to call Young to testify in support of Rush’s 

alibi defense.

Rush initially filed a notice of alibi. Later, however, defense 

counsel told the court he was not pursuing an alibi instruction. Defense counsel reasoned that even if he proved Rush 

assaulted Young the day of the robbery and murder, the 

evidence would show that there was time for Rush to get to 

Lincoln to commit the crimes there. Whereas defense counsel 

had thought Young and her roommates were going to testify 

to a more precise time of the assault that was favorable to 

the defense, he told the court these witnesses all “flaked out,” 

i.e., would not testify. As a result of this development, defense 

counsel told the court he was not going to ask for an alibi 

instruction.

In his brief on appeal, Rush asserts trial counsel failed to 

“adequately pursue an alibi defense.” 115 Standing alone, this 

is a conclusory assertion that is not a sufficiently specific 

115Brief for appellant at 62.
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argument of ineffective assistance of counsel. 116 However, 

appellate counsel elaborates that trial counsel was ineffective 

by failing to “secure[] the attendance” of Young and the other 

“multiple eyewitnesses” to the domestic assault, who “were 

apparently available at some time.” 117 He thus argues that trial 

counsel “made insufficient efforts to secure alibi witnesses for 

trial.” 118 He alleges Rush was prejudiced because Rush was 

left as the only witness who provided evidence of an alibi.

As already stated, to effectively raise on direct appeal a 

claim of ineffective assistance of trial counsel in relation to 

the failure to call witnesses, appellate counsel must give on 

direct appeal the names or descriptions of any uncalled witnesses forming the basis of a claim of ineffective assistance 

of trial counsel. 119 In State v. Mora,

 120 we found that appellate 

counsel’s reference to trial counsel’s failure to call “character 

witnesses,” even with some allusion to what they would have 

said, was insufficiently specific to raise a claim of ineffective 

assistance on direct appeal. Likewise, here, Rush’s references 

to “multiple eyewitnesses” 121 to the domestic assault and to 

“alibi witnesses” 122 are insufficiently specific to effectively 

raise a claim of ineffective assistance on direct appeal based on 

the failure to call witnesses.

In contrast, Rush has sufficiently raised a specific claim that 

trial counsel was ineffective by failing to call Young to testify 

about the domestic assault and when it occurred. However, 

the appellate record does not tell us how Young “flaked out.” 

116 See George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 

N.W.2d 510 (2020).

117Brief for appellant at 31.

118 Id. at 62.

119 See State v. Lee, supra note 59. See, also, State v. Blake, supra note 102; 

State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

120 State v. Mora, 298 Neb. 185, 201, 903 N.W.2d 244, 258 (2017).

121Brief for appellant at 31.

122 Id. at 62.
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Nor does it tell us how impactful her testimony would have 

been in support of Rush’s alibi defense. Therefore, we find 

that Rush’s claim that trial counsel was ineffective for failing 

to call Young to support his alibi defense cannot be determined on direct appeal.

(b) Withdrawal of Motion for 

New Trial re Subpoena

We next consider whether trial counsel was ineffective 

in withdrawing Rush’s motion for new trial in relation to 

Bruning’s subpoena. Rush argues that a new trial was warranted because the clerk’s alleged plain error and the State’s 

alleged misconduct in interfering with the subpoena deprived 

him of evidence that would have supported his alibi. Under 

Neb. Rev. Stat. § 25-1142 (Reissue 2016):

The former verdict, report, or decision shall be vacated 

and a new trial granted on the application of the party 

aggrieved for any of the following causes affecting materially the substantial rights of such party: (1) Irregularity 

in the proceedings of the court, jury, referee, or prevailing party or any order of the court or referee or abuse of 

discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing 

party; (3) accident or surprise, which ordinary prudence 

could not have guarded against; (4) excessive damages, 

appearing to have been given under the influence of 

passion or prejudice; (5) error in the assessment of the 

amount of recovery, whether too large or too small, if the 

action is upon a contract or for the injury or detention of 

property; (6) that the verdict, report, or decision is not 

sustained by sufficient evidence or is contrary to law; (7) 

newly discovered evidence, material for the party applying, which the moving party could not, with reasonable 

diligence, have discovered and produced at the trial; and 

(8) error of law occurring at the trial and excepted to by 

the party making the application.
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Rush does not clearly explain on what statutory grounds the 

motion would have had merit, but presumably he is appealing 

to the grounds of unfair surprise and alleged misconduct by 

the State.

There is no evidence that the State committed misconduct 

in relation to the subpoena, and Rush does not assign or argue 

that trial counsel was ineffective for failing to present further evidence that would have established such misconduct. 

During the trial and at the hearing on the motion for new trial, 

there was no suggestion that the prosecutor did not in fact tell 

Bruning he had to honor any subpoena by the defense. Indeed, 

the prosecutor’s report of this conversation with Bruning is 

reiterated in defense counsel’s affidavit that was entered into 

evidence at the hearing on the motion for new trial.

Further, contrary to appellate counsel’s assertion, there 

was no evidence that the State intentionally sent Bruning the 

defense’s subpoena or even realized it had done so. Rather, 

the prosecutor said, “[W]e sent two subpoenas to [Bruning] by 

mistake.” There was no evidence that the State otherwise acted 

with the purpose of preventing Bruning from testifying at trial. 

The record simply does not support appellate counsel’s claim 

that the prosecution acted intentionally to “thwart any efforts to 

introduce Bruning’s police report, or the arrest warrant based 

on that report.” 123

While defense counsel may have been initially surprised 

by the clerk of the court’s errors in relation to the subpoenas, defense counsel admitted that he was aware at trial that 

Bruning was not going to appear and had discussions with 

the clerk of the court about what had occurred. Despite this, 

defense counsel did not ask for a continuance to have Bruning 

properly subpoenaed and brought in by warrant if necessary.

[55] We have repeatedly held that a motion for new trial on 

the ground of surprise is properly overruled where a request 

123Brief for appellant at 58.
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for a continuance for that reason was not made at the trial. 124

In a similar case, Schroll v. Fulton,

 125 we accordingly held 

that the plaintiff’s motion for new trial was properly overruled despite evidence that a witness was never served and 

had failed to appear at trial because of a misunderstanding. 

We reasoned that the plaintiff’s counsel had discovered at trial 

that the witness would not be present and had failed to move 

for a continuance. 126 Because defense counsel became aware 

of the issue during trial and did not move for a continuance, 

the motion for new trial on the basis of surprise had no merit.

We observe in the instant case that trial counsel likely 

abandoned his pursuit of Bruning’s testimony because it was 

of little consequence to Rush’s defense. Bruning could testify 

only that he made the report based on information given to 

him. While the import of Bruning’s testimony was apparently to enter the warrant obtained in relation to the domestic 

assault into evidence, defense counsel conceded the warrant 

would not support an alibi defense. Instead, defense counsel said the purpose of the warrant was to add credibility to 

Rush’s testimony that he fled to Chicago not just because he 

had learned he was a suspect in the murder and robbery of 

Shekie, but also because he knew he had a warrant for his 

arrest in relation to the domestic assault. Bolstering Rush’s 

credibility on such a claim was of minor significance to 

Rush’s defense, and the absence of this evidence therefore did 

not materially affect Rush’s substantial rights.

In sum, because the motion for new trial in relation to the 

subpoena of Bruning had no merit, trial counsel was not ineffective for withdrawing the motion.

124Plambeck v. Union Pacific RR. Co., 232 Neb. 590, 441 N.W.2d 614 

(1989); Schroll v. Fulton, 213 Neb. 310, 328 N.W.2d 780 (1983); State v. 

Mills, 199 Neb. 295, 258 N.W.2d 628 (1977); Kehm v. Dumpert, 183 Neb. 

568, 162 N.W.2d 520 (1968).

125 Schroll v. Fulton, supra note 124.

126 Id.
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(c) Alleged Prosecutorial Misconduct 

During Closing Arguments

Rush argues that the prosecutor took advantage of the fact 

that the warrant relating to the report of domestic assault was 

not in evidence and committed misconduct during closing 

arguments by knowingly making false statements to the jury 

that undermined Rush’s alibi. More specifically, Rush argues 

that the prosecutor told the jury there was “absolutely nothing” 

corroborating the existence of the domestic assault warrant and 

Rush’s testimony that he was with Young at the time of the 

robbery and murder. 127

Rush argues that, accordingly, the trial court erred in overruling his motion for mistrial. We observe that Rush’s argument differs from his assignment of error because he assigns 

“plain error,” rather than reversible error by the trial court. 

Because we ultimately conclude there was no prosecutorial 

misconduct, this distinction is insignificant. We find that the 

court committed neither reversible error nor plain error in this 

respect. For similar reasons, we find no merit to this assertion 

that counsel was ineffective by withdrawing his motion for 

new trial based on prosecutorial misconduct.

[56,57] In assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether 

the prosecutor’s remarks were improper. 128 If the remarks 

are found to be improper, it is then necessary to determine 

whether the improper remarks had a prejudicial effect on the 

defendant’s right to a fair trial. 129 Before it is necessary to 

grant a mistrial for prosecutorial misconduct, the defendant 

must show that a substantial miscarriage of justice has actually occurred. 130 The decision whether to grant a motion for 

127Brief for appellant at 28.

128 State v. Gleaton, 316 Neb. 114, 3 N.W.3d 334 (2024).

129 Id.

130 State v. Robinson, supra note 9.
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mistrial is within the trial court’s discretion and will not be 

disturbed on appeal in the absence of an abuse of discretion. 131

It is important to view the prosecution’s statements in context. While the prosecutor repeatedly referred in closing arguments to there being “nothing to corroborate” various aspects 

of Rush’s testimony that the prosecutor discussed, these were 

true statements.

During the prosecution’s closing arguments, the prosecutor 

reviewed with the jury Rush’s version of events around the 

time of the murder and robbery. The prosecutor talked about 

how Rush claimed the messages about having to “lay low” 

were “just in regard to” the domestic assault that occurred 

on February 23, 2021, which the prosecutor pointed out was 

“coincidentally at the same time that this homicide occurred.” 

The prosecutor then began to talk about Rush’s testimony that 

he had lost his cell phone or had left it in Marques’ vehicle 

and said:

There’s nothing to support that, no corroboration of that 

testimony that he left—[Marques] wasn’t asked that question about finding a phone in his van, and, what, three—

what, five days later, from the 15th or the 16th or the 

20th, and then all of a sudden, the 24th, his dog finds it 

out by the street.

The prosecutor also talked about Rush’s unlikely story that 

his social media accounts had been compromised and Rush’s 

supposition that Feilen was talking to some other man during 

the controlled phone conversation made in cooperation with 

law enforcement.

The prosecutor then moved on to the testimony of Feilen 

and Marques and pointed out that although they were both 

engaged in criminal behavior and perhaps not the best witnesses, there were things that corroborated their versions of 

the events. The prosecutor said, in contrast, “I would tell you 

131 Id.
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that there is absolutely nothing that corroborates anything 

that . . . Rush said.” The prosecutor elaborated, “So, what do 

I mean by that?” and proceeded to detail how Feilen’s and 

Marques’ reports of events to law enforcement were consistent 

with other evidence later discovered during the investigation.

After detailing this incriminating evidence, the prosecutor 

talked about the shoeprint on Shekie’s door and Rush’s testimony that he had sold the shoes and did not own them at the 

time of the murder, pointing out that there was “[n]o corroboration for that whatsoever.” Similarly, with respect to the dogs’ 

finding Rush’s cell phone that he said he lost, the prosecutor 

said, “[T]here’s no corroboration for that whatsoever.”

Only after all this did the prosecutor circle back to the 

domestic assault. Pertaining to the alibi of the domestic assault, 

the prosecutor argued there was nothing corroborating Rush’s 

testimony of the exact time of the domestic assault, and he 

pointed out it would take only approximately 45 minutes to 1 

hour to drive from Omaha to Lincoln.

The prosecutor did not assert there was nothing corroborating the existence of an arrest warrant for a domestic assault 

or that there was nothing corroborating the fact that Rush 

assaulted Young in Omaha sometime on or around the day 

Shekie was murdered in Lincoln. To the contrary, the prosecutor speculated that the domestic assault occurred on February 

24, 2021, during the evening hours. The prosecutor speculated 

that Young was upset with Rush for being with Feilen on 

February 23 and maybe had even found out about the murder. He speculated that a fight ensued that led to the domestic 

assault charges.

“But,” said the prosecutor, “there’s absolutely nothing that 

corroborates when, where, and how that happened.” The 

prosecutor said, “The whole [domestic violence] thing, as far 

as what happened at the same time that this murder occurred 

in the early morning hours of the 23rd, there is absolutely 

no corroboration to show when, what, where, or how that 
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warrant came about.” The prosecutor continued, “[Rush] said 

there was a warrant for his arrest. There’s nothing to support 

how that all came about.”

In other words, viewed in their entirety and in context, 

the prosecutor’s closing arguments did not dispute that there 

was a warrant related to the domestic assault or even that the 

domestic assault happened. Rather, the prosecutor disputed 

whether the domestic assault happened “at the same time 

that this murder occurred.” The “when, what, where, or how” 

comment may have been hyperbole, but, viewed in context, it 

would not communicate to a reasonable juror that the prosecutor was asserting there was no corroboration of the fact that 

a report of domestic assault was made around the time of the 

robbery and murder or the fact that a warrant for Rush’s arrest 

resulted from the same.

That there was no corroboration of Rush’s testimony that 

the assault occurred at the same time as the murder was a true 

statement. In the sidebar during Rush’s testimony, defense 

counsel expressly recognized that the arrest warrant reflected 

only the date Bruning responded to the report of the offense 

and not necessarily the date the offense occurred. And there 

was no indication that Bruning’s testimony would have provided anything other than inadmissible hearsay with respect 

to exactly when the domestic assault, as opposed to Young’s 

report of it, occurred.

The prosecutor was not being false or misleading in stating 

there was nothing to corroborate Rush’s alibi testimony about 

the time of the assault. A prosecutor’s conduct that does not 

mislead and unduly influence the jury is not misconduct. 132 As 

such, the trial court did not err in denying Rush’s motion for 

mistrial and trial counsel did not err in withdrawing the motion 

for new trial on the ground of prosecutorial misconduct.

132 State v. Garcia, supra note 57.
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7. Stipulation to Mistrial Because 

of COVID-19 Delays

[58] We next address Rush’s assignment of error that 

defense counsel was ineffective by stipulating to the State’s 

motion for mistrial related to COVID-19, which occurred 

shortly after the first trial began. A mistrial is properly granted 

in a criminal case where an event occurs during the course of 

a trial that is of such a nature that its damaging effect cannot 

be removed by proper admonition or instruction to the jury 

and thus prevents a fair trial. 133 As stated, decisions regarding motions for mistrial are directed to the discretion of the 

trial court. 134

After the jury was impaneled, opening statements were 

given by both parties, the State called two witnesses, and trial 

was delayed for several days after the judge and three of the 

State’s witnesses yet to testify tested positive for COVID-19. 

The jury was unsequestered, and it was still unclear when the 

judge would be asymptomatic and test negative for COVID-19. 

The State, in its motions for mistrial, raised concerns about the 

jurors’ ability to have a fresh recollection of the arguments and 

evidence presented and its ability to secure witnesses beyond 

the period of their subpoenas, based on the original estimation 

of the duration of the trial.

Rush discussed the motion with defense counsel and stipulated to the facts set forth in the motion. He did not object to 

a mistrial. The court declared a mistrial and scheduled a new 

trial. In its order, the court found that a mistrial was necessary 

to avoid manifest prejudice and injustice to both Rush and 

the State.

To make a successful claim that trial counsel was ineffective, the defendant must show both that counsel’s performance was deficient and that the deficient performance caused 

133 State v. Esch, supra note 22.

134 Id.
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prejudice. 135 But Rush presents no specific argument on appeal 

as to how his defense counsel was deficient. His vague reference to the stipulation’s being “apparently based in part on 

[counsel’s] personal feelings about pandemics” 136 is not a 

coherent argument of deficient conduct.

Rush focuses only on the argument that he was prejudiced 

because his opening statements revealed his theory of defense 

and the mistrial gave the State more time to prepare to rebut 

that theory. Even assuming Rush suffered some disadvantage 

from the mistrial, it does not follow that trial counsel’s performance in stipulating to the facts and failing to object to 

the mistrial was deficient performance. It also does not follow 

that the court would have abused its discretion in granting 

a mistrial but for defense counsel’s stipulation and failure 

to object.

In several cases in state and federal courts, mistrials granted 

by the court because of delays in trial due to COVID-19, especially when of indeterminate length, have been held to be not 

only proper, but of manifest necessity. 137 Trial counsel is not 

deficient for failing to object to a mistrial where a mistrial 

was warranted.

We find no merit to Rush’s assignment of error that trial 

counsel was ineffective in relation to the mistrial granted due 

to delays from COVID-19.

8. Sufficiency of Evidence of 

Use of Firearm to 

Commit Felony

Rush’s final challenge on appeal is that the evidence was 

insufficient to support his conviction of use of a firearm to 

135 See State v. Ammons, 314 Neb. 433, 990 N.W.2d 897 (2023).

136Brief for appellant at 31.

137 See, U.S. v. Islam, 102 F.4th 143 (2024); U.S. v. Dennison, 73 F.4th 70 (1st 

Cir. 2023); Hightower v. State, 315 Ga. 399, 883 S.E.2d 335 (2023); State 

v. Smith, 465 N.J. Super. 515, 244 A.3d 296 (2020).
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commit a felony. Under § 28-1205(1), “[a]ny person who uses 

a firearm, a knife, brass or iron knuckles, or any other deadly 

weapon to commit any felony which may be prosecuted in 

a court of this state commits the offense of use of a deadly 

weapon to commit a felony” and “[u]se of a deadly weapon, 

which is a firearm, to commit a felony is a Class IC felony.” 

He argues the evidence was insufficient because there was no 

physical evidence linking him to a firearm.

[59] In reviewing a criminal conviction for a sufficiency 

of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An 

appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence, and 

such matters are for the finder of fact. 138 The relevant question for an appellate court in reviewing a criminal conviction 

for sufficiency of the evidence is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. 139

[60] Under the evidence presented, any rational trier of fact 

could have found the essential elements of use of a firearm 

to commit a felony. As Rush concedes, it was undisputed that 

Shekie was killed by gunshot wounds. Shell casings and bullets were found in and near his trailer. Feilen and Marques 

both testified that Rush had a gun during the robbery and that 

they heard gunshots and Shekie scream after Rush entered 

Shekie’s trailer. It does not matter that this evidence is circumstantial. Circumstantial evidence is entitled to be treated 

by the trier of fact in the same manner as direct evidence. 140

Nor do we pass on the credibility of these witnesses. We 

find no merit to Rush’s contention that there was insufficient 

138 State v. Clark, supra note 44.

139 See id.

140 State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981).
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evidence to support his conviction of use of a firearm to commit a felony.

VI. CONCLUSION

We find that we cannot resolve on direct appeal Rush’s 

claims of ineffective assistance of counsel by failing to call 

Young to testify as to Rush’s alibi and by failing to adequately 

prepare Rush to testify in his own defense. As to all other 

assignments of error, we find that they lack merit. We affirm 

the judgment of the district court.

Affirmed.