State v. Nolan

sentencing proceedings. Based upon our review of the record,
we conclude that these findings are not clearly erroneous.
VI. CONCLUSION
For the reasons discussed above, we conclude that the dis-
trict court did not err in denying Dunkin’s motion for postcon-
viction relief, and we affirm its judgment.
A ffirmed.
Wright, J., not participating in the decision.
StAte of NebrASkA, Appellee , v.
JoShuA W. NolAN, AppellANt.
807 N.W.2d 520
Filed January 20, 2012. 	No. S-10-1011.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
3. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an officer
has probable cause to stop a violator, the stop is objectively reasonable, and any
ulterior motive on the officer’s part is irrelevant.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a
vehicle has been lawfully detained for a traffic violation, police officers may
order the driver out of the vehicle.
5. ____: ____: ____. In order to justify a pat-down of a person during a traffic stop,
the police must still harbor reasonable suspicion that the person subjected to the
frisk is armed and dangerous.
6. Identification Procedures: Due Process: Appeal and Error. A district court’s
conclusion whether an identification is consistent with due process is reviewed de
novo, but the court’s findings of historical fact are reviewed for clear error.
7. Constitutional Law: Identification Procedures: Due Process. The Due Process
Clause does not require a preliminary judicial inquiry into the reliability of an
eyewitness identification when the identification was not procured under unneces-
sarily suggestive circumstances arranged by law enforcement.
8. Identification Procedures: Police Officers and Sheriffs: Motions to Suppress.
Suppression of identification evidence on the basis of undue suggestion is
50 	283 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

appropriate only where the witness’ ability to make an accurate identification is
outweighed by the corrupting effect of improper police conduct.
9. Trial: Identification Procedures. When no improper law enforcement activ-
ity is involved, it suffices to test the reliability of identification testimony at
trial, through the rights and opportunities generally designed for that purpose,
such as the rights to counsel, compulsory process, and confrontation and cross-
examination of witnesses.
10. Rules of Evidence. In proceedings where the Nebraska evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
11. Rules of Evidence: Appeal and Error. Where the Nebraska evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
12. Rules of Evidence: Other Acts. Bad acts that form the factual setting of the
crime in issue or that form an integral part of the crime charged are not covered
under Neb. evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
13. Criminal Law: Evidence. Intrinsic evidence, or evidence necessary to tell a
complete story of the crime, is admissible to provide the context in which the
crime occurred.
14. Rules of Evidence: Presumptions. All evidence offered by the State is presum-
ably prejudicial to the defendant; otherwise, it would be irrelevant, and would be
inadmissible. But, in order for evidence to be excluded under Neb. evid. R. 403,
Neb. Rev. Stat. § 27-403 (Reissue 2008), the objecting party must prove that the
danger of unfair prejudice substantially outweighs any probative value.
15. Trial: Evidence: Appeal and Error. A court must determine whether there is
sufficient foundation evidence for the admission of physical evidence on a case-
by-case basis. Because authentication rulings are necessarily fact specific, a trial
court has discretion to determine whether evidence has been properly authenti-
cated. An appellate court reviews a trial court’s ruling on authentication for abuse
of discretion.
16. Rules of Evidence: Hearsay: Presumptions. evidence admitted pursuant to
the business records exception to the rule against hearsay is presumed to be
trustworthy.
17. Rules of Evidence: Hearsay. If foundation is laid for the business records excep-
tion, then the authentication requirements of Neb. evid. R. 901, Neb. Rev. Stat.
§ 27-901 (Reissue 2008), are also met.
18. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on
account of prejudice is addressed to the sound discretion of the trial court. An
order overruling such a motion will be affirmed on appeal unless the record estab-
lishes bias or prejudice as a matter of law.
19. Judges: Recusal. A judge shall be disqualified if a reasonable person who knew
the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice
was shown.
20. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on
the basis of bias or prejudice bears the heavy burden of overcoming the presump-
tion of judicial impartiality.
STATe v. NOLAN 	51
Cite as 283 Neb. 50

21. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
22. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
23. ____: ____: ____. In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence. Those matters are for the finder of fact.
24. Intent: Words and Phrases. Deliberate means not suddenly, not rashly, and
requires that the defendant considered the probable consequences of his or her act
before doing the act.
25. Homicide: Intent: Time: Words and Phrases. The term “premeditated” means
to have formed a design to commit an act before it is done. One kills with pre-
meditated malice if, before the act causing the death occurs, one has formed the
intent or determined to kill the victim without legal justification. No particular
length of time for premeditation is required, provided that the intent to kill is
formed before the act is committed and not simultaneously with the act that
caused the death.
26. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
27. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of the
lower court for clear error.
28. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.
29. 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 counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
Appeal from the District Court for Douglas County: mArloN
A. polk, Judge. Affirmed.
Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAN, c.J., coNNolly, gerrArd, StephAN, mccormAck ,
and miller-lermAN, JJ.
52 	283 NeBRASkA RePORTS

gerrArd, J.
Joshua W. Nolan, the appellant, was charged with first
degree murder and use of a deadly weapon to commit a felony
in connection with the killing of Justin Gaines. At trial, the
State contended that Gaines had been visiting with a family
friend in the driveway of an Omaha, Nebraska, home when
Nolan and Trevelle J. Taylor, Nolan’s accomplice, shot and
killed him. Nolan, relying primarily on inconsistencies among
the statements and testimony of the State’s witnesses, argued
that there was a reasonable doubt as to whether Nolan had shot
and killed Gaines. A jury convicted Nolan of both charges, and
he appeals. We find no merit to Nolan’s various assignments of
error, and affirm his convictions and sentences.
I. BACkGROUND
The events leading up to Gaines’ death began on the morn-
ing of September 19, 2009, the day of the shooting. Joshua
kercheval testified that at around 11:30 a.m. that day, Taylor
and Nolan had shown up at his house and that kercheval drove
Taylor and Nolan around Omaha. kercheval explained that
Taylor asked him to drive, although kercheval was not told
where to go. kercheval ended up driving them around town for
roughly 30 minutes before deciding to drive to a gas station
near 72d Street and Ames Avenue. Video surveillance from
the gas station places the three of them at the gas station from
1:21 to 1:30 p.m. kercheval testified that when they left the gas
station, he began driving back toward his house. But as they
approached the intersection of 45th and Vernon Streets, Taylor
told kercheval to stop the car and Nolan and Taylor both got
out. At that point, kercheval parked the car and was sitting
in the car texting on his telephone when he heard a number
of gunshots.
Meanwhile, at around 1 p.m., Gaines had driven past a
home near 45th Street and Curtis Avenue and had seen Catrice
Bryson, a close family friend, in the driveway. Bryson was
at the house visiting a friend and her baby, but had stepped
outside to smoke a cigarette. Gaines pulled into the driveway,
parked right behind Bryson’s car, and greeted Bryson with a
hug. Bryson and Gaines began talking; Gaines sat back in his
STATe v. NOLAN 	53
Cite as 283 Neb. 50

car, on the driver’s side, one foot in, one foot out, with the car
door open. Bryson, standing with the open car door between
her and Gaines, continued talking with Gaines for roughly 10
to 15 minutes. Toward the end of their conversation, Bryson
went to get a pen from her car to give Gaines her telephone
number.
When Bryson turned back around, she saw two individu-
als with guns behind Gaines’ car and she heard shooting. The
two shooters were on each side of Gaines’ car, angled toward
each other. Bryson described the shooter on the passenger’s
side of Gaines’ car as a black male in his early twenties with a
beard and goatee and shoulder-length hair in braids, wearing a
“do-rag.” Bryson identified the shooter on the passenger’s side
of Gaines’ car as Nolan.
Gaines, while still sitting in the driver’s-side seat of his car,
was shot in the back. Once Gaines had been hit, the shoot-
ers made their escape, each fleeing in opposite directions on
Curtis Avenue. At that point, Bryson began screaming for help.
Several people responded, and the police arrived quickly there-
after. Gaines was transported to a nearby hospital, but never
regained consciousness and was pronounced dead.
Several eyewitnesses to the aftermath of the shooting testi-
fied at trial. Heather Riesselman, at the time of the shooting,
lived close to the house where the shooting took place. On the
day of the shooting, at approximately 1:40 p.m., Riesselman
was outside on her porch with her daughter. At that time,
Riesselman saw a young black man “jogging down the street.”
Riesselman described him as being roughly 5 feet 10 inches
tall, medium build, medium complexion, with his hair in braids
and with a long, thin goatee. Riesselman identified the man, in
court, as Nolan.
Carrie Schlabs was Riesselman’s next-door neighbor. At
approximately 1:30 p.m. on the day of the shooting, Schlabs
was at home with her husband and two friends when they
heard gunshots and dove to the floor. Once the gunfire ceased,
Schlabs heard screaming, so she got to her feet and ran out to
her front porch. Once outside, Schlabs started running toward
the screams on Curtis Avenue, to the south, and she saw a
young man running to the north. Schlabs saw the young man
54 	283 NeBRASkA RePORTS

holding his left side, which made her think that he had been
shot. Schlabs ran up to him, getting to within a foot of him,
and asked if he needed help. In response, the individual just
smiled at Schlabs. At that point, Schlabs continued on toward
the screams. While Schlabs could not remember any specific
details of the young man’s physical appearance or clothing,
she remembered his face. Schlabs identified the man, in court,
as Nolan.
kercheval testified that after he had heard the gunshots,
he had started the car, getting ready to drive off. But then
kercheval saw Nolan approaching the car and waited until
Nolan jumped into the back passenger seat. Once Nolan was in
the car, he told kercheval to “Drive. Go.” kercheval said that
he began driving toward his house, but, at Nolan’s direction,
kercheval dropped Nolan off near a school. Whether it was
Nolan or Taylor who was dropped off near the school was in
dispute. kercheval’s next thought was to “go dump the car.”
But before he was able to do so, he was arrested. Taylor was
also arrested that day. Nolan, however, was not taken into cus-
tody that day.
eight days after the shooting, Nolan, driving in his car, was
pulled over for making an improper turn. The officers received
identification for both the driver and the passenger. The offi-
cers knew that Nolan was associated with a local gang. Upon
approaching the driver’s-side door of the car, the arresting offi-
cer noticed bullet holes in the car. After running data checks
on both the driver and the passenger, the officer saw that the
Omaha police homicide unit had put out a “locate” for Nolan.
A “locate” means that an officer wishes to speak with the
individual, but it does not give the officers authority to arrest
the individual.
At that point, the officer asked Nolan to get out of his car
and stand near the back fender area. Instead, Nolan went past
that area and sat on the curb. The officer observed that Nolan
moved “[v]ery quickly” and was grabbing his waistband. The
officer also observed that Nolan’s pants were falling down and
that it appeared as if there was something heavy in his pants.
Finally, when asked if he had any weapons or other danger-
ous objects on his person, Nolan did not respond. The officer
STATe v. NOLAN 	55
Cite as 283 Neb. 50

conducted a pat-down of Nolan, looking for weapons. The
pat-down revealed a .44-caliber gun, found in Nolan’s waist-
band. A subsequent search of Nolan’s person uncovered live
ammunition, and Nolan was placed under arrest at that time.
The gun and ammunition were admitted into evidence at trial
over objection.
Nolan was charged with one count of murder in the first
degree and one count of use of a deadly weapon to commit a
felony. Nolan filed several pretrial motions. The motions rele-
vant to this appeal are (1) a motion to suppress the gun and
ammunition recovered from Nolan during the traffic stop, (2)
a motion to suppress identifications of Nolan by Riesselman
and Schlabs, and (3) a motion for the judge to recuse himself
from the case. each of these motions was denied. The case pro-
ceeded to a jury trial, and Nolan was convicted of both crimes.
Nolan was then sentenced to a term of life imprisonment for
the first degree murder conviction, and a consecutive term of
10 years’ imprisonment for the use of a weapon conviction.
Nolan appeals.
II. ASSIGNMeNTS OF eRROR
Nolan assigns, consolidated and restated, that the district
court erred in (1) denying his motion to suppress the gun
and ammunition resulting from the traffic stop, (2) denying
his motion to suppress the identifications of Nolan made by
Riesselman and Schlabs, (3) admitting the .44-caliber gun into
evidence in violation of Neb. evid. R. 403 and 404, Neb. Rev.
Stat. §§ 27-403 (Reissue 2008) and 27-404 (Cum. Supp. 2010),
(4) allowing a cellular telephone company employee to testify
regarding telephone records, (5) denying his motion to recuse
the trial judge, (6) giving a “step” jury instruction, and (7) con-
cluding that the evidence was sufficient to sustain his convic-
tions. Nolan, as his eighth assignment of error, also claims that
he received ineffective assistance of counsel at trial.
III. ANALYSIS
1. motioN to SuppreSS guN ANd A mmuNitioN
During a traffic stop on September 27, 2009, the State recov-
ered a .44-caliber gun and matching ammunition from Nolan.
56 	283 NeBRASkA RePORTS

Nolan filed a motion to suppress that evidence, claiming that
the officers lacked reasonable suspicion to conduct the traf-
fic stop and subsequent pat-down and that therefore, evidence
regarding the gun and ammunition should have been excluded
at trial. We disagree.
(a) Standard of Review
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s findings for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination.1
(b) Analysis
[2,3] Nolan claims that the officers lacked reasonable suspi-
cion to stop his car. But we have repeatedly held that a traffic
violation, no matter how minor, creates probable cause to stop
the driver of a vehicle.2 Here, the record indicates that the offi-
cers observed Nolan commit a traffic infraction when he made
an improper turn. The turn was improper because Nolan made
a wide right turn, rather than turning into the curbside lane.3
And, as long as a traffic violation occurred, any purported ulte-
rior motive for the stop is irrelevant.4 Thus, even though the
officers began following Nolan’s car because they were aware
the car was associated with a local gang, once Nolan commit-
ted a traffic violation, the officers had probable cause to stop
the car. The initial stop was lawful.
[4,5] Nolan also claims that the officers lacked reasonable
suspicion, based on articulable facts, to justify patting down
Nolan. That pat-down, of course, led to the discovery of the
.44-caliber gun on Nolan’s person. There is no question that
once a vehicle has been lawfully detained for a traffic violation,
1 State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).
2 See, e.g., State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
3 See Neb. Rev. Stat. § 60-6,159(1) (Reissue 2010).
4 See State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
STATe v. NOLAN 	57
Cite as 283 Neb. 50

police officers may order the driver out of the vehicle.5 But, in
order to justify a pat-down of a person during a traffic stop, the
police must still harbor reasonable suspicion that the person
subjected to the frisk is armed and dangerous.6
In Arizona v. Johnson,7 police officers lawfully stopped a
vehicle after a license plate check revealed that the vehicle’s
registration had been suspended for an insurance-related viola-
tion. Upon approaching the vehicle, officers noticed that one
of the passengers in the vehicle, the defendant, was wearing
a blue bandanna, which was consistent with membership in a
particular gang. The defendant also had a police scanner in his
pocket and told one of the officers that he had previously spent
time in jail for burglary. On these facts, the officer conducted
a pat-down of the defendant and felt the butt of a gun, which
led to the defendant’s arrest. The U.S. Supreme Court found
that the officer had a reasonable suspicion that the defendant
was armed and dangerous and that therefore, the pat-down
was lawful.8
The facts here likewise indicate that officers could reason-
ably suspect that Nolan was armed and dangerous and that a
pat-down was necessary to ensure officer safety. As in Johnson,
officers in this case were aware of Nolan’s gang affiliation.
When the circumstances are taken together, especially consid-
ering that Nolan failed to follow directions and was holding
his waistband, the evidence supports a finding of reasonable
suspicion that Nolan was armed and dangerous, and a pat-down
was warranted. Therefore, Nolan’s first assignment of error is
without merit.
2. motioN to SuppreSS ideNtificAtioNS
Nolan also filed a motion to suppress the identifications
made by both Riesselman and Schlabs, claiming that the
5 See Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. ed. 2d 694
(2009).
6 Id.
7 Id.
8 See id.
58 	283 NeBRASkA RePORTS

State’s pretrial identification procedure was unduly suggestive
and that their in-court identifications of Nolan were irreparably
tainted as a result. The identifications made by Riesselman and
Schlabs were the subject of a motion to suppress based on a
meeting between Riesselman, Schlabs, and the prosecutor that
had occurred on March 25, 2010; and the sequence of events at
that meeting is essentially undisputed.
At that meeting, approximately 6 months after the shooting,
Riesselman met with the prosecutor to go over her testimony
in preparation for a hearing. Schlabs, who at that point had
not come forward as a witness, accompanied Riesselman for
support. While at that meeting, the prosecutor handed a photo-
graphic array to Riesselman—the same array consisting of six
photographs from which Riesselman had previously identified
Nolan. Schlabs saw Nolan’s photograph and exclaimed “Oh,
my God, that’s him. That’s who I ran up to.”
Although the photographic array contained Riesselman’s
handwriting identifying the photograph she had picked out
of the array previously, Schlabs testified that she saw only
Nolan’s photograph, which she immediately recognized, but
did not see the handwriting. As soon as Schlabs exclaimed
that the man she saw on the day of the shooting was in the
photographic array, Riesselman and Schlabs were separated.
Schlabs felt sick to her stomach, and the prosecutor took
her to another room to lie down. Riesselman did not go with
Schlabs or the prosecutor to the other room. Schlabs was then
questioned by police outside the presence of Riesselman, and
she eventually identified Nolan at trial. The record indicates
that when she first saw the photographic array, Schlabs did
not in any way indicate who she had identified; she made no
gesture, hand signal, or other movement which would suggest
to Riesselman that Schlabs had identified Nolan specifically.
And Riesselman testified that her identification of Nolan was
not influenced by Schlabs’ exclamation in the prosecuting
attorney’s office.
(a) Standard of Review
In reviewing motions to suppress identifications based on
alleged due process violations, our standard of review has been
STATe v. NOLAN 	59
Cite as 283 Neb. 50

less than clear. In State v. McPherson,9 we explained, generally,
that a trial court’s ruling on a motion to suppress will be upheld
unless its findings are clearly erroneous. In State v. Jacob,10 we
reviewed the lower court’s denial of a motion to suppress an
identification, and the subsequent admission of the eyewitness’
identification at trial, under an abuse of discretion standard.
And, in other cases, we have simply stated that a lower court’s
factual findings will be upheld unless they are clearly erro-
neous, but we did not explicitly state the standard of review for
the conclusions drawn from those facts.11
More recently, in situations involving a motion to suppress
based on various other constitutional violations, we have uti-
lized an explicit two-part standard of review, in which findings
of fact are reviewed for clear error and questions of law are
determined independently. Specifically, this standard of review
has been used in situations involving motions to suppress based
on an alleged Fourth Amendment violation12 and when a con-
fession was allegedly involuntary.13
There is no principled reason why the same two-part stan-
dard of review would not function equally well in a situation
such as this, where the motion to suppress is based on a claim
that a pretrial identification procedure was unduly sugges-
tive. Indeed, we have already impliedly used this standard of
review in our previous cases. In other words, when we have
stated that the lower court’s findings of fact would be upheld
unless clearly erroneous, the implication is that the conclusion
to be drawn from those facts—whether the identification pro-
cedure is inconsistent with due process—would be reviewed
independently.14
9 State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
10 State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).
11 See, e.g., State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004).
12 See Garcia, supra note 1.
13 See, State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010); State v.
Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
14 See, e.g., Tolliver, supra note 11.
60 	283 NeBRASkA RePORTS

[6] But we take this opportunity to state explicitly what
we have previously expressed only through implication. We
recognize that the determination of whether a witness’ iden-
tification should be suppressed is a highly factual inquiry and
that, for the most part, a lower court’s factual findings will
largely determine an appellate court’s judgment on appeal. But
utilizing the two-prong standard provides a clearer picture of
how we make our determinations and is consistent with our
approach in reviewing motions to suppress in other contexts.
We therefore adopt that standard of review here. We hold that
a district court’s conclusion whether an identification is con-
sistent with due process is reviewed de novo, but the court’s
findings of historical fact are reviewed for clear error.15
(b) Analysis
Our determination on this issue is controlled by the U.S.
Supreme Court’s recent decision in Perry v. New Hampshire.16
In Perry, police had received a call reporting that a man was
trying to break into cars in the parking lot of the caller’s apart-
ment building. When the officer who responded asked the caller
to describe the man, she pointed out her kitchen window and
said that the man she had seen was standing in the parking lot
next to a police officer. The suspect was arrested and charged,
and he made a pretrial motion to suppress the eyewitness iden-
tification on the ground that admitting it at trial would violate
due process. The trial court overruled the motion, the defendant
was convicted of the charge, and the New Hampshire Supreme
Court affirmed his conviction.
The U.S. Supreme Court affirmed that decision.17 The Court
acknowledged that, generally, the Due Process Clause places
15 See U.S. v. Harris, 281 F.3d 667 (7th Cir. 2002). See, e.g., U.S. v. Hilario-
Hilario, 529 F.3d 65 (1st Cir. 2008); U.S. v. Thompson, 524 F.3d 1126
(10th Cir. 2008); U.S. v. Saunders, 501 F.3d 384 (4th Cir. 2007); U.S. v.
Mathis, 264 F.3d 321 (3d Cir. 2001). Cf. Sumner v. Mata, 455 U.S. 591,
102 S. Ct. 1303, 71 L. ed. 2d 480 (1982).
16 Perry v. New Hampshire, No. 10-8974, 2012 WL 75048 (U.S. Jan. 11,
2012).
17 See id.
STATe v. NOLAN 	61
Cite as 283 Neb. 50

a check on the admission of eyewitness identification when
the police have arranged suggestive circumstances leading the
witness to identify a particular person as the perpetrator of a
crime. And, the Court said, when an identification is infected
by improper police influence, the trial judge must screen the
evidence, pretrial, for reliability. But the Court, examining its
precedent, said that it had not extended pretrial screening for
reliability to cases in which the suggestive circumstances were
not arranged by law enforcement officers. Instead, the Court’s
decisions had turned on the presence of state action and the
aim to deter police from rigging identification procedures.18
The Court reasoned that the Constitution “protects a defend-
ant against a conviction based on evidence of questionable
reliability, not by prohibiting introduction of the evidence, but
by affording the defendant means to persuade the jury that the
evidence should be discounted as unworthy of credit.”19 The
Court explained that the requirement of a due process check for
reliability comes into play only after the defendant establishes
police misconduct, because a primary aim of excluding such
evidence is to deter law enforcement’s use of unduly suggestive
identification techniques in the first place.20 So, the due process
check had been limited to improper police arrangement of the
circumstances surrounding an identification.21
To conclude otherwise, the Court explained, would open the
door to “judicial preview, under the banner of due process, of
most, if not all, eyewitness identifications,” because “[e]xternal
suggestion is hardly the only factor that casts doubt on the trust-
worthiness of an eyewitness’ testimony.”22 The Court noted, for
example, that a witness might identify the defendant to police
officers “after seeing a photograph of the defendant in the press
captioned ‘theft suspect,’ or hearing a radio report implicating
18 See id.
19 Id., 2012 WL 75048 at *5.
20 Perry, supra note 16, citing Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct.
2243, 53 L. ed. 2d 140 (1977).
21 Id., citing Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. ed. 2d
387 (1970).
22 Id., 2012 WL 75048 at *9.
62 	283 NeBRASkA RePORTS

the defendant in the crime.”23 The trial court’s involvement in
such examinations, however, would “entail a vast enlargement
of the reach of due process as a constraint on the admission of
evidence.”24 Instead, the Court explained, it is the jury, not the
judge, who traditionally determines the reliability of evidence.
Other safeguards are built into the adversarial system, such
as the right to confront the eyewitness, the right to effective
assistance of counsel, the rules of evidence, and the require-
ment of proof beyond a reasonable doubt. And many of those
safeguards were, the Court noted, at work in that case.25
[7-9] In sum, the Court held that “the Due Process Clause
does not require a preliminary judicial inquiry into the reliabil-
ity of an eyewitness identification when the identification was
not procured under unnecessarily suggestive circumstances
arranged by law enforcement.”26 Suppression of identifica-
tion evidence on the basis of undue suggestion is appropriate
only where the witness’ ability to make an accurate identi-
fication is outweighed by the corrupting effect of improper
police conduct.27 When no improper law enforcement activity
is involved, it suffices to test the reliability of identification
testimony at trial, through the rights and opportunities gener-
ally designed for that purpose, such as the rights to counsel,
compulsory process, and confrontation and cross-examination
of witnesses.28
In this case, Nolan does not allege that the initial photo-
graphic array, in which Riesselman had identified Nolan, was
impermissibly suggestive. Instead, Nolan’s argument is cen-
tered around the meeting between Riesselman, Schlabs, and
the prosecutor. Based on what occurred at that meeting, Nolan
claims that the identification procedure, as a whole, was imper-
missibly suggestive because the prosecuting attorney failed to
23 Id.
24 Id.
25 See Perry, supra note 16.
26 Id., 2012 WL 75048 at *11 (emphasis supplied).
27 See Perry, supra note 16, citing Brathwaite, supra note 20.
28 See id.
STATe v. NOLAN 	63
Cite as 283 Neb. 50

take any precautionary measures to prevent the contamination
of the witnesses’ identifications.
But it is unclear what additional precautionary measures
the prosecutor could have taken to prevent the contamination,
if any, of the witnesses’ identifications. Prior to the meeting,
Schlabs had never come forward as an eyewitness capable of
identifying Nolan, despite numerous opportunities to speak
with police. At the meeting, when Schlabs was asked why she
had accompanied Riesselman, she explained she was there
only to provide support. Thus, the prosecutor had no reason to
suspect that having both women in the room at the same time
could compromise future in-court identifications of Nolan. And
immediately after Schlabs exclaimed that she recognized one of
the photographs as the man she had seen the day of the shoot-
ing, the prosecuting attorney took Schlabs out of the office,
and no questions were asked of Schlabs in front of Riesselman.
Thus, because the prosecutor was unaware that Schlabs was
able to identify one of the shooters, it is unclear what the pros-
ecutor could have done to prevent the contamination, if any, of
the witnesses’ identifications of Nolan.
Obviously, this falls far short of the affirmative police mis-
conduct that, under Perry, must be shown in order for pretrial
suppression of the evidence to be appropriate. The law enforce-
ment involvement in the identifications at issue here was no
more substantial or improper than the police conduct at issue
in Perry.29 There is no evidence in the record to support a con-
clusion, nor does Nolan argue, that police or the prosecutor
deliberately arranged the circumstances of the meeting in order
to influence either Riesselman’s or Schlabs’ identification of
Nolan. In the absence of such evidence, due process did not
require a pretrial inquiry into the reliability of their testimony,
or suppression of that evidence.
Thus, the district court did not err in admitting Riesselman’s
and Schlabs’ identifications of Nolan. It was the jury’s duty to
assess their reliability, and we note, as did the Court in Perry,30
that Nolan’s defense was able to utilize, at trial, the procedural
29 See id.
30 See id.
64 	283 NeBRASkA RePORTS

tools available to a defendant to test a witness’ credibility. Both
Riesselman and Schlabs were subject to full cross-examination
at trial and were specifically questioned about the circum-
stances of the March 25, 2010, meeting, and how it affected
their identifications of Nolan. The jury determined, based on
all factors, whether it would believe their respective identifi-
cations. And these are precisely the type of fact-specific dis-
putes, when evidence is properly admitted, that a jury resolves.
Nolan’s assignment of error is without merit.
3. A dmiSSioN of .44-cAliber guN
Nolan objected to the admission of the .44-caliber gun
into evidence under §§ 27-404 and 27-403. But the trial court
determined that Nolan’s possession of a .44-caliber gun, when
coupled with the fact that Gaines was killed by a .44-caliber
weapon and there was evidence that a .44-caliber gun was dis-
charged at the scene of the crime, was evidence which formed
the factual setting of the crime. As such, the trial court deter-
mined § 27-404 did not apply. The trial court also overruled
Nolan’s § 27-403 objection. Because the trial court did not
abuse its discretion, we find no merit to this assigned error.
(a) Standard of Review
[10,11] 	In 	proceedings 	where 	the 	Nebraska 	evidence
Rules apply, the admissibility of evidence is controlled by
the Nebraska evidence Rules; judicial discretion is involved
only when the rules make such discretion a factor in deter-
mining admissibility.31 Where the Nebraska evidence Rules
commit the evidentiary question at issue to the discretion of
the trial court, the admissibility of evidence is reviewed for
an abuse of discretion.32 It is within the discretion of the trial
court to determine relevancy and admissibility of evidence
of other wrongs or acts under §§ 27-403 and 27-404(2), and
the trial court’s decision will not be reversed absent an abuse
of discretion.33
31 State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
32 Id.
33 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
STATe v. NOLAN 	65
Cite as 283 Neb. 50

(b) Analysis
Section 27-404(2) states:
evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
When evidence is admitted pursuant to § 27-404(2), § 27-404(3)
requires that a hearing be held to determine whether the State
is able to prove the defendant committed the crime, wrong, or
act for which evidence is offered. Nolan argues that, because
no § 27-404(3) hearing was held, the gun should not have been
admitted into evidence.
[12,13] Here, the question is whether § 27-404(2) applies,
and State v. Robinson34 provides the answer. Robinson reaf-
firmed the principle that “[b]ad acts that form the factual set-
ting of the crime in issue or that form an integral part of the
crime charged are not covered under rule 404(2).”35 Robinson
explained that “‘intrinsic evidence,’” or evidence necessary to
tell a complete story of the crime, is admissible to provide the
context in which the crime occurred.36
Nolan claims that the fact that the State’s gun expert could
not conclusively tie that specific gun to Gaines’ shooting means
that it is covered by § 27-404(2). In other words, because the
State was unable to prove that Nolan’s gun was the murder
weapon, it could not be considered intrinsic evidence of the
crime. But the key inquiry is whether the evidence is “so
closely intertwined with the charged crime that it completes the
story or provides a total picture of that crime.”37
Here, the district court ruled that the .44-caliber gun was
intrinsic evidence which formed the factual setting of the
crime. While Nolan’s weapon could not be definitively labeled
34 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
35 Id. at 713, 715 N.W.2d at 548.
36 Id. at 713, 715 N.W.2d at 549.
37 Id. at 714, 715 N.W.2d at 550.
66 	283 NeBRASkA RePORTS

as the murder weapon, the gun expert did testify that a .44-
caliber gun was used to kill Gaines. The fact that Nolan was
found in possession of a .44-caliber gun 8 days after the shoot-
ing, while not conclusive, arguably provides a clearer picture
of the crime. An abuse of discretion occurs when a trial court’s
decision is based on reasons which are untenable or unreason-
able or if its action is clearly against justice or conscience, rea-
son, and evidence.38 We cannot say that the trial court abused
its discretion in this instance, and therefore, Nolan’s claim of
error in this regard lacks merit.
Nolan also claims that the district court erred in admitting
the gun over Nolan’s § 27-403 objection. Nolan’s brief does
not provide any support for this assigned error. Instead, he
merely states, “Clearly, the prejudicial weight of this gun being
introduced into this trial outweighs [its] probative value in vio-
lation of” § 27-403.39
[14] Section 27-403 states, in pertinent part: “Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice
. . . .” (emphasis supplied.) All evidence offered by the State
is presumably prejudicial to the defendant; otherwise, it would
be irrelevant, and would be inadmissible. But, in order for evi-
dence to be excluded under § 27-403, the objecting party must
prove that the danger of unfair prejudice substantially out-
weighs any probative value. Nolan does not explain what unfair
prejudice would result or why it would substantially outweigh
the gun’s probative value. Therefore, the district court did not
abuse its discretion.
4. fouNdAtioNAl obJectioN to
teStimoNy of pAtriciA love
Patricia Love, a technical support supervisor for a cellular
telephone company, was called to testify in order to provide
foundation for the admission of Nolan’s cellular telephone
records. Love explained how calls are recorded, how that infor-
mation is maintained, what information is actually compiled
38 State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
39 Brief for appellant at 37.
STATe v. NOLAN 	67
Cite as 283 Neb. 50

with each telephone call, and the retrieval process to access
that information following the call. Love also testified that the
automated electrical process is maintained and calibrated often,
although she could not testify as to how or when those checks
were made.
Nolan argues that Love should not have been allowed to tes-
tify because she did not know whether and how the electrical
equipment which recorded the call information had been cali-
brated or maintained. In short, Nolan questioned Love’s ability
to verify the accuracy of the records. But because Love was
able to provide testimony sufficient to support a finding that
the evidence was what it was claimed to be, Nolan’s assign-
ment of error lacks merit.
(a) Standard of Review
[15] A court must determine whether there is sufficient
foundation evidence for the admission of physical evidence on
a case-by-case basis. Because authentication rulings are neces-
sarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated. We review a
trial court’s ruling on authentication for abuse of discretion.40
(b) Analysis
Nolan’s assignment of error is based solely on Neb. evid. R.
901, Neb. Rev. Stat. § 27-901(1) (Reissue 2008), which states,
in relevant part: “The requirement of authentication or identi-
fication as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” This requirement is not
a particularly high hurdle.41
[16,17] We addressed this same situation in State v. Taylor,42
which involved the prosecution of Nolan’s accomplice, Taylor,
for his role in Gaines’ death. In Taylor, we explained that
evidence admitted pursuant to the business records exception
40 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
41 See, e.g., State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
42 State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
68 	283 NeBRASkA RePORTS

to the rule against hearsay is presumed to be trustworthy.43
Moreover, we stated that if foundation is laid for the busi-
ness records exception, then the authentication requirements of
§ 27-901 are also met.44
The fact that the records custodian did not know how the
actual switch functioned, electronically speaking, does not
render her unable to testify as to how the records are compiled,
what they are used for, and what they mean. Nolan argues
that a more in-depth foundational analysis is required and that
because Love was unable to answer questions regarding how the
network switch was calibrated or maintained, she was unable to
provide foundation for the cellular telephone records.45
But § 27-901 does not require such explanation; the authen-
tication rule requires only sufficient facts that the evidence is
what its proponent claims it to be.46 The evidence is that these
were Nolan’s cellular telephone records, and there is no evi-
dence suggesting that the records were inaccurate. Additionally,
because the cellular telephone records in this case would meet
the business records exception,47 they are presumed to be trust-
worthy absent some contrary indication in the record.48 And, as
we explained in Taylor, if sufficient foundation is laid to satisfy
the business records exception, then the relatively low thresh-
old requirement of § 27-901(1) has also been met.49 Nolan’s
assignment of error lacks merit.
5. motioN for recuSAl
Nolan claims that the trial judge erred in failing to recuse
himself. The basis for Nolan’s motion was a statement by the
presiding judge at the sentencing of Terrence Hills, who was
the passenger in Nolan’s car when police stopped Nolan for
43 See id.
44 See id.
45 See In re Vee Vinhnee, 336 B.R. 437 (9th Cir. 2005).
46 See § 27-901(1).
47 See Neb. evid. R. 803(5), Neb. Rev. Stat. § 27-803(5) (Reissue 2008).
48 Taylor, supra note 42.
49 Id.
STATe v. NOLAN 	69
Cite as 283 Neb. 50

making an improper turn. A transcript of the relevant portion of
the hearing was offered into evidence as an exhibit. The tran-
script indicates that at Hills’ sentencing, the judge stated:
[O]ne thing you may have and you get unfortunately that
some of those other ones do not get is you know that
you are getting out and you are getting another chance to
decide whether you [are] going to stay in the game and
then get what you get or whether you’re going to change
your ways.
Nolan claims that this statement implies that the judge had
already decided that Nolan would not have a chance to get
out of jail, even though Nolan had not yet been convicted.
Nolan asserts that a reasonable person, knowing the circum-
stances of this case, might consider the judge to have lost
his impartiality.
(a) Standard of Review
[18] A motion to disqualify a trial judge on account of preju-
dice is addressed to the sound discretion of the trial court.50
An order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
of law.51
(b) Analysis
[19,20] We have explained that in order to demonstrate that
a trial judge should have recused himself, the moving party
must demonstrate that a reasonable person who knew the cir-
cumstances of the case would question the judge’s impartiality
under an objective standard of reasonableness, even though no
actual bias or prejudice was shown.52 In addition, a defendant
seeking to disqualify a judge on the basis of bias or prejudice
bears the heavy burden of overcoming the presumption of judi-
cial impartiality.53
Here, there is absolutely no reason to think that a reason-
able person would question the judge’s impartiality in this case
50 State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).
51 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
52 State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
53 Id.
70 	283 NeBRASkA RePORTS

based on the statement made at Hills’ sentencing. The judge
made no explicit reference to Nolan, nor is one reasonably
implied. The most logical explanation for the judge’s com-
ments is that he was telling Hills that, unlike many people who
pass through his court to be sentenced, Hills would have an
opportunity to get out of jail and change his ways. There is no
indication that he had already predetermined the sentence of
Nolan, who had not yet been tried or convicted. This assign-
ment of error has no merit.
6. “Step ” Jury iNStructioN
The jury was provided with 18 jury instructions, one of
which, No. 4, was a “step” instruction. essentially, it told the
jury to consider the material elements of first degree murder
and, if those were not met, to proceed to the elements of the
lesser-included offenses of second degree murder and then
manslaughter. Nolan argues that the instruction utilized by the
court violated his due process rights and that the model jury
instruction from the Nebraska Jury Instructions should have
been used instead. Because this court has held that the step
instruction used in this case is not constitutionally infirm, we
find no merit to Nolan’s assignment of error.
(a) Standard of Review
[21] Whether jury instructions given by a trial court are cor-
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.54
(b) Analysis
The jury instruction used by the district court is the same
jury instruction examined by this court in State v. Bormann55
and State v. Goodwin.56 In both of those cases, this court
held that the jury instruction was not constitutionally infirm.
Specifically, in Goodwin, we stated:
54 State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
55 Id.
56 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
STATe v. NOLAN 	71
Cite as 283 Neb. 50

Although we find no constitutional infirmity or other
error in the step instruction that was given, we conclude
that NJI2d Crim. 3.1 provides a clearer and more con-
cise explanation of the process by which the jury is to
consider lesser-included offenses, and we encourage the
trial courts to utilize the current pattern instruction in
circumstances where a step instruction on lesser-included
homicide offenses is warranted.57
Thus, there is no constitutional error in the jury instruction
which was provided here.
While not constitutionally infirm, the district court’s use
of this step instruction is puzzling. The trial in this case
occurred in August 2010, long after our decision in Goodwin.
In Goodwin, we stated our preference for the NJI2d Crim. 3.1
jury instruction in situations where a step instruction on lesser-
included homicide offenses is needed. We have explained that
the model instruction is both clearer and more concise than the
instruction used in this case. We iterate that stance now and
admonish the trial courts to heed our instruction.
7. SufficieNcy of evideNce
Nolan argues that the evidence adduced at trial is insufficient
to support a conviction of first degree murder. Specifically,
Nolan claims that there was no evidence that the killing was
done with deliberate and premeditated malice. Contrary to
Nolan’s argument, however, there is evidence in the record suf-
ficient to support the jury’s verdict in this case.
(a) Standard of Review
[22,23] When reviewing a criminal conviction for suffi-
ciency of the evidence to sustain the conviction, the relevant
question for an appellate court 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.58 And in our review, we
57 Id. at 967, 774 N.W.2d at 749.
58 Epp, supra note 40.
72 	283 NeBRASkA RePORTS

do not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. Those matters are for the
finder of fact.59
(b) Analysis
This court imposes a heavy burden on a defendant who
claims on appeal that the evidence is insufficient to support a
conviction.60 Because Nolan’s conviction for use of a deadly
weapon to commit a felony rests solely on his conviction for
first degree murder, only the sufficiency of the first degree
murder conviction need be analyzed. The applicable statute
states, in relevant part: “A person commits murder in the first
degree if he or she kills another person (1) purposely and
with deliberate and premeditated malice . . . .”61 Thus, the
three elements which the State must prove beyond a reason-
able doubt are that the defendant (1) killed another person, (2)
did so purposely, and (3) did so with deliberate and premedi-
tated malice.
[24,25] There is sufficient evidence to meet each of these
elements. The first two elements are satisfied, and Nolan does
not argue otherwise. To find a person guilty of first degree
murder, however, the State must also show that the defendant
acted with deliberate and premeditated malice. In describing
that element, we have stated:
Deliberate means not suddenly, not rashly, and requires
that the defendant considered the probable consequences
of his or her act before doing the act. . . . The term “pre-
meditated” means to have formed a design to commit
an act before it is done. . . . One kills with premeditated
malice if, before the act causing the death occurs, one has
formed the intent or determined to kill the victim with-
out legal justification. . . . No particular length of time
for premeditation is required, provided that the intent
to kill is formed before the act is committed and not
59 Id.
60 Id.
61 Neb. Rev. Stat. § 28-303 (Reissue 2008).
STATe v. NOLAN 	73
Cite as 283 Neb. 50

simultaneously with the act that caused the death. . . . A
question of premeditation is for the jury to decide.62
Given the foregoing principles and remembering that the
evidence is viewed in a light most favorable to the State, we
determine that there is sufficient evidence to support the jury’s
finding that Nolan killed Gaines with deliberate and premedi-
tated malice. The act of shooting an individual, at least in the
fashion described by Bryson, is inherently a deliberate act.
According to Bryson, Nolan had a large gun and repeatedly
fired at Gaines. There was also evidence that Nolan “jogged”
down the street to the house where Gaines was at; he had
time to think over his actions. A rational jury could certainly
find that Nolan shot and killed Gaines and that his act was
deliberate and premeditated, satisfying the elements of first
degree murder. Nolan’s assignment of error in this regard
lacks merit.
8. iNeffective ASSiStANce of couNSel
Nolan claims, consolidated and restated, that his trial coun-
sel, who was different from appellate counsel, provided ineffec-
tive assistance in three respects, by failing to (1) file a motion
to suppress evidence retrieved from the investigatory stop
of Nolan’s car, (2) object to prejudicial statements obtained
through custodial interrogation in violation of Miranda,63 and
(3) consult and call a fingerprint expert or identification expert
to rebut the State’s testimony.
(a) Standard of Review
[26-28] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error.64 A claim of ineffective assistance of counsel
62 State v. Robinson, 272 Neb. 582, 627, 724 N.W.2d 35, 73-74 (2006) (cita-
tions omitted), abrogated on other grounds, State v. Thorpe, 280 Neb. 11,
783 N.W.2d 749 (2010).
63 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694
(1966).
64 See State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
74 	283 NeBRASkA RePORTS

need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is suffi-
cient to adequately review the question.65
(b) Analysis
(i) Failing to File Motion to Suppress Evidence
Obtained From Investigatory Stop
of Nolan’s Car
[29] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,66 the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.67 Here, the
record is sufficient to review Nolan’s first claim because, con-
trary to Nolan’s assertion, the record shows that trial counsel
did file a motion to suppress evidence obtained from the stop
of Nolan’s car. Indeed, Nolan’s first assignment of error dealt
with the trial court’s overruling of that motion. Thus, trial
counsel’s performance could not have been deficient for fail-
ing to file a motion to suppress when he did in fact file such
a motion.68
(ii) Failing to Object to Prejudicial Statements
Obtained Through Custodial Interrogation
in Violation of Miranda
Trial counsel filed a motion to suppress statements obtained
by police through interrogation, claiming that those statements
were obtained in violation of Miranda. The district court
granted the motion in part, excluding all of Nolan’s statements
except those relating to his basic biographical information and
his cellular telephone number. Thus, Nolan’s statement iden-
tifying his cellular telephone provider was excluded. Nolan
claims that his trial counsel provided ineffective assistance by
failing to object to the introduction of evidence of the identity
65 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
66 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674
(1984).
67 Young, supra note 65.
68 See State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
STATe v. NOLAN 	75
Cite as 283 Neb. 50

of his cellular telephone provider, which came in through an
alternate source; namely, Nolan’s cellular telephone provided
the same information, which was found in a car which the
police impounded and searched.
The exclusionary rule exists to prevent the admission of
illegally seized evidence. In Wong Sun v. United States,69 the
U.S. Supreme Court explained that the question is “‘whether,
granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploita-
tion of that illegality or instead by means sufficiently distin-
guishable to be purged of the primary taint.’”
The record is sufficient to conclude that counsel did not
perform deficiently in failing to object to the evidence, for
two reasons. First, the evidence which had been suppressed
was never offered or admitted into evidence. In other words,
the statements which were illegally obtained from Nolan were
not admitted at trial. Second, the State had a viable, alterna-
tive source for that information, which makes the exclusionary
rule inapplicable. One of the police officers who found the
telephone testified that the police powered the telephone on
to identify its number. The police then powered the telephone
off, ran the number through a database to obtain the cellular
telephone provider, and then drafted a subpoena and a search
warrant to collect data off of the telephone. Nolan does not
claim that any part of this procedure was illegal. Thus, coun-
sel’s performance was not deficient, because he had no basis
to object to evidence regarding the identity of Nolan’s cellular
telephone provider. Therefore, trial counsel did not perform in
a deficient manner.
(iii) Failing to Consult and Call Fingerprint Expert
or Identification Expert to Rebut
State’s Testimony
Finally, Nolan claims that trial counsel should have called
expert witnesses in order to rebut aspects of the State’s case.
In particular, Nolan claims that trial counsel should have
69 Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. ed. 2d
441 (1963) (citation omitted).
76 	283 NeBRASkA RePORTS

consulted with experts on fingerprint evidence and the reli-
ability of eyewitness identification.70 But, while we know such
rebuttal evidence was not presented at trial, the record does
not establish whether trial counsel considered or explored such
strategies, what may or may not have led trial counsel not to
pursue the strategies, or what such experts would have said
had they been retained and called to testify. In other words,
from our review of the record, we cannot make any mean-
ingful determination whether expert testimony beneficial to
Nolan could have been produced or, if it could have, whether
trial counsel made a reasonable strategic decision not to pre-
sent certain evidence.71 The record is, therefore, not sufficient
to adequately review these claims on direct appeal, and we
decline to consider them at this time.72
IV. CONCLUSION
For each of the foregoing reasons, the judgment of the dis-
trict court is affirmed.
A ffirmed.
Wright, J., not participating.
70 See, e.g., People v. Abney, 13 N.Y.3d 251, 918 N.e.2d 486, 889 N.Y.S.2d
890 (2009); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal.
Rptr. 236 (1984), overruled on other grounds, People v. Mendoza, 23
Cal. 4th 896, 4 P.3d 265, 98 Cal. Rptr. 2d 431 (2000). See, also, State v.
Clopten, 223 P.3d 1103 (Utah 2009) (collecting cases).
71 See Young, supra note 65.
72 See id. See, also, State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011);
State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
PRIMe HOMe CARe v. PATHWAYS TO COMPASSION 	77
Cite as 283 Neb. 77
prime home cAre , llc, Appellee ANd croSS-AppellANt,
v. pAthWAyS to compASSioN, llc, AppellANt
ANd croSS-Appellee .
809 N.W.2d 751
Filed January 20, 2012. 	No. S-11-030.
1. Injunction: Equity. An action for injunction sounds in equity.
2. Equity: Appeal and Error. In an appeal of an equity action, an appellate
court tries factual questions de novo on the record and reaches a conclusion