State v. Kinkennon

570 	275 Nebraska reports
state of neBRasKa , appellee , v .
chad K inKennon , appellant .
747 N.W.2d 437
Filed april 24, 2008. 	No. s-07-654.
1. Prosecuting Attorneys: Appeal and Error. a motion for the appointment of a
special prosecutor is addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be disturbed on appeal.
2. Sentences: Appeal and Error. a sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Prosecuting Attorneys. When a disqualified attorney is effectively screened from
any participation in the prosecution of a defendant, the prosecutor’s office may, in
general, proceed with the prosecution.
4. ____. What constitutes an effective procedure for screening a disqualified lawyer
from the prosecution of a defendant will depend on the particular circumstances
of each case. at a minimum, the disqualified lawyer should acknowledge the
obligation not to communicate with any of the other lawyers in the office with
respect to the matter. the other lawyers in the office who are involved with the
matter should be informed that the screening is in place and that they are not to
discuss the matter with the disqualified lawyer.
5. ____. In order to be effective, procedures for screening a disqualified lawyer from
the prosecution of a defendant must be implemented as soon as practical after the
lawyer or a government office employing the lawyer knows or reasonably should
know that screening is needed.
6. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
7. Constitutional Law: Self-Incrimination. the Fifth amendment right to be free
from self-incrimination is a personal right of the witness.
judgment, with a timely motion to alter or amend the certified
judgment.6 this presents parties with a way to present jurisdic-
tional or prudential concerns to the trial court, even after a final
judgment has been certified.
Nonetheless, the pitfall of defective appellate jurisdiction was
not avoided in this case. While it is unfortunate, the terms of
§ 25-1315(1) simply do not permit us to exercise jurisdiction in
this case. therefore, I join the opinion of the court dismissing
this appeal.
6 see, Neb. rev. stat. § 25-1329 (Cum. supp. 2006); 10 James Wm. Moore
et al., Moore’s Federal practice § 54.26[1] (3d ed. 2008).
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

8. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the amount of violence involved in the commission of the crime.
appeal from the District Court for buffalo County: teResa K.
lutheR, Judge. affirmed.
Mitchel L. Greenwall, of yeagley, swanson & Murray, L.L.C.,
for appellant.
Jon bruning, attorney General, and George r. Love for
appellee.
heavican, 	C.J., 	wRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmacK, and milleR-leRman, JJ.
geRRaRd, J.
NatUre oF Case
Chad kinkennon was convicted in a bench trial of one count
of possession of methamphetamine with the intent to deliver1
and one count of possession of cocaine.2 kinkennon argues on
appeal that the district court erred in denying his motion for
appointment of a special prosecutor, based on an alleged con-
flict of interest. kinkennon also argues that the district court
erred in imposing excessive sentences, and in the manner in
which the court instructed a witness regarding that witness’
Fifth amendment rights. For the following reasons, we affirm
the judgment of the district court.
FaCts
kinkennon was charged by amended complaint in the district
court for buffalo County with one count of possession of meth-
amphetamine with intent to deliver, one count of possession of a
controlled pharmaceutical substance without a prescription, one
count of possession of a controlled substance other than mari-
juana without a valid prescription, and possession of cocaine.
1 see Neb. rev. stat. § 28-416(1)(a) (Cum. supp. 2006).
2 see § 28-416.
state v. kINkeNNoN 	571
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572 	275 Nebraska reports
the charges against kinkennon were based on evidence seized
in a search of kinkennon’s residence. that evidence included,
among other things, a digital scale and several small baggies
containing methamphetamine and cocaine residue.
alleged conflict of inteRest
on august 4, 2006, the court appointed Heather swanson-
Murray, of the law firm yeagley swanson Murray, L.L.C., to
serve as counsel for kinkennon. yeagley swanson Murray rep-
resented kinkennon from that date forward, through his May
10, 2007, sentencing and the filing of the present appeal on
June 8. Mandi schweitzer was employed as an associate attor-
ney with yeagley swanson Murray at the time swanson-Murray
was appointed to represent kinkennon. schweitzer remained
an employee of the firm through January 19, 2007; on January
22, she began employment with the buffalo County attorney’s
office as a deputy county attorney.
on February 26, 2007, kinkennon filed a motion for appoint-
ment of a special prosecutor. In his motion, kinkennon alleged
that “[a] conflict of interest exist[ed] within the buffalo County
attorney’s office by virtue of . . . schweitzer’s previous associa-
tion with yeagley swanson Murray . . . and current association
with [the] buffalo County attorney’s office.”
at the hearing on the motion for appointment of a special
prosecutor, three affidavits relating to schweitzer’s knowledge of
and participation in kinkennon’s case were offered and received
into evidence. swanson-Murray, in her affidavit, averred, among
other things, that she “recall[ed] discussing . . . kinkennon’s
case, including pretrial motions and trial strategy[,] with all of
the attorneys in the office, including . . . schweitzer prior to
January 19, 2007.” swanson-Murray also averred that she spe-
cifically recalled “discussing with . . . schweitzer the propriety
of filing a motion to suppress in . . . kinkennon’s case, as well
as discussing legal issues surrounding the use of a confidential
informant.” similarly, another associate attorney with yeagley
swanson Murray averred that he “recall[ed] discussions regard-
ing . . . kinkennon’s case within the office that took place prior
to January 19, 2007,” and that “schweitzer, . . . swanson-Murray
and [he] were present at the office during these discussions.”

schweitzer, 	in 	her 	affidavit, 	denied 	ever 	discussing
kinkennon’s case with any attorney while she was employed
with yeagley swanson Murray. schweitzer averred that she
had no contact with kinkennon, did not review or examine his
file, and did not even know his file existed. schweitzer further
averred that she “was not consulted by any other attorneys in
the firm with regard to . . . kinkennon in any way” and that
“[a]ny other representations by anyone else to the contrary are
false.” Finally, schweitzer averred that since joining the buffalo
County attorney’s office, she had not participated in the pros-
ecution of kinkennon’s case, and that she did not have any
knowledge of the matter.
the district court denied kinkennon’s motion for appoint-
ment of a special prosecutor, and the case proceeded to trial.
fifth amendment R ights of witness
at trial, kinkennon called as a witness Caroline Callaghan,
a woman who was living with kinkennon at the time the police
executed the search. prior to Callaghan’s testimony, the trial
judge instructed Callaghan that if she believed the testimony
she was about to give would incriminate her, she was “at lib-
erty not to testify” and could “invoke her Fifth amendment
right.” she was further instructed that her testimony could be
used against her and that if she chose to begin testifying, she
would have to complete her testimony. Callaghan stated that
she understood and chose to testify.
Callaghan then testified and admitted on direct examination
to, among other things, using methamphetamine. on cross-
examination, the state asked Callaghan how long she had
been an intravenous drug user. Callaghan responded by stat-
ing, “I plead the Fifth on that.” the state moved to have all
of Callaghan’s testimony stricken. after briefly discussing the
issue with counsel, the court asked Callaghan if she would like
to talk to a lawyer before continuing with her testimony, at
which point Callaghan responded, “yes, sir.”
Following a short recess, the court reconvened. Callaghan
was instructed that the state had a right to cross-examine her
as to the testimony she had already given and that she had to
answer, but that on unrelated issues, she might be allowed to
state v. kINkeNNoN 	573
Cite as 275 Neb. 570

574 	275 Nebraska reports
assert her Fifth amendment right. Callaghan was told she could
confer with her counsel before answering questions. she was
also told that if she was instructed to answer a question, but
refused, she could be remanded to custody until she complied,
or her related testimony could be stricken.
Neither the state nor counsel for kinkennon raised any
objection to this procedure. Callaghan was cross-examined and
did not assert her Fifth amendment privilege, nor did counsel
for kinkennon object during cross-examination of Callaghan.
sentencing
Following 	the 	bench 	trial, 	the 	district 	court 	convicted
kinkennon of one count of possession of methamphetamine
with the intent to deliver and one count of knowingly or inten-
tionally possessing cocaine. the matter proceeded to sentencing.
the presentence investigation report indicated that kinkennon
has a lengthy criminal history including, among other things,
multiple convictions for assault and possession of marijuana.
kinkennon was sentenced to 8 to 12 years’ imprisonment for
possession of methamphetamine with the intent to deliver and
to a concurrent term of 20 months’ to 5 years’ imprisonment for
possession of cocaine. kinkennon appealed.
assIGNMeNts oF error
kinkennon assigns, restated, that the district court erred
in (1) failing to appoint a special prosecutor, (2) improperly
informing Callaghan of the manner and scope of her right to
assert her Fifth amendment privilege, and (3) imposing exces-
sive sentences.
staNDarD oF reVIeW
[1] a motion for the appointment of a special prosecutor is
addressed to the discretion of the trial court, and absent an abuse
of discretion, a ruling on such a motion will not be disturbed
on appeal.3
3 see, State v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987); State v.
Bruna, 12 Neb. app. 798, 686 N.W.2d 590 (2004).

[2] a sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court.4
aNaLysIs
appointment of special pRosecutoR
kinkennon contends that the district court erred in denying
his motion for appointment of a special prosecutor. specifically,
kinkennon argues that when the buffalo County attorney’s
office hired schweitzer, a conflict of interest arose because
schweitzer, before joining the county attorney’s office, was for-
mally employed as an associate for yeagley swanson Murray,
the firm that is presently representing kinkennon. kinkennon
claims that to avoid the “appearance of impropriety,”5 this
conflict of interest should be imputed to the other prosecu-
tors in the office, thus disqualifying the entire buffalo County
attorney’s office.
We have not previously addressed whether an entire prose-
cutor’s office should be disqualified when one attorney, after
joining the prosecutor’s office, is alleged to have been involved
in the representation of a defendant on charges being pros-
ecuted at the time the attorney joined that office. several other
jurisdictions, however, have considered this issue. a few courts
have followed a per se rule of disqualification where the mere
appearance of impropriety is enough to warrant disqualifica-
tion of an entire prosecuting office.6 In cases where such rule
was followed, screening the attorney at issue to remedy the
imputed conflict is generally not allowed and disqualification
of the office is required, irrespective of whether confidences
were breached or prejudice to the defendant resulted.7 Courts
that employ this approach reason that a per se rule is required
4 State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
5 brief for appellant at 10.
6 see, State v. Ross, 829 s.W.2d 948 (Mo. 1992); People v. Stevens, 642 p.2d
39 (Colo. app. 1981).
7 see id.
state v. kINkeNNoN 	575
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576 	275 Nebraska reports
because it eliminates any appearance of impropriety and pre-
serves public confidence in the criminal justice system.8
However, the overwhelming majority of courts to have con-
sidered this issue have rejected this type of per se rule. Instead,
most courts have adopted a less stringent rule, pursuant to
which the trial court evaluates the circumstances of a particular
case and then determines whether disqualification of the entire
office is appropriate.9 Under this approach, courts consider,
among other things, whether the attorney divulged any confi-
dential information to other prosecutors or participated in some
way in the prosecution of the defendant.10 the prosecuting
office need not be disqualified from prosecuting the defendant
if the attorney who had a prior relationship with the defendant
is effectively isolated from any participation or discussion
of matters concerning which the attorney is disqualified.11 If
impropriety is found, however, the court will require recusal of
the entire office.12
We agree with the majority view and do not adopt a per se
rule of disqualification. We believe the ultimate goal of main-
taining both public and individual confidence in the integrity
of our judicial system can be served without resorting to such
8 see id.
9 see, U.S. v. Goot, 894 F.2d 231 (7th Cir. 1990); United States v. Caggiano,
660 F.2d 184 (6th Cir. 1981); Hart v. State, 62 p.3d 566 (Wyo. 2003); Matter
of R.B., 583 N.W.2d 839 (s.D. 1998); State v. Dambrell, 120 Idaho 532, 817
p.2d 646 (1991); State v. Camacho, 329 N.C. 589, 406 s.e.2d 868 (1991);
Frazier v. State, 257 Ga. 690, 362 s.e.2d 351 (1987); State v. Bunkley, 202
Conn. 629, 522 a.2d 795 (1987); State v. McKibben, 239 kan. 574, 722
p.2d 518 (1986); State v. Fitzpatrick, 464 so. 2d 1185 (Fla. 1985); Young v.
State, 297 Md. 286, 465 a.2d 1149 (1983); Collier v. Legakes, 98 Nev. 307,
646 p.2d 1219 (1982); State v. Tippecanoe County Court, 432 N.e.2d 1377
(Ind. 1982); State v. Cline, 122 r.I. 297, 405 a.2d 1192 (1979); State v.
Bell, 346 so. 2d 1090 (La. 1977); Upton v. State, 257 ark. 424, 516 s.W.2d
904 (1974).
10 see, e.g., State ex rel. Romley v. Superior Court, 184 ariz. 223, 908 p.2d 37
(ariz. app. 1995).
11 see, e.g., State v. McKibben, supra note 9; Young v. State, supra note 9;
State v. Cline, supra note 9; State v. Pennington, 115 N.M. 372, 851 p.2d
494 (N.M. app. 1993).
12 see State v. Stenger, 111 Wash. 2d 516, 760 p.2d 357 (1988).

a broad and inflexible rule. as declared by the Maryland Court
of appeals, “‘[t]he appearance of impropriety alone is “simply
too slender a reed on which to rest a disqualification order
except in the rarest of cases.”’”13
and we recently endorsed a more flexible rule by adopting
the Nebraska rules of professional Conduct. rule 1.11(d),14
which addresses conflicts of interest for current government
officers and employees, provides in relevant part that “[e]xcept
as law may otherwise expressly permit, a lawyer currently
serving as a public officer or employee: . . . (2) shall not: (i)
participate in a matter in which the lawyer participated person-
ally and substantially while in private practice or nongovern-
mental employment.”
the official comment 2 to rule 1.11 explains that “[b]ecause
of the special problems raised by imputation within a govern-
ment agency, paragraph (d) does not impute the conflicts of a
lawyer currently serving as an officer or employee of the gov-
ernment to other associated government officers or employees,
although ordinarily it will be prudent to screen such lawyers.”
this rule recognizes the distinction between lawyers engaged in
the private practice of law, who have common financial inter-
ests, and lawyers in a prosecutor’s office, who have a public
duty to seek justice, not profits.15
the per se rule would result in the unnecessary disqualifica-
tion of prosecutors where the risk of a breach of confidential-
ity is slight, thus needlessly interfering with the prosecutor’s
performance of his or her constitutional and statutory duties.16
Furthermore, a per se rule would unnecessarily limit mobility
in the legal profession17 and inhibit the ability of prosecuting
13 Young v. State, supra note 9, 297 Md. at 294, 465 a.2d at 1153.
14 Neb. Ct. r. of prof. Cond. 1.11(d) (rev. 2005).
15 see, United States v. Caggiano, supra note 9; State v. Camacho, supra note
9; State v. Stenger, supra note 12; Frazier v. State, supra note 9; State v.
Tippecanoe County Court, supra note 9.
16 State v. Camacho, supra note 9; Lux v. Com., 24 Va. app. 561, 484 s.e.2d
145 (1997).
17 see Young v. State, supra note 9.
state v. kINkeNNoN 	577
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578 	275 Nebraska reports
attorney’s offices to hire the best possible employees because of
the potential for absolute disqualification in certain instances.18
[3] We recognize that complete disqualification of a prose-
cutor’s office may be warranted in cases where the appearance
of unfairness or impropriety is so great that the public trust and
confidence in our judicial system simply could not be main-
tained otherwise. such an extreme case might exist, even where
the state has done all in its power to establish an effective
screening procedure precluding the individual lawyer’s direct
or indirect participation in the prosecution.19 but when the dis-
qualified attorney is effectively screened from any participation
in the prosecution of the defendant, the prosecutor’s office may,
in general, proceed with the prosecution.
Whether the apparent conflict of interest justifies the disqual-
ification of other members of the office is a matter committed
to the discretion of the trial court.20 In exercising that discretion,
the court should consider all of the facts and circumstances and
determine whether the prosecutorial function could be carried
out impartially and without breaching any of the privileged
communications. a flexible, fact-specific analysis will enable a
trial court to protect a criminal defendant from the due process
concerns at issue, while at the same time avoiding unnecessary
disqualifications of government attorneys. Whether the state
has established an effective screening procedure will obviously
be part of that analysis.
[4] What constitutes an effective screening procedure will
depend on the particular circumstances of each case. However,
at a minimum, the disqualified lawyer should acknowledge the
obligation not to communicate with any of the other lawyers in
the office with respect to the matter. similarly, the other law-
yers in the office who are involved with the matter should be
informed that the screening is in place and that they are not to
discuss the matter with the disqualified lawyer.
18 State v. Pennington, supra note 11.
19 see Collier v. Legakes, supra note 9.
20 see, State v. El-Tabech, supra note 3; State v. Bruna, supra note 3.

[5] Depending on the circumstances, additional screening
procedures may be appropriate. these procedures may include
a written undertaking by the screened lawyer to avoid any
communication with other lawyers in the office and contact
with files or other materials relating to the matter, notice and
instructions to all relevant governmental office personnel for-
bidding any communication with the screened lawyer relating
to the matter, denial of access by the screened lawyer to files
or other materials relating to the matter, and periodic remind-
ers of the screen to the screened lawyer and other government
personnel.21 In order to be effective, screening procedures must
be implemented as soon as practical after a lawyer or govern-
ment office knows or reasonably should know that screening
is needed.22
Having rejected kinkennon’s argument that the entire buffalo
County attorney’s office should have been, per se, disqualified,
we must determine whether, under the particular facts of this
case, it should have been. based on the affidavits submitted
by the parties, it is unclear exactly what, if any, information
schweitzer acquired relating to kinkennon’s case before she
joined the county attorney’s office.
We conclude, however, that even assuming schweitzer had
acquired some limited knowledge of kinkennon’s case, there
is nothing in the record to suggest, nor does kinkennon allege,
that any of this information was communicated by schweitzer
to the county attorney’s office to aid in the prosecution of
this case. Nor is there any evidence in the record to indicate
that kinkennon’s defense was prejudiced, or even affected, by
schweitzer’s employment with the county attorney’s office.
Given the record before us, we cannot conclude that the district
court abused its discretion in denying kinkennon’s motion for
appointment of a special prosecutor.
fifth amendment pRivilege
kinkennon argues that the district court committed revers-
ible error by failing to properly instruct the defense witness,
21 see Neb. Ct. r. of prof. Cond. 1.0(k) and comment 9 (rev. 2005).
22 see id., comment 10.
state v. kINkeNNoN 	579
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580 	275 Nebraska reports
Callaghan, of her rights under the Fifth amendment. kinkennon
claims that the district court “essentially scared [Callaghan]
away from feeling that she had the power to exercise her con-
stitutional rights under the circumstances.”23
[6,7] this argument fails for two reasons. First, kinkennon
did not object during trial to what he now assigns as error
on appeal. It is well established that failure to make a timely
objection waives the right to assert prejudicial error on appeal.24
second, and more importantly, kinkennon lacks standing to
challenge the alleged violation of Callaghan’s rights under the
Fifth amendment. the Fifth amendment right to be free from
self-incrimination is a personal right of the witness.25 and
the personal nature of this right precludes kinkennon from
claiming a Fifth amendment violation on Callaghan’s behalf.26
accordingly, this assignment of error is without merit.
excessive sentences
For his remaining assignment of error, kinkennon argues that
his sentences were excessive and that the district court failed to
properly consider the factors relevant to his sentencing.
[8] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) educa-
tion and experience, (4) social and cultural background, (5)
past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime.27 kinkennon’s presentence investigation
report reveals an extensive criminal record including, among
other things, convictions for multiple assaults, issuing bad
checks, possession of drug paraphernalia, carrying a concealed
23 brief for appellant at 10.
24 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
25 State v. Perea, 210 Neb. 613, 316 N.W.2d 312 (1982). see, also, United
States v. Nobles, 422 U.s. 225, 95 s. Ct. 2160, 45 L. ed. 2d 141 (1975);
Couch v. United States, 409 U.s. 322, 93 s. Ct. 611, 34 L. ed. 2d 548
(1973).
26 see State v. Perea, supra note 25.
27 State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).

weapon, reckless driving, and possession of marijuana. at sen-
tencing, the court explained that “[t]he information provided
by [kinkennon] indicates that [he] is really not even coming
to the threshold of understanding or being of a mindset that
he really truly seeks a rehabilitative program.” We agree with
this assessment.
possession of methamphetamine with intent to deliver is a
Class II felony,28 punishable by a minimum of 1 year’s impris-
onment and a maximum of 50 years’ imprisonment.29 possession
of cocaine is a Class IV felony,30 punishable by a maximum of
5 years’ 	imprisonment, a $10,000 fine, or both.31 the district
court reviewed the record, considered the appropriate sentenc-
ing factors, and imposed sentences within the statutory limits.
based on our review of the record, we conclude that the district
court did not abuse its discretion in sentencing kinkennon.
CoNCLUsIoN
For each of the foregoing reasons, the judgment of the district
court is affirmed.
affiRmed .
28 § 28-416(2).
29 Neb. rev. stat. § 28-105(1) (Cum. supp. 2006).
30 § 28-416(3).
31 § 28-105(1).
state v. kINkeNNoN 	581
Cite as 275 Neb. 570