State v. Weathers , 304 Neb. 402 ( 2019 )


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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    State of Nebraska, appellee, v.
    Brandon J. Weathers, appellant.
    ___ N.W.2d ___
    Filed November 8, 2019.   No. S-18-665.
    1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a question of law,
    which turns upon the sufficiency of the record to address the claim
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement.
    2. Effectiveness of Counsel: Appeal and Error. An appellate court deter-
    mines as a matter of law whether the record conclusively shows that
    (1) a defense counsel’s performance was deficient or (2) a defendant
    was or was not prejudiced by a defense counsel’s alleged deficient
    performance.
    3. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. When 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 histori-
    cal 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 indepen-
    dently of the trial court’s determination.
    4. Right to Counsel: Appeal and Error. A trial court’s decision to sus-
    tain or overrule a defendant’s motion to dismiss appointed counsel and
    appoint substitute counsel is reviewed for an abuse of discretion.
    5. 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.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    6. Effectiveness of Counsel: Records: 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. The determining factor
    is whether the record is sufficient to adequately review the question.
    The record is sufficient if it establishes either that trial counsel’s per­
    formance was not deficient, that the appellant will not be able to estab-
    lish prejudice, or that trial counsel’s actions could not be justified as a
    part of any plausible trial strategy.
    7. 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 per­
    formance actually prejudiced the defendant’s defense.
    8. ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
    9. ____: ____. To show prejudice, the defendant must demonstrate a rea-
    sonable probability that but for counsel’s deficient performance, the
    result of the proceeding would have been different.
    10. Words and Phrases. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    11. Effectiveness of Counsel: Presumptions: Proof. The two prongs of
    the ineffective assistance of counsel test under Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), may be
    addressed in either order, and the entire ineffectiveness analysis should
    be viewed with a strong presumption that counsel’s actions were
    reasonable.
    12. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
    tive assistance of counsel claim is raised in a direct appeal, the appellant
    is not required to allege prejudice; however, an appellant must make
    specific allegations of the conduct that he or she claims constitutes defi-
    cient performance by trial counsel.
    13. ____: ____: ____. General allegations that trial counsel performed defi-
    ciently or that trial counsel was ineffective are insufficient to raise an
    ineffective assistance claim on direct appeal.
    14. Effectiveness of Counsel: Records: Appeal and Error. Appellate
    courts have generally reached ineffective assistance of counsel claims
    on direct appeal only in those instances where it was clear from the
    record that such claims were without merit or in the rare case where
    trial counsel’s error was so egregious and resulted in such a high level
    of prejudice that no tactic or strategy could overcome the effect of the
    error, which effect was a fundamentally unfair trial.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    15. ____: ____: ____. An ineffective assistance of counsel claim made on
    direct appeal can be found to be without merit if the record establishes
    that trial counsel’s performance was not deficient or that the appellant
    could not establish prejudice.
    16. Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. In the case of an argument presented for the purpose of avoiding
    procedural bar to a future postconviction proceeding, appellate counsel
    must present a claim 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 post-
    conviction relief to be able to recognize whether the claim was brought
    before the appellate court.
    17. Claims. A claim insufficiently stated is no different from a claim not
    stated at all.
    18. DNA Testing: Convictions. The requirement for a convicted felon to
    provide a DNA sample pursuant to Neb. Rev. Stat. § 29-4106(1)(a)
    (Reissue 2016) exists once the convicted felon begins serving his or
    her sentence.
    19. ____: ____. Neb. Rev. Stat. § 29-4106 (Reissue 2016) inherently autho-
    rizes the use of reasonable force to collect a DNA sample from a con-
    victed felon.
    20. Criminal Law: Trial: Evidence. Where objects pass through several
    hands before being produced in court, it is necessary to establish a com-
    plete chain of evidence, tracing the possession of the object or article
    to the final custodian; and if one link in the chain is missing, the object
    may not be introduced in evidence.
    21. ____: ____: ____. Objects which relate to or explain the issues or
    form a part of a transaction are admissible in evidence only when duly
    identified and shown to be in substantially the same condition as at
    the time in issue. It must be shown to the satisfaction of the trial court
    that no substantial change has taken place in an exhibit so as to render
    it misleading.
    22. Evidence. Important in determining the chain of custody are the nature
    of the evidence, the circumstances surrounding its preservation and cus-
    tody, and the likelihood of intermeddlers tampering with the object.
    23. Trial: Evidence. Whether there is sufficient foundation to admit physi-
    cal evidence is determined on a case-by-case basis.
    24. Right to Counsel. When a defendant becomes dissatisfied with court-
    appointed counsel, unless he or she can show good cause to the court
    for the removal of counsel, his or her only alternative is to proceed pro
    se if he or she is competent to do so.
    25. ____. An indigent defendant’s right to have counsel does not give the
    defendant the right to choose his or her own counsel.
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    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    26. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not
    enough to secure the appointment of substitute counsel.
    27. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed coun-
    sel must remain with an indigent accused unless one of the following
    conditions is met: (1) The accused knowingly, voluntarily, and intel-
    ligently waives the right to counsel and chooses to proceed pro se; (2)
    appointed counsel is incompetent, in which case new counsel is to be
    appointed; or (3) the accused chooses to retain private counsel.
    28. Right to Counsel. Once a defendant requesting substitute counsel has
    raised a seemingly substantial complaint about counsel, the court has a
    duty to thoroughly inquire into the complaint.
    29. Postconviction: Effectiveness of Counsel: Records: Appeal and
    Error. When an appellate court finds, on direct appeal, that the record
    is not sufficient to resolve a claim of ineffective assistance, it should
    not be misunderstood as a finding that the claim will necessarily
    require an evidentiary hearing if raised in a motion for postconviction
    relief, because that determination is governed by an entirely differ-
    ent standard.
    30. ____: ____: ____: ____. Just because an appellate court finds the
    record on direct appeal is insufficient to resolve a claim of ineffective
    assist­ance, it does not mean that a postconviction court will necessarily
    be precluded from later finding the existing record affirmatively refutes
    the same claim.
    Appeal from the District Court for Douglas County: Thomas
    A. Otepka, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Brandon J. Weathers appeals his convictions in the district
    court for Douglas County for four counts of first degree sexual
    assault. Weathers, who has new counsel on direct appeal,
    claims that his trial counsel provided ineffective assistance in
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    various respects, including in failing to adequately challenge
    the admission of DNA evidence that linked him to the assaults
    and that he claims was obtained in violation of his constitu-
    tional rights and in violation of statutory limitations on the use
    of DNA samples. He further claims, independent of his ineffec-
    tive assistance of counsel claims, that admission of the DNA
    evidence was plain error. Weathers also claims that the district
    court erred when it refused to remove his counsel and appoint
    new counsel after he asserted that his counsel had a conflict
    of interest and had performed deficiently in other respects. We
    affirm Weathers’ convictions and sentences.
    STATEMENT OF FACTS
    In 2014, Weathers was being investigated for sexual assault
    of a child in a case unrelated to the charges in the present case.
    Police obtained a DNA sample from Weathers in connection
    with the investigation of the 2014 assaults. Following a trial in
    December 2015, Weathers was convicted of two counts of first
    degree sexual assault of a child based on the 2014 assaults,
    and the district court sentenced Weathers to two consecutive
    terms of imprisonment for 50 to 80 years. The Nebraska Court
    of Appeals affirmed Weathers’ convictions and sentences for
    the 2014 assaults. State v. Weathers, No. A-16-305, 
    2017 WL 24777
    (Neb. App. Jan. 3, 2017) (selected for posting to court
    website). As will be discussed below, Weathers asserts that the
    DNA sample collected in connection with the investigation of
    the 2014 assaults was used to connect him to the 2002 and
    2004 assaults that are the subject of the present case.
    As part of Weathers’ sentencing for the 2014 assaults, pursu-
    ant to Neb. Rev. Stat. § 29-4106 (Reissue 2016), the district
    court ordered Weathers to submit a DNA sample for use in the
    State DNA Sample Bank. On June 5, 2017, the district court
    entered an order in response to the State’s “Motion to Enforce
    Order.” The court stated that employees of the Department of
    Correctional Services had twice attempted to obtain a DNA
    sample from Weathers but that he refused to comply voluntarily.
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    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    The court further stated that despite Weathers’ refusal, he was
    still required to submit a DNA sample. The court then cited
    authority to the effect that it had “‘the power to enforce [its
    decision] by making such orders as are necessary to carry its
    judgment or decree into effect’” (quoting Evans v. Frakes,
    
    293 Neb. 253
    , 259, 
    876 N.W.2d 626
    , 632 (2016)) and that
    it had “authority to do such things as are reasonably neces-
    sary for the proper administration of justice” (citing State v.
    Joubert, 
    246 Neb. 287
    , 
    518 N.W.2d 887
    (1994)). Based on
    such authority and on its finding that the law and its sentencing
    order required Weathers to submit to the collection of a DNA
    sample, the court ordered that “employees of the Department
    of Correctional Services shall forthwith collect a DNA sample
    from [Weathers] via buccal swab” and that “such employees
    of the Department are hereby authorized to use such force as
    is reasonably necessary to obtain or collect a DNA sample
    from [Weathers].”
    Under the authority of the June 5, 2017, order, a DNA
    sample was collected from Weathers; the DNA sample was
    then provided to the Nebraska State Patrol DNA identification
    laboratory and entered into a state DNA database. On June 12,
    Det. Christy Jaworski received a letter from the DNA database
    “indicating that . . . Weathers was matched to four outstanding
    sexual assaults” that had occurred in 2002 and 2004. Based
    on protocol, that same day, Jaworski obtained a court order
    to collect four additional DNA samples from Weathers to
    be tested against the DNA evidence that had been collected
    in each of the four outstanding cases. After the additional
    samples were collected and tested, the results showed that
    Weathers’ DNA profile matched that of the assailant in the
    four sexual assaults from 2002 and 2004. The results of the
    testing of the DNA samples obtained pursuant to the June 12
    order would ultimately be admitted into evidence at the trial
    in this case.
    On August 9, 2017, the State filed an information charging
    Weathers with four counts of first degree sexual assault related
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    to the 2002 and 2004 incidents. Prior to trial, Weathers filed a
    motion to suppress evidence obtained as a result of the DNA
    samples collected in June 2017. He asserted that the samples
    were seized and collected from him in violation of his consti-
    tutional rights and in violation of statutes governing the collec-
    tion and use of DNA samples.
    At a hearing on the motion to suppress, Jaworski testified
    regarding her investigation of the present case and how she
    went about obtaining the DNA samples that were used to tie
    Weathers to the 2002 and 2004 assaults. The court received
    into evidence the February 17, 2016, sentencing order related
    to the 2014 assaults; the June 5, 2017, order authorizing cor-
    rections employees to collect a DNA sample using reasonably
    necessary force; and the June 12, 2017, court order requiring
    collection of the DNA samples used in this case.
    On cross-examination by Weathers at the suppression hear-
    ing, Jaworski testified that it was her understanding that in
    2014, when Weathers was being investigated for the 2014
    assaults and a DNA sample had been collected from Weathers
    in connection with that investigation and submitted to a labo-
    ratory for testing, a laboratory technician “recognized a very
    rare DNA allele that . . . Weathers has.” Jaworski was notified
    in 2014 that “Weathers was a match to the serial rape case
    [from 2002 and 2004] because they had been aware of this rare
    allele.” Jaworski further testified on cross-examination that in
    2014, she had asked Weathers to give his consent to provide a
    DNA sample for use in the investigation of the sexual assaults
    from 2002 and 2004 but he had declined. She testified that in
    2014, she did not further pursue a DNA sample related to the
    earlier assaults, because “the decision was made by the County
    Attorney’s Office to try [the 2014 assaults] case first and
    separately.” She testified, however, that “our department did
    compare the [un]known suspect DNA in the four outstanding
    sexual assaults against . . . Weathers’ buccal swab [in the 2014
    case] and it was — at that time it was a match” and that “that’s
    how we knew he was identified.”
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    On redirect, Jaworski testified that the DNA sample given
    by Weathers in connection with the investigation in 2014
    was not and could not have been entered into the state DNA
    database. She testified, however, that the presence of the rare
    allele in the DNA evidence from the earlier sexual assaults
    had been “widely known” among law enforcement personnel
    since 2002.
    At the end of the suppression hearing, Weathers generally
    argued that the DNA sample collected in connection with the
    investigation of the 2014 assaults was improperly compared to
    the DNA evidence from the 2002 and 2004 assaults, because
    at that time, there was no probable cause to link Weathers to
    the 2002 and 2004 assaults. He argued that the comparison to
    the 2002 and 2004 DNA evidence violated his constitutional
    rights and that it violated Neb. Rev. Stat. § 29-4126 (Reissue
    2016), which he argued prohibited use of a DNA sample with-
    out probable cause as to the particular crime being investi-
    gated. He argued that the same limitations applied to the DNA
    samples taken in 2017 and that the DNA evidence collected in
    2017 was “fruit of the poisonous tree” because it was obtained
    as a result of the unconstitutional comparison of the 2014
    investigative DNA sample to the DNA evidence in the 2002
    and 2004 assaults. He further argued that, independently of
    what occurred in 2014, the State failed to show that the 2017
    DNA samples were collected in compliance with the DNA
    Identification Information Act, Neb. Rev. Stat. §§ 29-4101 to
    29-4115.01 (Reissue 2016 & Cum. Supp. 2018).
    The district court overruled Weathers’ motion to suppress
    the DNA evidence. The court first addressed Weathers’ argu-
    ments regarding the use of the DNA sample collected in 2014
    as follows:
    Much of [Weathers’] motion and his argument revolves
    around the DNA collection from the unrelated 2014 inves-
    tigation for first-degree sexual assault of a child, but there
    was no evidence adduced during the hearing to support
    a finding that the 2014 DNA sample was ever submitted
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    304 Nebraska Reports
    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    for comparison in this current case. Thus, the Court finds
    the 2014 DNA collection and investigation irrelevant for
    purposes of this motion . . . .
    The court focused instead on the two collections of DNA
    samples that occurred in June 2017.
    Regarding the DNA sample collected pursuant to the June 5,
    2017, order, the court determined that collection of the DNA
    sample was authorized by § 29-4106 because Weathers was a
    convicted felon. The court further determined that collection
    of a DNA sample from a convicted felon pursuant to a statute
    such as § 29-4106 did not violate the Fourth Amendment. The
    court noted that the subsequent submission of the DNA sample
    into the state DNA database was “anticipated under [the] DNA
    Identification Information Act.”
    Regarding the DNA samples collected pursuant to the June
    12, 2017, order, the court determined that Jaworski’s affidavit
    provided probable cause for the order, based on the notifica-
    tion Jaworski received indicating that submission of the DNA
    sample obtained based on the June 5 order to the state DNA
    database showed that Weathers’ DNA profile “matched the
    DNA profile of the previously unknown suspect from four
    sexual assaults that occurred in 2002-2004.” The court deter-
    mined that because it was supported by probable cause, the
    June 12 order did not violate the Fourth Amendment, nor did
    it violate Neb. Rev. Stat. § 29-3303 (Reissue 2016), which
    requires probable cause for an order to collect identifying
    physical characteristics, or § 29-4126, which provides that no
    DNA sample may be obtained in connection with an inves-
    tigation of a crime without probable cause, a court order, or
    voluntary consent.
    Having concluded that the State had met its burden to
    establish that the Fourth Amendment had not been violated,
    the court briefly addressed, and rejected, Weathers’ other argu-
    ments. The court rejected Weathers’ argument that use of the
    2014 DNA sample in connection with the 2002 and 2004
    assaults was not supported by probable cause. The court
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    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    repeated its determination that there was no evidence that the
    2014 investigative DNA sample “was ever submitted to be
    tested against the DNA collected from the 2002-2004 sexual
    assaults or put into [the state DNA database].” The court stated
    that, instead, “law enforcement waited to do an investigatory
    comparison of [Weathers’] DNA to the 2002-2004 sexual
    assault DNA evidence until [2017, when] there was a match
    to [Weathers’] DNA collected under the DNA Identification
    Information Act.”
    The court next rejected Weathers’ argument that collection of
    the DNA samples in June 2017 violated the DNA Identification
    Information Act because the act requires that a medical or cor-
    rections professional, rather than a law enforcement officer,
    collect the DNA from a defendant. The court stated that the
    evidence presented at the suppression hearing showed only that
    Jaworski did not personally collect the DNA samples and that
    she did not know specifically who had collected the samples.
    The court determined that Weathers had not provided evidence
    to support his claim of a violation of the act, and the court
    further determined that even if there was a violation, Weathers
    cited no authority to the effect that such a violation would
    require suppression of the DNA evidence. Having rejected
    these and Weathers’ other arguments, the court overruled the
    motion to suppress DNA evidence.
    A few days prior to the date trial was scheduled to begin,
    Weathers filed a pro se motion to dismiss his current counsel
    and appoint new counsel. He alleged, inter alia, that counsel
    had proved to be ineffective or incompetent because counsel
    had missed a pretrial conference and had failed to meet with
    Weathers prior to trial to discuss the case or to review dis-
    covery. He further alleged that counsel, who worked for the
    public defender’s office, had a conflict of interest, because
    in a postconviction action in a separate criminal proceeding,
    Weathers was raising ineffective assistance claims involving
    a different attorney who also worked for the public defender’s
    office. Weathers requested that new counsel be appointed and
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    STATE v. WEATHERS
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    304 Neb. 402
    that a continuance be granted to allow new counsel to prepare
    for trial.
    The day after Weathers filed the motion, the court held
    a hearing on it and other motions. The court asked whether
    Weathers had any reason other than those set forth in his
    motion why counsel should be dismissed, and Weathers replied
    that there was not. The court then stated that the reasons set
    forth by Weathers constituted mere dissatisfaction with coun-
    sel, which would not be sufficient to justify removal of counsel
    absent a showing of good cause. The court found that Weathers
    had not shown good cause for removal of his counsel, and the
    court then told Weathers that if it denied his request, Weathers’
    only options would be to continue with his current counsel or
    represent himself. Weathers stated that he would stay with his
    appointed counsel.
    At trial, the State presented witnesses, including the four
    victims of the assaults in 2002 and 2004. The four victims
    were not able to identify the person who committed the
    assaults, because he had taken steps to conceal his identity,
    but each of them gave descriptions of the perpetrator’s gen-
    eral appearance and size that were similar to one another and
    that were similar to Weathers’ general appearance and size.
    The four victims each gave descriptions of how the assaults
    were carried out, which included details that were similar to
    the other victims’ accounts. The State also presented evidence
    regarding the testing of the DNA samples that were obtained
    from Weathers in 2017, which testing showed that Weathers’
    DNA profile matched that of DNA evidence collected in the
    investigations of the 2002 and 2004 assaults. Weathers’ coun-
    sel did not renew the motion to suppress such evidence and
    did not object to the admission on the bases presented in the
    motion to suppress or on the basis that a chain of custody was
    lacking for the DNA evidence collected in the investigation of
    the assaults.
    The jury found Weathers guilty of four counts of first degree
    sexual assault, and the court accepted the verdicts. The court
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    STATE v. WEATHERS
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    304 Neb. 402
    thereafter sentenced Weathers to imprisonment for 40 to 50
    years for each count and ordered the sentences to be served
    consecutively.
    Weathers appeals his convictions.
    ASSIGNMENTS OF ERROR
    Weathers, who has new counsel on appeal, claims that his
    trial counsel provided ineffective assistance in certain respects.
    The first few claims of ineffective assistance of counsel relate
    to the DNA evidence. Weathers claims that counsel provided
    ineffective assistance of counsel when counsel at trial failed
    to object to admission of the DNA evidence and renew the
    motion to suppress on the bases that (1) the comparison of
    the 2014 DNA sample to the DNA evidence in the 2002 and
    2004 assaults violated § 29-4126 and Weathers’ constitutional
    rights and (2) the June 5, 2017, order authorizing corrections
    employees to obtain a DNA sample from Weathers using force
    violated his constitutional rights. He further claims that apart
    from the claims of ineffective assistance of counsel, it was
    plain error for the court to admit the DNA evidence, because
    it was obtained as the result of violations of his constitu-
    tional rights.
    Weathers also claims that counsel provided ineffective
    assist­ance by failing to object to the DNA evidence on the
    basis that the State failed to establish a chain of custody for
    the DNA evidence collected in the investigations of three of
    the four assaults.
    Weathers further claims that the district court erred when it
    refused to remove his trial counsel and appoint new counsel on
    the basis of counsel’s alleged ineffective assistance in pretrial
    proceedings and trial preparation and on the basis of an alleged
    conflict of interest. Weathers also claims, independently of the
    claim related to the court’s ruling on the motion to remove
    counsel, that trial counsel provided ineffective assistance of
    counsel as alleged in the motion—i.e., in failing to attend a
    pretrial conference, in failing to meet with Weathers prior to
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    STATE v. WEATHERS
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    trial to discuss the case or to review discovery, and in repre-
    senting Weathers despite a conflict of interest.
    Finally, Weathers makes two additional claims of ineffective
    assistance of trial counsel: (1) that counsel failed to move for a
    continuance of the trial on the bases that counsel had not ade-
    quately prepared for trial and that the State had been granted
    a motion to endorse an additional witness only 3 days prior to
    the start of the trial and (2) that counsel failed to adequately
    investigate and present several aspects of his defense.
    STANDARDS OF REVIEW
    [1,2] Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a ques-
    tion of law, which turns upon the sufficiency of the record to
    address the claim without an evidentiary hearing or whether
    the claim rests solely on the interpretation of a statute or
    constitutional requirement. State v. Hood, 
    301 Neb. 207
    , 
    917 N.W.2d 880
    (2018). We determine as a matter of law whether
    the record conclusively shows that (1) a defense counsel’s
    performance was deficient or (2) a defendant was or was not
    prejudiced by a defense counsel’s alleged deficient perform­
    ance. 
    Id. [3] When
    reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review. State
    v. Brown, 
    302 Neb. 53
    , 
    921 N.W.2d 804
    (2019). Regarding
    historical facts, an appellate court reviews the trial court’s find-
    ings for clear error, but 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 deter-
    mination. 
    Id. [4] A
    trial court’s decision to sustain or overrule a defend­
    ant’s motion to dismiss appointed counsel and appoint substi-
    tute counsel is reviewed for an abuse of discretion. See State v.
    Molina, 
    271 Neb. 488
    , 
    713 N.W.2d 412
    (2006). See, also, State
    v. McPhail, 
    228 Neb. 117
    , 
    421 N.W.2d 433
    (1988).
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    STATE v. WEATHERS
    Cite as 
    304 Neb. 402
    ANALYSIS
    Ineffective Assistance Claims.
    Weathers, who has new counsel on appeal, makes several
    claims on direct appeal that his trial counsel provided ineffec-
    tive assistance in various respects. Before specifically address-
    ing those and his other claims, we set forth standards appli-
    cable to claims of ineffective assistance of counsel raised on
    direct appeal.
    [5,6] 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 perform­
    ance which is known to the defendant or is apparent from the
    record; otherwise, the issue will be procedurally barred in a
    subsequent postconviction proceeding. State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
    (2019). The fact that an ineffective
    assistance of counsel claim is raised on direct appeal does not
    necessarily mean that it can be resolved. 
    Id. The determining
    factor is whether the record is sufficient to adequately review
    the question. 
    Id. The record
    is sufficient if it establishes either
    that trial counsel’s performance was not deficient, that the
    appellant will not be able to establish prejudice, or that trial
    counsel’s actions could not be justified as a part of any plau-
    sible trial strategy. 
    Id. [7-11] To
    prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington, 
    466 U.S. 668
    , 104 S.
    Ct. 2052, 
    80 L. Ed. 2d 674
    (1984), the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s
    defense. State v. 
    Munoz, supra
    . To show that counsel’s per-
    formance 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. 
    Id. To show
    prejudice, the
    defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceed-
    ing would have been different. 
    Id. A reasonable
    probability
    is a probability sufficient to undermine confidence in the
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    outcome. 
    Id. The two
    prongs of this test may be addressed in
    either order, and the entire ineffectiveness analysis should be
    viewed with a strong presumption that counsel’s actions were
    reasonable. State v. Manjikian, 
    303 Neb. 100
    , 
    927 N.W.2d 48
    (2019).
    [12,13] When an ineffective assistance of counsel claim is
    raised in a direct appeal, the appellant is not required to allege
    prejudice; however, an appellant must make specific allega-
    tions of the conduct that he or she claims constitutes deficient
    performance by trial counsel. State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
    (2019). General allegations that trial
    counsel performed deficiently or that trial counsel was ineffec-
    tive are insufficient to raise an ineffective assistance claim on
    direct appeal. 
    Id. [14-17] Appellate
    courts have generally reached ineffective
    assistance of counsel claims on direct appeal only in those
    instances where it was clear from the record that such claims
    were without merit or in the rare case where trial counsel’s
    error was so egregious and resulted in such a high level of
    prejudice that no tactic or strategy could overcome the effect
    of the error, which effect was a fundamentally unfair trial.
    
    Id. An ineffective
    assistance of counsel claim made on direct
    appeal can be found to be without merit if the record estab-
    lishes that trial counsel’s performance was not deficient or that
    the appellant could not establish prejudice. 
    Id. In the
    case of
    an argument presented for the purpose of avoiding procedural
    bar to a future postconviction proceeding, appellate counsel
    must present a claim 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. State v. Hood, 
    301 Neb. 207
    , 
    917 N.W.2d 880
    (2018).
    A claim insufficiently stated is no different from a claim not
    stated at all. 
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    Failure to Object to DNA Evidence and Renew
    Motion to Suppress Was Not Ineffective
    Assistance of Counsel, and It Was Not
    Plain Error to Admit Such Evidence.
    Weathers’ first three assignments of error relate to the admis-
    sion of the DNA evidence that tied Weathers to the 2002 and
    2004 sexual assaults. He claims that trial counsel provided
    ineffective assistance when counsel failed to preserve chal-
    lenges to admission of the DNA evidence for appeal by failing
    to renew his motion to suppress and failing to object to the
    admission of the evidence at trial. He further claims that in
    light of the alleged constitutional violations in the collection
    of the DNA evidence, it was plain error for the district court to
    admit the evidence. We determine that the DNA evidence was
    admissible and should not have been suppressed. We therefore
    conclude that Weathers could not show ineffective assistance
    of trial counsel in this respect and that the district court did not
    commit plain error when it admitted the evidence. Weathers’
    challenges to the admission of the DNA evidence are with-
    out merit.
    The DNA evidence admitted at trial consisted of the results
    of the testing of the DNA samples that were collected from
    Weathers pursuant to the June 12, 2017, order. In its order
    overruling Weathers’ motion to suppress, the district court
    concluded that the order was supported by probable cause
    based on the notification investigators received from the state
    DNA database indicating that Weathers’ DNA profile matched
    the DNA profile of the previously unknown suspect from
    the four sexual assaults that are the subject of the charges
    in this case. On appeal, Weathers does not argue that the
    match of his DNA profile to the DNA profiles in the state
    DNA database did not provide probable cause to support
    the June 12 order to collect DNA samples for purposes of
    investigating the 2002 and 2004 assaults. Instead, he argues
    that two prior DNA collections violated his constitutional
    and statutory rights and that therefore the DNA samples
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    collected pursuant to the June 12, 2017, order were “fruit of
    the poisonous tree.”
    Weathers argues that the DNA evidence should have been
    suppressed because (1) the comparison of the 2014 DNA sam-
    ple to the DNA evidence in the 2002 and 2004 assaults violated
    § 29-4126 and Weathers’ constitutional rights and (2) the June
    5, 2017, order authorizing corrections employees to obtain a
    DNA sample from Weathers using force violated his constitu-
    tional rights. As discussed below, we determine that the June
    12 order was not dependent on the 2014 DNA sample and that
    therefore even if the collection or use of the 2014 DNA sample
    were improper, evidence obtained pursuant to the June 12 order
    did not need to be suppressed. We further determine that while
    the June 12 order was dependent on the DNA sample collected
    pursuant to the June 5 order, the collection of Weathers’ DNA
    sample under the authority of the June 5 order did not violate
    Weathers’ Fourth Amendment rights.
    Regarding the 2014 DNA sample, Weathers argues that
    the collection of the sample was in violation of his Fourth
    Amendment rights, because in the present case, the State did
    not provide “evidence that police had a court order allowing
    police to take Weathers’ DNA in 2014, nor did the State intro-
    duce evidence that an exception to the warrant requirement
    applied.” Brief for appellant at 24. Weathers further argues
    that once the DNA sample had been collected, it was improper
    to compare the DNA sample collected in connection with the
    2014 assaults to the DNA evidence in the unsolved cases from
    2002 and 2004. He argues that such comparison violated his
    Fourth Amendment rights and that it also violated § 29-4126.
    Weathers argues that § 29-4126(1) requires “probable cause,
    a court order, or voluntary consent” related to the investiga-
    tion of a particular crime and that even if the collection of the
    DNA sample in 2014 was justified as to the investigation of
    the 2014 assaults, investigators did not have probable cause,
    a court order, or Weathers’ consent to collect or use the DNA
    sample for the investigation of the 2002 and 2004 assaults. He
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    argues that “police simply chose to violate the law by compar-
    ing Weathers’ 2014 sample, taken as part of an unrelated inves-
    tigation, to the unknown suspect sample from the 2002-2004
    sexual assaults.” Brief for appellant at 23.
    In its order overruling the motion to suppress, with regard to
    the 2014 DNA sample, the district court found that “there was
    no evidence adduced during the hearing to support a finding
    that the 2014 DNA sample was ever submitted for comparison
    in this current case.” The district court determined that the
    2014 DNA sample was “irrelevant” to the motion to suppress
    and overruled the motion. The State in its brief on appeal
    acknowledges that there was evidence in the record that “there
    was some sort of comparison of Weathers’ DNA sample in
    2014, though the extent of that comparison is unclear.” Brief
    for appellee at 16. The State takes the position that even if the
    DNA sample collected in connection with the 2014 assaults
    was compared to the DNA evidence in the unsolved cases from
    2002 and 2004, it does not follow that the State violated either
    the Fourth Amendment or § 29-4126. The State contends that
    once the DNA sample from the 2014 assaults was lawfully in
    its possession, neither the Fourth Amendment nor § 29-4126
    restricted its use of that sample.
    The evidence of a comparison included Jaworski’s testimony
    at the suppression hearing that “our department did compare
    the [un]known suspect DNA in the four outstanding sexual
    assaults against . . . Weathers’ buccal swab [in the 2014 case]
    and it was — at that time it was a match” and that “that’s how
    we knew he was identified.” However, Jaworski did not testify
    that she had personally made such a comparison and she could
    not testify as to exactly what sort of comparison was made in
    2014 to the evidence from the 2002 and 2004 cases.
    Instead, during the trial, Weathers made an offer of proof of
    testimony by Kaye Shepard, a laboratory DNA analyst who in
    2014 had analyzed Weathers’ DNA sample in connection with
    the investigation of the 2014 assaults. Shepard testified that
    she noted Weathers’ DNA contained “a very rare allele that
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    we hadn’t seen for many, many years in the laboratory” and
    that she remembered seeing the rare allele in a sample she had
    analyzed in 2004. Shepard denied that the 2014 DNA sample
    was put into a DNA system for a comparison, and she resisted
    testifying that she compared Weathers’ entire DNA profile to a
    suspect DNA profile, testifying instead that “I remember just
    the [rare allele] standing out.” Shepard further acknowledged
    that in 2014, she “may have called somebody at the Omaha
    Police Department to tell them that we had” a DNA sample
    with the rare allele, “which they know about from previ-
    ous years.”
    Jaworski testified that after being informed in 2014 by the
    laboratory that “Weathers was a match to the serial rape case
    because they had been aware of this rare allele,” she had asked
    Weathers to give his consent to provide a DNA sample in con-
    nection with the earlier serial rapes, but that after he declined
    his consent, she did not further pursue a DNA sample related
    to the earlier assaults, because “the decision was made by the
    County Attorney’s Office to try [the 2014 assaults] case first
    and separately.” Jaworski further testified that the DNA sample
    given by Weathers in 2014 was not and could not have been
    entered into the state DNA database and that the presence of
    the rare allele in the DNA evidence from the earlier sexual
    assaults had been “widely known” among law enforcement
    personnel since 2002.
    Therefore, the evidence in this case does not indicate a
    “comparison” of the 2014 DNA sample to the evidence from
    the 2002 and 2004 assaults, at least in the sense of a com-
    parison of Weathers’ full DNA profile or the entry of his DNA
    profile into a database. Instead, it indicates that a laboratory
    technician noted the presence of a rare allele which might tie
    Weathers to the earlier cases and that she had reported her
    observation to investigators. Jaworski sought Weathers’ con-
    sent to give a DNA sample to use in the investigation of the
    earlier cases. However, after he refused consent, she did not
    further pursue obtaining a DNA sample or obtaining evidence
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    to tie Weathers to the prior assaults. Instead, it appears that
    investigators determined, after consultation with the county
    attorney, that the possible connection of Weathers to those prior
    assaults would not be pursued at that time and that instead
    they would wait to see whether Weathers was convicted of the
    2014 assaults. Therefore, it appears the State made a strategic
    decision to wait and see whether Weathers would become a
    convicted felon, at which time his DNA would be collected
    and put into the state DNA database pursuant to the DNA
    Identification Information Act.
    Even if we were to assume that Shepard’s observation of the
    rare allele constituted a “comparison” of the 2014 DNA sample
    to the evidence in the 2002 and 2004 cases and even if we were
    to assume this comparison violated the Fourth Amendment
    or § 29-4126, we agree with the district court’s determina-
    tion that the collection and use of the 2014 DNA sample are
    not relevant to the suppression issues in this case. The record
    indicates that the DNA sample collected from Weathers in the
    2014 investigation did not directly lead to the DNA evidence
    that was offered and admitted at his trial in the present case
    involving the 2002 and 2004 assaults. Instead, the evidence
    admitted in this case directly resulted from the DNA samples
    collected pursuant to the June 12, 2017, order, which in turn
    was supported by probable cause based on evidence generated
    by the collection of the DNA sample pursuant to the June 5,
    2017, order. As we discuss below, the collection of the DNA
    sample pursuant to the June 5 order was properly based on
    the authority of § 29-4106 and Weathers’ status as a convicted
    felon. Evidence generated from the DNA sample collected in
    2014 was not directly used to support either of the collections
    of DNA samples in 2017. Therefore, even if the collection and
    the subsequent use of the DNA sample in 2014 were improper,
    the DNA evidence admitted in this case was collected in 2017
    and was not dependent on the 2014 DNA sample, and therefore
    the DNA evidence at issue in the current appeal would not
    have been suppressed based on any error that occurred in 2014.
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    We therefore reject Weathers’ argument that trial counsel was
    ineffective for failing to preserve a challenge to admission of
    the DNA evidence based on alleged errors in the collection or
    use of the 2014 DNA sample.
    As noted above, the DNA evidence admitted in this case
    was the product of the DNA samples collected pursuant to the
    June 12, 2017, order and the probable cause which supported
    that order was based on evidence that resulted from the DNA
    sample collected pursuant to the June 5, 2017, order. Therefore,
    error in the collection of the DNA sample pursuant to the June
    5 order could have required suppression of the DNA evidence
    in this case. However, we determine that the June 5 collection
    was proper based on § 29-4106.
    Weathers argues that the district court did not have authority
    to issue the June 5, 2017, order and that therefore, the col-
    lection of a DNA sample pursuant to that order violated his
    Fourth Amendment rights. However, even if the district court
    had not issued the June 5 order, the State was authorized by
    § 29-4106 to collect the DNA sample and to use reasonable
    force to do so.
    Section 29-4106 provides, in relevant part, as follows:
    (1) A person who is convicted of a felony offense or
    other specified offense on or after July 15, 2010, who
    does not have a DNA sample available for use in the State
    DNA Sample Bank, shall, at his or her own expense, have
    a DNA sample collected:
    (a) Upon intake to a prison, jail, or other detention
    facility or institution to which such person is sentenced.
    If the person is already confined at the time of sentenc-
    ing, the person shall have a DNA sample collected imme-
    diately after the sentencing. Such DNA sample shall be
    collected at the place of incarceration or confinement.
    Such person shall not be released unless and until a DNA
    sample has been collected[.]
    There is no dispute that Weathers was convicted of a felony
    offense in connection with the 2014 assaults. Therefore, under
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    § 29-4106, Weathers was required to have a DNA sample col-
    lected for use in the State DNA Sample Bank.
    Weathers argues, however, that he could not have been
    forced to supply a DNA sample on June 5, 2017. He notes
    the last sentence of § 29-4106(1)(a), which provides that a
    convicted felon “shall not be released unless and until a DNA
    sample has been collected,” and he argues that this sentence
    provides the exclusive mechanism authorized to enforce the
    requirement for a convicted felon to provide a DNA sample.
    That is, the only way a convicted felon may be forced to
    provide a sample is at the completion of his or her sentence,
    at which time the State may coerce him or her to provide a
    sample by refusing to release him or her until the sample is
    provided. However, we do no read this sentence as providing
    an exclusive mechanism for enforcement or as prohibiting the
    State from using other means to obtain the DNA sample that a
    convicted felon is statutorily required to provide.
    [18] We note in this regard that § 29-4106(1)(a) provides
    that the requirement for a convicted felon to provide a DNA
    sample becomes effective “[u]pon intake to a prison, jail, or
    other detention facility or institution to which such person is
    sentenced,” or “[i]f the person is already confined at the time
    of sentencing, the person shall have a DNA sample collected
    immediately after the sentencing.” The requirement therefore
    exists once the convicted felon begins serving his or her sen-
    tence. Although the convicted felon may not be released at
    the end of the sentence unless or until he or she has provided
    the DNA sample, the convicted felon’s obligation to provide a
    DNA sample exists, and may be enforced, at the beginning of
    the sentence.
    On June 5, 2017, Weathers had been sentenced for the 2014
    felonies and was confined pursuant to such sentences. Therefore,
    on that day, he was legally required under § 29-4106(1)(a) to
    have a DNA sample collected. Even without the June 5 order,
    the State was authorized by § 29-4106(1)(a) to enforce the
    requirement that Weathers provide a DNA sample. Weathers
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    disagrees and instead contends that the collection of the DNA
    sample was an unreasonable seizure that violated his Fourth
    Amendment rights.
    Courts have generally held that statutes such as § 29-4106
    that require a convicted felon to provide a DNA sample for
    inclusion in a DNA database do not violate Fourth Amendment
    protections against unreasonable seizure. See U.S. v. Kraklio,
    
    451 F.3d 922
    (8th Cir. 2006), and cases cited therein. See,
    also, Maryland v. King, 
    569 U.S. 435
    , 481, 
    133 S. Ct. 1958
    ,
    
    186 L. Ed. 2d 1
    (2013) (collection of DNA sample pursuant
    to statute authorizing such collection from arrestee does not
    violate Fourth Amendment; in his dissent, Justice Scalia notes
    that “[a]ll parties concede that it would have been entirely
    permissible, as far as the Fourth Amendment is concerned, for
    [the plaintiff] to take a sample of [the defendant’s] DNA as
    a consequence of his conviction for second-degree assault”).
    Therefore, to the extent Weathers might have challenged the
    collection of his DNA on June 5, 2017, on the basis that
    § 29-4106 violated the Fourth Amendment by authorizing col-
    lection of his DNA, such challenge would not have been suc-
    cessful and counsel was not ineffective for failing to preserve
    the challenge.
    However, Weathers further argues that it was a Fourth
    Amendment violation for the district court to authorize the
    use of reasonable force to collect the DNA sample from him.
    We determine that § 29-4106 inherently authorizes the use of
    reasonable force to obtain a DNA sample. Other courts have
    reached a similar result.
    In State v. Banks, 
    321 Conn. 821
    , 839, 
    146 A.3d 1
    , 10 (2016),
    the Connecticut Supreme Court affirmed a lower court’s ruling
    interpreting a statute requiring that DNA samples be collected
    from all persons convicted of a felony and determining that
    the “ability to use reasonable force to obtain a DNA sample
    is implicit in the statute as its fundamental purpose would be
    subverted otherwise.” The Connecticut Supreme Court agreed
    that “the use of reasonable force to obtain a DNA sample from
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    an unwilling individual was ‘inherent’ in” the statute and rea-
    soned that “[t]o conclude otherwise would result in absolute
    frustration of the legislature’s objective in establishing and
    maintaining a DNA data bank.” 
    Id. at 842,
    146 A.3d at 12. See,
    also, Rendelman v. Scott, 378 Fed. Appx. 309, 313 (4th Cir.
    2010) (“State’s right to obtain [a] DNA sample from designated
    inmates must necessarily carry with it the right to use a reason-
    able degree of force that is sufficient to ensure compliance.
    Otherwise, the State’s right can be rendered meaningless by an
    inmate who refuses to grant permission . . . ”).
    [19] We conclude that § 29-4106 inherently authorizes the
    use of reasonable force to collect a DNA sample from a con-
    victed felon. We further conclude that use of reasonable force
    does not violate the Fourth Amendment. Both the Fourth
    Amendment to the U.S. Constitution and article I, § 7, of the
    Nebraska Constitution guarantee against unreasonable searches
    and seizures. State v. Seckinger, 
    301 Neb. 963
    , 
    920 N.W.2d 842
    (2018). The ultimate touchstone is one of reasonableness.
    
    Id. We believe
    that the Fourth Amendment would not prohibit
    use of reasonable force to carry out an otherwise proper statu-
    torily authorized seizure.
    In the June 5, 2017, order, the district court specified that
    “reasonable” force could be used to obtain the DNA sample,
    and there is no indication in the record on direct appeal that
    anything more than reasonable force was used to collect the
    DNA sample; and, at least in connection with this claim,
    Weathers does not assert that unreasonable force was used.
    We note that in connection with his claim, discussed below,
    that trial counsel failed to adequately investigate and pre­sent
    several aspects of his defense, one of the specific failures
    Weathers asserts relates to evidence the State allegedly turned
    over during the trial, “including video of the forcible extrac-
    tion of Weathers’ DNA sample.” Brief for appellant at 48. That
    alleged evidence is not in the record on appeal, and Weathers
    does not argue in connection with the present claim of ineffec-
    tive assistance of counsel that counsel should have objected
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    to admission of the DNA evidence on the basis that excessive
    force was actually used to obtain the DNA sample on June
    5. Instead, his argument is that the court could not authorize
    reasonable force, and we conclude that § 29-4106 authorizes
    reasonable force and that such authorization does not violate
    the Fourth Amendment.
    In sum, we conclude that the record on appeal refutes
    Weathers’ first two claims of ineffective assistance of trial
    counsel. Weathers could not show prejudice from counsel’s
    failure to object to admission of the DNA evidence and to
    renew the motion to suppress, because the challenges asserted
    by Weathers related to the 2014 DNA sample and the June
    5, 2017, DNA sample collected pursuant to the court’s order
    would not have been successful. In addition, because the record
    refutes Weathers’ claims that DNA evidence should have been
    excluded based on alleged Fourth Amendment violations, we
    further conclude that it was not plain error for the court to
    admit the evidence, and we reject Weathers’ assignment of
    error to that effect.
    Failure to Object to DNA Evidence Based
    on Chain of Custody Was Not
    Ineffective Assistance.
    Weathers next claims that trial counsel provided ineffec-
    tive assistance by failing to object to the DNA evidence on
    the basis that the State failed to establish a chain of custody
    for the DNA evidence collected in the investigations of three
    of the four assaults. We determine the record shows that this
    claim is without merit.
    Weathers’ arguments in this claim focus on three of the
    four victims in this case. Regarding one victim, he asserts that
    there was “no testimony in the record from the individual who
    purportedly swabbed [the victim] during the rape kit examina-
    tion.” Brief for appellant at 35. Regarding the second victim,
    Weathers asserts that the State’s witness was a doctor who
    “could only say that he ‘supervised’ [the victim’s] treatment,
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    but he did not personally perform or witness these tasks” and
    testified only that he assumed the samples taken from the
    victim were properly taken and sealed. 
    Id. at 36.
    Regarding
    the third victim, Weathers similarly argues that the witness
    was a doctor who had testified regarding the examination he
    had given and testified regarding tasks performed by a nurse
    with respect to the collection, packaging, and sealing of the
    rape kit.
    [20-23] In a case involving a foundational challenge regard-
    ing hair specimens submitted for testing and the admission of
    the results of the testing, we stated the following standards.
    Where objects pass through several hands before being pro-
    duced in court, it is necessary to establish a complete chain
    of evidence, tracing the possession of the object or article to
    the final custodian; and if one link in the chain is missing, the
    object may not be introduced in evidence. State v. Glazebrook,
    
    282 Neb. 412
    , 
    803 N.W.2d 767
    (2011). Objects which relate to
    or explain the issues or form a part of a transaction are admis-
    sible in evidence only when duly identified and shown to be
    in substantially the same condition as at the time in issue. 
    Id. It must
    be shown to the satisfaction of the trial court that no
    substantial change has taken place in an exhibit so as to render
    it misleading. 
    Id. Important in
    determining the chain of custody
    are the nature of the evidence, the circumstances surrounding
    its preservation and custody, and the likelihood of intermed-
    dlers tampering with the object. 
    Id. Whether there
    is sufficient
    foundation to admit physical evidence is determined on a case-
    by-case basis. 
    Id. With regard
    to the first victim, the State notes that there was
    testimony by the nurse who participated in the examination
    of the victim and the collection of swabs and who testified
    that she had put the collected evidence into sealed envelopes
    and provided them to police. We agree with the State that this
    testimony belies Weathers’ assertion that there was no testi-
    mony by the person who collected the swab used to collect the
    DNA sample.
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    Regarding the second and third victims, the State argues
    that the testimony of the physicians was sufficient to estab-
    lish proper collection and handling of the samples even if the
    physicians did not perform all the steps personally. Each of
    the physicians testified regarding examinations they performed
    of the respective victims and the procedures performed by
    themselves and by nurses under their supervision to collect
    samples. We determine the doctors’ testimony regarding their
    examination of the specific victims and the procedures which
    were followed in such examinations, when combined with
    other evidence including the testimony of police officers who
    collected packaged and sealed kits, was sufficient to establish
    the chain of custody. Weathers does not cite authority requiring
    that the specific person who physically collected and sealed
    the samples must testify, and we think testimony by the doctor
    who supervised the examination was sufficient to provide that
    step in the chain.
    We do not think a challenge to the admission of the DNA
    evidence based on chain of custody would have been success-
    ful, and therefore the record refutes that there was prejudice
    from counsel’s failure to object on such basis. We therefore
    conclude that this claim of ineffective assistance of counsel is
    without merit.
    District Court Did Not Err When It Overruled
    Motion to Dismiss Counsel, and Counsel
    Did Not Provide Ineffective Assistance
    as Alleged in the Motion.
    Weathers next claims that the district court abused its discre-
    tion when it overruled his motion to dismiss his counsel and
    appoint substitute counsel. He further claims that the reasons
    he set forth in his motion to dismiss counsel also consti-
    tute reasons that counsel provided ineffective assistance. We
    conclude that the court did not abuse its discretion when it
    refused to appoint substitute counsel and that the record refutes
    Weathers’ claim of ineffective assistance of counsel.
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    [24-27] When a defendant becomes dissatisfied with court-
    appointed counsel, unless he or she can show good cause to
    the court for the removal of counsel, his or her only alternative
    is to proceed pro se if he or she is competent to do so. State
    v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017). An indigent
    defendant’s right to have counsel does not give the defendant
    the right to choose his or her own counsel. State v. Wabashaw,
    
    274 Neb. 394
    , 
    740 N.W.2d 583
    (2007). Mere distrust of, or
    dissatisfaction with, appointed counsel is not enough to secure
    the appointment of substitute counsel. 
    Id. Appointed counsel
    must remain with an indigent accused unless one of the follow-
    ing conditions is met: (1) The accused knowingly, voluntarily,
    and intelligently waives the right to counsel and chooses to
    proceed pro se; (2) appointed counsel is incompetent, in which
    case new counsel is to be appointed; or (3) the accused chooses
    to retain private counsel. State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
    (2013).
    In this case, the court gave Weathers the option to proceed
    pro se, and he rejected that option. Weathers also did not
    choose to retain private counsel and instead sought appoint-
    ment of substitute counsel. Therefore, under State v. 
    McGuire, supra
    , in order to remove his counsel and obtain new appointed
    counsel, Weathers was required to establish not merely that he
    distrusted or was dissatisfied with his counsel but that trial
    counsel was incompetent.
    [28] As a general matter, Weathers argues that the district
    court erred because it did not hold an evidentiary hearing on
    his motion to dismiss his counsel. We have said that once a
    defendant requesting substitute counsel has raised a seemingly
    substantial complaint about counsel, the court has a duty to
    thoroughly inquire into the complaint. State v. Davlin, 
    265 Neb. 386
    , 
    658 N.W.2d 1
    (2003). However, we have deter-
    mined that when a defendant’s asserted grounds for discharg-
    ing counsel and appointing new counsel were insufficient,
    there was no reason for the court to conduct an evidentiary
    hearing. See State v. 
    Wabashaw, supra
    . In this case, Weathers’
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    motion fully set forth his reasons for removing his counsel,
    and when the court took up the motion, it asked Weathers
    whether he had any reasons other than those set forth in his
    motion why counsel should be dismissed and Weathers replied
    that there were none. The court therefore had enough informa-
    tion from which to determine whether Weathers’ assertions
    had merit, and, as we discuss below, the court in its discretion
    determined that Weathers’ asserted reasons did not require
    removal of counsel and appointment of substitute counsel.
    Therefore, the court’s failure to hold an evidentiary hearing
    was not in itself error.
    Weathers argues on appeal that the “[m]ost pressing” rea-
    sons to dismiss counsel were that (1) counsel, who worked for
    the public defender’s office, had a conflict of interest, because
    in a prior case, Weathers’ counsel was a different attorney
    from the same office and Weathers, in a postconviction action,
    was currently challenging the effectiveness of that counsel’s
    assistance in the prior case; (2) counsel had missed a pretrial
    conference; and (3) counsel had failed to meet with Weathers
    prior to trial to discuss the case or to review discovery. Brief
    for appellant at 37.
    Regarding Weathers’ assertion that counsel had a conflict
    of interest, we have held that appointed counsel may be
    removed because of a potential conflict of interest and that
    such a conflict could, in effect, render a defendant’s counsel
    incompetent to represent the defendant and warrant appoint-
    ment of new counsel. State v. 
    McGuire, supra
    . The conflict
    alleged by Weathers was that in a postconviction action, he
    was alleging that another public defender had provided inef-
    fective assistance in a separate criminal proceeding. Weathers
    argues that this created an actual conflict of interest with
    the other public defender and that such conflict should be
    imputed to his counsel, who was also a public defender.
    Weathers cites cases to the effect that if one attorney in a firm
    has an actual conflict of interest, the conflict is imputed to all
    attorneys in the firm.
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    However, in a case involving an assertion that an alleged
    conflict of interest for one attorney in a county attorney’s office
    should be imputed to the other prosecutors in the office, we
    noted that rules regarding imputed conflicts of interest differ
    between attorneys employed by law firms and those employed
    by government agencies. In State v. Kinkennon, 
    275 Neb. 570
    ,
    577, 
    747 N.W.2d 437
    , 444 (2008), we described a “more flex-
    ible rule” provided in Neb. Ct. R. of Prof. Cond. 1.11(d) (rev.
    2005) (now Neb. Ct. R. of Prof. Cond. § 3-501.11(d)), which
    addresses conflicts of interest for current government officers
    and employees. We noted:
    The official comment 2 to rule 1.11 explains that
    “[b]ecause of the special problems raised by imputa-
    tion within a government agency, paragraph (d) does not
    impute the conflicts of a lawyer currently serving as an
    officer or employee of the government to other associ-
    ated government officers or employees, although ordinar-
    ily 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
    interests, and lawyers in a prosecutor’s office, who have a
    public duty to seek justice, not profits.
    State v. 
    Kinkennon, 275 Neb. at 577
    , 747 N.W.2d at 444. We
    think this reasoning applies as well to lawyers within a public
    defender’s office, who also have a public duty to seek justice
    for the defendants they represent. As to whether Weathers’
    assertion of claims of ineffective assistance of counsel create
    a conflict of interest for the specific public defender who rep-
    resented him in the underlying prior conviction, any such con-
    flict would not be imputed to a different public defender who
    was representing him in the current proceeding. The district
    court therefore did not abuse its discretion when it refused to
    remove Weathers’ counsel on the basis of the alleged conflict
    of interest.
    Weathers also argues that counsel deprived him of his right
    to effective representation and therefore should have been
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    removed, because counsel missed a “pretrial conference” on
    January 10, 2018. The record indicates that counsel attended a
    “pretrial conference” that was held on November 28, 2017. At
    that conference, the court mentioned that time had been sched-
    uled on January 10, 2018, to consider “pretrial motions.” There
    is no transcript in the record on appeal for a proceeding held
    on January 10, but at a proceeding held on March 5, Weathers’
    counsel acknowledges missing a hearing on January 10 due
    to a misunderstanding that a hearing would not be held that
    day, because counsel did not have motions ready to be heard
    that day. The March 5 hearing then continued with, inter alia,
    defense counsel presenting certain motions. Although counsel
    missed the scheduled hearing on January 10, there is nothing
    in the record indicating that anything occurred at that hearing
    that materially affected Weathers’ defense, and it appears that
    counsel presented motions at a later date. We do not think the
    record shows that counsel was incompetent in this respect, and
    therefore we do not think the court abused its discretion when
    it refused to remove counsel on this basis.
    Weathers further argues counsel should have been removed
    for failing to meet with him prior to trial to discuss the case or
    to review discovery. The State notes that the record indicates
    that counsel had met with Weathers to discuss discovery, and
    Weathers in his motion acknowledged that counsel had met
    with him, although he alleged counsel did not provide him with
    “full discovery,” which he asserted consisted of “3000 plus
    pages of discovery.” The record also indicates that counsel had
    made motions to continue the trial in order to allow additional
    time to prepare with Weathers. These indicate that counsel was
    engaged in preparation with Weathers, and we do not think it
    shows that counsel was incompetent. We therefore do not think
    the court abused its discretion when it refused to remove coun-
    sel on this basis.
    In addition to arguing that the three above-stated reasons
    required the court to remove counsel, Weathers also claims
    on direct appeal that each of the three reasons constituted
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    ineffective assistance of trial counsel. As discussed above,
    counsel did not have a conflict of interest based on Weathers’
    postconviction claims regarding a different public defender;
    because counsel had no such conflict of interest, it was not
    deficient performance for counsel to represent Weathers in
    this proceeding. With regard to the other two reasons, as
    discussed above, the record on direct appeal does not indi-
    cate that counsel was incompetent for either of the asserted
    reasons. We therefore conclude that on direct appeal, there is
    no merit to Weathers’ claim that trial counsel provided inef-
    fective assistance for the reasons set forth in his motion to
    remove counsel.
    We note, however, that in his final claim of ineffective
    assist­ance, which we discuss below, Weathers asserts various
    claims that he argues cannot be reviewed on direct appeal but
    that he sets forth to preserve for postconviction review. In that
    claim, he sets forth various examples of how counsel could
    have better prepared for trial. Among his specific claims are
    that counsel was ineffective because counsel failed to inves-
    tigate what occurred during the January 10, 2018, hearing
    counsel failed to attend and that if counsel had met with him
    to discuss discovery, he could have provided leads regarding
    defenses, including alibi defenses. Our conclusion herein that
    the record on direct appeal refutes the claim that counsel was
    ineffective in the ways alleged in the motion to remove counsel
    does not necessarily foreclose claims related to counsel’s per-
    formance with respect to the January 10 hearing or to counsel’s
    preparation of Weathers’ defense to the extent such claims can
    be established based on information outside the record in this
    direct appeal.
    Counsel Was Not Ineffective for Failing
    to Move for Continuance.
    Weathers claims ineffective assistance of counsel when
    counsel failed to move for a continuance of the trial a few
    days before trial was scheduled to begin. Weathers asserts two
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    reasons counsel should have moved for a continuance: (1)
    Counsel had not adequately prepared with Weathers for trial,
    and (2) the court granted the State’s motion to endorse a wit-
    ness 3 days before trial was scheduled to start. We conclude the
    record on direct appeal refutes this claim.
    First, Weathers argues that counsel should have moved for
    a continuance because counsel had not adequately prepared
    with Weathers for trial. Weathers’ argument in this respect
    simply refers back to his argument to support his claim that
    the district court should have sustained his motion to remove
    counsel on the basis that counsel had failed to meet with him
    prior to trial to discuss the case or to review discovery. As dis-
    cussed above, we determine that the record refutes Weathers’
    claim that the district court should have removed counsel for
    this reason. For the same reason, we conclude that the record
    refutes that counsel was ineffective for failing to move for
    a continuance on the basis of counsel’s failure to adequately
    prepare with Weathers. In particular, we note that the record
    indicates that counsel made motions for continuance that were
    denied by the district court. In this respect, we also note that
    in Weathers’ final claim of ineffective assistance of counsel on
    direct appeal, he asserts that he could have provided counsel
    leads to investigate defenses, including alibi defenses; such
    alleged information is obviously not in the record on direct
    appeal, and we consider below whether this aspect of the claim
    is refuted in the record.
    Weathers further argues counsel was ineffective for failing
    to move for a continuance based on the court’s endorsement
    of a State’s witness a few days before trial was scheduled
    to begin. As discussed below, we determine that the record
    shows that Weathers could not show prejudice from coun-
    sel’s failure to move to continue based on endorsement of
    the witness.
    The record on direct appeal shows that on March 22, 2018,
    the State filed a motion for leave to endorse John Cress as
    a witness, and that on March 23, Weathers’ counsel filed an
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    objection to the motion, noting that trial was set to begin on
    March 26. Weathers’ counsel asserted that the motion should
    be denied because the State’s request was filed after deadlines
    had passed for endorsing witnesses and for filing motions.
    The court heard the State’s motion and Weathers’ objection
    on March 23. The transcript of the hearing showed that Cress
    would testify regarding chain of custody for the DNA evidence,
    specifically “transporting evidence to the State crime lab.”
    After hearing argument on the motion and Weathers’ objection,
    which included discussion regarding prejudice to the prepara-
    tion of the defense, the court sustained the State’s motion to
    endorse the witness but “require[d] that the State make [Cress]
    available for a deposition for [Weathers] before he testifies.”
    At trial, Cress testified as the last witness on March 27. He
    generally testified that he was an Omaha police officer and that
    on October 4, 2002, he was assigned to “pick up a rape kit at
    central station property room and transport it to the Nebraska
    State Patrol Crime Lab.” He testified further regarding com-
    pleting this assignment. Cress’ testimony was relatively brief,
    and Weathers’ counsel took the opportunity to cross-examine
    and re-cross-examine Cress regarding his testimony.
    We conclude that Weathers could not show prejudice result-
    ing from counsel’s failure to move for a continuance based
    on the endorsement of the witness shortly before trial. We
    note that if counsel had moved for a continuance, the deci-
    sion would have been left to the district court’s discretion. See
    State v. Baxter, 
    295 Neb. 496
    , 
    888 N.W.2d 726
    (2017) (stating
    that decision whether to grant continuance in criminal case is
    within discretion of trial court and will not be disturbed on
    appeal absent abuse of discretion). Also, we have said that a
    trial court, in the exercise of its discretion, may permit addi-
    tional witnesses to be endorsed within the 30 days before trial
    and even after the trial has begun, provided doing so does not
    prejudice the rights of the defendant. State v. Smith, 
    292 Neb. 434
    , 
    873 N.W.2d 169
    (2016). In this case, at the hearing on the
    State’s motion to endorse Cress as a witness, the court took
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    into consideration whether doing so a few days prior to trial
    would prejudice Weathers in the preparation of his defense.
    The court addressed any potential prejudice by requiring the
    State to make Cress available to Weathers for a deposition
    before he testified.
    Considering the nature of Cress’ testimony, basically estab-
    lishing a link in the chain of custody, we do not think the court
    abused its discretion when it sustained the State’s motion to
    endorse. Furthermore, the court addressed potential prejudice
    by requiring that Cress be made available for a deposition.
    Although it is not clear from the record whether Weathers
    took Cress’ deposition, the record does show that Weathers
    thoroughly cross-examined Cress on the matters to which he
    testified and that Weathers re-cross-examined Cress after the
    State’s redirect.
    We note further that requiring Cress to be made avail-
    able for a deposition adequately addressed the concerns that
    would have been considered if Weathers’ counsel had moved
    for a continuance. Therefore, if counsel had moved for a con-
    tinuance, the court likely would have denied a continuance
    and instead ordered the same remedy it gave in response to
    Weathers’ objection to endorsement of the witness, and we do
    not think it would have been an abuse of discretion to deny
    such a motion to continue. Weathers cites State v. Ash, 
    286 Neb. 681
    , 
    838 N.W.2d 273
    (2013), in which we held that the
    trial court abused its discretion when it denied the defendant’s
    request to continue trial based on a codefendant’s plea agree-
    ment with the State, executed on the eve of trial, pursuant to
    which she agreed to testify against the defendant. By contrast
    to the testimony of a codefendant, Cress’ testimony in this case
    was limited in scope and relatively minor given the entirety of
    the evidence in the case. Making Cress available for a deposi-
    tion without granting a continuance of the trial was sufficient
    to protect against prejudice to Weathers’ preparation of his
    defense. Therefore, the record refutes this claim of ineffective
    assistance of counsel.
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    Weathers’ Claims of Failures by Counsel
    Relating to Investigation and Presentation
    of Defenses Are Either Refuted by the
    Record or Cannot Be Reviewed
    on Direct Appeal.
    Weathers finally claims that counsel failed to adequately
    investigate and present several aspects of his defense. Weathers
    asserts that the record on direct appeal is not sufficient to
    review these claims but that he is setting them forth herein
    in order to preserve the claims for postconviction review.
    In each of these claims, Weathers asserts that counsel failed
    to discover or to pursue certain information that could have
    helped his defense. These claims therefore rely on evidence or
    information that is not included in the record on appeal, and
    we therefore agree with Weathers that the claims could not be
    resolved on direct appeal. However, we determine that two of
    the claims, which both relate to the alleged use of the 2014
    DNA sample, are shown to be without merit because, as we
    discussed above, the DNA evidence admitted at trial was not
    dependent on the 2014 DNA sample.
    In the argument section of his brief, Weathers sets forth the
    following claims:
    • Trial counsel failed to consult with or call as a witness
    an expert in the field of DNA identification. A DNA
    identification expert would have evaluated all the testing
    done in this case, including the testing of other suspects’
    profiles done by investigators, and testified that another
    suspect, possibly an unknown relative of Weathers,
    matched the unknown suspect’s profile, and that the
    lab technicians called by the State made mistakes in the
    testing and interpretation of DNA in this case.
    • In relation to the ineffective assistance directly above,
    trial counsel failed to investigate or subpoena DNA ana-
    lyst “Christine.” This analyst would have testified that
    investigators were told the person who committed the
    sexual assaults could be a relative of Weathers because
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    they shared most of the DNA core loci, yet police did
    not use this information to further investigate other indi-
    viduals who may have committed the sexual assaults.
    • Trial counsel failed to investigate the circumstances
    of the 2014 case against Weathers. Had he done so,
    he would have discovered additional testimony by . . .
    Jaworski confirming not only that an investigative com-
    parison was illegally done between Weathers’ 2014
    DNA sample and that of the unknown suspect, but
    that investigators did upload Weathers’ DNA profile to
    CODIS. The trial court found no evidence that either an
    investigatory comparison or a CODIS search occurred
    in 2014. . . .
    • Trial counsel similarly failed to investigate or call for-
    mer crime lab director James Wisecarver regarding
    crime lab policies and procedures, which would have
    provided evidence in addition to that provided by . . .
    Jaworski that investigators both conducted an investiga-
    tive comparison of Weathers’ 2014 DNA sample to the
    unknown suspects in 2014.
    • Trial counsel failed to request a continuance or mistrial
    when, during trial, the State turned over evidence includ-
    ing video of the forcible extraction of Weathers’ DNA
    sample, evidence relevant not only to the motion to sup-
    press the DNA evidence, but to . . . Weathers’ defense
    that the State and the trial court targeted Weathers for
    malicious prosecution.
    • Trial counsel failed to investigate ex parte communica-
    tions that occurred between the trial court and the pros-
    ecutor that occurred during the January 10, 2018 pretrial
    conference missed by trial counsel. . . . These com-
    munications would have provided additional evidence
    relevant to Weathers’ defense that the State and the trial
    court targeted Weathers for malicious prosecution, and
    would have supported a motion to recuse both the pros-
    ecutors and trial court prior to trial.
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    • Trial counsel failed to engage in meaningful discussions
    of the case with Weathers prior to trial. Had he done
    so and allowed Weathers to review all the discovery,
    Weathers would have had an opportunity to provide
    trial counsel with leads for possible defenses, includ-
    ing potential alibi defenses. Trial counsel was therefore
    ineffective in failing to further investigate these poten-
    tial defenses.
    Brief for appellant at 47-49.
    The third and fourth claims above both relate to allegations
    that counsel failed to pursue evidence that could have shown
    that investigators in 2014 had made a comparison of the DNA
    evidence from the 2002 and 2004 unsolved cases to the DNA
    sample Weathers provided in connection with the investiga-
    tion of the 2014 assaults. However, as we discussed above, the
    DNA evidence that was admitted at the trial in this case was the
    result of DNA samples that were collected in 2017, and such
    evidence was obtained independently of the collection or use
    of Weathers’ DNA sample in 2014. Therefore, even if Weathers
    were able to show some impropriety in the collection or use of
    the 2014 DNA sample, it would not have required suppression
    of the DNA evidence that was admitted in the present case. We
    therefore conclude that the record on direct appeal refutes the
    third and fourth claims above.
    Regarding the remaining claims above, each of the claims
    relies on alleged evidence or information that is not included
    in the record on direct appeal, and none of these claims are
    clearly refuted by anything in the record. Therefore, we can-
    not say on direct appeal that these claims are without merit.
    We agree with Weathers’ assertion that these claims cannot
    be determined on direct appeal, because the record on appeal
    does not disclose what steps trial counsel took in regard to
    these avenues of investigation, what would have been found
    if the various actions had been taken by counsel, and whether
    the findings would have helped Weathers’ defense. Weathers’
    brief on appeal did not specifically assign these claims as error,
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    as required by our recent decision in State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019), but his brief was filed prior to the
    release of our Mrza decision. Therefore, we include this listing
    so that a district court reviewing any petition for postconvic-
    tion relief that Weathers might bring in the future will be able
    to recognize what specific claims were brought before this
    court on direct appeal.
    [29,30] As we recently emphasized in State v. Stelly, ante
    p. 33, 932 N.W.2d. 857 (2019), when an appellate court finds,
    on direct appeal, that the record is not sufficient to resolve a
    claim of ineffective assistance, it should not be misunderstood
    as a finding that the claim will necessarily require an eviden-
    tiary hearing if raised in a motion for postconviction relief,
    because that determination is governed by an entirely different
    standard. Also, just because an appellate court finds the record
    on direct appeal is insufficient to resolve a claim of ineffective
    assistance, it does not mean that a postconviction court will
    necessarily be precluded from later finding the existing record
    affirmatively refutes the same claim. 
    Id. CONCLUSION Regarding
    Weathers’ assignments of error by the district
    court, we conclude that the court did not commit plain error
    when it admitted the DNA evidence in this case and that it did
    not abuse its discretion when it overruled Weathers’ motion
    to remove counsel and appoint substitute counsel. Regarding
    Weathers’ claims of ineffective assistance of trial counsel, we
    determine, as set forth above as to each specific claim, either
    that the record on direct appeal shows the claim is without
    merit or that the record on direct appeal is not sufficient to
    review the claim. We therefore affirm Weathers’ convictions
    and sentences for four counts of first degree sexual assault.
    Affirmed.
    Freudenberg, J., not participating.