State v. Sierra , 305 Neb. 249 ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/01/2020 01:08 AM CDT
    - 249 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    State of Nebraska, appellee, v.
    Jonathan J. Sierra, appellant.
    ___ N.W.2d ___
    Filed March 13, 2020.    No. S-19-180.
    1. Appeal and Error. An appellate court may, at its option, notice plain
    error.
    2. Right to Counsel: Appeal and Error. An appellate court reviews the
    trial court’s decision on a motion to withdraw as counsel for an abuse
    of discretion.
    3. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
    cretion with respect to sanctions involving discovery procedures, and
    their rulings thereon will not be reversed in the absence of an abuse
    of discretion.
    4. Administrative Law: Statutes: Appeal and Error. The meaning and
    interpretation of statutes and regulations are questions of law for which
    an appellate court has an obligation to reach an independent conclusion
    irrespective of the decision made by the court below.
    5. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    6. ____: ____. In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
    - 250 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    7. Constitutional Law: Double Jeopardy. The protection granted by the
    Nebraska Constitution against double jeopardy is coextensive to the
    protection granted by the U.S. Constitution.
    8. Theft. Where a theft involves items taken from multiple owners at the
    same time and in the same place, such theft constitutes a single offense.
    9. Appeal and Error: Words and Phrases. Plain error exists where there
    is an error, plainly evident from the record but not complained of at
    trial, which prejudicially affects a substantial right of a litigant and is of
    such a nature that to leave it uncorrected would cause a miscarriage of
    justice or result in damage to the integrity, reputation, and fairness of the
    judicial process.
    10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant 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, in order to preserve such claim.
    11. ____: ____. Once issues of trial counsel’s ineffective performance are
    properly raised, the appellate court will determine whether the record
    on appeal is sufficient to review the merits of the ineffective perform­
    ance claims.
    12. 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. This is because the
    trial record reviewed on appeal is generally devoted to issues of guilt or
    innocence and does not usually address issues of counsel’s performance.
    The determining factor is whether the record is sufficient to adequately
    review the question.
    13. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
    ineffective assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.
    14. Effectiveness of Counsel: Proof. To show deficient performance, a
    defendant must show that counsel’s performance did not equal that of a
    lawyer with ordinary training and skill in criminal law.
    15. ____: ____. 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.
    16. Rules of Evidence: Words and Phrases. In the context of Neb. Rev.
    Stat. § 27-403 (Reissue 2016), unfair prejudice means an undue tend­
    ency to suggest a decision based on an improper basis. Unfair prejudice
    speaks to the capacity of some concededly relevant evidence to lure the
    fact finder into declaring guilt on a ground different from proof specific
    to the offense charged, commonly on an emotional basis.
    - 251 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    17. Jury Instructions: Testimony: Appeal and Error. A defendant is
    clearly entitled to a cautionary instruction on the weight and credibility
    to be given to the testimony of an alleged accomplice, and the failure to
    give such an instruction, when requested, is reversible error.
    18. Jury Instructions: Evidence: Witnesses: Testimony. Whenever a
    judge decides that the evidence supports a conclusion that a witness
    is an accomplice and the defendant requests a cautionary instruction,
    the instruction is appropriate and should be given. This is because any
    alleged accomplice testimony should be examined more closely by the
    trier of fact for any possible motive that the accomplice might have to
    testify falsely.
    19. Effectiveness of Counsel: Rules of the Supreme Court: Trial:
    Records. When recordation of parts of a trial is not made mandatory by
    the rules, the failure to require recordation cannot be said, ipso facto, to
    constitute negligence or inadequacy of counsel.
    Appeal from the District Court for York County: James C.
    Stecker, Judge. Affirmed in part, and in part vacated.
    Lisa M. Meyer, of Fillman Law Offices, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    Jonathan J. Sierra was convicted of burglary, conspiracy to
    commit burglary, and several counts of theft involving a truck,
    a trailer, and several tools from a garage. Sierra’s accomplice,
    Jonathan Mally, entered into a plea agreement with the State
    and testified against Sierra. The majority of Sierra’s claims in
    this direct appeal are ineffective assistance of counsel claims.
    Sierra also claims that his court-appointed trial counsel had a
    personal conflict of interest because she was being investigated
    for and was charged with theft during her representation of
    Sierra. Finally, Sierra asserts that he was charged with separate
    theft charges in violation of the Double Jeopardy Clause of the
    U.S. Constitution.
    - 252 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    II. BACKGROUND
    In December 2017, the State filed an eight-count complaint
    against Sierra alleging that Sierra was involved in the theft of
    a truck and trailer which he then used to assist in the theft of
    automotive tools from a mechanic’s garage in York, Nebraska.
    The complaint was based on an incident which occurred in the
    early morning of October 15, 2017, when a window of Extreme
    Automotive in York was broken and tools were stolen from the
    premises. The tools belonged, separately, to a co-owner of the
    garage business and his two employees. The co-owner, Andrew
    Wilkinson, notified the officer investigating the break-in, Sgt.
    Michael Hanke, that his checkbook and debit card had also
    been stolen.
    Sierra was charged with eight counts: (1) burglary; (2) con-
    spiracy to commit burglary; (3) three counts of theft by unlaw-
    ful taking ($5,000 or more), which were related to the tools
    taken; (4) theft by unlawful taking ($5,000 or more) for steal-
    ing the truck; (5) theft by unlawful taking (less than $1,500 to
    $5,000) for stealing the trailer; and (6) criminal mischief (less
    than $500).
    Upon Sierra’s request, the court appointed an attorney to
    represent him in this matter. During preparation for trial, Sierra
    became frustrated with the lack of action on his attorney’s
    part and requested that she withdraw. Sierra’s attorney moved
    to withdraw. At the hearing on the motion, Sierra’s attorney
    indicated that there was a breakdown of the attorney-client
    relationship. Sierra told the judge that he had stopped speak-
    ing with his attorney and that he tried to have his fiance and
    mother talk with his attorney in his stead. Sierra claims that
    he spoke with his attorney only twice prior to the hearing. The
    court denied the motion.
    The court adopted the parties’ reciprocal discovery agree-
    ment and set a deadline of March 5, 2018, or “as soon as it
    becomes reasonably discovered, but not less than ten days
    before trial.” Approximately 4 months after the reciprocal
    discovery deadlines and 5 days before trial, Sierra’s attorney
    - 253 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    filed, for the first time, a witness list identifying five witnesses
    that the defense intended to call. The State responded by fil-
    ing a motion in limine to preclude undisclosed witnesses, alibi
    defense, and undisclosed exhibits. In the alternative, the State
    asked for a 30-day continuance.
    At the hearing to consider the motion, the State pointed out
    that Sierra had failed to comply with the deadline for reciprocal
    discovery and the 30-day deadline for notice of alibi defense
    and had filed the witness list less than 10 days before trial.
    Sierra’s attorney responded that all of the witnesses were
    known to the State from its reports and that one witness was
    on the State’s list, but Sierra’s attorney did not provide any
    reason for not complying with the reciprocal discovery order.
    Similarly, Sierra’s attorney also did not provide a reason for
    failing to comply with the statutory notice requirements for an
    alibi defense. Rather, she asked the judge to waive the notice
    requirement in the interest of justice. The district court sus-
    tained the State’s motion in limine. As a result, Sierra was able
    to call only one of the five listed witnesses and was precluded
    from pursuing his alibi defense.
    At trial, Hanke’s testimony provided a general timeline of
    the investigation. Hanke testified that after Wilkinson called
    the York police about the break-in, police reviewed surveil-
    lance videos taken from businesses in the area. The videos
    revealed that two individuals stole a truck from the garage
    parking lot and then drove to a nearby pizza restaurant, where
    they stole a trailer before returning to the garage. Thirty min-
    utes later, the truck and trailer left the garage.
    Wilkinson’s bank notified him on October 15, 2017, that
    someone had attempted to use the stolen debit card at a
    Walmart store in Norfolk, Nebraska. Wilkinson notified law
    enforcement of the bank’s report. Hanke used that informa-
    tion to get pictures taken from the Norfolk Walmart’s secu-
    rity cameras, which depicted two individuals using the stolen
    debit card. Hanke testified that, based on information received
    from the Butler County Sheriff’s Department, the investigators
    - 254 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    eventually identified both of the individuals in the photographs
    as Mally and Sierra.
    A Walmart store in York provided photographs of two indi-
    viduals to law enforcement, after the individuals were suspected
    of shoplifting on the morning of October 15, 2017. Maggie
    Wolfe, an asset protection associate for the York Walmart, and
    Hanke presented identification testimony related to the photo-
    graphs taken from the Walmarts in York and Norfolk. Wolfe
    provided the authentication for exhibit 1, a collection of pho-
    tographs taken from the York Walmart on the morning of the
    burglary. During direct examination, Wolfe positively identi-
    fied Sierra as being depicted in the photographs taken from the
    York Walmart. On cross-examination, Wolfe admitted that her
    identification of Sierra came after she read about the investiga-
    tion in the newspaper.
    Hanke testified that a cell phone traceable to Sierra “pinged
    off [of]” a cell tower in York around the time that Mally’s testi-
    mony placed them both in York. Hanke testified that cell phone
    records placed Sierra’s cell phone within 20 miles of York
    on the day of the burglary. Sierra’s attorney did not object to
    Hanke’s testimony about the content of the cell phone records,
    and the records themselves are not in evidence.
    Evidence recovered from the search of Sierra’s home was
    admitted based on the testimony provided by Hanke. According
    to Hanke’s testimony at trial, based on the Butler County,
    Nebraska, sheriff’s identification of Sierra in the photographs
    taken from the York Walmart and pursuant to a clause in
    Sierra’s probation order, police searched Sierra’s residence,
    where they found a majority of the tools taken from Extreme
    Automotive. The sheriff who identified Sierra in the photo-
    graphs did not testify at trial. The law enforcement officers
    who conducted the search did not testify at trial, and the proba-
    tion order is not in the record.
    Hanke testified that the stolen truck was recovered after
    being abandoned on the road north of the York Walmart. The
    stolen trailer was recovered after being abandoned on the road
    - 255 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    near Genoa, Nebraska. Sierra’s attorney made no objections to
    these portions of Hanke’s testimony. Hanke testified that dur-
    ing his first interview of Sierra, Sierra claimed he had never
    been to York, denied all involvement in the burglary, and said
    that he possessed the tools because he had purchased them
    from Mally.
    Sierra’s attorney cross-examined Hanke about the story
    Sierra gave to the York police as to how the tools ended up in
    his possession. Hanke testified that during his first interview,
    Sierra denied ever being in York, and that Sierra claimed he
    had purchased the tools. Hanke testified that during a sec-
    ond interview with Sierra, Sierra admitted to being in York.
    Sierra’s attorney did not object to Hanke’s testimony regarding
    either interview.
    Mally was arrested in Columbus, Nebraska, for an unrelated
    incident. A search revealed that Mally had on his person and
    in his vehicle several of the tools and financial items taken
    from Extreme Automotive. A warrant was executed for Mally’s
    residence, where several more items from Extreme Automotive
    were found. Mally subsequently entered into a plea agreement
    with the State and testified against Sierra.
    Mally testified as Sierra’s accomplice and provided a gen-
    eral timeline for the events on October 15, 2017, similar to
    that set forth by Hanke. Mally testified that he helped Sierra
    commit the burglary and theft at Extreme Automotive because
    Sierra needed mechanics tools. Mally asserted that the various
    pictures taken at both Walmart locations accurately depicted
    Sierra and him at those locations. Mally also testified that
    he was receiving benefits from the State concerning various
    charges in exchange for his cooperation.
    Evidence concerning the value of the tools was presented
    through various sources at trial. Several of the exhibits entered
    into evidence by the State display tools that were recovered
    from the search of Mally’s residence. During the presentation
    of evidence recovered from Mally’s residence, Sierra’s attorney
    made several objections, some of which were sustained. There
    - 256 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    was also evidence of financial items, including checkbooks
    and a debit card, that were recovered in Mally’s possession and
    testimony by Mally that Sierra attempted to use the stolen debit
    card to buy items. Mally denied the existence of any arrange-
    ment with Sierra to buy the tools.
    Sierra’s attorney elected to forgo the creation of a record
    of the voir dire, closing arguments, and jury instructions. The
    jury instructions that were given are preserved in the transcript.
    A jury found Sierra guilty on all counts except the charge of
    criminal mischief.
    At some point after the trial, Sierra’s attorney was charged
    with theft by unlawful taking ($5,000 or more) in an unre-
    lated case. Sierra requested new counsel, and the request was
    granted before sentencing. Sierra was sentenced to 16 to 20
    years’ imprisonment on each of the Class IIA felonies and 1 to
    2 years’ imprisonment on the Class IV felony, with orders for
    the sentences to run concurrently. Sierra appeals.
    III. ASSIGNMENTS OF ERROR
    Three errors Sierra assigns, which are not ineffective assist­
    ance of counsel claims, assert that the court erred by (1) deny-
    ing Sierra’s attorney’s motion to withdraw, (2) granting the
    State’s motion in limine, and (3) sentencing Sierra on multiple
    charges of theft by unlawful taking, in violation of the Double
    Jeopardy Clause of the U.S. Constitution.
    Sierra also assigns 14 ineffective assistance of counsel
    claims. Sierra first asserts that his attorney was “per se inef-
    fective” for failing “to maintain her law license and appropri-
    ate moral standing.” In his argument, Sierra elaborates that
    his attorney had a personal conflict of interest such that she
    failed to act in Sierra’s best interests because her focus was
    torn between her own pending legal actions and represent-
    ing Sierra.
    Sierra also assigns that his attorney was deficient by fail-
    ing to (1) comply with discovery; (2) serve notice of Sierra’s
    alibi; (3) move for a continuance at the hearing on the motion
    - 257 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    in limine; (4) call Sierra’s fiance as a witness for the defense;
    (5) depose Sierra’s brother, mother, and fiance, as well as two
    potential alibi witnesses, prior to trial; (6) communicate with
    Sierra to prepare for trial; (7) assert a double jeopardy claim;
    (8) move to suppress identification evidence and evidence
    found from the search of Sierra’s home; (9) file a motion in
    limine to exclude evidence discovered at Mally’s home; (10)
    object to identification evidence during trial; (11) object to
    “proffer interview” statements admitted in evidence during
    trial; (12) maintain a sufficient record; and (13) request a jury
    instruction on accomplice testimony.
    IV. STANDARD OF REVIEW
    [1] An appellate court may, at its option, notice plain error. 1
    [2] We review the trial court’s decision on a motion to with-
    draw as counsel for an abuse of discretion. 2
    [3] Trial courts have broad discretion with respect to sanc-
    tions involving discovery procedures, and their rulings thereon
    will not be reversed in the absence of an abuse of discretion. 3
    [4] The meaning and interpretation of statutes and regula-
    tions are questions of law for which an appellate court has an
    obligation to reach an independent conclusion irrespective of
    the decision made by the court below. 4
    [5] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact. 5 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error. 6 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    1
    Mays v. Midnite Dreams, 
    300 Neb. 485
    , 
    915 N.W.2d 71
    (2018).
    2
    State v. McGuire, 
    286 Neb. 494
    , 
    837 N.W.2d 767
    (2013).
    3
    State v. Hatfield, 
    304 Neb. 66
    , 
    933 N.W.2d 78
    (2019).
    4
    In re Application No. OP-0003, 
    303 Neb. 872
    , 
    932 N.W.2d 653
    (2019).
    5
    State v. Chairez, 
    302 Neb. 731
    , 
    924 N.W.2d 725
    (2019).
    6
    Id. - 258
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    articulated in Strickland v. Washington, 7 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision. 8
    [6] In reviewing claims of ineffective assistance of counsel
    on direct appeal, an appellate court decides only whether the
    undisputed facts contained within the record are sufficient to
    conclusively determine whether counsel did or did not provide
    effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance. 9
    V. ANALYSIS
    1. Double Jeopardy
    [7] We first address Sierra’s claim that he was charged with
    three counts of theft related to the tools taken from Extreme
    Automotive, in violation of the Double Jeopardy Clauses of
    the Nebraska and U.S. Constitutions. The protection granted by
    the Nebraska Constitution against double jeopardy is coexten-
    sive to the protection granted by the U.S. Constitution. 10 Both
    clauses are designed to protect against three distinct abuses: (1)
    a second prosecution for the same offense after acquittal, (2) a
    second prosecution for the same offense after conviction, and
    (3) multiple punishments for the same offense. 11
    [8] Though we have never been presented with a situation
    where the multiple items belonged to multiple people, we have
    held that an act of theft involving multiple items of property
    stolen simultaneously at the same place constitutes one offense,
    in which the value of the individual stolen items may be con-
    sidered collectively for the aggregate or total value of the prop-
    erty stolen to determine the grade of the theft offense under
    7
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
         (1984).
    8
    State v. Chairez, supra note 5.
    9
    Id. 10 See
    State v. Miner, 
    273 Neb. 837
    , 
    733 N.W.2d 891
    (2007).
    11
    See State v. Winkler, 
    266 Neb. 155
    , 
    663 N.W.2d 102
    (2003).
    - 259 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    Neb. Rev. Stat. § 28-518 (Reissue 2016). 12 Moreover, the crim-
    inal code forbids the amounts taken pursuant to one scheme or
    course of conduct from being aggregated into more than one
    offense. 13 This principle of considering theft of multiple items
    as one offense has been applied by a majority of jurisdictions,
    even when the property taken has more than one owner. 14 And
    we likewise hold that where a theft involves items taken from
    multiple owners at the same time and in the same place, such
    theft constitutes a single offense.
    Where the defendant is charged with and punished for mul-
    tiple offenses based on each stolen item taken simultaneously
    from the same place, the defendant is subjected to multiple
    punishments for the same offense, in violation of the prohibi-
    tion against double jeopardy. 15 The State concedes that Sierra
    was improperly charged, convicted, and punished in violation
    of the Double Jeopardy Clauses of the Nebraska and U.S.
    Constitutions. We accordingly find that charging and convicting
    Sierra with three separate offenses for theft by unlawful taking
    ($5,000 or more), each a Class IIA felony, violated the Double
    Jeopardy Clauses of the Nebraska and U.S. Constitutions and
    constituted plain error.
    [9] Plain error exists where there is an error, plainly evident
    from the record but not complained of at trial, which prejudi-
    cially affects a substantial right of a litigant and is of such a
    nature that to leave it uncorrected would cause a miscarriage of
    justice or result in damage to the integrity, reputation, and fair-
    ness of the judicial process. 16 Allowing three convictions for
    the same offense is a clear violation of both the Nebraska and
    12
    See State v. Garza, 
    241 Neb. 256
    , 
    487 N.W.2d 551
    (1992).
    13
    § 28-518(7).
    14
    See, State v. White, 
    348 Md. 179
    , 
    702 A.2d 1263
    (1997); People v. Dist.
    Ct., 
    192 Colo. 355
    , 
    559 P.2d 1106
    (1977). See, also, Annot., 
    37 A.L.R. 3d 1407
    (1971).
    15
    See State v. Miner, supra note 10.
    16
    Mays v. Midnite Dreams, supra note 1.
    - 260 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    U.S. Constitutions. Left uncorrected, this error would be a vio-
    lation of Sierra’s fundamental rights and damage the integrity
    of the judicial process. 17 The appropriate remedy for this plain
    error is to vacate two of the three convictions and sentences for
    theft by unlawful taking ($5,000 or more) that are based on the
    theft of the tools from Extreme Automotive. 18
    2. Exclusion of Witnesses
    We next address Sierra’s assignments of error concerning the
    court’s exclusion of defense witnesses who were not disclosed
    by his attorney until 5 days before trial. Sierra asserts that these
    witnesses would have provided alibi testimony and information
    attacking the credibility of Mally.
    (a) State’s Motion in Limine
    We find no merit to Sierra’s contention that the district court
    erred by granting the State’s motion in limine to exclude late-
    disclosed defense witnesses.
    A discovery stipulation was agreed to on February 12, 2018,
    which designated a deadline to provide all discovery informa-
    tion by March 5 or “as soon as it becomes reasonably discov-
    ered, but not less than ten days before trial.” At the hearing
    on the motion in limine, Sierra’s attorney’s only stated reason
    for not complying with the order was that the individuals the
    defense intended to call were named in the State’s reports and
    one was also included in the witness list attached to the State’s
    information filed in this matter.
    Neb. Rev. Stat. § 29-1912 (Reissue 2016) describes the
    types of information that are discoverable. Neb. Rev. Stat.
    § 29-1916 (Reissue 2016) provides the court discretion to
    grant reciprocal discovery. Neb. Rev. Stat. § 29-1919 (Reissue
    2016) specifies that when a party has failed to comply with
    17
    See Benton v. Maryland, 
    395 U.S. 784
    , 
    89 S. Ct. 2056
    , 
    23 L. Ed. 2d 707
         (1969).
    18
    See State v. Miner, supra note 10. See, also, State v. McHenry, 
    250 Neb. 614
    , 
    550 N.W.2d 364
    (1996).
    - 261 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    the discovery statutes, the court may (1) order such party to
    permit the discovery or inspection of materials not previously
    disclosed, (2) grant a continuance, (3) prohibit the party from
    calling a witness not disclosed or introducing in evidence
    the material not disclosed, or (4) enter such other order as it
    deems just under the circumstances. In the present case, the
    court prohibited Sierra from calling a witness or introducing
    evidence that had not been disclosed pursuant to the court’s
    discovery order.
    Nevertheless, Sierra argues that our holding in State v.
    Woods 19 relieved him of the burden to disclose witnesses
    because he did not request a witness list from the State. In
    Woods, we held that Neb. Rev. Stat. § 29-1927 (Reissue
    2016) does not require disclosure of alibi witnesses and that
    § 29-1916 (reciprocal discovery) applies only when the defend­
    ant requests “‘comparable items or information’” from the
    State. 20 However, the situation in Woods differs from the pres-
    ent case in two important ways.
    First, in Woods, the State waived the notice requirement
    for an alibi defense and so the issue on appeal was whether
    § 29-1919 required the filing of a witness list. Here, the State
    did not waive notice and filed a motion in limine to keep the
    alibi defense evidence from being admitted.
    Second, all of the witnesses in Woods were to be used to
    present alibi information. Sierra concedes that at least two of
    the witnesses excluded by the State’s motion in limine were
    intended to offer evidence impeaching Mally’s testimony and
    not an alibi defense.
    Thus, our holding in Woods does not shield Sierra from
    the trial court’s sanctions for failing to file a witness list. The
    court considered Sierra’s attorney’s failure to comply with
    the discovery order and applied an authorized remedy under
    § 29-1919.
    19
    See State v. Woods, 
    255 Neb. 755
    , 
    587 N.W.2d 122
    (1998).
    20
    See
    id. at 767,
    587 N.W.2d at 130 (quoting § 29-1916).
    - 262 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    We likewise find no merit to Sierra’s alternative argument
    that the use of the definite article in § 29-1919(3), giving the
    trial court discretion to prohibit a party from calling “a wit-
    ness,” limits the court’s remedy to excluding only one undis-
    closed witness. Sierra’s reading of § 29-1919 disregards our
    rules for construction and the interchangeability of singular and
    plural words. Neb. Rev. Stat. § 49-802 (Reissue 2010) specifies
    as follows:
    Unless such construction would be inconsistent with
    the manifest intent of the Legislature, rules for construc-
    tion of the statutes of Nebraska hereafter enacted shall be
    as follows:
    ....
    (6) Singular words may extend and be applied to sev-
    eral persons or things as well as to one person or thing.
    (7) Plural words may extend and be applied to one per-
    son or thing as well as to several persons or things.
    Under the plain meaning of § 29-1919, if a party fails to
    comply with discovery and give notice of an intent to call a
    witness, the court may prohibit that witness from being called.
    Nothing in § 29-1919 suggests that the remedy cannot be
    extended to prohibiting multiple witnesses.
    Lastly, Sierra contends that the court’s order granting the
    State’s motion in limine violated his constitutional right under
    the Sixth Amendment to have process to compel the attendance
    of witnesses on his behalf. The U.S. Supreme Court has estab-
    lished that the Sixth Amendment does not provide an absolute
    right to call witnesses; rather, the defendant’s right is weighed
    against the concerns of the state to have a fair and efficient
    administration of justice. 21 We have considered the same con-
    cerns when determining whether other discovery sanctions
    violate the Nebraska Constitution. 22 Sierra does not have an
    
    21 Taylor v
    . Illinois, 
    484 U.S. 400
    , 
    108 S. Ct. 646
    , 
    98 L. Ed. 2d 798
    (1988).
    22
    See, State v. Henderson, 
    289 Neb. 271
    , 
    854 N.W.2d 616
    (2014); State v.
    McMillion, 
    23 Neb. Ct. App. 687
    , 
    875 N.W.2d 877
    (2016).
    - 263 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    absolute right to present witnesses and evidence. The State’s
    interest in protecting itself against an 11th-hour defense is
    merely one component of the broader public interest in a full
    and truthful disclosure of critical facts. 23
    We find that the trial court did not abuse its discretion in
    granting the State’s motion in limine. Further, we conclude
    that the court’s ruling granting the State’s motion in limine
    did not violate Sierra’s constitutional rights under the Sixth
    Amendment.
    (b) Failure to Depose Witnesses, File Witness List,
    and Serve Notice of Alibi
    [10] In the alternative to Sierra’s challenge to the court’s rul-
    ing granting the State’s motion in limine, Sierra asserts that his
    attorney’s ineffective assistance of counsel led to that ruling.
    Sierra has new counsel on direct appeal. 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, in order to preserve
    such claim. 24
    [11-13] Once such issues are properly raised, the appellate
    court will determine whether the record on appeal is sufficient
    to review the merits of the ineffective performance claims. 25
    We have said that the fact that an ineffective assistance of
    counsel claim is raised on direct appeal does not necessarily
    mean that it can be resolved. 26 This is because the trial record
    reviewed on appeal is generally “‘“devoted to issues of guilt or
    innocence”’” and does not usually address issues of counsel’s
    performance. 27 The determining factor is whether the record is
    23
    See Taylor v. Illinois, supra note 21.
    24
    State v. Chairez, supra note 5.
    25
    Id. 26 Id.
    27
    Id. at 736,
    924 N.W.2d at 730.
    - 264 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    sufficient to adequately review the question. 28 An ineffective
    assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing. 29
    [14,15] To show deficient performance, a defendant must
    show that counsel’s performance did not equal that of a law-
    yer with ordinary training and skill in criminal law. 30 To show
    prejudice, the defendant must demonstrate a reasonable prob-
    ability that but for counsel’s deficient performance, the result
    of the proceeding would have been different. 31
    We cannot determine on the appellate record whether the
    witnesses the court prohibited from testifying would have in
    fact supported Sierra’s alibi defense and impeached Mally’s
    testimony. Without such information, we can determine neither
    deficiency nor prejudice. We find that the record is insufficient
    for us to address this claim on direct appeal.
    Sierra argues that his attorney’s “agreement” not to call
    his fiance was an additional act of ineffective assistance of
    counsel, separate from her failure to timely disclose defense
    witnesses. 32 We find it indistinguishable from the claim of
    ineffective assistance based on the failure to comply with the
    reciprocal discovery order. Based on the record, it appears
    Sierra’s attorney’s comments that Sierra characterizes as an
    “agreement” were merely a concession of the facts that the
    name of Sierra’s fiance did not appear in the State’s reports
    and that his attorney’s failure to file a separate witness list had
    precluded her from calling his fiance as a witness. Such com-
    ments were mere observations of undisputed facts and cannot
    constitute deficient performance. If the deficient performance
    occurred, it was in the failure to timely file the witness list, not
    the acknowledgment of the result of doing so.
    28
    State v. Chairez, supra note 5.
    29
    Id. 30 Id.
    31
    Id. 32 Brief
    for appellant at 35.
    - 265 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    (c) Failure to Request Continuance
    at Hearing on State’s
    Motion in Limine
    We find no merit to Sierra’s assertion that his attorney was
    ineffective for failing to request a continuance at the hearing on
    the State’s motion in limine. During the course of the hearing,
    the State had already raised the possibility of a continuance,
    as § 29-1919 lists a continuance as a possible remedy for an
    untimely witness list. The trial court was fully informed of the
    option to order a continuance and declined to do so. Sierra’s
    attorney was not deficient for failing to bring an optional
    remedy to the court’s attention that had already been raised
    moments earlier by the State.
    3. Lack of Communication With
    Sierra’s Attorney
    We turn next to Sierra’s assertions relating to his attorney’s
    more generalized failure to communicate with Sierra while
    preparing for trial.
    (a) Motion to Withdraw
    First, we find no merit to Sierra’s assertion that the district
    court abused its discretion in denying his attorney’s motion
    to withdraw. Appointed counsel must remain with an indigent
    accused unless one of the following occurs: (1) The accused
    knowingly, voluntarily, and intelligently waives the right to
    counsel and chooses to proceed pro se; (2) appointed counsel
    is incompetent; or (3) the accused chooses to retain private
    counsel. 33 We review the trial court’s decision on a motion to
    withdraw as counsel for an abuse of discretion. 34
    Sierra argues that the district court had an obligation to
    make a thorough inquiry concerning his attorney’s lack of
    preparation for the trial and that the court would have realized,
    through further inquiry, that trial counsel was incompetent.
    33
    State v. McGuire, supra note 2.
    34
    Id. - 266
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    However, the record indicates that the court investigated
    and addressed all of the specific examples of incompetency
    alleged by Sierra at the time of the hearing. At the hearing
    on the motion to withdraw, Sierra’s attorney indicated that
    the reason for the motion was a breakdown of the attorney-
    client relationship. Sierra indicated at the hearing that he
    had stopped speaking with his attorney and had tried to have
    his fiance and mother talk with her instead. Sierra’s attor-
    ney explained that she did not respond to calls by Sierra’s
    fiance and mother, because doing so would violate attorney-
    client privilege.
    The court heard each of Sierra’s complaints and determined
    they did not warrant the withdrawal of counsel. The facts
    demonstrated at the hearing do not indicate the district court
    abused its discretion in concluding that under the evidence
    presented, Sierra’s attorney was representing Sierra compe-
    tently. Therefore, we find no merit to Sierra’s assignment
    that the trial court erred in overruling his attorney’s motion
    to withdraw.
    (b) Ineffective Assistance
    Relatedly, Sierra raises on direct appeal that the break-
    down in communication with his attorney constituted inef-
    fective assistance of counsel. Sierra asserts that he met with
    his attorney only twice before trial. Sierra claims he pro-
    vided his attorney with information and names of potential
    witnesses at the first meeting. Sierra contends that at the
    second meeting, she took a personal call and then was in a
    hurry to leave. Sierra describes that he had more informa-
    tion that he was attempting to provide his attorney concern-
    ing his defense and that she did not consider that informa-
    tion because she was distracted during their second meeting.
    We find that the record is insufficient for us to address this
    claim on direct appeal. The nature and extent of meetings in
    preparation for trial between Sierra and his attorney are not
    in the record.
    - 267 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    4. Evidence of Tools Found in Sierra’s
    and Mally’s Possession
    We next address Sierra’s claims that various acts of defi-
    cient conduct by his attorney led to the admission at trial of
    prejudicial evidence of his and Mally’s possession of the sto-
    len tools.
    (a) Failure to Move to Suppress Search
    of Sierra’s Residence
    Sierra first argues that his attorney was ineffective by fail-
    ing to move to suppress all of the evidence obtained from the
    search of Sierra’s residence, on the ground that he did not
    consent to the search. The record indicates that Sierra’s home
    was searched without a warrant pursuant to a clause in his
    probation order. We have held that certain probation orders
    may contain conditions authorizing warrantless searches under
    specific circumstances when such orders comply with consti-
    tutional requirements and contribute to the rehabilitation of
    the offender. 35 Because the probation order and evidence of
    Sierra’s consent to the order are not in the record, we cannot
    determine whether failure to file the motion to suppress was
    deficient or prejudicial. We find that the record is insufficient
    for us to address this claim on direct appeal.
    (b) Failure to Move to Suppress Tools
    Found in Mally’s Possession
    as Unfairly Prejudicial
    Second, Sierra argues that evidence related to tools found
    in Mally’s possession was inadmissible under Neb. Rev. Stat.
    § 27-403 (Reissue 2016) and that his attorney was ineffec-
    tive in failing to object to the evidence on this ground. Sierra
    provides a specific list of exhibits and portions of testimony
    which reflect the fact that stolen tools were found in Mally’s
    possession and which Sierra asserts his attorney should have
    35
    See, U.S. v. Brown, 
    346 F.3d 808
    (8th Cir. 2003); State v. Morgan, 
    206 Neb. 818
    , 
    295 N.W.2d 285
    (1980).
    - 268 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    objected to as unfairly prejudicial under § 27-403. Sierra con-
    cedes that she objected to several of the exhibits in question
    as lacking foundation or as irrelevant under Neb. Rev. Stat.
    § 27-402 (Reissue 2016). In fact, the court sustained some of
    her objections to similar evidence.
    [16] To show prejudice under Strickland, it must be shown
    that a motion under § 27-403 should have resulted in the evi-
    dence in question’s being ruled inadmissible and that, without
    such evidence, there is a reasonable probability of a different
    outcome in the trial. 36 In the context of § 27-403, unfair preju-
    dice means an undue tendency to suggest a decision based on
    an improper basis. 37 Unfair prejudice speaks to the capacity of
    some concededly relevant evidence to lure the fact finder into
    declaring guilt on a ground different from proof specific to the
    offense charged, commonly on an emotional basis. 38
    When the State is prosecuting an individual for conspiracy
    to commit burglary, items found in the possession of a cocon-
    spirator are undoubtedly relevant to the crime charged. In
    fact, Sierra does not challenge on appeal the fact that the
    district court overruled his attorney’s relevancy objections to
    the evidence.
    Sierra makes the conclusory statement that admitting evi-
    dence of the tools found in Mally’s possession made it more
    difficult for the jury to weigh Sierra’s defense, but Sierra
    fails to articulate how this evidence could lead a jury to
    convict Sierra for an incorrect reason. Sierra’s defense was
    that he did not take part in the burglary, but bought the tools
    found in his possession from Mally. The fact that Mally had
    stolen tools in his home, which Sierra did not “purchase,”
    is not inconsistent with this defense. It is not deficient con-
    duct to fail to object on grounds that are likely to properly
    be overruled.
    36
    See, Strickland v. Washington, supra note 7; State v. Chairez, supra note 5.
    37
    State v. Hernandez, 
    299 Neb. 896
    , 
    911 N.W.2d 524
    (2018).
    38
    Id. - 269
    -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    We find no merit to Sierra’s contention that his attorney was
    ineffective for failing to object on § 27-403 grounds to evi-
    dence that stolen tools were found in Mally’s possession.
    5. Failure to Object to
    Identification Evidence
    Sierra asserts that his attorney was also ineffective by fail-
    ing to make the appropriate motions or objections concerning
    several pieces of identification evidence adduced during the
    testimony of Wolfe and Hanke. Sierra contends that his attor-
    ney was ineffective by failing to make hearsay, foundation, and
    Confrontation Clause objections, presumably to each part of
    the testimony and each exhibit specified.
    We find that Sierra has failed to sufficiently assign and
    argue any claim related to his attorney’s failure to object on
    Confrontation Clause grounds. The protections afforded by the
    Confrontation Clauses of the Nebraska and U.S. Constitutions
    overlap with the purposes and policies of the rules on hearsay.
    The Nebraska Evidence Rules provide that hearsay is generally
    inadmissible except as provided by these rules, by other rules
    adopted by the statutes of the State, or by the discovery rules
    of the Nebraska Supreme Court. 39 Where testimonial state-
    ments are at issue, the Confrontation Clause and the Nebraska
    Constitution demand that hearsay statements be admitted at
    trial only if the declarant is unavailable and there has been a
    prior opportunity for cross-examination; if the statements are
    nontestimonial, then no further Confrontation Clause analysis
    is required. 40
    While Sierra provides annotations to several large swaths of
    Wolfe’s and Hanke’s testimony, he fails to describe with any
    specificity even a single statement by either Wolfe or Hanke
    that he alleges to be testimonial. We will not scour the record
    to determine which portions of their testimony, or what portion
    39
    Neb. Rev. Stat. § 27-802 (Reissue 2016). See, also, Neb. Rev. Stat.
    §§ 27-801 through 27-806 (Reissue 2016).
    40
    See State v. Sorensen, 
    283 Neb. 932
    , 
    814 N.W.2d 371
    (2012).
    - 270 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    of the exhibits annotated to, Sierra contends were objectionable
    on Confrontation Clause grounds.
    We find that Sierra has failed to sufficiently argue his
    attorney’s deficient conduct as to the alleged failure to make
    Confrontation Clause objections. 41 An ineffective assistance
    of counsel claim is raised on direct appeal when allegations of
    deficient performance are made 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. 42 A claim insufficiently stated is no different
    than a claim not stated at all. 43
    (a) Photographic Exhibits and
    Identification Statements
    We next consider Sierra’s contention that his attorney should
    have raised both foundation and hearsay objections to portions
    of Wolfe’s and Hanke’s testimony identifying Sierra and Mally
    as the individuals depicted in the photographs contained in
    exhibits 1 and 23. Exhibit 1 consists of photographs provided
    by Wolfe to law enforcement after Mally was suspected of
    shoplifting from the York Walmart. During Wolfe’s testimony,
    the State authenticated, picture by picture, each photograph
    contained in exhibit 1. Exhibit 1 was received into evidence
    after the court overruled Sierra’s attorney’s foundation objec-
    tion. Exhibit 23 was entered into evidence based on the tes-
    timony provided by Mally. Sierra does not assign error to the
    admission of exhibits 1 and 23.
    The photographs in exhibit 1 depict a person exiting the
    York Walmart with Mally and then that person and Mally get-
    ting into separate vehicles in the parking lot. Wolfe identified
    41
    See State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017).
    42
    Id. 43 Id.
                                       - 271 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    the second individual as Sierra. Sierra argues that his attorney
    was ineffective for failing to move to strike Wolfe’s identifica-
    tion of Sierra after evidence was adduced on cross-examination
    that Wolfe identified Sierra based on reading his name in the
    newspaper after the incident. We do not have sufficient evi-
    dence on the record to determine deficiency or prejudice. We
    find that the record is insufficient to determine this claim on
    direct appeal.
    Similarly, we find the record is insufficient to determine
    Sierra’s assertion that his attorney was ineffective for failing to
    object on foundation and hearsay grounds to Hanke’s identifi-
    cation of Sierra in the photographs contained in exhibits 1 and
    23. Hanke admitted that he did not personally identify Sierra as
    the second person depicted in the photographs. Rather, Hanke
    testified that he received information from the Butler County
    sheriff identifying the second person in the photographs in
    exhibit 1 as Sierra. Hanke also testified that the photographs
    taken from the Norfolk Walmart, exhibit 23, depicted Sierra
    and Mally.
    Although Hanke lacked personal knowledge and his state-
    ment relaying information from the Butler County sheriff was
    inadmissible hearsay, 44 we do not have information in the record
    concerning Sierra’s attorney’s trial strategy. Furthermore, we
    do not know what theories of prejudice Sierra is alleging relat-
    ing to this claim because an appellant is only required to allege
    deficient conduct on direct appeal. 45 Accordingly, we find the
    record is insufficient to resolve this claim on direct appeal.
    (b) Testimony About Search of Sierra’s
    Residence, Location of Trailer,
    and Cell Phone Records
    Sierra asserts that his attorney missed objections to three
    other portions of Hanke’s testimony on foundation and hearsay
    44
    See §§ 27-801 and 27-803(23).
    45
    See, State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014); State v.
    Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    - 272 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    grounds. Sierra contends that had she made the proper objec-
    tions, the court would have sustained the objections, which
    would have prevented the admission of several pieces of preju-
    dicial evidence, unless the State called the proper witnesses to
    adduce the evidence. Sierra identifies the testimony at issue
    as statements about the location of the recovered trailer, tes-
    timony related to the search of his residence, and cell phone
    location data retrieved from a search warrant. Sierra argues
    that assuming the State would not have called additional wit-
    nesses to present such evidence, if Sierra’s attorney had made
    objections that would have been sustained, there would have
    been a void in the circumstantial evidence significant enough
    to raise a reasonable doubt as to whether he committed the
    crimes charged.
    (i) Trailer
    Hanke testified as to the location of the trailer without
    specifying who recovered the trailer and whether he had per-
    sonal knowledge of its recovery. We cannot determine whether
    either a hearsay or a foundation objection would have had
    merit without knowing whether Hanke had personal knowl-
    edge of the trailer’s recovery. That information is not in the
    trial record. Without being able to determine whether either
    objection had merit, we cannot determine on direct appeal
    whether Sierra’s attorney’s failure to object was deficient and
    whether Sierra was prejudiced by deficient conduct. Thus,
    we find the record is insufficient to resolve this claim on
    direct appeal.
    (ii) Tools Found in Sierra’s Residence
    Evidence of the physical tools and photographs of tools
    recovered from Sierra’s residence were admitted based upon
    Hanke’s testimony despite the fact that Hanke did not take
    part in the search of Sierra’s residence. Sierra argues that his
    attorney was ineffective for failing to object on foundation and
    hearsay grounds to this evidence, found in exhibits 3 and 14.
    However, she objected to the admission of exhibit 3.
    - 273 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    Exhibit 3 was a series of photographs of items taken from
    Extreme Automotive and recovered during the search of Sierra’s
    residence. Sierra’s attorney objected to exhibit 3 on foundation
    and, after a clarification from the State, made a second objec-
    tion on relevancy that was overruled. Sierra does not assign
    error to the trial court’s rulings on any of these objections.
    Sierra’s attorney did not object to exhibit 14. The record does
    not reveal any grounds that would have warranted an objection
    to exhibit 14. The record demonstrates Sierra’s attorney repeat-
    edly made the appropriate hearsay and foundation objections
    to the evidence at issue. Thus, we find no deficient conduct by
    her related to Hanke’s testimony about items recovered from
    the search of Sierra’s residence.
    (iii) Cell Phone Records
    Hanke was the sole source for the content of the cell phone
    records. Hanke testified that he obtained a search warrant for
    the records and that those records indicated Sierra was in York
    on October 15, 2017. Neither the warrant nor the records are
    in evidence, and no cell phone company represetnative testified
    as to the authenticity of the records provided. Sierra’s attorney
    made no objections to this testimony, and Sierra asserts that
    this constituted ineffective assistance of counsel.
    Hanke’s testimony about the contents of the cell phone
    records very well may have violated evidence rules for foun-
    dation and hearsay. 46 Although Sierra’s attorney’s failure to
    object on these grounds may qualify as deficient conduct, we
    cannot make that determination without information about her
    trial strategy, which is not contained in the appellate record.
    Moreover, we decline to speculate on direct appeal about
    whether the State would have called additional witnesses to
    authenticate the records if she had made the objections and
    they had been sustained. Thus, we find the record is insuffi-
    cient to resolve this claim on direct appeal.
    46
    See § 27-802 and Neb. Rev. Stat. § 27-901 (Reissue 2016).
    - 274 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    6. Failure to Object to “Proffer
    Interview” Evidence
    Sierra contends that his attorney was also ineffective for
    failing to object to Hanke’s testimony about Sierra’s statements
    made during a “proffer interview.” Hanke testified to a second
    interview that occurred with Sierra where Sierra admitted to
    being in York. No information appears in the record about the
    nature of this second interview. The term “proffer interview” is
    one way of describing interviews that occur in order to arrive
    at a negotiated plea in exchange for a defendant’s cooperation;
    this is also referred to as “plea negotiations” 47 or, in federal
    cases, as “‘cooperation-immunity agreements.’” 48
    Typically, “proffer interviews” involve some sort of agree-
    ment. The interpretation of such an agreement is governed by
    general contract principles, and an alleged violation by the
    State of the agreement implicates the due process rights of
    the defendant. 49 The record does not contain any information
    about any alleged agreements between the State and Sierra
    prior to the interview. Thus, the record is insufficient to deter-
    mine this claim on direct appeal.
    7. Failure to Request Accomplice
    Jury Instruction
    Having addressed all of Sierra’s arguments concerning the
    evidence adduced at trial, we now turn to the jury instruc-
    tions. Sierra argues his attorney was ineffective because she
    failed to request a cautionary jury instruction on accomplice
    testimony. Sierra claims that she should have requested an
    instruction, patterned from NJI2d Crim 5.6, which would
    have read:
    “There has been testimony from . . . Mally, a claimed
    accomplice of [Sierra]. You should closely examine his
    47
    See State v. McGee, 
    282 Neb. 387
    , 395, 
    803 N.W.2d 497
    , 505 (2011).
    48
    See United States v. Brown, 
    801 F.2d 352
    , 354 (8th Cir. 1986).
    49
    See State v. Wacker, 
    268 Neb. 787
    , 
    688 N.W.2d 357
    (2004).
    - 275 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    testimony for any possible motive he might have to tes-
    tify falsely. You should hesitate to convict [Sierra] if you
    decide that . . . Mally testified falsely about an important
    matter and that there is no other evidence to support his
    testimony. In any event, you should convict [Sierra] only
    if the evidence satisfies you beyond a reasonable doubt of
    his guilt.” 50
    Whether Sierra’s attorney was deficient for not requesting
    an instruction on accomplice testimony depends in part on
    whether such an instruction was warranted.
    [17,18] A defendant is clearly entitled to a cautionary
    instruction on the weight and credibility to be given to the tes-
    timony of an alleged accomplice, and the failure to give such
    an instruction, when requested, is reversible error. 51 We have
    held that whenever a judge decides that the evidence supports
    a conclusion that a witness is an accomplice and the defendant
    requests a cautionary instruction, the instruction is appropriate
    and should be given. 52 This is because any alleged accomplice
    testimony should be examined more closely by the trier of fact
    for any possible motive that the accomplice might have to tes-
    tify falsely. 53
    There is evidence on the record to indicate Mally was an
    accomplice. Sierra’s attorney adduced evidence on cross-
    examination of the benefits he was receiving from the State in
    exchange for his testimony, and Mally’s plea deal was entered
    into evidence. If she had requested a cautionary instruction on
    accomplice testimony, the instruction should have been given.
    It is unclear on the trial record why Sierra’s attorney did not
    request such an instruction, but we cannot say on the record
    before us that the failure to request a cautionary instruction
    50
    Brief for appellant at 45.
    51
    See State v. Sellers, 
    279 Neb. 220
    , 
    777 N.W.2d 779
    (2010).
    52
    See
    id. 53 Id.
                                        - 276 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    on accomplice testimony was deficient and prejudicial under
    Strickland. 54 Thus, we find that the record is insufficient for
    us to address this claim on direct appeal.
    8. Failure to Maintain
    Adequate Record
    Sierra generally contends that his attorney was ineffective
    for not maintaining a record of certain portions of the trial.
    This contention rests on the idea that there could have been
    potential due process violations during these parts of the trial.
    The portions that went unrecorded included voir dire, clos-
    ing arguments, and the reading of the instructions to the jury.
    Without a sufficient record, Sierra argues that he is foreclosed
    from assigning such violations as errors on appeal. Sierra
    does not elaborate on what the alleged violations were, except
    as to the error related to the accomplice jury instruction dis-
    cussed above.
    We have long held that both parties can waive the creation
    of the record for nonevidentiary proceedings. 55 The burden
    to create the trial record is on the trial court; however, this
    burden only extends to the evidence offered at trial and other
    evidentiary proceedings, and it may be waived for noneviden-
    tiary proceedings. 56 None of the proceedings omitted from the
    record involved the presentation of evidence at trial.
    [19] Raising a claim of ineffective assistance based on
    the mere conjecture that something inappropriate may have
    occurred during these proceedings is not enough. Sierra was
    present during each part of the trial, including those portions
    not on the record. Thus, he has knowledge of what occurred
    and was free to assign on appeal any specific claims of defi-
    ciency by his attorney during the proceedings not on the
    54
    See Strickland v. Washington, supra note 7.
    55
    See Gerdes v. Klindt’s, Inc., 
    247 Neb. 138
    , 
    525 N.W.2d 219
    (1995).
    56
    See, id.; Lockenour v. Sculley, 
    8 Neb. Ct. App. 254
    , 
    592 N.W.2d 161
    (1999).
    See, also, Neb. Ct. R. App. P. § 2-105(A)(2) (rev. 2018).
    - 277 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    record. When recordation of parts of a trial is not made man-
    datory by the rules, the failure to request recordation cannot
    be said, ipso facto, to constitute negligence or inadequacy of
    counsel. 57 When the defendant was present but does not allege
    what specific deficient conduct was not recorded, the defendant
    fails to allege with sufficient specificity how trial counsel was
    deficient by simply alleging that counsel waived creation of a
    trial record for nonevidentiary proceedings. 58
    Other than the allegation relating to the accomplice jury
    instruction, Sierra has not assigned any specific allegations of
    deficient conduct; nor has he made any specific arguments,
    related to voir dire or closing arguments. We do not address
    those claims alleging simply that the failure to create a trial
    record, in itself, constituted ineffective assistance.
    Sierra has alleged specifically deficient conduct pertaining
    to the jury instructions. However, the assignment of ineffec-
    tive assistance is unrelated to the reading of the jury instruc-
    tions. Rather, Sierra alleges the deficient conduct was in the
    failure to request that the giving of the jury instructions be
    recorded.
    Counsel is not required to request a record of the reading of
    the jury instructions, because instructions to the jury, whether
    given or refused, when filed in a cause, are a part of the record
    and need not be embodied in the bill of exceptions. 59 Thus, an
    ineffective assistance claim asserting deficient conduct based
    on a failure to request that a record be made of the reading of
    the jury instructions would need to specifically allege that trial
    counsel was deficient in conduct during the reading of the jury
    instructions. Sierra has failed to specify deficient conduct by
    his trial counsel during the reading of the jury instructions. We
    find this claim to be without merit.
    57
    State v. Jones, 
    246 Neb. 673
    , 
    522 N.W.2d 414
    (1994).
    58
    See, State v. Alarcon-Chavez, 
    295 Neb. 1014
    , 
    893 N.W.2d 706
    (2017);
    State v. Jones, supra note 57.
    59
    See Bennett v. McDonald, 
    52 Neb. 278
    , 
    72 N.W. 268
    (1897).
    - 278 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. SIERRA
    Cite as 
    305 Neb. 249
    9. Failure to Maintain Law License and
    Appropriate Moral Standing
    Lastly, Sierra claims that his attorney’s failure to maintain
    her law license and the investigation into her criminal conduct
    rendered his attorney per se ineffective. There is no evidence
    in the record concerning Sierra’s attorney’s personal conduct
    or any potential conflict of interest. At the original sentenc-
    ing hearing, she made a motion to withdraw, it was granted,
    and the trial court gave a newly appointed public defender
    additional time to prepare for sentencing. No further details
    are provided. We find that the record is insufficient for us to
    address this claim on direct appeal.
    VI. CONCLUSION
    For the foregoing reasons, we vacate Sierra’s convictions
    and sentences pursuant to counts III and IV of the State’s
    amended information, which each asserted a separate offense
    of theft by unlawful taking ($5,000 or more). Furthermore, we
    find that the district court did not abuse its discretion in deny-
    ing the motion to withdraw and in granting the State’s motion
    in limine. We find the claims of ineffective assistance of coun-
    sel for agreeing not to call Sierra’s fiance as a witness, failure
    to request a continuance, failure to exclude evidence found in
    Mally’s possession, and failure to object to Hanke’s testimony
    about evidence found at Sierra’s residence to be without merit.
    We find the claim of ineffective assistance of counsel for fail-
    ure to maintain a sufficient record of voir dire, closing argu-
    ments, and jury instructions to be insufficiently stated. We find
    the record is insufficient to address the remaining ineffective
    assistance of counsel claims on direct appeal.
    Affirmed in part, and in part vacated.