S-18-0979 State of Nebraska (Appellee) v. Anthony J. Garcia (Appellant)
Appeal from the District Court for Douglas County, Judge Gary B. Randall
Attorneys: Jeffery A. Pickens, Todd W. Lancaster (Nebraska Commission for Public Advocacy for Appellant) and James D. Smith (Attorney General’s Office for Appellee).
Criminal: Murder in the First Degree, Use of a Deadly Weapon to Commit a Felony, Attempted Burglary, and Capital Punishment.
Proceedings below: A jury found Appellant guilty of four (4) counts of use of a deadly weapon to commit a felony, attempted burglary, and four (4) counts of murder in the first degree, for which he was sentenced to four (4) death sentences for each of the murder in the first degree conviction, to not less than nineteen (19) years and not more than twenty (20) years imprisonment on two of the use of a deadly weapon to commit a felony convictions, to not less than forty-nine (49) years and not more than fifty (50) years imprisonment on the other two convictions for use of a deadly weapon to commit a felony, and not less than twenty (20) months and not more than five (5) years imprisonment for the attempted burglary conviction. Capital punishment cases are automatic and direct appeals to the Nebraska Supreme Court.
Issues: Appellant makes the following one-hundred-thirty (130) assignments of error: 1) The trial court erred by overruling Garcia’s Motion to Suppress Evidence derived from Garcia’s warrantless stop and arrest in Illinois because the arresting officer had no knowledge of the facts justifying Garcia’s arrest and the collective knowledge doctrine does not apply in these circumstances. Failure to suppress the evidence violated Garcia’s rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 7, 3 and 11 of the Nebraska Constitution; 2) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth, Fourth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 7 and 11 of the Nebraska Constitution, to the extent that they failed to preserve Garcia’s suppression arguments by failing to object to the receipt of evidence obtained from the stop; 3) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth, Fourth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 7 and 11 of the Nebraska Constitution, to the extent that they failed to preserve Garcia’s suppression arguments by failing to object to the receipt of evidence obtained from the remaining warrants; 4) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth, Fourth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 7, and 11 of the Nebraska Constitution, by not arguing the State failed to carry its burden regarding the sufficiency of the warrants by omitting proof of the May 25, 2013, warrant upon which subsequent warrants are premised; 5) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth, Fourth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 7, and 11 of the Nebraska Constitution, to the extent that they failed to preserve Garcia’s suppression arguments by failing to properly assert/ prove the allegations relating to their Franks v. Delaware Motion; 6) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to adequately prepare for, make, and preserve objections to documents seized from Garcia’s homes and car; 7) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by waiving any objections to the receipt of the LSU bag and its contents under Neb. Rev. Stat. §§ 27-403 and 27-404; 8) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to submit a brief regarding their Motion in Limine despite the court’s request; 9) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to adequately prepare for, make, and preserve objections to records and testimony relating to Garcia’s behavior as a resident; 10) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by stipulating to the admissibility of records and testimony relating to Garcia’s behavior as a resident under Neb. Rev. Stat. § 27-803(5); 11) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to argue that the State’s Motion in Limine was time-barred in light of the court’s January 28, 2016, Order; 12) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to request jury instructions clarifying the limited purpose for which various documents from Garcia’s home and car were admitted; 13) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to request jury instructions clarifying the limited purpose for which Garcia’s employment records and employment history were admitted; 14) The trial court erred by not granting a mistrial based on prosecutorial misconduct when the State defied the trial court’s order not to discuss Alison Mottas’ recorded phone conversation with Cecilia Hoffman; 15) The trial court erred by not allowing Junior to play portions of the recorded interview between defense investigator Steve Yahnke and Cecilia Hoffman to impeach her testimony that she was terrified of him; 16) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by engaging in behavior at least closely akin to tampering with witness Cecilia Hoffman; 17) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to adequately prepare for Cecilia Hoffman’s trial testimony, including failing to file and preserve Motions in Limine to exclude testimony relating to the witness tampering allegations; 18) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to object when Beadle repeated a question after an objection was sustained, when Beadle prematurely rehabilitated Hoffman and when Beadle had Hoffman testify to a prior consistent statement before the Appellant impugned her motive to fabricate; 19) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to call other exotic dancers to testify who would attest that OPD used leading interview techniques to try to persuade them to say that Garcia confessed to killing “an Old Lady and a Little Kid;” 20) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to make an offer of proof of the recorded interview so that the court’s failure to admit the recording could be reviewed on direct appeal; 21) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to re-offer the recorded interview between Yahnke and Hoffman to impeach her during their own case; 22) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to call Alison Motta & Steve Yahnke to testify to provide context/ impeach Cecilia Hoffman’s testimony that she was threatened because they forgot to sequester them; 23) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to call Alison Motta & Steve Yahnke to impeach Cecilia Hoffman’s testimony that she was threatened and intimidated by the Mottas to change her testimony because of a conflict of interest; 24) The district court erred by not inquiring about the actual conflict of interest presented when his defense team continued as counsel following witness tampering allegations; 25) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to object to the trial court allowing the State to impute consciousness of guilt/ the weakness of the case from the Mottas to Garcia; 26) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to withdraw as defense counsel following witness tampering allegations; 27) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to consult with Garcia about the implications of the witness tampering allegations; 28) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to pursue plea negotiations wherein Garcia could testify against Alison and/ or Yahnke regarding witness tampering in exchange for leniency in his case; 29) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by prioritizing publicity for their firm and their own reputations over concern for Appellant’s right to a fair trial by soliciting news outlets to cover the case despite the risk of invited error; 30) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to secure Garcia’s consent and a waiver of confidentiality and privilege before participating in the DATELINE Special about his case; 31) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by pursuing interlocutory appeals contrary to Garcia’s wishes; 32) Alison Motta provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by filing an appeal in Garcia’s case on her own behalf after her pro hac vice status was not renewed; 33) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by supplanting their own judgement for his when Garcia disagreed about pursuing interlocutory appeals; 34) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by not withdrawing as defense counsel when Garcia stopped talking to them after they pursued interlocutory appeals contrary to Garcia’s wishes; 35) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to consult with Garcia about the implications of pursuing interlocutory appeals against Garcia’s wishes; 36) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by ignoring their client’s expressed desire not to pursue interlocutory appeals in favor of listening to his brother, Fernando, who, along with Garcia’s parents paid for their services; 37) The district court erred by not inquiring about the actual conflict of interest presented when Garcia’s defense team continued as counsel after filing interlocutory appeals against Garcia’s wishes; 38) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by wasting money on unqualified experts; 39) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by appealing the trial court’s appointment of the Nebraska Commission on Public Advocacy out of a desire to remain in the case in order to prevent ineffective assistance of counsel critiques; 40) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by appealing the trial court’s appointment of the Nebraska Commission on Public Advocacy to remain in the case in order to maintain leverage to seek reimbursement from the court for outstanding trial expenses; 41) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by appealing the trial court’s appointment of the Nebraska Commission on Public Advocacy to remain in the case in order to continue to use Garcia’s case as a vehicle to challenge Alison’s censure; 42) The trial court erred in finding the 2008 and 2013 homicides were properly joined under Neb. Rev. Stat. § 29-2002; 43) The trial court erred in concluding as part of its ruling on the Motion to Sever that a hearing under Neb. Rev. Stat. § 27-404 was unnecessary. Doing so violated his rights under the statute and the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 3 and 11 of the Nebraska Constitution; 44) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by submitting inadequate evidence to support the prejudice prong of their Motion to Sever; 45) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to request a jury instruction that the jury was to keep the charges separate & come to a separate decision regarding each charge; 46) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to request a jury instruction that jury was to not consider Garcia’s purported admission in the 2008 murders when considering the 2013 Charges; 47) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by presenting expert testimony regarding joinder when the issue is best determined by the fact finder; 48) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by stipulating to the foundation and report of the State’s expert, Tom Bevel; 49) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the 13 Nebraska Constitution, by introducing evidence regarding aggravating circumstances through an unnecessary expert; 50) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to vet the unnecessary expert presented as part of a Motion to Sever; 51) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by submitting inadequate evidence to support their Motion to Change Venue; 52) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by applying the wrong standard when selecting evidence to support their Motion to Change Venue; 53) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to thoroughly investigate the jurors’ media exposure and biases through background investigation, individual voir dire, and supplemental jury questionnaires; 54) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by passing the jury for cause; 55) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by soliciting news coverage regarding the case insofar as doing so waived/ undermined Appellant’s change of venue argument; 56) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11of the Nebraska Constitution, by submitting inadequate evidence to support their Motion to Sequester the jury during trial; 57) Trial court failed to take adequate steps to prevent outside influence during the evidentiary portion of the trial in violation of Neb. Rev. Stat. § 29-2022, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, §§ 3 and 11 of the Nebraska Constitution; 58) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to insist on further inquiry about juror misconduct Jorgenson reported and failing to move for mistrial; 59) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by entering the jury room during the trial; 60) The district court committed plain error by finding Garcia competent to stand trial despite knowing that Garcia stopped communicating with counsel when Jorgenson pursued the interlocutory appeal against Garcia’s wishes. Thus, Garcia was not competent at the time of the trial rendering the proceedings fundamentally unfair and compromising his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, sections 3, 11, 13, and 15 of the Nebraska Constitution; 61) The district court violated Garcia’s procedural and substantive due process rights by not conducting a full hearing including an independent evaluation before finding him competent the third time. Failure to do so violated his Fifth and Fourteenth Amendments Rights under the United States Constitution and Article 1, sections 3, 11 , 13, and 15 of the Nebraska Constitution; 62) The district court erred by not granting Garcia a new trial sua sponte when evidence showed Garcia was not competent to stand trial because Garcia stopped communicating with counsel after Jorgenson filed the interlocutory appeal against Garcia’s wishes in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, sections 3, 11 , 13, and 15 of the Nebraska Constitution; 63) The district court committed plain error by refusing to re-evaluate Garcia’s competence to stand trial when Jorgenson filed the interlocutory appeal against Garcia’s wishes and defended it on the basis of diminished capacity. Doing so violated Garcia’s rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, sections 3, 11, 13, and 15 of the Nebraska Constitution; 64) The district court erred by not directly inquiring of Garcia when Alison continued to raise the issue of Garcia’s ongoing symptoms. Failure to do so violated his Fifth and Fourteenth Amendments Rights under the United States Constitution and Article 1, sections 11 , 13, and 15 of the Nebraska Constitution; 65) The district court erred by not ordering another competency evaluation or conducting another competency determination after hearing the mitigating evidence regarding Garcia’s long history of psychological treatment in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, sections 3, 11 , 13, and 15 of the Nebraska Constitution; 66) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to raise the issue of Garcia’s competence at the time of the second competency evaluation; 67) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by not asking for a third competency evaluation when Garcia stopped communicating with counsel; 68) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to object to Hartmann’s third competency evaluation or insist on a continuance to review it before the hearing; 69) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by unintentionally waiving Garcia’s attorney-client privilege in providing letters to Dr. Peterson to rely upon in forming his opinion; 70) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by not researching the intersection of attorney-client privilege and competency as it relates to the strange letters Garcia wrote to counsel; 71) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by its handling of Garcia’s “diminished capacity” because in doing so, the defense lost credibility with the trial court and caused the trial court to view subsequent efforts to challenge Garcia’s psychological condition as nothing more than a “tactic”; 72) Trial counsel provided ineffective assistance of Counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by insufficiently preparing for Garcia’s competency hearings; 73) Trial counsel provided ineffective assistance of counsel in violation of The Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to inform the Court at the point in time when Garcia stopped communicating with them; 74) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by submitting inadequate evidence to support their motion regarding Brady violations; 75) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the 18 Nebraska Constitution, by failing to adequately document the discovery process in order to preserve Garcia’s allegations regarding the State’s Brady and discovery violations; 76) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to fully cooperate with successor counsel and provide a complete copy of the client’s file and the discovery received; 77) The trial court erred by proceeding with a significant evidentiary hearing telephonically without Garcia present and without explicit consent of the Appellant in violation of Neb Rev. Stat. § 24-303(2), and Garcia’s right to be present and right to a public trial under the Nebraska Constitution and United States Constitution; 78) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by proceeding with a significant evidentiary hearing telephonically and without Garcia present, in violation of Neb Rev. Stat. § 24-303(2), and Garcia’s right to be present and right to public proceedings under the Nebraska Constitution and United States Constitution; 79) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to discuss the State’s plea offer with Garcia; 80) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to discuss with Garcia his right to testify; 81) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to prepare adequately for trial; 82) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution and failing to explain to Garcia his options regarding an insanity defense; 83) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to explain to Garcia the potential problems regarding the evidence in his case; 84) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to investigate and effectively present evidence of alternate suspects/ responsible third parties; 85) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to effectively cross-examine the Dundee identification witnesses; 86) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by pressuring him to waive speedy trial; 87) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to challenge the admissibility of the State’s DNA evidence as derived from unreliable methodology under Daubert v. Merrell Dow Pharmaceuticals, supra; 88) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to adequately cross-examine and prepare to cross-examine the State’s DNA expert during pretrial hearings; 89) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to effectively cross-examine the State’s DNA experts during pretrial hearings; 90) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to present DNA expert testimony during pretrial hearings regarding the unreliability of suspect-centric mixture analysis; 91) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to effectively cross-examine the State’s DNA expert at trial regarding the use of and unreliability of suspect-centric mixture analysis; 92) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the 21 Nebraska Constitution, by failing to present DNA expert testimony at trial regarding the unreliability of suspect-centric mixture analysis; 93) Trial counsel provided ineffective assistance of counsel in violation of The Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to adequately prepare, understand, and cross-examine the trial witnesses relating DNA; 94) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by stipulating at a Daubert hearing to the credentials of the State’s DNA expert, Melissa Helligso; 95) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by retaining an unqualified digital forensic expert; 96) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to research and adequately prepare to cross-examine the State’s digital forensic expert; 97) The State committed prosecutorial misconduct in closing arguments which this Court should reach on plain error, depriving Garcia of his right to a fair trial in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution; 98) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11of the Nebraska Constitution, by failing to request a mistrial in response to inappropriate comments made by the State in closing argument; 99) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by arguably inviting inappropriate comments made by the State in closing argument; 100) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to research and abide by Nebraska law regarding inappropriate closing arguments; 101) Trial counsel provided ineffective assistance of counsel in violation of The Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to submit an alibi instruction; 102) The presiding judge erred in instructing the jury regarding various aggravating circumstances in violation of Neb. Rev. Stat. § 29-2523(1) (Supp. 2017), the Sixth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 9,11, 13, and 15 of the Nebraska Constitution; 103) The presiding judge erred by not granting the Commission’s Motion to Correct the aggravators prior to mitigation and weighing; doing so violated Neb. Rev. Stat. § 29-2523(1) (Supp. 2017), the Eighth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I, sections 9,11, 13, and 15 of the Nebraska Constitution; 104) The sentencing panel erred in considering various aggravating circumstances in violation of Neb. Rev. Stat. § 29-2523(1) (Supp. 2017), the Eighth, Fifth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 9,11, 13, and 15 of the Nebraska Constitution; 105) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to request jury instructions specifying the other crime committed under Neb. Rev. Stat. § 29-2523(1)(b); 106) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to request jury instructions relating to overlap under Williams and Stewart; 107) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to object to the State’s argument that the order of the Brumback killings didn’t matter; 108) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to object to the State’s argument that the victim’s suffered mental anguish; 109) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by arguing in closing only that jurors should look to their religions; 110) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, by failing to research Nebraska’s system of capital punishment and acquaint themselves with the aggravating circumstances alleged prior to the aggravation hearing; 111) The sentencing panel erred in not finding and affording more weight to various mitigating circumstances in violation of Neb. Rev. Stat. § 29-2523(1) (Supp. 2017) and the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article 1, sections 9,11, 13, and 15 of the Nebraska Constitution; 112) Trial counsel provided ineffective assistance of counsel in violation of the Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to research and gather mitigating evidence from the outset of the case as recommended by ABA Guidelines; 113) Trial counsel provided ineffective assistance of counsel in violation of The Sixth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, §3 of the Nebraska Constitution, by failing to facilitate the work of successor counsel as recommended by ABA Guidelines; 114) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as arbitrarily and capriciously administered in light of geographical discrepancies. Doing so violated Furman v. Georgia, Parker v. Dugger, and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3, 9, and 11 of the Nebraska Constitution; 115) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as violating Hurst v. Florida, 577 U.S. 92 (2016), insofar as Nebraska’s statutes prohibit the jury from assigning weight to aggravating circumstances. Doing so violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3,9, and 11 of the Nebraska Constitution; 116) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as violating Hurst v. Florida, supra, insofar as Nebraska’s statutes prohibit presenting mitigating evidence to the jury. Doing so violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 3, 9, and 11 of the Nebraska Constitution; 117) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as violating Hurst v. Florida, supra, insofar as Nebraska’s statutes do not allow a jury to make the life or death determination. Doing so violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3, 9, and 11 of the Nebraska Constitution; 118) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as violating United States v. Jackson, insofar as Nebraska’s statutes discourage defendants from exercising their right to jury determination of aggravators because the three-judge panel is required to make written unanimous findings of fact explaining the basis for their decision, but juries are not. Doing so violates the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3, 9, and 11 of the Nebraska Constitution; 119) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as racially and geographically discriminatory in violation of Furman v. Georgia, both the equal protection clause and due process clause, as well as the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3, 9, and 11 of the Nebraska Constitution; 120) The presiding judge erred by not finding that Neb. Rev. Stat. § 83-965 (Reissue 2014) improperly delegates a legislative function to the executive branch in violation of Neb. Const. Art II, § 1; 121) The presiding judge erred by not finding that Nebraska’s January 27, 2017, lethal injection protocols violate Garcia’s rights under the Administrative Procedures Act, Neb. Rev. Stat §§ 84-901 et seq. and his rights under Eighth, Sixth and Fourteenth Amendments to the United States Constitution, and Article I, sections 1, 3, 9, and 11 and Article II, § 1 of the Nebraska Constitution; 122) The presiding judge erred by not granting the Commission’s Motion to Find the Death Penalty Unconstitutional as violating evolving standards of decency. Doing so violated the Eighth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I, sections 9, 11, 13, and 15 of the Nebraska Constitution; 123) The presiding judge erred by not granting the Commission’s Motion to Preclude Imposition of a Death Sentence in light of referendum violations. Doing so violated Neb. Rev. 27 Stat. § 32-1405(1) (Reissue 2016) and Article II, section 1 of the Nebraska Constitution; 124) The presiding judge erred by not granting the Commission’s Motion to Exclude victim impact statements that request a specific outcome or that characterize the crime or Appellant. Doing so violated the Eighth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I, sections 9, 11, 13, and 15 of the Nebraska Constitution; 125) The sentencing panel erred in not finding the statutory and non-statutory mitigators approached or exceeded the weight of the aggravators and in so doing violated Garcia’s rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 9, and 15 of the Nebraska Constitution; 126) The sentencing panel erred in finding that a death sentence was proportional in this circumstance and in so doing, violated Garcia’s rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 9, and 15 of the Nebraska Constitution; 127) The sentencing panel erred when conducting its proportionality analysis by only considering First Degree Murders that resulted death sentences. Doing violated Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2018) and Garcia’s rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 9, and 15 of the Nebraska Constitution; 128) The sentencing panel erred by itself balancing the aggravating circumstances against the mitigating circumstances and concluding that Garcia’s case merits death when compared to similar cases because doing so violates Garcia’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3, 9, 11, and 15 of the Nebraska Constitution under Hurst v. Florida, supra; 129) The cumulative effect of trial counsel’s deficient performance/ ineffective assistance of counsel constructively denied the assistance of counsel, violating Garcia’s Sixth Amendment right to counsel and right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 3 and 11 of the Nebraska Constitution; 130) This Court should follow the lead of the United States Supreme Court, the majority of circuit courts, and majority of States in abandoning the judicial adoption of the procedural default rule wherein a party cannot raise an issue in a postconviction motion if he or she could have raised that same issue on direct appeal.