S-18-0665 State of Nebraska (Appellee) v. Brandon J. Weathers (Appellant)
Douglas County, Judge Russel Derr
Attorneys: Douglas Peterson & Austin N. Relph (Attorney General’s office); Michael J. Wilson (Schaefer Shapiro, LLP) (Appellant)
Criminal: First degree sexual assault, four counts; ineffective assistance
Proceedings Below: Following a jury trial, Appellant was convicted and sentenced to four consecutive sentences of 40 to 50 years.
Issues: 1) Trial counsel provided prejudicial ineffective assistance by failing to object and renew Appellant’s motion to suppress at trial because: (a) the illegal 2014 investigatory comparison violated both § 29-4126 and Appellant’s constitutional rights; and (b) had trial counsel made the objections, they would have either been sustained or resulted in the preservation of this meritorious issue for appeal, 2) trial counsel provided prejudicial ineffective assistance by failing to object and renew Appellant’s motion to suppress at trial because: (a) the State and Judge Stratman violated Appellant’s constitutional rights by seeking, and entering, a void and illegal order compelling NDCS employees to take Appellant’s DNA sample by force if necessary; and (b) had trial counsel made the objections, they would have either been sustained or resulted in the preservation of this meritorious issue for appeal, 3) the violations of Appellant’s Fourth and Sixth Amendment rights, discussed in Sections 1 and 2, supra, constituted plain error that requires correction, 4) trial counsel provided prejudicial ineffective assistance when they failed to object to the DNA evidence where the State failed to prove the chain of custody of the contents of the rape kits containing evidence purportedly taken from victims Hudson, Patten, and Dean, 5) the trial court erred when it refused to appoint Appellant new counsel despite a conflict of interest that arose when Appellant made claims of ineffective assistance against trial counsel’s fellow public defender, and despite trial counsel’s violation of Appellant’s right to adequately prepare for trial and his right to have counsel present for all critical stages, 6) for the reasons set forth in both his motion for new counsel and Section V-B, supra, Appellant received ineffective assistance of trial counsel and, absent the ineffective assistance, there is a reasonable probability the result of his trial would have been different, 7) Appellant received ineffective assistance of trial counsel when trial counsel failed to move for a continuance of the trial because they did not adequately prepare with Appellant for trial, and because the trial court granted the State’s third motion to endorse a witness only three days prior to the beginning of trial, and 8) Appellant received prejudicial ineffective assistance when trial counsel failed to adequately investigate and present several aspects of Appellant’s defense.