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www.nebraska.gov/apps-courts-epub/
09/05/2025 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
State of Nebraska, appellee, v.
John L. Parks, Sr., appellant.
___ N.W.3d ___
Filed September 5, 2025. No. S-24-235.
1. Constitutional Law: Speedy Trial: Appeal and Error. The standard of review appellate courts apply for constitutional speedy trial
claims mirrors the standard of review appellate courts apply in statutory speedy trial cases: Factual determinations relevant to the claim
are reviewed for clear error while legal determinations are reviewed
de novo.
2. Judgments: Appeal and Error. Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but considers
the judgment in a light most favorable to the successful party, resolving
evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
3. Criminal Law: Pretrial Procedure: Appeal and Error. Discovery in
a criminal case is generally controlled by either a statute or court rule.
Therefore, unless granted as a matter of right under the Constitution
or other law, discovery is within the discretion of a trial court, whose
ruling will be upheld on appeal unless the trial court has abused
its discretion.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Motions for Mistrial: Appeal and Error. The decision whether
to grant a motion for mistrial is within the trial court’s discretion
and will not be disturbed on appeal in the absence of an abuse
of discretion.
6. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is
a question of law.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
7. ____: ____. 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.
8. Speedy Trial: Statutes. The statutory right to a speedy trial is set forth
in Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
9. Speedy Trial. If a defendant is not brought to trial by the 6-month
speedy trial deadline, as extended by any excluded periods, he or she
is entitled to absolute discharge from the offense charged and for any
other offense required by law to be joined with that offense.
10. Speedy Trial: Appeal and Error. An appeal from the denial of
a motion for discharge under the speedy trial statutes presents a
relatively simple mathematical computation of whether the 6-month
speedy trial clock, as extended by statutorily excludable periods, has
expired before the commencement of trial and does not require any
showing of prejudice.
11. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the information was filed, count forward 6
months, back up 1 day, and then add any time excluded under Neb. Rev.
Stat. § 29-1207(4) (Reissue 2016) to determine the last day the defend
ant can be tried.
12. Actions: Appeal and Error. The law-of-the-case doctrine reflects the
principle that an issue litigated and decided in one stage of a case
should not be relitigated at a later stage.
13. Appeal and Error. Under the law-of-the-case doctrine, an appellate
court’s holdings on issues presented to it conclusively settle all matters
ruled upon, either expressly or by necessary implication.
14. Speedy Trial: Waiver: Motions for Continuance. A defendant permanently waives his or her statutory speedy trial rights under Neb. Rev.
Stat. § 29-1207(4)(b) (Reissue 2016) when an ultimately unsuccessful
motion for discharge results in the continuance of a timely trial to a
date outside the statutory 6-month period, as calculated on the date the
motion for discharge was filed.
15. Speedy Trial: Waiver. Once a defendant has waived his or her statutory
right to a speedy trial, an exact calculation of days remaining on the
speedy trial clock is no longer required.
16. Constitutional Law: Speedy Trial. The constitutional right to a
speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const.
art. I, § 11.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
17. Speedy Trial: Words and Phrases. A speedy trial, generally, is one
conducted according to prevailing rules and proceedings of law, free
from arbitrary, vexatious, and oppressive delay.
18. Constitutional Law: Speedy Trial. Determining whether a defend
ant’s constitutional right to a speedy trial has been violated requires
application of a balancing test that involves consideration of four
factors: (1) the length of delay, (2) the reason for the delay, (3) the
defendant’s assertion of the right, and (4) prejudice to the defendant.
None of these four factors standing alone is a necessary or sufficient
condition to the finding of a deprivation of the right to speedy trial.
Rather, the factors are related and must be considered together with
other circumstances as may be relevant.
19. Constitutional Law: Speedy Trial: Presumptions. A delay of a year or
more is the benchmark commonly recognized as presumptively prejudicial in a constitutional speedy trial analysis.
20. Speedy Trial: Verdicts: Sentences. The more complex and serious the
crime, the longer a delay might be tolerated, because society also has
an interest in ensuring that longer sentences are rendered upon the most
exact verdicts possible.
21. Trial: Records: Evidence: Appeal and Error. The transcript of the
orders or judgment entered is the sole, conclusive, and unimpeachable
evidence of the proceedings in the district court, and the correctness of
the record may not be assailed collaterally in an appellate court.
22. Trial: Evidence: Attorneys at Law. Oral argument at the trial level is
not evidence.
23. Constitutional Law: Speedy Trial. A showing of actual prejudice to
a defendant alleging violation of constitutional speedy trial rights is
required if the government exercised reasonable diligence in pursuing
the defendant.
24. Criminal Law: Constitutional Law: Due Process. Whether rooted
directly in the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th Amendment,
the federal Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.
25. Pretrial Procedure. A defendant does not have an unfettered right
to discovery.
26. Criminal Law: Motions for Mistrial. A mistrial is properly granted
in a criminal case where an event occurs during the course of trial
which is of such a nature that its damaging effect cannot be removed
by proper admonition or instruction to the jury and thus prevents a
fair trial.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
27. Motions for Mistrial: Proof: Appeal and Error. To prove error predicated on the failure to grant a mistrial, the defendant must prove the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
28. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
29. Evidence: Words and Phrases. To be relevant, evidence must be
probative and material. Evidence is probative if it has any tendency
to make the existence of a fact more or less probable than it would be
without the evidence. A fact is material if it is of consequence to the
determination of the case.
30. Rules of Evidence. The fact that evidence is prejudicial is not enough
to require exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), because most, if not all, of the evidence a party offers
is calculated to be prejudicial to the opposing party; it is only the evidence which has a tendency to suggest a decision on an improper basis
that is unfairly prejudicial under rule 403.
31. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
32. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the issue.
33. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
34. ____: ____. To show that counsel’s performance was deficient, a defend
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
35. Effectiveness of Counsel: Proof: Words and Phrases. To show
prejudice in a claim of ineffective assistance of counsel, the defend
ant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have
been different.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
36. Effectiveness of Counsel: Words and Phrases. A reasonable probability of prejudice from ineffective assistance of counsel is a probability
sufficient to undermine confidence in the outcome.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Keith Dornan and Stuart J. Dornan, of Dornan, Troia,
Howard, Breitkreutz, Dahlquist & Klein, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik,
Freudenberg, and Bergevin, JJ.
Funke, C.J.
I. INTRODUCTION
In this direct appeal, John L. Parks, Sr., challenges his convictions in the district court for Douglas County, Nebraska,
of two counts of first degree murder and five other felony
offenses. Parks primarily argues that his speedy trial rights
were violated. In so arguing, Parks claims that under the circumstances of this case, the delays that resulted from motions
to continue and to depose witnesses filed by his counsel should
not be attributed to him. We disagree, and we find Parks’ other
arguments to be without merit. Accordingly, we affirm Parks’
convictions.
II. BACKGROUND
Michael Harbour and Nicole Hatten were shot and killed in
the parking lot of a hotel in Omaha, Nebraska, at approximately
7:34 a.m. on July 30, 2020. Parks can be seen on surveillance
videos exiting the hotel together with Harbour, Hatten, and
another person, Evelyn Lee, shortly before the shootings. A
subsequent search of Parks’ hotel room found a firearm and
approximately 81 grams of cocaine.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
On May 7, 2021, an information was filed charging Parks
with two counts of first degree murder, two counts of use of a
firearm to commit a felony, two counts of possession of a firearm by a prohibited person, and one count of possession with
intent to deliver cocaine in relation to the deaths of Harbour
and Hatten. The information was later amended to add a habitual criminal allegation.
The public defender’s office was appointed to represent
Parks. We refer to Parks’ public defender as his appointed
counsel to distinguish her from the counsel Parks subsequently
retained. Represented by his appointed counsel, Parks waived
his right to physically appear for arraignment and entered a
written plea of not guilty.
1. Initial Pretrial Motions
On May 10, 2021, Parks’ appointed counsel filed a motion
for statutory discovery. That motion was granted on May 11.
Thereafter, Parks’ appointed counsel apparently made four
oral motions to continue the pretrial conference:
• from June 25 until August 13, 2021;
• from August 13 until September 27, 2021 (the date was later
changed to September 23, 2021, on the court’s motion);
• from September 23 until November 5, 2021; and
• from November 5 until November 29, 2021.
No verbatim record was made of these proceedings. However,
in each instance, the district court issued an order stating
Parks’ appointed counsel “confirm[ed]” that she had advised
Parks the continuance would toll the speedy trial clock and
that Parks understood and consented to this tolling. Upon those
premises, the court granted the continuances and found that the
motions tolled Parks’ speedy trial rights under Neb. Rev. Stat.
§ 29-1207(b)(4) (Reissue 2016). Two of the orders also stated
that Parks was present personally when his appointed counsel
moved to continue the pretrial conference. However, Parks
subsequently argued that he had not actually been present, as
described below.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
In addition, on September 27, 2021, Parks himself filed a
pro se motion seeking “full” access to materials disclosed by
the State during discovery. Essentially, Parks wanted to have
discovery materials with him in jail for his review.
2. Motions Filed and Pretrial Conference
on November 29, 2021
On November 29, 2021, Parks’ appointed counsel filed two
motions to depose witnesses.
At the pretrial conference that same day, Parks himself
moved to have his appointed counsel withdraw and different
counsel appointed for him. The district court explained that
this was not
commonly do[ne]. . . . [W]hen you’re appointed a public
defender, you get a public defender unless there’s some
egregious thing that’s going on that you don’t feel you’re
being properly represented. The Court will allow you to
represent yourself, but the Court doesn’t usually appoint a
different public defender.
Parks then stated that he did not feel that he was being properly represented by his appointed counsel. Parks said that he
had “asked for a fast and speedy trial,” but that his appointed
counsel “fil[ed] continuances without [his] knowledge.” Parks
also said that this was “[his] first time coming to court,”
implicitly contradicting the court orders stating that he was
present personally when his appointed counsel made two of
the motions to continue.
Parks then asked the court whether he “h[ad] a right to a
fast and speedy trial.” The court stated that Parks had that
right but explained that it was the role of Parks’ counsel, and
not the court, to advise him about how that right played out
in his case. Parks responded that he had not been so advised,
and he asked the court to ask his counsel why she was “not
agreeing” with him on a “fast and speedy tr[ia]l.” Parks also
asked the court whether he had the right to tell counsel that
he disagreed with her actions. The court told Parks that it
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
would not be appropriate for the court to inquire into why
counsel did “not agree[]” with him, because that question
implicated attorney-client privilege. The court similarly said
that while Parks had a right to communicate his desires to
counsel, counsel’s subsequent advice to him should remain
between him and his counsel. Parks made further comments
along those lines and even accused his counsel of “working
with the prosecution.” However, the court eventually stopped
Parks and explained that it could sustain his motion for counsel’s withdrawal and allow him to represent himself, or Parks
could attempt to work things out with his counsel.
Parks opted to retain his appointed counsel. After he did so,
Parks reiterated that he did not want any “more motions” or
to depose witnesses. However, Parks also stated that if counsel had been working in his best interests, she would have
made “all kind[s] of other motions,” including to suppress
evidence. The court overruled Parks’ motion for appointed
counsel’s withdrawal.
The court then turned to Parks’ motion for personal access
to discovery. The State objected that while discovery had been
provided to Parks’ counsel, it came with a stipulation that
counsel not provide copies of those materials to the defend
ant. The State argued that this was the standard practice in
Douglas County. The State also argued that it would not be
“appropriate” to give Parks copies of the materials, given
the alleged offenses. Parks’ counsel agreed that the State had
provided “numerous” items to her. She also stated that per
her office’s policy, she had not sent copies of the materials to
the jail for Parks to review on his own. Parks objected to that
arrangement, but his motion was overruled.
Parks did not request, and the court did not make, any rulings on the motions to depose that had been filed that same
day. Instead, the court suggested that Parks and his appointed
counsel have “some more discussion going forward” about
those motions.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
3. Subsequent Pretrial Motions
In January 2022, Parks retained new counsel and his
appointed counsel withdrew. Parks’ retained counsel subsequently filed or otherwise made several pretrial motions,
including another motion for Parks to have personal access
to discovery materials. However, Parks does not dispute on
appeal that the delays associated with those motions are attributable to him. Therefore, we need note only the following
information about the motions made by Parks’ retained counsel. As a result of retained counsel’s motions,
• the pretrial conference was continued
• from February 4 until February 18, 2022;
• from February 18 until March 2, 2022; and
• from March 2 until March 9, 2022; and
• the trial was continued from May 16, 2022, until September
21, 2022.
Also, the district court overruled the second motion seeking
personal access to discovery materials for Parks.
4. Motion for Discharge on
Speedy Trial Grounds
On September 19, 2022, 2 days before the trial was to start,
Parks moved for absolute discharge, alleging violations of his
statutory and constitutional rights to a speedy trial. The crux of
that motion, as amended, was that the delays that resulted from
the motions to continue and to depose made by his appointed
counsel should not be attributed to him. Parks alleged that
the continuances were “requested and granted without [his]
knowledge, consent, request or authority” and that the court
had not yet ruled on the motions to depose. As such, Parks
claimed that the time to bring him to trial had expired on or
around November 7, 2021, before what he alleged was his first
appearance before the court.
On the following day, September 20, 2022, a hearing was
held on Parks’ motion. At the hearing, the State disputed
Parks’ claim that the delays resulting from the motions made
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
by his appointed counsel should not count against him when
determining whether he was brought to trial by the statutory
6-month speedy trial deadline. The State argued that when
the delays attributable to Parks were excluded, there had been
only 49 days of delay in bringing him to trial. However, in
support of those arguments, the State introduced into evidence
exhibits that Parks would argue supported his claim that his
speedy trial rights were violated. Those exhibits showed that
an order to transport Parks to court for the pretrial conference
on August 13, 2021, was canceled, apparently contradicting the court order stating that Parks was present personally
at the August 13 proceeding. The exhibits also showed that
the deposition of one of the two witnesses whom appointed
counsel sought to depose had been completed, even without a
court order on the motions to depose.
Consistent with the evidence described above, Parks’ argument in support of discharge primarily concerned the court
orders granting his appointed counsel’s motions to continue.
Parks argued that the orders that stated he was present personally when the motion was made were contradicted by the
record, which he claimed clearly showed that “[he] was never
in court.” Parks similarly argued that there was nothing in
the record to show that his appointed counsel “even requested”
the continuances or that she made the representations about
consulting him recited in the orders. Parks also noted other
issues with the alleged motions to continue, including that
they were not in writing as required under
Neb. Rev. Stat.
§ 25-1148 (Reissue 2016). In addition, Parks argued that the
district court was in part responsible for the delay because it
had not ruled on the motions to depose.
Likewise, as to his constitutional rights to a speedy trial,
Parks argued that the reasons for the delay were not known
“because there is no record. There’s no record of good cause.”
Parks also argued that he had asserted his speedy trial rights
at the pretrial conference on November 29, 2021. In addition, Parks claimed that he was prejudiced by the delay in
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
bringing him to trial because during the period of the delay,
the State added a habitual criminal charge and continued to
“prepare and gather more evidence” against him.
The district court overruled Parks’ motion to discharge. As
to Parks’ claims regarding his statutory speedy trial rights, the
court noted that Parks had only recently moved for discharge,
even though, under his theory, the speedy trial clock “ran several months ago.” The court agreed with the State that only
49 days had run on Parks’ speedy trial clock. The court found
that the other 453 days of delay in bringing Parks to trial were
attributable to him and that they were thus to be excluded
in determining whether he was brought to trial within the
6-month deadline.
The court attributed a specific number of days of delay to
each of the motions to continue requested by Parks’ appointed
and retained counsels. The court also noted that the motions
to depose filed by Parks’ appointed counsel on November 29,
2021, had “stopped the clock” from that date through the date
set for trial, because they had “never come before the Court
for an order or been withdrawn.” The court mentioned Parks’
pro se motion for personal access to discovery in its recitation
of the facts. However, the court did not attribute any specific
number of excludable days to that motion or include the
motion in its speedy trial calculation.
The court similarly rejected Parks’ claims regarding his
constitutional rights to a speedy trial as “meritless and patently
frivolous.” The court noted that Parks was charged with seven
felony offenses, that he had initially been scheduled for trial
“almost exactly one year from the date the information was
filed,” and that in preparing for trial, Parks’ counsel did what
“any other criminal defense attorney would have done.”
5. Interlocutory Appeal
Parks appealed to the Nebraska Court of Appeals, assigning, restated, reordered, and consolidated, that the district
court erred in (1) granting his appointed counsel’s motions
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
to continue and then finding that the continuances tolled his
speedy trial rights, (2) finding that any time was excludable
due to his pro se motion for personal access to discovery, (3)
“failing” to rule on the motions to depose and then finding
that the motions tolled his speedy trial rights, and (4) overruling his motion for absolute discharge on statutory and constitutional speedy trial grounds.
The Court of Appeals affirmed the order of the district
court overruling Parks’ motion for absolute discharge. 1 The
Court of Appeals began by finding that it lacked jurisdiction
over Parks’ claims regarding his constitutional speedy trial
rights on interlocutory appeal. 2 The court then found that
Parks’ claims regarding his statutory speedy trial rights were
without merit.
The Court of Appeals recognized that “the record call[ed]
into question that part of the [district] court’s orders that
stated Parks was present for at least two of the hearings.” 3
The Court of Appeals also recognized that Parks’ “testimony”
at the pretrial conference on November 29, 2021, contested
the district court’s “findings” that Parks’ appointed counsel
had advised him the continuances would toll his speedy trial
rights and that Parks “made it clear” at that pretrial conference that he “did not want motions filed” and did not support
deposing the witnesses. 4
Nonetheless, the Court of Appeals rejected Parks’ argument that the district court erred in excluding the delays
that resulted from his appointed counsel’s motions to continue, because the motions did not comply with § 25-1148
or with other purported requirements and because he did
1
State v. Parks, No. A-22-691,
2023 WL 3477425 (Neb. App. May 16,
2023) (selected for posting to court website) (petition for further review
denied June 29, 2023).
2
See, e.g., State v. Moody,
311 Neb. 143,
970 N.W.2d 770 (2022).
3
Parks, supra note 1,
2023 WL 3477425 at *4.
4
Id. at *4, *5.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
not “personally consent” to the continuances. 5 The Court of
Appeals also rejected Parks’ argument that because the district
court never ruled on the motions to depose, it erred in excluding the entire time that had elapsed since those motions were
filed. 6 As to Parks’ claims regarding his pro se motion for
personal access to discovery, the Court of Appeals concluded
that it did not need to resolve that issue because the time associated with that motion was also associated with the motions
to continue made by his appointed counsel.
Parks petitioned for further review of the order of the Court
of Appeals. That petition was denied, and on July 10, 2023, the
Court of Appeals issued its mandate. The district court subsequently entered judgment on the mandate on July 19.
6. Events at Trial
A jury trial was held from December 11 to 19, 2023. The
only matters from trial at issue in the present appeal are Parks’
“second motion for absolute discharge” and his motion for a
mistrial. 7 Therefore, the discussion here is limited to those
topics. Other matters from trial are discussed later in the opinion as they relate to the parties’ arguments on appeal.
At the start of the trial, Parks “renew[ed]” his motion for
absolute discharge “for the record and out of an abundance
of caution.” The district court summarily denied the motion
“for the same reasons” that it denied Parks’ initial motion
to discharge.
Subsequently, on the fifth day of trial, Parks moved for
a mistrial based, in part, on evidence of a video found on
Harbour’s phone. The video, which showed an unrelated man
being murdered, came from a website that posts such videos.
However, the State apparently intended to introduce the video
into evidence in support of its theory that Parks shot Harbour
and Hatten because he saw the video on Harbour’s phone and
5
Id. at *4.
6
Parks, supra note 1.
7
Brief for appellant at 30.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
believed that Harbour had a role in the murder of Parks’ son.
Parks’ son was shot and killed in Omaha 5 days before Harbour
and Hatten were shot.
In its opening arguments, the State claimed that Harbour
“ha[d] a video on his phone” of a man “being chased and
shot” that was “sort of interacted with” at approximately
7:07 a.m. on July 30, 2020, less than 30 minutes before the
murders of Harbour and Hatten. Later in the trial, the State
elicited testimony from Lee that shortly before the shootings,
Parks and Harbour had looked at “pictures” on Harbour’s
phone while in the hotel room. Lee also testified that immediately after the shootings, Parks told her that he spotted a
“picture . . . of his son’s dead body” on Harbour’s phone and
that he believed Harbour “had something to do with [his] son
getting killed.” After Lee’s testimony, an officer from the
Omaha Police Department (OPD) testified about the murder
of Parks’ son. On cross-examination, Parks seemingly sought
to elicit testimony from the officer about how news coverage of the murder of Parks’ son differed from the video on
Harbour’s phone.
Following the officer’s testimony, Parks filed a “Motion
in Limine” to exclude the video and related evidence. Parks
argued that Lee’s testimony concerned “pictures,” and not a
video, and that, as such, there was “no evidence in the record”
that Parks saw the video on Harbour’s phone. The State
opposed the motion, arguing that Lee’s testimony, combined
with an OPD detective’s anticipated testimony that the video
on the phone was “interacted with” at 7:07 a.m. on July 30,
2020, provided sufficient foundation for the video. The district court agreed with the State and overruled Parks’ motion.
However, shortly after that ruling, the State recommended that
the court revisit Parks’ motion because it had just discovered
that the video first “appear[ed]” on Harbour’s phone “months
prior” to the shootings and next “appear[ed]” on the phone
at 12:07 p.m. on July 30. The latter appearance was several
hours after Harbour died.
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
Parks moved for a mistrial on the ground that the phone had
“apparently been tampered with or handled” after Harbour’s
death. Parks claimed that given the apparent tampering, he
needed to “investigate all the other stuff involved.” However,
the State disputed that there was evidence of tampering, and
subsequent testimony by the detective outside the presence
of the jury revealed that the mistake in time arose from an
error in adjusting between universal and local time that had
just been discovered. The detective also testified that phones
connected to a network can “seek and download data without
user interaction.”
Parks then argued that a mistrial was warranted because
the jury had heard irrelevant evidence regarding the video
that was prejudicial to him. Parks also claimed that a mistrial
was warranted because another OPD detective had testified on
cross-examination that Parks had a “large sum of cash” on his
person when he was arrested that was confiscated by federal
officials. The detective was asked whether “[Parks] was on
probation.” She responded: “Yes, . . . probation or parole.”
Parks claimed that the officer knew that her testimony was
“inadmissible.” Alternatively, Parks asked that the trial be
continued for 30 days so that he could hire his own experts to
review the materials.
The district court overruled Parks’ motion for a mistrial.
The court found that the testimony about the circumstances of
Parks’ arrest was elicited by the defense and was not unfairly
prejudicial. The court similarly found that “the comment” or
“errors” about “the video time” had been “taken care of.”
The State ultimately never offered the video for admission
into evidence.
7. Jury Verdicts and Sentences
At the close of evidence, the case was submitted to the jury,
which found Parks guilty on all counts. Parks was later found
to be a habitual criminal. Parks was sentenced to life imprisonment for each of the murder convictions and additional terms
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
of imprisonment for the other convictions, with all sentences to
be served consecutively.
Parks timely appealed. The appeal was placed on our docket
because of the imposition of life imprisonment. 8
III. ASSIGNMENTS OF ERROR
Parks assigns, restated, that the district court erred by continuing pretrial conferences without his knowledge and consent
and contrary to his directives to his appointed counsel, based
solely on oral motions to continue, and then finding the continuances tolled his speedy trial rights and that the Court of
Appeals erred by affirming those errors. Parks also assigns,
restated, that the district court committed plain error in failing to rule on his motions to depose, resulting in violations of
his statutory and constitutional speedy trial rights. In addition,
Park assigns, restated, that the district court erred in overruling his “second motion” for absolute discharge, as well as his
motions for personal access to discovery materials and for a
mistrial. Further, represented on appeal by new counsel, Parks
assigns that his appointed and retained trial counsel were ineffective in multiple regards, as set forth below.
As an organizational matter, we note that we do not directly
mirror Parks’ assignments of error below. Instead, we consolidate Parks’ various claims regarding his statutory speedy trial
rights, as well as those regarding his constitutional speedy
trial rights.
IV. STANDARD OF REVIEW
Parks urges us to apply a plain error standard of review in
assessing his claim regarding the districts court’s “failure”
to rule on the motions to discharge filed by his appointed
counsel. 9 We decline to adopt such an approach. Instead,
for the reasons set forth below, we find this claim to be
foreclosed under the law-of-the-case doctrine insofar as it
8
See Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2024).
9
Brief for appellant at 24.
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pertains to Parks’ initial motion to discharge and his statutory speedy trial rights. Similarly, to the extent that the claim
involves Parks’ renewed motion to discharge or his constitutional speedy trial rights, we apply the customary standards of
appellate review set forth below.
[1,2] Our standard of review for constitutional speedy trial
claims mirrors the standard of review we apply in statutory
speedy trial cases: Factual determinations relevant to the claim
are reviewed for clear error while legal determinations are
reviewed de novo. 10 Under a clearly erroneous standard of
review, an appellate court does not reweigh the evidence but
considers the judgment in a light most favorable to the successful party, resolving evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference
deducible from the evidence. 11
[3,4] Discovery in a criminal case is generally controlled
by either a statute or court rule. 12 Therefore, unless granted
as a matter of right under the Constitution or other law, discovery is within the discretion of a trial court, whose ruling
will be upheld on appeal unless the trial court has abused its
discretion. 13 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence. 14
[5] The decision whether to grant a motion for mistrial is similarly within the trial court’s discretion and also
will not be disturbed on appeal in the absence of an abuse
of discretion. 15
10
State v. Ramos, ante p. 511, 23 N.W.3d 640 (2025).
11
State v. Rashad,
316 Neb. 101, 3 N.W.3d 325 (2024).
12
State v. Torres Aquino,
318 Neb. 771, 19 N.W.3d 222 (2025).
13
Id.
14
State v. Turner,
315 Neb. 661,
998 N.W.2d 783 (2024).
15
State v. Rush,
317 Neb. 622, 11 N.W.3d 394 (2024), modified on denial of
rehearing
317 Neb. 917, 12 N.W.3d 787.
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[6,7] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. 16 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. 17
V. ANALYSIS
1. Statutory Speedy Trial Rights
We begin with Parks’ various claims regarding his statutory speedy trial rights. We understand those claims to
encompass the motions to continue and to depose filed by
Parks’ appointed counsel, the district court’s overruling of
Parks’ initial motion for absolute discharge, the Court of
Appeals’ affirmance of the district court’s order, and the
district court’s subsequent overruling of Parks’ renewed or
“second” motion to discharge. 18
(a) Legal Framework
[8,9] The statutory right to a speedy trial is set forth in
§ 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue 2016). 19
Under those statutes, criminal defendants must be brought
to trial by a 6-month deadline. 20 However, the statutes also
prescribe that certain periods of delay are excluded when
determining whether the defendant was brought to trial by
the 6-month deadline. 21 As is relevant here, those periods
of delay include “the time from filing until final disposition
16
State v. Swartz,
318 Neb. 553, 17 N.W.3d 174 (2025).
17
Id.
18
Brief for appellant at 30.
19
Rashad, supra note 11.
20
See, e.g., State v. Abernathy,
310 Neb. 880,
969 N.W.2d 871 (2022).
21
See § 29-1207(4).
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of pretrial motions of the defendant,” 22 as well as “[t]he
period of delay resulting from a continuance granted at the
request or with the consent of the defendant.” 23 If a defendant
is not brought to trial by the 6-month speedy trial deadline,
as extended by any excluded periods, he or she is entitled to
absolute discharge for the offense charged and for any other
offense required by law to be joined with that offense. 24
[10,11] An appeal from the denial of a motion for discharge
under the speedy trial statutes presents a relatively simple
mathematical computation of whether the 6-month speedy
trial clock, as extended by statutorily excludable periods, has
expired before the commencement of trial and does not require
any showing of prejudice. 25 To calculate the time for speedy
trial purposes, a court must exclude the day the information
was filed, count forward 6 months, back up 1 day, and then
add any time excluded under § 29-1207(4) to determine the
last day the defendant can be tried. 26
(b) Claims Regarding Initial Motion for
Discharge Are Foreclosed Under
Law-of-Case Doctrine
Parks claims that the district court erred in overruling
his initial motion for absolute discharge and that the Court
22
See § 29-1207(4)(a). See, also, State v. Nelson, 313 Neb. 464,
984 N.W.2d
620 (2023) (period excludable under § 29-1207(4)(a) commences on day
immediately after filing of defendant’s pretrial motion and ends at final
disposition, which occurs on date motion is granted or denied); State v.
Murphy,
255 Neb. 797,
587 N.W.2d 384 (1998) (motion to depose is
pretrial motion for purposes of § 29-1207(4)(a)).
23
See § 29-1207(4)(b). See, also, State v. Lovvorn,
303 Neb. 844,
932
N.W.2d 64 (2019) (period excludable for continuance under § 29-1207(4)
(b) commences on day immediately after continuance is granted and
includes day on which continuance ends).
24
Rashad, supra note 11.
25
State v. Chase,
310 Neb. 160,
964 N.W.2d 254 (2021).
26
Rashad, supra note 11.
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of Appeals erred in affirming that ruling, because delays
that should not have been attributed to him were improperly
excluded in determining whether he was brought to trial
by the 6-month speedy trial deadline. In particular, Parks
raises various arguments as to why the delays associated with
his appointed counsel’s motions to continue, the motions to
depose, and his pro se motion for personal access to discovery should not have been attributed to him. Parks claims that
insofar as those delays were not attributable to him, the speedy
trial clock actually expired before he first came to court on
November 29, 2021. The State counters that Parks’ claims
regarding the overruling of his initial motion for discharge on
statutory speedy trial grounds are foreclosed under the law-ofthe-case doctrine.
[12,13] The law-of-the-case doctrine reflects the principle
that an issue litigated and decided in one stage of a case should
not be relitigated at a later stage. 27 Under the law-of-the-case
doctrine, an appellate court’s holdings on issues presented to it
conclusively settle all matters ruled upon, either expressly or
by necessary implication. 28
We agree with the State that under the law-of-the-case
doctrine, Parks cannot relitigate in the present appeal the various issues that he seeks to raise insofar as they concern his
initial motion for absolute discharge on statutory speedy trial
grounds. In his prior interlocutory appeal, Parks raised all the
issues regarding the motions to continue filed by his appointed
counsel, the motions to depose, and his pro se motion for personal access to discovery that he seeks to raise here. The Court
of Appeals ruled against him. Parks then petitioned for further
review of the order of the Court of Appeals, which was denied.
Accordingly, Parks cannot raise those issues in the present
appeal because they were conclusively resolved against him
by an appellate court.
27
In re Estate of Adelung, 312 Neb. 647,
980 N.W.2d 415 (2022).
28
Id.
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Our conclusion here is dispositive as to Parks’ assignment
that the district court erred by continuing pretrial conferences
without his knowledge and consent and contrary to his directives to his appointed counsel, based solely on oral motions to
continue, and then finding the continuances tolled his speedy
trial rights and that the Court of Appeals erred by affirming
those errors.
(c) Parks Waived Speedy Trial Rights
With Initial Motion to Discharge
and Subsequent Appeal
Parks also argues that the district court erred in overruling his renewed motion at the start of the trial for absolute
discharge on statutory speedy trial grounds. While Parks can
be seen to raise many of the same arguments here about the
motions to continue and to depose that he raised in conjunction with his initial motion to discharge, underlying all those
arguments in his belief that “the motions to depose filed
[in] his case do not toll his speedy trial clock indefinitely,
and that, at a minimum, his speedy trial clock should have
resumed” after his interlocutory appeal. 29 Parks claims that
had the clock restarted after the appeal, he would have been
entitled to absolute discharge because when the 49 days of
delay that the district court found were attributable to the
State before the interlocutory appeal are added to the 145
days of delay that Parks claims should be attributed to the
State after the interlocutory appeal, he was not brought to
trial within 6 months of the indictment. The State, on the
other hand, maintains that under State v. Mortensen, 30 Parks
waived his statutory right to a speedy trial before he made his
renewed motion for discharge.
[14] We agree with the State that Parks waived his statutory speedy trial rights under § 29-1207(4)(b). In Mortensen,
we concluded that a motion to discharge is a request for
29
Brief for appellant at 30.
30
State v. Mortensen, 287 Neb. 158,
841 N.W.2d 393 (2014).
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a continuance because it requires the court to dispose of
the motion before a trial can be commenced. 31 As such, we
reasoned that motions to discharge, like other requests to
continue, can result in a waiver of the defendant’s speedy
trial rights under § 29-1207(4)(b). 32 Subsequently, in State v.
Riessland, 33 we explained that under Mortensen, a defendant
permanently waives his or her statutory speedy trial rights
under § 29-1207(4)(b) when an ultimately unsuccessful motion
for discharge results in the continuance of a timely trial to a
date outside the statutory 6-month period, as calculated on
the date the motion for discharge was filed. The continuance
resulting from Parks’ initial motion for discharge and the subsequent appeal, followed by the petition for further review, had
such an effect.
Without excludable days, the trial deadline would have
been November 7, 2021 (given an information filed on May 7,
2021). But the various motions filed by Parks’ appointed and
retained trial counsel resulted in 453 excludable days and a
new speedy trial date of February 3, 2023. Parks’ trial was initially rescheduled for September 21, 2022, which was within
the statutory 6-month period, taking into consideration the
excludable days. However, Parks’ unsuccessful initial motion
for discharge, coupled with his unsuccessful appeal of the
overruling of that motion, resulted in his trial date being continued well beyond February 3, 2023. The Court of Appeals
did not issue its decision until May 16, 2023, and Parks then
petitioned for further review of that decision. Accordingly,
Parks permanently waived his statutory speedy trial rights
under § 29-1207(4)(b) and had no such rights to assert when
he renewed his motion for absolute discharge at the trial on
December 11, 2023.
31
Id.
32
Id.
33
State v. Riessland,
310 Neb. 262,
965 N.W.2d 13 (2021).
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Parks attempts to avoid this conclusion by arguing that
“[t]he rule in Mortensen should not be absolute, but [instead]
should account for exceptional cases such as this.” 34 However,
the rule set forth in Mortensen and Riessland is based on
the plain language of § 29-1207(4)(b). As amended in 2010,
that section prescribes, in relevant part, that “[a] defendant is
deemed to have waived his or her right to speedy trial when
the period of delay resulting from a continuance granted at the
request of the defendant or his or her counsel extends the trial
date beyond the statutory six-month period.” The statute does
not provide for any exceptions, even in purportedly exceptional cases, and it is not our role to read such exceptions into
the statute. 35 The cases that Parks cites for the proposition that
“the speedy trial clock resumes following the conclusion of
[an] interlocutory appeal” 36 predated the 2010 amendments to
§ 29-1207(4)(b) and are therefore inapposite under the facts
and circumstances of this case. 37
[15] Because Parks permanently waived his speedy trial
rights under § 29-1207(4)(b) before he renewed his motion
to discharge, the district court did not err or abuse its discretion in overruling that motion. For the sake of completeness,
we note that our conclusion here is dispositive as to Parks’
arguments that the State failed to meet its burden to prove the
existence of an excludable period of time and that the district
court did not engage in the required analysis or calculate
his speedy trial date when overruling his renewed motion to
discharge. Once a defendant has waived his or her statutory
right to a speedy trial, an exact calculation of days remaining
34
Reply brief for appellant at 5.
35
State v. Perry,
318 Neb. 613, 17 N.W.3d 504 (2025) (it is not within
province of courts to read meaning into statute that is not there or to read
anything direct and plain out of statute).
36
Brief for appellant at 32.
37
See, e.g., State v. Baker,
264 Neb. 867,
652 N.W.2d 612 (2002); State
v. Ward,
257 Neb. 377,
597 N.W.2d 614 (1999), disapproved on other
grounds, State v. Feldhacker,
267 Neb. 145,
672 N.W.2d 627 (2004).
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on the speedy trial clock is no longer required. 38 The other
purported requirements to which Parks points are similarly
inapplicable given his waiver of his statutory speedy trial
rights. Our conclusion here also means that we have no need
to address Parks’ argument that the only way the delays in
bringing him to trial after the interlocutory appeal could have
been excluded was if the delays associated with the motions
to depose were attributed to him, as he claims should not
be done.
Accordingly, for the reasons set forth above, there is no
merit to Parks’ assignments that the district court erred in not
ruling on the motions to depose, resulting in a violation of his
statutory rights to a speedy trial, and in overruling his renewed
motion for discharge on statutory speedy trial grounds.
2. Constitutional Speedy Trial Rights
Having found no violation of Parks’ statutory speedy trial
rights, we now turn to his claim that his constitutional speedy
trial rights were violated. Broadly speaking, this claim, like
Parks’ claim regarding his statutory speedy trial rights, encompasses the motions to continue and to depose filed by his
appointed counsel and the overruling of his initial and renewed
motions to discharge.
(a) Legal Framework
[16] The constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, § 11. 39
The constitutional right to a speedy trial and the statutory
implementation of that right exist independently of each
38
State v. Lear, 316 Neb. 14, 2 N.W.3d 632 (2024).
39
State v. Brown, 310 Neb. 224,
964 N.W.2d 682 (2021). But see
Abernathy,
supra note 20 (explaining that although appellate court was assumed in
Brown and related cases to have jurisdiction over constitutional speedy trial
claims raised in interlocutory appeal, such jurisdiction is in fact lacking,
because pretrial order denying motion for discharge on constitutional
speedy trial grounds is not final, appealable order).
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other. 40 Nevertheless, § 29-1207 provides a useful standard
for assessing whether the length of a trial delay is unreasonable under the U.S. and Nebraska Constitutions. 41 “[I]t is an
unusual case in which the constitutional right to a speedy trial
has been violated when the time limits under the speedy trial
act have been met.” 42
[17,18] A speedy trial, generally, is one conducted according to prevailing rules and proceedings of law, free from
arbitrary, vexatious, and oppressive delay. 43 “There is ‘no
fixed point’ when it can be determined ‘how long is too
long in a system where justice is supposed to be swift but
deliberate.’” 44 Instead, determining whether a defendant’s
constitutional right to a speedy trial has been violated requires
application of a balancing test that involves consideration of
four factors: (1) the length of delay, (2) the reason for the
delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant. 45 None of these four factors standing
alone is a necessary or sufficient condition to the finding of
a deprivation of the right to speedy trial. 46 Rather, the factors
are related and must be considered together with other circumstances as may be relevant. 47
(b) Parks’ Constitutional Speedy Trial
Rights Were Not Violated
Parks claims that all four of the aforementioned factors
favor him. He claims there was “well over a year” of delay
40
State v. Yzeta, 313 Neb. 202,
983 N.W.2d 124 (2023).
41
Brown, supra note 39.
42
Id. at 240, 964 N.W.2d at 693.
43
State v. Hettle,
288 Neb. 288,
848 N.W.2d 582 (2014).
44
Id. at 302, 848 N.W.2d at 595.
45
Brown, supra note 39.
46
Id.
47
Id.
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that was “not attributable to [him]” in bringing him to trial. 48
Parks arrives at this number by adding the 273 days that passed
between when the information was filed and when his retained
counsel first requested a continuance to the 145 days that
passed between when the district court entered judgment on
the mandate after the interlocutory appeal and the start of trial.
Parks also claims, as discussed below, that those delays must
be attributed to his appointed counsel and the court, and not to
him; that he repeatedly asserted his right to a speedy trial; and
that he was prejudiced by the delay. The State, on the other
hand, argues that none of the four factors favors Parks.
(i) Length of Delay
The first factor, the length of the delay, “is to some extent a
triggering mechanism.” 49 “Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance.” 50 In other words,
if the delay is not presumptively prejudicial, courts need not
consider the reason for the delay, the defendant’s assertion of
the right, or prejudice to the defendant.
[19,20] Parks points to a total of 418 days’ delay that he
claims should not have been attributed to him. Parks therefore
claims that the delay was presumptively prejudicial. Parks is
correct that a delay of a year or more is the benchmark commonly recognized as presumptively prejudicial in a constitutional speedy trial analysis. 51 However, for the reasons set
forth below, we reject Parks’ claim that the bulk of the delay
of which he complains cannot be attributed to him. Also, as
the State observes, Parks was charged with “significant and
48
Brief for appellant at 35.
49
Barker v. Wingo, 407 U.S. 514, 530,
92 S. Ct. 2182,
33 L. Ed. 2d 101
(1972).
50
Id.
51
State v. Short,
310 Neb. 81,
964 N.W.2d 272 (2021).
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numerous” felonies, including two counts of first degree murder. 52 When considering the length of the delay, this and other
courts have recognized that the more complex and serious the
crime, the longer a delay might be tolerated, because society
also has an interest in ensuring that longer sentences are rendered upon the most exact verdicts possible. 53
Thus, even assuming that the delay here is seen to be presumptively prejudicial, we do not view this factor to weigh
heavily in Parks’ favor.
(ii) Reason for Delay
The second factor, the reason for the delay, evaluates
“whether the government or the criminal defendant is more to
blame.” 54 “A deliberate attempt [by the State] to delay the trial
in order to hamper the defense should be weighted heavily”
against the State. 55 A “more neutral reason such as negligence
or overcrowded courts should be weighted less heavily” against
the State but nonetheless should be taken into consideration
because the “ultimate responsibility for such circumstances
must rest” with the State. 56 However, “a valid reason, such as
a missing witness, should serve to justify appropriate delay.” 57
52
Brief for appellee at 21.
53
Short, supra note 51. See, also, State v. Young,
217 Vt. 537, 543,
292
A.3d 689, 695 (2023) (delay of 616 days was not “‘extreme in relation
to . . . the nature of the case’” and did not weigh heavily in defendant’s
favor given complex felony charges against him); State v. Spearman,
2012 NMSC 023, ¶ 21,
283 P.3d 272, 277 (2012) (“[a] delay of trial of
one year is presumptively prejudicial in simple cases, fifteen months in
intermediate cases, and eighteen months in complex cases”); Humphrey v.
State,
185 P.3d 1236 (Wyo. 2008) (delay of 561 days in prosecution for
murder did not, standing alone, raise presumption of prejudice).
54
Doggett v. United States,
505 U.S. 647, 651,
112 S. Ct. 2686,
120 L. Ed.
2d 520 (1992).
55
Barker, supra note 49,
407 U.S. at 531.
56
Id.
57
Id.
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Parks would have us weight the delays of which he complains against the State, and not against him, for multiple
reasons. First, Parks argues that the delays that resulted from
the motions to continue filed by his appointed counsel should
not count against him because his appointed counsel made
those motions “contrary to [his] express wishes.” 58 Second,
Parks argues that the “conduct” of his appointed counsel—
which we understand to mean both the filing of the motions to
continue the pretrial conferences and the failure to withdraw
the motions to depose after Parks objected to them—deprived
him of his “personally held constitutional right [to] a speedy
trial.” 59 Third, Parks argues that any delays that resulted from
the motions to depose should be excluded because the district court “fail[ed]” to rule on those motions. 60 Fourth, Parks
argues that “systemic failures” by the public defender’s office
and the court caused the delays here. 61
As to the motions to continue, we do not see anything
in the record to persuade us that those delays should not
be attributed to Parks. The district court’s orders show that
Parks’ appointed counsel requested the continuances, and
“[b]ecause ‘the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,’ delay
caused by the defendant’s counsel is also charged against
the defendant.” 62 To be sure, Parks challenges the accuracy
of the court orders. However, Parks points to nothing in
the record showing that he made any attempt to correct the
orders in the district court.
[21] As we have previously explained, “‘The transcript
imports absolute verity, and cannot be impeached. If incorrect, or if it fails to speak the truth, the correction must be
58
Brief for appellant at 36.
59
Id. at 37.
60
Id. at 24.
61
Reply brief for appellant at 4.
62
Vermont v. Brillon,
556 U.S. 81, 90-91,
129 S. Ct. 1283,
173 L. Ed. 2d 231
(2009). See, also, Hettle, supra note 43.
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made in the district court and not here.’” 63 In other words,
absent proof to the contrary, the transcript of the orders or
judgment entered is the sole, conclusive, and unimpeachable
evidence of the proceedings in the district court, and the correctness of the record may not be assailed collaterally in an
appellate court. 64
Admittedly, there is evidence in the record showing that
the order to transport Parks to the pretrial conference on
August 13, 2021, was canceled. However, at most, this evidence suggests that the court order regarding the August 13
pretrial conference may have incorrectly stated that Parks was
personally present. It does not necessarily follow from this
that the order regarding the June 25 pretrial conference incorrectly stated that Parks was personally present. Neither does
it necessarily follow that any of the four orders incorrectly
stated Parks’ appointed counsel “confirm[ed]” that she had
advised Parks that the continuance would toll the speedy trial
clock and that Parks understood and consented to this, nor that
appointed counsel mispresented matters when she provided
such confirmation.
[22] Parks also points to his statement at the pretrial conference on November 29, 2021, that this was “[his] first
time coming to court.” But Parks was not under oath when
he made this statement, and no testimony to this effect was
elicited from him at the subsequent hearing on his motion to
discharge. Oral argument at the trial level is not evidence. 65
Thus, we decline to give Parks’ statement the significance that
he attributes to it.
Parks’ claim that the constitutional right to a speedy trial
is “amongst those fundamental rights that are a defendant[’]s
63
Sulzle v. Sulzle,
318 Neb. 194, 212, 14 N.W.3d 532, 547 (2024) (quoting
Lippincott v. Lippincott,
144 Neb. 486,
13 N.W.2d 721 (1944)).
64
Sulzle, supra note 63.
65
Cf. State v. Bassette,
6 Neb. App. 192,
571 N.W.2d 133 (1997). See, also,
In re Interest of Kochner,
266 Neb. 114,
662 N.W.2d 195 (2003).
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to assert or waive personally” is similarly unavailing. 66 We
see nothing in the record on appeal to suggest that Parks
raised this issue with the district court. When an argument
or theory is raised for the first time on appeal, it will be disregarded inasmuch as a lower court cannot commit error in
resolving an issue that was never presented and submitted to
it for disposition. 67
As to the motions to depose, we reject Parks’ claim that
the trial court should be seen to be responsible for the delays
because it “fail[ed]” to rule on the motions. 68 Parks argues
that the district court had an obligation to rule on those
motions under the judicial code of conduct and because it
had “implicitly assured” him at the pretrial conference on
November 29, 2021, that it would uphold his speedy trial
rights. 69 However,
[i]t is not the State’s or the court’s burden to pursue
the defendant’s motions. Such motions are the primary
responsibility of the party that brings them, and it will be
presumed that a delay in hearing defense pretrial motions
is attributable to the defendant unless the record affirmatively indicates otherwise. 70
We see nothing in the record here to suggest that the delay
in ruling on the motions to depose should not be attributed
to Parks.
66
Brief for appellant at 36.
67
132 Ventures v. Active Spine Physical Therapy, 318 Neb. 64, 13 N.W.3d
441 (2024).
68
Brief for appellant at 24.
69
Id. at 29.
70
State v. Turner,
252 Neb. 620, 630,
564 N.W.2d 231, 238 (1997). See,
also, State v. Dean,
270 Neb. 972,
708 N.W.2d 640 (2006); State v. Poe,
266 Neb. 437,
665 N.W.2d 654 (2003); Toombs v. Driver Mgmt., Inc.,
248
Neb. 1016,
540 N.W.2d 592 (1995); State v. Williams,
239 Neb. 985,
480
N.W.2d 390 (1992); State v. Rodriguez,
6 Neb. App. 67,
569 N.W.2d 686
(1997).
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The motions to depose were filed on November 29, 2021,
which was the same day as the pretrial conference. As such, we
see no issue with the district court’s not ruling on the motions
to depose at that time, even if Parks’ statement that he opposed
the motions could be seen to constitute a request for a ruling on
them. The court was aware of the disagreements between Parks
and his appointed counsel regarding the motions and contemplated their having “some more discussion going forward.”
After that pretrial conference, Parks claims that the district
court had “no fewer than five . . . opportunities” to rule on
the motions to depose, but “took no action.” 71 However, Parks
does not point to anything in the record to show that he insisted
on a ruling on the motions to depose on those occasions. We
also observe that the bulk of the delay associated with the
motions to depose in the period before Parks’ initial motion
to discharge coincided with delays resulting from motions to
continue made by Parks’ retained counsel that Parks concedes
are attributable to him.
We take a similar view of Parks’ argument that the delays
here reflected systemic failures by the public defender’s office
and the court. In Vermont v. Brillon, 72 the U.S. Supreme Court
recognized that the general rule attributing delays caused by
the defendant’s appointed counsel to the defendant was “not
absolute” and that delays resulting from a “systemic ‘breakdown in the public defender system’” could be attributed to the
State. However, the Brillon Court observed that in that case,
the lower court had not determined there was such a systemic
breakdown and there was nothing in the record to suggest
“institutional problems” had caused any part of the delay. 73
Like the U.S. Supreme Court in Brillon, we are not persuaded that the issues of which Parks complains were institutional problems. As to his appointed counsel, Parks primarily
71
Brief for appellant at 28.
72
Brillon, supra note 62,
556 U.S. at 94.
73
Id.
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complains that she visited him in jail only once, that she filed
motions to continue contrary to his wishes and without his
consent, and that she did not withdraw the motions to depose
once he expressed his disapproval of them. These seem to us to
be routine disagreements between attorney and client regarding
the conduct of the litigation, and not systemic issues with the
public defender’s office. 74
The same is true as to the court. 75 Parks primarily complains of alleged errors in the court orders and the court’s
purported failure to rule on the motions to depose and to
advise him about his speedy trial rights at the pretrial conference on November 29, 2021. However, Parks did not correct
the orders in the district court or insist on a ruling on the
motions to depose. His characterization of the pretrial conference on November 29 ignores the fact that the court declined
74
See, e.g., State v. Ochoa, 2017 NMSC 031,
406 P.3d 505 (2017) (systemic
breakdown in public defender system must be based on problems that are
both institutional in nature and debilitating in scope); Weis v. State,
287 Ga.
46,
694 S.E.2d 350 (2010) (funding problems did not amount to breakdown
of entire public defender system when lack of funding was not sole factor
contributing to delay); State v. Shaw, 84062-2-I,
2023 WL 6060522 (Wash.
App. Sept. 18, 2023) (unpublished opinion listed at 28 Wash. App. 2d
1015 (2023)) (declining to find systemic breakdown, even though defense
counsel complained several times of being overburdened, where there was
no record of how county’s department of public defense functioned during
period in question); People v. Allen, No. B288740,
2021 WL 268353 (Cal.
App. Jan. 27, 2021) (unpublished opinion) (requests for continuances by
defendant’s counsel were not attributable to systemic breakdown in public
defender’s office where continuances were necessitated by legitimate need
to obtain additional or updated evaluations).
75
Cf., U.S. v. Young,
657 F.3d 408 (6th Cir. 2011) (rejecting argument that
district court’s untimeliness was systemic failure that should weigh against
State); People v. Williams,
58 Cal. 4th 197, 250,
315 P.3d 1, 39,
165 Cal.
Rptr. 3d 717, 762 (Cal. 2013) (even though trial court “repeatedly indulged
defense counsel’s requests for continuances due to lack of preparation,” it
was not responsible for delay); Allen, supra note 74 (declining to attribute
delay to trial court where court actively set trial dates and sought to move
case along, but defense counsel continued to litigate collateral issues).
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to answer specific questions in deference to Parks’ attorney-client privilege.
Accordingly, because Parks’ various arguments as to why
the delays should not be attributed to him are without merit,
we view this factor to weigh against Parks.
(iii) Defendant’s Assertion of Right
With regard to the third factor, Parks claims that he “forcefully asserted” his right to a speedy trial on multiple occasions. 76 In particular, Parks points to his statements at the
pretrial conference on November 29, 2021; his initial motion
to discharge; his interlocutory appeal; his renewed motion for
discharge at the start of the trial; and his statement at allocution
that his right to a speedy trial had been violated. However, as
the State observes, Parks “undermined” those assertions of his
speedy trial rights in various ways. 77
Parks did declare at the pretrial conference on November
29, 2021, that he did not want “more motions” or to depose
witnesses. But he also complained of his appointed counsel’s
failure to make other motions, including to suppress evidence,
and any delay associated with such motions would have been
attributable to Parks. 78 Parks also waited until the eve of the
trial (which had been continued from May 16 to September 21,
2022, at his request) to file his initial motion to discharge, even
though he maintained that his speedy trial clock had run before
the pretrial conference on November 29, 2021. 79 Moreover,
Parks’ appointed and retained counsel requested multiple continuances and filed multiple pretrial motions, tolling the speedy
76
Brief for appellant at 38.
77
Brief for appellee at 22.
78
See, e.g., Nelson, supra note 22.
79
See, e.g.,
Short, supra note 51 (defendant waited until after period of
continuances granted at his request to assert that trial had been delayed for
too long); Hettle, supra note 43 (defendant waited silently until eve of trial
to voice concern).
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trial clock. 80 Thus, we do not view this factor to favor Parks in
any significant way, if at all.
(iv) Prejudice to Defendant
[23] As to the fourth factor, the deprivation of the right to
a speedy trial “does not per se prejudice the accused’s ability to defend himself.” 81 To the contrary, a showing of actual
prejudice to a defendant alleging violation of constitutional
speedy trial rights is required if the government exercised
reasonable diligence in pursuing the defendant, as was the
case here. 82
Under Barker v. Wingo, 83 the prejudice factor is to be
assessed “‘in the light of the interests of defendants which
the speedy trial right was designed to protect.’” 84 The Barker
Court identified three such interests: “‘(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.’” 85 Of these three interests, the third
is considered most important, “‘because the inability of a
defendant adequately to prepare his case skews the fairness of
the entire system.’” 86
80
See, e.g., Shaw, supra note 74 (finding that third factor weighed against
defendant or at best was neutral, where defendant’s repeated assertions of
his right to speedy trial and objections to continuances were almost always
in response to his own attorney’s motions, and nearly all of continuances
were for defense counsel to prepare for trial).
81
Barker, supra note 49,
407 U.S. at 521.
82
State v. Betancourt-Garcia,
295 Neb. 170,
887 N.W.2d 296 (2016),
abrogated on other grounds, State v. Guzman,
305 Neb. 376,
940 N.W.2d
552 (2020).
83
Barker, supra note 49.
84
Lovvorn, supra note 23,
303 Neb. at 853,
932 N.W.2d at 70 (quoting
Barker, supra note 49).
85
Id. at 853,
932 N.W.2d at 71.
86
Betancourt-Garcia, supra note 82,
295 Neb. at 188,
887 N.W.2d at 311.
Accord
Guzman, supra note 82.
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Parks claims that all three interests mentioned in Barker
are implicated here. Specifically, Parks claims that he was
incarcerated for over 6 months before he ever appeared in
court and that he ultimately “spent more than a year in pretrial
incarceration due to delay that was not reasonably attributable
to him.” 87 Parks also points to his pro se motion for personal
access to discovery and to his statements at the pretrial conference on November 29, 2021, as evidencing his anxiety and
concern. In addition, at oral arguments, Parks asked this court
to take judicial notice of the entire case file below on the
ground that the file would show issues with the case, going
back to the arrest warrant, that had caused him anxiety and
concern. Finally, Parks claims that his defense was impaired
by the delay in bringing him to trial because the key witness
against him, Lee, was “threatened and pressured” to falsely
implicate him in the shootings, and a witness who knew the
identity of the actual shooter died. 88
The first two interests that Parks claims do not appear to
involve much beyond the oppression that generally arises
from incarceration and the anxiety and concern that generally
result from criminal charges, 89 and we decline to take judicial
notice of the entire file below. 90 However, even assuming
87
Brief for appellant at 39.
88
Id.
89
See, e.g., U.S. v. Henson,
945 F.2d 430, 438 (1st Cir. 1991) (because
“considerable anxiety normally attends the initiation and pendency of
criminal charges; . . . only undue pressures are considered”) (internal
quotation marks omitted); Cotney v. State,
503 P.3d 58 (Wyo. 2022)
(because certain amount of pretrial anxiety naturally exists, defendant
must demonstrate that he or she suffered extraordinary or unusual pretrial
anxiety); McLemore v. Commonwealth,
590 S.W.3d 229 (Ky. 2019)
(defendant offered no specific evidence of any unusual amount of anxiety
or concern during incarceration). See, also, U.S. v. Ogiekpolor,
122 F.4th
1296 (11th Cir. 2024) (defendant’s displeasure with counsel for failing to
make government try him in timely fashion, among other things, was not
sufficient to demonstrate his anxiety and concern).
90
See, e.g., Strunk v. Chromy-Strunk,
270 Neb. 917,
708 N.W.2d 821 (2006).
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oppressive pretrial incarceration and anxiety and concern,
Parks failed to show any impairment of his defense. To be
sure, Parks’ brief on appeal cites specific ways in which his
defense was allegedly impaired. However, there is nothing
in the record before us to suggest that Parks raised those
alleged impairments with the district court. 91 Instead, Parks
argued before the district court that the delay prejudiced him
by allowing the State to introduce a habitual criminal charge
against him and to “prepare and gather more evidence.” As
such, we view this factor to weigh against Parks.
Accordingly, after weighing the relevant factors as set
forth above, we conclude that Parks’ constitutional speedy
trial rights were not violated. This conclusion is dispositive
as to Parks’ assignments that the district court erred in not
ruling on the motions to depose, resulting in a violation of his
constitutional speedy trial rights, and in overruling his initial
and renewed motions to discharge on constitutional speedy
trial grounds.
3. No Abuse of Discretion in Denying
Parks’ Motions for Personal
Access to Discovery
Parks asserts that the district court erred in denying his
motions for personal access to discovery materials. Parks
claims that this denial violated his “statutory right to discovery,” as well as his constitutional right to present a complete
defense. 92 The State counters that Parks’ statutory claims are
91
See, e.g., State v. Velasquez, 384 Mont. 447,
377 P.3d 1235 (2016) (review
must be confined to record made before district court at time of speedy
trial hearing); Ybarra v. State, No. 14–02–00438–CR,
2003 WL 22097802
(Tex. App., Sept. 11, 2003) (memorandum opinion) (defendant did not
raise argument that loss of videotape in time between indictment and
trial impaired his defense, and, as such, argument was not considered on
appeal).
92
Brief for appellant at 42.
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foreclosed under State v. Figures 93 and that his constitutional
claims are without merit.
(a) Statutory Right to Discovery
Parks’ claim that his statutory right to discovery was violated by the denial of his motion for personal access to discovery is based on the provisions regarding “request[s] . . . to
inspect and copy or photograph” set forth in Neb. Rev. Stat.
§ 29-1912 (Cum. Supp. 2024). Section 29-1912 requires that
courts reviewing requests under that section consider specific factors, including whether the request is material to the
preparation of the defense. It also prescribes that whenever
a court refuses to grant an order under the section, the court
must “render its findings in writing together with the facts
upon which the findings are based.” 94 In addition, § 29-1912
establishes procedures whereby the State may show a court
that an order under the section will result in “the possibility of
bodily harm to witnesses or that witnesses will be coerced.” 95
Parks claims that “none of these statutory mandated actions”
occurred here. 96
We agree with the State that Parks’ arguments are foreclosed
under Figures. In Figures, as in this case, an incarcerated
defendant “requested copies of discovery that he could keep
in his possession, instead of reviewing discovery with his
attorney.” 97 The district court overruled that request, and the
defendant appealed. On appeal, we looked to the plain language of § 29-1912, which “‘permit[s] the defendant to inspect
and copy or photograph [discovery],’ but does not mandate that
the State provide physical copies of discovery for a defendant
93
State v. Figures,
308 Neb. 801,
957 N.W.2d 161 (2021).
94
§ 29-1912(3).
95
§ 29-1912(4).
96
Brief for appellant at 41.
97
Figures, supra note 93,
308 Neb. at 815, 957 N.W.2d at 178.
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to possess while incarcerated.” 98 As such, we concluded that
the district court had not abused its discretion in overruling the
defendant’s request.
The same is true here. Section 29-1912 does not give Parks
a statutory right to personal access to discovery. Additionally,
because the court previously entered an order for statutory discovery, § 29-1912 did not impose an obligation upon the State
and district court to articulate why Parks’ motion for personal
access to discovery should be denied.
(b) Constitutional Right to
Present Complete Defense
Parks also argues that denying him personal access to
discovery violated his constitutional right to present a complete defense. Parks claims that he needed personal access to
discovery materials because “only he, [as an] eyewitness to
the events . . . , was in a position to extract details” from the
surveillance videos and police body camera footage relevant
to his defense that a third party shot Harbour and Hatten. 99
Parks also claims that if he had had personal access to the
discovery materials, the error regarding when the video on
Harbour’s phone was “interacted with” would have been discovered sooner. Parks maintains this mistake was the “sole
reason” that the defense elicited testimony about the murder
of his son that Parks claims was not relevant and was prejudicial to him. 100
[24,25] We have recognized that whether rooted directly
in the Due Process Clause of the 14th Amendment or in
the Compulsory Process or Confrontation Clauses of the
6th Amendment, the federal Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
98
Id.
99
Brief for appellant at 42.
100
Id. at 43.
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defense. 101 However, notwithstanding that right, we have also
said that a defendant does not have an unfettered right to
discovery. 102
For example, in State v. Henderson, 103 we rejected the defendant’s challenge to an order of the district court that kept him
from accessing the police department’s gang files. The defendant argued that the files were a “proper subject for discovery
because they might contain information that would affect the
outcome of the trial.” 104 In particular, the defendant argued that
information in the files “might” undermine the State’s identification of an individual referred to as “JB” in a text message
by showing that there were other individuals known as JB. 105
We disagreed.
We observed that if the defendant had wanted to present evidence that JB was someone other than the individual
identified by the State, “there likely would have been other
resources better familiar” with the meaning of “JB” in the
text message. 106 We explained that, at most, the information
sought by the defendant would have shown that other people
were known as JB and might have been referred to in the text
message. We also observed that even without access to the
gang files, the defendant was able to argue that the State did
not prove the person known as JB was the person the prosecution claimed and that the text message may have referred to
someone else.
We relied on similar reasoning in State v. Sellers 107 in
rejecting a defendant’s challenge to a jury instruction stating
101
State v. Said, 306 Neb. 314,
945 N.W.2d 152 (2020).
102
State v. Henderson, 289 Neb. 271,
854 N.W.2d 616 (2014).
103
Id.
104
Id. at 296, 854 N.W.2d at 637.
105
Id.
106
Id. at 297, 854 N.W.2d at 638.
107
State v. Sellers, 279 Neb. 220,
777 N.W.2d 779 (2010).
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that evidence of marijuana and money located in a residence
was received only for the limited purpose of the victim’s
credibility, and not for other purposes. The defendant claimed
that the instruction “negated the logical inference” that the
victim was a drug dealer, which the defendant claimed was
“relevant and consistent with” his testimony that he met the
victim to buy marijuana, and not to rob and kill him. 108 As
such, the defendant claimed that the instruction prejudiced his
ability to present a complete defense. We disagreed. We noted
that the instruction did not foreclose the defendant’s ability to
argue that the victim was a drug dealer. 109 We also noted that
the defendant was permitted to question the victim about the
drugs and money found in the residence, that evidence of the
drugs and money was admissible for the purpose of determining who was truthfully describing the events in question, and
that the instruction did not preclude the jury from considering
the defendant’s version of events. 110
In the present case, the restriction on discovery of which
Parks complains did not preclude him from reviewing the
discovery materials with his counsel for indicia of a thirdparty shooter or for potential issues related to the video on
Harbour’s phone.
Also, like in Henderson and Sellers, the restriction did not
prevent Parks from arguing that someone else was the shooter
or from challenging the State’s identification of him as the
shooter. Parks points to an OPD officer’s testimony that there
were “a couple [of] suspicious parties” in the parking lot after
the shootings who refused to talk to police and “took off in
a hurry” whom police did not follow up on, with the apparent implication that one of them could have been the shooter.
However, the jury heard that evidence, as well as other evidence that raised questions about the identification of Parks
108
Id. at 234, 777 N.W.2d at 791.
109
Id.
110
Id.
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as the shooter. This included evidence that the surveillance
videos did not capture the actual shootings, that the gun used
in the shootings was not recovered, that there were several
individuals seen leaving the hotel together with Parks in the
hours before the shootings whom police never identified, and
that an eyewitness saw a person in the parking lot around the
time of the shootings whom Parks argued was inconsistent
with descriptions of him.
As to the error regarding when the video on Harbour’s
phone was “interacted with,” even if Parks had had personal
access to discovery materials and spotted the error prior to
trial, evidence of the murder of his son would still have been
relevant at trial, for the reasons set forth below.
Finally, as to Parks’ claim that defendants are denied personal access to discovery due to “a conspiracy between the
Public Defender’s Office, the State, and the court to deny
[them] an ability to defend themselves,” 111 we reject that argument. Practices and policies like that described in Douglas
County have been recognized to protect not only the State
and its witnesses but also defendants. For example, copies
of materials provided to defendants could be stolen by other
inmates, who could then use the information contained in the
materials to bolster false claims that the defendant confessed
to them. 112
4. No Abuse of Discretion in Denying
Motion for Mistrial
Parks further claims that the district court erred in denying
his motion for a mistrial based on the State’s reference to the
video on Harbour’s phone in its opening statements and the
111
Brief for appellant at 42.
112
See, e.g., Jeff Welty, New Ethics Opinion on Incarcerated Defendants’
Right to Review Discovery, North Carolina Criminal Law: A UNC School
of Government Blog (Dec. 10, 2014), https://nccriminallaw.sog.unc.edu/
new-ethics-opinion-on-incarcerated-defendants-right-to-review-discovery/
(last visited Aug. 27, 2025).
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subsequent testimony from an OPD officer about the murder
of Parks’ son. Parks claims that this information was irrelevant and prejudicial to him because it suggested a motive for
the shootings. The State, in turn, argues that its mistake about
the time when the video on Harbour’s phone was “interacted
with” did not cause any prejudice to Parks, but instead “probably was actually beneficial to” him. 113 The State also argues
that the evidence regarding the murder of Parks’ son would
have been admitted into evidence even without the error when
the video on Harbour’s phone was “interacted with.”
[26,27] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial. 114 To prove error predicated on the failure to grant
a mistrial, the defendant must prove the alleged error actually
prejudiced him or her, rather than creating only the possibility of prejudice. 115 In the context of a denial of a motion for
mistrial, actual prejudice means
prejudice that is “‘[e]xisting in fact; real.’” In defining
the term, we have drawn on its meaning in similar legal
contexts to determine that actual prejudice requires “a
reasonable probability that, but for [the] errors, the result
of the proceeding[s] would have been different.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 116
[28] Turning first to counsel’s reference to the video in
the State’s opening arguments, we agree with the State that
Parks cannot show that he was actually prejudiced by that
statement. Both parties appear to agree that the statement
113
Brief for appellee at 27.
114
State v. Lenhart, 317 Neb. 787, 11 N.W.3d 661 (2024).
115
Id.
116
Id. at 793, 11 N.W.3d at 667 (quoting State v. Robinson,
271 Neb. 698,
715 N.W.2d 531 (2006)).
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was improper. As such, we assume without deciding that it
was improper. However, the opening statements of counsel
are not evidence, and the jury was instructed to this effect.
Absent evidence to the contrary, it is presumed that a jury
followed the instructions given in arriving at its verdict. 117
Parks points to no such evidence here.
Moreover, within the context of the trial as a whole, the
reference to the video on Harbour’s phone in the State’s opening arguments seems to have benefited Parks. As set forth in
greater detail above, after opening arguments, the State discovered that the video was not “interacted with” until several
hours after the murders, and it never offered the video into
evidence. As a result, Parks was able to emphasize the State’s
failure to produce the video in his own closing arguments. In
particular, Parks highlighted the State’s failure to produce evidence that it had promised, evidence that he claimed the State
would assuredly have “shov[ed] . . . in [the jury’s] face” had
it been available.
[29] As to the testimony by the OPD officer, we are not
persuaded that this testimony was irrelevant, as Parks claims.
To be relevant, evidence must be probative and material. 118
Evidence is probative if it has any tendency to make the
existence of a fact more or less probable than it would be
without the evidence. 119 A fact is material if it is of consequence to the determination of the case. 120 Given Lee’s
testimony, of which Parks does not complain on appeal, the
evidence here meets that standard. Among other things, Lee
testified that Parks was in Omaha on July 30, 2020, because
his son had recently been murdered; that Parks and Harbour
looked at “pictures” on Harbour’s phone in the hotel room
shortly before the shootings; and that Parks told her after the
117
State v. Barnes, 317 Neb. 517, 10 N.W.3d 716 (2024).
118
State v. Mabior, 314 Neb. 932,
994 N.W.2d 65 (2023).
119
Id.
120
Id.
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shootings that he had spotted a “picture . . . of his son’s dead
body” on Harbour’s phone and that he believed Harbour “had
something to do with [his] son getting killed.”
[30] The evidence of which Parks complains was prejudicial
to him, as he argues. However, the fact that evidence is prejudicial is not enough to require exclusion under Neb. Evid. R.
403,
Neb. Rev. Stat. § 27-403 (Reissue 2016), because most,
if not all, of the evidence a party offers is calculated to be
prejudicial to the opposing party. 121 It is only the evidence
which has a tendency to suggest a decision on an improper
basis that is unfairly prejudicial under rule 403. 122 We see no
such basis here.
As such, under the standard of review previously noted, the
district court cannot be seen to have abused its discretion in
overruling Parks’ motion for a mistrial.
5. Ineffective Assistance of Counsel
Lastly, Parks assigns, restated and reordered, that his
appointed and/or retained trial counsel were ineffective in
(1) refusing to assert his statutory and constitutional rights to
a speedy trial, (2) entering into an agreement with the State
without his knowledge or consent that prohibited him from
having “direct access” to discovery materials, (3) failing to
withdraw the motions to depose, (4) failing to review the discovery, and (5) failing to petition for further review after the
Court of Appeals affirmed the order of the district court overruling Parks’ initial motion for absolute discharge.
[31,32] When a defendant’s trial counsel is different from
his or her counsel on direct appeal, the defendant must raise
on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from
the record; otherwise, the issue will be procedurally barred
121
State v. Moore, 317 Neb. 493, 10 N.W.3d 531 (2024).
122
Id.
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in a subsequent postconviction proceeding. 123 However, the
fact that an ineffective assistance of counsel claim is raised
on direct appeal does not necessarily mean that it can be
resolved. 124 The determining factor is whether the record is
sufficient to adequately review the issue under the standard
of review previously noted. 125
[33-36] Generally, to prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 126 the
defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defendant’s defense. 127 To show that counsel’s performance was deficient, a defendant must show
that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. 128 To show
prejudice in a claim of ineffective assistance of counsel, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would have been different. 129 A reasonable probability of
prejudice from ineffective assistance of counsel is a probability sufficient to undermine confidence in the outcome. 130
Courts may examine performance and prejudice in any order
and need not examine both prongs if the defendant fails to
demonstrate either. 131
123
State v. Corral, 318 Neb. 940, 20 N.W.3d 372 (2025).
124
Id.
125
Id.
126
Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674
(1984).
127
Corral, supra note 123.
128
State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025).
129
Id.
130
See id.
131
Brown, supra note 39.
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STATE v. PARKS
Cite as 319 Neb. 773
(a) Failure to Assert Statutory and
Constitutional Rights to Speedy Trial
Parks’ first claim of ineffective assistance of trial counsel
concerns his appointed counsel’s “fail[ure]” to assert his statutory and constitutional rights to a speedy trial. Parks argues
that his appointed counsel was deficient in continuing multiple pretrial conferences “without [his] knowledge or consent, and against his expressly stated wishes,” and in refusing
to withdraw the motions to depose in the face of his “speedy
trial objections.” 132 Parks claims that he was prejudiced by
this deficient performance because “witnesses and potential
witnesses were subject to threats and coercion that effected
[sic] their testimony or willingness to participate in [his]
defense” and because he was “prevented . . . from achieving
an absolute discharge based on a statutory violation of [his]
speedy trial rights.” 133 The State disagrees.
Turning first to the continuances, even assuming that Parks’
appointed counsel was deficient in moving to continue without his consent, 134 his claim that counsel’s conduct prevented
him from achieving absolute discharge is too speculative to
establish the prejudice required for an ineffective assistance
of counsel claim. Parks’ claim here essentially presumes that
had his appointed counsel not moved to continue without his
consent, the State would not have brought him to trial within
the 6-month speedy trial deadline. However, there is no way
to assess the accuracy of that presumption.
Parks’ claim that appointed counsel’s motions to continue
impaired his defense is similarly without merit because it
is conclusory. Parks asserts that various people, including
Lee, were subject to threats, but he does not specify what
their testimony would have been absent such threats, beyond
noting that Lee would not have testified that he was the
132
Brief for appellant at 47.
133
Id. at 48.
134
But see State v. McHenry, 268 Neb. 219,
682 N.W.2d 212 (2004).
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STATE v. PARKS
Cite as 319 Neb. 773
shooter and that he told her Harbour had been involved in his
son’s murder. 135
As to the motions to depose, Parks also cannot show that
he was prejudiced by appointed counsel’s failure to withdraw
those motions. Parks’ appointed counsel filed the motions to
depose on November 29, 2021, and retained counsel entered
his appearance on January 24, 2022. As such, there was a
period of 56 days during which she was responsible for the
handling of the motions to depose. However, there were more
than 56 days remaining on Parks’ speedy trial clock at the
time of his initial motion to discharge on statutory speedy
trial grounds.
(b) Entering Into Agreement Prohibiting
“Direct Access” to Discovery Materials
Parks’ second assignment of ineffective assistance of trial
counsel concerns the agreements that his appointed and retained
counsel entered into without his consent that precluded him
from having direct access to discovery materials. Parks claims
that their performance in entering such agreements was deficient because it was inconsistent with their obligations as his
agent. Parks also claims that it prejudiced his ability to defend
himself. The State counters that even if Parks’ counsel did perform deficiently, Parks cannot show he was prejudiced because
it was the court’s orders, and not counsels’ agreements with the
State, that kept him from getting personal access to discovery.
We agree with the State that Parks cannot show prejudice,
although we rely on different reasoning. As discussed above,
Parks’ claim of prejudice is based on his view that if he had
had personal access to discovery materials, he could have
identified the actual shooter and prevented the introduction of
evidence regarding his son’s murder that he claims was not
relevant and was prejudicial to him. However, those claims are
without merit for the reasons set forth above.
135
See, e.g., State v. Garcia, 315 Neb. 74,
994 N.W.2d 610 (2023); State v.
Hood, 301 Neb. 207,
917 N.W.2d 880 (2018).
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
(c) Failure to Withdraw Motions to Depose
Parks’ third assignment of ineffective assistance of trial
counsel concerns the failure to withdraw the motions to
depose. Parks’ assignment of error here references both his
appointed and his retained counsel. However, in the body of
his brief, Parks’ arguments concern only his retained counsel. As such, our discussion here is limited to Parks’ retained
counsel, 136 although we note that Parks raised essentially the
same argument regarding his appointed counsel in conjunction
with his claim that she was ineffective in refusing to assert
his speedy trial rights. Parks claims that had retained counsel not failed to finalize or withdraw the motions to depose,
his “statutory speedy trial clock would indisputably have run
before he was brought to trial.” 137 The State counters that even
if retained counsel’s performance was deficient, Parks cannot
show that he was prejudiced.
We agree with the State that Parks cannot show prejudice
here. The record shows that Parks’ retained counsel entered
his appearance on January 24, 2022. Subsequently, starting
on February 4, Parks’ retained counsel requested continuances
of the pretrial conference and of the trial that, collectively,
totaled over 200 days. In other words, retained counsel’s
alleged failure to obtain a ruling or withdraw the motions
to depose caused only a little over a week of delay prior to
the initial motion to discharge that were not also attributable
to retained counsel’s motions to continue. Those 10 days of
delay did not affect the rulings on Parks’ initial or renewed
motions to discharge.
As noted above, Parks takes the view that the district
court’s overruling of his renewed motion to discharge could
be affirmed only if the 145 days of delay that passed between
136
Goynes, supra note 128 (alleged errors of lower court must be both
specifically assigned and specifically argued in brief of party asserting
errors to be considered by appellate court).
137
Brief for appellant at 49.
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319 Nebraska Reports
STATE v. PARKS
Cite as 319 Neb. 773
when the district court entered judgment on the mandate in
the interlocutory appeal and the start of trial were attributed to him as a result of the unresolved motions to depose.
However, Parks’ renewed motion for discharge on statutory
speedy trial grounds was properly overruled because Parks
waived his statutory speedy trial rights before he renewed
his motion to discharge. Seeking a ruling on the motions to
depose or withdrawing them after the interlocutory appeal
would have done nothing to change that outcome.
(d) Failing to “Review Discovery”
Parks’ fourth assignment of ineffective assistance of trial
counsel is that his appointed and retained counsel were ineffective for “failing to review the discovery.” However, Parks’
argument is somewhat different. Specifically, Parks argues
that “[n]either appointed nor trial counsel brought the videos
in discovery to [the jail] to review with [him].” 138 Not reviewing discovery is not the same thing as not reviewing discovery with him, and under State v. Mrza, 139 we decline to view
Parks’ assignment of error regarding not reviewing discovery
to encompass not reviewing discovery with him.
However, the result would be the same even if we were to
reach the substance of Parks’ claim. Parks claims that he was
prejudiced by the failure to review the discovery with him
because he could have detected the mistake regarding the time
when the video on Harbour’s phone was “interacted with,”
thereby preventing the introduction of evidence that he claims
was not relevant and was prejudicial to him. That argument is
without merit for the reasons set forth above.
138
Brief for appellant at 50.
139
State v. Mrza, 302 Neb. 931,
926 N.W.2d 79 (2019) (assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and appellate court will not
scour remainder of brief in search of such specificity).
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STATE v. PARKS
Cite as 319 Neb. 773
(e) Failure to Petition for Further
Review of Interlocutory Appeal
Finally, Parks assigns that his retained counsel was ineffective for failing to petition for further review after the
Court of Appeals affirmed the order of the district court
overruling his initial motion for absolute discharge on speedy
trial grounds. But as the State notes, retained counsel filed
a petition for further review that was denied by this court.
Therefore, Parks’ fifth claim of ineffective assistance of
counsel is without merit. 140
VI. CONCLUSION
Parks’ claims regarding his motions for absolute discharge,
his motions to depose witnesses, his motions for personal
access to discovery materials, and his motion for a mistrial are without merit. Parks’ claims of ineffective assistance
of appointed and retained trial counsel are also meritless.
Accordingly, we affirm Parks’ convictions.
Affirmed.
140
See, e.g., State v. Weathers, 304 Neb. 402,
935 N.W.2d 185 (2019).
