State v. Garcia

315 Neb. 74

994 N.W.2d 610

STATE of Nebraska, appellee,

v.Anthony J. GARCIA, appellant.

No. S-18-979.

Supreme Court of Nebraska.

Filed September 8, 2023

Jeffery A. Pickens, Lincoln, and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

Michael T. Hilgers, Attorney General, and James D. Smith, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Arterburn, Judge.

Heavican, C.J.

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I. INTRODUCTION

The appellant, Anthony J. Garcia, was convicted of four counts of first degree murder, four counts of use of a weapon to commit a felony, and one count of attempted burglary. He was sentenced to death for each of the four murder convictions, 19 to 20 years’ imprisonment for two of the use of a weapon convictions, 49 to 50 years’ imprisonment for the remaining use of a weapon convictions, and 20 months’ to 5 years’ imprisonment for the attempted burglary conviction. This automatic appeal follows.¹

II. BACKGROUND

These facts involve two sets of murders committed 5 years apart. On March 13, 2008, William Hunter discovered the bodies of his 11-year-old son, Thomas Hunter (Hunter), and Shirlee Sherman, aged 57 and employed as the family's cleaner, at the Hunter home in the Dundee neighborhood of Omaha, Nebraska. Both Hunter's and Sherman's carotid arteries and jugular veins were severed, and the knives used to inflict those wounds were left in the victims’ necks.

Just over 5 years later, on May 14, 2013, the bodies of Roger Brumback and Mary Brumback were discovered in their home, also in Omaha. Roger and Mary were stabbed in the neck; Roger was also shot. Mary's carotid artery and jugular vein were severed, as was Roger's carotid artery.

The Brumback murders revived the investigation into the Hunter/Sherman murders because of a connection between William Hunter and Roger, who were both employed by Creighton University (Creighton) in Omaha in its pathology department. Further investigation led law enforcement to suspect Garcia of both sets of murders. Garcia was eventually arrested in Illinois on July 15, 2013. Search warrants were then obtained and executed for Garcia's home in Terre Haute, Indiana, and at his parents’ home in California. Garcia was

later charged with both sets of murders and the associated weapons charges, as well as an attempted burglary at the home of Chhanda Bewtra, another individual employed in Creighton's pathology department.

The State's theory of the crimes was that Garcia committed each set of murders as revenge for his termination from Creighton's pathology residency program. In support of this theory, in addition to presenting factual evidence regarding the two murder scenes and Garcia's physical and digital movements at the time of the murders, the State presented evidence of Garcia's time at Creighton. The State also offered evidence of Garcia's professional and personal life between the two sets of murders to show that his termination from Creighton's residency program, at least occasionally, prevented Garcia from obtaining a medical license in different states and from generally considering himself to be successful.

Garcia was represented by "Team Motta," composed of lawyers primarily practicing in Chicago, Illinois, but admitted pro hac vice in Nebraska for purposes of representing Garcia. The Chicago members of Team Motta were Robert Motta, Sr.; Robert Motta, Jr.; and Alison Motta. In order to be admitted pro hac vice, Team Motta was required to associate with local counsel; at some point prior to trial in Douglas County, original local counsel withdrew, and new local counsel—notably including

[994 N.W.2d 639]

Omaha attorney Jeremy Jorgenson—joined as counsel.

As will be noted in more detail below, when original local counsel withdrew, Team Motta needed to be readmitted pro hac vice. At this time, Alison Motta's motion to be admitted pro hac vice was denied, while the motions of the remainder of Team Motta were granted. As such, by the time of trial, Alison Motta was not able to appear in court to represent Garcia. Throughout our opinion, we refer to Team Motta as defense or trial counsel; where referencing Alison Motta specifically, we refer to her as "Motta."

Trial eventually began in late September 2016, after which the jury found Garcia guilty on all charges. A notice of aggravation had been filed with regard to the four murder charges, and thus, Garcia was death eligible. Following a hearing on aggravating factors, the jury found two aggravators each as to the Hunter/Sherman murders and three aggravators each as to the Brumback murders.

At this point in time, the district court appointed the Commission on Public Advocacy (Commission) as cocounsel for purposes of Garcia's sentencing hearing. The details surrounding this are also set forth in more detail below. By the time this sentencing hearing was held, however, Team Motta had withdrawn from representing Garcia and only the Commission acted as representation for Garcia. Following a further sentencing hearing at which Garcia produced evidence of mitigating factors, a three-judge panel sentenced Garcia to death for each of the four murder convictions. The Commission continues to represent Garcia on appeal.

Additional factual and procedural background is incorporated below.

III. ASSIGNMENTS OF ERROR

Garcia assigns 130 separate assignments of error, which generally comprise 15 separate topic areas: (1) motions to suppress and evidentiary objections, (2) testimony of Cecilia Hoffmann, (3) interlocutory appeals, (4) motion to sever, (5) change of venue and jury sequestration, (6) competency, (7) discovery, (8) DNA and digital evidence, (9) miscellaneous claims of ineffective assistance of counsel, (10) closing arguments, (11) aggravating circumstances, (12) mitigating circumstances, (13) constitutionality of the death penalty, (14) balancing and proportionality, and (15) broad-scale ineffectiveness and procedural bar. We have adopted this framework to address Garcia's assignments of errors. We set forth in detail a pertinent list of assigned errors—consolidated and restated—at the commencement of each topic area.

We note that throughout his brief, Garcia often "incorporates" facts, propositions of law, legal standards, assignments of error, arguments, or any combination thereof from other sections of his brief and, at times, even other parts of the record. Sometimes, these "incorporations" identify the source of the incorporated material. At other times, they do not. We determine that, generally, Garcia's incorporations are insufficient for us to consider the "incorporated" materials as part of the related argument. This outcome is supported by several propositions of this court.

First, we have long held that to be considered by an appellate court, the party asserting the alleged error must both specifically assign and specifically argue the error in the party's initial brief.² Where an appellant's brief contains conclusory assertions unsupported by a coherent analytical argument, the appellant fails to

[994 N.W.2d 640]

satisfy such requirement.³ Moreover, we have held that, in both the criminal and postconviction context, an appellate court will not ordinarily scour the record in search of facts that might support an appellant's claim.⁴

Additionally, in the context of petitions for further review, we have noted that incorporation by reference of the assignments of error and arguments made in one's appellate brief is not an appropriate way to separately and concisely set forth the assignments of error in a petition for further review.⁵

For the purposes of briefs filed with the appellate courts, we do not encourage the practice of incorporating by reference any content material to a party's argument, particularly

when such references are unclear, and any party who does incorporate by reference does so at the party's own peril.⁶

IV. ANALYSIS

1. MOTIONS TO SUPPRESS AND EVIDENTIARY OBJECTIONS

(a) Assignments of Error

Collectively, Garcia's first 13 assignments of error discuss Garcia's allegations of district court error and ineffective assistance of trial counsel with regard to evidence obtained through the stop and subsequent search warrants undertaken of Garcia's vehicle and home, as well as of the home of his parents. We consolidate and renumber those assignments for ease of disposition.

Garcia assigns that (1) the district court erred in overruling his motion to suppress evidence from his warrantless stop and arrest in Illinois because the arresting officer had no knowledge of the facts supporting Garcia's arrest and because the collective knowledge doctrine was inapplicable.

In addition, Garcia assigns that his trial counsel was ineffective in (2) not preserving his suppression arguments with regard to the evidence obtained from the stop of his vehicle, including the failure to prepare for, make, and preserve objections to items and documents seized from Garcia's vehicle; (3) not preserving his suppression arguments with regard to the evidence obtained from searches under the remaining warrants, including the failure to prepare for, make, and preserve objections to documents seized under those warrants; (4) failing to prepare for, make, and preserve objections to records and testimony relating to Garcia's behavior as a medical resident; (5) stipulating to the admissibility of records and testimony relating to Garcia's behavior as a medical resident; (6) failing to argue that the State's motion in limine was time barred in light of the district court's January 28, 2016, order;

(7) failing to argue that the State did not carry its burden regarding the sufficiency of the warrants by omitting proof of the May 25, 2013, warrant upon which all other warrants were premised; (8) failing to properly assert and prove the allegations in Garcia's Franks v. Delaware⁷ motion; (9) failing to submit a brief in support of Garcia's motion in limine;

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(10) failing to seek...