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                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                 STATE v. SUNDQUIST
                                                  Cite as 301 Neb. 1006

                                        State of Nebraska, appellee, v.
                                        M arvin D. Sundquist, appellant.
                                                     ___ N.W.2d ___

                                         Filed January 4, 2019.    No. S-17-1297.

                1.	 Effectiveness of Counsel: Appeal and Error. Appellate review of a
                     claim of ineffective assistance of counsel is a mixed question of law
                     and fact.
                 2.	 ____: ____. When reviewing a claim of ineffective assistance of coun-
                     sel, an appellate court reviews the factual findings of the lower court for
                     clear error.
                3.	 Courts: Appeal and Error. Both the district court and a higher appel-
                     late court generally review appeals from the county court for error
                     appearing on the record.
                4.	 Judgments: Appeal and Error. When reviewing a judgment for errors
                     appearing on the record, an appellate court’s inquiry is whether the deci-
                     sion conforms to the law, is supported by competent evidence, and is
                     neither arbitrary, capricious, nor unreasonable.
                5.	 Appeal and Error. An appellate court independently reviews questions
                     of law in appeals from the county court.
                6.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
                     assistance of counsel, the defendant must show that his or her counsel’s
                     performance was deficient and that this deficient performance actually
                     prejudiced the defendant’s defense.
                7.	 Effectiveness of Counsel: Records: Appeal and Error. A claim of
                     ineffective assistance of counsel need not be dismissed merely because
                     it is made on direct appeal. The determining factor is whether the record
                     is sufficient to adequately review the question.
                8.	 Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
                     tive assistance of counsel claim is raised in a direct appeal, the appellant
                     is not required to allege prejudice; however, an appellant must make
                     specific allegations of the conduct that he or she claims constitutes defi-
                     cient performance by trial counsel.
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             Nebraska Supreme Court A dvance Sheets
                     301 Nebraska R eports
                            STATE v. SUNDQUIST
                             Cite as 301 Neb. 1006

  9.	 ____: ____: ____. General allegations that trial counsel performed defi-
      ciently or that trial counsel was ineffective are insufficient to raise an
      ineffective assistance claim on direct appeal and thereby preserve the
      issue for later review.
10.	 Effectiveness of Counsel: Records: Appeal and Error. An ineffective
      assistance of counsel claim made on direct appeal can be found to be
      without merit if the record establishes that trial counsel’s performance
      was not deficient or that the appellant could not establish prejudice.
11.	 Actions: Waiver: Appeal and Error. Under the law-of-the-case doc-
      trine, a well-recognized waiver rule has emerged: A decision made at
      a previous stage of litigation, which could have been challenged in the
      ensuing appeal but was not, becomes the law of the case; the parties are
      deemed to have waived the right to challenge that decision.

   Appeal from the District Court for Dodge County, Geoffrey
C. H all and Timothy P. Burns, Judges, on appeal thereto from
the County Court for Dodge County, K enneth J. Vampola,
Judge. Judgment of District Court affirmed.

   Marvin D. Sundquist, pro se.

   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.

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

   Heavican, C.J.
                     I. INTRODUCTION
   This is an appeal from the district court for Dodge County,
Nebraska. Following a retrial in the county court for Dodge
County, a jury convicted Marvin D. Sundquist of driving under
the influence (DUI), second offense aggravated. Sundquist was
sentenced to 18 months’ probation. The district court affirmed.
Sundquist appeals. We affirm.

                   II. BACKGROUND
  At approximately midnight on November 17, 2014, Officer
Anthony Gartner conducted a traffic stop on a vehicle for
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. SUNDQUIST
                        Cite as 301 Neb. 1006

speeding. Sundquist was the driver and only person present
in the vehicle. After making contact with Sundquist, Gartner
smelled the odor of alcoholic beverage coming from inside
the vehicle and noticed that Sundquist’s eyes were watery and
bloodshot. Sundquist also admitted to drinking.
   Gartner asked Sundquist to perform certain field sobriety
tests, as well as a preliminary breath test. The results of this
testing indicated that Sundquist was impaired. Sundquist was
arrested and submitted to a chemical breath test performed in
accordance with all relevant regulations. The chemical breath
test was completed using a machine commonly referred to
as a “DataMaster,” a machine that utilizes infrared spectro
photometry, or an infrared light beam, to measure the alcohol
content in a person’s breath. The result of the chemical breath
test showed Sundquist’s breath alcohol content to be .160 of 1
gram of alcohol per 210 liters of breath.

                     1. Pretrial Proceedings
   The State charged Sundquist with DUI, second offense
aggravated, under Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010)
and 60-6,197.03(5) (Cum. Supp. 2014), a Class I misdemeanor.
At a hearing on January 13, 2015, the State offered to drop
the aggravated portion of the charge as part of a plea agree-
ment in exchange for Sundquist’s pleading guilty or no con-
test. Sundquist, acting pro se, rejected the offer and sought a
jury trial. At the insistence of the court, Sundquist was given
the opportunity to reconsider his decision and to seek coun-
sel. Though the order of events is not entirely clear from the
record, it appears that Sundquist was eventually appointed
counsel, but still rejected the offered plea agreement.

                        2. First Trial
   Trial was held on April 9, 2015. Sundquist, by this time
represented by counsel, objected to Gartner’s testimony regard-
ing the results of Sundquist’s breath test. Sundquist’s objection
was based on the State’s failure to disclose “the appropriate
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                      STATE v. SUNDQUIST
                       Cite as 301 Neb. 1006

certification” to establish Gartner as qualified to operate the
DataMaster. Sundquist argued that “his entire defense was
based on the State’s failure to disclose the correct permit and
that . . . he had prepared no alternative strategy or defense.”
After hearing from the parties, the county court overruled
Sundquist’s objection. The jury found Sundguist guilty, and
the county court found Sundquist’s conviction to be a sec-
ond offense.
   Several days later, Sundquist’s counsel moved for a
new trial. Sundquist, acting pro se, moved to withdraw the
motion and further asked that new counsel be appointed. In
response, Sundquist’s trial counsel withdrew and new counsel
was appointed. Sundquist was subsequently sentenced to 18
months’ probation.

                         3. First A ppeal
   On June 16, 2015, Sundquist appealed his conviction to the
district court. In that appeal, Sundquist argued, among other
things, that the county court erred in allowing the arresting
officer “to provide testimony in regard to the results of the
test as his certification to operate the testing device was not
previously provided to [Sundquist] and his counsel.” After
hearing from the parties, the district court agreed that the
county court had erred. The district court further concluded
that the error was not harmless. Accordingly, the district court
reversed the county court’s judgment and remanded the case
for further proceedings.
   On February 26, 2016, Sundquist appealed to the Nebraska
Court of Appeals, arguing that the Double Jeopardy Clause for-
bade a retrial. On July 29, in case No. A-16-213, the Court of
Appeals rejected that argument and summarily affirmed.

                        4. Second Trial
  A second trial was held on April 20, 2017. Sundquist filed
multiple pretrial motions. First, Sundquist moved for discharge
on speedy trial grounds, which the county court denied. Second,
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                        STATE v. SUNDQUIST
                         Cite as 301 Neb. 1006

once the State made clear that it would not offer Sundquist a
plea agreement as it had initially done prior to the first trial,
Sundquist moved to dismiss on the grounds of prosecutorial
misconduct and prosecutorial vindictiveness. That motion was
also denied.
   At trial, the State again called Gartner to testify. His testi-
mony was consistent with his prior testimony and covered the
traffic stop, the on-the-scene investigation, and the chemical
breath test at the police station. The State also called the main-
tenance officer for the breath test machine to testify. The offi-
cer’s testimony encompassed the chemical breath test machine,
the various maintenance protocols, and the relevant margin of
error. Specifically, he testified that the machine was working
properly on the day in question.
   A jury found Sundquist guilty, and the county court again
determined that Sundquist’s conviction was a second offense.
Sundquist was again sentenced to 18 months’ probation.

                          5. Second A ppeal
   On May 30, 2017, Sundquist, represented by counsel,
appealed his conviction to the district court. Counsel did not
file a statement of errors on Sundquist’s behalf before that
court. Despite this, the district court addressed the issue raised
at the appeal hearing: that Sundquist was entitled to a reoffer
of the earlier plea agreement that the State proposed before the
first trial and the State’s failure to do so was improper. The dis-
trict court affirmed the county court’s judgment and conviction,
noting that the court found no error. Sundquist appeals.

                III. ASSIGNMENTS OF ERROR
   Sundquist assigns, consolidated and restated, that (1) his
counsel was ineffective in various ways, (2) both counsel were
ineffective and Sundquist’s due process rights were violated
with respect to the State’s only offered plea agreement, and (3)
his constitutional rights were violated by various actions of the
State and the trial court.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                              STATE v. SUNDQUIST
                               Cite as 301 Neb. 1006

                 IV. STANDARD OF REVIEW
   [1,2] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,3 an appellate court
reviews such legal determinations independently of the lower
court’s decision.4
   [3-5] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record.5 When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.6
But an appellate court independently reviews questions of law
in appeals from the county court.7
                          V. ANALYSIS
              1. Ineffective Assistance of Counsel
   Sundquist contends that he received ineffective assistance
of counsel during the course of his representation. First, he
argues that he was, in effect, denied an appeal to the dis-
trict court because (1) he received ineffective assistance of
counsel in that his attorney (a) failed to file a statement of
errors, (b) failed to make “persuasive” arguments, (c) failed to

 1
      State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
 2
      Id.
 3
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
 4
      State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
 5
      State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
 6
      Id.
 7
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

adequately challenge the chemical breath test, and (d) failed
to argue that his performance on the field sobriety tests was
inconsistent with the level of intoxication as indicated by the
chemical breath test, and (2) the court prevented him from
arguing in his own behalf. Sundquist next claims his coun-
sel was ineffective by not adequately communicating with
Sundquist. Finally, Sundquist argues that the State interfered
with his right to effective assistance of counsel in the first
trial by not disclosing that Gartner was qualified to operate
the chemical breath test machine, which Sundquist argues
interfered with his counsel’s ability to advise him during
plea negotiations.
   [6-9] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend
ant’s defense.8 A claim of ineffective assistance of counsel
need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.9 When the claim
is raised in a direct appeal, the appellant is not required to
allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel.10 General allegations
that trial counsel performed deficiently or that trial counsel
was ineffective are insufficient to raise an ineffective assist
ance claim on direct appeal and thereby preserve the issue for
later review.11
   [10] Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims

 8
      State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
 9
      Id.
10
      Id.
11
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. SUNDQUIST
                                Cite as 301 Neb. 1006

were without merit, or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect
of the error, which effect was a fundamentally unfair trial. An
ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that
trial counsel’s performance was not deficient or that the appel-
lant could not establish prejudice.12
   As we have previously stated, an appellant is required to
specifically assign and argue his or her trial counsel’s alleg-
edly deficient conduct.13 This arises from a fundamental rule of
appellate practice. An alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error to be considered by an appellate court.14 A gen-
eralized and vague assignment of error that does not advise an
appellate court of the issue submitted for decision will not be
considered.15 Similarly, an argument that does little more than
restate an assignment of error does not support the assignment,
and an appellate court will not address it.16
   It naturally follows that on direct appeal, an appellate court
can determine whether the record proves or rebuts the merits
of a claim of ineffective assistance of trial counsel only if it
has knowledge of the specific conduct alleged to constitute
deficient performance.17 An appellant must make specific alle-
gations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel when raising an ineffective
assistance claim on direct appeal.18

12
      Id.
13
      State v. Filholm, supra note 1.
14
      Id.
15
      Id.
16
      Id.
17
      Id.
18
      Id.
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               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                            STATE v. SUNDQUIST
                             Cite as 301 Neb. 1006

             (a) Failure to File Statement of Errors
   Sundquist assigns that his counsel failed to file a statement
of errors in his appeal to the district court. The State concedes
that counsel did not file a statement of errors, but argues that
Sundquist suffered no prejudice, because the district court
addressed Sundquist’s challenges on appeal despite counsel’s
deficient performance. We note that the district court consid-
ered the argument advanced by Sundquist in his appeal to that
court. The district court found no merit to Sundquist’s argu-
ment as to the filing of a statement of errors. We agree.
   The district court considered the argument advanced by
Sundquist in his appeal to that court, despite the absence of a
statement of errors. At the close of arguments, the district court
stated, “I don’t find any error that occurred at the County Court
level. As I just indicated to your plea offer argument, is — I
would say it’s frivolous. . . . The State is under no obligation to
re-offer you any type of plea agreement once you rejected it.”
The court’s statement at the close of argument indicates that
the court addressed the argument raised by Sundquist despite
the fact that the alleged error—the refusal to require the State
to reoffer a previously rejected plea agreement—had not been
assigned in a statement of errors to the court. Furthermore, as
we conclude below, Sundquist was not entitled to a reoffer of
the plea agreement. As such, Sundquist was not prejudiced by
his counsel’s inadequate performance.
   This case is reminiscent of State v. Stubbendick,19 a case
heard by the Court of Appeals. In Stubbendick, the defend
ant’s attorney likewise failed to file a statement of errors,
leaving the district court to limit its review to plain error.
The defendant argued that had counsel properly filed a state-
ment of errors which challenged the probable cause findings
regarding his operation of a vehicle on a public roadway and
the sufficiency of the evidence, the district court may have

19
      State v. Stubbendick, No. A-14-232, 2014 WL 4825375 (Neb. App. Sept.
      30, 2014) (selected for posting to court website).
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                 Nebraska Supreme Court A dvance Sheets
                         301 Nebraska R eports
                                  STATE v. SUNDQUIST
                                   Cite as 301 Neb. 1006

found in his favor on these issues. The Court of Appeals
applied Strickland, finding that the defendant’s arguments
did not demonstrate a reasonable probability that but for his
counsel’s allegedly deficient performance, the result of the
proceeding would have been different. The result is the same
in this case.
    As such, there is no merit to Sundquist’s argument as to the
filing of a statement of errors.

                      (b) Failure to Make
                    “Persuasive” Arguments
   Sundquist argues that he suffered ineffective assistance of
counsel at his second trial on April 20, 2017, where he claims
his counsel failed to make “persuasive” arguments to both the
county court and the district court on appeal concerning the
margin of error of the DataMaster.
   First, Sundquist argues that his trial counsel should have
attacked either the admissibility or the accuracy of the
DataMaster results, or vigorously attacked the margin of error
of the DataMaster. Sundquist contends that at trial, his coun-
sel “made a half-hearted attempt at questioning the margin
of error.”20 Sundquist claims that his attorney should have
questioned the accuracy of the DataMaster and the difference
between a 5-percent margin of error allowed in a controlled
environment, as compared to the margin of error in an uncon-
trolled environment. We observe, however, that counsel raised
the issue of the DataMaster’s accuracy and the margin of error.
As such, counsel’s conduct was not deficient.
   Sundquist next argues that on appeal to the district court, his
attorney failed to effectively argue in support of his position
that the State was required to reoffer the original plea agree-
ment. Again, we note the record demonstrates that counsel
raised the issue. Despite lacking legal authority for the posi-
tion, counsel nevertheless argued that the State should have

20
      Brief for appellant at 8.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

been required to reoffer the rejected plea agreement, because
the State failed to provide Gartner’s DataMaster certification at
the time the plea agreement was offered.
    It is important to note that the district court properly observed
that under State v. Obermier,21 the State is not required to enter
the certification into evidence. Despite counsel’s effort, the dis-
trict court denied the appeal, further noting that it was, in the
opinion of the court, “frivolous.” Counsel cannot be deficient
in raising the very issue Sundquist now complains about, and
as such, there is no merit to Sundquist’s allegation.
    As for the argument that the State was required to reoffer
the previously rejected plea agreement, the record shows that
despite being aware that case law did not support the posi-
tion that the State must reoffer the prior plea agreement,
Sundquist’s counsel argued that the State was required to
reoffer the previously rejected plea agreement. Counsel based
 that request on the State’s action in failing to disclose the offi-
 cer’s chemical test machine certification. Because Sundquist
 does not explain precisely what counsel should have argued in
 an effort to prevail on this point, and because counsel clearly
 raised the issue of the prior plea agreement, counsel’s conduct
 was not deficient.
    Sundquist also argues that the court erred and caused him to
 have ineffective assistance of counsel when it declined to allow
 Sundquist to be heard following the court’s ruling on the reoffer
 of the plea agreement. The court observed that Sundquist was
 represented by counsel and not entitled to address the court at
 that time due to the presence of counsel on his behalf. We find
 no error in the court’s ruling. We have noted that a defendant
 does not have a right to any type of “hybrid representation,”
 and it is within the trial court’s discretion whether to allow
 such representation.22 The trial court did not err in refusing to

21
      State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).
22
      State v. Wilson, 252 Neb. 637, 652, 564 N.W.2d 241, 253 (1997).
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. SUNDQUIST
                        Cite as 301 Neb. 1006

allow Sundquist to be heard at a time when he was represented
by counsel.
   There is no merit to these allegations.
         (c) Failure to Argue Sundquist’s Performance
            on Field Sobriety Tests Was Inconsistent
              With Level of Intoxication Indicated
                    by Chemical Breath Test
   Sundquist assigns that counsel was inadequate for failing to
challenge that Sundquist’s performance on the field sobriety
tests was inconsistent with the results of the chemical breath
test indicating the level of intoxication. We have combined
these assignments as they are indistinguishable. The record
demonstrates that Sundquist’s counsel had no grounds to
argue that Sundquist’s performance on the field sobriety tests
and lack of video evidence were inconsistent with the level
of intoxication shown by the chemical breath test results.
Gartner’s testimony indicated that Sundquist showed signs
of impairment on the field sobriety tests in that Sundquist
was unable to complete maneuvers, could not maintain his
balance, and failed to follow directions, all of which are
consistent with intoxication and none of which can be used
to establish that Sundquist was below a .150 breath alcohol
content level.

             (d) Failure to Adequately Communicate
                          With Sundquist
   Sundquist next alleges that counsel failed to adequately com-
municate with him. Sundquist alleges that prior to his second
trial, he requested that counsel hire an expert witness to deter-
mine the margin of error for the chemical breath test machine.
Sundquist claims he was unaware that counsel had failed to
obtain an expert until a week prior to trial. Further, Sundquist
alleges that he never discussed trial strategy with his attorney.
However, Sundquist fails to demonstrate how an expert would
have meaningfully contributed to his margin of error claim
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           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. SUNDQUIST
                        Cite as 301 Neb. 1006

beyond the cross-examination of the State’s witnesses concern-
ing the particular DataMaster unit’s margin of error. Further, as
to Sundquist’s claim that counsel failed to communicate trial
strategy, the record contradicts Sundquist’s claims.
   At the district court appeal, counsel is on record stat-
ing, “I’ve communicated all pleas to my client since I was
appointed. No pleas were ever offered, Judge, at the lower case
in County Court.” Further, Sundquist’s counsel followed the
trial strategy of highlighting the margin of error of the breath
test machine, a strategy that Sundquist was clearly aware of
as, by his own admission, he sought to hire an expert to lend
credibility to the argument regarding the margin of error.
Additionally, counsel clearly argued that Sundquist “wish[ed]
that he had the opportunity to plead to the lower charge,” a
statement that is accurate and was effectively communicated to
both Sundquist’s counsel and the court. Ultimately, however,
Sundquist failed to sufficiently allege facts that demonstrate
deficient performance. Further, the evidence against Sundquist
was overwhelming and better communication would not have
changed the weight of the evidence.
   There is no merit to this allegation.

       (e) Sundquist Claims State Interfered With Right to
           Effective Assistance of Counsel in First Trial
            by Not Disclosing Gartner’s Certification
   Sundquist also argues that the State interfered with his
counsel’s communication by withholding information about
Gartner’s chemical breath test machine certification at the time
of the plea offer. Additionally, Sundquist contends that his due
process rights were violated when he was denied the opportu-
nity to make a knowing and voluntary decision regarding the
initial plea offer.
   We turn first to whether Sundquist waived his right to
appeal the issue regarding the plea agreement. The State cor-
rectly asserts that Sundquist’s claim regarding the prosecu-
tion’s failure to disclose information during a plea offer is not
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

properly before the court. The State, relying on Pennfield Oil
Co. v. Winstrom,23 grounds its argument on the fact that in the
first appeal, Sundquist had the opportunity and the incentive
to raise the claim regarding the plea agreement, noting that
Sundquist waived the issue by failing to raise the claim on his
first appeal.
   [11] In Pennfield Oil Co., we noted that under the law-of-
the-case doctrine, a well-recognized waiver rule has emerged:
A decision made at a previous stage of litigation, which could
have been challenged in the ensuing appeal but was not,
becomes the law of the case; the parties are deemed to have
waived the right to challenge that decision, for it would be
absurd that a party who has chosen not to argue a point on a
first appeal should stand better with regard to the law of the
case than one who had argued and lost.
   The State also relies on U.S. v. Henry,24 in support of its
argument. In Henry, the U.S. Court of Appeals for the District
of Columbia Circuit stated, “It is well-settled that ‘where an
argument could have been raised on an initial appeal, it is inap-
propriate to consider that argument on a second appeal follow-
ing remand.’”25
   Here, Sundquist had the opportunity and the incentive to
raise the claim regarding the plea agreement during his origi-
nal appeal following his first trial and conviction. Sundquist
failed to do so and is therefore bound by the law-of-the-case
doctrine.
   Sundquist waived this claim by failing to appeal it during
the initial appeal that followed his first trial and conviction.
           2. Claims of Constitutional Violations
   Sundquist next contends that his constitutional rights were
violated in various ways. First, Sundquist argues that the

23
      Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
24
      U.S. v. Henry, 472 F.3d 910 (D.C. Cir. 2007).
25
      Id. at 913.
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                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                              STATE v. SUNDQUIST
                               Cite as 301 Neb. 1006

State’s refusal to reoffer the same plea agreement at his sec-
ond trial, which he had rejected at his first trial, amounted to
vindictive prosecution, a due process violation. Sundquist also
assigns that he is being punished for “something other than the
crime he was charged with.” Next, Sundquist argues that his
second conviction and sentence violated the Double Jeopardy
Clause. Lastly, Sundquist argues that his right to a speedy trial
was violated.

                   (a) Vindictive Prosecution
   Sundquist alleges that the State engaged in vindictive pros-
ecution by refusing to reoffer the previously rejected plea
agreement once the case had been remanded for a new trial.
Specifically, Sundquist points to a statement made by the State
during the second trial, noting that “‘[a]s an office policy, after
a jury trial, we don’t make plea offers.’”26 Sundquist relies on
Blackledge v. Perry 27 to support this claim.
   We begin by observing that Sundquist is, of course, cor-
rect that punishing a person because he has done what the law
plainly allows him to do—in this case appeal his conviction—
is a due process violation “of the most basic sort.”28 The U.S.
Supreme Court has noted that while an individual certainly
may be penalized for violating the law, he just as certainly may
not be punished for exercising a protected statutory or consti-
tutional right.
   But the Court went on to note that the imposition of punish-
ment is the very purpose of criminal proceedings. Therefore,
the presence of a punitive motivation does not provide an
adequate basis for distinguishing governmental action that is
justified as a legitimate response to criminal conduct from
governmental action that is an impermissible response to a
protected activity. The Court, in establishing the presumption

26
      Brief for appellant at 13.
27
      Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).
28
      Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d
      604 (1978).
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                Nebraska Supreme Court A dvance Sheets
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                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

of a vindictive motive, specifically noted that it had done so
only in cases in which a “reasonable likelihood of vindictive-
ness exists.”29
   Moreover, Sundquist misunderstands Blackledge and its
implications on his case. In Blackledge, the U.S. Supreme
Court affirmed the issuance of a writ of habeas corpus because
the State charged a greater offense for the same conduct for
which the defendant had sought a de novo retrial of a lower
court conviction, finding that the State’s higher charge had a
potential vindictive nature.
   In this case, Sundquist was not charged with a greater
offense than what he had previously appealed, nor was his
resulting sentence greater than that of his first trial. Sundquist
argues that because he was not reoffered a plea agreement, his
due process rights were violated. We disagree.
   In United States v. Osif, 30 the U.S. Court of Appeals for the
Ninth Circuit noted that “a defendant does not have a consti-
tutional right to a plea bargain . . . nor, when he rejects a plea,
can he later object to the government’s decision to proceed
to trial on the counts originally charged.” Further, the Ninth
Circuit indicated that the vindictive prosecution doctrine does
not apply when neither the charge’s severity nor the sentence
is increased.
   The factual background of Osif is on point in this case. The
defendant appealed from his conviction for second degree mur-
der pursuant to a plea agreement that provided for a 15-year
sentence. Before entering the plea, the defendant was tried
and convicted of first degree murder, but that conviction was
reversed on appeal. Prior to the initial trial, the government
offered a plea agreement with a 10-year sentence for second
degree murder, which the defendant rejected. On appeal, he
argued that the government’s refusal to reoffer the earlier, more
beneficial, plea agreement on remand amounted to vindictive

29
      United States v. Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed.
      2d 74 (1982) (emphasis supplied).
30
      United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986).
                              - 1022 -
            Nebraska Supreme Court A dvance Sheets
                    301 Nebraska R eports
                       STATE v. SUNDQUIST
                        Cite as 301 Neb. 1006

prosecution. The Ninth Circuit disagreed, noting that not only
is there no constitutional right to a plea bargain, but that “vin-
dictiveness is not present if there are independent reasons or
intervening circumstances to justify the prosecutor’s action.”31
   Here, neither Sundquist’s charge nor his sentence was
increased; rather, the State merely refused to reoffer, after an
intervening conviction on the original charge, the same plea
offer that was previously rejected by Sundquist before the
initial trial. Additionally, the State had already xpended the
resources to prepare and try the case. Further, the State had
obtained a conviction, giving it confidence that a second con-
viction was likely.
   There is no merit to the allegation.
       (b) Sundquist’s Claim That He Is Being Punished
            for Something Other Than Crime With
                    Which He Was Charged
   Assigned separately, but inextricably intertwined with
Sundquist’s prosecutorial vindictiveness claim, is Sundquist’s
claim that he is being punished for something other than the
crime for which he was charged. Sundquist attempts to ground
this argument in the fact that the State originally believed it
appropriate to allow him to plead to nonaggravated DUI, a plea
he rejected. He further argues that because his breath alcohol
content was less than 10 percent over a .150 breath alcohol
content, there was no reason to believe the trial court would
not have accepted the plea.
   Sundquist can provide no legal or factual authority on which
he can ground this assignment of error. Further, his sentence
was within limits established for the crime for which he was
convicted. Therefore, this argument is without merit.
                (c) Double Jeopardy Clause
   Next, Sundquist argues that his conviction and sentence
violate the Double Jeopardy Clause. The State contends that

31
      Id.
                                    - 1023 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

Sundquist did not properly present the argument to the district
court and that the district court did not consider it; thus, the
argument was not preserved on appeal. The State cites to State
v. Lavalleur 32 to support its contention that on Sundquist’s
first appeal, the issue of double jeopardy was decided by
the Court of Appeals, and that the issue may not now be
relitigated on a subsequent appeal as it is now the law of
the case.
   We agree and find that the Court of Appeals’ decision is the
law of the case. Therefore, Sundquist’s assignment of error is
without merit.

                          (d) Speedy Trial
   Finally, Sundquist argues that the State violated his right to a
speedy trial. The State again argues that while Sundquist raised
the issue in the county court following remand, he did not pre
sent the issue to the district court on appeal, thus preventing
the district court from considering the issue and allowing only
a review for plain error.
   Sundquist maintains that had the State provided him with the
information concerning Gartner’s certification, he would have
agreed to the original plea agreement offered and pled guilty
to nonaggravated DUI. Sundquist argues that the State’s failure
required him to proceed through two trials. But the State was
not required to present the officer’s permit, nor was the State
required, at initial plea negotiations, to share the status of the
officer’s certification. Sundquist freely chose to take on a risky
defense strategy, and the State does not bear the responsibility
for that failed strategy.
   Sundquist’s final assignment of error is without merit.

                       VI. CONCLUSION
   The district court, sitting as an appellate court, did not err
in denying Sundquist’s appeal and affirming his conviction for

32
      State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).
                                      - 1024 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. SUNDQUIST
                                Cite as 301 Neb. 1006

DUI, second offense aggravated, as well as his sentence of 18
months’ probation. We affirm.
                                                  A ffirmed.
  Freudenberg, J., not participating.
   Cassel, J., concurring.
   I write separately to emphasize the duty of effective appel-
late counsel to file a statement of errors in an appeal of a
county court criminal case to the district court.
   Sundquist was entitled to effective appellate counsel on his
appeal from county court to district court. A criminal defendant
has the right to the effective assistance of appellate counsel in
his or her first appeal as of right.1 In a Nebraska criminal case
tried in the county court, that first appeal runs to the district
court.2 Thus, Sundquist’s appeal to the district court was his
only appeal subject to the Sixth Amendment right to counsel.
   To prevail on a claim of ineffective assistance of counsel
under the Strickland v. Washington 3 analysis, the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense.4 Here, the State conceded that Sundquist’s
appellate counsel’s failure to file a statement of errors was
deficient performance (that is, counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crimi-
nal law 5). This court agrees, and I agree with the court.

 1
      See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d
      552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.
      Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.
      2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d
      341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed.
      2d 811 (1963).
 2
      See State v. Hughan, 13 Neb. App. 862, 703 N.W.2d 263 (2005).
 3
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
 4
      State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
 5
      State v. Allen, ante p. 560, 919 N.W.2d 500 (2018).
                                      - 1025 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                               STATE v. SUNDQUIST
                                Cite as 301 Neb. 1006

   This court’s opinion concludes that there was no prejudice
shown here. Again, I agree. Two reasons persuade me. First, at
the appeal hearing before the district court, Sundquist’s appel-
late counsel advanced the very argument that Sundquist, now
without counsel, urged to this court. Second, the record, which
the court’s opinion quotes, demonstrates that despite the failure
to file the statement of errors, the district court considered the
merits of Sundquist’s argument. In other words, the district
court did not apply the rule permitting it to review only for
plain error.6
   But as I see this appeal, those two facts were the only rea-
sons not to apply a presumption of prejudice. United States v.
Cronic 7 provides narrow exceptions to the Strickland analy-
sis, where the reliability of the adversarial process is in such
doubt that prejudice to the defendant will be presumed, result-
ing in a conclusion of ineffective assistance of counsel.8 Two
of the three Cronic exceptions are (1) where the accused is
completely denied counsel at a critical stage of the proceed-
ings and (2) where counsel entirely fails to subject the pros-
ecution’s case to meaningful adversarial testing.9 Obviously,
Sundquist’s one and only counseled appeal as of right is
a critical stage of the proceedings against him. Although
Sundquist’s appellate counsel failed to file the required state-
ment of errors, at least he advanced the proposition Sundquist
urges to this court. And the district court considered whether
it constituted prejudicial error, which presents a much lower
threshold than plain error.10

 6
      See State v. Nielsen, ante p. 88, 917 N.W.2d 159 (2018).
 7
      United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657
      (1984).
 8
      State v. Jedlicka, supra note 4.
 9
      See id.
10
      See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (plain error is
      error, plainly evident from record, which prejudicially affects litigant’s
      substantial right and, if uncorrected, would result in damage to integrity,
      reputation, and fairness of judicial process).
                                    - 1026 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. SUNDQUIST
                              Cite as 301 Neb. 1006

   But it seems to me that it is only a short distance from the
situation here to the equivalent of a complete denial of counsel
on appeal. If appellate counsel files no statement of errors and
advances no arguments for reversal, which results in a cursory
review by the district court for plain error, it would be difficult
to avoid having to apply one or both of the Cronic exceptions
recited above.
   This in turn could easily result in a reversal of the district
court’s decision on appeal and a remand for a new direct
appeal with new counsel. And it also implicates very basic eth-
ical duties of Nebraska lawyers.11 These potential consequences
dictate that defendants’ counsel in criminal case appeals from
county court to district court should always file a timely state-
ment of errors.
   Miller-Lerman, J., joins in this concurrence.

11
      See Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence) and
      3-501.3 (diligence).


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Matter of Douce v City of New York (2017 NY Slip Op 05193)

Matter of Douce v City of New York

2017 NY Slip Op 05193

Decided on June 27, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 27, 2017

Friedman, J.P., Webber, Gesmer, Kern, JJ.

4380 67166/15 -1559

[*1]In re Oliver Douce, etc.,	Dkt. Petitioner,
vThe City of New York, et al., Respondents.

Oliver Douce, petitioner pro se.
Eric T. Schneiderman, Attorney General, New York (Charles F. Sanders of counsel), for the Judges of the Criminal Court of the City of New York, New York County, respondents.

The above-named petitioner having presented an application to this Court praying for an order, pursuant to article 78 of the Civil Practice Law and Rules,
Now, upon reading and filing the papers in said proceeding, and due deliberation having been had thereon,
It is unanimously ordered that the application be and the same hereby is denied and the petition dismissed, without costs or disbursements.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 27, 2017
CLERK


866 F.2d 1004
CONSOLIDATION COAL COMPANY and State of North Dakota, Petitioners,v.Mary McGRATH (Widow of Frederick McGrath)andDirector, Office of Workers' Compensation Programs, UnitedStates Department of Labor, Respondents.
No. 88-1241.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 21, 1988.Decided Jan. 26, 1989.

David Allen Barnette, Charleston, W.Va., for petitioners.
Robert Kirschman, Washington, D.C., for respondents.
Before ARNOLD and MAGILL, Circuit Judges, and ROSS, Senior Circuit Judge.
MAGILL, Circuit Judge.

1
This case arises under the Black Lung Benefits Act, Title IV of the Federal Coal Mine Health and Safety Act of 1969, Pub.L. No. 91-173, 83 Stat. 742 (codified as amended at 30 U.S.C. Secs. 901-45 (1982)).  Consolidation Coal Company (employer) appeals decisions of the Administrative Law Judge and the Benefits Review Board awarding benefits under the Act to Mary McGrath (claimant), widow of Frederick McGrath (miner).  After a close review of the record, we reverse.

I. BACKGROUND

2
Frederick L. McGrath worked for Consolidation Coal Company as an electrician and welder/mechanic from October 19, 1944 until December 31, 1972, when he retired.  McGrath spent most of his time working in a repair garage near the open pit lignite mines;  when heavy equipment broke down in the mines, he went into the pits to repair it.  At trial, McGrath's supervisor testified that the miner was a good employee and that he was able to perform all of the duties of his job until his retirement.

3
Approximately one year after retiring, McGrath became ill.  Hospital records indicate that he suffered from an inflammatory cell pathology of the lungs.  In 1975, McGrath was treated for shortness of breath, wheezing, easy fatigability and loss of weight.  Beginning in 1974, doctors performed several chest x-rays, a pulmonary function study, a lung biopsy and several arterial blood gas studies.  Suggested diagnosis for his condition included lymphatoid granulomatosis and Hodgkin's disease.  McGrath died on June 29, 1976.  The death certificate lists the cause of death as renal failure resulting from a urinary tract infection or septicemia, and also notes the presence of granulomatous pulmonary infiltrate.

4
On March 30, 1978, Mary McGrath filed this claim for benefits under the Black Lung Benefits Act, based on her husband's employment in surface lignite mining.  The matter came before an Administrative Law Judge for formal hearing in February 1983.  The ALJ issued a Decision and Order awarding benefits to the claimant, reasoning that, despite a lack of evidence demonstrating that the miner suffered from pneumoconiosis, the company failed to establish that the miner was not partially or totally disabled due to pneumoconiosis at the time of his death.  The Benefits Review Board affirmed the findings of the ALJ in January 1988, and this appeal followed.

II. DISCUSSION

5
A. Title IV Protection and Open Pit Lignite Mines

6
As a threshold issue, we must determine whether the Black Lung Benefits Act covers miners who work in open pit lignite mines.  The employer contends that the claimant is not eligible for benefits because Congress did not intend to include surface miners of lignite under the Black Lung Benefits Act.  In determining whether the Black Lung Benefits Act covers miners employed in open pit lignite mines, we must examine the plain language of relevant statutory provisions.  Sierra Club v. Clark, 755 F.2d 608, 613 (8th Cir.1985).  If the plain language is clear and unambiguous, it controls.  United States v. Archambault, 767 F.2d 402, 403 (8th Cir.1985).  Based on our reading of the plain language of the statute, we find that the Black Lung Benefits Act covers surface miners of lignite.

7
Section 3 of the Federal Coal Mine Health and Safety Act of 1969 defines "miner" as "any individual working in a coal mine" and defined "coal mine" as "an area of land * * * used in * * * the work of extracting in such area bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method * * *."    30 U.S.C. Secs. 802(g)-(h) (emphasis added).  Section 802 specifically states that the definitions contained therein are applicable "[f]or the purposes of this chapter," without limiting their applicability to the Black Lung Benefits Act, subchapter IV of the chapter.  Section 4 of the original Act is similarly unambiguous, stating that "[e]ach coal mine * * * shall be subject to the provisions of this Act."    Pub.L. No. 91-173, Sec. 4, 83 Stat. 742, 744 (1969) (emphasis added).  This language clearly indicates that all coal mines as defined under the Act are subject to all provisions of the Act, including Title IV.

8
The 1977 amendments to the 1969 Act explicitly addressed the applicability of the section 3(h) definition of "coal mine" to Title IV.  Thus, section 102(b)(3) of the amendments added the introductory phrase "[f]or purposes of titles II, III, and IV " to the statutory definition at section 3(h).  Pub.L. No. 95-164, Sec. 102(b)(3), 91 Stat. 1290 (emphasis added).1   According to this language, we must apply the section 3(h) definition of "coal mine" from the 1969 Act to miner compensation cases arising under the Black Lung Benefits Act.  Thus, we hold that the Black Lung Benefits Act covers miners who work in open pit lignite mines.

B. Standard of Review

9
The company argues that, because surface miners have a lower incidence of pneumoconiosis than underground miners, the ALJ and, by implication, this court should view claims arising solely from surface mining of lignite with stricter scrutiny than claims arising from mining of bituminous coal or anthracite.  This contention, for which the company provides no authority, clearly contradicts the relevant statutory provisions, which do not distinguish surface mining from other forms of mining.  Therefore, we reject the company's argument and apply the customary standard of review.

10
The Benefit Review Board's scope of review of an ALJ's decision is limited: the Board may set aside the ALJ's factual findings only if they are not supported by substantial evidence in the record as a whole.  33 U.S.C. Sec. 921(b)(5);  Director v. Rowe, 710 F.2d 251, 254 (6th Cir.1983), quoted in Newman v. Director, OWCP, 745 F.2d 1162, 1164 (8th Cir.1984).  This court's role is to ensure that the Board properly adhered to this standard.  Thus, we must examine the ALJ's factual determinations and the record as a whole.  Hon v. Director, OWCP, 699 F.2d 441, 444 (8th Cir.1983).  In so doing, we look not only to evidence supporting the ALJ's findings, but to any evidence in the record which detracts from such findings.

C. Examination of the ALJ's Decision

11
The Black Lung Benefits Review Act effectively establishes a rebuttable presumption of pneumoconiosis for miners working a certain number of years in coal mine employment.  30 U.S.C. Sec. 921(c).  Because McGrath died before March 1, 1978 and was employed for twenty-five years in coal mines before June 30, 1971, his widow is entitled to benefits under the Act "unless it is established that at the time of his * * * death such miner was not partially or totally disabled due to pneumoconiosis."    30 U.S.C. Sec. 921(c)(5).

12
We find no support for the ALJ's conclusion that the employer failed to rebut the presumption of pneumoconiosis.  The record presents no substantial evidence that the miner had pneumoconiosis, but presents a great deal of evidence that the miner did not suffer from the disease.  All of the physicians who submitted reports2 either specifically found no objective evidence of coal workers' pneumoconiosis or indicated that the miner's problems were not related to his coal mine employment.

In his decision and order, the ALJ stated:

13
To be sure, the X-ray evidence is negative for pneumoconiosis, and the death certificate makes no mention of pneumoconiosis.  Moreover, the deceased miner worked steadily and regularly up until the time of his retirement.  Yet none of these factors considered alone would be sufficient to demonstrate the absence of a partial disability * * *.

14
In reviewing the "other evidence" in the record, the ALJ discussed only two pieces of medical evidence:  the statement of a doctor from the Mayo Clinic that a pleural tap and lung biopsy performed on the miner suggested a diagnosis of lymphomatoid granulomatosis and the testimony of an expert witness, Dr. Kress, at the hearing.

15
On our review of the record, we find that the ALJ ignored other significant medical evidence and mischaracterized Dr. Kress' testimony.  The ALJ was correct in stating "the absence of evidence establishing the existence of pneumoconiosis does not necessarily establish that Mr. McGrath did not suffer from the disease."    This case, however, presents extensive medical evidence that the miner did not suffer from pneumoconiosis.  The miner's treating physician, Dr. Carriedo, indicated no finding of coal workers' pneumoconiosis and "did not know" whether the miner's condition was caused by dust exposure.  Dr. Carriedo ordered the lung biopsy which led to Dr. Leung's diagnosis of the miner's condition as lymphomatoid granulomatosis.  Before the hearing, Dr. Lewis H. Weiland of the Mayo Clinic reviewed the biopsy slides.  His diagnosis showed pseudolymphoma with an alternative diagnosis of malignant lymphoma or lymphomatoid granulomatosis.  Dr. L. Hohholzer, the Chief of Pulmonary Mediastinal Pathology of the Armed Forces Institute of Pathology, also reviewed the biopsy materials.  He suggested the possibility of Hodgkin's disease while noting sarcoid-like granulomas in the cellular infiltrate.  The fact that none of these physicians mentioned coal workers' pneumoconiosis in their findings was clearly evidence the ALJ should have considered in determining whether the presumption was rebutted.

16
Whether or not the miner suffered from coal miners' pneumoconiosis is a question that calls for medical expertise.  As a panel of this court has stated, "[w]hile an [ALJ] is free to resolve issues of credibility as to lay testimony or to choose between properly submitted medical opinions, he is not free to set his own expertise against that of a physician who testified before him."    Newman, 745 F.2d at 1164, quoting Gober v. Matthews, 574 F.2d 772, 777 (3d Cir.1978).  In his report and testimony, Dr. Kress clearly stated that any disability suffered by the miner was unrelated to his coal mine employment.3   The ALJ's findings are contrary to Dr. Kress' medical testimony and unsupported by any other medical evidence.

III. CONCLUSION

17
This case presents no medical evidence showing that the miner suffered from pneumoconiosis and significant evidence that he did not suffer from the disease.  We find the evidence on the record sufficient to rebut any presumption of coal workers' pneumoconiosis, and therefore reverse the administrative decisions.

1
 Congress amended the 1969 Health and Safety Act to extend the coverage of its safety provisions to all mines as part of the renamed 1977 Safety and Health Act.  In doing so, Congress provided a new definition of "coal or other mine" applicable to the safety provisions of subchapter I of the 1977 Act.  30 U.S.C. Sec. 802(h)(1).  However, it retained the earlier definition of "coal mine" (formerly 30 U.S.C. Sec. 802(h), now 30 U.S.C. Sec. 802(h)(2)) expressly for the purposes of subchapter IV, the Black Lung Benefits Act

2
 We reach this conclusion without relying on the report of Dr. Kleinerman, which was submitted to the ALJ after the hearing.  The ALJ acted within his discretion in refusing to consider the report

3
 A review of the record shows that the ALJ misconstrued Dr. Kress' testimony.  Dr. Kress did not see the biopsy evidence until midway through his testimony.  As a result of his last minute review of the biopsy findings, Dr. Kress testified on redirect as follows:
QUESTION:  (Mr. Barnett)
Doctor, would you, then, change your opinion, at all, based on this biopsy report as to the presence or absence of coal workers' pneumoconiosis?
ANSWER:  (Dr. Kress)
I think, from a medical standpoint, there was no evidence of coal workers' pneumoconiosis.
QUESTION:  Since this is a biopsy, can you say that with a greater degree of certainty than you would if you merely had X rays and other type of evidence?
ANSWER:  Oh, I think, without question, that's correct.
QUESTION:  With reasonable degree of medical certainty, you would make that statement?
ANSWER:  Yes.
Under examination by claimant's counsel, Dr. Kress made the following statement.
QUESTION:  (Mr. Scheunemann)
Now, again, considering the history, the pulmonary function study, the biopsy, do you feel that you can positively rule out any contribution to this lung condition by coal workers' pneumoconiosis?
ANSWER:  (Dr. Kress)
I think so.  I think the evidence is pretty good--
QUESTION:  (Interrupting)  You can rule it out at the present time?
ANSWER:  Yes, I believe so.
(App-157)


653 S.E.2d 468 (2007)
WALKER
v.
The STATE.
No. S07A1019.
Supreme Court of Georgia.
November 21, 2007.
*469 Phillip Darrell Kimbrell, Marko Ludvik Burgar, Kimbrell & Burgar, LLC, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty.; Thurbert E. Baker, Atty. Gen., Amy E. Hawkins Morelli, Asst. Atty. Gen., Dept. of Law, Atlanta, for appellee.
HUNSTEIN, Presiding Justice.
Appellant Scott Walker appeals from his conviction of malice murder and related crimes in connection with the shooting death of Edric Finney.[1] Finding no error, we affirm.
*470 1. Viewed in the light most favorable to the verdict, the evidence reflects that on the evening of April 4, 2003, Edric Finney ran a quick errand for his girlfriend, Pamela Lyman, and returned to her apartment, which at the time was his primary residence. Lyman was at the apartment and, just before Finney entered, heard Finney at her door exchanging obscenities with another person. She then heard a single gunshot. When she entered the living room, she found her door wide open and Finney lying on the floor with a gunshot wound to the head.
On the evening in question, two off-duty Atlanta police officers who were working as security officers at Lyman's apartment building heard a loud "pop" like the sound of a firecracker. They approached Lyman's apartment and saw two young black men running from the apartment in different directions. At the apartment, the officers found Lyman crouched against the wall screaming and Finney lying in a large pool of blood. Expert testimony established that Finney died of a single close-range shotgun wound to the head.
At trial, Lyman testified that she recognized Walker and co-defendant Maurice Charleston as having both been to her apartment in the days prior to Finney's murder. She testified that Walker had come to her apartment and asked her for a gun, which he claimed was in Finney's possession but belonged to "his brother," who would need it when he was released from jail. The next day, Charleston went to Lyman's apartment, also inquiring about the gun. On the day of the shooting, Walker went to Lyman's apartment and again asked Lyman about the gun and Finney's whereabouts. Finney, who overheard the conversation from inside Lyman's apartment, emerged to talk to Walker, conversed with Walker for 15-20 minutes out of Lyman's earshot, and then returned to the apartment. Lyman also testified that Finney had been hiding a gun under the mattress in her bedroom.
Around the time of the shooting, Cheryl Sewell, a neighbor of Lyman, saw Finney stop to talk to Walker and Charleston on the sidewalk outside the apartment building. Sewell saw Finney enter Lyman's apartment, followed shortly thereafter by Walker and Charleston, who opened the door without knocking. Walker had a weapon. Sewell heard someone utter "oh," followed by a single gunshot and the sound of something falling. Sewell then saw Walker and Charleston emerge from the apartment, heading in different directions.
Walker and Charleston were arrested hours after the shooting at Charleston's home. When officers arrived, they found Walker soaking wet and hiding under some mattresses. The murder weapon was never found.
The foregoing evidence was sufficient to enable a reasonable trier of fact to find Walker guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Walker contends that the trial court erred by refusing to grant a mistrial or give curative instructions to remedy the State's elicitation of improper character evidence on two occasions. The evidence in question pertained to co-defendant Charleston's prior incarceration. In the first instance, during direct examination of Lyman, the prosecutor was inquiring about Lyman's prior contacts with Walker and Charleston, and the following exchange occurred:
Q. When did [Charleston] come to your home?
A. I think the night he got out of jail.
Nothing further was said at this time about Charleston's incarceration. The second instance occurred slightly later in Lyman's direct examination:
Q. . . . . During the week [prior to the day of the shooting], were there any other occasions where Mr. Walker had *471 come to your home looking for Mr. Finney?
A. Yes.
Q. How many, ma'am, roughly?
A. This was his second time.
Q. And on the other time when he came there, what did he say?
A. He introduced himself. He was like he was looking for my boyfriend because my boyfriend had a gun that belonged to his brother that was incarcerated at the time, and when his brother got out of jail he was going to want his gun back and that I needed to tell him that he wanted his gun back.[2]
There was no follow-up on or further mention of Charleston's incarceration.
Walker asserts that it was error not to declare a mistrial or issue curative instructions because the testimony regarding Charleston's incarceration had no probative value and improperly placed his character at issue, and thus also tainted Walker's character by implying that he associated with criminals. However, "[a] nonresponsive answer that impacts negatively on a defendant's character does not improperly place [his] character in issue." Hansley v. State, 267 Ga. 48, 49(3), 472 S.E.2d 305 (1996). See also Isaac v. State, 269 Ga. 875(5), 505 S.E.2d 480 (1998) (passing reference to defendant's criminal record does not place character in issue). Moreover, were we to find error in this regard, such error was harmless, as the evidence of Walker's guilt was overwhelming and thus it is highly probable that the admission of the challenged testimony did not contribute to the verdict. See Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).
3. Walker next contends that the trial court erred by refusing to sever his trial from that of co-defendant Charleston because of the "indelible taint" of the evidence regarding Charleston's prior incarceration. Except where the death penalty is sought, the issue of whether to sever the trial of multiple criminal defendants is left to the discretion of the trial court. Linares v. State, 266 Ga. 812(4), 471 S.E.2d 208 (1996). One who seeks severance bears the burden to make a clear showing of prejudice resulting from a joint trial. Id. The requisite prejudice may exist where a joint trial will create confusion of evidence and/or law; where there is a danger that evidence implicating one defendant may be considered improperly against another despite limiting instructions; or where the defendants assert defenses antagonistic to one another. Id.
Under the circumstances here presented, we find no error in the trial court's refusal to sever. The case involved a straightforward chain of events occurring over a period of a few days culminating in the shooting of a single victim. The evidence adduced at trial was not complex. Both defendants were named in every count of the indictment, and their defenses were not antagonistic to each other. Finally, as we held in Division 2, supra, the admission of evidence suggestive of Charleston's bad character, even if found to have been improper, was harmless in light of the overwhelming evidence of Walker's guilt. Thus, we find this enumeration to be without merit.
4. Finally, Walker contends that reversal is required because the State suppressed exculpatory evidence from the defense in violation of Brady v. Maryland.[3] The evidence in question takes the form of testimony from Jonathan Finney, the victim's brother, that he suspected that Lyman had assisted Walker and Charleston in orchestrating the confrontation that resulted in his murder. It is undisputed that Walker made a proper Brady motion, and the State does not dispute Walker's claim that it did not provide any information regarding Jonathan Finney's assertions to the defense in advance of his trial testimony. Walker contends that the State's failure to provide such information prejudiced his defense by preventing him from investigating Lyman's possible complicity, arguing for a lesser included crime, and/or potentially impeaching Lyman, the State's key witness in the case.
*472 However, Walker failed to object on these grounds at trial, and thus Walker has waived his right to raise such objection on appeal. See Jones v. State, 258 Ga. 249(6), 368 S.E.2d 313 (1988). In addition, contrary to Walker's assertions, there was no Brady violation. Jonathan Finney's suspicions regarding Lyman's possible involvement were nothing more than uncorroborated speculation that, even if true, would have done little to rebut or mitigate Walker's guilt. See Wells v. State, 237 Ga.App. 109(1), 514 S.E.2d 245 (1999) (evidence of another party's complicity not necessarily exculpatory of defendant). Furthermore, the evidence in question was available to Walker at trial,[4] at which he had the opportunity to pursue the issue through further questioning of Jonathan Finney and could, had he deemed it necessary, have sought a continuance to further investigate this theory. See Wallin v. State, 248 Ga. 29(1), 279 S.E.2d 687 (1981) (no Brady violation where evidence in question made available to defendant at trial unless delay in disclosure impaired defense or deprived defendant of fair trial). Accordingly, this enumeration is without merit.
Judgment affirmed.
All the Justices concur.
NOTES
[1]  The crimes occurred on April 4, 2003. Walker and co-defendant Maurice Charleston were indicted by a Fulton County grand jury on June 20, 2003 for malice murder, felony murder, burglary, aggravated assault, and possession of a firearm during the commission of a felony. Trial was held April 4-8, 2005. On April 8, 2005, the jury found both defendants guilty on all counts, and on April 22, 2005, Walker was sentenced to life imprisonment for malice murder; 20 years concurrent for burglary; and 5 years consecutive for possession of a firearm during the commission of a felony. The remaining counts merged for sentencing purposes. Walker's timely filed motion for new trial, as amended, was denied on February 24, 2006. Walker filed a notice of appeal to the Court of Appeals on March 24, 2006, which ordered the case transferred to this Court on February 12, 2007. The case was docketed herein on March 28, 2007 and was orally argued on June 25, 2007.
[2]  Further testimony reflected that the gun belonged to Charleston.
[3]  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[4]  In fact, it appears that the defense did have some knowledge regarding Jonathan Finney's suspicions before he testified in that regard at trial, as the trial transcript reveals that defense counsel cross-examined Lyman, who testified before Jonathan Finney, as to whether she was involved in the murder and in this context specifically alluded to Jonathan Finney's suspicions.


349 F.Supp. 1061 (1972)
Nancy JAMES and Elaine Sturgis, Plaintiffs,
v.
Richard NELSON, Defendant.
No. 72 C 2711.
United States District Court, N. D. Illinois, E. D.
October 30, 1972.
*1062 William I. Goldberg, Andrew J. Leahy, Chicago, Ill., for plaintiffs.
John J. Templin, DeKalb, Ill., for defendant.

MEMORANDUM OPINION AND ORDER
McLAREN, District Judge.
This matter is now before the Court upon plaintiffs' motion for a temporary restraining order. The plaintiffs, one a student and one a non-student, allege that they are actively participating in the election campaign, but have been prevented, in violation of their First Amendment rights, from "canvassing" eligible voters in student dormitories at Northern Illinois University. A hearing was held in this matter on October 27, where both parties were represented.
At issue are two university regulations. The first, a standing rule in effect for some period of time, forbids "solicitation" of any kind on student living floors. The second, entitled "Interim University Residence Hall Policy on Door-to-Door Political Canvassing" and dated October 23, 1972, was generated by requests for relaxation of the first rule after it was interpreted to apply to canvassing as well as commercial solicitation. This second regulation, which was to go into effect only after it was adopted by a two-thirds vote of the residents of each dormitory, after which individual floors could approve of it by a two-thirds vote, provides that canvassers must register and obtain a letter of authorization covering a specific time period; that male canvassers must be escorted in women's living areas; that canvassing is limited to the hours of 1:00 p. m. to 8:00 p. m.; that canvassers may not solicit contributions or attempt to advertise or sell any item; that "no canvassing" signs on students' doors and requests to leave must be honored; that no amplifying devices may be used; that certain areas are "off limits" to canvassing, and that violators may thereafter be excluded.
Although their complaint appears to read more broadly, plaintiffs contest only the two-thirds voting requirement of the canvassing regulation, urging that it has effectively prohibited canvassing and therefore unduly limits their constitutional rights to freedom of association and expression. The Court agrees and an order will issue restricting defendant from enforcing that portion of the October 23, 1972 policy statement which restricts canvassing to those residence halls adopting the policy. The Court emphasizes, however, that it does not find that, and indeed no challenge has been made that, the eight numbered conditions and restrictions set forth in that statement are in any way unreasonable or beyond the powers of the university administration to impose in the interests of good order and the safety and comfort of the student body.
As the Supreme Court recently noted, "colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, *1063 408 U.S. 169, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972). Nearly twenty years ago, Justice Black stated:
"For centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings. Whether such visiting shall be permitted has in general been deemed to depend upon the will of the individual master of each household, and not upon the determination of the community."
Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). In Martin, the Court struck down a city ordinance prohibiting such activities. Here, the university is in the position of the city, and the students are in the position of householders.
Of course, university officials may place reasonable restrictions upon the exercise of First Amendment rights, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Sword v. Fox, 446 F.2d 1091, 1097 (4th Cir. 1971); Bayless v. Martine, 430 F.2d 873, 878 (5th Cir. 1970), and their right to do so in this case is recognized, as previously noted.
The representative of the university argued principally that the policy banning dormitory canvassing was intended to protect the residents' rights to privacy, and was put into effect because the elected student representatives of the dormitories approved of it. He noted that when the policy was submitted to residents for a vote, not one dormitory voted in favor of allowing canvassing. This case involves more, however, than the rights of those students who chose not to allow canvassing. Also to be considered are the rights of other residents to choose to hear the canvassers. The First Amendment embraces the right to hear as well as to speak. Brooks v. Auburn University, 412 F.2d 1171, 1173 (5th Cir. 1969).
In Healy, supra, at 2346, the Court noted that its recognition of the need for university control of conduct on campus did not indicate that First Amendment protections should apply with less force on the campus than in the community at large; it noted further that denying the full range of associational activities to an organization constitutes a form of prior restraint, placing upon it a "heavy burden" of justification. Id. at 2348.
It might be argued that various alternative means are available to carry the issues to the students. Meetings, distribution of literature, and personal contacts in the public areas of the campus, including the lounges and lobbies of the dormitories, are permitted. But this does not justify the deprivation of what Justice Black recognized as one of the traditional methods of "canvassing." This is not a case involving demonstrations, the occupation of university property, or other circumstances where injury to persons or property is imminent or even foreseeable. The individual dormitory residents' rights to privacy in their rooms can be protected by "no canvassing" signs, or by simply telling canvassers to go away. Any threat to students' safety is covered by the registration provision of the policy.
All things considered, the Court finds that the university has not met the "heavy burden" of justifying the virtual ban which it has placed upon door-to-door political canvassing in the dormitories.
Plaintiffs, on the other hand, have met their burden of showing the strong probability of success on the merits. Because the facts upon which they base their claims to relief are essentially undisputed, they need not show that they will be irreparably harmed, Brass v. Hoberman, 295 F.Supp. 358, 361 (S.D. N.Y. 1968); it is clear that the prevention of the exercise of rights such as these may not later be remedied. That the balance of the hardships is in favor of the plaintiffs is clear from the discussion above of the interests of the plaintiffs, *1064 the university, and the students. Accordingly, a temporary restraining order consistent with the foregoing will issue forthwith.
It is so ordered.


     Case: 11-50469       Document: 00512085695         Page: 1     Date Filed: 12/17/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 17, 2012
                                     No. 11-50469
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO CERVANTES-DEL TORO, also known as Marcelo Miranda-Cantu,
also known as Marcelo Aranda-Cantu, also known as Jose Acuna,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CR-581-1

Before DAVIS, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The attorney appointed to represent Rogelio Cervantes-Del Toro has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Cervantes-Del Toro has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous issue

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 11-50469   Document: 00512085695    Page: 2   Date Filed: 12/17/2012

                               No. 11-50469

for appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

                                     2