Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Howard

Court of Appeals of Nebraska

December 4, 2018

State of Nebraska, appellee,
v.
John J. Howard, appellant. 26 Neb.App. 628

         1. Trial: Appeal and Error. In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to improper remarks no later than at the conclusion of the argument.

         2. Trial: Motions for Mistrial. When a party has knowledge during trial of irregularity or misconduct, the party must timely assert his or her right to a mistrial.

         3. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

         4. Trial: Juries: Evidence. Trial courts have broad discretion in allowing the jury to have unlimited access to properly received exhibits that constitute substantive evidence of a defendant's guilt.

         5. Trial: Juries: Evidence: Appeal and Error. A trial court's decision to allow a jury during deliberations to rehear or review evidence, whether such evidence is testimonial or nontestimonial, is reviewed by an appellate court for an abuse of discretion.

         6. Trial: Testimony: Evidence: Words and Phrases. Testimonial evidence refers to trial evidence, including live oral examinations, affidavits and depositions in lieu of live testimony, and tapes of examinations conducted prior to the time of trial for use at trial in accordance with procedures provided by law.

         7. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal.

         8. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska [16 Neb.App. 629] Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

         9. Trial: Waiver: Appeal and Error. A party may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.

         10. Effectiveness of Counsel: 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.

         11. Effectiveness of Counsel: Proof. 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.

         12. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. Determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct requires an appellate court to first determine whether the petitioner has alleged any action or remarks that constituted prosecutorial misconduct.

         13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.

         14. Pretrial Procedure: Prosecuting Attorneys: Evidence. A prosecutor has a duty to disclose all favorable evidence to a criminal defendant prior to trial.

          Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Affirmed.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          RIEDMANN, Judge.

         I. INTRODUCTION

         John J. Howard appeals his convictions and sentences in the district court for Douglas County of first degree sexual assault, [16 Neb.App. 630] sexual assault of a child, and first degree sexual assault of a child. We find that the record is insufficient to address several of his ineffective assistance of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.