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.
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.
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.
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.
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.
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.
Records: Appeal and Error. It is incumbent
upon an appellant to supply a record which supports his or
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.
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
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
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
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.
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.
Pretrial Procedure: Prosecuting Attorneys:
Evidence. A prosecutor has a duty to disclose all
favorable evidence to a criminal defendant prior to trial.
from the District Court for Douglas County: Thomas A. Otepka,
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Pirtle, Riedmann, and Welch, Judges.
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