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State v. Munoz

Supreme Court of Nebraska

May 10, 2019

State of Nebraska, appellee,
Lucio P. Munoz, appellant.

         1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         2. Effectiveness of Counsel: Appeal and Error. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance.

         3. Appeal and Error. An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

         4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

         5. Appeal and Error. In the absence of plain error, where an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

         6. Trial: Prosecuting Attorneys. When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor's acts constitute misconduct.

         7. ___:___. 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.

         [303 Neb. 70] 8. ___: ___. A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct.

         9. Rules of Evidence: Intent. The purpose of Neb. Rev. Stat. § 27-513(2) (Reissue 2016) is to prevent the jury from drawing an unfavorable inference from a witness' assertion of a privilege.

         10. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record, otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

         11. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         12. ___: ___: ___ . The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel's actions could not be justified as a part of any plausible trial strategy.

         13. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         14. ___: ___. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         15. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

         16. 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.

         17. Evidence. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

         [303 Neb. 71] 18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

         19. Criminal Law: Evidence. The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing.

          Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge.

          Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          Cassel, J.


         In this direct appeal from criminal convictions, Lucio P. Munoz focuses on three incidents at trial: (1) a comment during the prosecutor's opening statement about evidence not found, (2) a witness' assertion of a testimonial privilege in the jury's presence, and (3) expert testimony regarding blood spatter evidence. Because trial counsel did not object, Munoz alleges plain error and ineffective assistance of counsel. We find neither. The prosecutor's statement was consistent with the evidence. The bill of exceptions does not show that the prosecutor knew the witness would assert a privilege. And the blood spatter evidence was neither irrelevant nor unfairly prejudicial. We affirm the district court's judgment.


         On Friday, December 30, 2016, at approximately 10 p.m., Munoz knocked on Trudy Ziegler's door. He told her that his girlfriend, Melissa May, had been raped that morning by a tenant of the same apartment complex where they all lived. [303 Neb. 72] Ziegler told Munoz to call the police, and he did so from her apartment.

         Just after 11 p.m., two police officers arrived at the apartment complex. Their body cameras recorded the interaction. Munoz told the officers that May had been raped. He allowed the officers into his apartment, where an intoxicated May was asleep on Munoz' bed. After Munoz woke her, May told the officers that she did not know why they had been called and Munoz told her to "tell them the truth." May did not wish to make a police report. One of the officers told Munoz that when May was sober, she could come talk to the police. Munoz replied that she was not going to do so. He added, "But something's gonna happen, I know."

         An upset Munoz returned to Ziegler's apartment and said that May did not want to press charges. He asked "what do I do now," and Ziegler told him "just love her all the more."

         At approximately 2 a.m. on December 31, 2016, Munoz called his son, Martin Brady. Munoz told Brady that he "did something . . . bad" and that he wanted to kill himself. Brady's girlfriend called the police to check on Munoz.

         The same two officers returned to Munoz' apartment shortly after 3 a.m. Again, their body cameras recorded the interaction. Munoz said that he was feeling bad "because of what happened." He allowed the officers into his apartment. The door to his bedroom was closed, and he told the officers that his girlfriend had gone home. Munoz agreed to go to a hospital to speak with someone. He locked the deadbolt on his apartment door, and one of the officers drove him to the hospital.

         At approximately 8 a.m., Brady received a call from a doctor for Munoz "to get out of the . . . hospital." Brady and his girlfriend picked up Munoz and took him to Brady's house. Munoz stayed at Brady's house the rest of the morning, and at some point, arrangements were made for Munoz to leave town. Brady explained that Munoz had talked about seeing family because it had "been awhile" and that Munoz had brothers in Texas and Illinois.

         [303 Neb. 73] A friend of Munoz agreed to take Munoz to Illinois to visit one of his brothers. The friend asked if Munoz wanted to travel the next day, but Munoz said he wanted a ride as soon as possible. So, the friend testified, they "gassed up, and headed out." According to the friend, Munoz had no luggage or other items and he left Munoz in Illinois with Munoz' brother.

         Meanwhile, Ziegler did not see Munoz or May on Saturday, which she said was unusual. On Sunday and Monday, Ziegler knocked on Munoz' door, but there was no answer. On Tuesday, January 3, 2017, Ziegler asked the property manager to check on May. Using a master key to unlock the deadbolt, the property manager entered Munoz' apartment. She opened the bedroom door and discovered May, deceased, on the bed.

         An autopsy revealed that May had suffered 37 stab wounds, and the cause of death was determined to be multiple stab wounds. The turquoise sweatshirt on May's body appeared to match her top as depicted on the December 30, 2016, body camera footage. Evidence for a sexual assault kit was collected, and it showed no DNA profile other than that of May.

         Munoz' brother in Texas began searching for Munoz due to a concern that "something had happened . . . where he live[s]." After making telephone calls, he discovered that Munoz was in Illinois. Munoz asked his brother to forgive him, but did not say for what. During later ...

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