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
Effectiveness of Counsel: Appeal and Error.
Assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege
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.
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
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.
Trial: Prosecuting Attorneys. When
considering a claim of prosecutorial misconduct, an appellate
court first considers whether the prosecutor's acts
___:___. 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.
Neb. 70] 8. ___: ___. A prosecutor's conduct that does
not mislead and unduly influence the jury is not misconduct.
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.
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
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
___: ___: ___ . 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.
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
___: ___. 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.
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.
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.
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.
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.
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
from the District Court for Scotts Bluff County: Leo P.
S. Breen, of Nebraska Commission on Public Advocacy, for
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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
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.
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."
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
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.
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.
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.
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.
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.
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.
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