State v. Clausen , 307 Neb. 968 ( 2020 )

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CLAUSEN
Cite as 307 Neb. 968State of Nebraska, appellee, v.
Timothy J. Clausen, appellant.
___ N.W.2d ___
Filed December 11, 2020. No. S-20-109.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
2. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
3. Trial: Evidence. Balancing the probative value of evidence against the
danger of unfair prejudice is within the discretion of the trial court.
4. Appeal and Error. Although an appellate court ordinarily considers
only those errors assigned and discussed in the briefs, the appellate court
may, at its option, notice plain error.
5. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
7. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
8. ____: ____. 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 deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
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STATE v. CLAUSEN
Cite as 307 Neb. 9689. Self-Incrimination: Juries: Rules of Evidence. Neb. Rev. Stat.
§ 27-513(2) (Reissue 2016) makes it clear that courts must avoid hav-
ing witnesses claim privilege in the presence of the jury whenever
practicable.
10. Self-Incrimination. A witness may not testify voluntarily about a sub-
ject and then invoke the privilege against self-incrimination when ques-
tioned about the details.
11. Criminal Law: Witnesses: Testimony. When a defendant’s witness
testifies about a criminal action which is central to the defendant’s guilt,
but then refuses to answer the State’s questions challenging the witness’
assertion, the testimony may be stricken.
12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately
looks to the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the error a
guilty verdict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely unattrib-
utable to the error.
13. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
court’s conclusions with regard to evidentiary foundation and witness
qualification for an abuse of discretion.
14. ____: ____: ____. The admission or exclusion of evidence is a matter
left largely to the sound discretion of the trial court, whose ruling will
be upheld absent an abuse of discretion.
15. Appeal and Error. Plain error may be found on appeal when an error
is unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
16. Trial. When there are outbursts of emotion in the courtroom, it is within
the sound discretion of the trial court to deal with them in such a manner
as to best preserve the judicial atmosphere and ensure a fair and impar-
tial trial for the defendant.
17. Witnesses: Testimony. Striking the testimony of a witness is a drastic
remedy, which is not to be lightly done.
18. Courts. Nebraska courts, through their inherent judicial power, have the
authority to do all things reasonably necessary for the proper administra-
tion of justice.
19. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
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STATE v. CLAUSEN
Cite as 307 Neb. 968evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
20. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and, if taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
21. ____: ____. A jury instruction which misstates the issues and has a tend­
ency to confuse the jury is erroneous.
22. Criminal Law: Rules of Evidence. The accused does not have an
unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.
23. Constitutional Law: Criminal Law: Trial. The right to present a
defense is not unqualified and is subject to countervailing public inter-
ests such as preventing perjury and investigating criminal conduct.
24. Trial: Words and Phrases: Appeal and Error. Structural errors are
errors so affecting the framework within which the trial proceeds that
they demand automatic reversal.
25. ____: ____: ____. Structural errors are distinguished from trial errors,
which generally occur during the presentation of the case to the jury, and
which may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether they were harmless
beyond a reasonable doubt.
26. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the amount of
violence involved in the commission of the crime.
27. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
28. 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.
29. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
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STATE v. CLAUSEN
Cite as 307 Neb. 96830. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
31. ____: ____. The two prongs of the ineffective assistance of coun-
sel test—deficient performance and prejudice—may be addressed in
either order.
32. Constitutional Law: Criminal Law: Witnesses: Self-Incrimination:
Depositions. Where a witness becomes unavailable due to his assertion
of Fifth Amendment privilege, such witness’ prior deposition testimony
is admissible as substantive evidence, given that the deposition had been
taken in compliance with the law and in the course of the same criminal
proceeding, and that the opposing party had adequate opportunity in the
witness’ deposition to examine the witness with similar, if not exact,
interest and motive on matters relative to the case.
33. Witnesses: Testimony: Self-Incrimination: Depositions. If a witness
refuses to answer questions that are so closely related to the subject
of the case that the entire testimony of the witness should be stricken,
opposing counsel has been deprived of an adequate opportunity to
examine the witness during the deposition.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Cassel, J.
I. INTRODUCTION
Timothy J. Clausen appeals from sentences imposed pursu-
ant to jury convictions related to a prison escape. Clausen pri-
marily argues that rulings—striking his testimony for repeated
misconduct and his witness’ testimony for refusing cross-
examination, and excluding other evidence—prevented him
from presenting a duress defense. Because his own actions, his
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STATE v. CLAUSEN
Cite as 307 Neb. 968witness’ choice, and the inadmissibility of his other evidence
fundamentally crippled his defense, his claims lack merit.
Finding no reversible error or abuse of discretion, we affirm.
II. BACKGROUND
For Clausen’s role in a 2016 prison escape from the Lincoln
Correctional Center in Lincoln, Nebraska, he was charged with
three felonies: escape, theft by unlawful taking, and operating
a motor vehicle to avoid arrest. Clausen and Armon Dixon
escaped the facility by hiding in a prison laundry truck with
the assistance of another inmate, Brandon Williams. After the
escape, a law enforcement officer discovered the inmates in a
Lincoln parking lot. Before the officer could apprehend them,
the inmates stole a vehicle and fled. The officer recognized
Clausen as the person driving the vehicle. Law enforcement
pursued the stolen vehicle, but called off the pursuit after it
was deemed unsafe. After the pursuit ended, two people wit-
nessed Clausen crash the stolen vehicle into a parked vehicle,
from which stolen vehicle the inmates ran on foot. In the fol-
lowing days, Clausen and Dixon were both arrested.
After Clausen was arrested, law enforcement officers inter-
viewed him three times to ascertain how he and Dixon escaped.
During each interview, the officers read Clausen his Miranda
rights, which he waived. Clausen admitted to escaping the
facility and described the events surrounding his escape.
During these interviews, Clausen did not claim to have escaped
under duress.
After being deemed competent to stand trial by two separate
medical professionals, Clausen pled not guilty and proceeded
to a jury trial. Clausen intended to argue that he had escaped
only because of duress from Dixon and that it had been Dixon,
not Clausen, who had taken and driven the stolen vehicle dur-
ing their escape.
Before trial, the State moved to exclude the testimony of
Clausen’s two witnesses: Dixon and Bentley Buckner, Clausen’s
cellmate in prison. During a deposition, Dixon admitted
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STATE v. CLAUSEN
Cite as 307 Neb. 968to threatening and coercing Clausen during the planning and
commission of the escape and to driving the escape vehicle.
At trial, outside the presence of the jury, Dixon repeated his
deposition testimony. However, because the State would not
give him immunity for his testimony, Dixon invoked his Fifth
Amendment privilege and refused to testify about a matter
the court deemed sufficiently related to Clausen’s defense—
namely, how the men had obtained a cell phone and drugs they
used during their escape. Consequently, the court sustained
the State’s motion to exclude Dixon from testifying, reasoning
that Nebraska law discourages a court from allowing a witness
to invoke his Fifth Amendment privilege in the presence of
the jury. Clausen did not request the court to partially strike
Dixon’s testimony related to the subjects on which he invoked
privilege and to allow him to continue to testify regarding
other matters.
The State also moved to exclude Buckner from testifying
that Clausen told Buckner that Dixon was threatening him,
Buckner saw Dixon possess a knife while near Clausen over
2 months before their escape, and Buckner believed Clausen’s
escape was the result of duress based on Dixon’s power and
authority in the prison system. The court ultimately sustained
the State’s motion, determining that Buckner’s testimony
would be inadmissible because it was based on hearsay, was
too remote in time to aid Clausen’s duress defense, and was
based on speculation about Clausen’s state of mind.
At trial, Clausen took the stand in his own defense. He did
not call any other witnesses. However, before Clausen took the
stand, he had an outburst in front of the jury where he asked
the court to “let the jury know . . . why my . . . witnesses was
denied . . . and why . . . my witnesses . . . is not allowed to
come into court . . . and testify. . . . Why can’t Armon Dixon
come testify . . . like I want him to[?]” After the jury was
excused, the court warned Clausen that if he had another out-
burst while testifying, he would be waiving his right to testify
and his testimony would be stricken. On cross-examination,
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STATE v. CLAUSEN
Cite as 307 Neb. 968Clausen again became upset that Dixon and Buckner were not
allowed to testify. Despite the court’s earlier warnings, he had
another outburst.
During a recess, the court informed Clausen that because he
had refused to subject himself to a complete cross-examination,
he had forfeited his right to testify. After the recess, the court
informed the jury that because of Clausen’s conduct it was
to disregard Clausen’s testimony in its entirety and his testi-
mony was stricken from the record. However, Clausen was
allowed to remain in the courtroom for closing arguments.
Despite defense counsel’s objection, the court refused to give a
no-inference instruction based on Clausen’s right not to testify
because, the court reasoned, Clausen did testify and his lack
of testimony on the record was the result of his conduct rather
than an invocation of his Fifth Amendment privilege.
The jury convicted Clausen of all three charges. Following
an enhancement hearing, the court found Clausen to be a
habitual criminal and sentenced him to a combined consecu-
tive term of 80 to 140 years’ imprisonment—40 to 60 years’
imprisonment for escape, 20 to 40 years’ imprisonment for
theft by unlawful taking, and 20 to 40 years’ imprisonment
for operating a motor vehicle to avoid arrest. Although neither
the oral pronouncement nor the written sentencing judgment
contains any reference to credit for time served, we have not
been directed to any facts in the record showing that any credit
was due.
Although Clausen initially failed to file a direct appeal, his
right to appeal was reinstated by postconviction relief. Clausen
then filed a timely appeal, which we moved to our docket. 1
III. ASSIGNMENTS OF ERROR
Clausen assigns 14 errors in his appeal, which he consol­
idates into 6 overarching arguments. Clausen assigns, con-
solidated, that the district court erred by (1) excluding the
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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STATE v. CLAUSEN
Cite as 307 Neb. 968testimonies of Dixon and Buckner; (2) striking Clausen’s entire
testimony and instructing the jury to disregard it; (3) failing
to give a no-inference jury instruction; (4) depriving Clausen
of his right to present a defense, thereby violating his consti-
tutional rights and creating structural error; and (5) imposing
excessive sentences.
Clausen also assigns that he received ineffective assistance
of counsel because his trial counsel failed to (1) object to
nonrelevant questioning of Dixon, (2) disclose Buckner as a
witness in a timely manner, (3) offer out-of-court testimony of
Dixon, (4) ensure Clausen received a proper mental evaluation,
(5) subpoena the police officer who conducted a photographic
lineup, (6) offer Clausen’s complete interview with investi-
gators, (7) object or seek corrective instructions regarding
the State’s improper opening statement commentary, (8) suf-
ficiently cross-examine Williams, and (9) preserve Clausen’s
motions to suppress for appeal.
IV. STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. 2 A trial court’s determination of the relevancy and
admissibility of evidence must be upheld in the absence of an
abuse of discretion. 3 Balancing the probative value of evidence
against the danger of unfair prejudice is within the discretion
of the trial court. 4
[4] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. 5
2
State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
3
Id.4
Id.5
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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Cite as 307 Neb. 968[5] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 6
[6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 7
[7,8] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 8 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 preju-
diced by counsel’s alleged deficient performance. 9
V. ANALYSIS
1. Exclusion of Defense
Witness Testimony
Clausen first argues that the trial court erred in prohibiting
Clausen from calling Dixon and Buckner as witnesses at trial.
They were his key witnesses regarding duress. Clausen did not
call any other witnesses to establish that defense.
Because judicial discretion was involved in these rulings, we
review them for an abuse of discretion. We address each wit-
ness separately, because the court assigned different reasons for
the respective rulings.
(a) Dixon
The State filed a motion in limine seeking to bar Dixon from
testifying. In addressing the State’s motion, the court held a
hearing outside the jury’s presence where the State questioned
Dixon about his planned testimony.
6
State v. Paez, 302 Neb. 676, 925 N.W.2d 75 (2019).
7
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
8
See id.9
State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
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Cite as 307 Neb. 968At the hearing, Dixon stated that he would be willing to
“testify about what happened, and what went down . . . I ain’t
got no problem with doing that.” However, Dixon invoked
privilege when asked how he obtained the phone and drugs
that contributed to the escape. The State argued that allow-
ing Dixon to testify on behalf of Clausen and to invoke
privilege on cross-examination would violate Neb. Rev. Stat.
§ 27-513(2) (Reissue 2016). Clausen countered that Dixon
would only invoke privilege on collateral matters and that
because he was critical to Clausen’s defense, Dixon should be
allowed to testify.
The court ruled that Dixon would not be allowed to testify.
The court explained that Dixon’s refusal to answer questions
on cross-examination regarding events so closely related to
the commission of the crime in this case would force the court
to strike Dixon’s entire testimony, because allowing Dixon to
testify only for his testimony to be stricken when he invoked
privilege would violate § 27-513(2). Clausen argues the court
erred in its ruling.
[9] Section 27-513(2) makes it clear that courts must avoid
having witnesses claim privilege in the presence of the jury
whenever practicable. 10 The statutory subsection states: “In
jury cases, proceedings shall be conducted, to the extent prac-
ticable, so as to facilitate the making of claims of privilege
without the knowledge of the jury.” 11 The purpose of that
subsection is to prevent the jury from drawing an unfavorable
inference from a witness’ assertion of a privilege. 12
Section 27-513(2) does not bar a witness from ever invok-
ing privilege in front of a jury. 13 However, “‘“[a]bsent extraor-
dinary circumstances, trial courts should exercise their discre-
tion to forbid parties from calling witnesses who, when called,
10
See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
11
§ 27-513(2).
12
Draper, supra note 10.
13
See id.
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Cite as 307 Neb. 968will only invoke a privilege.”’” 14 Therefore, the trial court
must determine whether the witness intends to refuse to testify
and decide whether it would be prejudicial to the opposing
party for the witness to be called in front of the jury. 15 At the
same time, the trial court may also consider whether the failure
to call the witness, despite the refusal to testify, would unfairly
prejudice the party calling the witness. 16
[10] In making its prejudice determination, the trial court
must also consider the extent to which a witness’ potential
testimony would be excluded by the witness invoking privi-
lege. 17 It is well established that a witness may not testify
voluntarily about a subject and then invoke the privilege
against self-incrimination when questioned about the details. 18
The privilege is waived for the matters to which the witness
testifies, and “the scope of the ‘waiver is determined by the
scope of relevant cross-examination.’” 19 Therefore, if the wit-
ness himself elects to waive his privilege, as he may doubt-
less do, since the privilege is for his protection and not for
that of other parties, and discloses his criminal connections,
he is not permitted to stop, but must go on and make a full
disclosure; where incriminating facts have been voluntarily
revealed, the privilege cannot be invoked to avoid disclosure
of the details. 20
Because a witness cannot use the protections of the Fifth
Amendment to distort the facts by selecting a stopping place
14
Id. at 789, 857 N.W.2d at 344 (quoting State v. Robinson, 271 Neb. 698,
715 N.W.2d 531 (2006)).
15
See Draper, supra note 10.
16
See id.
17
See id.
18
See Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed.
2d 424 (1999).
19
Id., 526 U.S. at 321 (quoting Brown v. United States, 356 U.S. 148, 78 S.
Ct. 622, 2 L. Ed. 2d 589 (1958)).
20
See Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344(1951).
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Cite as 307 Neb. 968for his or her testimony, either the witness must invoke privi-
lege at the outset of the questioning regarding an incriminating
subject or the court will strike the distorted testimony. 21 While
this court has never addressed the extent to which a court that
has a witness who has invoked privilege must strike his or her
testimony, many courts embrace the approach taken in United
States v. Cardillo. 22 There, the court explained:
[Not] every refusal to answer by a witness, claiming his
constitutional right against self-incrimination, requires
the striking of his testimony or a part thereof. There
would appear to be at least three categories to be consid-
ered. The first would be one in which the answer would
have been so closely related to the commission of the
crime that the entire testimony of the witness should be
stricken. The second would be a situation in which the
subject matter of the testimony was connected solely with
one phase of the case in which event a partial striking
might suffice. The third would involve collateral matters
or cumulative testimony concerning credibility which
would not require a direction to strike and which could be
handled (in a jury case) by the judge’s charge if questions
as to the weight to be ascribed to such testimony arose.
As to the first and second categories suggested, whether
all or a part of the testimony should be stricken, must
depend upon the discretion of the trial judge exercised in
the light of the particular circumstances. Unsatisfactory
as such a generality is for a trial judge who is required
to give instantaneous rulings on close questions and
who does not enjoy the luxury of reflective appellate
deliberation, any set of specific dogmas would be even
more unworkable. 23
21
See, e.g., Mitchell, supra note 18.
22
United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963).
23
Id. at 613.
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Cite as 307 Neb. 968While the witness invoking privilege in Cardillo was testify-
ing on behalf of the State, courts have applied Cardillo in the
inverse when a witness is testifying on behalf of a defendant. 24
Important public policy protects even the prosecution’s right
to fair trials and the pursuit of truth, so that a similar principle
should govern whether the recalcitrant witness was offered by
the prosecution or by the defendant. 25 A witness may not say
enough to exonerate the defendant without implicating himself,
and the prosecutor is entitled to closely examine a witness to
expose to the fact finder the witness’ falsification. 26
[11] We adopt the Cardillo approach. When a defendant’s
witness testifies about a criminal action which is central to the
defendant’s guilt, but then refuses to answer the State’s ques-
tions challenging the witness’ assertion, the testimony may be
stricken. 27 Therefore, a Nebraska court determining whether
to exclude a witness pursuant to § 27-513 must consider the
interrelatedness between the topic invoking the witness’ Fifth
Amendment protections and his or her cumulative testimony. If
a court must strike the witness’ entire testimony, then clearly
the witness must be excluded pursuant to § 27-513.
Here, Dixon would have testified to the inner workings of
the escape, which is central to this case. Dixon wished to tes-
tify about how he planned the entire escape and forced Clausen
to escape with him. However, he refused to allow the State
to cross-examine the validity of his assertion that he planned
the escape.
During Dixon’s deposition, Dixon admitted to selling drugs
to raise money to purchase the phone that was used to
coordinate the escape. He testified: “I sold a lot of drugs,
24
See U.S. v. Crews, 856 F.3d 91 (D.C. Cir. 2017).
25
Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988).
26
See id.27
See, U.S. v. Davis, 690 F.3d 912 (8th Cir. 2012), cert. granted and
judgment vacated on other grounds 570 U.S. 913, 133 S. Ct. 2852, 186 L.
Ed. 2d 903 (2013); U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).
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Cite as 307 Neb. 968man. I had a lot of guards in my pocket. I had a lot of inmates
that would do whatever I told them to do[.]” Once he pur-
chased the phone, he “made some calls, set up some stuff”
regarding the escape. Dixon refused to answer the State’s
questions when asked for the names of the guards and inmates
who smuggled in the phone and drugs. The State was entitled
to ask these questions to discover other witnesses who could
refute the validity of Dixon’s statements. During the hearing
at trial, Dixon again refused to answer the State’s questions
about the phone and drugs.
Dixon’s testimony falls into the first Cardillo category.
Dixon’s selling drugs to purchase the phone and then using
it to plan the escape were closely related to the commission
of the crime at issue—the escape. While this court respects
Dixon’s interest in not incriminating himself, Dixon’s decision
to invoke privilege and refuse to answer how he obtained the
phone and drugs frustrated the State’s cross-examination and
denied him the opportunity to testify on Clausen’s behalf.
The court did not abuse its discretion in barring Dixon from
testifying, because Dixon’s testimony did not warrant being
only partially stricken. Dixon’s refusal to answer questions on
cross-examination was not connected solely with one phase
of the case. Dixon claimed to have planned the entire escape
and forced Clausen to escape with him. Testimony regarding
who planned the escape and took preparatory actions was key
to Clausen’s duress defense, saturating all phases of this case.
Dixon could not invoke privilege without subjecting his entire
testimony to being stricken. Under these circumstances, we
cannot say that the court’s decision to strike all of Dixon’s tes-
timony was clearly untenable.
[12] Even if we assume that Dixon’s testimony would have
been regarding a collateral matter, the court’s error would have
been harmless. 28 Harmless error review ultimately looks to
28
See United States v. Lord, 711 F.2d 887 (9th Cir. 1983). See, also, U.S. v.
Negrete-Gonzales, 966 F.2d 1277 (9th Cir. 1992).
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Cite as 307 Neb. 968the basis on which the trier of fact actually rested its verdict;
the inquiry is not whether in a trial that occurred without the
error a guilty verdict would surely have been rendered, but,
rather, whether the actual guilty verdict rendered in the ques-
tioned trial was surely unattributable to the error. 29 The court’s
potential error was harmless, because Clausen could not prove
a duress defense.
For a prisoner to utilize a duress defense based on threat of
physical harm by another prisoner, the prisoner must report
immediately to the proper authorities when he attains a posi-
tion of safety from the threat. 30 In order for Clausen to have
a duress defense, Clausen would have needed to turn himself
back into custody after he separated from Dixon during the
escape. Clausen instead remained in hiding until law enforce-
ment discovered him in a house and arrested him, invalidating
his duress defense. To the extent Dixon would have testified
that he was the one driving the vehicle, the State offered evi-
dence refuting this assertion.
(b) Buckner
The State sought to exclude Buckner’s testimony because
Clausen did not disclose Buckner as a witness in a timely
manner. The court ruled instead to exclude Buckner because
his testimony was (1) based on inadmissible hearsay, (2) too
remote in time to be admissible evidence for Clausen’s duress
defense, and (3) based on speculation. Clausen assigns that the
trial court erred in this order.
[13,14] An appellate court reviews the trial court’s con-
clusions with regard to evidentiary foundation and witness
qualification for an abuse of discretion. 31 The admission or
exclusion of evidence is a matter left largely to the sound
29
State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
30
State v. Reed, 205 Neb. 45, 286 N.W.2d 111 (1979).
31
State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
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an abuse of discretion. 32
Buckner would have testified that Clausen told him that
Dixon was threatening him and saying that he would kill his
loved ones if Clausen did not help him escape. This testimony
is hearsay because it is a statement made out of court by
Clausen offered to prove that Dixon was in fact threatening
Clausen. 33 Buckner’s hearsay testimony was inadmissible.
Additionally, Buckner would have testified that he saw
Dixon threaten Clausen with a knife more than 2 months
before the escape. A prisoner claiming he escaped under fear
of impending death or serious bodily injury at the hands of
another prisoner must prove that the injury was immediately
impending. 34 Buckner’s testimony would have been inadmis-
sible because the witnessed threat was too remote from the
time of escape.
Finally, Buckner’s belief that Clausen escaped as the result
of duress based on Dixon’s power and authority in the prison
system is speculation. 35 Therefore, Buckner’s testimony was
inadmissible at trial. We see no abuse of discretion in the
court’s exclusion of Buckner’s testimony.
2. Exclusion of Clausen’s Testimony
Clausen next argues that the court erred in striking his entire
testimony and instructing the jury to disregard it. Clausen did
not object to the court’s actions at trial, failing to preserve
this issue for appeal. 36 However, Clausen argues that the court
committed plain error by not finding Clausen in contempt
before sanctioning Clausen for his actions at trial and that
32
State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986).
33
See Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
34
See Reed, supra note 30.
35
See, generally, Neb. Rev. Stat. § 27-701 (Reissue 2016).
36
See State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
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Cite as 307 Neb. 968the court should have imposed an alternative penalty instead
of a complete strike of his testimony.
[15] Under most circumstances, we require a party to object
to a perceived error by a trial court in order to preserve that
issue for appeal. 37 Conversely, plain error may be found on
appeal when an error is 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 judi-
cial process. 38
The U.S. Supreme Court in Illinois v. Allen 39 articulated
three principles regarding courtroom decorum. It is essential to
the proper administration of criminal justice that dignity, order,
and decorum be the hallmarks of all court proceedings. 40 The
flagrant disregard in the courtroom of elementary standards
of proper conduct should not and cannot be tolerated. 41 Trial
judges confronted with disruptive, contumacious, stubbornly
defiant defendants must be given sufficient discretion to meet
the circumstances of each case. 42
[16-18] The principles articulated in Allen are consistent
with Nebraska law. When there are outbursts of emotion in
the courtroom, it is within the sound discretion of the trial
court to deal with them in such a manner as to best preserve
the judicial atmosphere and ensure a fair and impartial trial
for the defendant. 43 Striking the testimony of a witness is a
drastic remedy, which is not to be lightly done. 44 However,
37
See id.38
Id.39
Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
40
Id.41
Id.42
Id.43
State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978).
44
Davis, supra note 27; Murray, supra note 25.
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the authority to do all things reasonably necessary for the
proper administration of justice. 45
Here, we see no plain error. The court warned Clausen that it
would strike his testimony and instruct the jury to disregard it
if he had another outburst. Clausen’s disruptive outburst was a
flagrant disregard of the court’s repeated warnings and was an
attempt to taint the mind of the jury. The court acted within its
power to ensure a fair and impartial trial.
3. Jury Instruction
Clausen assigns that the trial court erred in not giving a
no-inference jury instruction. Although not precise, a fair
reading of the record shows the court understood Clausen
to be requesting a pattern jury instruction. It states: “The
defend­ant has an absolute right not to testify. The fact that the
defendant did not testify must not be considered by you as an
admission of guilt and must not influence your verdict in any
way.” 46 The district court refused the instruction, explaining
that Clausen “did testify and that his own conduct eviscer-
ated that testimony.” Unlike the previous assignment of error,
Clausen objected to the court’s ruling, preserving this issue
for appeal.
[19-21] To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. 47 All the jury instruc-
tions must be read together, and, if taken as a whole, they
correctly state the law, are not misleading, and adequately
45
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848(2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 283 Neb.
369, 808 N.W.2d 867 (2012).
46
NJI2d Crim. 9.4. See Kreikemeier, supra note 45.
47
State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
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Cite as 307 Neb. 968cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. 48 A jury
instruction which misstates the issues and has a tendency to
confuse the jury is erroneous. 49
Here, we find that the jury was properly instructed. Clausen
testified in front of the jury, and his testimony was stricken
only because of his conduct. Under these circumstances, the
pattern instruction would have incorrectly stated the events at
trial and misled the jury. We agree with the trial court and find
no error.
4. Right to Present Defense
Clausen argues that the court “stripped away” his entire
defense because it barred Clausen from calling his two wit-
nesses—Dixon and Buckner—and also struck his own testi-
mony from the record. 50 Clausen claims the court’s actions
denied him his right to present a complete defense as guaran-
teed by the U.S. Constitution and Rock v. Arkansas, 51 violating
his 14th Amendment due process rights and his 6th Amendment
Confrontation Clause rights—which he characterized as struc-
tural error requiring automatic reversal. These claims will each
be addressed in turn.
(a) Due Process and
Confrontation Clause
[22,23] We have stated that whether rooted directly in
the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th
Amendment, the federal Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
defense. 52 However, the accused does not have an unfettered
48
See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
49
Id.50
Brief for appellant at 43.
51
Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).
52
State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
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Cite as 307 Neb. 968right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence. 53 The
right to present a defense is not unqualified and is subject to
countervailing public interests such as preventing perjury and
investigating criminal conduct. 54
Clausen was entitled to present a complete defense to coun-
ter the State’s charges against him. However, Clausen did not
have an unfettered right to offer inadmissible testimony or
disregard the court’s instruction. Clausen’s inability to present
witnesses that could provide admissible testimony pursuant to
the Nebraska Evidence Rules and his disruptive outbursts, not
the court, “stripped away” his defense. Clausen’s due process
and confrontation rights were not violated.
(b) Structural Error
[24,25] Structural errors are errors so affecting the frame-
work within which the trial proceeds that they demand auto-
matic reversal. 55 They are distinguished from trial errors, which
generally occur “‘during the presentation of the case to the
jury, and which may therefore be quantitatively assessed in
the context of other evidence presented in order to determine
whether [they were] harmless beyond a reasonable doubt.’” 56
The U.S. Supreme Court limited structural errors to a few
very specific categories—total deprivation of counsel, trial
before a judge who is not impartial, unlawful exclusion of
members of the defendant’s race from a grand jury, denial
of the right to self-representation at trial, and denial of the
right to a public trial. 57 The fact that the error in a case was
53
Id.54
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
55
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
56
Id. at 64, 815 N.W.2d at 905 (quoting Arizona v. Fulminante, 499 U.S.
279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
57
Abram, supra note 55. See Fulminante, supra note 56.
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tural error. 58
The assigned errors Clausen asserts fall in the category
of trial errors rather than structural errors. The trial court’s
determination to exclude Clausen’s witnesses and strike his
testimony occurred during the presentation of the case to the
jury. His claims do not fall within the limited set of aforemen-
tioned structural errors established by the U.S. Supreme Court.
Clausen’s trial does not warrant an automatic reversal.
5. Excessive Sentences
Clausen also argues that the court abused its discretion
by imposing excessive sentences. Clausen claims the court
made no meaningful factual findings to justify the sentence or
any substantive factors relating to his prior criminal history.
Clausen does not address the court’s finding that he was a
habitual criminal.
[26,27] As stated above, we review a sentence imposed
within statutory limits for an abuse of discretion. 59 When
imposing a sentence, a sentencing judge should customarily
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. 60 The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend­
ant’s life. 61
58
See Abram, supra note 55.
59
See State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
60
Id.61
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Cite as 307 Neb. 968We have reviewed Clausen’s sentences and conclude that
they were not excessive. The court determined Clausen was a
habitual criminal and sentenced him on all three convictions
pursuant to the habitual criminal statutory guidelines. 62 The
court did not abuse its discretion.
6. Ineffective Assistance of Counsel
Finally, Clausen presents a plethora of ineffective assistance
of counsel claims for this court to consider. Clausen’s counsel
on direct appeal is different from his trial counsel. We conclude
that the record is sufficient to address all of the assignments of
error regarding ineffectiveness and that all lack merit.
[28-31] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 63 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. 64 To show that counsel’s performance was defi-
cient, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. 65 To show prejudice, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been dif-
ferent. 66 The two prongs of the ineffective assistance of counsel
test—deficient performance and prejudice—may be addressed
in either order. 67
(a) Questioning of Dixon
Clausen claims that his trial counsel did not object on rel-
evancy when the State questioned Dixon regarding the escape
62
See Neb. Rev. Stat. § 29-2221 (Reissue 2016).
63
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
64
State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).
65
State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
66
Id.67
See State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).
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Cite as 307 Neb. 968preparation at a hearing. The State asked Dixon for the names
of the individuals who provided him with the phone and
drugs that aided in the escape. However, Clausen misstates
the record. Clausen’s trial counsel repeatedly objected to the
relevancy, and the court overruled the objections. Trial counsel
was not ineffective on this issue.
(b) Untimely Disclosure
of Buckner
Clausen moves on to claim his trial counsel was ineffective
by failing to disclose Buckner as a witness in a timely manner.
However, because the court did not err in excluding Buckner’s
testimony on separate evidentiary grounds, Clausen did not
suffer any prejudice from this untimely witness disclosure.
This claim lacks merit.
(c) Dixon’s Deposition
[32] Clausen also claims that his trial counsel was ineffec-
tive by failing to introduce Dixon’s deposition at trial, because
he was an unavailable witness. Where a witness becomes
unavailable due to his assertion of Fifth Amendment privilege,
such witness’ prior deposition testimony is admissible as sub-
stantive evidence, given that the deposition had been taken in
compliance with the law and in the course of the same criminal
proceeding, and that the opposing party had adequate oppor-
tunity in the witness’ deposition to examine the witness with
similar, if not exact, interest and motive on matters relative to
the case. 68 But a witness’ refusal to answer questions during
cross-examination of a deposition may deprive the opposing
counsel of an adequate opportunity to examine the witness dur-
ing the deposition. 69
68
See State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997), disapproved on
other grounds, State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). See,
also, Neb. Rev. Stat. § 27-804(2)(a) (Reissue 2016).
69
See, e.g., State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996); Burke v.
Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).
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Cite as 307 Neb. 968[33] To determine whether opposing counsel has been
deprived of the opportunity to examine a witness during cross-
examination, Nebraska courts apply the Cardillo approach
discussed earlier. 70 If a witness refuses to answer questions that
are so closely related to the subject of the case that the entire
testimony of the witness should be stricken, opposing counsel
has been deprived of an adequate opportunity to examine the
witness during the deposition. 71 The incomplete deposition
cannot be admitted as substantive evidence at trial. 72
Dixon deprived the State of an adequate opportunity to
cross-examine him. At his deposition, Dixon refused to answer
questions regarding how he obtained the phone and drugs
that aided in the escape. The State’s questioning was closely
related to the commission of the escape. Dixon’s entire testi-
mony would have been stricken in accordance with Cardillo if
Clausen would have submitted Dixon’s deposition at trial, and
therefore, the record shows that Clausen was not prejudiced by
trial counsel’s conduct.
Even if Dixon’s deposition should have been allowed into
evidence, the record shows that Clausen was not prejudiced by
trial counsel’s conduct. As discussed earlier, Clausen could not
prove a duress defense because he failed to surrender himself
to authorities.
(d) Mental Evaluation
of Clausen
Clausen next claims that his trial counsel was ineffective
because trial counsel did not ensure that Clausen received a
proper mental evaluation to determine whether he was com-
petent to stand trial. By request of his trial counsel, Clausen
received two evaluations from separate medical profession-
als—a forensic psychiatrist and a licensed psychologist. Both
professionals concluded Clausen was feigning his mental
70
See, e.g., Cardillo, supra note 22; Harman, supra note 69.
71
See, Cardillo, supra note 22; Harman, supra note 69.
72
See id.- 992 -
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Cite as 307 Neb. 968issues. Clausen argues that these evaluations were cursory and
that he was never properly assessed.
This court concludes that the performance of Clausen’s trial
counsel was not deficient. Trial counsel identified the poten-
tial competency issue and requested an evaluation. After the
court deemed Clausen competent to stand trial, trial counsel
reaffirmed his commitment to his client by requesting another
mental examination.
Because both professionals independently reached the same
conclusion, trial counsel exercised the judgment of a lawyer
with ordinary training and skill in criminal law in not request-
ing further mental evaluations. Even if this court were to find
that trial counsel’s performance was deficient, there is not a
reasonable probability that an additional evaluation would have
resulted in Clausen’s being found incompetent to stand trial.
Clausen’s trial counsel was not ineffective on this issue.
(e) Failure to Subpoena
Police Officer
Clausen also claims that trial counsel was ineffective
because he failed to subpoena or compel the police officers
who conducted a photographic lineup. Clausen argues his trial
counsel’s actions resulted in the overruling of his motion to
suppress evidence of the photographic lineup. In reality, the
court sustained his motion at a hearing and no evidence of the
photographic lineup was admitted into evidence. This claim
has no merit.
(f) Failure to Offer
Complete Interview
Clausen next claims his trial counsel should have presented
the jury with Clausen’s entire recorded interviews with law
enforcement after his arrest, arguing that it gave the jury an
inaccurate view of Clausen’s role in the escape. The record-
ings contained information highly prejudicial to Clausen such
as the offense Clausen was imprisoned for, his participation
in various crimes, and his overall criminal history. The State
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Cite as 307 Neb. 968presented a redacted version to ensure the jury did not hear
this highly prejudicial information. The record establishes that
Clausen suffered no prejudice by the exclusion of this highly
prejudicial information.
(g) Opening Statement
Clausen moves on to claim that his trial counsel was inef-
fective by failing to object to or ask the district court to take
any corrective action for the State’s improper commentary in
opening statements. The State mentioned in its opening state-
ment that Clausen was found “in a bathroom with a firearm”
when he was arrested. The parties agree that this statement
was improper because it was in violation of a pretrial order by
the court.
In State v. Iromuanya, 73 we addressed a similar situation
where the State made improper comments during opening
statements. We reasoned that the State’s commentary was not
prejudicial because (1) the trial court had orally instructed
jurors before the trial that attorneys’ statements and argu-
ments were not evidence, (2) the statements represented short
moments in a long trial during which many other witnesses
testified about the critical issues in the case, and (3) the trial
court’s written instructions informed the jurors that they must
not decide the case based on sympathy or prejudice. 74
We find Iromuanya instructive in this case. Here, the court
reminded the jury that “opening statements by counsel are not
evidence”; multiple witnesses testified during a long trial about
critical issues of the case, which did not include the possession
of a firearm; and the jury instructions reiterated that statements
and arguments by counsel were not evidence. The State never
offered evidence that Clausen possessed a firearm at the time
of his arrest. In light of these circumstances, the record shows
that Clausen suffered no prejudice.
73
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
74
See id. See, also, State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019)
(discussing Iromuanya, supra note 73).
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Cite as 307 Neb. 968(h) Cross-Examination of Williams
Clausen continues his ineffective assistance of counsel
assignment by arguing that his trial counsel was ineffective
in his cross-examination of Williams. Clausen claims that his
counsel failed to impeach Williams’ credibility by (1) estab-
lishing Williams was a felon under Neb. Rev. Stat. § 27-609(Reissue 2016), (2) highlighting Williams’ motivation for tes-
tifying under his plea agreement, and (3) questioning Williams
about a suicide attempt he made immediately after Clausen and
Dixon escaped from prison.
Clausen misstates the record—his trial counsel did, in fact,
impeach Williams for being a felon. Section 27-609(1) allows a
party to admit evidence of a conviction resulting in an impris-
onment in excess of 1 year for purposes of attacking the credi-
bility of a witness. The statute goes on to state that “[e]vidence
of a conviction . . . is not admissible if a period of more than
ten years has elapsed since the date of such conviction or of the
release of the witness from confinement, whichever is the later
date.” 75 After the conviction is established, “‘the inquiry must
end there, and it is improper to inquire into the nature of the
crime, the details of the offense, or the time spent in prison as
a result thereof.’” 76
Trial counsel asked Williams: “I know that you are in the
penitentiary but tell me, have you had any felony convictions
in the last ten years?” Williams ultimately responded: “No. Just
what I have now.” Trial counsel utilized § 27-609 and attacked
Williams’ credibility for being a felon. Trial counsel’s perform­
ance was not deficient.
Next, Williams testified in his direct examination that he was
charged with two counts of escape because he helped Clausen
and Dixon escape. Williams explained that in exchange for
his testimony, the State dropped one of those counts. Trial
75
§ 27-609.
76
State v. Castillo-Zamora, 289 Neb. 382, 388, 855 N.W.2d 14, 22 (2014)
(quoting State v. Johnson, 226 Neb. 618, 413 N.W.2d 897 (1987)).
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Cite as 307 Neb. 968counsel need not ask redundant questions on information
already established on direct examination. The jury was aware
of Williams’ motivation to testify in this case, and therefore,
Clausen suffered no prejudice.
Lastly, Clausen’s trial counsel did not provide ineffective
assistance of counsel by not questioning Williams regarding
his suicide attempt after Clausen and Dixon escaped from
prison, because that evidence was inadmissible. Parties can
only ask witnesses relevant questions that “make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would without
the evidence.” 77 Williams’ suicide attempt had no bearing on
whether it was more probable or less probable that Clausen
escaped from prison, stole a vehicle, and operated the vehicle
to escape arrest. Because this line of questioning would have
been inadmissible, the record establishes that Clausen was
not prejudiced.
(i) Preservation of
Motions to Suppress
Clausen claims that his trial counsel was ineffective because
his counsel failed to preserve his motions to suppress by
objecting at trial to the introduction of the photographic lineup.
However, as discussed earlier, Clausen misstates the record.
Clausen’s motion to suppress evidence of the photographic
lineup was sustained, and no evidence of a photographic lineup
was presented at trial. This claim has no merit.
Furthermore, Clausen also claims that his trial counsel
was ineffective because his counsel failed to preserve his
motions to suppress by objecting at trial to the introduction
of Clausen’s statements made to investigators after he was
arrested. Clausen filed motions to suppress his statements
made during his postarrest interview because investigators did
not read him his Miranda rights until around 15 minutes into
77
Neb. Rev. Stat. § 27-401 (Reissue 2016). See, also, Devers, supra note 2.
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Cite as 307 Neb. 968a series of interviews. The court overruled Clausen’s motion
to suppress evidence of the statements made to investigators
and allowed redacted portions of the interview to be played
at trial.
The record shows that Clausen was not prejudiced by his
counsel’s failure to preserve his motion to suppress by object-
ing at trial. Law enforcement interviewed Clausen three times.
In the first interview, State Patrol investigators did not read
Clausen his Miranda rights for the first 15 minutes of the
interview. However, the investigators did not elicit any incrimi-
nating information from Clausen until after investigators read
him his Miranda rights. The pre-Miranda discussion focused
on Clausen’s previous criminal history, his time in solitary
confinement, and the potential effect of Clausen’s cooperating
with the investigation. At the start of the final two interviews,
investigators read Clausen his Miranda rights and he signed
a Miranda rights waiver form before the interview began.
As Clausen’s Miranda rights were not violated, no prejudice
resulted from his trial counsel’s inaction.
(j) Failure to Request No-Inference
Jury Instruction
Finally, Clausen argues, but fails to assign, that trial counsel
was ineffective for not requesting a no-inference jury instruc-
tion. Although we decline to reach the merits of this claim
because it was not assigned as error, the record shows that
Clausen suffered no prejudice. As we discussed earlier, the
court did not err in refusing the pattern jury instruction. 78
VI. CONCLUSION
Clausen fails to show that the trial court erred or abused its
discretion in its rulings. The court correctly excluded Dixon’s
and Buckner’s inadmissible testimonies. Clausen’s failure to
follow the court’s instructions at trial led to his testimony
being stricken and disregarded by the jury, thereby forfeiting
78
See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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Cite as 307 Neb. 968his right to a no-inference jury instruction. None of the errors
that Clausen assigned qualified as structural errors, nor was he
deprived of his right to present a defense. Clausen’s sentences
were not excessive. Finally, his claims of ineffective assistance
of trial counsel lack merit. We affirm the judgment of the dis-
trict court.
Affirmed.
Freudenberg, J., not participating.
Miller-Lerman, J., concurring.
This was an imperfect trial. The testimonies of three defense
witnesses were stricken in their entirety. These witnesses were
the defendant Clausen, the coperpetrator Dixon, and an addi-
tional witness who would have supported Clausen’s theory of
duress. Flawed though it was, I cannot say the trial suffered
structural error warranting reversal. Accordingly, notwithstand-
ing my remarks regarding the constitutional dimension of
exclusion of testimony generally and that of Dixon in particu-
lar, I concur.
Jurisprudential Clarification.
It has been observed that “[s]triking the testimony of a
witness is a drastic remedy. It is not to be lightly done. . . .
Striking all of the testimony of the witness may be the only
appropriate remedy when refusal to answer the questions of the
cross-examiner frustrates the purpose of the process.” Lawson
v. Murray, 837 F.2d 653, 656 (4th Cir. 1988). In the instant
case, Clausen’s remarks did in fact frustrate the process and
striking his testimony in its entirety made sense. However, not
every refusal to cooperate on cross-examination warrants strik-
ing a witness’ testimony.
In United States v. Cardillo, 316 F.2d 606, 613 (2d Cir.
1963), the Second Circuit recognized this measured approach,
and I am in agreement with the majority opinion which
adopts the three category framework of the Cardillo opinion.
Cardillo stated:
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Cite as 307 Neb. 968[Not] every refusal to answer by a witness, claiming his
constitutional right against self-incrimination, requires the
striking of his testimony or a part thereof. There would
appear to be at least three categories to be considered.
The first would be one in which the answer would have
been so closely related to the commission of the crime
that the entire testimony of the witness should be stricken.
The second would be a situation in which the subject mat-
ter of the testimony was connected solely with one phase
of the case in which event a partial striking might suffice.
The third would involve collateral matters or cumulative
testimony concerning credibility which would not require
a direction to strike and which could be handled (in a jury
case) by the judge’s charge if questions as to the weight
to be ascribed to such testimony arose. As to the first
and second categories suggested, whether all or a part of
the testimony should be stricken, must depend upon the
discretion of the trial judge exercised in the light of the
particular circumstances.
316 F.2d at 613.
The witness who invoked the Fifth Amendment on cross-
examination in Cardillo was a government witness, so the
Cardillo framework needs to be applied with some caution
where the witness who invokes the Fifth Amendment privilege
on cross-examination, as in the instant case, has been called by
the defendant. This is so, because different rights are at stake.
An opinion from a case where a defense witness invoked the
Fifth Amendment on cross-examination in which Chief Judge
Garland and then-Judge Kavanaugh joined, makes this point,
wherein it stated: “The potential prejudice to the government
from preventing its cross examination of [a defense witness],
unlike the prejudice to the defendants in Cardillo [seeking to
cross-examine a government witness], has no constitutional
dimension.” U.S. v. Crews, 856 F.3d 91, 99 (D.C. Cir. 2017).
Elsewhere, it has been observed:
Cardillo and cases like it do not address the tension
inherent, when the witness is defendant’s, between the
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right to call witnesses on her own behalf. The right to
present witnesses “has long been recognized as essential
to due process.” Chambers v. Mississippi, 410 U.S. 284,
294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). The
compulsory process clause of the Sixth Amendment also
supports the same right. Taylor v. Illinois, 484 U.S. 400,
409, 108 S.Ct. 646, 652, 98 L.Ed.2d 798 (1988).
Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir. 1992).
A trial court must safeguard to the extent possible a criminal
defendant’s right to present his or her story. Id.It has been stated: “The key question is whether the defend­
ant’s right to present witnesses can be protected without frustrat-
ing the government’s interest in effective cross-­examination.”
U.S. v. Negrete-Gonzales, 966 F.2d 1277, 1280 (9th Cir. 1992).
Based on constitutional imperatives and the authority of Crews
and similar jurisprudence, to the extent the opinion of the
court in this case suggests that the State’s or government’s
right to examine a defense witness who has invoked the Fifth
Amendment on cross-examination is the constitutional equiva-
lent of the right at stake of the criminal defendant, I respect-
fully disagree.
Striking All or Partial Testimony of Dixon.
The thrust of the majority opinion is that Dixon’s refusal to
identify who supplied the drugs and from whom he obtained
the phone to set up the crimes as charged was testimony in
the first Cardillo category, i.e., “so closely related to the com-
mission of the crime that the entire testimony of the witness
should be stricken.” United States v. Cardillo, 316 F.2d 606,
613 (2d Cir. 1963). I respectfully disagree; instead, I believe
the “subject matter of the testimony was connected solely with
one phase of the case” involving steps in the preparation for
the crimes which warranted a “partial strik[e].” Id.The crimes charged were escape, theft of a vehicle by
unlawful taking, and operating a vehicle to avoid arrest. At
his deposition, Dixon stated he put a knife to Clausen’s neck
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escape, whether he wanted to or not, and threatened the lives
of Clausen and his family. Contrary to the opinion of the court,
I believe Dixon offered details of how he planned the escape
and the State’s interest in prosecuting Clausen was not frus-
trated by Dixon’s unwillingness to name names. When asked
from whom he got the phone to set up the crimes, Dixon
said he would not answer. Dixon said he paid for the phone.
When asked how he paid for the phone, he said he had “a lot
of guards in my pocket” from whom he obtained drugs with
which to obtain the phone.
During his deposition and his appearance before the district
court, Dixon described how he and Clausen escaped in a laun-
dry truck, cut open the roof, and then stole a pickup, which
Dixon drove during the pursuit by police. These details and
admissions would have favored the State. And Dixon’s testi-
mony, if it had been permitted, could have given Clausen some
advantage in his attempt to raise doubt with the jury as to his
guilt as to certain of the counts. In my view, exclusion of the
entirety of Dixon’s proposed testimony, because of his refusal
to name names in connection with the preparatory phase,
diminished the integrity of the trial.
I am aware of cases where a witness denied that the defend­
ant was the source of drugs, but on cross-examination refused
to name the source, and the appellate court concluded the wit-
ness’ testimony was properly stricken. E.g., U.S. v. McKneely,
69 F.3d 1067 (10th Cir. 1995). However, in McKneely, “the
identity of the source was central to the issue of defendant’s
guilt or innocence.” 69 F.3d at 1076. The instant case is more
similar to U.S. v. Negrete-Gonzales, supra, where the appel-
late court concluded it was improper to strike the testimony
of a witness who refused to identify her source of cocaine
on cross-examination where neither defendant was charged
with supplying cocaine. The instant case is not a drug case,
and the identities of the source of the drugs and phone were
not central. Accordingly, in my view, Dixon’s refusal to name
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entirety of his testimony.
Having concluded that the refusal of defense witness Dixon
to answer certain questions on cross-examination falls into the
second Cardillo category, it is necessary for me to determine
if partial striking was feasible. In U.S. v. Crews, 845 F.3d 91,
101 (D.C. Cir. 2017), the appellate court was unable to ascer-
tain whether the witness had asserted her Fifth Amendment
privilege “only with respect to certain, limited questions,” and
therefore, the trial court could not be faulted for excluding all
her testimony. Here, however, Dixon was available to provide
an abundance of information, not all of it favorable to Clausen,
and his refusal was clearly limited to the identity of the sources
of the drugs and phone. And although the district court sug-
gested that Dixon’s refusal only to identify sources might be
characterized as an assertion of his Fifth Amendment privilege,
that suggestion is curious where he had already resolved his
case arising from the escape. In my view, given the record,
striking all of Dixon’s testimony on the basis that he asserted
the Fifth Amendment was “drastic.” Lawson v. Murray, 837
F.3d 653, 656 (4th Cir. 1988).
It has been observed that “[e]ven when the witness refuses
to answer questions relevant to matters at issue, striking only
portions of the testimony may be the more reasonable remedy
. . . .” Id. In this case, in my view, a partial striking of Dixon’s
testimony would have been the better course; however, I rec-
ognize that the district court was not asked to do so. Under
similar circumstances, in Crews, the appellate court assumed
that “the district court had viable alternatives, but [the defend­
ant] did not suggest any at trial. The court did not plainly err
by failing to consider them sua sponte.” 856 F.3d at 100-01.
Similarly, on the record before us, not having been presented
with the alternative of partially striking Dixon’s proposed testi-
mony, I cannot find that the district court plainly erred when it
chose to strike Dixon’s testimony in its entirety.
For the foregoing reasons, I concur.