State v. Dubray ( 2014 )

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State of Nebraska, appellee, v.
Dominick L. Dubray, appellant.
___ N.W.2d ___
Filed October 10, 2014. No. S-12-1171.
1. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
2. Trial: Photographs: Appeal and Error. An appellate court reviews a trial
court’s admission of photographs of a victim’s body for abuse of discretion.
3. Homicide: Photographs. If the State lays proper foundation, photographs that
illustrate or make clear a controverted issue in a homicide case are admissible,
even if gruesome.
4. ____: ____. In a homicide prosecution, a court may admit into evidence photo-
graphs of a victim for identification, to show the condition of the body or the
nature and extent of wounds and injuries to it, and to establish malice or intent.
5. 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.
6. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A
party who fails to make a timely motion for mistrial based on prosecutorial mis-
conduct waives the right to assert on appeal that the court erred in not declaring
a mistrial due to the misconduct.
7. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant has not
preserved a claim of prosecutorial misconduct for direct appeal, an appellate
court will review the record only for plain error.
8. 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.
Generally, an appellate court will find plain error only when a miscarriage of
justice would otherwise occur.
9. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to conduct
criminal trials in a manner that provides the accused with a fair and impar-
tial trial.
10. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial
misconduct encompasses conduct that violates legal or ethical standards for vari-
ous contexts because the conduct will or may undermine a defendant’s right to a
fair trial.
11. Trial: Prosecuting Attorneys: Appeal and Error. When considering a claim
of prosecutorial misconduct, an appellate court first considers whether the pros-
ecutor’s acts constitute misconduct. If it concludes that a prosecutor’s act were
misconduct, it next considers whether the misconduct prejudiced the defendant’s
right to a fair trial.
12. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does not mis-
lead and unduly influence the jury is not misconduct.
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13. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct prejudices
a defendant’s right to a fair trial when the misconduct so infected the trial that the
resulting conviction violates due process.
14. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the context of the trial as a whole.
15. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a
prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, an
appellate court considers the following factors: (1) the degree to which the pros-
ecutor’s conduct or remarks tended to mislead or unduly influence the jury; (2)
whether the conduct or remarks were extensive or isolated; (3) whether defense
counsel invited the remarks; (4) whether the court provided a curative instruction;
and (5) the strength of the evidence supporting the conviction.
16. Trial: Prosecuting Attorneys: Juries. Prosecutors are not to inflame the jurors’
prejudices or excite their passions against the accused. This rule includes inten-
tionally eliciting testimony from witnesses for prejudicial effect.
17. ____: ____: ____. Prosecutors should not make statements or elicit testimony
intended to focus the jury’s attention on the qualities and personal attributes of
the victim. These facts lack any relevance to the criminal prosecution and have
the potential to evoke jurors’ sympathy and outrage against the defendant.
18. Trial: Prosecuting Attorneys: Evidence. A prosecutor commits misconduct
when he or she persists in attempting to introduce evidence that the court has
ruled inadmissible. This prohibition precludes an artful examination that refers
directly to the inadmissible evidence.
19. Prosecuting Attorneys. A prosecutor’s attributing deceptive motives to a
defense counsel personally or to defense lawyers generally constitutes
misconduct.
20. Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is permitted to present a spirited
summation that a defense theory is illogical or unsupported by the evidence and
to highlight the relative believability of witnesses for the State and the defense.
These types of comments are distinguishable from attacking a defense counsel’s
personal character or stating a personal opinion about the character of a defendant
or witness.
21. Trial: Prosecuting Attorneys: Juries. A distinction exists between arguing that
a defense strategy is intended to distract jurors from what the evidence shows,
which is not misconduct, and arguing that a defense counsel is deceitful, which
is misconduct.
22. Postconviction: Effectiveness of Counsel: Appeal and Error. A defendant who
is represented by different counsel in his or her direct appeal must raise any
known or apparent claims of the trial counsel’s ineffective assistance, or the claim
will be procedurally barred in a later postconviction proceeding.
23. 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 counsel’s performance
was deficient and that this deficient performance actually prejudiced his or
her defense.
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24. Criminal Law: Effectiveness of Counsel. A defense counsel’s performance was
deficient if it did not equal that of a lawyer with ordinary training and skill in
criminal law.
25. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To
show prejudice from a trial counsel’s alleged deficient performance, a defendant
must demonstrate a reasonable probability that but for his or her trial 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. An appellate court focuses on whether a trial counsel’s deficient per­
formance renders the result of the trial unreliable or fundamentally unfair.
26. Effectiveness of Counsel: Proof. The two components of the ineffective assist­
ance test, deficient performance and prejudice, may be addressed in either order.
If it is more appropriate to dispose of an ineffective assistance claim due to the
lack of sufficient prejudice, a court will follow that course.
27. Postconviction: Effectiveness of Counsel: Appeal and Error. When an appel-
late court reviews a claim of ineffective assistance of counsel in a postconviction
proceeding, it often, but not always, presents a mixed question of law and fact.
28. Effectiveness of Counsel: Appeal and Error. For “mixed question” ineffective
assistance claims, an appellate court reviews the lower court’s factual findings
for clear error but independently determines whether those facts show counsel’s
performance was deficient and prejudiced the defendant.
29. ____: ____. In reviewing claims of ineffective assistance on direct appeal, an
appellate court is deciding only questions of law: Are the undisputed facts con-
tained within the record 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?
30. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and
Error. If an alleged ineffective assistance claim rests solely upon the interpreta-
tion of a statute or constitutional requirement, which claims present pure ques-
tions of law, an appellate court can decide the issue on direct appeal. Otherwise,
it addresses ineffective assistance claims on direct appeal only if the record is
sufficient to review these questions without an evidentiary hearing.
31. Confessions: Police Officers and Sheriffs: Due Process. Coercive police activ-
ity is a necessary predicate to the finding that a confession is not voluntary within
the meaning of the Due Process Clause of the 14th Amendment.
32. Confessions: Due Process: Case Overruled. Nebraska’s requirement that a
defendant’s incriminating statements to private citizens must be voluntary to be
admissible is incorrect under established due process precedents, overruling State
v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985), and State v. Kula, 260 Neb.
183, 616 N.W.2d 313 (2000).
33. Criminal Law: Confessions: Rules of Evidence. A defendant should challenge
incriminating statements allegedly procured through a private citizen’s coercion
or duress under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
34. Effectiveness of Counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant who claims ineffective assistance
of counsel is not prejudiced by an alleged error that deprives the defendant of the
chance to have a court make an error in his or her favor.
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35. Criminal Law: Intoxication: Intent: Jury Instructions. Under Nebraska
common law, intoxication is not a justification or excuse for a crime, but it
may be considered to negate specific intent. To submit this defense to the jury,
however, the defendant must not have become intoxicated to commit the crime
and, because of the intoxication, must have been rendered wholly deprived
of reason.
36. Jury Instructions: Appeal and Error. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising an objection
on appeal absent plain error indicative of a probable miscarriage of justice.
37. Homicide: Words and Phrases. Voluntary manslaughter is an intentional killing
committed under extenuating circumstances that mitigate, but do not justify or
excuse, the killing.
38. Homicide: Evidence. For a defense of sudden quarrel, Nebraska law requires
an objective standard for determining whether the evidence shows a sufficient
provocation that would cause a loss of self-control.
39. Homicide: Intoxication: Intent. Intoxication is not relevant in determining the
reasonableness of a defendant’s response to a claimed provocation. Because the
defendant has intentionally killed another person, an objective reasonable person
test is the appropriate means of determining whether the law should recognize the
circumstances as warranting a reduction from murder to manslaughter.
40. Homicide. The concept of manslaughter is a concession to the frailty of human
nature, but it was not intended to excuse a defendant’s subjective personal-
ity flaws.
41. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error.
In determining whether a defense counsel’s failure to object to prosecutorial
misconduct rendered the trial unreliable or unfair, an appellate court considers
whether the defendant’s right to a fair trial was prejudiced because of the pros-
ecutorial misconduct.
Appeal from the District Court for Box Butte County: Travis
P. O’Gorman, Judge. Affirmed.
James R. Mowbray and Sarah P. Newell, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
I. SUMMARY
The State charged Dominick L. Dubray with two counts
of first degree murder for killing Catalina Chavez and Mike
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Loutzenhiser, and two related counts of use of a deadly
weapon to commit a felony. The bizarre, bloody scene
revealed that the victims died from multiple stab wounds.
Dubray’s defense centered on his claims that the evidence
showed he had killed the victims in self-defense or upon a
sudden quarrel. A jury found Dubray guilty of all four counts.
The court sentenced him to terms of life imprisonment for
each of the murder convictions and to terms of 30 to 40
years’ imprisonment for each of the use of a deadly weapon
convictions, with all terms to be served consecutively. This is
Dubray’s direct appeal.
Dubray assigns trial errors related to an evidentiary rul-
ing, a jury instruction, prosecutorial misconduct, and his trial
counsel’s performance. We conclude that his claims are either
without merit or do not constitute reversible error. We affirm.
II. BACKGROUND
These murders occurred on Saturday morning, February
11, 2012. Dubray and Chavez had lived together for 2 to 3
years in Alliance, Nebraska, with their child and Chavez’
older child from a previous relationship. Chavez’ 16-year-
old half brother, Matthew Loutzenhiser (Matthew), had also
been living at their house since June 2011. Loutzenhiser, who
lived in Scottsbluff, Nebraska, was Chavez’ stepfather and
Matthew’s father.
On Friday, February 10, 2012, Loutzenhiser arrived in
Alliance for a visit. Dubray worked that day from 5 a.m. to 1
p.m. Matthew was scheduled to work that night, and Chavez
asked Dubray’s mother to watch her two children overnight
while the adults went out. Dubray went to a club with Chavez
and Loutzenhiser around 8 p.m. They stayed there drinking
alcoholic beverages until 1 a.m. and then went to Dubray’s
aunt’s home and continued drinking with four other people
until about 6 a.m. Loutzenhiser walked with Dubray and
Chavez back to their nearby house. A business surveillance
camera captured them walking back to the house around
6 a.m.
Matthew fell asleep around 1 a.m. in his bedroom, located
off of the living room. He testified that he heard yelling
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through his closed door before 6 a.m. but that he ignored the
yelling because he thought the adults were intoxicated.
According to Dubray’s cousin, Carlos Reza, Dubray called
Reza at 6:49 a.m. Dubray said, “‘I love you, Bro. Take care of
my daughter.’” He said that he was going to kill himself and
that he had two dead bodies in the house. Reza immediately
dressed and drove to Dubray’s house, which was about 5 min-
utes away. En route, he called another cousin, Marco Dubray
(Marco), who also drove to Dubray’s house.
When Reza entered the house, he immediately saw
Loutzenhiser’s motionless body lying against the living room
couch with a lot of blood under him. Reza began screaming
for Dubray and walked into his bedroom. He found Dubray,
covered in blood, lying on the floor by his bed. The tele-
vision was knocked over, the mattress was sideways, and
clothes were all over the room. Dubray did not move initially,
but he got up in response to Reza’s yelling and walked into
the kitchen.
When Reza asked what happened, Dubray began crying
and shaking his head. He told Reza that Chavez was going to
leave him. At some point, Dubray said, “‘I can’t believe what
I have done.’” Dubray told Reza that he had tried to kill him-
self because he did not want to go to prison. He showed Reza
a stab wound to the left of his heart where he had tried to kill
himself. Reza could also see a cut on Dubray’s neck and blood
dripping on the back of his neck. Dubray picked up a clean
knife and told Reza that he was going to kill himself, but he
put the knife down on the kitchen table.
Marco arrived 5 or 10 minutes after Reza. When Marco
entered, he saw Loutzenhiser’s body in the living room and
Dubray and Reza standing by the kitchen table. When Marco
asked what happened, Dubray responded, “‘I don’t know. I
snapped. And I just [want to kill] myself.’”
Marco and Reza were asking aloud what they should do,
and Dubray responded, “‘I just want to die. I don’t want to
go to prison.’” At this point, Reza said that he was going to
call Lonnie Little Hoop, who was Dubray’s and Reza’s uncle.
But Dubray told Reza not to call Little Hoop. He then told
Marco and Reza to both go outside. They told Dubray that
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they loved him and went outside, intending to let him kill
himself. While Marco and Reza were outside, they decided
to seek help. They both said they went next door to ask
Dubray’s father for help, but he was apparently unavailable.
Reza then called Little Hoop. While waiting for Little Hoop,
Reza said he heard Dubray screaming inside and believed that
the screaming was coming from Dubray’s bedroom.
Little Hoop said that he received Reza’s call about 7:05
a.m. and that he lived 3 to 4 minutes away. When he got there,
Little Hoop and Reza entered the house and Little Hoop called
for Dubray. Dubray was lying on the floor by his bed again,
but this time with a knife in his back. When Little Hoop called
him, Dubray pushed his upper body up and leaned against the
bed. Dubray told Little Hoop the same thing that he had said
to Marco and Reza, i.e., that he did not want to live anymore
and did not want to go to jail. When Dubray lay back down,
Little Hoop could see a body under him. Little Hoop told
Dubray not to move until he got help and told Reza to call
an ambulance.
Reza saw two patrol cars close by and ran over to the officers
to request an ambulance. One of the officers was State Patrol
Trooper Craig Kumpf, and the other one was Officer Matthew
Shannon with the Alliance Police Department. Shannon
requested an ambulance, and then the two officers entered the
house. Shannon said he saw wounds to Loutzenhiser’s neck
and shoulder and could not detect signs of life. Kumpf said
Loutzenhiser’s neck was nearly severed. The officers followed
a trail of blood through the kitchen to the bedroom. Dubray
was still lying on the floor with a knife in his back. Shannon
moved closer and saw a smaller, motionless female under his
body. After finding the three bodies, the officers discovered
Matthew in the closed bedroom off the living room and placed
him in a patrol car.
The ambulance arrived at 7:22 a.m. Loutzenhiser, Chavez,
and Dubray were all initially pronounced dead at the scene;
the supervising emergency medical technician could not
detect Dubray’s pulse, and there were no signs of breathing or
response to stimulation. The emergency medical personnel then
left the house. But while taking photographs, Shannon saw
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Dubray move and heard him moan when Shannon called his
name. Shannon called back the emergency medical personnel,
who pulled Dubray from the area between the bed and the wall.
There was a knife on the floor, and a knife impaled in the right
side of Dubray’s back. While readying Dubray for a move, the
bedsheet moved and they found another knife. When they got
outside, they put Dubray in a gurney, and Dubray then pulled
the knife out of his back and dropped it. He was taken to the
emergency room at the county hospital.
Because the evidence of Dubray’s injuries is relevant to his
defenses and ineffective assistance claims, we recount that
evidence in detail. A trauma surgeon diagramed Dubray’s 17
stab wounds or lacerations. Dubray had nine lacerations on
his neck. The surgeon considered three of the stab wounds to
his body to be potentially life threatening. During exploratory
surgery, however, the surgeon determined that only the stab
wound near Dubray’s heart was life threatening. He consid-
ered the other wounds, including the neck lacerations, to be
superficial, meaning that they might require stitches or similar
care, but not surgery. The surgeon saw no blackening under
Dubray’s eyes or behind his ears that would have indicated a
skull fracture, and a CAT scan revealed no trauma to his head.
After stabilizing Dubray, the surgeon sent him to a hospital in
Denver, Colorado, for surgical treatment of his chest wound.
He was sedated for this trip and accompanied by his sister.
She testified that she and other family members saw him in the
intensive care unit about noon the next day and that Dubray
was sitting up and talking.
While the police were interviewing Reza, he learned that
Dubray had been transported to the Denver hospital. Reza went
to the hospital with others the next morning to see Dubray. He
said Dubray had two black eyes and a crooked nose. Dubray’s
aunt, sister, and mother gave similar testimony about his
appearance. Reza was shown a photograph of Dubray that
the prosecutor said was taken 2 days after Reza saw him. But
Reza denied that the depiction reflected Dubray’s appearance
when he saw Dubray because it did not show his “fat lips”
or black eyes. Reza said that when he saw Dubray, Dubray
was sedated, his hands were secured to the bed, and he would
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come in and out of consciousness. During this visit, Dubray
told Reza that he had “fucked up.”
The pathologist who performed the forensic autopsies of
Chavez’ and Loutzenhiser’s bodies found 22 stab wounds or
cuts to Loutzenhiser’s body: three in his neck, five in his chest,
four in his upper extremities, and 10 in his posterior neck and
upper back. The pathologist explained that the depth of some
wounds, which were deeper than the length of the knife blade,
indicated the force with which the knife had been thrust into
Loutzenhiser’s body. The pathologist found 19 stab wounds or
cuts to Chavez’ body: 10 wounds to her neck, one to her chest,
one to her abdomen, one to her shoulder, numerous wounds to
her upper back and posterior neck, and defensive wounds to
her hands.
At trial, the court instructed the jury on the elements of
first degree murder and the lesser-included offenses of sec-
ond degree murder and manslaughter. In addition, the court
instructed the jury that it must find that Dubray did not act
in self-defense. The jury returned a verdict of guilty for both
counts of first degree murder and both counts of use of a
weapon to commit a felony.
III. ASSIGNMENTS OF ERROR
Dubray’s nine assignments of error fall into three catego-
ries, with some factual overlap: trial court error, prosecutorial
misconduct, and ineffective assistance of counsel. Regarding
the trial court’s actions, Dubray assigns that under Neb. Evid.
R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), the court
erred in admitting cumulative, misleading, and gruesome pho-
tographs, despite their prejudicial effect. Relatedly, he assigns
that his trial counsel was ineffective to the extent that he failed
to object to the court’s admission of the photographs.
Regarding the State’s actions, Dubray assigns prosecutorial
misconduct in the prosecutor’s closing argument and question-
ing of witnesses. He also assigns that his trial counsel was inef-
fective in failing to object to this alleged misconduct.
Regarding his trial attorney’s actions, Dubray assigns that
in addition to failing to preserve the above trial errors, his
attorney was ineffective as follows:
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(1) failing to move to suppress Dubray’s involuntary
statements;
(2) failing to request a jury instruction on intoxication or
to challenge the constitutionality of Neb. Rev. Stat. § 29-122
(Cum. Supp. 2012);
(3) failing to object to the court’s jury instruction defining
sudden quarrel;
(4) failing to call Megan Reza to testify that Chavez kept
one of the knives used in the murder in her bedroom for self-
protection; and
(5) failing to subpoena Jonathan Stoeckle, an emergency
room nurse, to testify about Dubray’s condition at a Denver
hospital after the murders.
IV. ANALYSIS
1. Trial Court Did Not Err in Admitting
Autopsy Photographs
(a) Additional Facts
The two law enforcement officers who were first summoned
to the house testified about the scene and their observations of
the victims’ bodies. During one of the officer’s testimony, the
court admitted into evidence two photographs of the victims’
bodies at the scene. A different police officer testified about
being present during the autopsies of the victims’ bodies. She
explained in simple terms the wounds depicted in the nine
photographs that the State offered through her testimony. Over
Dubray’s rule 403 objections, the court admitted the photo-
graphs and allowed the State to publish eight of them after the
officer testified that they accurately represented what she had
seen and photographed.
Later, the pathologist who performed the autopsies testi-
fied in more detail about the wounds depicted in five of
these photographs, including their depth and trajectory. During
the pathologist’s testimony, the State withdrew two of the
photographs that the court had admitted during the officer’s
testimony, but submitted 12 additional autopsy photographs.
Dubray’s attorney did not object to the State’s offer of these 12
photographs. The court stated that all the admitted photographs
could go to the jury.
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(b) Standard of Review
[1,2] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which
must determine their relevancy and weigh their probative
value against their prejudicial effect.1 We review the court’s
admission of photographs of the victims’ bodies for abuse
of discretion.2
(c) Analysis
Dubray contends that many of these photographs were
cumulative to other evidence and duplicative of photographs
of the victims’ wounds that were taken from only slightly dif-
ferent angles. He contends that the court erred in allowing
the photographs to go to the jury through both the officer and
pathologist, which allowed the State to enhance their prejudi-
cial nature.
[3,4] If the State lays proper foundation, photographs that
illustrate or make clear a controverted issue in a homicide case
are admissible, even if gruesome.3 In a homicide prosecution,
a court may admit into evidence photographs of a victim for
identification, to show the condition of the body or the nature
and extent of wounds and injuries to it, and to establish malice
or intent.4
Here, the prosecutor stated that he offered the photographs
to rebut Dubray’s claim of self-defense, to show his intent
and malice, to show the positioning and trajectory of the
wounds, and to show the position of the bodies as they were
found at the scene. Dubray does not contend that the photo-
graphs were irrelevant for these purposes. And they were not
inadmissible just because crime scene photographs and other
testimony established that Dubray had stabbed the victims
multiple times.
[5] The crime scene photographs showed the position of
the victims’ bodies as the officers found them. But they
1
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
2
State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
3
Id.
4
Smith, supra note 1.
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did not depict the victims’ wounds, which was the primary
purpose for presenting the autopsy photographs. 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.5 The photographs clearly helped the jurors under-
stand the pathologist’s testimony and were highly probative
of how the victims died and Dubray’s intent and malice in
killing them. Given the many times that Dubray stabbed the
victims, it is not surprising that the State submitted multiple
photographs of their wounds—gruesome crimes produce grue-
some photographs.6
We agree that the prosecutor could have provided foundation
for admitting nine of the photographs without having the police
officer verify their authenticity in addition to the pathologist.
But rule 403 does not require the State to have a separate pur-
pose for every photograph, and it requires a court to prohibit
cumulative evidence only if it “substantially” outweighs the
probative value of the evidence. Because the court admitted
the photographs for a proper purpose, we do not believe that
additional photographs of the same wounds were unfairly
prejudicial to Dubray. We conclude the court did not abuse its
discretion in admitting the exhibits.
2. P rosecutorial Misconduct
Dubray contends that the prosecutor asked prejudicial ques-
tions of witnesses and made prejudicial comments during his
closing argument. He admits that his counsel did not object to
the statements, but contends that they constituted plain error.
(a) Additional Facts
During the State’s case in chief, the prosecutor asked
Matthew, Chavez’ half brother, about his high school activities
and school plans. The prosecutor also elicited testimony from
the two responding officers about Matthew’s shocked reaction
upon seeing his father’s body.
5
Abdulkadir, supra note 2.
6
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
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During Dubray’s cross-examination of Reza, Reza stated
that when he visited Dubray in the Denver hospital the day
after the murders, Dubray had black eyes, “fat lips,” and a
crooked nose. During the State’s redirect examination, the
prosecutor presented a photograph of Dubray to Reza. The
prosecutor asked whether Reza had any reason to dispute his
representation that the photograph was taken 2 days after Reza
visited Dubray. After the court sustained Dubray’s objection
to the prosecutor’s improper testimony, the prosecutor tried to
ask the question another way: “[I]f I represented to you that it
was taken two days after you visited with him, can you explain
to us why he doesn’t have bruising under his eye?” The court
again sustained Dubray’s objection to this questioning. The
prosecutor then asked Reza whether Dubray was intubated
when Reza visited him and whether Reza knew that this proce-
dure could sometimes cause damage to patients. When Dubray
objected again, the prosecutor moved on to a different line
of questioning.
During the State’s initial closing argument, the prosecutor
remarked on the victims’ attributes and lost future plans:
Now, I don’t — never knew [Chavez], I never knew
[Loutzenhiser]. These are two beautiful human beings.
They had love in their heart, they had goals, they had
aspirations, they had children, they had all of those things
in life that people could want. Nothing was perfect but
is it ever for any of us? And to have their lives taken
from them so savagely, so brutally at 22 years old. And
[Loutzenhiser is] never going to his boy’s ball games.
And [Chavez] to never see her kids again. “Take care
of my baby.” That’s what you are supposed to be doing.
That’s what she’s supposed to be doing. They were killed
for no reason. He took their lives and the evidence shows
that he did so brutally with premeditation.
Find him guilty of two counts of first degree murder
and use of a weapon. The law requires it. And justice
demands it. Thank you.
During Dubray’s closing argument, his attorney argued that
because Dubray was shirtless when he was stabbed, the evi-
dence suggested that Chavez or Loutzenhiser had attacked
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him with a knife while he was getting ready for bed. He also
argued that Matthew would not still be alive if Dubray had
planned the murders and that Matthew was still alive because
he was not the one who had attacked Dubray. He suggested
that three intoxicated people had simply got into a sudden
quarrel and events had turned tragic.
During the State’s rebuttal argument, the prosecutor
responded to Dubray’s argument by stating that Dubray had
asked the jury to engage in speculation for which no evi-
dence existed:
I wish [Loutzenhiser] was here to tell us what hap-
pened. I wish [Chavez] was here to get up on the stand
and say this is what happened in this case, this is the truth.
....
. . . I’m not going to speculate what would’ve hap-
pened to Matt[hew] if he would’ve came out earlier . . .
apparently [Loutzenhiser] got together with [Chavez] and
there’s this grand conspiracy for these two much smaller
people to attack [Dubray.] But he won’t say . . . that
[Chavez] tried to cut his throat or stab him. He won’t say
that [Loutzenhiser] tried to do it. Do you want to know
why? Because [his] theory won’t hold up. That’s why he’s
doing that. . . . He’s throwing it on the walls to see what
sticks. . . .
....
[Defense counsel is] up here speculating and he’s walk-
ing on the graves of these two people. And he wants to
do it in an aw-shucks sort of manner. Now, I don’t want
to really talk badly about these two people . . . but they
probably attacked my client and deserved to die. That’s
what he’s saying. . . .
....
. . . I’m surprised [the defense attorney] didn’t say that
[Matthew] was one of the third conspirators. But maybe
that would be pushing it too far.
(b) Standard of Review
[6-8] A party who fails to make a timely motion for mistrial
based on prosecutorial misconduct waives the right to assert
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on appeal that the court erred in not declaring a mistrial due
to the misconduct.7 When a defendant has not preserved a
claim of prosecutorial misconduct for direct appeal, we will
review the record only for plain error.8 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 uncor-
rected, would result in damage to the integrity, reputation,
and fairness of the judicial process.9 Generally, we will find
plain error only when a miscarriage of justice would other-
wise occur.10
(c) Analysis
[9,10] Prosecutors are charged with the duty to conduct
criminal trials in a manner that provides the accused with a
fair and impartial trial.11 Because prosecutors are held to a high
standard for a wide range of duties, the term “prosecutorial
misconduct” cannot be neatly defined. Generally, prosecutorial
misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may
undermine a defendant’s right to a fair trial.12
[11,12] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct.13 A prosecutor’s conduct that does not mislead
and unduly influence the jury is not misconduct.14 But if we
conclude that a prosecutor’s act were misconduct, we next
7
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
8
See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
9
Id.
10
See id.
11
See id.
12
See, U.S. v. Santos-Rivera, 726 F.3d 17 (1st Cir. 2013); State v. Barfield,
272 Neb. 502, 723 N.W.2d 303 (2006), disapproved on other grounds,
State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007). See, generally,
Bennett L. Gershman, Prosecutorial Misconduct (2d ed. 2013).
13
See Watt, supra note 8.
14
Id.
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consider whether the misconduct prejudiced the defendant’s
right to a fair trial.15
[13-15] Prosecutorial misconduct prejudices a defendant’s
right to a fair trial when the misconduct so infected the trial
that the resulting conviction violates due process.16 Whether
prosecutorial misconduct is prejudicial depends largely on
the context of the trial as a whole.17 In determining whether
a prosecutor’s improper conduct prejudiced the defendant’s
right to a fair trial, we consider the following factors: (1) the
degree to which the prosecutor’s conduct or remarks tended to
mislead or unduly influence the jury; (2) whether the conduct
or remarks were extensive or isolated; (3) whether defense
counsel invited the remarks; (4) whether the court provided a
curative instruction; and (5) the strength of the evidence sup-
porting the conviction.18
(i) Questions to and About
Witness Matthew
Dubray argues that the prosecutor improperly asked Matthew
about the sports he played in high school and whether he
planned to go to homecoming that night. Dubray also argues
that the prosecutor asked irrelevant and prejudicial questions
of officers about Matthew’s shocked reaction to seeing his
father’s body when he came out of his bedroom.
[16,17] Prosecutors are not to inflame the jurors’ preju-
dices or excite their passions against the accused.19 This rule
includes intentionally eliciting testimony from witnesses for
prejudicial effect.20 Prosecutors should not make statements
or elicit testimony intended to focus the jury’s attention on
the qualities and personal attributes of the victim. These
facts lack any relevance to the criminal prosecution and have
15
See id.
16
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
17
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
18
See Watt, supra note 8.
19
See id.
20
Iromuanya, supra note 16.
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224 289 NEBRASKA REPORTS
the potential to evoke jurors’ sympathy and outrage against
the defendant.21
But the prosecutor did not violate these rules by question-
ing Matthew about his high school activities. These ques-
tions are distinguishable from the comments that we consid-
ered improper in State v. Iromuanya.22 There, the prosecutor
remarked about the victims’ personal achievements and lost
future plans during his opening statement. But here, the pros-
ecutor’s questions about Matthew’s activities were obviously
intended to put a young witness at ease on the witness stand—
not to evoke the jurors’ sympathy for Matthew as an indirect
victim of these crimes. And we reject Dubray’s argument
that the prosecutor’s closing argument affected the innocuous
nature of these questions. Because the jury would not have
been misled or improperly influenced by these questions, they
were not misconduct.
Regarding the prosecutor’s questions to officers about
Matthew’s shocked reaction to seeing his father’s body, we
agree with the State that this testimony was relevant to elimi-
nate Matthew as a suspect in the jurors’ minds. The jurors
heard testimony that officers handcuffed Matthew, put him
in a patrol car, and took him to the station for question-
ing. So the questions were relevant to show that although
the officers detained Matthew for questioning, he was not a
suspect and had nothing to do with the killings. They were
not misconduct.
(ii) Questions to Reza
Dubray also contends that while questioning Reza about
Dubray’s appearance at the hospital, the prosecutor committed
misconduct by persisting in an action that the court had ruled
against. He argues that the prosecutor’s repeated comments
about the photograph of Dubray bolstered his description of
it to the jurors and undermined Reza’a testimony. Because
the court did not admit the photograph, Dubray contends the
21
Id.
22
Id.
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jury had no means of determining the truth of the prosecu-
tor’s statements.
[18] A prosecutor commits misconduct when he or she
persists in attempting to introduce evidence that the court has
ruled inadmissible.23 This prohibition precludes an artful exam-
ination that refers directly to the inadmissible evidence.24 It is
true that the court likely would have admitted the photograph if
the prosecutor had called a witness to lay foundation for it. But
the prosecutor could not do this himself. And the protections
against the use of “inadmissible evidence would be of little
benefit if the prosecutor were allowed, under the guise of ‘art-
ful cross-examination,’ to tell the jury the substance of inad-
missible evidence.”25 So we agree that the prosecutor’s persist­
ence in questioning Reza about the unadmitted photograph and
his suggestion that evidence outside the record existed to refute
Reza’s testimony was misconduct.
But we conclude that the misconduct did not deprive Dubray
of a fair trial. We agree that the point of the prosecutor’s ref-
erence to the unadmitted photograph was to rebut Reza’s tes-
timony about Dubray’s appearance the day after the murders.
But this was a minor scene in a long play, and three other wit-
nesses for Dubray and the trauma surgeon testified about his
appearance soon after the murders. So the prosecutor’s com-
ments would not have misled or influenced the jurors about
Dubray’s appearance, particularly when the court sustained
Dubray’s objections to the photograph and the prosecutor’s
statements. We conclude that this conduct did not rise to the
level of plain error.
(iii) Prosecutor’s Closing Argument
We turn to Dubray’s argument that the prosecutor’s closing
argument was prejudicial because it was intended to appeal
to the jurors’ sympathies and prejudices and to disparage his
23
See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
24
See U.S. v. Hall, 989 F.2d 711 (4th Cir. 1993). See, also, Annot., 90
A.L.R. 3d 646 (1979).
25
Hall, supra note 24, 989 F.2d at 716.
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defense counsel. He first argues that in the State’s initial sum-
mation, the prosecutor’s remarks about the victims’ qualities
and personal attributes were intended to inflame the jury’s pas-
sions against Dubray. The State does not dispute that the argu-
ment was improper, but it points out that the court instructed
the jurors that they must not let sympathy or passion influence
their verdict.
We conclude that the argument constituted misconduct.
As we have explained, a victim’s qualities and personal attri-
butes are irrelevant to the facts that the State must prove
in a criminal prosecution and have the potential to distort
the jurors’ reasoned consideration of the evidence by evok-
ing their sympathy for the victim and corresponding outrage
toward the defendant.26 Inflaming those passions appears to
have been the prosecutor’s intent, and we strongly disapprove
of such tactics.
Dubray also contends that during the State’s rebuttal argu-
ment, the prosecutor improperly “demoniz[ed] the arguments
of defense counsel.”27 He argues that although the prosecutor’s
rebuttal argument was not as egregious as the rebuttal argu-
ment in State v. Barfield,28 the effect was the same. The State
contends that these statements are distinguishable because the
prosecutor was responding to defense counsel’s blaming the
victims. The State does not argue that the remarks were proper
but urges that the jury would have been able to filter out
these statements.
In Barfield, the prosecutor characterized the defendant as a
monster and strongly insinuated that all defense lawyers are
liars. We disapproved of the prosecutor’s personal expression
of the defendant’s culpability and especially found his remarks
about defense lawyers as being liars to be a serious violation
of the prosecutor’s duty to ensure a fair trial. We agreed
with the 10th Circuit’s statement about attributing deceptive
26
Iromuanya, supra note 16.
27
Brief for appellant at 87.
28
Barfield, supra note 12.
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motives to a defense counsel personally or to defense law-
yers generally:
“[C]omments by prosecutors to the effect that a defense
attorney’s job is to mislead the jury in order to garner an
acquittal for his client is not only distasteful but borders
on being unethical. . . . Such comments only serve to
denigrate the legal profession in the eyes of the jury and,
consequently, the public at large.”29
[19] We concluded that such comments are misconduct.
We noted that the prosecutor had made numerous improper
remarks and that the defense had no opportunity to respond
to the prosecutor’s remarks about defense attorneys because
they were made during rebuttal. We further stated that the
evidence was not overwhelming and that the credibility of
witnesses was a key factor: “[T]he implication that defense
counsel was a liar, and by extension was willing to suborn
perjury, was highly prejudicial when viewed in that context.”30
We concluded that the remarks were plain error and required
a new trial.
[20] But when a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is permitted to
present a spirited summation that a defense theory is illogical
or unsupported by the evidence and to highlight the relative
believability of witnesses for the State and the defense. These
types of comments are a major purpose of summation, and they
are distinguishable from attacking a defense counsel’s personal
character or stating a personal opinion about the character of a
defendant or witness.31
[21] So a distinction exists between arguing that a defense
strategy is intended to distract jurors from what the evi-
dence shows, which is not misconduct, and arguing that a
defense counsel is deceitful, which is misconduct. Most of
29
Id. at 514, 723 N.W.2d at 314, quoting U.S. v. Linn, 31 F.3d 987 (10th Cir.
1994).
30
Id. at 516, 723 N.W.2d at 315.
31
See, e.g., U.S. v. Rivas, 493 F.3d 131 (3d Cir. 2007); U.S. v. Lore, 430 F.3d
190 (3d Cir. 2005); U.S. v. Hartmann, 958 F.2d 774 (7th Cir. 1992).
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the prosecutor’s statements fell into the former category and
were intended to rebut the defense argument that the evidence
showed Dubray had killed the victims in self-defense or upon
a sudden quarrel. They were not “foul blow[s].”32
But the prosecutor crossed the line when he characterized
defense counsel as “walking on the graves of these two people”
and arguing that the victims “deserved to die.” The latter state-
ment was not a fair characterization of the defense theory,
and the former statement amounted to a personal opinion that
defense counsel was defiling the victims through misleading
and deceptive arguments. The same is true of the prosecu-
tor’s statement that he was surprised Dubray’s counsel had
not attempted to cast Matthew as a third conspirator. These
statements do not amount to calling defense attorneys liars.
But they were directed at Dubray’s counsel personally—not at
his arguments. So they were the type of remarks that “‘serve
to denigrate the legal profession in the eyes of the jury and,
consequently, the public at large.’”33 They have no place in a
courtroom and constitute misconduct.
Nonetheless, the prosecutor has dodged a reversal this time.
On this record, we cannot conclude that these improper argu-
ments deprived Dubray of a fair trial. Contrary to Dubray’s
argument, we do not agree that prosecutorial misconduct
permeated this trial. Moreover, in addition to the court’s
admonition not to let sympathy or passion influence the jury’s
verdict, the court also instructed the jury that the attorneys’
statements were not evidence. In another case, these general
admonitions might be insufficient to counter the same mis-
conduct. But the State correctly argues that evidence against
Dubray was strong and that the credibility of witnesses was
not at issue. The most damning evidence of Dubray’s guilt
32
State v. Beeder, 270 Neb. 799, 805, 707 N.W.2d 790, 795 (2006),
disapproved on other grounds, McCulloch, supra note 12, quoting Berger
v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).
33
Barfield, supra note 12, 272 Neb. at 514, 723 N.W.2d at 314, quoting
Linn, supra note 29.
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was his own statements to witnesses who had no reason to lie
about them. We conclude that viewing the trial as a whole, the
improper arguments did not deprive Dubray of a fair trial. We
find no plain error.
3. Ineffective Assistance
of Counsel
[22] Because Dubray is represented by different counsel in
his direct appeal, he must raise any known or apparent claims
of his trial counsel’s ineffective assistance, or the claim will be
procedurally barred in a later postconviction proceeding.34
[23,24] To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington,35 the defendant
must show that counsel’s performance was deficient and
that this deficient performance actually prejudiced his or
her defense.36 Counsel’s performance was deficient if it did
not equal that of a lawyer with ordinary training and skill in
criminal law.37
[25] To show prejudice from a trial counsel’s alleged defi-
cient performance, a defendant must demonstrate a reasonable
probability that but for his or her trial counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent.38 A reasonable probability is a probability sufficient to
undermine confidence in the outcome.39 We focus on whether
a trial counsel’s deficient performance renders the result of the
trial unreliable or fundamentally unfair.40
[26] The two components of the ineffective assistance test,
deficient performance and prejudice, may be addressed in
34
See Watt, supra note 8.
35
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
36
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
37
Iromuanya, supra note 16.
38
See State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).
39
State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013).
40
See id.
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230 289 NEBRASKA REPORTS
either order.41 If it is more appropriate to dispose of an ineffec-
tive assistance claim due to the lack of sufficient prejudice, we
follow that course.42
(a) Standard of Review
[27,28] When we review a claim of ineffective assistance
of counsel in a postconviction proceeding, it often, but not
always,43 presents a mixed question of law and fact.44 For
“mixed question” ineffective assistance claims, we review the
lower court’s factual findings for clear error but independently
determine whether those facts show counsel’s performance was
deficient and prejudiced the defendant.45
[29,30] But in reviewing claims of ineffective assistance
on direct appeal, we are deciding only questions of law:
Are the undisputed facts contained within the record suf-
ficient 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?46 If the alleged ineffective assistance claim
rests solely on the interpretation of a statute or constitutional
requirement, which claims present pure questions of law, we
can decide the issue on direct appeal. Otherwise, we address
ineffective assistance claims on direct appeal only if the
record is sufficient to review these questions without an evi-
dentiary hearing.47
One of Dubray’s ineffective assistance claims rests solely on
the meaning of a constitutional requirement to exclude invol-
untary statements from evidence. We turn to that claim first.
41
See Fox, supra note 38.
42
See Morgan, supra note 36.
43
See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
44
See State v. Robinson, 287 Neb. 799, 844 N.W.2d 312 (2014).
45
See State v. Fester, 287 Neb. 40, 840 N.W.2d 543 (2013).
46
See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Accord, U.S.
v. Henry, 472 F.3d 910 (D.C. Cir. 2007); U.S. v. Angel, 355 F.3d 462 (6th
Cir. 2004); U.S. v. Bender, 290 F.3d 1279 (11th Cir. 2002).
47
See Morgan, supra note 36.
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(b) Dubray Was Not Prejudiced by His Counsel’s
Failure to Seek Suppression of His
Incriminating Statements
Relying on State v. Kula,48 Dubray contends that his trial
counsel should have moved to suppress Dubray’s allegedly
involuntary statements to persons who were not law enforce-
ment officers. He contends that under Kula, an accused’s state-
ment to private citizens—like statements to law enforcement
officers—must be voluntary to be admissible at trial. But the
State argues that Dubray’s position is inconsistent with the
U.S. Supreme Court’s holding on this issue and our adoption
of that holding in other cases. We agree.
In Colorado v. Connelly,49 the U.S. Supreme Court held
that coercive police activity is a necessary predicate to a
court’s finding that a confession is not voluntary under the
Due Process Clause. There, the defendant, who suffered from
chronic schizophrenia, walked into a police station and con-
fessed to a murder committed several months earlier. A state
psychiatrist opined that he had confessed to the murder while
experiencing “‘command hallucinations’” from the “‘voice of
God,’” raising the issue whether his confession was volun-
tary.50 The state appellate court affirmed the suppression of the
confession. The U.S. Supreme Court reversed because there
was no evidence that the police officers had exploited a mental
weakness with coercive tactics:
Absent police conduct causally related to the confession,
there is simply no basis for concluding that any state
actor has deprived a criminal defendant of due process of
law. . . .
. . . [W]hile mental condition is surely relevant to
an individual’s susceptibility to police coercion, mere
examination of the confessant’s state of mind can never
conclude the due process inquiry.
48
State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
49
Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473
(1986).
50
Id., 479 U.S. at 161.
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Our “involuntary confession” jurisprudence is entirely
consistent with the settled law requiring some sort of
“state action” to support a claim of violation of the Due
Process Clause . . . .51
[31] The Court specifically held that “coercive police activ-
ity is a necessary predicate to the finding that a confession is
not ‘voluntary’ within the meaning of the Due Process Clause
of the Fourteenth Amendment.”52 We have stated this holding
in several cases.53
But in 1985, a year before the U.S. Supreme Court decided
Connelly, we decided State v. Bodtke.54 In Bodtke, we agreed
with other state courts that an accused’s incriminating state-
ment to a private citizen must be voluntary to be admissible:
“On questioned voluntariness, an accused’s statement, whether
an admission or a confession, made to private citizens, as
well as to law enforcement personnel, must be voluntary as
determined by a court for admissibility and as a fact ascer-
tained by the jury.”55 We reasoned that the State’s “[u]se
of an accused’s involuntary statement, whether admission or
confession, offends due process and fundamental fairness in a
criminal prosecution, because one acting with coercion, duress,
or improper inducement transports his volition to another who
acts in response to external compulsion, not internal choice.”56
Later, in State v. Phelps,57 we cited a criminal law treatise
that called into question our holding in Bodtke in light of the
51
Id., 479 U.S. at 164-65.
52
Id., 479 U.S. at 167.
53
See, e.g., State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011); State
v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010); State v. Garner, 260
Neb. 41, 614 N.W.2d 319 (2000); State v. Ray, 241 Neb. 551, 489 N.W.2d
558 (1992), abrogated on other grounds, State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009).
54
State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).
55
Id. at 513, 363 N.W.2d at 923.
56
Id. at 510, 363 N.W.2d at 922.
57
See State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992), citing 1 Wayne
R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2 n.77.2 (Supp.
1991).
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Connelly decision. But we concluded that it was unnecessary
for us to resolve whether the Bodtke rule was still viable in
Nebraska because the defendant’s statements to private citizens
were voluntarily made.
In Kula,58 on which Dubray relies, we had previously
reversed the defendant’s convictions, because of prosecutorial
misconduct, and remanded the cause for a new trial. At the
defendant’s retrial, a fellow inmate testified about incriminat-
ing statements that the defendant had made in prison after
he was convicted in the first trial. The defendant requested a
hearing to determine whether his statements were voluntary,
but the court never ruled on the issue. On appeal, he assigned
that the court erred in denying his request for a hearing. He
claimed that his incriminating statements resulted from the
State’s improper influence, i.e., the stress, anxiety, and coercive
environment that he allegedly experienced because prosecuto-
rial misconduct had caused his wrongful conviction. Relying
on Bodtke, we held that the trial court erred in failing to make
a preliminary determination whether the defendant’s statements
were voluntary before admitting the inmate’s testimony about
the content of his statements.
As noted, however, in several cases, we have recognized
that the Due Process Clause of the U.S. Constitution does not
exclude an involuntary statement unless coercive police activ-
ity was involved in obtaining it. Even the “most outrageous
behavior by a private party seeking to secure evidence against
a defendant does not make that evidence inadmissible under
the Due Process Clause”59:
We think the Constitution rightly leaves this sort of
inquiry to be resolved by state laws governing the admis-
sion of evidence and erects no standard of its own in this
area. A statement rendered by one in the condition of
respondent might be proved to be quite unreliable, but
this is a matter to be governed by the evidentiary laws
of the forum . . . and not the Due Process Clause of the
58
Kula, supra note 48.
59
Connelly, supra note 49, 479 U.S. at 166.
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Fourteenth Amendment. “The aim of the requirement of
due process is not to exclude presumptively false evi-
dence, but to prevent fundamental unfairness in the use of
evidence, whether true or false.”60
We recognize that incriminating statements obtained through
a private citizen’s coercion or duress raise an obvious concern
about their reliability.61 But to date, the Supreme Court has
interpreted the Due Process Clause to exclude only involuntary
statements improperly obtained through the coercive conduct
of state actors—not “‘presumptively false evidence’”62 that
was not obtained through the coercion of any state actor.
Moreover, a statement allegedly obtained solely by private
citizens through coercion or duress could be challenged under
rule 40363 as inadmissible because the danger of prejudice out-
weighs any probative value.64 Even if a court did not exclude
the statement, the existence of coercion or duress in obtaining
it would clearly present a jury question whether the statement
was reliable evidence of the fact at issue.
[32,33] Here, Dubray does not contend that he made his
incriminating statements in response to a private citizen’s
coercion or duress. Most of his statements were not even made
in response to a question. But we conclude that Nebraska’s
requirement that a defendant’s incriminating statements to pri-
vate citizens must be voluntary to be admissible is incorrect
under established due process precedents. We have held that
the due process protections of the Nebraska Constitution are
coextensive with the protections afforded by the Due Process
Clause of the U.S. Constitution.65 And, as stated, we have cited
the Connelly holding in many cases. We therefore overrule
60
Id., 479 U.S. at 167 (citations omitted).
61
See Phelps, supra note 57.
62
See Connelly, supra note 49, 479 U.S. at 167.
63
See § 27-403.
64
Compare Boren v. Sable, 887 F.2d 1032 (10th Cir. 1989).
65
See, Keller v. City of Fremont, 280 Neb. 788, 790 N.W.2d 711 (2010);
State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
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Bodtke66 and Kula67 to the extent that they hold due process
precludes the admission of a defendant’s involuntary statement
to a private citizen. A defendant should challenge incriminating
statements allegedly procured through a private citizen’s coer-
cion or duress under rule 403.
It is true that we had not overruled Bodtke and Kula when
Dubray was tried, and we will assume for this analysis that
his trial counsel was deficient in failing to request a pre-
liminary hearing on the voluntariness of Dubray’s statements.
Even if this assumption were true, however, Dubray cannot
show prejudice under Strickland because he is not entitled to
the benefit of an incorrect ruling on due process requirements.
The U.S. Supreme Court addressed this issue in Lockhart
v. Fretwell.68
In Fretwell, the petitioner in a federal habeas corpus action
had been convicted of capital murder in state court and sen-
tenced to death by a jury. The prosecutor had argued that the
evidence established two aggravating factors. The petitioner
claimed that his trial counsel was ineffective for failing to
raise an Eighth Circuit case, decided 8 months before his trial,
that would have rendered the aggravators invalid. Three years
after the petitioner’s trial, the U.S. Supreme Court decided a
case that resulted in the Eighth Circuit’s overruling its case
which had invalidated the aggravators.69 The federal district
court recognized that after the judgment was affirmed on
appeal, the Eighth Circuit had overruled the case supporting
the petitioner’s claim.70 But because the law was in effect at
his trial, the district court concluded that trial counsel was
ineffective in failing to raise it. The court concluded that the
66
Bodtke, supra note 54.
67
Kula, supra note 48.
68
Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993).
69
See Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991), reversed, Fretwell,
supra note 68.
70
See Fretwell v. Lockhart, 739 F. Supp. 1334 (E.D. Ark. 1990), reversed,
Fretwell, supra note 68.
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prejudice was obvious because without a valid aggravator,
the petitioner would have been sentenced to life in prison.
The Eighth Circuit affirmed, reasoning that the petitioner was
entitled to the benefit of a decision that was still in effect at
the time of his sentencing.
The U.S. Supreme Court disagreed and reversed. The Court
emphasized that the prejudice component of the Strickland test
is not simply a question of whether the outcome would have
been different:
[A]n analysis focusing solely on mere outcome deter-
mination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is
defective. To set aside a conviction or sentence solely
because the outcome would have been different but for
counsel’s error may grant the defendant a windfall to
which the law does not entitle him.71
[34] The Court rejected the petitioner’s reliance on the
rule that ineffective assistance claims are not judged from
hindsight. It explained that this rule applies under the defi-
cient performance component of Strickland, not the prejudice
component. It concluded that under Strickland, a defendant
is not prejudiced by an error that deprives the defendant “‘of
the chance to have the state court make an error in his [or
her] favor.’”72
The U.S. Supreme Court has clarified that Fretwell did not
modify or supplant the Strickland test for ineffective assist­
ance.73 Instead, in Williams v. Taylor,74 the Court classified
Fretwell as one of the unusual situations “in which it would
be unjust to characterize the likelihood of a different outcome
as legitimate ‘prejudice.’”75 “[G]iven the overriding interest
in fundamental fairness, the likelihood of a different outcome
71
Fretwell, supra note 68, 506 U.S. at 369-70.
72
Id., 506 U.S. at 371.
73
See Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398
(2012).
74
Will. v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000).
75
Id., 529 U.S. at 391-92.
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attributable to an incorrect interpretation of the law should be
regarded as a potential ‘windfall’ to the defendant rather than
the legitimate ‘prejudice’ contemplated by . . . Strickland.”76
But Fretwell does “not justify a departure from a straight-
forward application of Strickland when the ineffectiveness of
counsel does deprive the defendant of a substantive or proce-
dural right to which the law entitles him.”77
Dubray’s claim clearly falls within Fretwell’s windfall cir-
cumstance. The only distinction between Fretwell and the
history here is that we had not previously overruled Bodtke
and Kula before deciding his ineffective assistance claims.
But that distinction is immaterial. The point under Fretwell is
that the relief Dubray requests rests upon an incorrect judicial
interpretation of constitutional law. Connelly has been the final
word on this issue since 1986, and Bodtke and Kula are both
incorrect under Connelly. So under Fretwell, Dubray asks for
a windfall to which he is not entitled—an incorrect state court
ruling on due process requirements. Because he cannot estab-
lish Strickland prejudice, his ineffective assistance claim is
without merit.
(c) Dubray Was Not Prejudiced by His Counsel’s
Failure to Request an Intoxication Instruction or
Challenge the Constitutionality of § 29-122
Dubray contends that his trial counsel was ineffective in
failing to (1) ask the court to instruct the jury that voluntary
intoxication can negate specific intent of the charged crimes
and (2) challenge the constitutionality of § 29-122. Dubray
argues that this court has long recognized a defendant’s vol-
untary intoxication as a defense if it would negate the intent
element of a specific intent crime. He recognizes that in 2011,
the Legislature enacted § 29-122,78 which, in most circum-
stances, eliminates voluntary intoxication as a defense and
precludes its consideration in determining the existence of a
mens rea requirement:
76
Id., 529 U.S. at 392.
77
Id., 529 U.S. at 393 (emphasis in original).
78
See 2011 Neb. Laws, L.B. 100 (effective Aug. 27, 2011).
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A person who is intoxicated is criminally responsible
for his or her conduct. Intoxication is not a defense to
any criminal offense and shall not be taken into consid-
eration in determining the existence of a mental state
that is an element of the criminal offense unless the
defendant proves, by clear and convincing evidence, that
he or she did not (1) know that it was an intoxicating
substance when he or she ingested, inhaled, injected,
or absorbed the substance causing the intoxication or
(2) ingest, inhale, inject, or absorb the intoxicating sub-
stance voluntarily.
(Emphasis supplied.)
But Dubray contends that his counsel should have chal-
lenged § 29-122 because its application violated his right to
due process. Dubray argues that the preclusion of an intoxi-
cation defense relieved the State of its burden to prove his
mental state beyond a reasonable doubt and shifted the bur-
den to him to prove that his crimes were not premeditated.
He recognizes that in 1996, the U.S. Supreme Court upheld
a similar statute in Montana v. Egelhoff.79 But he contends
that the decision was limited by Justice Ginsburg’s reasoning
in her concurring opinion because without her concurrence,
the opinion would have split equally between the plural-
ity and the dissent. He cites to the U.S. Supreme Court’s
rule that “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judg-
ments on the narrowest grounds . . . .’”80 Dubray contends
that § 29-122 is unconstitutional under the reasoning of the
concurring opinion in Egelhoff because it limits the admissi-
bility of relevant evidence instead of redefining the elements
of the crime.
79
Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 2d 361
(1996).
80
See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d
260 (1977).
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We decline to address the constitutionality of § 29-122 here
because it is unnecessary to deciding this appeal.81 Even under
the common-law rule that intoxication can be a defense in lim-
ited circumstances, we conclude that Dubray was not entitled
to an intoxication instruction as a matter of law.
[35] Under Nebraska common law, intoxication is not a
justification or excuse for a crime, but it may be considered
to negate specific intent.82 To submit this defense to the jury,
however, the defendant must not have become intoxicated
to commit the crime and, because of the intoxication, must
have been rendered wholly deprived of reason.83 The exces-
sive intoxication must support a conclusion that the defendant
lacked the specific intent to commit the charged crime.84 The
evidence did not support that finding here.
Contrary to Dubray’s argument, there is no evidence in
the record to show that his blood alcohol concentration was
at least .221 of a gram. During the State’s examination of
the trauma surgeon at the emergency room, the following
exchange occurred:
[Prosecutor:] What was [Dubray’s] blood alcohol level
in the tox screen that you did?
[Surgeon:] I don’t recall the number off hand but it
would be in the chart.
[Prosecutor:] If I represent to you that your chart says
it was a .221, would you have any reason to dispute that?
[Surgeon:] I wouldn’t dispute it, no.
But the prosecutor’s unsworn factual assertion was not
evidence, absent a showing that the parties stipulated to this
fact. And the surgeon’s statement that he could not dispute
the prosecutor’s representation did not magically transform it
into evidence. Dubray also points to evidence of the victims’
blood alcohol concentrations. But the pathologist testified
81
See State v. Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005).
82
State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
83
See id., citing Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951).
84
See, State v. Bevins, 187 Neb. 785, 194 N.W.2d 181 (1972); State v.
Brown, 174 Neb. 393, 118 N.W.2d 332 (1962).
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240 289 NEBRASKA REPORTS
that the higher concentrations found in the victims’ vitreous
eye fluid was not necessarily more accurate, and no evidence
suggested that Dubray’s concentration would have been com-
parable to the victims’ concentrations.
More important, the evidence shows that Dubray was not
wholly deprived of reason immediately before or after the
murders. As explained, Dubray, Chavez, and Loutzenhiser
walked back to Dubray’s house around 6 a.m. No witness
testified that Dubray was behaving unreasonably at his aunt’s
house at this time. By 6:49 a.m., Dubray had killed Chavez
and Loutzenhiser and called Reza to take care of his child.
By the time Reza arrived a few minutes later, Dubray had
also attempted suicide for the first time. But his concern for
his daughter and his conduct after the murders showed he
was contemplating how to respond to his imminent arrest. He
specifically told Marco and Reza that he intended to kill him-
self to avoid prison, and he insisted that they not call Little
Hoop so that he could carry out this plan. He was clearly
reasoning and anticipating the consequences of the acts he had
just committed.
Because the record shows that Dubray’s consumption of
alcohol did not wholly deprive him of reason, he would not
have been entitled to an intoxication instruction even under
our common-law rules. So he cannot show prejudice from his
counsel’s failure to seek an intoxication instruction or to chal-
lenge the constitutionality of § 29-122.
(d) Dubray Was Not Prejudiced by His Counsel’s
Failure to Object to Jury Instruction
Defining Sudden Quarrel
[36] Dubray’s trial counsel did not object to instruction
No. 4, which included a definition of sudden quarrel. Failure
to object to a jury instruction after it has been submitted to
counsel for review precludes raising an objection on appeal
absent plain error indicative of a probable miscarriage of
justice.85 But Dubray claims that his trial counsel provided
85
Abdulkadir, supra note 2.
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ineffective assistance in failing to object to the italicized lan-
guage in the following definition:
A sudden quarrel is a legally recognized and suf-
ficient provocation which causes a reasonable person to
lose normal self[-]control. It does not necessarily mean
an exchange of angry words or an altercation contem-
poraneous with an unlawful killing and does not require
a physical struggle or other combative corporal contact
between the defendant and the victim. It is not the provo-
cation alone that reduces the grade of the crime, but,
rather, the sudden happening or occurrence of the provo-
cation so as to render the mind incapable of reflection
and obscure the reason so that the elements necessary
to constitute murder are absent. The question is whether
there existed reasonable and adequate provocation to
excite one’s passion and obscure and disturb one’s power
of reasoning to the extent that one acted rashly and
from passion, without due deliberation and reflection,
rather than from judgment. The test is an objective one.
Qualities peculiar to the defendant which render him
or her particularly excitable, such as intoxication, are
not considered.
This instruction is consistent with our recent definitions
of a sudden quarrel.86 But Dubray contends that his intoxica-
tion was relevant to whether he was capable of reflection and
reasoning. He further argues that the instruction undermined
his trial counsel’s argument that his intoxication prevented
him from forming the requisite intent to kill. We reject these
arguments. We have already determined that Dubray was not
entitled to an intoxication instruction. Moreover, his trial coun-
sel’s intoxication argument was not relevant to a sudden quar-
rel defense.
[37,38] Voluntary manslaughter is an intentional killing
committed under extenuating circumstances that mitigate, but
do not justify or excuse, the killing.87 Even apart from the
86
See, e.g., id.; State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
87
See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
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language that Dubray challenges, our consistent references to
a “reasonable person” in defining a sudden quarrel shows that
we require an objective standard for determining whether the
evidence shows a sufficient provocation that would cause a
loss of self-control. The reasonable person test is a reference to
a hypothetical ordinary person.88
[39,40] Other courts agree with us that intoxication is not
relevant in determining the reasonableness of a defendant’s
response to a claimed provocation.89 Because the defendant
has intentionally killed another person, an objective reasonable
person test is the appropriate means of determining whether
the law should recognize the circumstances as warranting a
reduction from murder to manslaughter. The concept of man-
slaughter is a concession to the frailty of human nature, but it
was not intended to excuse a defendant’s subjective personal-
ity flaws.90 We conclude that Dubray’s trial counsel was not
ineffective for failing to object to the court’s definition of sud-
den quarrel.
(e) Dubray Was Not Prejudiced by His Counsel’s
Failure to Object to Every Photograph
of the Victims’ Bodies
Dubray argues that to the extent his trial counsel failed to
preserve the issue of the court’s admission of photographs
of the victims’ bodies, he provided ineffective assistance. As
discussed, however, Dubray’s counsel did object to the admis-
sion of photographs during the police officer’s testimony. And
we have concluded that the court did not abuse its discretion
in admitting additional and similar photographs and that the
additional photographs did not unfairly prejudice Dubray. So
Dubray cannot show that he was prejudiced by his trial court’s
failure to object to the court’s rulings.
88
See Black’s Law Dictionary 1457 (10th ed. 2014).
89
See, e.g., People v. Manriquez, 37 Cal. 4th 547, 123 P.3d 614, 36 Cal.
Rptr. 3d 340 (2005); Commonwealth v. Garabedian, 399 Mass. 304, 503
N.E.2d 1290 (1987); Bland v. State, 4 P.3d 702 (Okla. Crim. App. 2000);
Com. v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981).
90
See Smith, supra note 87.
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STATE v. DUBRAY 243
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(f) Dubray Was Not Prejudiced by His
Counsel’s Failure to Object to the
Prosecutor’s Closing Argument
and Questioning of Witnesses
[41] Dubray argues that his trial counsel’s performance
was deficient to the extent that he failed to preserve Dubray’s
claims of prosecutorial misconduct by failing to object to the
conduct. But in determining whether a defense counsel’s fail-
ure to object to prosecutorial misconduct rendered the trial
unreliable or unfair, we consider whether the defendant’s right
to a fair trial was prejudiced because of the prosecutorial
misconduct.91 We have determined that Dubray’s claims of
prosecutorial misconduct are without merit or that he was not
deprived of a fair trial because of the prosecutor’s misconduct.
So Dubray cannot show prejudice from his trial counsel’s fail-
ure to object to the conduct.
(g) The Record is Insufficient to Evaluate
Trial Counsel’s Failure to Call
Megan Reza as a Witness
Dubray contends that his trial counsel should have called
Megan Reza, who was one of Dubray’s cousins, as a witness.
He argues that Megan Reza was also a friend of Chavez and
would have testified that Chavez kept a knife hidden under her
mattress for protection. He contends that her testimony would
have helped to negate the premeditation charge and support
his theory of self-defense or sudden quarrel. We agree with the
State that the claim requires an evaluation of trial strategy, for
which the record is insufficient. We decline to address it on
direct appeal.
(h) Dubray Was Not Prejudiced by His Counsel’s
Failure to Subpoena an Out-of-State Witness
During the trial, the court sustained the State’s objection to
admitting a deposition of Stoeckle, an emergency room nurse
at the Denver hospital where Dubray was treated. Stoeckle had
described Dubray’s injuries in a report. The court excluded
91
See Iromuanya, supra note 16.
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244 289 NEBRASKA REPORTS
the deposition because Dubray had not shown that Stockle
was unavailable.
Dubray contends that his trial counsel’s performance was
deficient in failing to subpoena Stoeckle to testify about his
injuries. He argues that his trial counsel could have sub-
poenaed Stoeckle under Neb. Rev. Stat. § 29-1908 (Reissue
2008). Dubray contends he was prejudiced by his counsel’s
misunderstanding of the law because Stoeckle could have
provided an unbiased account of Dubray’s condition—as
distinguished from the descriptions provided by family mem-
bers. He argues Stoeckle’s testimony would have rebutted
the State’s evidence that all his wounds were self-inflicted
or illusory.
The State disagrees that Dubray could have subpoenaed
Stoeckle under § 29-1908. It argues that Dubray cannot show
a reasonable probability that the outcome would have been
different even if Stoeckle had testified. Because we agree
that Dubray cannot show prejudice from not having Stoeckle
testify, we do not address whether his counsel’s performance
was deficient.
No offer of proof was made at trial about the substance of
Stoeckle’s statements. But Dubray’s description of Stoeckle’s
potential testimony shows that Stoeckle’s absence from the
trial is insufficient to undermine confidence in its outcome. As
stated, Dubray’s family members testified about his appear-
ance at the hospital. Moreover, the trauma surgeon at the
Nebraska emergency room testified to all of Dubray’s injuries.
So Dubray has not shown the necessity of having another non-
family member testify to his injuries. We conclude that this
claim is without merit.
V. CONCLUSION
We conclude that the court did not err in admitting the
autopsy photographs. We conclude that Dubray’s claims of
prosecutorial misconduct are without merit or that he was not
prejudiced by the misconduct. Accordingly, Dubray cannot
show prejudice from his trial counsel’s failure to object to
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these alleged trial errors. We conclude that his trial counsel
was not ineffective for failing to seek suppression of his state-
ments to private citizens. We conclude that under the common
law, he was not entitled to an intoxication defense. We there-
fore do not address his challenges to § 29-122. We conclude
that his ineffective assistance claims either fail or cannot be
addressed on direct appeal. We affirm.
Affirmed.
Miller-Lerman, J., concurring in the result.
I concur in the result, but respectfully disagree with the
breadth of the majority opinion regarding the interplay between
voluntariness of admissions and due process, specifically, the
failure of the majority opinion to analyze Dubray’s hospital
statement made to a private citizen. I disagree with the major-
ity’s apparent conclusion that Dubray’s hospital statement,
arguably coerced by State action but made to a private citizen,
is not subject to a due process challenge.
Dubray claims that counsel was ineffective for failing to
challenge certain of his statements on due process grounds.
The statements were made in two contexts: at Dubray’s home
and when Dubray was in the hospital. The set of statements
at the home were made to private citizens before the police
arrived. I agree with the majority that there was no coercion
by the State or private person and that hence, no due process
hearing was required.
However, Dubray also made a statement to Carlos Reza after
Dubray was in custody, when Dubray was sedated in the hospi-
tal and restrained to the bed with “little white straps.” Dubray
claims the hospital statement was involuntary, but the majority
does not explain how this statement fits within its holding.
Where the coercive circumstances are created by the State or
where there is a private citizen acting in concert with the State,
or as a state agent, statements to a private citizen should be
considered for due process review.
However, whether or not the hospital statement would be
subject to a due process voluntariness challenge, I note that
the statement would be cumulative of the prior statements
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246 289 NEBRASKA REPORTS
not subject to such a challenge. Therefore, Dubray could
not show prejudice from counsel’s purported failure to chal-
lenge the hospital statement. Thus, I agree with the majority
that Dubray has not shown ineffective assistance of counsel
regarding his various admissions.
Wright, J., joins in this concurrence.
State of Nebraska on behalf of Connor H., a minor child,
appellee, v. Blake G., appellee, and Amanda H.,
now known as A manda G., third -party
defendant and appellant.
In re Change of Name of Connor H., by and
through his next friend, A manda G.
Amanda G., appellant, v. Blake G., appellee.
___ N.W.2d ___
Filed October 10, 2014. Nos. S-13-995, S-13-1000.
1. Minors: Names: Appeal and Error. An appellate court reviews a trial court’s
decision concerning a requested change in the surname of a minor de novo on the
record and reaches a conclusion independent of the findings of the trial court.
2. Minors: Names. The question of whether the name of a minor child should be
changed is determined by what is in the best interests of the child.
3. Minors: Names: Proof. The party seeking the change in surname has the burden
of proving that the change in surname is in the child’s best interests.
4. Minors: Names. Substantial welfare is related to best interests, because a change
in surname is in a child’s best interests only when the substantial welfare of the
child requires the name to be changed.
5. ____: ____. In Nebraska, there is no preference for a surname—paternal or
maternal—in name change cases; rather, the child’s best interests is the sole
consideration.
6. ____: ____. Nonexclusive factors to consider in determining whether a change
of surname is in a child’s best interests are (1) misconduct by one of the child’s
parents; (2) a parent’s failure to support the child; (3) parental failure to maintain
contact with the child; (4) the length of time that a surname has been used for
or by the child; (5) whether the child’s surname is different from the surname
of the child’s custodial parent; (6) a child’s reasonable preference for one of the
surnames; (7) the effect of the change of the child’s surname on the preservation
and development of the child’s relationship with each parent; (8) the degree of
community respect associated with the child’s present surname and the proposed
surname; (9) the difficulties, harassment, or embarrassment that the child may
experience from bearing the present or proposed surname; and (10) the identifica-
tion of the child as a part of a family unit.