State v. Miranda ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2023 09:04 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MIRANDA
Cite as 313 Neb. 358State of Nebraska, appellee, v.
Marlon E. Miranda, Jr., appellant.
___ N.W.2d ___
Filed January 27, 2023. No. S-22-196.
1. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to the
prosecution.
2. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
3. Homicide: Intent: Circumstantial Evidence: Proof. Purposeful, delib-
erate, premeditated murder may be proved circumstantially.
4. Homicide: Intent: Words and Phrases. In the homicide context, delib-
erate means not suddenly, not rashly, and requires that the defendant
considered the probable consequences of his or her act before doing
the act.
5. ____: ____: ____. The term “premeditated” means to have formed a
design to commit an act before it was done.
6. Homicide: Intent. One kills with premeditated malice if, before the act
causing death occurs, one has formed the intent or determined to kill the
victim without legal justification.
7. Homicide: Intent: Time. No particular length of time for premeditation
is required, provided the intent to kill is formed before the act is com-
mitted and not simultaneously with the act that caused the death.
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STATE V. MIRANDA
Cite as 313 Neb. 3588. ____: ____: ____. The design or purpose to kill may be formed upon
premeditation and deliberation at any moment before the homicide is
committed.
9. Criminal Law: Evidence: Intent. The intent with which an act is com-
mitted is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
10. 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.
11. ____: ____. 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.
12. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
13. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
14. Effectiveness of Counsel: Records: Appeal and Error. Once raised,
an appellate court will determine whether the record on appeal is suf-
ficient to review the merits of the ineffective performance claims.
The record is sufficient if it establishes either that trial counsel’s per­
formance was not deficient, that the appellant will not be able to estab-
lish prejudice as a matter of law, or that trial counsel’s actions could not
be justified as a part of any plausible trial strategy.
15. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
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313 Nebraska Reports
STATE V. MIRANDA
Cite as 313 Neb. 35816. 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 per-
formance actually prejudiced the defendant’s defense.
17. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. To show preju-
dice under the prejudice component of Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been
different.
18. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal; the deter-
mining factor is whether the record is sufficient to adequately review the
question.
19. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
20. ____: ____: ____: ____. An appellate court can determine whether the
record proves or rebuts the merits of a claim of ineffective assistance of
trial counsel only if it has knowledge of the specific conduct alleged to
constitute deficient performance.
21. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
22. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Kyle M. Melia for appellant.
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Nebraska Supreme Court Advance Sheets
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STATE V. MIRANDA
Cite as 313 Neb. 358Douglas J. Peterson, Attorney General, Siobhan E. Duffy,
and Erin E. Tangeman for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Marlon E. Miranda, Jr. (Miranda),
challenges his convictions, pursuant to jury verdict, for first
degree murder and use of a deadly weapon to commit a felony.
He contends that the evidence was insufficient to support his
convictions and that he received ineffective assistance of trial
counsel. Finding no merit to his appeal, we affirm.
II. BACKGROUND
We begin by setting forth a brief background. Miranda and
his wife, Sharon Miranda, separated in 2019. Sharon later met
and began dating Jose Santos Parra-Juarez, the victim. The
convictions flowed from a shooting that occurred early in the
morning on June 13, 2020, which we will discuss in more
detail later in the opinion.
The State charged Miranda with first degree murder, a Class
IA felony, 1 and use of a deadly weapon (firearm) to commit
a felony, a Class IC felony. 2 Miranda pled not guilty. A jury
later convicted him on both counts. The court sentenced
Miranda to life imprisonment on the murder conviction and to
45 to 50 years’ imprisonment on the weapon conviction, to be
served consecutively.
Miranda filed a timely appeal. Because of the imposition of
life imprisonment, the appeal was placed on our docket. 3
1
See Neb. Rev. Stat. § 28-303(1) (Cum. Supp. 2022).
2
See Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016).
3
See Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2022).
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STATE V. MIRANDA
Cite as 313 Neb. 358III. ASSIGNMENTS OF ERROR
Miranda assigns six errors. His first two assignments of
error relate to the sufficiency of the evidence. He assigns that
the evidence presented at trial lacks the probative value to sus-
tain a guilty verdict because, he asserts, no rational trier of fact
could find him guilty of first degree murder or use of a deadly
weapon to commit a felony.
The remaining assignments of error relate to ineffective
assistance of counsel. Miranda assigns, reordered, that his trial
counsel performed deficiently in (1) “failing to meaningfully
participate in voir dire,” (2) “failing to adequately prepare for
a first degree murder trial by failing to review discovery with
[him] and failing to file pretrial motions,” (3) “never [seek-
ing] out plea negotiations with the State,” and (4) “failing to
zealously advocate for [him].” He asserts that but for his trial
counsel’s deficient performance, the result of the proceeding
below would have been different.
IV. STANDARD OF REVIEW
[1] In an appeal of a criminal conviction, an appellate court
reviews the evidence in a light most favorable to the pros-
ecution. 4 Additional standards of review will be set forth, as
appropriate, in the analysis.
V. ANALYSIS
1. Sufficiency of Evidence
Miranda first contends that the evidence presented at trial
was insufficient to support his convictions.
(a) Standard of Review
[2] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
4
State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
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STATE V. MIRANDA
Cite as 313 Neb. 358pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 5
(b) First Degree Murder
On appeal, Miranda argues that the State’s evidence was
insufficient to show he committed first degree murder. Under
Nebraska law, a person commits first degree murder when
he or she kills another person “purposely and with deliberate
and premeditated malice.” 6 Miranda is not disputing that he
killed Parra-Juarez. Instead, he challenges the sufficiency of
the evidence based on his claim that “[t]he State did not intro-
duce any direct evidence of [his] state of mind” at the time
of the killing. 7 The State asserts that it presented circumstan-
tial evidence to prove he killed Parra-Juarez purposely and
with deliberate and premeditated malice, and contends that it
met its burden of proving each element beyond a reasonable
doubt. We agree.
(i) Elements
[3-6] Before addressing Miranda’s specific arguments, we
begin by elaborating on the elements of first degree murder
at issue. Purposeful, deliberate, premeditated murder may
be proved circumstantially. 8 In the homicide context, delib-
erate means not suddenly, not rashly, and requires that the
defendant considered the probable consequences of his or her
act before doing the act. 9 The term “premeditated” means to
5
State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).
6
§ 28-303(1).
7
Brief for appellant at 15.
8
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
9
Id.- 364 -
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STATE V. MIRANDA
Cite as 313 Neb. 358have formed a design to commit an act before it was done. 10
One kills with premeditated malice if, before the act causing
death occurs, one has formed the intent or determined to kill
the victim without legal justification. 11
[7-9] No particular length of time for premeditation is
required, provided the intent to kill is formed before the act
is committed and not simultaneously with the act that caused
the death. 12 The design or purpose to kill may be formed upon
premeditation and deliberation at any moment before the homi-
cide is committed. 13 The intent with which an act is committed
is a mental process and may be inferred from the words and
acts of the defendant and from the circumstances surrounding
the incident. 14
(ii) Additional Facts
Pursuant to our standard of review, we recite these facts
in the light most favorable to the State. On the evening of
June 12, 2020, Miranda went to Epoca Cantina, a bar in
Omaha, Nebraska (the bar), to celebrate his friend’s birth-
day. Sharon arrived separately with a group of friends. At
that time, Miranda and Sharon had been separated for more
than a year, and Miranda was aware that Sharon was dating
Parra-Juarez.
Below is an aerial photograph, which is a cropped excerpt
from exhibit 339, used by the State as demonstrative evidence.
We refer to it in this section only for illustrative purposes.
Although it is difficult to read, the bar’s name appears in yel-
low immediately above the yellow “x.”
10
Id.11
Id.12
Id.13
Id.14
Id.- 365 -
Nebraska Supreme Court Advance Sheets
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STATE V. MIRANDA
Cite as 313 Neb. 358Shortly after Sharon arrived at the bar (entrance marked by
the yellow “x”) with her group of friends, they met up with
Parra-Juarez. Miranda abruptly approached the group and
seemed upset. He “waved off” Parra-Juarez and said some-
thing to him. The group then left Miranda and found a table
in the back of the bar. Later that evening, Sharon got up from
the table to go to the restroom, and Miranda walked across the
bar and approached Parra-Juarez. He grabbed Parra-Juarez’
face, twisted his neck, and pushed him to the ground. Parra-
Juarez did not fight back. The bar owner escorted Miranda out
of the bar.
The bar owner went back inside the bar and grabbed a
towel for Parra-Juarez, whose face was bleeding. He then
asked Parra-Juarez where he and his friends were staying for
the night and pointed out where their hotel was located. The
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MIRANDA
Cite as 313 Neb. 358bar owner stated that he would let Sharon, Parra-Juarez, and
the rest of their group out through the back door of the bar
(on the north side of the bar building depicted in the pho-
tograph), in the hope that they would not cross paths with
Miranda—whom he had escorted out of the front door—on
their way to the hotel.
After Sharon’s group left the bar, Miranda tried to get back
inside to grab his coat and his hat. The bar owner retrieved
the items for him. Miranda then walked to his car (represented
on the photograph by a red rectangle), which was parked on
Capitol Avenue, and retrieved his gun. (This path is marked
on the photograph by a red arrow.) The gun was in a holster,
which he clipped to his pants pocket beneath his shirt. After
retrieving his gun, Miranda walked back to the bar. (This path
is marked on the photograph by the blue arrow.) His friend
came outside to talk with him and told him that Sharon’s group
had exited through the back door. Miranda left and walked
toward North 12th Street. (This path is marked on the photo-
graph by the purple arrow from the bar entrance to North 12th
Street.) When he reached the street, he turned right on the side-
walk and walked north, in the opposite direction from where
his car was parked. (This path is marked by the remainder of
the purple arrow.)
Sharon, Parra-Juarez, and the rest of their group were walk-
ing north on the sidewalk on North 12th Street. Miranda
quickly approached the group from behind with his hand under
his shirt, in his waistband. Someone screamed that Miranda
had a gun. He then pulled the gun out and began pointing it
at Sharon and Parra-Juarez, who were walking together at
the back of the group. When Miranda caught up to them, he
reached over Sharon and shot Parra-Juarez, who fell to the
ground. While Parra-Juarez was lying on the ground, Miranda
shot him multiple times in the torso and neck—shooting him
a total of six times—and then grabbed Sharon by the arm and
pushed her further up the sidewalk.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. MIRANDA
Cite as 313 Neb. 358An off-duty police officer was working security in the area
and heard the gunshots. He ran in the direction of the gun-
fire and observed Parra-Juarez lying on the ground at North
12th Street. He ran past Parra-Juarez toward Miranda, who
was pointing a gun at Sharon and banging her head against
the wall. The officer drew his handgun and identified him-
self as a police officer. Miranda did not drop the gun. The
officer fired nine times in Miranda’s direction, striking him
once above the knee and on the surface of his ankle. Miranda
fell backward and was eventually detained. When asked to
describe the events that occurred, Miranda stated that Parra-
Juarez “got up on his wife or got too close to his wife, so he
got shot.”
Parra-Juarez was taken to a hospital and later pronounced
dead. The fragments recovered during an autopsy revealed
that Miranda had shot him using an “RIP, Radically Invasive
Projectile style bullet,” which has eight points that detach from
the body of the bullet to create nine separate wound channels
instead of one. The autopsy confirmed that Parra-Juarez’ death
was caused by the gunshot wounds to his torso and neck.
Although Miranda did not deny that he shot Parra-Juarez, he
maintained that the shooting “was all a blur” and that he did
not plan Parra-Juarez’ death in any way.
(iii) Resolution
Miranda argues that although “‘[c]ircumstantial evidence
is not inherently less probative than direct evidence,’ and ‘a
fact finder may rely upon circumstantial evidence and the
inferences that may be drawn therefrom,’” in this case, cir-
cumstantial evidence was insufficient to find him guilty. 15
Miranda asserts that his own testimony was “[t]he only evi-
dence of his state of mind” at the time of the killing and that
“[h]e reasonably believed that his life was in danger” when he
15
Brief for appellant at 14 (quoting State v. Kofoed, 283 Neb. 767, 817
N.W.2d 225 (2012)).
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STATE V. MIRANDA
Cite as 313 Neb. 358shot Parra-Juarez. 16 Thus, he contends, the evidence was insuf-
ficient to support his conviction for first degree murder. We
disagree for three reasons.
First, the State was not required to present direct evidence.
As outlined above, purposeful, deliberate, premeditated mur-
der may be proved circumstantially. 17 Even if we assume
that Miranda’s own testimony supported an alternative theory
regarding his state of mind at the time of the shooting, this
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence. The relevant
question is only whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.
The record reflects that the State presented an abundance
of evidence supporting its theory that Miranda committed
first degree murder. That evidence included Miranda’s gun;
photographs and x rays of the bullet fragments recovered
from the victim’s body during the autopsy; surveillance foot-
age of the area, which showed Miranda walking up the side-
walk on North 12th Street with his arm extended in front
of him; and testimony from various police officers, first
responders, forensic technicians, and third-party witnesses.
Viewing the facts in the light most favorable to the prosecu-
tion and without passing on the credibility of the witnesses,
we determine there was sufficient evidence for any rational
trier of fact to find Miranda guilty beyond a reasonable doubt
of first degree murder.
Second, we reject Miranda’s suggestion that we should
apply what is often referred to as the “accused’s rule” in
addressing his claim, instead of viewing the evidence in the
light most favorable to the State. 18 We explained in State v.
16
Id. at 15.
17
State v. Golyar, supra note 8.
18
See State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).
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STATE V. MIRANDA
Cite as 313 Neb. 358Olbricht 19 that prior to 1981, when reviewing circumstantial
evidence on appeal, we followed the accused’s rule. That
rule required an appellate court to apply the inference most
favorable to the accused when confronted with two infer-
ences deducible from circumstantial evidence. 20 We stated that
the accused’s rule had the effect of requiring the State “‘to
disprove every hypothesis of nonguilt in order to convict’”
using circumstantial evidence. 21 Here, Miranda asserts that
the State’s evidence was insufficient to support his conviction
for first degree murder, because “[t]he State did not introduce
evidence of premeditation inconsistent with any reasonable
hypothesis of innocence.” 22 But, as the State correctly points
out in its briefing, we made clear in Olbricht that the accused’s
rule is no longer the governing standard. 23
Finally, although Miranda does not assign error to the jury
instructions, we briefly note that the district court appropri-
ately instructed the jury regarding circumstantial evidence.
It instructed that in deciding whether Miranda acted with
intent when he killed Parra-Juarez, the jury “should consider
[Miranda’s] words and acts and all the surrounding circum-
stances” and that “[a] fact may be proved by direct evidence
alone, by circumstantial evidence alone, or by a combination
of the two.” The court also instructed that it is the State’s
burden to prove each element of the crime beyond a reason-
able doubt. It further instructed that there were four possible
verdicts for the jury to consider, including (1) guilty of first
degree murder, (2) guilty of second degree murder, (3) guilty
of manslaughter, or (4) not guilty. And it instructed the jury
19
State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016) (citing State v.
Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995)).
20
Id. (citing State v. Pierce, supra note 19).
21
Id. at 986, 885 N.W.2d at 708 (quoting State v. Pierce, supra note 19).
22
Brief for appellant at 17.
23
See State v. Olbricht, supra note 19 (citing State v. Buchanan, 210 Neb.
20, 312 N.W.2d 684 (1981) (expressly overruling accused’s rule)).
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Cite as 313 Neb. 358on self-defense. After considering the instructions provided by
the court and the evidence presented at trial, the jury found
Miranda guilty beyond a reasonable doubt of first degree mur-
der. Viewing the evidence in the light most favorable to the
prosecution, we see no reason to set aside that verdict. This
claim lacks merit.
(c) Use of Deadly Weapon
to Commit Felony
Miranda derivatively contends that the evidence presented
at trial was insufficient to support his conviction for use of a
deadly weapon to commit a felony. This claim is premised on
his argument that the State failed to prove the elements of first
degree murder—the underlying felony for his use of a deadly
weapon to commit a felony conviction—beyond a reasonable
doubt. We note that Miranda does not dispute that he used a
firearm to kill Parra-Juarez or that Parra-Juarez’ death was
caused by the gunshot wounds that he inflicted.
Because Miranda’s premise is flawed, this argument also
fails. We have already decided that the State met its burden to
prove the elements of first degree murder. Thus, the evidence
was sufficient to support Miranda’s conviction for use of a
deadly weapon to commit a felony. This claim lacks merit.
2. Ineffective Assistance of Counsel
Miranda next alleges various claims of ineffective assis-
tance of counsel, asserting that but for his trial counsel’s defi-
cient performance, the outcome of the proceeding would have
been different.
(a) Standard of Review
[10,11] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 24 In
reviewing claims of ineffective assistance of counsel on direct
24
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
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STATE V. MIRANDA
Cite as 313 Neb. 358appeal, 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. 25
[12,13] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make
a determination of whether the claim can be decided upon
the trial record and (2) a district court later reviewing a peti-
tion for postconviction relief to recognize whether the claim
was brought before the appellate court. 26 When a claim of
ineffective assistance of counsel is raised in a direct appeal,
the appellant is not required to allege prejudice; however,
an appellant must make specific allegations of the conduct
that he or she claims constitutes deficient performance by
trial counsel. 27
[14] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. The record is sufficient if it
establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish preju-
dice as a matter of law, or that trial counsel’s actions could not
be justified as a part of any plausible trial strategy. 28
(b) General Principles
[15] Before addressing Miranda’s specific claims, we set
forth the general principles governing ineffective assistance
of counsel. When a defendant’s trial counsel is different
from his or her counsel on direct appeal, the defendant must
raise on direct appeal any issue of trial counsel’s ineffective
25
State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022).
26
State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
27
State v. Figures, supra note 24.
28
State v. Thomas, supra note 26.
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Cite as 313 Neb. 358per­formance which is known to the defendant or is apparent
from the record; otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding. 29
[16,17] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 30 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defen-
dant’s defense. 31 To show that counsel’s performance was
deficient, the defendant must show counsel’s performance
did not equal that of a lawyer with ordinary training and
skill in criminal law. To show prejudice under the prejudice
component of Strickland, the defendant must demonstrate a
reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. 32
We now turn to Miranda’s specific claims.
(c) Claims Assigned
(i) Failure to “Meaningfully”
Participate in Voir Dire
Miranda first argues that his trial counsel performed defi-
ciently in failing to meaningfully participate in voir dire.
To support his claim, he asserts that his counsel “lectured
the jury,” instead of asking questions, and that “[o]f the few
questions asked, none were substantive.” 33 He further asserts
that his counsel moved on without waiting for responses
from the potential jurors. Miranda characterizes this perform­
ance as “the complete abandonment of his [trial counsel’s]
29
State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022).
30
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
31
State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
32
Id.33
Brief for appellant at 22.
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Cite as 313 Neb. 358responsibility.” 34 In response, the State argues that Miranda
fails to specifically detail his allegation or, in the alternative,
that the record is insufficient to address the claim.
[18,19] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean
that it can be resolved on direct appeal; the determining fac-
tor is whether the record is sufficient to adequately review the
question. 35 The record is sufficient to resolve on direct appeal a
claim of ineffective assistance of counsel if the record affirm­
atively proves or rebuts either deficiency or prejudice with
respect to the defendant’s claims. 36
The record before us reveals that the prosecutor conducted
a lengthy and comprehensive voir dire examination. First, the
prosecutor asked whether anyone knew individuals who were
involved in the case. He then asked about their familiarity
with the general location where the killing took place. Next,
he asked whether anyone had prior knowledge of the events
that led to the case. He also asked questions regarding their
previous experience serving as jurors. Then, the prosecutor
inquired about potential witnesses. He further asked whether
anyone had contact with law enforcement in the past or was a
victim of a crime. He next asked questions about the potential
jurors’ consideration of the particular charges against Miranda
and whether anyone had experience with or specific views
regarding firearms. He also asked whether anyone had con-
cerns about hearing testimony from people who live differently
or have a different background, race, socioeconomic status, or
belief from the potential jurors. Finally, the prosecutor inquired
about their familiarity with television shows involving crime
and their ability to apply the law based only upon the evidence
presented inside the courtroom.
34
Id. at 23.
35
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
36
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Nebraska Supreme Court Advance Sheets
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STATE V. MIRANDA
Cite as 313 Neb. 358[20] An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assistance
of trial counsel only if it has knowledge of the specific con-
duct alleged to constitute deficient performance. 37 Although
Miranda’s trial counsel’s voir dire was relatively brief com-
pared to the State’s examination, brevity alone is not enough to
show that his trial counsel’s performance was deficient. In his
argument, Miranda points to a single statement that his coun-
sel made during voir dire: “‘I quit trying to [find] out exactly
what [juries are] thinking.’” 38 He does not identify any specific
questions that his trial counsel failed to ask.
In light of the State’s extensive voir dire examination and
Miranda’s trial counsel’s statements in the record, we cannot
say that the level of engagement amounted to a total failure in
his representation. Viewing Miranda’s counsel’s actions in the
context of the theme of burdens on the jury that accompany a
lengthy trial, and considering that the holidays were approach-
ing around the time of the trial, we cannot say that Miranda’s
counsel had an unreasonable strategic purpose in how he
addressed the jury or that his performance was deficient. This
claim is insufficiently pled.
(ii) Failure to Prepare for Trial
Miranda also argues that his trial counsel performed defi-
ciently by failing to adequately prepare for trial, because, he
asserts, his counsel failed to review discovery with him and
failed to file pretrial motions. The State counters that this
claim fails on direct appeal, either because Miranda failed to
sufficiently describe his allegations or because the record is
insufficient to address them.
Upon our review, the record indicates that Miranda met with
his trial counsel in preparation for the trial and that he was
37
State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).
38
Brief for appellant at 22.
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Cite as 313 Neb. 358aware of the State’s evidence against him. It further reveals
that Miranda’s trial counsel filed various pretrial motions. His
counsel moved, on multiple occasions, to continue the pretrial
conference. His counsel also filed a motion to take deposition
and a motion in limine, which his counsel later amended.
Miranda broadly argues that his counsel was ineffective
in not filing motions to suppress. But, as the State correctly
points out, he fails to provide a basis for filing such motions.
Beyond the motions to suppress, he does not identify any
other pretrial motions that his counsel should have filed.
To raise an ineffective assistance of counsel claim on direct
appeal, Miranda must make specific allegations of the conduct
that he claims constitutes deficient performance. He fails to
do so here. We agree with the State that this claim is insuf-
ficiently alleged.
[21] As a final matter, we note that Miranda also asserts that
his trial counsel changed strategies in the middle of the trial.
To the extent that he raises arguments unrelated to his assign-
ment of error, we decline to address them. An alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by an
appellate court. 39
(iii) Failure to Seek
Plea Negotiations
Miranda next argues that his trial counsel’s performance was
deficient because, he asserts, his counsel failed to initiate plea
negotiations with the State. He cites to Missouri v. Frye. 40
In Frye, the issue before the U.S. Supreme Court was
whether defense counsel was ineffective in failing to inform
the defendant about a plea offer before it expired. The Court
held that defense counsel’s performance was deficient in
allowing the offer to expire without advising the defendant of
39
State v. Vanderford, 312 Neb. 580, 980 N.W.2d 397 (2022).
40
Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012).
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Cite as 313 Neb. 358the offer or allowing him to consider it. That is not the situa-
tion here.
Miranda acknowledges that the record before us contains
no entry of a plea, nor any stated plea offers. He suggests that
“an evidentiary hearing may be necessary to explore the full
extent of this error,” 41 but his claim amounts to a legal con-
clusion or mere speculation. Because Miranda fails to allege
deficient performance with sufficient particularity, this claim
lacks merit.
(iv) Failure to Zealously Advocate
[22] Finally, Miranda argues that his trial counsel was
ineffective in “failing to zealously advocate” for him. 42
Assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient
performance, and an appellate court will not scour the remain-
der of the brief in search of such specificity. 43 Miranda’s
assignment of error does not specifically allege any deficient
conduct by his counsel.
If we were to look to Miranda’s argument to try to provide
the specificity required, all we can discern is that he primarily
reasserts his arguments regarding voir dire and trial prepara-
tion, which we have already discussed. In addition, he vaguely
asserts that his trial counsel was ineffective in appearing “com-
pletely uninterested” 44 and in stipulating to the foundation of
security camera videos.
As we previously stated, an alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate
court. 45 We decline to excuse the specificity that Miranda fails
41
Brief for appellant at 21.
42
Id. at 26.
43
State v. Anders, supra note 4.
44
Brief for appellant at 28.
45
State v. Vanderford, supra note 39.
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Cite as 313 Neb. 358to provide in the assignment of error. We merely note that the
specific assertions he presents in argument were not specifi-
cally assigned, and in any event, the record on appeal would
not have been sufficient to address his claim.
VI. CONCLUSION
Viewing the evidence in the light most favorable to the
prosecution, we determine Miranda fails to show that no ratio-
nal trier of fact could have found the essential elements of his
crimes beyond a reasonable doubt. Thus, his sufficiency of
the evidence claims lack merit. He also failed to sufficiently
allege ineffective assistance of trial counsel. Accordingly, we
affirm the district court’s judgment.
Affirmed.