State v. Stelly , 304 Neb. 33 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/29/2019 12:09 AM CST
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    Nebraska Supreme Court A dvance Sheets
    304 Nebraska R eports
    STATE v. STELLY
    Cite as 
    304 Neb. 33
    State of Nebraska, appellee, v.
    M alik M. Stelly, appellant.
    ___ N.W.2d ___
    Filed September 13, 2019.   No. S-18-025.
    1. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment pro-
    tection is a question of law that an appellate court reviews independently
    of the trial court’s determination.
    2. Trial: Photographs: Appeal and Error. The admission of photo-
    graphs of a gruesome nature rests largely with the discretion of the
    trial court, which must determine their relevancy and weigh their pro-
    bative value against their prejudicial effect. An appellate court reviews
    a trial court’s admission of photographs of a victim’s body for abuse
    of discretion.
    3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a question of law,
    which turns upon the sufficiency of the record to address the claim
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement. An appellate
    court determines as a matter of law whether the record conclusively
    shows that (1) a defense counsel’s performance was deficient or (2)
    a defendant was or was not prejudiced by a defense counsel’s alleged
    deficient performance.
    4. Search Warrants. The purpose of the particularly requirement as it
    relates to warrants is to prevent general searches, and whether a warrant
    is insufficiently particular depends upon the facts and circumstances of
    each case.
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    5. Search Warrants: Affidavits. An inadvertent defect in a search warrant
    may be cured by reference to the affidavit used to obtain the warrant if
    the affidavit is incorporated in the warrant or referred to in the warrant
    and the affidavit accompanies the warrant.
    6. Homicide: Photographs. If the State lays proper foundation, photo-
    graphs that illustrate or make clear a controverted issue in a homicide
    case are admissible, even if gruesome.
    7. ____: ____. 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 estab-
    lish malice or intent.
    8. Homicide: Photographs: Juries: Proof. Photographs can provide
    visual proof from which a jury could reasonably infer that the homicide
    was committed with deliberate and premeditated malice.
    9. Rules of Evidence: Photographs: Words and Phrases. Neb. Evid. R.
    403, Neb. Rev. Stat. § 27-403 (Reissue 2016), does not require the State
    to have a separate purpose for every photograph, and it requires a court
    to prohibit cumulative evidence only if it substantially outweighs the
    probative value of the evidence.
    10. Trial: Evidence: Appeal and Error. The decision of the trial court as to
    whether the probative value of evidence is substantially outweighed by
    the danger of unfair prejudice or the needless presentation of cumulative
    evidence will not be disturbed on appeal unless there has been an abuse
    of discretion.
    11. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to
    prevail on a claim of ineffective assistance of counsel under Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984),
    the defendant must show that his or her counsel’s performance was
    deficient and that this deficient performance actually prejudiced the
    defendant’s defense. To show that counsel’s performance was deficient,
    a defendant must show that counsel’s performance did not equal that of
    a lawyer with ordinary training and skill in criminal law. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different.
    12. 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.
    13. Effectiveness of Counsel: Appeal and Error. To raise a claim on
    direct appeal that trial counsel was ineffective, a defendant’s brief must
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    specifically set forth how counsel’s performance was deficient, but it
    need not also allege prejudice.
    14.   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 be able to recog-
    nize whether the claim was brought before the appellate court.
    15.   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.
    16.   ____: ____: ____. The record on direct appeal is sufficient to review a
    claim of ineffective assistance if it establishes either that trial counsel’s
    performance was not deficient, that the appellant will not be able to
    establish prejudice, or that trial counsel’s actions could not be justified
    as a part of any plausible trial strategy.
    17.   ____: ____: ____. When 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 conclu-
    sively determine whether counsel did or did not provide effective assist­
    ance, and whether the defendant was or was not prejudiced by counsel’s
    alleged deficient performance.
    18.   Criminal Law: Jurors: Proof. Generally, a victim’s qualities and per-
    sonal attributes are irrelevant to the facts that the State must prove in
    a criminal prosecution and have the potential to distort the jurors’ rea-
    soned consideration of the evidence by evoking their sympathy for the
    victim and corresponding outrage toward the defendant.
    19.   Effectiveness of Counsel: Prosecuting Attorneys: Presumptions:
    Appeal and Error. An appellate court gives defense counsel’s decision
    not to object to a prosecutor’s conduct or remark a strong presumption
    of reasonableness.
    20.   Effectiveness of Counsel: Claims. A claim of ineffective assistance that
    is insufficiently stated is no different than a claim not stated at all.
    21.   Postconviction: Effectiveness of Counsel: Claims: Appeal and Error.
    When an appellate court finds, on direct appeal, that the record is not
    sufficient to resolve a claim of ineffective assistance, it should not be
    misunderstood as a finding that the claim will necessarily require an evi-
    dentiary hearing if raised in a motion for postconviction relief, because
    that determination is governed by an entirely different standard.
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    STATE v. STELLY
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    22. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
    and Error. Just because an appellate court finds the record on direct
    appeal is insufficient to resolve a claim of ineffective assistance, it does
    not mean that a postconviction court will necessarily be precluded from
    later finding the existing record affirmatively refutes the same claim.
    Appeal from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Miller-Lerman,           Cassel,      Stacy,      Funke,      Papik,     and
    Freudenberg, JJ.
    Stacy, J.
    In this direct appeal, Malik M. Stelly challenges his con-
    victions for first degree murder, use of a deadly weapon to
    commit a felony, and possession of a deadly weapon by a pro-
    hibited person. Finding no merit to his assignments of error,
    we affirm.
    I. BACKGROUND
    On January 11, 2017, at 2:37 a.m., the “ShotSpotter” system
    in Omaha, Nebraska, indicated shots were fired in the area
    of 3615 Laurel Avenue. Officers responded to the alert and
    arrived on the scene within minutes to find D’Angelo Branch
    lying in a pool of blood on a residential sidewalk. Paramedics
    determined Branch had no pulse and declared him dead. An
    autopsy showed he died of multiple gunshot wounds to the
    head; in total, he sustained 16 wounds to the head and five
    additional wounds to his lower body.
    1. Investigation
    Several people who lived near the crime scene reported
    hearing multiple gunshots and seeing a silver Chrysler PT
    Cruiser driving away from the area. One person described
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    the PT Cruiser as having rust around the wheel wells on the
    driver’s side in both the front and the back. Surveillance video
    from a nearby residence showed a silver PT Cruiser in the area
    during the relevant time.
    Officers collected 11 spent casings from a 9-mm firearm
    from around Branch’s body. They also recovered two cell
    phones from the crime scene: an LG cell phone that was found
    in the street about 10 to 15 feet from Branch’s body and a ZTE
    cell phone that was found in Branch’s pocket.
    Later that day, officers obtained a search warrant and
    extracted data from the LG cell phone found in the street.
    That data indicated the cell phone belonged to Stelly. After
    learning Stelly’s address, officers went to surveil his apartment
    complex. They found a silver PT Cruiser in the parking lot at
    the complex. The PT Cruiser was registered to Stelly’s friend,
    Royce White.
    While surveilling the apartment complex, officers saw Stelly
    and White leave in a green Cadillac. The Cadillac was reg-
    istered to White’s girlfriend. Officers followed the Cadillac
    and ultimately conducted a traffic stop. Stelly and White
    were transported to the police station and interviewed. After
    authorities obtained buccal swabs from each, Stelly and White
    were released.
    A search warrant was then obtained for Stelly’s apartment
    and the PT Cruiser. During the search of the apartment, offi-
    cers discovered the keys to the PT Cruiser under some couch
    cushions. They also found and seized a hat they believed
    Stelly was wearing during the relevant time period based on
    time-stamped photographs discovered on Stelly’s social media
    profile. The search of the PT Cruiser showed it had damage
    to the wheel wells on the driver’s side. Evidence adduced at
    trial showed that White had loaned Stelly his silver PT Cruiser
    before the shooting because Stelly’s car had been in an acci-
    dent. Stelly’s fingerprint was recovered from the interior door-
    frame of White’s PT Cruiser.
    The LG cell phone found in the street near Branch’s body,
    and the hat seized from Stelly’s apartment, were examined
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    by a forensic technician for blood and DNA testing. A few
    spots of blood were found on the underside of the hat brim,
    and the DNA was compared to known samples from Stelly,
    White, and Branch. Branch was not excluded as the major
    contributor to the DNA contained in the blood spots, and the
    probability of that DNA’s coming from someone other than
    Branch was 1 in 47.4 nonillion. Stelly was not excluded as
    the major contributor to the DNA collected from the inside
    headband of the hat, and the probability of that DNA’s having
    come from someone other than Stelly was 1 in 1.01 octillion.
    DNA found on the LG cell phone was tested, Stelly was not
    excluded as the major contributor, and the probability of that
    DNA’s having come from someone other than Stelly was 1 in
    4.12 sextillion.
    Stelly was arrested and charged with first degree murder,
    use of a deadly weapon to commit a felony, and possession of
    a deadly weapon by a prohibited person.
    2. Motion to Suppress
    Before trial, Stelly moved to suppress certain evidence.
    As relevant to the issues raised on appeal, he sought to sup-
    press evidence obtained from searching the contents of the
    LG cell phone found near Branch’s body. The LG cell phone
    was searched pursuant to a warrant which Stelly challenged as
    insufficient. Specifically, Stelly claimed that the affidavit in
    support of the warrant, and the warrant itself, both identified
    the electronic device to be searched as the ZTE cell phone
    found in Branch’s pocket rather than the LG cell phone that
    was actually searched.
    At the suppression hearing, the warrant and attached affida-
    vit were received into evidence. The affidavit recited in perti-
    nent part:
    On Wednesday, January 11th, [2017,] at 0237 hours
    [t]here was a ShotSpotter activation in the area of 3620
    Laurel Avenue, Omaha, Douglas County, Nebraska.
    Shortly after that a shooting was called in at the same
    location.
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    STATE v. STELLY
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    When [o]fficers arrived on the scene they located a
    male party down . . . . This party was declared deceased
    by medic units at the scene. The victim appeared to have
    been shot multiple times, including at close range. Several
    spent 9mm casings were located near the victim.
    ....
    An LG model LG-LS755; MEID-D:089806163100
    409889 cellular telephone was located in the street about
    10 feet to the west of where the victim was located.
    Another cellular telephone was located in the victim’s
    pocket[.]
    It is unknown, at this time, who the LG cellular tele-
    phone belongs to, a suspect or a victim. Affiant [o]fficers
    believe that if [they] were allowed to examine the elec-
    tronic data located on this telephone it would be a benefit
    to this investigation.
    The affidavit also stated that the electronic device to be
    searched was in the lawful possession of the Omaha Police
    Department and was “found in the street at the scene of a
    homicide and seized as evidence.” But elsewhere in the affi-
    davit, the device to be searched was identified as the ZTE cell
    phone. Likewise, the warrant that was issued identified the
    ZTE cell phone as the device to be searched. The warrant was
    issued January 11, 2017, after which the LG cell phone found
    in the street was searched.
    The officer who swore the affidavit testified at the sup-
    pression hearing. He noticed, after returning the warrant, that
    he had “made an error when listing the cell phone itself in
    the search warrant and the affidavit as far as property being
    searched.” According to the officer, his narrative descrip-
    tion correctly referenced the LG cell phone found in the
    street and explained why law enforcement wanted to search
    that cell phone, but when identifying the electronic device
    to be searched, he mistakenly “listed the cell phone that
    was recovered from the victim himself as opposed to the
    cell phone that was found in the street.” After noticing the
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    error, the officer applied for and obtained another search
    warrant, this time referencing only the LG cell phone found
    in the street.
    The district court determined that “[b]ased upon review of
    the search warrant and the [a]ffidavit attached thereto, it is
    clear that officers were seeking to search the LG phone that
    was found lying in the street approximately ten feet from the
    victim’s body.” Relying on State v. Kleinberg,1 in which we
    held that “an inadvertent defect in a search warrant may be
    cured by reference to the affidavit used to obtain the warrant
    if the affidavit is incorporated in the warrant or referred to in
    the warrant and the affidavit accompanies the warrant,” the
    court found the search of the LG cell phone constitutional and
    overruled the motion to suppress. Stelly renewed his motion to
    suppress at trial, and again it was overruled.
    3. Trial
    The case was tried to a jury over a period of 9 days in
    October 2017. We summarize only the evidence pertinent to
    the issues raised on appeal.
    (a) Murder Timeline
    On January 10, 2017, the day before Branch was killed,
    Stelly and White celebrated Stelly’s birthday. Stelly purchased
    some new clothes, including the hat later found in his apart-
    ment. At approximately 8 p.m., Stelly took several photo-
    graphs with his cell phone and posted them on a social media
    website. One of these photographs showed Stelly wearing his
    recently purchased clothes.
    Stelly’s cell phone records indicate that from approximately
    8:15 p.m. until just before 11 p.m. on January 10, 2017, his cell
    phone was “pinging off” a cell tower at 33d Street and Laurel
    Avenue, which was near White’s house and the crime scene.
    Around midnight, Stelly’s cell phone pinged off a cell tower
    1
    State v. Kleinberg, 
    228 Neb. 128
    , 131, 
    421 N.W.2d 450
    , 453 (1988).
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    at 40th and Grant Streets. And finally, between 1:43 and 1:51
    a.m. on January 11, Stelly had a text message conversation
    with the mother of his son in which he stated he was “bored”
    and “wanna act bad.” The shooting occurred at 2:37 a.m. on
    January 11.
    (b) Exhibits
    During trial, the State offered several photographs depict-
    ing Branch’s body at the crime scene and during the autopsy.
    Stelly objected to four of the photographs taken at the crime
    scene on grounds they were “overly graphic” and “redundant.”
    He objected to four of the autopsy photographs on grounds
    they were “overly gruesome.” The court overruled Stelly’s
    objections and admitted all eight photographs.
    At another point during trial, the State identified a string
    of 12 exhibits, marked as exhibits 94 through 106. There was
    no exhibit 105 included in the string. After the witness was
    asked about each of the exhibits, the State offered them. But
    while reciting the string of exhibits, the State omitted refer-
    ence to exhibit 103. This oversight was apparently not realized
    by either the parties or the court. When defense counsel was
    asked whether he had any objection to the offer, he replied:
    “No objection to 94 through 102. Our objection is to 103 and
    104. No objection to 106.” The court then ruled: “[E]xhibits
    94 through 102 are received. The objections are noted on 103
    and 104, those will be received. And 106 is received.”
    (c) Evidence of Victim’s
    Personal Attributes
    During trial, testimony was adduced that Branch had a
    developmental disability and did not drive. Instead, he primar-
    ily walked or rode his bicycle for transportation. Several times
    during the trial, testimony was introduced by the State regard-
    ing Branch’s personal attributes and his general good character.
    Defense counsel did not object to this testimony. Some of this
    evidence was referenced by the State during closing argument,
    again without objection.
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    (d) Verdicts and Sentences
    The jury found Stelly guilty on all three counts. The trial
    court accepted the verdicts and convicted Stelly of first degree
    murder, use of a deadly weapon to commit a felony, and pos-
    session of a deadly weapon by a prohibited person. Stelly was
    sentenced to a term of life imprisonment on the murder convic-
    tion and to consecutive terms of 30 to 40 years’ imprisonment
    on the other two convictions. Stelly filed this direct appeal,
    represented by new counsel.
    II. ASSIGNMENTS OF ERROR
    Stelly assigns, reordered and restated, that the trial court
    erred in (1) denying his motion to suppress the search of his
    cell phone and (2) admitting graphic and duplicative photo-
    graphs over trial counsel’s objections. He also asserts 18 dif-
    ferent claims of ineffective assistance of trial counsel, and he
    argues that the cumulative effect of these alleged deficiencies
    deprived him of a fair trial.
    III. STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.2
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protection is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.3
    [2] The admission of photographs of a gruesome nature rests
    largely with the discretion of the trial court, which must deter-
    mine their relevancy and weigh their probative value against
    their prejudicial effect.4 An appellate court reviews a trial
    2
    State v. Botts, 
    299 Neb. 806
    , 
    910 N.W.2d 779
    (2018).
    3
    
    Id. 4 State
    v. Dubray, 
    289 Neb. 208
    , 
    854 N.W.2d 584
    (2014).
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    court’s admission of photographs of a victim’s body for abuse
    of discretion.5
    [3] Whether a claim of ineffective assistance of trial coun-
    sel can be determined on direct appeal presents a question of
    law, which turns upon the sufficiency of the record to address
    the claim without an evidentiary hearing or whether the claim
    rests solely on the interpretation of a statute or constitutional
    requirement.6 An appellate court determines as a matter of
    law whether the record conclusively shows that (1) a defense
    counsel’s performance was deficient or (2) a defendant was
    or was not prejudiced by a defense counsel’s alleged deficient
    performance.7
    IV. ANALYSIS
    1. Motion to Suppress
    Stelly argues that evidence from the search of the LG cell
    phone found near Branch’s body should have been suppressed.
    He points to the fact that the first search warrant, and portions
    of the supporting affidavit, identified a different cell phone
    as the electronic device to be searched. He thus appears to be
    arguing that the first warrant was not particular enough in its
    description of the item to be searched.
    [4] The purpose of the particularly requirement as it relates
    to warrants is to prevent general searches, and whether a war-
    rant is insufficiently particular depends upon the facts and
    circumstances of each case.8 As a general rule, the description
    must enable officers to ascertain and identify the items to be
    seized with reasonable certainty and little chance of confusion
    or uncertainty.9
    5
    
    Id. 6 State
    v. Golyar, 
    301 Neb. 488
    , 
    919 N.W.2d 133
    (2018).
    7
    
    Id. 8 See,
    State v. Johnson, 
    243 Neb. 758
    , 
    502 N.W.2d 477
    (1993); State v.
    Walters, 
    230 Neb. 539
    , 
    432 N.W.2d 528
    (1988).
    9
    See 79 C.J.S. Searches § 243 (2017). See, also, State v. Groves, 
    239 Neb. 660
    , 
    477 N.W.2d 789
    (1991).
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    Stelly’s argument in support of this assignment of error
    is limited. He contends only that the district court erred in
    applying the rationale of Kleinberg 10 to conclude the affidavit
    cured any deficiency in the warrant. We limit our analysis
    accordingly.
    [5] Kleinberg held that “an inadvertent defect in a search
    warrant may be cured by reference to the affidavit used to
    obtain the warrant if the affidavit is incorporated in the warrant
    or referred to in the warrant and the affidavit accompanies the
    warrant.”11 In Kleinberg, police officers had been informed the
    defendant had marijuana in his vehicle and they applied for a
    warrant to search the vehicle. The supporting affidavit sought
    to search the vehicle, but the warrant authorized a search of
    the defendant’s person. The police served the warrant on the
    defendant and then searched his vehicle, but did not search his
    person. Marijuana was found in the vehicle, and the defendant
    was arrested. The defendant moved to suppress the evidence,
    arguing the warrant did not authorize a search of his vehicle.
    The trial court overruled the motion to suppress, and we
    affirmed. In doing so, we reasoned that the warrant referred to
    and was accompanied by the affidavit discussing the search of
    the vehicle and that the information in the affidavit could “be
    used to cure the defect in the warrant resulting from the error
    of the scrivener.”12
    Here, as in Kleinberg, the warrant referred to and was
    accompanied by an affidavit. And although both the warrant
    and the affidavit misidentified the ZTE cell phone as the item
    to be searched, a review of the information in the supporting
    affidavit demonstrates the reference to the ZTE cell phone was
    an inadvertent scrivener’s error, as it is clear the officers were
    seeking a warrant to search the LG cell phone found lying
    in the street near Branch’s body. The affidavit reads, “The
    10
    Kleinberg, supra note 1.
    11
    
    Id. at 131,
    421 N.W.2d at 453.
    12
    
    Id. at 134,
    421 N.W.2d at 454.
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    telephone was found in the street at the scene of a homicide
    and seized as evidence.” Additionally, it states:
    An LG model . . . cellular telephone was located in the
    street about 10 feet to the west of where the victim was
    located. Another cellular telephone was located in the
    victim’s pocket[.]
    It is unknown, at this time, who the LG cellular tele-
    phone belongs to, a suspect or a victim. Affiant [o]fficers
    believe that if [they] were allowed to examine the elec-
    tronic data located on this telephone it would be a benefit
    to this investigation.
    We conclude that the detailed information in the supporting
    affidavit cured any defect in the warrant resulting from the
    scrivener’s error in misidentifying the ZTE cell phone as the
    item to be searched. Moreover, reading the information in the
    affidavit and the warrant together, the item to be searched was
    described with sufficient particularity to allow the executing
    officer to ascertain and identify the item to be searched with
    reasonable certainty. Stelly’s argument to the contrary is with-
    out merit, and the district court did not err in overruling the
    motion to suppress.
    2. Photographs of Victim
    Stelly argues the trial court improperly admitted eight pho-
    tographic exhibits over his objections that some were overly
    graphic and redundant and that others were overly gruesome.
    Although Stelly did not expressly object to any of the photo-
    graphs on Neb. Evid. R. 40313 grounds, his objections were
    treated as seeking exclusion on grounds the photographs, even
    if relevant, were gruesome and cumulative and thus were
    more prejudicial than probative. He makes the same argument
    on appeal.
    In response to Stelly’s objections, the district court exam-
    ined the photographs outside the presence of the jury and
    asked the State to explain the relevance of each. The court also
    13
    Neb. Rev. Stat. § 27-403 (Reissue 2016).
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    explored with counsel whether any of the photographs were
    duplicative and whether other photographs existed showing
    the same areas of Branch’s body after he had been “cleaned
    up.” Summarized, the State explained that more than 200 pho-
    tographs had been taken and that although some of the 8 being
    offered were similar, they were taken from different angles
    and distances to depict different areas of Branch’s body at dif-
    ferent points during the investigation and to highlight different
    things of evidentiary significance. The court overruled Stelly’s
    objections and admitted all eight photographs.
    “The admission of photographs of a gruesome nature rests
    largely with the discretion of the trial court, which must deter-
    mine their relevancy and weigh their probative value against
    their prejudicial effect.”14 On appeal, the State does not dispute
    that the photographs depicting Branch’s body after the shoot-
    ing were gruesome, but it points out that this does not render
    them inadmissible.
    [6,7] We have often observed that gruesome crimes produce
    gruesome photographs,15 but if the State lays proper founda-
    tion, photographs that illustrate or make clear a controverted
    issue in a homicide case are admissible, even if gruesome.16 In
    a homicide prosecution, a court may admit into evidence pho-
    tographs 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.17
    The photographs taken at the scene of the crime show
    Branch’s body as it was discovered, lying on the sidewalk in
    a pool of blood. The photographs depict the nature, extent,
    and location of the multiple bullet wounds, and illustrate the
    spatial relationship of Branch’s body to the spent shell casings
    discovered near and under his body. The photographs taken
    14
    Dubray, supra note 
    4, 289 Neb. at 218
    , 854 N.W.2d at 599.
    15
    Dubray, supra note 4.
    16
    
    Id. 17 Id.
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    during the autopsy show portions of Branch’s body not other-
    wise visible in the photographs taken at the scene, including a
    photograph of a projectile in his left eye.
    [8] We have recognized that photographs can also provide
    “‘visual proof from which a jury could reasonably infer that
    the homicide was committed with “deliberate and premedi-
    tated malice.”’”18 Here, in addition to showing the condition
    of the body and the nature and extent of the wounds, the
    photographs tended to establish malice or intent in that they
    showed multiple shots were fired at Branch’s head. We con-
    clude that although the photographs were gruesome, their pro-
    bative value was not substantially outweighed by the danger of
    unfair prejudice.
    Stelly also objected that some of the four photographs from
    the crime scene were unnecessarily cumulative, in that they
    showed some of the same bullet wounds. We pause to note that
    his brief on appeal argues that some of the autopsy photographs
    should also have been excluded as cumulative, but because he
    did not object to the autopsy photographs on that basis at trial,
    he has not preserved the issue for appellate review.19 We thus
    address only Stelly’s argument that the four photographs of the
    crime scene were needlessly cumulative.
    In that regard, he argues that some of the same bullet
    wounds are visible in more than one crime scene photograph.
    While he is correct, that is due in large part to the sheer num-
    ber of wounds to Branch’s head and body. Moreover, Stelly’s
    argument ignores the different evidentiary significance of the
    four photographs. Three of the photographs depict entirely dif-
    ferent areas of Branch’s body and clothing, and although there
    are two photographs depicting the injuries to the right side of
    Branch’s head, one of the photographs was taken from an angle
    that shows the proximity of several shell casings not visible in
    the other photograph.
    18
    State v. Ryan, 
    226 Neb. 59
    , 87, 
    409 N.W.2d 579
    , 596 (1987).
    19
    State v. Keup, 
    265 Neb. 96
    , 
    655 N.W.2d 25
    (2003) (objections not pre­
    sented to and passed upon by trial court will not be considered on appeal).
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    [9,10] Rule 403 does not require the State to have a separate
    purpose for every photograph, and it requires a court to pro-
    hibit cumulative evidence only if it “‘substantially’” outweighs
    the probative value of the evidence.20 The decision of the trial
    court as to whether the probative value of evidence is substan-
    tially outweighed by the danger of unfair prejudice or the need-
    less presentation of cumulative evidence will not be disturbed
    on appeal unless there has been an abuse of discretion.21
    Here, we find the court admitted the photographs for a
    proper purpose and did not abuse its discretion in conclud-
    ing that multiple photographs of the same wounds were not
    unfairly prejudicial.
    3. Ineffective Assistance
    of Counsel
    [11] Stelly asserts a total of 18 different claims of inef-
    fective assistance of trial counsel. Generally, to prevail on a
    claim of ineffective assistance of counsel under Strickland v.
    Washington,22 the defendant must show that his or her coun-
    sel’s performance was deficient and that this deficient perform­
    ance actually prejudiced the defendant’s defense.23 To show
    that counsel’s performance was deficient, a defendant must
    show that counsel’s performance did not equal that of a law-
    yer with ordinary training and skill in criminal law.24 To show
    prejudice, the defendant must demonstrate a reasonable prob-
    ability that but for counsel’s deficient performance, the result
    of the proceeding would have been different.25
    20
    Dubray, supra note 
    4, 289 Neb. at 219
    , 854 N.W.2d at 600.
    21
    See State v. Baltimore, 
    236 Neb. 736
    , 
    463 N.W.2d 808
    (1990), disapproved
    on other grounds, State v. Messersmith, 
    238 Neb. 924
    , 
    473 N.W.2d 83
         (1991).
    22
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
         (1984).
    23
    State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
    (2019).
    24
    
    Id. 25 Id.
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    Summarized, Stelly’s brief asserts his trial counsel was inef-
    fective in (1) failing to object when the trial court received
    exhibit 103, which had never been offered; (2) failing to object
    to evidence of and argument concerning Branch’s personal attri-
    butes and good qualities; and (3) failing to adequately investi-
    gate or present evidence in 16 different instances. We address
    each claim in turn, but first we set out the law that governs our
    analysis of ineffective assistance claims on direct appeal.
    [12,13] It is well settled that when a defendant’s trial coun-
    sel is different from his or her counsel on direct appeal, the
    defendant must raise on direct appeal any issue of trial coun-
    sel’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 proceed-
    ing.26 In State v. Filholm,27 we explained that to raise a claim
    on direct appeal that trial counsel was ineffective, a defendant’s
    brief must specifically set forth how counsel’s performance
    was deficient. But we clarified that the brief need not also
    allege prejudice:
    Although our case law makes clear that specific alle-
    gations of prejudice are required within the context of
    postconviction relief, we view such a requirement on
    direct appeal as a waste of time and resources. As we
    have noted, the trial record on appeal is devoted to
    issues of guilt or innocence, not counsel’s performance.
    Thus, to require an appellant to allege prejudice from
    ineffective assistance on direct appeal would require him
    or her to allege facts in detail that are likely not within
    the appellate record or known to the defendant with-
    out further inquiry. . . . We therefore see no justifica-
    tion for requiring an appellant to allege prejudice when
    claiming ineffective assistance of trial counsel on direct
    appeal. That said, we emphasize that in the context of
    direct appeal, like the requirement in postconviction
    26
    
    Id. 27 State
    v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
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    proceedings, mere conclusions of fact or law are not
    sufficient.28
    [14] 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 petition
    for postconviction relief to be able to recognize whether the
    claim was brought before the appellate court.29
    [15-17] 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.30 The determining factor
    is whether the record is sufficient to adequately review the
    question.31 We have said the record is sufficient if it establishes
    either that trial counsel’s performance was not deficient, that
    the appellant will not be able to establish prejudice, or that
    trial counsel’s actions could not be justified as a part of any
    plausible trial strategy.32 We have also said that when review-
    ing 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 assist­
    ance, and whether the defendant was or was not prejudiced by
    counsel’s alleged deficient performance.33
    With this framework in mind, we consider Stelly’s various
    claims that his trial counsel performed deficiently.
    (a) Exhibit 103
    During trial, exhibit 103 was received into evidence over
    Stelly’s objection, despite the fact that the State failed to
    28
    
    Id. at 770-71,
    848 N.W.2d at 578-79.
    29
    State v. Manjikian, 
    303 Neb. 100
    , 
    927 N.W.2d 48
    (2019).
    30
    Id.; Munoz, supra note 23.
    31
    
    Id. 32 Munoz,
    supra note 23.
    33
    See State v. Hibler, 
    302 Neb. 325
    , 
    923 N.W.2d 398
    (2019).
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    formally offer exhibit 103 into evidence. The exchange at trial
    occurred as follows:
    [The State]: Judge, we’re going to offer Exhibits 94
    through 100 and then 101, 102, 104 and 106.
    [Defense counsel]: No objection to 94 through 102.
    Our objection is to 103 and 104. No objection to 106.
    THE COURT: 94 through 102 are received. The objec-
    tions are noted on 103 and 104, those will be received.
    And 106 is received.
    Stelly argues that although his trial counsel objected to exhibit
    103, his trial counsel performed deficiently by failing to also
    object to the court’s receipt of exhibit 103 on the ground that
    the State had never offered it. Both Stelly and the State agree
    that the record is sufficient on appeal to address this claim, and
    we agree. We therefore turn to the merits.
    The State argues that trial counsel was not deficient in fail-
    ing to object to the court’s receipt of exhibit 103 because trial
    counsel was aware, based on prior discussions outside the
    presence of the jury, that the State’s failure to formally offer
    exhibit 103 was inadvertent and easily cured. This is supported
    by the record.
    Prior to the formal offer of the string of exhibits identified
    in the above exchange, counsel for both parties informed the
    court, outside the presence of the jury, that defense counsel
    intended to object to exhibits 103 and 104 as cumulative and
    unfairly prejudicial. After some discussion, the court informed
    counsel at sidebar that it would “allow 103 and 104 since they
    are different.”
    The formal offer of exhibits occurred after this sidebar.
    The record shows that defense counsel was aware the State
    intended to offer exhibit 103 and was further aware the court
    intended to receive the exhibit over trial counsel’s objection.
    Under such circumstances, if trial counsel had objected to
    the court’s receipt of exhibit 103 despite the State’s failure to
    offer it, the State would have easily corrected the oversight. In
    other words, with or without the objection that Stelly claims
    his counsel should have made, the exhibit would have been
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    received. Stelly can show no prejudice, and his first claim of
    ineffective assistance of trial counsel has no merit.
    (b) Evidence of Personal
    Attributes of Victim
    Stelly claims his trial counsel performed deficiently by fail-
    ing to object to testimony and argument regarding Branch’s
    general good character and his diminished mental capacity.
    Both Stelly and the State contend the record is sufficient on
    appeal to resolve this claim of ineffective assistance of counsel.
    We agree.
    At trial, two of the State’s witnesses—Branch’s brother and
    Branch’s girlfriend—testified about Branch’s personal attri-
    butes. The following testimony was adduced without objection
    from Branch’s brother:
    [Branch] was very helpful to just about everybody he
    came in contact with. You know, friends, family. I mean,
    you couldn’t really ask for a better person than [Branch]
    because — he was mentally challenged. He had — he was
    born with water on his brain, but he was still just a lov-
    able person, you know. We looked at him as one of God’s
    angels because he wasn’t supposed to make it a year after
    his birth. He was supposed to die. He made it all the way
    to 29.
    Branch’s brother also testified that Branch “had the mind of a
    kid instead of an adult. So he was 29, he was probably 14 in
    — in his head he was 14. He was still a kid.” He explained that
    Branch attended special education classes while in school.
    Branch’s girlfriend also testified to Branch’s personal attri-
    butes without objection. She stated that Branch “got along very
    well with everybody. He was very helpful, very kind, espe-
    cially very kind to me.” She described him as very loving and
    caring, but with an IQ that was lower than that of the average
    person.
    During closing arguments, the prosecutor summarized the
    testimony of Branch’s brother and girlfriend, without objection
    from trial counsel:
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    You also heard from . . . Branch’s brother . . . .
    He described [Branch] as, quote, one of God’s angels.
    He related to you that [Branch] shouldn’t have made it
    past one year of age because he was born with water on
    the brain. As a result of that condition, he forever — or at
    the point of his death, had the mentality of a 14-year-old.
    He told you that [Branch] went to North High School and
    graduated, but he required special education during his
    time there.
    He described [Branch] as helping everyone and would
    not drive, but he said he would walk around town, walk-
    ing as he was on the early morning hours of January 11th,
    2017, when he was trying to walk home from [Branch’s
    girlfriend’s] house to his family’s house. He didn’t have a
    car. He relied on walking.
    ....
    . . . [Branch’s girlfriend] told you that [Branch] was
    very kind. He wasn’t of the highest IQ, in her opinion, but
    they were able to communicate. He treated her well, and
    she was dating him. . . .
    ....
    . . . It’s time to hold [Stelly] accountable. He murdered
    . . . Branch, who is a stable man simply trying to get
    home at the end of the night. He was gunned down in the
    street. His body was left there, and [Stelly] fled because
    [Stelly] is the one who perpetrated it. He needs to be held
    accountable.
    [18] Generally, a victim’s qualities and personal attributes
    are irrelevant to the facts that the State must prove in a crimi-
    nal prosecution and have the potential to distort the jurors’
    reasoned consideration of the evidence by evoking their sym-
    pathy for the victim and corresponding outrage toward the
    defendant.34 But here, it cannot be said that all the evidence
    of Branch’s personal attributes was irrelevant. Evidence that
    he did not drive due to his diminished mental capacity tends
    34
    Dubray, supra note 4.
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    to explain why he was out walking at the time he was shot,
    and it was relevant for that purpose. But the related testimony
    and argument that Branch was kindhearted and had overcome
    obstacles in his life were relevant neither to the facts the State
    had to prove nor to any defense raised by Stelly.
    [19] That said, an appellate court gives defense counsel’s
    decision not to object to a prosecutor’s conduct or remark a
    strong presumption of reasonableness.35 Counsel may have
    made a sound tactical decision in not objecting, and “‘[i]t is
    not beyond comprehension to envision an instance where a
    surely winnable objection may still hurt the defense in the eyes
    of the jury.’”36
    In this case, defense counsel agreed during his closing
    argument that this was “a horrible crime” and remarked: “It’s
    senseless. His poor family.” These remarks suggest counsel
    may have made a tactical decision not to object to evidence
    of Branch’s personal attributes because, even if the objec-
    tions were winnable, he decided it was better for the jury to
    see Stelly as sympathetic to the loss of an innocent life, while
    denying that he was the perpetrator.
    Even if counsel’s failure to object was not a tactical decision,
    we find this record is sufficient to conclude that Stelly was
    not prejudiced by counsel’s alleged deficient performance.37
    Our analysis in State v. Iromuanya 38 and State v. Dubray 39
    is instructive.
    In Iromuanya, we considered whether defense counsel was
    ineffective for failing to object to the prosecutor’s improper
    statements and questions. During opening statements, the pros-
    ecutor remarked about one victim’s accomplishments in col-
    legiate soccer and the other victim’s academic achievements.
    35
    See State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
    (2011).
    36
    
    Id. at 813,
    806 N.W.2d at 423, quoting Ayers v. State, 
    802 A.2d 278
    (Del.
    2002).
    37
    See Hibler, supra note 33.
    38
    Iromuanya, supra note 35.
    39
    Dubray, supra note 4.
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    The prosecutor also asked the surviving victim to recall for
    the jury how he learned of the other victim’s death. We disap-
    proved of the prosecutor’s improper statements and question,
    but we found the defendant was not prejudiced by the defi-
    cient conduct. We reasoned the trial court had orally instructed
    jurors before trial that attorney statements and arguments were
    not evidence. And we noted that the statements represented
    short moments in a long trial during which many other wit-
    nesses testified about the critical issue in the case—whether
    the defend­ant had shot at the victims with the intent to kill.
    Further, we emphasized that the trial court’s written instruc-
    tions informed the jurors that they must not decide the case
    based on sympathy or prejudice. We therefore concluded that
    the prosecutor’s improper statements and question did not
    result in prejudicial error.
    In Dubray, we considered whether defense counsel was defi-
    cient for failing to object to improper remarks the prosecutor
    made, during closing arguments, about the victim’s personal
    qualities and attributes:
    “Now, I don’t — never knew [the victims]. 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 [one victim is] never going
    to his boy’s ball games. And [the other victim will] never
    see her kids again. ‘Take care of my baby.’ That’s what
    you are supposed to be doing. That’s what she’s sup-
    posed 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.”40
    40
    
    Id. at 220,
    854 N.W.2d at 600.
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    We found this argument was improper, but concluded the
    defendant could not show prejudice from his counsel’s fail-
    ure to object. We found it significant that the trial court had
    admonished the jury not to let sympathy or passion influence
    its verdict and also had instructed that the attorneys’ state-
    ments were not evidence. Moreover, we noted that the evidence
    against the defendant was “strong” and that, viewing the trial
    as a whole, we could not find the defendant had been deprived
    of a fair trial because of the prosecutor’s remarks.41
    We reach a similar conclusion here. Even assuming trial
    counsel performed deficiently by failing to object to at least
    some of the testimony and argument about Branch’s personal
    traits, Stelly cannot show he was deprived of a fair trial or
    demonstrate a reasonable probability that but for counsel’s
    deficient performance, the result of the proceeding would have
    been different. Here, as in Iromuanya 42 and Dubray, the tes-
    timony and argument regarding the personal attributes of the
    victim were a small part of an otherwise lengthy trial in which
    there was strong evidence of the defendant’s guilt. Moreover,
    the trial court admonished the jury not to let sympathy or
    prejudice influence its decision and also instructed the jury that
    statements, arguments, and questions of the lawyers for the
    State and the defendant were not evidence.
    We conclude the record affirmatively shows that Stelly
    cannot demonstrate he was prejudiced by any deficient per-
    formance of his trial counsel in failing to object to testimony
    and argument regarding the personal attributes of Branch.
    This claim of ineffective assistance of trial counsel is with-
    out merit.
    (c) Failure to Investigate
    Stelly asserts his trial counsel was ineffective in failing
    to independently investigate certain defenses and failing to
    interview or question certain witnesses. He argues generally
    41
    
    Id. at 228,
    854 N.W.2d at 605.
    42
    Iromuanya, supra note 35.
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    that had trial counsel done so, he would have discovered or
    adduced evidence helpful to Stelly’s defense. Stelly’s brief sets
    out 16 such claims, which we summarize and number for ease
    of reference:
    (1) Trial counsel failed to consult with or call as a witness
    an expert on the ShotSpotter system. Such an expert would
    have testified that the ShotSpotter equipment recorded two
    separate shootings in two different locations at approximately
    2:37 a.m. on January 11, 2017, rather than one shooting in the
    area of 3615 Laurel Avenue.
    (2) Trial counsel failed to investigate or subpoena Carrie
    Crook as a witness. Crook would have testified that, contrary
    to the State’s prosecution theory, Stelly did not borrow a PT
    Cruiser from White during the month of January 2017, but
    continued to drive his 1985 Chevy Caprice. Crook would
    have further testified that White loaned the PT Cruiser to
    many people.
    (3) Trial counsel failed to investigate video from a cloth-
    ing store that would have shown Stelly was not driving a PT
    Cruiser on January 10, 2017.
    (4) Trial counsel failed to consult with or call as a witness
    an independent expert in the field of ballistics upon learning
    that the State’s ballistics expert could not conclusively deter-
    mine whether the bullets recovered were fired from the same
    firearm. An independent ballistics expert would have testified
    that the bullets were fired from more than one firearm and
    would support a conclusion that some bullets were planted at
    the scene.
    (5) Trial counsel failed to investigate the source of calls to
    White’s cell phone from two specific telephone numbers which
    would have revealed that officers called White’s cell phone
    themselves after illegally searching the LG cell phone found
    near Branch’s body without a warrant.
    (6) Trial counsel failed to obtain Stelly’s clothing “as seen in
    [a convenience store] video,” which clothing was “available”
    to trial counsel and would have disproved the State’s theory
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    that Stelly either hid or destroyed the clothing he was wearing
    at the time of the shooting.43
    (7) Trial counsel failed to obtain the recording of a call to
    the 911 emergency dispatch service to report the shooting.
    Stelly claims the recording would have demonstrated that one
    or more officers testified falsely as to the time they arrived at
    the crime scene.
    (8) Trial counsel failed to investigate the circumstances of
    a second crime scene that was being processed on January
    11, 2017, as testified to by a technician who testified that
    she was “working that day and responding to another crime
    scene, but was asked to drop off some scanning equipment to
    a homicide investigation” in the area of 3615 Laurel Avenue.
    Further investigation would have revealed that shell casings
    or bullet fragments allegedly found at the scene of Branch’s
    shooting came from the other crime scene being processed by
    the technician.
    (9) Trial counsel failed to investigate or ask whether the
    State’s witnesses who lived in the area of the shooting, but not
    directly on Laurel Avenue, believed they heard shots from two
    different shootings.
    (10) Trial counsel failed to consult with and call as a wit-
    ness an independent DNA expert who, upon comparing the
    DNA swabs taken from inside the PT Cruiser (which were not
    submitted for testing) with known samples taken from Stelly,
    would have testified that Stelly’s DNA was not found on any
    surfaces or objects inside the PT Cruiser.
    (11) Trial counsel failed to consult with and call as a wit-
    ness an independent fingerprint expert who, upon analyzing
    the latent fingerprint evidence allegedly obtained by the offi-
    cers and technicians who testified for the State, would have
    testified that Stelly’s fingerprints were not present on the sur-
    faces claimed by the technicians.
    (12) Trial counsel failed to consult with and call as a wit-
    ness an independent cell phone expert who, upon analyzing
    43
    Brief for appellant at 29.
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    the LG cell phone found near Branch’s body, would have testi-
    fied that the data officers purportedly extracted from the LG
    cell phone was not in fact present on it and that one or more
    officers manufactured cell phone evidence. Such expert would
    also have testified that officers sent and received text messages
    and voice calls using the LG cell phone, but testified falsely
    and failed to disclose this fact to trial counsel, the trial court,
    and the jury.
    (13) Trial counsel failed to elicit testimony or obtain and
    introduce 911 records that would have demonstrated that the
    times of the 911 calls made by two individuals disprove the
    officers’ testimonies as to the timeline of the shootings on
    January 11, 2017. Such testimony would have demonstrated
    that the officers changed Branch’s time of death from the
    actual time, approximately 11 p.m. on January 10, to the time
    testified to at trial, approximately 2:37 a.m. on January 11.
    (14) Trial counsel failed to elicit testimony or obtain and
    introduce Omaha Fire Department records that would have
    demonstrated that the arrival times of the fire department para-
    medics disprove the officers’ testimony as to the timeline of the
    shootings on January 11, 2017.
    (15) Trial counsel failed to elicit testimony from all the
    resident witnesses as to their best estimates of the time of
    night they heard shots and saw the PT Cruiser. Said testimony
    would have disproved the officers’ testimony as to the timeline
    of the shootings on January 11, 2017. Such testimony would
    have demonstrated that officers changed Branch’s time of
    death from the actual time, approximately 11 p.m. on January
    10, to the time testified to at trial, approximately 2:37 a.m. on
    January 11.
    (16) Trial counsel failed to ask questions of the State’s wit-
    nesses that would have revealed a break in the chain of custody
    of the shell casings and bullet fragment evidence allegedly
    recovered at the scene of the shooting and supported a defense
    theory that officers planted evidence from the other crime
    scene being processed on January 11, 2017, by a technician.
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    Stelly suggests the record is insufficient to resolve any
    of these 16 claims on direct appeal. The State agrees and
    addresses all 16 claims collectively in a single sentence, sug-
    gesting they are “better left for postconviction review.”44 But
    on direct appeal, our appellate review of ineffective assistance
    claims requires more than just noting the claims and postpon-
    ing consideration for another day.
    An appellate court is required to consider whether the defend­
    ant has adequately alleged a claim of ineffective assistance,45
    and if so, must then consider whether the record on appeal is
    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 per­
    formance.46 In the future, we encourage all parties to address
    these considerations in their appellate briefing.
    We have considered Stelly’s claims in light of the record
    on appeal. As we explain below, we conclude that some of his
    claims were insufficiently pled. Of those claims that were suf-
    ficiently pled, we conclude some are affirmatively refuted by
    the record and others cannot be resolved on direct appeal.
    (i) Record Affirmatively Refutes
    Claims 5, 6, 9, and 15
    a. White’s Cell Phone, Claim 5
    Stelly claims that if an investigation had been undertaken,
    counsel would have discovered that police officers called
    White’s cell phone after “illegally” searching Stelly’s LG cell
    phone “without a warrant.” 47 As noted earlier in our analy-
    sis of Stelly’s motion to suppress, the search of his LG cell
    phone was pursuant to a valid warrant. Because there was no
    illegal search of Stelly’s LG cell phone, the entire premise
    44
    Brief for appellee at 19.
    45
    See, Manjikian, supra note 29; Filholm, supra note 27.
    46
    See Hibler, supra note 33.
    47
    Brief for appellant at 29.
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    of this claim fails. There is no merit to this claim of ineffec-
    tive assistance.
    b. Clothing From Video, Claim 6
    Stelly claims the clothes he was wearing could be “seen” 48
    in a convenience store video taken the night of the murder,
    and he alleges trial counsel was deficient in not obtaining that
    clothing to rebut the State’s theory at trial that Stelly either
    hid or destroyed the clothing he was wearing the night of
    the murder.
    The convenience store video is a part of the record, and we
    have reviewed it. In the video, the PT Cruiser can be seen as it
    proceeds down the roadway, but neither the occupants inside,
    nor their clothing, are plainly visible. Because the video does
    not show the clothing Stelly was wearing, the record affirma-
    tively refutes this allegation of deficient performance.
    c. Questions About Two
    Shootings, Claim 9
    At trial, the State called several witnesses who lived in the
    area of the shooting, but not on Laurel Avenue. Each testified
    to hearing multiple gunshots in the early hours of January 11,
    2017. They testified that they heard between four and eight
    shots fired, and each described the gunshots as rapidly occur-
    ring, one right after the other.
    Stelly alleges his trial counsel was deficient because he
    failed to inquire whether these lay witnesses believed the
    shots were from “two different shootings.” 49 But he does not
    ­suggest any of these witnesses had special training or knowl-
    edge in ballistics or were otherwise capable of differentiat-
    ing the source of bullets based on their sound. As such, any
    question seeking to elicit an opinion from these witnesses on
    whether the shots were coming from more than one shooting
    would have been objectionable. Because counsel cannot be
    48
    
    Id. 49 Id.
    at 30.
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    deficient for failing to ask a plainly objectionable question,
    this claim is without merit.
    d. Testimony of Timeline From
    Neighborhood Witnesses,
    Claim 15
    Stelly claims his trial counsel failed to elicit testimony from
    witnesses regarding their “best estimates of the time” 50 when
    they heard shots and saw the PT Cruiser. He claims that if
    counsel had done so, he would have obtained information that
    the shooting occurred at 11 p.m. on January 10, 2017, contra-
    dicting the State’s evidence that the shooting occurred at 2:37
    a.m. on January 11.
    We conclude the record affirmatively refutes this claim of
    deficient performance. Each witness testified to having heard
    gunshots and seen the PT Cruiser in the early hours of January
    11, 2017. In light of this testimony, Stelly cannot show preju-
    dice from his trial counsel’s failure to question the witnesses
    about their best estimates of when the shooting occurred. This
    claim of ineffective assistance is meritless.
    (ii) Part of Claim 14 and All of
    Claim 16 Lack Particularity
    a. Omaha Fire Department
    Records, Claim 14
    Stelly’s claim 14 is twofold. He claims that his trial counsel
    failed to elicit testimony about Omaha Fire Department records
    that would have contradicted the State’s evidence as to the
    timeline of the shooting on January 11, 2017, and he claims
    that his trial counsel failed to actually obtain and introduce
    the Omaha Fire Department records. As to the first part of his
    claim, Stelly does not allege what testimony his counsel should
    have sought to elicit or from whom, and thus, he has failed
    to allege deficient performance with sufficient particularity.
    As we note later in our analysis, the second part of claim 14
    50
    
    Id. at 31.
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    is alleged with sufficient particularity, but the record does not
    permit us to resolve it on direct appeal.
    b. Chain of Custody, Claim 16
    Stelly claims his trial counsel failed to ask questions of the
    State’s witnesses that would have revealed a break in the chain
    of custody of the shell casing and bullet fragment evidence
    recovered from the scene of the shooting. He suggests such
    a break would have supported a defense that officers planted
    evidence from another crime scene being processed on January
    11, 2017.
    [20] But Stelly does not allege which of the State’s many
    witnesses should have been questioned about the possible
    break in the chain of custody or how their testimony would
    reveal such a break. We conclude Stelly has failed to allege
    this claim of deficient performance with sufficient particular-
    ity. A claim of ineffective assistance that is insufficiently stated
    is no different than a claim not stated at all.51
    (iii) Record Insufficient to Resolve Claims
    1 Through 4, 7, 8, and 10 Through 13
    and Part of Claim 14
    We conclude Stelly’s remaining claims of ineffective
    assist­ance cannot be resolved on direct appeal, because the
    record is not sufficient to conclusively determine whether
    counsel did or did not perform in a deficient manner or
    whether Stelly was or was not prejudiced by counsel’s alleged
    deficient perform­ance.52 We emphasize two important points
    about our conclusion that the record is insufficient to resolve
    these claims.
    [21] First, when an appellate court finds, on direct appeal,
    that the record is not sufficient to resolve a claim of ineffective
    assistance, it should not be misunderstood as a finding that the
    claim will necessarily require an evidentiary hearing if raised
    51
    See State v. Hood, 
    301 Neb. 207
    , 
    917 N.W.2d 880
    (2018).
    52
    See State v. Cullen, 
    292 Neb. 30
    , 
    870 N.W.2d 784
    (2015).
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    in a motion for postconviction relief,53 because that determina-
    tion is governed by an entirely different standard.54
    [22] And second, just because an appellate court finds the
    record on direct appeal is insufficient to resolve a claim of
    ineffective assistance, it does not mean that a postconviction
    court will necessarily be precluded from later finding the
    existing record affirmatively refutes the same claim. Several
    factors make this so. Sometimes, critical portions of the exist-
    ing trial record are not included in the appellate record, but
    are later available to the postconviction court. Additionally,
    because a defendant on direct appeal is not required to
    make specific allegations of prejudice,55 the appellate court
    often has an incomplete understanding of how a defendant
    claims to have been prejudiced by certain deficient conduct.
    Consequently, a finding on direct appeal that the existing
    record is insufficient to determine a claim of deficient con-
    duct does not speak to whether the existing record will be
    sufficient to affirmatively refute prejudice once the claim is
    alleged on postconviction.
    4. Cumulative Error
    Finally, Stelly argues that the cumulative effect of the trial
    court’s errors, and his trial counsel’s deficiencies, deprived
    him of a fair trial. We have recognized the doctrine of cumu-
    lative error in the context of a criminal jury trial,56 but it is not
    supported in this case.
    We found no merit to any of Stelly’s assigned errors. And
    we concluded that 8 of his 18 claims of ineffective assist­
    ance are either without merit or not alleged with sufficient
    53
    Filholm, supra note 27.
    54
    See, e.g., State v. Tyler, 
    300 Neb. 365
    , 
    918 N.W.2d 306
    (2018) (to be
    entitled to evidentiary hearing, prisoner must allege facts in motion for
    postconviction relief that, if proved, would constitute violation of his or
    her rights under U.S. or Nebraska Constitution).
    55
    Filholm, supra note 27.
    56
    See State v. Smith, 
    292 Neb. 434
    , 
    873 N.W.2d 169
    (2016).
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    particularity. We are unable, on direct appeal, to resolve
    Stelly’s remaining claims of ineffective assistance of trial
    counsel, and thus, those unresolved claims cannot form the
    basis for a claim of cumulative error. Stelly’s cumulative error
    argument is without merit.
    V. CONCLUSION
    For the foregoing reasons, we affirm Stelly’s convictions
    and sentences.
    A ffirmed.
    Heavican, C.J., not participating.