State v. Castillo-Zamora ( 2014 )

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382 289 NEBRASKA REPORTS
evidence obtained as a result of the checkpoint as the fruit of
an illegal search and seizure.
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
order which affirmed the county court’s judgment of conviction
and sentence.
Affirmed.
State of Nebraska, appellee, v. Jesus R.
Castillo-Zamora, appellant.
___ N.W.2d ___
Filed October 31, 2014. No. S-14-020.
1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply,
admissibility of evidence is controlled by the rules, not judicial discretion, except
in those instances when judicial discretion is a factor involved in the admissibility
of evidence.
2. Rules of Evidence: Appeal and Error. When judicial discretion is not a factor,
whether the underlying facts satisfy the legal rules governing the admissibility of
such evidence is a question of law, subject to de novo review.
3. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
4. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court will review for clear error the
factual findings underpinning a trial court’s hearsay ruling and review de novo
the court’s ultimate determination whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
6. Effectiveness of Counsel: Appeal and Error. In reviewing claims of ineffec-
tive assistance on direct appeal, an appellate court is deciding only questions
of law: Are the undisputed facts contained within the record sufficient to con-
clusively determine whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by counsel’s alleged defi-
cient performance?
7. Effectiveness of Counsel: Constitutional Law: Statutes: Appeal and Error.
If the alleged ineffective assistance claim rests solely on the interpretation of a
statute or constitutional requirement, which claims present pure questions of law,
an appellate court can decide the issue on direct appeal.
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STATE v. CASTILLO-ZAMORA 383
Cite as 289 Neb. 382
8. Effectiveness of Counsel: Appeal and Error. Whether the defense counsel’s
performance was deficient and whether the petitioner was prejudiced by that
performance are questions of law that are reviewed independently of the lower
court’s decision.
9. Rules of Evidence: Witnesses: Prior Convictions. When impeaching a witness
pursuant to Neb. Rev. Stat. § 27-609(1) (Reissue 2008), after the conviction is
established, the inquiry must end there, and it is improper to inquire into the
nature of the crime, the details of the offense, or the time spent in prison as a
result thereof.
10. Courts: Motions for Mistrial: Appeal and Error. Courts have considerable
discretion in passing on the motions for mistrial, to the end that justice be more
nearly effectuated. The trial court’s decision will not be disturbed unless the trial
court abused that discretion.
11. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
12. Motions for Mistrial: Proof. A defendant seeking mistrial must prove that an
alleged error actually prejudiced him or her, rather than creating only the pos-
sibility of prejudice.
13. Motions for Mistrial. A party is barred from moving for a mistrial because of a
prejudicial error when the party was responsible for creating the error.
14. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
15. Rules of Evidence: Hearsay. Hearsay is not admissible unless otherwise pro-
vided for under the Nebraska Evidence Rules or elsewhere.
Appeal from the District Court for Hall County: James D.
Livinsgton, Judge. Affirmed.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
NATURE OF CASE
Jesus R. Castillo-Zamora appeals his conviction for first
degree sexual assault. Castillo-Zamora alleges that the dis-
trict court for Hall County, Nebraska, erred in two different
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evidentiary rulings; that the district court abused its discretion
in denying a joint motion for mistrial; and that he received
ineffective assistance of counsel. We conclude that the district
court did not err in its evidentiary rulings and did not abuse
its discretion in denying the motion for mistrial. Because the
record is incomplete, we decline to reach the ineffective assist­
ance of counsel claims on direct appeal.
BACKGROUND
This case centers around two separate incidents involving
Castillo-Zamora and his sister-in-law, A.O. At the time of
trial, A.O. was a 21-year-old college student at the University
of Nebraska-Lincoln. A.O. has five brothers and two sisters,
including Jacqueline Castillo, who is married to Castillo-
Zamora. The extended family would often celebrate holidays
and birthdays together. The first relevant incident occurred
during a Christmas party at the Castillo-Zamora residence
in Grand Island, Nebraska, on December 24, 2011. The sec-
ond incident, when the alleged sexual assault took place,
occurred during the early morning hours of March 25, 2012,
at a party at the Castillo-Zamora residence to celebrate
Jacqueline’s birthday.
A.O. and Castillo-Zamora were both present at the December
24, 2011, party, along with Jacqueline; two of her broth-
ers, Erick O. and William O.; and William’s fiance, Chanda
Schroyer. A.O. was on winter break from the university. A.O.
testified to drinking two to three mixed drinks containing
tequila over the course of the night, but said she did not feel
intoxicated. Castillo-Zamora was also drinking alcohol that
night. A.O. testified that late in the evening, she got up from
the party to use the bathroom. Because a hallway bathroom
was in use by Schroyer, A.O. went down the hallway to use
the bathroom located in the Castillo-Zamora master bedroom.
As A.O. was leaving the bedroom, she testified, she was pulled
back into the bedroom by Castillo-Zamora. According to A.O.,
Castillo-Zamora asked her if she “found him attractive and if
[she] was into him.” She told him no and explained that “it
was wrong for him to even approach [her] because he was with
[her] sister.”
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A.O. then saw Schroyer exiting the hallway bathroom and
pushed her back into the bathroom. Both A.O. and Schroyer
testified that A.O. explained to Schroyer what Castillo-Zamora
had said to her and how she responded. A.O. was visibly upset
and crying. Both A.O. and Schroyer also testified that Castillo-
Zamora knocked on the door of the bathroom, asked what
was going on, and stated that he wanted to talk to A.O. again.
Castillo-Zamora then grabbed A.O.’s arm and tried to pull her
out of the bathroom, while Schroyer held onto A.O.’s other
arm. Shortly after, the party ended and A.O. left the Castillo-
Zamora home. Besides Schroyer, A.O. did not immediately tell
anyone about this incident.
The families had another party at the Castillo-Zamora resi-
dence on March 24, 2012, that lasted into the early hours
of March 25. This party was to celebrate Jacqueline’s birth-
day. Several members of the family were present, including
Castillo-Zamora; Jacqueline; A.O.; Erick; William; Schroyer;
the siblings’ mother; the siblings’ uncle; and Castillo-Zarmora’s
cousin, Rodrigo Bolanos. A.O. and Castillo-Zamora were both
drinking alcohol that night. Jacqueline was drinking alcohol
as well.
Erick testified that around 11 p.m., he helped Jacqueline to
her bedroom. Shortly after, A.O. decided that she would spend
the night at the Castillo-Zamora home and went to the base-
ment to lie on a couch. Erick also testified that after he left
the party with his mother and uncle at 1 or 2 a.m., the only
people left at the home were Castillo-Zamora, Jacqueline, their
children, and A.O.
A.O. testified that while it was still dark out, she was awak-
ened by Castillo-Zamora as he was carrying her to the laundry
room in the basement. Once in the laundry room, Castillo-
Zamora put A.O. down and again asked if she was attracted
to him. He told her that “girls [her] age would kill to be with
someone like me.” A.O. told him that would only be the case
“if they [the girls] weren’t very bright and desperate.” He then
left to go upstairs. A.O. estimated that the incident occurred
at approximately 2 a.m. and lasted for about 2 minutes. A.O.
went back to the couch and stayed awake for approximately 30
minutes to see whether Castillo-Zamora returned.
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Later in the night, A.O. testified, she was again awakened
by Castillo-Zamora. This time, A.O. estimated it was around 5
or 6 a.m., because it was light outside. A.O. testified that she
felt Castillo-Zamora’s left hand down the back of her jeans.
When she struggled, he used his right arm to pin her down.
A.O. grabbed his wrist and told him to stop. Castillo-Zamora
then reached around and unbuttoned A.O.’s pants and again
put his hand down the backside of A.O.’s jeans, beneath her
underwear. He then inserted his finger into A.O.’s vagina three
or four times, while A.O. told him to stop. A.O. estimated that
this lasted for about a minute, until Castillo-Zamora stopped
without saying anything and went back upstairs. A.O. then
stayed awake for approximately 2 hours waiting for her sis-
ter, Jacqueline, to get up so she could get a ride back to their
mother’s house.
Initially, A.O. did not tell anyone about the incident. After
the spring semester was over in May 2012, A.O. went to
visit her other sister in California. A.O. told that sister about
what had happened with Castillo-Zamora during the early
hours of March 25. A.O.’s sister convinced A.O. to go to the
police about the incident. Upon returning to Nebraska in July,
A.O. filed a report with the Grand Island Police Department.
Castillo-Zamora was arraigned on February 13, 2013, for a
single count of first degree sexual assault.
The jury found Castillo-Zamora guilty of first degree sexual
assault. On December 11, 2013, Castillo-Zamora was sen-
tenced to 3 to 5 years’ imprisonment.
Castillo-Zamora appeals his conviction.
ASSIGNMENTS OF ERROR
Castillo-Zamora assigns as error that the district court
erred in (1) failing to allow Castillo-Zamora to inquire on
redirect examination into the nature of his own witness’
felony conviction after he was impeached by the State, (2)
not granting a mistrial when both parties joined in the motion
for mistrial, and (3) admitting hearsay statements. In addition,
Castillo-Zamora assigns that he received ineffective assist­
ance of counsel when his trial counsel failed to (1) object
at trial to the introduction of evidence under Neb. Rev. Stat.
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Cite as 289 Neb. 382
§ 27-404 (Cum. Supp. 2012), (2) properly object to testimony
that constituted impermissible bolstering of a witness’ cred-
ibility, (3) introduce two pieces of evidence during trial, and
(4) object to prosecutorial misconduct during the State’s clos-
ing argument.
STANDARD OF REVIEW
[1-3] In all proceedings where the Nebraska Evidence Rules
apply, admissibility of evidence is controlled by the rules, not
judicial discretion, except in those instances when judicial dis-
cretion is a factor involved in the admissibility of evidence.1
When judicial discretion is not a factor, whether the under-
lying facts satisfy the legal rules governing the admissibil-
ity of such evidence is a question of law, subject to de novo
review.2 Statutory interpretation presents a question of law,
which an appellate court reviews independently of the lower
court’s determination.3
[4] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court
abused its discretion.4
[5] Apart from rulings under the residual hearsay excep-
tion, an appellate court will review for clear error the factual
findings underpinning a trial court’s hearsay ruling and review
de novo the court’s ultimate determination whether the court
admitted evidence over a hearsay objection or excluded evi-
dence on hearsay grounds.5
[6-8] In reviewing claims of ineffective assistance on direct
appeal, we are deciding only questions of law: Are the undis-
puted facts contained within the record sufficient to con-
clusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was
not prejudiced by counsel’s alleged deficient performance?6
1
State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).
2
State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
3
State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).
4
State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
5
State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
6
State v. Dubray, ante p. 208, ___ N.W.2d ___ (2014).
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If the alleged ineffective assistance claim rests solely on the
interpretation of a statute or constitutional requirement, which
claims present pure questions of law, we can decide the issue
on direct appeal.7 Whether the defense counsel’s performance
was deficient and whether the petitioner was prejudiced by that
performance are questions of law that are reviewed indepen-
dently of the lower court’s decision.8
ANALYSIS
Scope of Neb. Rev. Stat. § 27-609(1)
(Reissue 2008).
In his first assignment of error, Castillo-Zamora assigns
that the district court erred in failing to allow him to inquire
on redirect examination into the nature of his own wit-
ness’ felony conviction after the witness was impeached by
the State.
During trial, the State properly impeached Castillo-Zamora’s
witness, Bolanos, by asking whether he had previously been
convicted of a felony or crime of dishonesty. On redirect
examination, trial counsel for Castillo-Zamora asked Bolanos
if he had “been convicted of a felony,” to which the State
objected. The trial court sustained the objection on the ground
that the statute does not draw a distinction between felonies
and crimes involving dishonesty and, therefore, does not per-
mit counsel to question whether a witness was convicted of a
felony or crime involving dishonesty.
[9] Section 27-609(1) provides for the impeachment of a
witness on cross-examination when the witness has commit-
ted a felony or crime of dishonesty. After the conviction is
established, “the inquiry must end there, and it is improper to
inquire into the nature of the crime, the details of the offense,
or the time spent in prison as a result thereof.”9 This rule has
also been applied to the impeachment of nonparty witnesses.10
7
See id.
8
See id.
9
State v. Johnson, 226 Neb. 618, 621, 413 N.W.2d 897, 898 (1987).
10
State v. Garza, 236 Neb. 215, 459 N.W.2d 747 (1990).
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This court has not previously considered how this rule applies
on redirect examination.
The inquiry is restricted, because a witness’ conviction of
a crime is meant to be used for whatever effect it has on only
the credibility of the witness, and it is not meant to other-
wise impact the jury’s view of the character of the witness.11
Nebraska is among a small number of jurisdictions that has
adopted this view.12 The vast majority of jurisdictions allow
inquiry into the nature of the underlying conviction.13 But
a long history of case law in Nebraska strictly construing
§ 27-609 establishes that the nature of the underlying convic-
tion does not matter for impeachment purposes. We see no
reason to reconsider our prior § 27-609 jurisprudence and no
reason why the rule should not be extended to redirect exami-
nation as well.
Once the State had established Bolanos’ conviction on cross-
examination, the inquiry should have ceased. It was improper
for Castillo-Zamora’s counsel to ask on redirect examination
whether Bolanos had “been convicted of a felony” after the
witness had been impeached on cross-examination. As such,
the trial court did not err when it sustained the State’s objection
to the further questioning on redirect examination of Bolanos
on the nature of his earlier convictions.
Castillo-Zamora’s first assignment of error is without merit.
Joint Motion for Mistrial.
In his second assignment of error, Castillo-Zamora argues
that the district court erred when it denied the parties’ joint
motion for mistrial. This assignment of error also involves
§ 27-609(1).
The State moved for a mistrial after the following exchange
took place between Castillo-Zamora’s trial counsel and a wit-
ness for the State. On cross-examination, Castillo-Zamora
attempted to impeach Schroyer:
11
Latham v. State, 152 Neb. 113, 40 N.W.2d 522 (1949).
12
State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989).
13
Id.
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[Castillo-Zamora’s counsel:] While you were in Lincoln,
were you ever convicted of a crime of dishonesty?
[Schroyer:] Yes.
Q That was for forgery, wasn’t it?
A Yes.
[The State]: Objection.
THE COURT: Basis?
[The State]: I will withdraw my objection at this
point.
THE COURT: Go ahead, please.
Q Then in the last ten years, you have been to Omaha,
haven’t you?
A Yes.
....
Q During that time, you were convicted of a crime of
dishonesty, weren’t you?
A Yes.
Schroyer was then dismissed as a witness. Before calling the
next witness, the State approached the bench and moved for
a mistrial. The State argued that a mistrial was appropriate
because counsel for Castillo-Zamora improperly impeached
Schroyer by going into the details of her previous convictions.
Castillo-Zamora’s counsel stated that he did not have an objec-
tion to the mistrial and joined in the motion. The trial court
denied the motion because the State failed to object when the
question was asked and answered, but also noted that “[i]f
objections were made, it very well would be that the Court
would have sustained [the] objections . . . .”
[10] “Courts have considerable discretion in passing on the
motions for mistrial, to the end that justice be more nearly
effectuated.”14 The trial court’s decision will not be disturbed
unless the trial court abused that discretion.15
[11] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial which is of such
a nature that its damaging effect cannot be removed by proper
14
State v. Archbold, 217 Neb. 345, 351, 350 N.W.2d 500, 504 (1984).
15
See, e.g., State v. Ramirez, supra note 4.
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admonition or instruction to the jury and thus prevents a
fair trial.16
As discussed above, after a conviction is established,
Nebraska law does not permit inquiry into the nature of the
underlying crime.17 Castillo-Zamora exceeded the proper scope
of § 27-609. Assuming without deciding that this improper
questioning could have given rise to a mistrial, the State with-
drew its objection and had therefore waived it.18 Because of
the State’s failure to timely object, the trial court correctly
determined that the State could not move for a mistrial in
this case.
[12,13] Because Castillo-Zamora merely joined in on the
State’s motion for mistrial, his claim also fails as a result of
the State’s failure to object. Castillo-Zamora also does not have
any independent basis for a mistrial because he cannot demon-
strate he suffered any prejudice. A defendant seeking mistrial
must prove that an alleged error actually prejudiced him or her,
rather than creating only the possibility of prejudice.19 A party
is barred from moving for a mistrial because of a prejudicial
error when the party was responsible for creating the error.20
Castillo-Zamora was wholly responsible for the improper ques-
tioning of the State’s witness, and Castillo-Zamora cannot
claim he was prejudiced by his own counsel’s improperly
exceeding the scope of § 27-609 while cross-examining the
State’s witness.
In this case, the trial court did not abuse its discretion in
denying the joint motion for mistrial, because the State failed
to object at the time the evidence was admitted, thereby waiv-
ing the error, and Castillo-Zamora only joined in the State’s
motion. Castillo-Zamora’s second assignment of error is with-
out merit.
16
State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).
17
State v. Johnson, supra note 9.
18
See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
19
State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993), disapproved on
other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).
20
See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
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December 24, 2011, Hearsay Statements.
In his third assignment of error, Castillo-Zamora assigns that
the district court erred in admitting certain hearsay statements
contained in Schroyer’s testimony from the December 24,
2011, incident. Schroyer’s testimony included statements A.O.
made to Schroyer during the party on December 24 about how
Castillo-Zamora asked A.O. in the bedroom whether A.O. was
attracted to him and A.O.’s reaction to his comments. The court
did not give a basis for overruling Castillo-Zamora’s objection.
Castillo-Zamora assigns that the trial court erred in admitting
this testimony.
[14,15] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.21 Hearsay
is not admissible unless otherwise provided for under the
Nebraska Evidence Rules or elsewhere.22 The statements
clearly are hearsay.
The statements, however, can still be admissible if they fall
under an exception to the general rule prohibiting hearsay. One
such exception exists for excited utterances. For a statement
to qualify as an excited utterance, the following criteria must
be met: (1) There must have been a startling event, (2) the
statement must relate to the event, and (3) the statement must
have been made by the declarant while under the stress of the
event.23 The justification for the excited utterance exception
is that “circumstances may produce a condition of excitement
which temporarily stills the capacity of reflection and produces
utterances free of conscious fabrication.”24
Castillo-Zamora disputes that A.O.’s statements to Schroyer
fall under the excited utterance exception for two reasons.
First, Castillo-Zamora contends that the conversation in the
bedroom did not constitute a startling event. Second, he
argues that even if the conversation was a startling event, any
21
Neb. Rev. Stat. § 27-801 (Reissue 2008).
22
Neb. Rev. Stat. § 27-802 (Reissue 2008).
23
Neb. Rev. Stat. § 27-803(1) (Reissue 2008). See, also, State v. Hembertt,
269 Neb. 840, 696 N.W.2d 473 (2005).
24
State v. Pullens, 281 Neb. 828, 840, 800 N.W.2d 202, 216-17 (2011).
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shock from the event dissipated by the time A.O. had talked
to Schroyer.
Castillo-Zamora contends that the excited utterance excep-
tion is not appropriate here, because the conversation between
Castillo-Zamora and A.O. was not of significant magnitude
to trigger the exception. The key inquiry does not necessarily
concern the magnitude of the startling event, but whether an
event caused the declarant to be under enough stress to speak
without reflecting on the event, increasing the likelihood the
statements were not fabricated.25
We have held that the visible reaction of the declarant can be
enough to create an inference of a startling event. For example,
a description that the declarant gave a “‘teary-eyed and inco-
herent, raggedy, choked-up kind of explanation’” was suffi-
cient to show a startling event.26 An inference was also made
when the declarant “appeared flushed, very fidgety, and visibly
upset” at the time of the statement.27 In the case at bar, both
Schroyer and Erick testified to the fact that A.O. was crying
and visibly upset while in the hallway bathroom. We conclude
that Castillo-Zamora’s unwanted sexual advances toward A.O.
in a secluded area would be a startling event.
And the record further indicates that the statements were
made while A.O. was still experiencing the effects of this
startling event. To be excited utterances, statements need not
be made contemporaneously with the exciting cause but may
be subsequent to it, provided there has not been time for the
exciting influence to lose its sway and to be dissipated.28 The
true test in spontaneous exclamations is not when the excla-
mation was made, but whether under all the circumstances
of the particular exclamation the speaker may be considered
as speaking under the stress of nervous excitement and shock
produced by the act at issue.29 The time between when the
25
State v. Hembertt, supra note 23; State v. Pullens, supra note 24.
26
State v. Pullens, supra note 24, 281 Neb. at 840, 800 N.W.2d at 216.
27
State v. Jacob, 242 Neb. 176, 188, 494 N.W.2d 109, 118 (1993).
28
State v. Hembertt, supra note 23.
29
State v. Pullens, supra note 24.
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event occurs and the statements are made is not “of itself dis-
positive of the spontaneity issue.”30 The length of time for the
exception to apply depends on the facts of the case.31
Castillo-Zamora argues that the 30- to 40-foot walk from
the bedroom to the hallway bathroom gave A.O. the necessary
time to reflect and demonstrates a lack of spontaneity. The
facts in the record would seem to suggest otherwise. Based
on the record, only a short period of time could have passed
between the time A.O.’s conversation with Castillo-Zamora
ended and the conversation between A.O. and Schroyer began.
Both Schroyer and Erick testified that A.O. was crying and
visibly upset while in the hallway bathroom. While not neces-
sary, a showing that the declarant is visibly excited is relevant
to the third prong of the excited utterance test.32
The fact that A.O. was still visibly upset from the encounter
would raise inferences that she was still under stress from the
incident and that any statements made by her were spontane-
ous. We conclude that the statements made by A.O. to Schroyer
were excited utterances as per § 27-803(1). The trial court did
not err in admitting Schroyer’s testimony. Castillo-Zamora’s
third assignment of error is without merit.
Ineffective Assistance of Counsel.
In his final assignment of error, Castillo-Zamora assigns,
restated, that he received ineffective assistance of counsel
because his trial counsel failed to (1) object at trial to the
introduction of evidence under § 27-404, (2) properly object
to testimony that constituted impermissible bolstering of a wit-
ness’ credibility, (3) introduce two pieces of evidence during
trial, and (4) object to alleged prosecutorial misconduct during
the State’s closing argument.
On direct appeal, the resolution of ineffective assistance
of counsel claims turns upon the sufficiency of the record,
and the fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can be
30
State v. Boppre, 243 Neb. 908, 927, 503 N.W.2d 526, 538 (1993).
31
Id.
32
State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).
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resolved.33 The determining factor is whether the record is suf-
ficient to adequately review the question.34 An appellate court
will not address an ineffective assistance of counsel claim on
direct appeal if it requires an evidentiary hearing.35
We determine that the record on direct appeal is insufficient
to review the first, third, and fourth claims made by Castillo-
Zamora, and we decline to reach them. We determine that the
record is sufficient to reach the second claim.
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington,36 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defend­ant’s
defense.37 An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order.38
To show prejudice under the prejudice component of the
Strickland test, there must be a reasonable probability that
but for the deficient performance, the result of the pro-
ceeding would have been different.39 A reasonable probabil-
ity is a probability sufficient to undermine confidence in
the outcome.40
Castillo-Zamora assigns that he received ineffective assist­
ance of counsel when his trial counsel failed to properly object
to testimony that allegedly impermissibly bolstered a witness’
credibility. The State called Investigator Mark Wiegert, of the
Grand Island Police Department, to testify. Wiegert was the
primary investigator for the case. During the State’s direct
examination of Wiegert, Castillo-Zamora objected to a portion
of his testimony in the following exchange:
33
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
34
Id.
35
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
36
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
37
State v. Filholm, supra note 33.
38
Id.
39
State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).
40
Id.
Nebraska Advance Sheets
396 289 NEBRASKA REPORTS
[The State:] Did you ask [Castillo-Zamora] if he felt
like he got along with the rest of [A.O.’s] family?
[Wiegert:] Yes, I did.
Q And what did he tell you in response to that?
A Yes, he got along with all family members.
Q Did you ask him if he knew of any reason why
[A.O.] might fabricate these allegations?
[Castillo-Zamora’s counsel]: Objection.
THE COURT: Your basis, sir?
[Castillo-Zamora’s counsel]: You Honor, I would think
that’s boasting.
THE COURT: Your objection is boasting?
[Castillo-Zamora’s counsel]: Or boosting, whatever.
THE COURT: Boasting or boosting is your basis?
[Castillo-Zamora’s counsel]: We will withdraw the
objection.
The failure of Castillo-Zamora’s trial counsel to properly
object would preclude appeal on the matter.41 The question
then is whether the outcome would be any different had
Castillo-Zamora’s trial counsel properly objected. Neb. Rev.
Stat. § 27-608(1) (Reissue 2008) provides that a party may
offer supporting evidence of a witness’ credibility so long as
(1) the evidence is in the form of reputation or opinion, (2) it
only relates to the witness’ character for truthfulness, and (3)
the witness’ credibility has already been put at issue.
Section 27-608 does not apply to the type of evidence
the State was trying to solicit from Wiegert. The focus of
§ 27-608 is not on witness credibility generally, but spe-
cifically pertains to regulating the use of evidence regarding
the witness’ character for truthfulness. Commentators have
suggested a similar interpretation for the federal version of
§ 27-608, which is nearly identical to Nebraska’s version of
the rule.42 The federal advisory committee made it clear that
“the statutory limitations on the use of specific instances of
conduct are intended to apply only with respect to character
41
See State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
42
See 1 McCormick on Evidence § 47 (Kenneth S. Broun et al. eds., 7th ed.
2013).
Nebraska Advance Sheets
STATE v. CASTILLO-ZAMORA 397
Cite as 289 Neb. 382
for truthfulness, not with respect to other kinds of credibility
attacks such as bias or motive to falsify.”43
State v. Beermann44 illustrates the type of testimony which
would speak toward an accuser’s “character for truthfulness.”
Beermann involved sexual assault charges. At trial, after the
victim testified, the State called the sheriff’s deputy who
originally interviewed the victim to testify. The State asked
whether the victim’s prior testimony was consistent with what
she had told the deputy, and the deputy responded in the
affirmative. The deputy then testified that based on his experi-
ence and training, he believed the victim had been sexually
abused. Because the deputy’s testimony could be “construed
as stating” that the victim’s testimony was true, it was “totally
improper for one witness to testify as to the credibility of
another witness.”45
In State v. Archie,46 a witness stated that “she did not have
‘any concerns that [the accuser] wasn’t telling [her] the truth.’”
Relying on Beermann, this court held that it was improper for
the court to “inquire of a witness whether another person may
or may not have been telling the truth in a certain instance.”47
The Nebraska Court of Appeals overturned a conviction
when one witness testified that it was “uncharacteristic” of
the accuser to lie and another witness, a police officer, stated
that the accuser was truthful and straightforward when he
interviewed her.48 The Court of Appeals concluded that the
witnesses’ testimony “in effect told the jury to believe [the
accuser’s] accusations.”49
In this case, the State asked Wiegert whether he asked
Castillo-Zamora “if he knew of any reason why [A.O.] might
43
Id. at 306 n.2.
44
State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).
45
Id. at 396, 436 N.W.2d at 509.
46
State v. Archie, 273 Neb. 612, 634, 733 N.W.2d 513, 531 (2007).
47
Id.
48
State v. Burkhardt, No. A-05-335, 2005 WL 3470484 at *6 (Neb. App.
Dec. 20, 2005) (not designated for permanent publication).
49
Id.
Nebraska Advance Sheets
398 289 NEBRASKA REPORTS
fabricate these allegations.” It was at this point that trial
counsel attempted, but failed, to object to the question. After
the objection was withdrawn, Wiegert testified that Castillo-
Zamora “said he had no idea why [A.O.] would fabricate it
because he got along with all of them, so he didn’t have any
idea why.”
Assuming without deciding that Wiegert’s testimony was
inadmissible, he still could not establish that he was preju-
diced from his trial counsel’s failure to properly object. The
erroneous admission of evidence is not reversible error if the
evidence and other relevant evidence, properly admitted, sup-
ports the finding of the trier of fact.50 The State asked similar
questions to several other witnesses.
The State asked A.O. if, before the incident, she had had
any “big arguments” or grudges against Castillo-Zamora, and
she replied that she had not. Schroyer and Erick were both
asked if they were aware, before the incident, of any big argu-
ments or grudges between A.O. and either Castillo-Zamora or
Jacqueline, and they both replied they were not. Jacqueline
also testified that A.O. had a good relationship with both
Castillo-Zamora and Jacqueline prior to the incident. From all
the above testimony, the jury could properly infer that A.O. had
no reason to fabricate the allegations due to any disagreement
within the family. Even if Castillo-Zamora’s trial counsel prop-
erly objected, it is not reasonably probable there would have
been a different result.
Even if it was improper bolstering, Castillo-Zamora was not
prejudiced, because almost identical questions were posed to
other witnesses. Castillo-Zamora’s assignment of error that he
received ineffective assistance of counsel when his trial coun-
sel failed to properly object to alleged impermissible bolstering
of a witness’ credibility is without merit.
CONCLUSION
The judgment and sentence of the district court is affirmed.
Affirmed.
50
State v. Ramirez, supra note 4.