State v. Newman ( 2015 )

Nebraska Advance Sheets
572 290 NEBRASKA REPORTS
the statements of the confidential informant, and instructing
the jury. And the court did not abuse its discretion in limit-
ing the scope of his cross-examination of Herrera-Gutierrez,
overruling his motion for new trial, and denying his request
to reopen the evidence. Further, Stricklin failed to preserve
his claim of prosecutorial misconduct for appellate review. We
affirm Stricklin’s convictions and sentences.
Affirmed.
Heavican, C.J., not participating.
State of Nebraska, appellee, v. Terrell E. Newman,
also known as Monroe E. Terrell, also known
as Edward N. Terrell, appellant.
___ N.W.2d ___
Filed April 3, 2015. No. S-14-229.
1. Identification Procedures: Due Process: Appeal and Error. A district court’s
conclusion whether an identification is consistent with due process is reviewed de
novo, but the court’s findings of historical fact are reviewed for clear error.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
5. 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.
6. Constitutional Law: Identification Procedures: Due Process. The Due Process
Clause does not require a preliminary judicial inquiry into the reliability of an
Nebraska Advance Sheets
STATE v. NEWMAN 573
Cite as 290 Neb. 572eyewitness identification when the identification was not procured under unnec-
essarily suggestive circumstances arranged by law enforcement.
7. Trial: Identification Procedures. When no improper law enforcement activ-
ity is involved, it suffices to test the reliability of identification testimony at
trial, through the rights and opportunities generally designed for that purpose,
such as the rights to counsel, compulsory process, and confrontation and cross-­
examination of witnesses.
8. Effectiveness of Counsel: Proof: Appeal and Error. 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 actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
9. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective
assistance of counsel, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding would
have been different.
10. Effectiveness of Counsel: 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 pro-
cedurally barred.
11. Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is whether the record is suf-
ficient to adequately review the question.
12. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
13. Trial: Evidence: Appeal and Error. An objection, based on a specific ground
and properly overruled, does not preserve a question for appellate review on any
other ground.
14. Trial: Rules of Evidence. A trial court is required to weigh the danger of unfair
prejudice against the probative value of the evidence only when requested to do
so at trial.
15. Motions for Mistrial. A mistrial is generally granted when a fundamental failure
prevents a fair trial. Some examples are an egregiously prejudicial statement by
counsel, the improper admission of prejudicial evidence, or the introduction of
incompetent matters to the jury.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Nebraska Advance Sheets
574 290 NEBRASKA REPORTS
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ., and Moore, Chief Judge.
Cassel, J.
I. INTRODUCTION
This case is Terrell E. Newman’s direct appeal from mul-
tiple felony convictions, including two convictions for first
degree murder. Newman’s convictions arose from the shoot-
ing deaths of Carlos Morales and Bernardo Noriega during
a planned drug transaction. The State alleged that Newman
committed the crimes with an accomplice, Derrick U. Stricklin,
and the two were tried together. Newman’s assignments of
error relate to his identification by the State’s primary witness,
the sufficiency of the evidence, ineffective assistance of trial
counsel, the admissibility of evidence based upon cell phone
records, comments made by a prospective juror, the exclusion
of statements made by a confidential informant, the scope of
his cross-examination of the State’s primary witness, and juror
misconduct. Finding no merit to his claims, we affirm his con-
victions and sentences.
II. BACKGROUND
We address Newman’s and Stricklin’s appeals in separate
opinions. The basic facts of this case are contained in State
v. Stricklin1 and are not repeated herein, except as other-
wise indicated.
As previously noted, the deaths of Morales and Noriega
occurred during a planned drug transaction. One of the vic-
tims, Jose Herrera-Gutierrez, was not killed and identified
Newman and Stricklin as Morales’ and Noriega’s killers. At
trial, Herrera-Gutierrez was the State’s primary witness. He
testified that Morales had asked him to obtain some cocaine
and that he and Noriega were supposed to deliver the cocaine
1
State v. Stricklin, ante p. 542, ___ N.W.2d ___ (2015).
Nebraska Advance Sheets
STATE v. NEWMAN 575
Cite as 290 Neb. 572to Morales’ automobile body shop. When they arrived at the
shop, they entered the shop’s office to find two black males
already present. The males ordered Herrera-Gutierrez, Morales,
and Noriega to lie down. They subsequently shot and killed
Morales and Noriega.
Newman was convicted of two counts of first degree mur-
der, three counts of use of a deadly weapon to commit a
felony, attempted intentional manslaughter, and possession of
a deadly weapon by a prohibited person. He was sentenced
to life imprisonment for each of the first degree murder con-
victions, 15 to 25 years’ imprisonment for each of the three
use of a deadly weapon convictions, 20 months’ to 5 years’
imprisonment for the attempted intentional manslaughter con-
viction, and 15 to 25 years’ imprisonment for the possession
of a deadly weapon by a prohibited person conviction. Each
sentence was ordered to run consecutively.
Newman filed a timely notice of appeal—an appeal which is
taken directly to this court.2
III. ASSIGNMENTS OF ERROR
Newman assigns, reordered and restated, that (1) the police
employed unnecessary and unduly suggestive photographic
lineups in order to identify him; (2) the State introduced insuf-
ficient evidence to support his convictions; and (3) his trial
counsel failed to introduce the affidavit or testimony of a
juror’s brother regarding Newman’s allegations of juror mis-
conduct, to object to jury instructions Nos. 5, 11, and 12, and
to adequately investigate his defenses.
Newman further assigns that the district court erred in (1)
admitting exhibit 288 into evidence, (2) overruling his motion
for mistrial due to comments made by a prospective juror, (3)
excluding the statements of a confidential informant, (4) limit-
ing the scope of his cross-examination of Herrera-Gutierrez,
(5) overruling his motion for a new trial due to juror miscon-
duct, and (6) overruling his motion to withdraw his rest and to
reopen the evidence.
2
See Neb. Rev. Stat. § 24-1106(1) (Reissue 2008).
Nebraska Advance Sheets
576 290 NEBRASKA REPORTS
IV. STANDARD OF REVIEW
[1] A district court’s conclusion whether an identification
is consistent with due process is reviewed de novo, but the
court’s findings of historical fact are reviewed for clear error.3
[2] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of fact.
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.4
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.5 Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion.6
[5] Whether to grant a mistrial is within the trial court’s dis-
cretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.7
V. ANALYSIS
Newman and Stricklin assign several of the same issues as
error. And as to these issues, there is no material difference in
the applicable facts or law in the two appeals. Thus, we will
refer to our opinion in Stricklin8 for the disposition of their
common claims. This opinion addresses only those assignments
3
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
4
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).
5
State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
6
Id.7
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
8
Stricklin, supra note 1.
Nebraska Advance Sheets
STATE v. NEWMAN 577
Cite as 290 Neb. 572of error unique to Newman. We begin with Newman’s identifi-
cation through the use of photographic lineups.
1. Identification
Newman assigns that the police employed unnecessary and
unduly suggestive photographic lineups in order to identify
him. He contends that the photographic lineups violated his
due process rights, because a photograph of him was included
in multiple lineups. He further argues that the police should
have conducted a live, physical lineup.
The State argues that the photographic lineups were not
unduly suggestive and did not violate Newman’s due process
rights. Moreover, the State points out that Herrera-Gutierrez
had previously seen Newman and Stricklin at Morales’ shop.
Herrera-Gutierrez did not know their names. But the shoot-
ings were not his first exposure to the perpetrators. Thus, the
witness began the identification process with more familiarity
with the shooters than a mere eyewitness. We analyze the pro-
cedures in that light.
(a) Facts
Herrera-Gutierrez identified both Newman and Stricklin
as the shooters in photographic lineups conducted by police.
Prior to trial, Newman moved to suppress any in-court identi-
fication of him by persons who had identified him in a police
lineup. The district court held a hearing, and multiple officers
testified as to the circumstances of the lineups.
Det. Dave Schneider testified that he interviewed Herrera-
Gutierrez 2 days after the shootings and that, at that time,
he had not developed any suspects. During the interview,
Herrera-Gutierrez informed Schneider that he had recog-
nized the shooters from prior occasions at Morales’ shop.
He explained that one of the shooters had a brother who was
potentially a business partner of Morales’ and that the other
shooter was associated with a green Volkswagen Beetle that
Herrera-Gutierrez had seen at the shop. Through investigat-
ing vehicles matching that description, Schneider developed
Newman as a suspect.
Several weeks after the initial interview with Herrera-
Gutierrez, Schneider and another detective showed
Nebraska Advance Sheets
578 290 NEBRASKA REPORTS
Herrera-Gutierrez a photographic lineup containing a photo-
graph of Newman. Schneider had created the lineup using the
police department’s “mugshot program,” and he had placed
Newman’s photograph in “[p]osition number three.” The pho-
tograph of Newman was from 1999, and it was almost
12 years old. Schneider had a more recent photograph of
Newman from Newman’s “Nebraska ID card,” but Schneider
used the 1999 photograph because it was the only photo-
graph of Newman available in the mug shot program. He
also printed the lineup in black and white, because the 1999
photograph was “distorted” in comparison to the other five
photographs. But the distortion was less noticeable in black
and white.
Herrera-Gutierrez was presented with the lineup, and he
indicated that the photograph of Newman resembled one of
the shooters. The presentation of the lineup was recorded,
and the recording was received by the district court. After
Herrera-Gutierrez had indicated the photograph of Newman,
the other detective translated that “number three looks a lot
like him, but he can’t assure you that that’s him.” When
asked to give a percentage, the detective translated that
Herrera-Gutierrez was “about 50 percent,” but not sure,
because “he looks a little heavier.” Additionally, according
to the detective, Herrera-Gutierrez explained that he believed
he might be able to make an identification from a more
recent photograph.
On the following day, a second lineup was presented to
Herrera-Gutierrez by Schneider and two other detectives.
Schneider had obtained a more recent photograph of Newman
using “DMV photos,” and the photographs appearing in the
second lineup were in color. Schneider confirmed that Newman
was the only individual to appear in both lineups.
After the presentation of the second lineup, Herrera-Gutierrez
identified Newman. Schneider described that Herrera-Gutierrez
did not hesitate “at all.” And one of the other detectives testi-
fied that “within two seconds,” Herrera-Gutierrez identified
Newman and indicated that Newman was “the fat one that
he was talking about in the garage that was orchestrating
the homicide[s].”
Nebraska Advance Sheets
STATE v. NEWMAN 579
Cite as 290 Neb. 572After the hearing, the district court entered an order over-
ruling Newman’s motion to suppress. The court concluded that
the identification process used by police was not unduly sug-
gestive and that there had been no improper police influence.
The court observed that Herrera-Gutierrez was able to describe
prior instances when he had seen the shooters and that he had
provided physical descriptions of the shooters prior to being
presented with any lineups.
(b) Resolution
The U.S. Supreme Court has stated a two-part test for
determining the admissibility of an out-of-court identification:
“First, the trial court must decide whether the police used an
unnecessarily suggestive identification procedure. . . . If they
did, the court must next consider whether the improper iden-
tification procedure so tainted the resulting identification as to
render it unreliable and therefore inadmissible.”9
[6,7] “[T]he Due Process Clause does not require a pre-
liminary judicial inquiry into the reliability of an eyewit-
ness identification when the identification was not procured
under unnecessarily suggestive circumstances arranged by law
enforcement.”10 When no improper law enforcement activity
is involved, it suffices to test the reliability of identification
testimony at trial, through the rights and opportunities gener-
ally designed for that purpose, such as the rights to counsel,
compulsory process, and confrontation and cross-examination
of witnesses.11
We have previously stated that a determination of imper-
missible suggestiveness is based on the totality of the circum­
stances.12 Based upon the totality of the circumstances sur-
rounding the lineups in this case, we find no unnecessary
suggestiveness in the procedures used by police to iden-
tify Newman.
9
Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 722, 181 L. Ed. 2d
694 (2012). See Nolan, supra note 3.
10
Perry, supra note 9, 132 S. Ct. at 730. See Nolan, supra note 3.
11
Nolan, supra note 3.
12
See State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
Nebraska Advance Sheets
580 290 NEBRASKA REPORTS
Before being presented with both of the photographic line-
ups, Herrera-Gutierrez was admonished that the lineups may
or may not have contained a photograph of one of the perpe-
trators. And an examination of the photographs in each of the
lineups reveals that the arrays were not suggestive. Each of
the lineups contained photographs of individuals with charac-
teristics similar to Newman’s. And Newman’s photographs did
not stand out due to age or any apparent distortion.
Newman’s arguments as to unnecessary suggestiveness
focus on his inclusion in multiple photographic lineups. And
he attempts to compare this case to Foster v. California,13 in
which the U.S. Supreme Court determined that a petitioner’s
due process rights were violated by his identification through
multiple lineups in a robbery investigation. In Foster, the peti-
tioner was placed in an initial lineup in which he stood out by
the contrast of his height and by the fact that he was wearing a
leather jacket similar to the one worn by the robber. And when
the witness was unable to identify the petitioner, the police
permitted a one-to-one confrontation between the petitioner
and the witness—a practice which, according to the Court,
has been widely condemned. After a tentative identification,
the police again placed the petitioner in another lineup. Thus,
“[i]n effect, the police repeatedly said to the witness, ‘This is
the man.’”14
We do not find Foster to be analogous to the present case.
Although Newman was included in two lineups, the similarities
to Foster end there. Further, in this case, the use of multiple
lineups was prompted by Herrera-Gutierrez’ statement that he
might be able to make an identification of Newman from a
more recent photograph.
After reviewing the first lineup, Herrera-Gutierrez indi-
cated that the photograph of Newman resembled one of the
shooters, but stated that he was not sure, because the indi-
vidual in the photograph appeared to be heavier. And he further
explained that he might be able to make an identification from
13
Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402(1969).
14
Id., 394 U.S. at 443 (emphasis omitted).
Nebraska Advance Sheets
STATE v. NEWMAN 581
Cite as 290 Neb. 572a more recent photograph. Schneider subsequently obtained a
more recent photograph of Newman and compiled a second
lineup, from which Herrera-Gutierrez identified Newman with-
out hesitation.
The U.S. Supreme Court has emphasized that each chal-
lenge to a pretrial identification must be considered on its own
facts.15 Considering the facts of the present case, we do not
conclude that the procedures used by police effectively told
Herrera-Gutierrez, “‘This is the man.’”16 Although Newman
appeared in both lineups, the second lineup was created to
address Herrera-Gutierrez’ concerns with the 1999 photograph.
And in the second lineup, police used a different photograph
of Newman and placed the photograph in a different position.
Under some circumstances, the inclusion of the same suspect
in multiple photographic lineups in order to obtain an identifi-
cation might be unnecessarily suggestive. But this determina-
tion must be made on a case-by-case basis. Under the facts of
the present case, we find no unnecessary suggestiveness in the
procedures used by police.
Additionally, Newman asserts that the procedures used
to identify him were unnecessarily suggestive, because
Schneider prepared both of the photographic lineups and was
present when they were presented to Herrera-Gutierrez. And
he cites a policy of the Omaha Police Department that a pho-
tographic lineup should not be presented by the person who
prepared it.
Notwithstanding any police policy regarding the presenta-
tion of photographic lineups, the evidence received at the
hearing established that Herrera-Gutierrez’ identification of
Newman was not tainted by Schneider’s presence. The record-
ing of the first lineup does not reveal any attempt by Schneider
to influence Herrera-Gutierrez in making an identification.
And Schneider testified that the second lineup was presented
by another detective and that both he and the other detective
did not point to any of the photographs to indicate Newman’s
15
See Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968).
16
Foster, supra note 13, 394 U.S. at 443 (emphasis omitted).
Nebraska Advance Sheets
582 290 NEBRASKA REPORTS
photograph. The other detective also testified that he pre-
sented the second lineup and that he did not know who was in
the lineup.
Finally, Newman contends that police should have used a
live, physical lineup in order to identify him, rather than photo-
graphic lineups. However, he cites no statute or case law requir-
ing the use of live, physical lineups. And the U.S. Supreme
Court has expressly declined to espouse such a requirement.17
This assignment of error is without merit.
2. Insufficient Evidence
Newman claims that the evidence introduced at trial was so
insufficient that no rational trier of fact could have found that
the State had satisfied its burden of proving the defendants’
guilt beyond a reasonable doubt. He argues that Herrera-
Gutierrez’ testimony as to the events of the shootings was not
credible and was uncorroborated by forensic or circumstan-
tial evidence.
Newman’s arguments invite us to exceed the scope of our
appellate review. We decline to do so. We have repeatedly
stated that an appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact.18 From
the jury’s verdicts, it is apparent that the jury found Herrera-
Gutierrez to be credible. It is not the province of this court to
question that determination. This assignment of error is with-
out merit.
3. Ineffective Assistance
of Trial Counsel
Newman assigns that his trial counsel was ineffective in
several ways. He claims that his trial counsel was ineffective
in (1) failing to introduce the affidavit or testimony of a juror’s
brother regarding Newman’s allegations of juror misconduct;
(2) failing to object to jury instructions Nos. 5, 11, and 12; and
(3) failing to adequately investigate his defenses.
17
See Simmons, supra note 15.
18
See, e.g., State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
Nebraska Advance Sheets
STATE v. NEWMAN 583
Cite as 290 Neb. 572[8,9] The test for ineffective assistance of counsel is well
settled. To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,19 the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense.20 An appellate court may address the
two prongs of this test, deficient performance and prejudice,
in either order.21 To show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different.22
[10] Newman obtained new, different counsel for this direct
appeal. 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 perform­
ance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.23
[11,12] However, the fact that an ineffective assistance of
counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is whether
the record is sufficient to adequately review the question.24 An
ineffective assistance of counsel claim will not be addressed on
direct appeal if it requires an evidentiary hearing.25
(a) Affidavit or Testimony
of Juror’s Brother
The relevant facts surrounding Newman’s allegations of
juror misconduct are contained in Stricklin.26 Briefly sum-
marized, Newman moved for a new trial on the basis that a
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
20
Filholm, supra note 18.
21
Id.
22
Id.
23
State v. Ramirez, 284 Neb. 697, 823 N.W.2d 193 (2012).
24
Filholm, supra note 18.
25
Ramirez, supra note 23.
26
Stricklin, supra note 1.
Nebraska Advance Sheets
584 290 NEBRASKA REPORTS
juror committed misconduct in communicating with the juror’s
brother, a nonjuror, after the first day of deliberations and
before a verdict had been reached. A hearing was conducted,
and the juror testified that he called his brother and that his
brother informed him that their father had known the defend­
ants from growing up together. But the juror testified that he
did not know either of the defendants personally.
Although the juror’s brother was known to the defendants,
neither Newman nor Stricklin produced the statements of the
brother at the hearing. After the hearing, Newman moved to
withdraw his rest and to introduce the brother’s affidavit, but
the district court overruled the motion.
The record is insufficient to resolve this ineffective assist­
ance claim. Newman claims that the brother’s affidavit pro-
vided “critical evidence” which contradicted the juror’s testi-
mony at the hearing.27 The brother’s affidavit stated, in relevant
part, that the juror had lied when he testified that he was
unaware of his family’s connection to the defendants until the
connection had been revealed by his brother.
But at the hearing, an investigator also testified that the juror
was aware of his family’s connection to the defendants at the
time that he called his brother. Thus, the evidence contained
in the brother’s affidavit was cumulative of other evidence
presented at the hearing. Consequently, Newman’s trial counsel
could have made a reasonable strategic decision to refrain from
introducing the brother’s statements at the hearing. Without a
more complete record, we decline to address the issue.
(b) Jury Instructions
Nos. 5, 11, and 12
Newman claims that his trial counsel was ineffective in fail-
ing to object to jury instructions Nos. 5, 11, and 12, because
the instructions omitted key phrases and explanations included
in the Nebraska pattern jury instructions.
Instruction No. 5 informed the jury of the elements of the
charged offenses. Newman argues that the instruction was erro-
neous, because it omitted language as to attempted robbery and
27
Brief for appellant at 46.
Nebraska Advance Sheets
STATE v. NEWMAN 585
Cite as 290 Neb. 572as to death as a natural and continuous result of the defendant’s
acts. But there was no need to instruct the jury as to attempted
robbery. Based upon the evidence received at trial, the jury
could determine either that Newman and Stricklin were the
two black males who had committed the robbery and killed
Morales and Noriega, or that they were not. There was no issue
as to whether the robbery forming the basis for the charged
offenses actually occurred.
And there was also no need to instruct the jury as to death
as a natural and continuous result of the defendant’s acts.
There was no dispute that Morales’ and Noriega’s deaths were
caused by the gunshot wounds sustained during the robbery at
Morales’ shop.
Instruction No. 11 provided the jury with definitions.
Newman contends that the instruction was erroneous for omit-
ting the phrase “‘or intentional manslaughter,’” as stated in
the pattern jury instruction.28 He does not identify the erro-
neous definition or the relevant pattern jury instruction, but
we presume that he refers to the definition of “‘[a] felony.’”
Notwithstanding any error in that definition, the jury correctly
understood that the offense of attempted intentional man-
slaughter constituted a felony. The jury found Newman guilty
of attempted intentional manslaughter and the corresponding
charge of use of a deadly weapon to commit a felony.
As to instruction No. 12, Newman contends that the instruc-
tion failed to correctly charge the jury on intent. However,
instruction No. 12 was modeled on the relevant pattern jury
instruction. As such, the instruction was not erroneous.
None of Newman’s allegations of error in the instructions
given to the jury caused him prejudice. Thus, the record affirm­
atively establishes that this claim of ineffective assistance of
counsel is without merit.
(c) Failure to Adequately
Investigate Defenses
Newman asserts that his trial counsel was ineffective in
failing to interview, depose, and subpoena several witnesses.
28
Id. at 47.
Nebraska Advance Sheets
586 290 NEBRASKA REPORTS
And he further identifies the witnesses and the testimony that
the witnesses would have given had they been called to testify.
However, the record is silent as to whether Newman informed
his trial counsel of the witnesses. And there is no evidence
as to trial counsel’s motivations in failing to interview and
subpoena the witnesses or as to any efforts trial counsel made
to do so. Consequently, the record is inadequate to resolve
the issue.
4. Exhibit 288
Newman contends that the district court erred in admit-
ting exhibit 288 into evidence. He claims that the exhibit was
more prejudicial than probative and that the court should have
given a limiting instruction as to the jury’s consideration of
the exhibit.
Exhibit 288 showed six calls received by Newman between
11:42 a.m. to 12:36 p.m. on the day of the shootings. And the
exhibit further indicated that the cell tower used to service
Newman’s cell phones for the calls was located in the immedi-
ate vicinity of Morales’ shop. An “RF engineering manager”
and a legal compliance analyst testified as to the calls and
confirmed the accuracy of the cell tower’s location as shown
on the exhibit.
[13,14] Newman has waived any claim that exhibit 288
was unfairly prejudicial. Newman objected to the admission
of exhibit 288 on the basis of foundation, and the objection
was properly overruled. He did not object on the basis of
unfair prejudice. An objection, based on a specific ground and
properly overruled, does not preserve a question for appellate
review on any other ground.29 A trial court is required to weigh
the danger of unfair prejudice against the probative value of
the evidence only when requested to do so at trial.30
And there was no need for the district court to pro-
vide a limiting instruction as to the jury’s use of exhibit
288. Exhibit 288 was received as substantive evidence. No
29
State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
30
Id.Nebraska Advance Sheets
STATE v. NEWMAN 587
Cite as 290 Neb. 572limiting instruction was required.31 This assignment of error
is without merit.
5. Motion for Mistrial
Newman contends that the district court should have
granted his motion for mistrial, because the entire jury pool
was tainted by comments made by a prospective juror during
voir dire.
In response to the State’s inquiry as to the prospective
juror’s opinion of laws that prohibit certain persons from pos-
sessing firearms, the juror stated:
I think all the laws are misconstrued. I think they’re a
moral fabric in this country. They get broke down so bad.
So many people are walking the streets that need to be
locked up behind bars and be kept there. . . . It’s become
a sham. I think a tall tree and a short piece of rope is the
way the justice system fights back. I’m sorry I feel that
way, but that’s just the way it is.
After the prospective juror’s response, the State moved to
strike the juror for cause. Neither defendant objected, and the
juror was stricken. Newman moved for mistrial, claiming that
the prospective juror’s comments were inflammatory, because
the defendants were two African-American males. And he
further argued that the comments had polluted the entire jury
pool. The district court overruled the motion.
[15] We have stated that a mistrial is generally granted
when a fundamental failure prevents a fair trial.32 Some exam-
ples are an egregiously prejudicial statement by counsel, the
improper admission of prejudicial evidence, or the introduction
of incompetent matters to the jury.33
Newman argues that the district court should have granted
his motion for mistrial, because a new jury venire was the
only remedy that could have cured the prejudice caused by the
31
Cf. State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
32
See State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727(2007).
33
Id.Nebraska Advance Sheets
588 290 NEBRASKA REPORTS
prospective juror’s comments. However, the record affirma-
tively shows that Newman was not deprived of a fair trial by
the juror’s comments.
After the prospective juror’s comments, the juror was
stricken for cause and the defendants were permitted to ques-
tion other prospective jurors as to their reactions to the com-
ments. The questioned jurors expressed that their opinions had
not been influenced by the juror’s comments. Thus, we find
no abuse of discretion in the district court’s refusal to grant a
mistrial. This assignment of error is without merit.
6. R emaining Assignments
of Error
Newman’s arguments regarding the exclusion of the state-
ments of the confidential informant, the scope of his cross-
examination of Herrera-Gutierrez, his motion for new trial,
and his motion to withdraw his rest and to reopen the evidence
are addressed in Stricklin.34 As discussed in that opinion, each
of these claims is without merit. We see no need to repeat our
analysis here.
VI. CONCLUSION
We find no merit to Newman’s assertions that his identifica-
tion by Herrera-Gutierrez violated his due process rights and
that the State introduced insufficient evidence. And the district
court did not err in admitting exhibit 288 into evidence, over-
ruling Newman’s motion for mistrial, excluding the statements
of the confidential informant, limiting the scope of his cross-
examination of Herrera-Gutierrez, overruling his motion for
new trial, and denying his request to withdraw his rest and to
reopen the evidence. Further, his claims of ineffective assist­
ance of trial counsel either lack merit or cannot be resolved,
because the record on direct appeal is insufficient. We affirm
Newman’s convictions and sentences.
Affirmed.
Heavican, C.J., not participating.
34
Stricklin, supra note 1.