State v. Munoz , 303 Neb. 69 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/24/2019 09:07 AM CDT
- 69 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
State of Nebraska, appellee, v.
Lucio P. Munoz, appellant.
___ N.W.2d ___
Filed May 10, 2019. No. S-18-050.
1. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
2. Effectiveness of Counsel: Appeal and Error. Assignments of error on
direct appeal regarding ineffective assistance of trial counsel must spe-
cifically allege deficient performance.
3. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal
is a question of law. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to 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.
5. Appeal and Error. In the absence of plain error, where an issue is
raised for the first time in an appellate court, it will be disregarded inas-
much as a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition.
6. Trial: Prosecuting Attorneys. When considering a claim of prosecuto-
rial misconduct, an appellate court first considers whether the prosecu-
tor’s acts constitute misconduct.
7. ____: ____. A prosecutor is entitled to draw inferences from the evi-
dence in presenting his or her case, and such inferences generally do not
amount to prosecutorial misconduct.
- 70 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
8. ____: ____. A prosecutor’s conduct that does not mislead and unduly
influence the jury is not misconduct.
9. Rules of Evidence: Intent. The purpose of Neb. Rev. Stat. § 27-513(2)
(Reissue 2016) is to prevent the jury from drawing an unfavorable infer-
ence from a witness’ assertion of a privilege.
10. 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.
11. 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. The determining factor is
whether the record is sufficient to adequately review the question.
12. ____: ____: ____. 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.
13. Effectiveness of Counsel: Proof. 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.
14. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
15. Effectiveness of Counsel: Proof: Words and Phrases. 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. A rea­sonable probability is a probability sufficient
to undermine confidence in the outcome.
16. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
Error. Determining whether defense counsel was ineffective in failing
to object to prosecutorial misconduct requires an appellate court to first
determine whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
17. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
- 71 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
19. Criminal Law: Evidence. The State is allowed to present a coherent
picture of the facts of the crimes charged, and it may generally choose
its evidence in so doing.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Kelly S. Breen, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal from criminal convictions, Lucio P.
Munoz focuses on three incidents at trial: (1) a comment dur-
ing the prosecutor’s opening statement about evidence not
found, (2) a witness’ assertion of a testimonial privilege in
the jury’s presence, and (3) expert testimony regarding blood
spatter evidence. Because trial counsel did not object, Munoz
alleges plain error and ineffective assistance of counsel. We
find neither. The prosecutor’s statement was consistent with the
evidence. The bill of exceptions does not show that the prose-
cutor knew the witness would assert a privilege. And the blood
spatter evidence was neither irrelevant nor unfairly prejudicial.
We affirm the district court’s judgment.
II. BACKGROUND
On Friday, December 30, 2016, at approximately 10 p.m.,
Munoz knocked on Trudy Ziegler’s door. He told her that his
girlfriend, Melissa May, had been raped that morning by a
tenant of the same apartment complex where they all lived.
- 72 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
Ziegler told Munoz to call the police, and he did so from
her apartment.
Just after 11 p.m., two police officers arrived at the apart-
ment complex. Their body cameras recorded the interaction.
Munoz told the officers that May had been raped. He allowed
the officers into his apartment, where an intoxicated May was
asleep on Munoz’ bed. After Munoz woke her, May told the
officers that she did not know why they had been called and
Munoz told her to “tell them the truth.” May did not wish to
make a police report. One of the officers told Munoz that when
May was sober, she could come talk to the police. Munoz
replied that she was not going to do so. He added, “But some-
thing’s gonna happen, I know.”
An upset Munoz returned to Ziegler’s apartment and said
that May did not want to press charges. He asked “what do I do
now,” and Ziegler told him “just love her all the more.”
At approximately 2 a.m. on December 31, 2016, Munoz
called his son, Martin Brady. Munoz told Brady that he “did
something . . . bad” and that he wanted to kill himself. Brady’s
girlfriend called the police to check on Munoz.
The same two officers returned to Munoz’ apartment shortly
after 3 a.m. Again, their body cameras recorded the interaction.
Munoz said that he was feeling bad “because of what hap-
pened.” He allowed the officers into his apartment. The door
to his bedroom was closed, and he told the officers that his
girlfriend had gone home. Munoz agreed to go to a hospital to
speak with someone. He locked the deadbolt on his apartment
door, and one of the officers drove him to the hospital.
At approximately 8 a.m., Brady received a call from a doc-
tor for Munoz “to get out of the . . . hospital.” Brady and his
girlfriend picked up Munoz and took him to Brady’s house.
Munoz stayed at Brady’s house the rest of the morning, and at
some point, arrangements were made for Munoz to leave town.
Brady explained that Munoz had talked about seeing family
because it had “been awhile” and that Munoz had brothers in
Texas and Illinois.
- 73 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
A friend of Munoz agreed to take Munoz to Illinois to visit
one of his brothers. The friend asked if Munoz wanted to travel
the next day, but Munoz said he wanted a ride as soon as pos-
sible. So, the friend testified, they “gassed up, and headed out.”
According to the friend, Munoz had no luggage or other items
and he left Munoz in Illinois with Munoz’ brother.
Meanwhile, Ziegler did not see Munoz or May on Saturday,
which she said was unusual. On Sunday and Monday, Ziegler
knocked on Munoz’ door, but there was no answer. On Tuesday,
January 3, 2017, Ziegler asked the property manager to check
on May. Using a master key to unlock the deadbolt, the prop-
erty manager entered Munoz’ apartment. She opened the bed-
room door and discovered May, deceased, on the bed.
An autopsy revealed that May had suffered 37 stab wounds,
and the cause of death was determined to be multiple stab
wounds. The turquoise sweatshirt on May’s body appeared to
match her top as depicted on the December 30, 2016, body
camera footage. Evidence for a sexual assault kit was col-
lected, and it showed no DNA profile other than that of May.
Munoz’ brother in Texas began searching for Munoz due to
a concern that “something had happened . . . where he live[s].”
After making telephone calls, he discovered that Munoz was in
Illinois. Munoz asked his brother to forgive him, but did not
say for what. During later conversations, Munoz “said that he
was going to die in prison.”
Officers with the Scotts Bluff County sheriff’s office flew
to Illinois to transport Munoz back to Scotts Bluff County.
As they were going through the airport to catch a connect-
ing flight, they heard someone playing a piano and Munoz
said “they are playing my death song” and “I’m going to
get the death penalty.” While waiting for a flight, Munoz
asked the other officer questions about Nebraska’s death
penalty, including “if it was voted back in” and the method
of execution.
The State charged Munoz with first degree murder and
use of a deadly weapon to commit a felony, and the court
- 74 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
conducted a jury trial. Additional background concerning
events occurring during trial will be set forth in the analy-
sis section.
The jury returned verdicts of guilty on both counts. The
court imposed a sentence of life imprisonment for the murder
conviction and of 20 to 40 years’ imprisonment for the use of a
weapon conviction. This timely appeal followed.
III. ASSIGNMENTS OF ERROR
Munoz’ five assignments of error fall into two general cat-
egories. He asserts as plain error that prosecutorial misconduct
occurred during opening statements and that the court erred by
permitting Brady to invoke his Fifth Amendment privilege in
the presence of the jury.
Munoz assigns that his trial counsel provided ineffective
assistance by failing to object to the prosecutor’s opening
statement, failing to demand compliance with Neb. Evid. R.
513(2), Neb. Rev. Stat. § 27-513(2) (Reissue 2016), and failing
to challenge blood spatter evidence.
[1,2] The argument section of Munoz’ brief contains a
subsection concerning additional instances of alleged ineffec-
tive assistance of counsel, but these issues were not assigned
as error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error to be considered by an appellate court.1 Moreover,
assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient
performance.2 We do not consider these additional unas-
signed matters.
IV. STANDARD OF REVIEW
[3] An appellate court may find plain error on appeal when
an error unasserted or uncomplained of at trial, but plainly
1
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
2
See State v. Mrza, 302 Neb. 931, ___ N.W.2d ___ (2019).
- 75 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.3
[4] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance.4
V. ANALYSIS
1. Plain Error
[5] Munoz presents two issues as a matter of plain error,
because he did not object or otherwise preserve the issue for
appellate review. In the absence of plain error, where an issue
is raised for the first time in an appellate court, it will be
disregarded inasmuch as a lower court cannot commit error
in resolving an issue never presented and submitted to it for
disposition.5
(a) Prosecutorial Misconduct
Munoz contends that the following remarks by the prosecu-
tor during his opening statement amounted to prosecutorial
misconduct:
There is some DNA evidence in this case and I think
I told some of you that the last trial we had. The murder
weapon was not found. His clothing with . . . May’s blood
was not found. Of course, we have about [a] four hour
time gap from the time the police were first there and the
time — the second they were there. And, the clothes he
3
Id.
4
Id.
5
State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).
- 76 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
has when he is arrested in Illinois and are sent back here
are not the clothes he left with. Those were changed.
Munoz claims the above statements are problematic, because
there was no evidence that Munoz hid or destroyed “blood”
evidence or that May’s blood was found on any article of
clothing belonging to Munoz.
We begin with the observation that the jury was informed
that opening statements are not evidence. The prosecutor told
the jury, “This is opening statement, what we say right now is
not evidence.” And although the court’s preliminary instruc-
tions were not memorialized in the record, Munoz’ coun-
sel stated:
As [the judge] indicated in the preliminary instruction
that he gave to you, we talked about opening statements.
He indicated that the statements that the attorneys get to
make at this time should not be considered as evidence.
So anything that [the prosecutor] told you just a few min-
utes ago should not be considered as evidence and don’t
consider anything that I’m going to tell you is evidence
as well.
[6-8] When considering a claim of prosecutorial miscon-
duct, an appellate court first considers whether the pros-
ecutor’s acts constitute misconduct.6 A prosecutor is enti-
tled to draw inferences from the evidence in presenting his
or her case, and such inferences generally do not amount
to prosecutorial misconduct.7 And a prosecutor’s conduct
that does not mislead and unduly influence the jury is not
misconduct.8
The prosecutor’s opening statement did not constitute pros-
ecutorial misconduct. The evidence at trial was consistent
with the prosecutor’s opening statement: Neither the murder
6
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
7
State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
8
State v. Swindle, supra note 6.
- 77 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
weapon nor any of Munoz’ clothing containing May’s blood
was found, and Munoz was wearing different clothing at the
time of his arrest than the clothing he was wearing when he
left town. Because there was no prosecutorial misconduct, it
follows that there can be no plain error.
(b) Assertion of Privilege
Munoz also claims that plain error occurred when Brady
invoked his Fifth Amendment privilege in the jury’s presence.
After Brady identified Munoz in the courtroom, the following
colloquy occurred:
[Prosecutor:] Okay. Do you then recall having a con-
versation with him in the early [sic] December 31st
of 2016?
[Brady:] I would like to invoke my Fifth Amendment
rights.
[Prosecutor]: Okay. Judge, I’m going to go ahead and
offer immunity.
THE COURT: All right. Sir, the County Attorney has
heard your exercise of your Fifth Amendment rights under
the United States Constitution. Under Nebraska law if the
County Attorney indicates that immunity will be granted
you for anything you may say here in the courtroom, you
are required to testify. So notwithstanding your exercise
of your Fifth Amendment rights, because the County
Attorney has extended you immunity, I’m ordering you to
go ahead and answer his questions.
[Brady]: Okay.
Brady then proceeded to answer all questions posed to him.
[9] Munoz argues that plain error occurred when Brady was
permitted to invoke his Fifth Amendment privilege in the pres-
ence of the jury. He relies on § 27-513(2), which states that
“[i]n jury cases, proceedings shall be conducted, to the extent
practicable, so as to facilitate the making of claims of privi-
lege without the knowledge of the jury.” We have explained
- 78 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
that the purpose of § 27-513(2) is to prevent the jury from
drawing an unfavorable inference from a witness’ assertion of
a privilege.9
We recently addressed the invocation of a privilege in the
jury’s presence, but the circumstances here are distinguishable.
In State v. Draper,10 the trial court permitted the defendant’s
wife to assert her privilege against self-incrimination in the
presence of the jury. We stated: “[A]ll parties knew that she
would, before being granted immunity, invoke her privilege
against self-incrimination. And the record fails to establish
any basis justifying the assertion of that privilege in front
of the jury.”11 In contrast, the bill of exceptions here does
not indicate that any party or the court knew in advance that
Brady would invoke his Fifth Amendment privilege against
self-incrimination.
Under the circumstances here, error is not plainly evident
from the record. Munoz argues: “Clearly the prosecutor antici-
pated that Brady would invoke his 5th Amendment right not
to testify during his direct examination. Otherwise he would
not have been prepared to immediately offer the witness
immunity.”12 But it is just as conceivable that the criminal
investigation had revealed Brady’s involvement was minimal
and not worthy of prosecution, such that the prosecutor had
no hesitation about offering immunity.13 The bill of excep-
tions does not contain evidence showing that the parties or the
court knew Brady would invoke his privilege. And, after being
given immunity, Brady testified and was subject to cross-
examination. We find no plain error.
9
See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
10
Id.
11
Id. at 789, 857 N.W.2d at 344.
12
Brief for appellant at 13.
13
See Neb. Rev. Stat. § 29-2011.02 (Reissue 2016).
- 79 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
2. Ineffective Assistance
of Counsel
Munoz’ other assignments of error allege that his trial coun-
sel provided ineffective assistance. After setting forth general
principles, we consider the specific allegations of ineffective
assistance.
(a) General Principles
[10-12] Munoz has different counsel on 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 performance which
is known to the defendant or is apparent from the record,
otherwise, the issue will be procedurally barred in a subse-
quent postconviction proceeding.14 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 fac-
tor is whether the record is sufficient to adequately review the
question.15 The record is sufficient if it establishes either that
trial counsel’s performance was not deficient, that the appel-
lant will not be able to establish prejudice, or that trial coun-
sel’s actions could not be justified as a part of any plausible
trial strategy.16
[13-15] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland v. Washington,17 the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
14
State v. Mrza, supra note 2.
15
Id.
16
See State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved
on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865
(2018).
17
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
- 80 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
defendant’s defense.18 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.19 To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.20
(b) Opening Statement
[16] Munoz argues that his trial counsel was ineffective
in failing to object to the prosecutor’s opening statement.
Determining whether defense counsel was ineffective in fail-
ing to object to prosecutorial misconduct requires an appellate
court to first determine whether the petitioner has alleged any
action or remarks that constituted prosecutorial misconduct.21
As we determined above, the prosecutor’s opening statement
did not amount to prosecutorial misconduct. Because there
was no basis to object, Munoz’ counsel did not perform defi-
ciently in failing to object.
(c) Failing to Demand Compliance
With § 27-513
Munoz next contends that counsel was ineffective for failing
to demand compliance with § 27-513. As noted above, the bill
of exceptions does not reveal that any party knew Brady would
assert his Fifth Amendment privilege, and Munoz does not cite
to any evidence that such knowledge existed.
Even if it were known that Brady would invoke the Fifth
Amendment, Munoz cannot show prejudice due to counsel’s
18
State v. Mrza, supra note 2.
19
Id.
20
Id.
21
State v. Taylor, supra note 7.
- 81 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
failure to object and demand compliance with § 27-513. There
is no indication that by calling Brady as a witness, the prosecu-
tor was trying to build a case out of inferences from use of a
testimonial privilege. Further, we are not presented with the
situation where “‘inferences from a witness’ refusal to answer
added critical weight to the prosecution’s case in a form not
subject to cross-examination.’”22 Because Brady testified and
was subject to cross-examination, Munoz cannot demonstrate a
reasonable probability that the result of the proceeding would
have been different if Brady had invoked the privilege outside
of the jury’s presence.
(d) Blood Spatter Evidence
Finally, Munoz argues that his trial counsel was ineffective
by failing to challenge blood spatter evidence as irrelevant and
unfairly prejudicial. We disagree.
The State’s blood spatter expert visited the scene and docu-
mented bloodstain patterns. Based on the blood evidence,
the expert gave “brief snapshots of what happened at differ-
ent times”:
So there were some impact patterns and castoff near the
head of the bed and it’s my opinion that the victim was
laying there wrapped up in a blanket on top of the blan-
kets underneath her, basically, the black plaid blankets
and the blankets underneath when this attack started.
There were enough spatter patterns to indicate that some
liquid blood had been shed while she was in that posi-
tion, and that something impacted into it. I wasn’t able
to determine what. Sometime during the attack she had
turned around toward with her head toward the foot
of the bed, her feet toward the head of the bed. And,
after she was stabbed she had somehow was laying, as
I mentioned before, laying head first on top of the white
22
State v. Draper, supra note 9, 289 Neb. at 786, 857 N.W.2d at 342.
- 82 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
comforter, her left arm down creating that pooling off of
the side of the bed. Based on the position of her right arm
and based on the lack of blood around her right arm, . . .
it’s my opinion that somebody took her right arm and
pulled her back up onto the bed. I don’t know if she was
alive at that time, it’s possible. If she was in that final
position when the spatter around her was created, which
led me to believe it’s probably expectorate, but could,
also, be spatter patterns from something impacting the
liquid blood on her. When she was in this final position
somebody covered her up within five to 30 minutes after
her blood was deposited based on the (inaudible) on her
hip. Somebody with blood on them, and I can’t say how
much, but some liquid blood on them moved around to
the foot of that bed creating those transfer patterns. And,
after it was all done, whoever it was, walked into the
bathroom, probably washed off their hands, washed off
the weapon, creating the diluted blood around the rim
of the sink.
Munoz first argues that the evidence was irrelevant. Evidence
which is not relevant is inadmissible.23 Munoz highlights that
the blood spatter expert did not identify any evidentiary link
between the blood evidence and any particular suspect nor any
particular object associated with a suspect.
[17] Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence.”24 Relevancy requires only that the
probative value be something more than nothing.25
The blood spatter evidence satisfied the low bar for estab-
lishing relevancy. It showed the brutal nature of May’s death,
23
Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016).
24
Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016).
25
State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).
- 83 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
which was consistent with the State’s theory that Munoz
believed May was “cheating on” him and “react[ed] violently.”
This alone satisfies the minimal requirement that the proba-
tive value of the evidence be something more than nothing.
Because a relevancy objection would have been futile, coun-
sel did not perform deficiently by failing to object on rele­
vancy grounds.
Munoz also claims that the blood spatter evidence was
unfairly prejudicial. He points out that the blood spatter expert
provided testimony regarding photographs that she used in her
report. Munoz claims that the direct examination of the expert
“was merely an opportunity for the State to overly empha-
size the horrific and brutal nature of an unidentified assail-
ant’s attack.”26
[18] Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice. Unfair prejudice means an undue tendency
to suggest a decision based on an improper basis.27 It speaks
to the capacity of some concededly relevant evidence to lure
the fact finder into declaring guilt on a ground different from
proof specific to the offense charged, commonly on an emo-
tional basis.28
[19] Gruesome crimes produce gruesome photographs and
evidence.29 But the State is allowed to present a coherent pic-
ture of the facts of the crimes charged, and it may generally
choose its evidence in so doing.30 Using the blood evidence
found at the crime scene, the blood spatter expert helped
explain what happened during the attack on May. Although
26
Brief for appellant at 15.
27
State v. Brown, supra note 25.
28
Id.
29
See State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).
30
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
- 84 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MUNOZ
Cite as 303 Neb. 69
the expert could not identify May’s killer, we do not believe
that the district court would have excluded the evidence on the
basis that the probative value of the expert’s testimony was
substantially outweighed by the danger of unfair prejudice.
Accordingly, Munoz’ trial counsel did not perform deficiently
by failing to object.
VI. CONCLUSION
We find no plain error with regard to the prosecutor’s open-
ing statement or the invocation of Fifth Amendment privilege
in the jury’s presence. With regard to Munoz’ claims of inef-
fective assistance of trial counsel, we conclude that the record
on appeal shows the claims to be without merit. We therefore
affirm the judgment of the district court.
A ffirmed.