State v. Burries , 297 Neb. 367 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/11/2017 09:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. BURRIES
Cite as 297 Neb. 367State of Nebraska, appellee, v.
A nthony L. Burries, appellant.
___ N.W.2d ___
Filed August 4, 2017. No. S-15-1008.
1. Appeal and Error. An appellate court independently decides questions
of law presented on appeal.
2. Constitutional Law: Self-Incrimination: Appeal and Error. Whether
a defendant voluntarily made a statement while in custody and whether
a defendant unambiguously invoked his or her right to remain silent or
to have counsel present are mixed questions of law and fact. An appel-
late court reviews a trial court’s finding of historical facts for clear error
and independently determines whether those facts satisfy the constitu-
tional standards.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining 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. ____: ____. An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on relevance, whether the probative value of
evidence is substantially outweighed by the danger of unfair prejudice,
and the sufficiency of a party’s foundation for admitting evidence.
6. Rules of Evidence: Other Acts. An appellate court reviews for abuse
of discretion a trial court’s evidentiary rulings on the admissibility of a
defendant’s other crimes or bad acts under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably inter-
twined exception to the rule.
7. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
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Cite as 297 Neb. 367unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
8. 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 a proponent’s evidence is a question of law, subject
to de novo review.
9. Rules of Evidence: Hearsay. Hearsay is not admissible except as pro-
vided by the Nebraska Evidence Rules.
10. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
11. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
12. Effectiveness of Counsel: Appeal and Error. An appellate court
determines as a matter of law whether the record conclusively shows
that (1) a defense counsel’s performance was deficient or (2) a defend­
ant was or was not prejudiced by a defense counsel’s alleged defi-
cient performance.
13. Constitutional Law: Miranda Rights. The warnings required by
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966), are an absolute prerequisite to interrogation and fundamental
with respect to the Fifth Amendment privilege.
14. Miranda Rights: Waiver: Proof. If a defendant seeks suppression of
a statement because of an alleged violation of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the State must prove
that the defendant validly waived his or her Miranda rights by a prepon-
derance of the evidence.
15. Miranda Rights: Waiver: Appeal and Error. An appellate court looks
to the totality of the circumstances to determine whether a defendant
validly waived his or her rights under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). A valid waiver must be made
knowingly and voluntarily, in the sense that it was the product of a free
and deliberate choice and made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to
abandon it. Factors to be considered include the suspect’s age, educa-
tion, intelligence, prior contact with authorities, and conduct.
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STATE v. BURRIES
Cite as 297 Neb. 36716. Miranda Rights: Police Officers and Sheriffs. Law enforcement offi-
cers are not required to rewarn suspects from time to time of their
rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966). The Miranda rule and its requirements are met
if a suspect receives adequate Miranda warnings, understands them,
and has an opportunity to invoke the rights before giving any answers
or admissions.
17. Miranda Rights. The precise advisement language set out in Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is
not mandatory.
18. Right to Counsel: Waiver. The key inquiry in determining whether a
defendant waived his or her right to counsel during an interrogation is
whether the defendant was made sufficiently aware of his or her right to
have counsel present during the questioning, and of the possible conse-
quences of a decision to forgo the aid of counsel.
19. Self-Incrimination: Right to Counsel: Waiver: Proof. Although an
express written or oral statement of waiver of the right to remain silent
or the right to counsel is usually strong proof of the validity of the
waiver, it is not dispositive.
20. Effectiveness of Counsel. A defense counsel is not ineffective for fail-
ing to raise an argument that has no merit.
21. 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 actually prejudiced the defendant’s defense.
An appellate court may address the two prongs of this test, deficient
performance and prejudice, in either order.
22. Effectiveness of Counsel: Proof. To show prejudice under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
23. DNA Testing: Evidence. The relevance of DNA evidence depends on
its tendency to include or exclude an individual as the source of a bio-
logical sample.
24. Expert Witnesses. A court should exclude an expert’s opinion when
it gives rise to two conflicting inferences of equal probability, so the
choice between them is a matter of conjecture.
25. Rules of Evidence: Expert Witnesses: DNA Testing. A DNA expert’s
testimony that there may have been a minor contributor’s DNA in a bio-
logical sample is irrelevant evidence because it is not probative of the
source of the DNA.
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STATE v. BURRIES
Cite as 297 Neb. 36726. Trial: DNA Testing: Evidence. A DNA expert’s inconclusive results
that a defendant cannot be excluded as a minor contributor to a biologi-
cal sample allows the jury to speculate that the defendant might have
been the minor contributor when the expert fails to provide any statisti-
cal relevance for the detected alleles in relationship to the defendant’s
DNA profile.
27. ____: ____: ____. The value of inconclusive DNA testing results is
substantially outweighed by the danger that the evidence will mislead
the jurors absent statistical evidence that will help them to assess
whether a defendant is or is not the source of DNA found in a biologi-
cal sample.
28. Postconviction: Effectiveness of Counsel: Appeal and Error. When
a defendant’s appellate counsel is not the defendant’s trial counsel, the
defendant must raise on direct appeal any claim that the trial counsel
provided ineffective assistance, if the issue is known to the defendant or
apparent from the record, in order to avoid a procedural bar to raising
the claim later in a postconviction proceeding.
29. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must
make specific allegations of the conduct that he or she claims constitutes
deficient performance by a trial counsel when raising an ineffective
assistance claim on direct appeal.
30. Trial: 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 fac-
tor is whether the record is sufficient to adequately review the question.
An ineffective assistance of counsel claim will not be addressed on
direct appeal if it requires an evidentiary hearing.
31. Effectiveness of Counsel: Records: Appeal and Error. An appellate
court will address a claim on direct appeal that a defendant’s trial coun-
sel was ineffective only if the record is sufficient to adequately review
the question.
32. Rules of Evidence: Other Acts. The list of permissible purposes under
Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), is
not exhaustive.
33. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2016), does not apply to evidence of a defendant’s other crimes or bad
acts if the evidence is inextricably intertwined with the charged crime.
34. ____: ____. Inextricably intertwined evidence includes evidence that
forms part of the factual setting of the crime, or evidence that is so
blended or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or bad acts, or if
the other crimes or bad acts are necessary for the prosecution to present
a coherent picture of the charged crime.
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STATE v. BURRIES
Cite as 297 Neb. 36735. Homicide: Rules of Evidence: Other Acts: Time. Evidence of a
murder defendant’s previous threat to the victim or statement to others
showing a desire to harm or kill the victim are facts that are inextricably
intertwined with the charged murder if the defendant made the threat or
statement fairly close in time to the murder.
36. Criminal Law: Witnesses. A defendant’s attempted intimidation or
intimidation of a State’s witness is evidence of the defendant’s conscious
guilt that a crime has been committed and serves as a basis for an infer-
ence that the defendant is guilty of the crime charged.
37. Rules of Evidence: Other Acts: Proof. Pursuant to Neb. Evid. R.
404(3), Neb. Rev. Stat. § 27-404(3) (Reissue 2016), before the prosecu-
tion can offer evidence of a criminal defendant’s extrinsic acts under
rule 404(2), it must first prove to the trial court, by clear and convincing
evidence and outside the jury’s presence, that the defendant committed
the act.
38. ____: ____: ____. Upon objection to evidence offered under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), the proponent
must state on the record the specific purpose or purposes for which the
evidence is being offered, and the trial court must similarly state the
purpose or purposes for which it is receiving the evidence. A trial court
must then consider whether the evidence is independently relevant,
which means that its relevance does not depend upon its tendency to
show propensity.
39. Rules of Evidence: Other Acts. Evidence offered under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), is subject to the
overriding protection of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403(Reissue 2016), which requires a trial court to consider whether the pro-
bative value of the evidence is substantially outweighed by the danger
of unfair prejudice.
40. Trial: Rules of Evidence: Other Acts: Juries. When requested, the
trial court must instruct the jury on the specific purpose or purposes for
which it is admitting the extrinsic acts evidence under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), to focus the jurors’
attention on that purpose and ensure that it does not consider it for an
improper purpose.
41. Trial: Rules of Evidence: Other Acts: Appeal and Error. A pro-
ponent’s clear explanation for evidence offered under Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), ensures that a trial
court has an opportunity to examine the evidence for its independent
relevance and the potential for unfair prejudice. The requirement that
the trial court state on the record the purpose or purposes for which such
evidence is received is primarily to ensure that an appellate court can
review the trial court’s ruling.
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STATE v. BURRIES
Cite as 297 Neb. 36742. Rules of Evidence: Proof. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901(Reissue 2016), requires authentication or identification of evidence suf-
ficient to support a finding that a matter is what the proponent claims as
a condition precedent for admission.
43. ____: ____. Authentication or identification under Neb. Evid. R. 901,
Neb. Rev. Stat. § 27-901 (Reissue 2016), is not a high hurdle. A pro-
ponent is not required to conclusively prove the genuineness of the
evidence or to rule out all possibilities inconsistent with authenticity. If
the evidence is sufficient to support a finding that the evidence is what
it purports to be, the rule is satisfied.
44. Circumstantial Evidence. The identity of a participant in a telephone
conversation may be established by circumstantial evidence such as the
circumstances preceding or following the telephone conversation.
45. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered to
prove the truth of the matter asserted.
46. Hearsay. A declarant’s out-of-court statement offered for the truth of the
matter asserted is inadmissible unless it falls within a definitional exclu-
sion or statutory exception.
47. Rules of Evidence: Hearsay. The hearsay exception under Neb. Evid.
R. 803(1), Neb. Rev. Stat. § 27-803(1) (Reissue 2016), for a “statement
relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition,” com-
prises excited utterances.
48. ____: ____. Excited utterances are an exception to the hearsay rule,
because the spontaneity of excited utterances reduces the risk of inac-
curacies inasmuch as the statements are not the result of a declarant’s
conscious effort to make them. The justification for the excited utterance
exception is that circumstances may produce a condition of excitement
which temporarily stills the capacity for reflection and produces utter-
ances free of conscious fabrication.
49. Rules of Evidence: Hearsay: Proof. For a statement to be an excited
utterance, the following criteria must be met: (1) There must be a star-
tling event, (2) the statement must relate to the event, and (3) the declar-
ant must have made the statement while under the stress of the event.
50. Rules of Evidence: Hearsay: Time. An excited utterance may be sub-
sequent to the startling event if there was not time for the exciting influ-
ence to lose its sway. The true test for an excited utterance is not when
the exclamation was made, but whether, under all the circumstances, the
declarant was still speaking under the stress of nervous excitement and
shock caused by the event.
51. Rules of Evidence: Hearsay: Police Officers and Sheriffs. The period
in which the excited utterance exception applies depends on the facts
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STATE v. BURRIES
Cite as 297 Neb. 367of the case. Relevant facts include the declarant’s physical conditions
or manifestation of stress and whether the declarant spoke in response
to questioning. But a declarant’s response to questioning, other than
questioning from a law enforcement officer, may still be an excited
utterance if the context shows that the declarant made the statement
without conscious reflection.
52. Pretrial Procedure: Evidence: Juries. A motion in limine is a proce-
dural step to prevent prejudicial evidence from reaching the jury.
53. Trial: Pretrial Procedure: Evidence: Appeal and Error. When a
motion in limine to exclude evidence is overruled, to preserve error
for appeal, the movant must renew the objection when the particular
evidence which was sought to be excluded by the motion is offered dur-
ing trial.
54. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of
a criminal case, an erroneous evidentiary ruling results in prejudice to a
defendant unless the error was harmless beyond a reasonable doubt.
55. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict. The inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
56. Trial: Evidence. The erroneous admission of evidence is generally
harmless error and does not require reversal if the evidence is cumula-
tive and other relevant evidence, properly admitted, supports the finding
by the trier of fact.
Appeal from the District Court for Douglas County:
J Russell Derr, Judge. Affirmed.
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro,
L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
I. NATURE OF CASE
A jury found the appellant, Anthony L. Burries, guilty of
premeditated first degree murder for killing his girlfriend, Tina
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STATE v. BURRIES
Cite as 297 Neb. 367Hoult. The court sentenced him to life imprisonment. This is
Burries’ direct appeal.
II. BACKGROUND
1. Evidence of Crime
Hoult lived alone in a southwest Omaha apartment. After
she failed to report for her scheduled work shifts on Friday
and Saturday, May 16 and 17, 2014, her employer contacted
law enforcement. On Sunday morning, May 18, police officers
went to her apartment to check on her. A neighbor identified
Hoult’s car in the parking lot and told the officers that he had
not seen Hoult in about 2 days. When she did not respond to
knocks at her door, the maintenance manager unlocked the
deadbolt to her apartment for the officers. None of the apart-
ment doors had locks on the doorknobs. The deadbolts could
only be locked from the inside or by someone using a key
from the outside.
The officers found Hoult’s body slumped over in a chair
with multiple gashes in her skull. She was deceased. They saw
blood on the chair, splattered on the walls, and pooled on the
floor below her head. Her apartment had no signs of a forced
entry or a struggle. No weapons were found in the apartment
that could have inflicted Hoult’s injuries.
An autopsy revealed that Hoult died from at least nine
blows to her head from a heavy instrument with a sharp edge.
She had died at least several hours before she was found,
but the pathologist could not determine the time or date of
her death.
Steffanie Beck was a long-time friend of Hoult who testified
that Burries had been Hoult’s boyfriend, on and off, for 11 to
12 years before her death. He was also romantically involved
with Harmony Howard, who was the mother of his son.
Howard learned about Burries’ relationship with Hoult when
Burries was arrested in December 2012 for assaulting Hoult.
After he was arrested for the assault, he called Howard to tell
her that her car, which he had borrowed, was in the parking
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Cite as 297 Neb. 367lot of Hoult’s apartment complex. One of Burries’ roommates
drove Howard there to get it. As a result, Howard knew the
location of the complex where Hoult lived, but she did not
know which apartment was Hoult’s.
At Burries’ trial, the State submitted cell phone records
showing text messages that Hoult and Burries exchanged from
late Tuesday, May 13, 2014, until the early morning of Friday,
May 16. A little before midnight on Tuesday, Burries began
texting Hoult stating that he wanted to come to her apart-
ment. Hoult responded that he should stay where he was and
expressed dissatisfaction with their relationship. Burries’ texts
expressed his frustration with Hoult. This texting stopped at
about 1:45 a.m. on Wednesday.
On Wednesday evening, May 14, 2014, Howard drove
Burries to a bar close to Hoult’s apartment where Hoult and
other residents at the apartment complex would often socialize.
When Burries returned after 10 to 15 minutes, Howard said
he seemed agitated and she drove him home. Late Wednesday
night, Burries began texting Hoult again. She responded that
her cell phone was not working properly and that she was
going to bed.
On Thursday, May 15, 2014, beginning about 6 a.m., Burries
texted Hoult multiple times that he was coming over for sex.
Hoult repeatedly responded that she was not interested and to
leave her alone. He accused her of being with other men and
lying about being at work. She responded that she was tired of
him trying to control her and threatening her. She specifically
stated that he should not have threatened to torture her or say
that she “owe[d him] a limb.” She wrote that she did not feel
safe around him. Burries responded that she had caused his
conduct by being disrespectful: “[L]ook at everything you’ve
been doing lately just disrespect after another. All intentional
and you think i’m not going to be mad. . . . You caused all of
this and you ain’t getting away with it. . . . You lucky I haven’t
fucked you up fur all this shit.” When he said he could easily
come to her apartment, she responded that she did not want
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Cite as 297 Neb. 367him to; she wanted him to leave her alone. The text messages
stopped Thursday morning.
Around 10:30 or 11 p.m. on Thursday, May 15, 2014,
Burries called Howard to borrow her car. She went and picked
him up, and he dropped her off at her house before going to a
bar. She said that he was wearing a striped shirt over a black
tank top, jeans, and white athletic shoes.
About 11:30 p.m. on Thursday, Hoult went to visit Adrian
Hogan, who was a resident at Hoult’s apartment complex.
Hogan said that Hoult left his apartment about 1:30 a.m.
on Friday.
At about 3:20 a.m. on Friday, May 16, 2014, Burries texted
Hoult that he needed to see her and that he knew she was
home. At 3:25 a.m., he sent another text message that if her
cell phone was not working, he would just show up. Hoult
opened these messages but did not respond.
Howard came to Burries’ house about 3:30 a.m. on Friday.
When she arrived, Burries approached her car in his driveway
and told Howard to take him to the intersection that was close
to Hoult’s apartment complex. Howard said she was fright-
ened by a look Burries gets in his eyes: “[I]t’s like a blank
look. It’s almost like looking in the eyes of the devil.” She
drove him to the requested intersection.
When they got to the intersection, Burries told Howard that
he needed to talk to Hoult. Howard drove to Hoult’s apartment
complex, and Burries directed her to Hoult’s apartment. She
waited in her car for 2 to 5 minutes while Burries went inside.
She estimated that she dropped Burries off at Hoult’s apart-
ment between 3:30 to 4 a.m. Cell phone records showed that
at 3:34 a.m., Hoult received two text messages from Burries
and that she opened them. At 3:40 a.m., Hoult texted Burries
that he should be sleeping. That was the last text message she
sent. Burries’ cell phone did not receive this message until
5:54 a.m.
When Burries returned to Howard’s car, he told her to
“‘[d]rive,’” in an “[a]ngry, firm” tone. Howard said that she
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Cite as 297 Neb. 367was afraid because he was yelling at her not to look at him and
not to pull up next to anyone. She did not see anything in his
hands, but she believed that the car’s dome light was off. She
said that he had grabbed his cream-colored coat from the back
seat and laid the coat over his lap.
Burries had Howard drive past his house and eventually told
her to stop in front of a randomly chosen house which was
close to a bridge in south Omaha. He was screaming at Howard
that she was the only person who knew that he was “there,”
which she understood to mean at Hoult’s apartment, and that
she would be an accessory if she told anyone. Howard said that
she was not concerned then about what he might have done
to Hoult, because she was afraid of what he might do to her.
He instructed her to drive across the bridge. While they were
crossing the bridge, he rolled down the passenger window and
threw something out. Howard did not see what he threw out
because he told her not to look at him. Howard then dropped
Burries off at his house. It was almost 5 a.m. when Howard
returned to her home.
As stated, Burries’ cell phone did not receive Hoult’s last
text message until 5:54 a.m. on Friday. The testimony of
an investigator who performed digital forensics for the State
showed that if a person puts his or her cell phone into airplane
mode or turns it off, it will not receive a text message during
this period. The cell phone records showed that approximately
4 minutes after receiving Hoult’s last text message, Burries
responded. He asked why she had not answered his messages.
He said that he had done what she asked and burned all the
clothes that reminded her of “that night” in the fireplace and
that he wanted to move on. He repeated that he wanted to come
over and accused her of playing games by ignoring his text
messages. His periodic text messages to Hoult continued until
9 p.m. on Friday. None were opened.
Between 4 and 5 a.m. on Friday, Burries also contacted
Melissa Eledge, whom he had been seeing and asked her to
pick him up. Eledge arrived at Burries’ house before 6 a.m.
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Cite as 297 Neb. 367She said that Burries was intoxicated and asked her to take him
to his brother’s house. He was carrying a gray or black bag.
Eledge waited in the car while Burries went inside his brother’s
house for 5 to 10 minutes. When he returned, he asked Eledge
to take him to a tire store. When they arrived, Burries took
the bag and went to a house next to the tire store. He did not
explain his actions to Eledge.
After that stop, Eledge took Burries back to his house.
During the drive, Burries told Eledge that he was texting an
old girlfriend named “Tina Hoult.” He told Eledge that Hoult
was mad at him for wearing the same clothes that he had worn
when he went to jail and that she wanted him to get rid of
them. When they arrived at Burries’ home, Eledge believed
that she could smell something that had been burned inside.
After Eledge’s memory was refreshed, she testified that she
had asked Burries about the smell and that he had told her he
had been “‘burning stuff’” before she arrived.
One of Burries’ roommates, Eric Paine, testified that on
Friday morning when he woke up, he saw embers from a fire
in the fireplace and noticed a heavy smoke smell in the house.
Paine said that Burries called him from Howard’s house some-
time in the early afternoon on Saturday, May 17, 2014. Burries
asked him to buy him some items from a store. When Paine
arrived at Howard’s house, Burries was cleaning a boat with
Howard’s father and asked Paine to pick up two bottles of
ammonia for cleaning.
Burries texted Eledge on Saturday between 1 and 2 p.m. to
tell her that he was going to Iowa. About 2:30 p.m., he arrived
at the house where Eledge was. He brought cleaning supplies
and carpet shampoo with him for cleaning out the car he was
driving. Unknown to Eledge, Burries had arrived in Howard’s
car. He and Eledge cleaned Howard’s car for about an hour.
About 3 to 4 p.m. on Sunday, May 18, 2014, Burries told
Eledge he was going fishing with friends and left.
Sunday evening, Howard called Burries to ask when he
would be returning her car. Burries told her that Hoult had
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Cite as 297 Neb. 367been found “fucked up in her apartment” and that he was
going to call the detectives to “clear his name.” He returned
her car a couple of minutes later. Police officers arrived at
Howard’s house shortly thereafter and seized the car.
Also on Sunday evening, investigators arrived at Burries’
residence, but he was not home. Around midnight, Burries
called Paine while investigators were at the house and asked
to speak to a police officer. Burries told the officer that he
was getting an attorney and planned to come in the next
day. Officers noticed that the fireplace had been cleaned
out recently, and Paine told them that he had not done it.
Investigators searched a bag of ash they found in the trash but
did not find any clothing remnants.
On the morning of May 19, 2014, Burries came to Eledge’s
home. While there, he told her that he needed to get out of
town. He seemed “frazzled,” and kept saying that “[i]t was
bad” and he needed to get out of town. He told Eledge that
he was going to St. Louis and asked if she would at least take
him to Kansas City. Shortly thereafter, they left her house and
traveled to “St. Joe.” During the trip, Burries had two cell
phones with him and would power them off when he was not
using them.
2. Burries’ Statements to
Police Investigators
A Missouri state trooper arrested Burries in Missouri at
about 5 p.m. on Monday. Two Nebraska investigators traveled
to Missouri to interview him. After Det. Larry Cahill, with the
Omaha Police Department, advised Burries of his Miranda1
rights, he asked if knowing these rights, Burries was will-
ing to talk to the officers. Burries said, “Within limitations,
I’ll talk to you.” During the investigation, Burries stated
that he and Hoult had hit each other during their fights and
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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to November 2013. He admitted that Hoult had given him
a key to her apartment. He admitted to burning his clothes
between 3 and 5 a.m. on Friday. He stated that at Hoult’s
request, he had burned his jeans, a cream-colored jacket, and
a black hoodie in his fireplace. But when Cahill informed
Burries that investigators had learned from Howard that he
was at Hoult’s apartment when she was murdered and that he
had told Howard not to talk about it, Burries cut off the inter-
view until he had an attorney.
3. Pretrial Proceedings
Before trial, the State filed notice that it intended to present
evidence under Neb. Evid. R. 404.2 It also requested a pretrial
hearing to determine the voluntariness of Burries’ statements
to investigators. Burries moved in limine to exclude the
evidence that the State wanted to present. He argued it was
inadmissible on grounds of foundation, relevance, hearsay,
or prejudice.
For the voluntariness portion of the hearing, the court admit-
ted the audio recording of the investigator’s interview of
Burries in Missouri. The court later ruled in a written order that
the statement was admissible.
Regarding the State’s rule 404 motion, the State argued that
it intended to prove Burries had assaulted Hoult in December
2012, had served a year of imprisonment for the crime, and
had harmed or threatened Hoult since 2012. For the hearing,
the court admitted a copy of the complaint, conviction, and
sentencing order for the 2012 assault, which evidence showed
Burries was convicted of assaulting Hoult and was sentenced
to 2 years’ imprisonment. In addition to these documents, the
State intended to present the testimony of witnesses who had
seen Hoult after the 2012 assault. The State also intended to
call “a number of witnesses” to prove “motive, opportunity,
2
See Neb. Rev. Stat. § 27-404 (Reissue 2016).
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not specify the purpose for admitting any witness’ testimony,
and it argued that its evidence “may not be [rule] 404 evidence
but rather really res gestae of the crime.”
In support of its res gestae argument, the prosecutor stated
that Burries had told his roommate that the clothes he burned
on Friday morning were the clothes that still had blood on
them from the last time he assaulted Hoult. The State argued
that because of Burries’ statement, the 2012 assault was res
gestae to the murder crime: “[A]rguably, the clothes he was
burning [were] either bloody clothes from the actual event in
this case or the previous assault.” The State also argued that
the 2012 assault was inextricably intertwined with the murder
charge because very soon after the murder, Burries had told
Cahill that he had burned his clothes. Additionally, the State
intended to present the testimony of witnesses who would say
they had overheard telephone conversations in which Burries
had threatened Hoult before her murder.
After the hearing, the court issued an order in which it
addressed both the State’s rule 404 motion and Burries’ motion
in limine resisting the evidence. The court ultimately accepted
the State’s argument that Burries’ December 2012 assault
of Hoult was inextricably intertwined with her murder in
May 2014:
[T]he events surrounding the December, 2012 incident,
including [Burries’] conviction, are admissible, particu-
larly because there is evidence of the burning of clothes
by [Burries] so close to the time of the murder of . . .
Hoult. The State will argue this was an act of [Burries]
to dispose of the evidence of . . . Hoult’s murder even
though [Burries] argues that the clothes that were burned
were from the 2012 incident. The 2012 incident is an
integral part of the allegations against [Burries] in this
case such that the evidence may “complete the story or
provide a total picture of the charged crime[.]”
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Cite as 297 Neb. 367The court then set out the specific testimony that it would
allow from the State’s witnesses. It rejected Burries’ rele-
vance, hearsay, and foundation challenges to the witnesses’
testimonies.
4. State’s Evidence at Trial of
Burries’ Other Bad Acts
Despite the court’s inextricably intertwined ruling, just
before the State presented evidence at trial, the court again
heard argument as to the State’s evidence of Burries’ other
bad acts. The court ruled that Burries’ attorney could have
a standing objection to the rule 404 evidence that the court
ruled on in its pretrial order. The court rejected Burries’
request to give an instruction limiting the jurors’ consideration
of the evidence to help them decide whether he had a motive
to murder Hoult. The court stated that it was “just going to
read [rule] 404(2), as to evidence of other crimes, wrongs, et
cetera.” The State agreed to this approach, arguing that all of
its intended evidence was relevant to prove “motive, opportu-
nity, intent, preparation, plan, knowledge, identity, or absen[ce
of] mistake or accident.”
One of the court’s approved witnesses was the apart-
ment complex maintenance manager. He stated that in 2010,
Hoult moved into apartment No. 19. He also testified that in
December 2012, Hoult asked him to come to her apartment,
at which time he saw that she had been beaten. Her eyes were
blackened, and he saw blood on her face, arms, and neck. The
manager then changed Hoult’s lock, and later that month, she
moved to apartment No. 142. He said he changed her locks
at least three times before she moved to apartment No. 142.
After the manager’s testimony, in the jury’s presence, the State
submitted exhibit 1, which it described as a copy of Burries’
conviction and sentence for assaulting Hoult on December
1, 2012.
Brian Coburn was Hoult’s neighbor when she lived in
apartment No. 142. He testified that when he first met Hoult
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Cite as 297 Neb. 367in October 2012, she had obviously been beaten up because
her eyes were blackened and swollen. Coburn testified that he
knew Hoult had a boyfriend named “Tony.” About a month
before Hoult’s murder, Coburn was out by the parking lot
with Hoult when a car passed them. Hoult identified the
driver as “Tony,” and then received a call from “Tony.” She
put the call on “speaker,” and Coburn could hear Tony ask-
ing Hoult where she was. Hoult said she was home, and Tony
called her a “‘fucking liar’” and said, “‘I will find you, you
cunt — you f’ing cunt.’” Coburn said Hoult looked a little
nervous but brushed it off. Coburn said that on the Sunday
before Hoult was murdered, Hoult came to his apartment and
asked him to check her apartment because she thought “Tony”
was inside.
Another witness testified that in 2014, he and his wife lived
across the hall from Hoult’s apartment. He testified that when
Hoult was moving into apartment No. 142, he saw her in the
hall and she had a black eye. She told him that the black eye
was the reason she was moving.
Terry Robinson also lived in Hoult’s apartment complex
and met her in the summer of 2013. About the middle of April
2014, he was with Hoult and other neighbors in the outside
commons area when her cell phone rang. She told Robinson
that he could answer it, and he saw the name “Tony” on her
cell phone. A male, whom Robinson believed to be Burries,
asked where Hoult was and said that “he did time once for
[Hoult] and he wasn’t scared to do it again.”
On Monday, May 12, 2014, Robinson and three other people
were with Hoult in her apartment when her cell phone rang.
She told Robinson that the call was from “Tony,” and Robinson
could hear that the male caller was upset. Hoult held the cell
phone so he could listen. “Tony” said that Hoult had “‘better
be [home] when [he] g[o]t there’” and that he had come by
the previous night and she was not home. Robinson said Hoult
“teared up” during this call. He and Hoult’s other guests then
went outside while she was talking. When Hoult joined them,
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threatened to “beat her, revive her, and repeat it.”
As stated, Steffanie Beck was Hoult’s long-time friend and
had worked with Hoult for 4 years before the murder. Beck
had never met Burries, but she knew he was Hoult’s boyfriend.
Beck said that she knew Burries’ voice because he had called
Hoult many times from jail when Beck was present, and Hoult
would hold the cell phone so that Beck could hear him. While
Burries was incarcerated, Beck said she had heard him accuse
Hoult of cheating and threaten to “kill her, tear her face off,
cut her legs off.”
Beck also said that when Burries was going to be released,
Hoult was nervous and planned to leave the state and move
in with her mother. Beck testified that the last time she saw
Hoult was on Thursday afternoon, May 15, 2014, when Beck
was leaving work and Hoult was walking in from the parking
lot. Although it was a hot day, Hoult was wearing a long-
sleeved jacket. Beck thought Hoult was hiding something and
convinced Hoult to take the jacket off. Beck said that Hoult
had bruising on her arms from her elbows to her shoulders but
told Beck it was nothing.
Howard testified that she had received a 4-page handwritten
letter from Burries a few days before giving her trial testimony.
After the court gave its rule 404(2) instruction, it allowed
the prosecutor to read the entire letter verbatim. In the letter,
Burries warned Howard that he would be getting out shortly
and not to “lie” at his trial. He threatened retribution to anyone
who interfered with his ability to rear his children.
5. DNA Evidence
At trial, Mellissa Helligso, a forensic DNA analyst, testified
for the State about her testing of a blood sample from Hoult’s
arm. Helligso testified the testing showed that the blood was
from a single source and that Hoult could not be excluded as
the contributor, because every allele she detected in Hoult’s
DNA profile matched the alleles that she found in the blood
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the DNA molecule at one of the specific segments, or loci,
with known individual variations, which forensic analysts
focus on to determine an individual’s DNA profile.3 The pros-
ecutor also elicited Helligso’s testimony that the DNA test-
ing had produced an allele that could have been a common
“artifact” that the testing produces or it could have come from
another person, but that she could not compare a single allele
to another person’s profile.
Burries’ attorney did not object to the prosecutor’s ques-
tions or the expert’s testimony. On cross-examination, he elic-
ited testimony that the allele could have come from someone
else and that the State’s expert had not analyzed Burries’
DNA profile.
III. ASSIGNMENTS OF ERROR
Burries assigns, restated and renumbered, that the court
erred as follows:
(1) in finding that Burries’ statements to investigators were
voluntary;
(2) in admitting evidence of his 2012 assault of Hoult and
threats that he made to her because the evidence constituted
hearsay, lacked proper foundation, was irrelevant, or was inad-
missible under Neb. Evid. R. 4034;
(3) in allowing the State to introduce the same evidence
under rule 404(2) and as part of the res gestae of the crime;
(4) in admitting an August 2015 letter from Burries to
Howard, because the evidence was inadmissible under rules
403 and 404.
Additionally, Burries assigns that his trial counsel provided
ineffective assistance as follows:
(1) in failing to file a motion to suppress Burries’ state-
ments to investigators when the recorded interview showed
3
See State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
4
Neb. Rev. Stat. § 27-403 (Reissue 2016).
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court-appointed attorney;
(2) in failing to object to irrelevant DNA evidence and
exacerbating the jury’s likely confusion by eliciting testimony
that Burries could have been the contributor;
(3) in failing to renew an objection to the certified copy of
Burries’ assault conviction; and
(4) in failing to adequately investigate and present several
aspects of Burries’ defense.
IV. STANDARD OF REVIEW
[1,2] An appellate court independently decides questions
of law presented on appeal.5 Whether a defendant voluntarily
made a statement while in custody and whether a defendant
unambiguously invoked his or her right to remain silent or to
have counsel present are mixed questions of law and fact. We
review a trial court’s finding of historical facts for clear error
and independently determine whether those facts satisfy the
constitutional standards.6
[3-7] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility.7 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.8 We
review for abuse of discretion a trial court’s evidentiary rul-
ings on relevance,9 whether the probative value of evidence is
5
See, e.g., State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016); State
v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016); In re Interest of Edward
B., 285 Neb. 556, 827 N.W.2d 805 (2013).
6
See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
7
State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
8
State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
9
State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
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Cite as 297 Neb. 367substantially outweighed by the danger of unfair prejudice,10
and the sufficiency of a party’s foundation for admitting evi-
dence.11 We also review for abuse of discretion a trial court’s
evidentiary rulings on the admissibility of a defend­ant’s other
crimes or bad acts under rule 404(2), or under the inextrica-
bly intertwined exception to the rule.12 An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence.13
[8-10] When judicial discretion is not a factor, whether the
underlying facts satisfy the legal rules governing the admissi-
bility of a proponent’s evidence is a question of law, subject to
de novo review.14 Hearsay is not admissible except as provided
by the Nebraska Evidence Rules.15 Apart from rulings under
the residual hearsay exception, we review for clear error the
factual findings underpinning a trial court’s hearsay ruling and
review de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on hear-
say grounds.16
[11,12] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a ques-
tion of law,17 which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing18 or whether
the claim rests solely on the interpretation of a statute or
10
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
11
State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016).
12
See, Parnell, supra note 5; State v. Ash, 286 Neb. 681, 838 N.W.2d 273(2013).
13
Draper, supra note 8.
14
Smith, supra note 7.
15
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
16
See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).
17
See State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
18
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was
or was not prejudiced by a defense counsel’s alleged defi-
cient performance.20
V. ANALYSIS
1. Burries Validly Waived His R ight to
Counsel When He M ade Incriminating
Statements to Investigators
After the pretrial hearing on the admissibility of Burries’
statements to police investigators, the court determined that the
statements were voluntary:
There is nothing to suggest that [Burries’] statement
was involuntary. While there is no question that [Burries]
was in custody at the time, he was advised of his Miranda
rights and once he requested an attorney no further sub-
stantive questions were asked of [Burries]. Although he
mentioned getting an attorney early in the interview, he
did not invoke his right to an attorney in such a manner
that it was unequivocal.
Burries does not contend that the officer’s language was
insufficient to convey his Miranda right to appointed counsel
if he could not afford one. He posits no other language that the
officers should have used. Instead, without citing any author-
ity, Burries argues that under these circumstances, the officers
should have reread the advisement and confirmed his under-
standing of his right to a free appointed counsel. We disagree.
[13-15] Miranda warnings are “‘an absolute prerequisite to
interrogation’ . . . and ‘fundamental with respect to the Fifth
Amendment privilege.’”21 If a defendant seeks suppression
19
See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).
20
See id.21
See State v. Juranek, 287 Neb. 846, 856-57, 844 N.W.2d 791, 801 (2014),
quoting Miranda, supra note 1.
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State must prove that the defendant validly waived his or
her Miranda rights by a preponderance of the evidence.22 We
look to the totality of the circumstances to determine whether
a defendant validly waived his or her Miranda rights during
an interrogation:
Miranda rights can be waived if the suspect does so
knowingly and voluntarily. A valid Miranda waiver must
be voluntary in the sense that it was the product of a free
and deliberate choice and made with a full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon it. In deter-
mining whether a waiver is knowingly and voluntarily
made, a court applies a totality of the circumstances
test. Factors to be considered include the suspect’s age,
education, intelligence, prior contact with authorities,
and conduct.23
[16] But law enforcement officers “are not required to
rewarn suspects from time to time. . . . The Miranda rule and
its requirements are met if a suspect receives adequate Miranda
warnings, understands them, and has an opportunity to invoke
the rights before giving any answers or admissions.”24
Before questioning Burries, Cahill read him the following
Miranda 25 advisements: You have the right to remain silent and
not make any statements; anything that you may say can be
used against you in a court; you have the right to consult with
a lawyer and have a lawyer with you when you are questioned;
if you cannot afford a lawyer, the court will appoint one to
22
See State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004),
citing Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d
473 (1986). See, also, Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct.
2250, 176 L. Ed. 2d 1098 (2010), citing Miranda, supra note 1.
23
State v. Goodwin, 278 Neb. 945, 956, 774 N.W.2d 733, 743 (2009).
Accord Fernando-Granados, supra note 22.
24
See, e.g., Berghuis, supra note 22, 560 U.S. at 386-87.
25
Miranda, supra note 1.
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understood and Burries said yes.
[17] In Miranda, the U.S. Supreme Court stated that
a suspect
must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any ques-
tioning if he so desires.26
But the precise advisement language set out in Miranda is
not mandatory.27
[18] We have recognized that under Patterson v. Illinois,28
Miranda warnings which adequately inform a defendant of
his or her Fifth Amendment right to counsel are also adequate
to inform a defendant of his or her Sixth Amendment right
to counsel.29 In either case, the “key inquiry” in determin-
ing whether a defendant waived his right to counsel during
an interrogation is whether the defendant was “made suf-
ficiently aware of his right to have counsel present during
the questioning, and of the possible consequences of a deci-
sion to forgo the aid of counsel.”30 And in analyzing waivers
of the right to counsel during an interrogation under both
the Fifth Amendment and the Sixth Amendment, the U.S.
Supreme Court has held that substantially similar advise-
ments were sufficient to convey to the defendant his right to
counsel during the questioning even if he could not afford
26
Id., 384 U.S. at 479.
27
See, State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012), citing California
v. Prysock, 453 U.S. 355, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981);
Fernando-Granados, supra note 22.
28
Patterson v. Illinois, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261(1988).
29
See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated
on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
30
Patterson, supra note 28, 487 U.S. at 292-93.
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that right.31
[19] Although an “express written or oral statement of
waiver of the right to remain silent or the right to counsel is
usually strong proof of the validity of the waiver,” it is not
dispositive.32 But here, the totality of the circumstances shows
that Burries understood his right to consult with counsel and
that he voluntarily and intelligently waived that right to the
extent that he answered Cahill’s questions.
Immediately after Cahill advised Burries of his Miranda
rights, Burries stated that he would answer questions with
some limitations. He explained that he wanted to answer some
questions with an attorney present:
I’m not going to throw the lawyer word out there right
now, but I’m going to say this though. There’s a lot of
things that I would like to talk about. I would like to
talk about in the presence of my attorney. I mean I’ll
get one eventually. I don’t [know] when. I don’t know
how. [Slight pause.] But in [the] simplest terms, this
situation with me and [Hoult] has been going on for way
too long.
Burries contends that his statement—he did not know when or
how he would get an attorney—showed he did not understand
that he had the right to a free attorney if he could not afford
one. But his other statements during the interrogation refute
that argument.
When Cahill asked Burries if he wanted to talk about Friday
morning, Burries said, “That’s the point where I should prob-
ably have somebody here, but I’m going to break it down flat
out from the point of 10 talking to her on Thursday evening
up ‘til going to the bar about 11:30-12, getting home about
2:30-3 in the morning.” He then made the incriminating
31
See, Patterson, supra note 28; Prysock, supra note 27. Accord Wilkerson
v. State, 365 Ark. 349, 229 S.W.3d 896 (2006).
32
North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 L. Ed. 2d
286 (1979).
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was murdered, purportedly because Hoult had asked him to
get rid of his clothes from their fight in December 2012, to
close the door on their past. He stated that these clothes still
had blood on them and that between 3 and 5 a.m. on Friday, he
burned his jeans, a cream-colored jacket, and a black hoodie
in his fireplace.
Cahill then told Burries that he knew Howard drove him
to Hoult’s apartment about 3 a.m. and drove him to a bridge
afterward where he threw something off the bridge. He said
Howard had placed him at Hoult’s apartment at the time of the
murder and that he knew Burries had told Howard not to talk
to anyone about the incident and had burned his clothes after
Howard dropped him off at his home. Burries responded that
he could not give Cahill any information and cut off the ques-
tioning: “I’m going to leave it at that and I’m going to talk to
my attorney about it. . . . I’ll talk to my attorney, and then we’ll
talk.” Cahill told Burries he could talk to him later with an
attorney if he wanted. Burries said that he was definitely going
back to Nebraska and that his trip was about getting money
for an attorney, not running. Cahill said that after Burries was
booked for a homicide in Nebraska, he could get an attorney
or one would be appointed, but that their current conversation
would stop.
Burries’ firm statement that he was ending the interrogation
until he could consult with an attorney demonstrated his under-
standing of his right to do so. Burries’ understanding of his
rights is further supported by his previous encounters with law
enforcement in 2012. Finally, Burries specifically stated that he
had gone to Missouri to get money for an attorney, and he was
represented by a nonresident attorney at trial.
Under these facts, Burries’ statement that he did not know
how or when he would obtain an attorney was a reference
to his intent to retain a paid attorney. It did not show that he
failed to understand his right to have an attorney present even
if he could not afford one. It is true that at the end of the
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homicide in Nebraska, he could get an attorney or one would
be appointed. But this statement was made after the question-
ing had stopped and was in response to Burries’ statement that
he had gone to Missouri to get money for an attorney. It did
not negate Cahill’s explicit Miranda advisements that Burries
was entitled to consult an attorney and have an attorney pres-
ent during the interrogation and that the court would appoint
an attorney if he could not afford one.33 We conclude that the
court did not err in determining that Burries voluntarily and
intelligently waived his right to counsel when he answered
Cahill’s questions, despite understanding his right to terminate
the questioning until he obtained an attorney.
[20] This conclusion also resolves Burries’ claim that his trial
attorney provided ineffective assistance in failing to seek sup-
pression of his statements during the interrogation. A defense
counsel is not ineffective for failing to raise an argument that
has no merit.34
2. Defense Counsel’s Failure to Object
to DNA Expert’s Testimony and
Cross-Examination of Expert
Is Not R eversible Error
Burries contends that his trial attorney was ineffective for
failing to object to the State’s introduction of irrelevant DNA
testing results through Helligso, its DNA expert. He argues
that under our decision in State v. Johnson,35 the introduction
of this evidence was improper. He also contends that his trial
counsel was ineffective in cross-examining Helligso because
his questions suggested that Burries could have been a con-
tributor to the DNA sample that she testified about.
33
See Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d
166 (1989).
34
See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
35
Johnson, supra note 3.
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Cite as 297 Neb. 367(a) Additional Facts
As previously mentioned, Helligso testified that her testing
of the blood sample from Hoult’s arm contained DNA from
a single source and that Hoult could not be excluded as the
contributor because every allele she detected in Hoult’s DNA
profile matched the alleles that she found in the blood sample.
The prosecutor then asked if the detected alleles had matched
Hoult’s profile perfectly or if there were some alleles in the
blood sample “popping up” that did not match. Burries did
not object. Helligso said that the testing showed one addi-
tional allele, “but it was in a position that is a common artifact
when doing DNA testing, and I only had one extra allele. So
when I only have one extra allele, I can’t really compare that
to anyone else, but the major profile and every other single
number matched . . . Hoult.” Helligso said that the term “arti-
fact” meant something that was not real and just a product
of the DNA testing and that there was no way for her to tell
whether the allele was an artifact or from another person. She
said that she could not “do anything with that information any-
way” because she would need three to five additional alleles
before she could determine that someone else’s DNA was in
the sample. She stated that for this reason, she concluded the
DNA came from a single source. Burries did not object during
this colloquy.
On cross-examination, Burries’ attorney asked Helligso if
she had determined that the artifact was not an allele because it
fell below the threshold requirement for an allele. Helligso said
no; it was above the threshold. This colloquy followed:
Q. . . . Now, you never — you never actually ran
[Burries’ profile], but there is at least some possibility
or maybe a very small possibility that this random allele
could be coming from someone else besides . . . Hoult,
correct?
A. Yes.
Q. Okay. You never did a profile for . . . Burries,
correct?
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Cite as 297 Neb. 367A. Right.
Q. You also never did a profile for anyone else besides
. . . Hoult in this case, correct?
A. Right.
On redirect examination, Helligso testified that even if she
had detected a real allele and had the DNA profile for Burries
or other persons, she could not have made a comparison with
only one allele.
(b) Ineffective Assistance Standards
[21,22] 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, the defendant must demon-
strate a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different.39
(c) Admissibility of DNA Evidence
[23] In Johnson, we explained that the relevance of DNA
evidence depends on its tendency “to include or exclude an
individual as the source of a biological sample.”40 We reiter-
ated that DNA evidence without a probability assessment does
not aid the trier of fact to make that determination. We con-
cluded that the trial court erred in admitting inconclusive DNA
testing results from three biological samples.
36
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
37
Betancourt-Garcia, supra note 17.
38
Id.39
Id.40
Johnson, supra note 3, 290 Neb. at 879, 862 N.W.2d at 771.
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Cite as 297 Neb. 367The DNA expert in Johnson testified that one DNA sample
revealed a partial DNA profile for a minor contributor to
the sample; a “‘possible mixture’” because the expert had
detected a “‘possible allele’” separate from the victim’s pro-
file but could not determine if it was “‘a true allele or not.’”41
The expert could not draw any conclusions about the contribu-
tor to the partial minor profile in a second sample because
she had detected only three weak alleles, two of which did
not match the defendant’s DNA profile. In a third sample, she
detected a partial minor profile from a weak DNA sample,
but did not explain why she could not exclude the defendant
as the contributor despite recording alleles that did not match
his profile.
[24-27] We explained in Johnson that a court should exclude
an expert’s opinion when it gives rise to two conflicting infer-
ences of equal probability, so the choice between them is a
matter of conjecture.42 We concluded that a DNA expert’s tes-
timony that there may have been a minor contributor’s DNA
in a biological sample is irrelevant evidence because it is not
probative of the source of the DNA.43 Additionally, we held
that a DNA expert’s inconclusive results that a defendant can-
not be excluded as a minor contributor to a biological sample
allows the jury to speculate that the defendant might have
been the minor contributor when the expert fails to provide
any statistical relevance for the detected alleles in relationship
to the defendant’s DNA profile.44 We held that the value of
inconclusive DNA testing results is substantially outweighed
by the danger that the evidence will mislead the jurors absent
statistical evidence that will help them to assess whether a
41
Id. at 877, 862 N.W.2d at 770.
42
Johnson, supra note 3.
43
Id.
44
Id.
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Cite as 297 Neb. 367defendant is or is not the source of DNA found in a biologi-
cal sample.45
(d) Defense Counsel’s Failure to Object
to Irrelevant DNA Evidence and
Cross-Examination of State’s
Expert Did Not Prejudice Burries
The State contends that the instant case is distinguishable
from Johnson. It argues that because Helligso testified that
the additional allele she detected was probably an artifact, no
inconclusive testing results were presented. It argues that on
cross-examination and redirect examination, Helligso was dis-
cussing only a hypothetical scenario of “what if the artifact had
been a true allele.”46 We disagree.
On direct examination, Helligso testified that she had no
way of determining whether she had detected an artifact or
an allele from another person. On cross-examination, Helligso
conceded that the additional allele she detected during testing
was probably an artifact or false reading, but she agreed that
she could have detected an allele from another person. On redi-
rect examination, she testified that even if it were a real allele,
she could not compare it to another person’s profile without
detecting three to five alleles.
Helligso’s testimony was the functional equivalent of pre-
senting inconclusive DNA evidence that suggested a defendant
could be linked to the evidence if investigators had found a
better biological sample. We specifically held in Johnson that
a DNA expert’s opinion that there may have been a minor con-
tributor’s DNA in a biological sample was irrelevant because
the evidence was not probative of the source of the DNA.47
The same problem exists here. Evidence of a minor contribu-
tor in the blood sample could only be relevant to Burries’ guilt
45
See id.46
Brief for appellee at 42.
47
See Johnson, supra note 3.
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Cite as 297 Neb. 367if it tended to include or exclude him as the minor contributor.
Because Helligso’s opinion did neither, the jurors could find it
relevant only through pure speculation. Accordingly, any rel-
evance the evidence had was substantially outweighed by its
potential to mislead the jurors.
But we need not consider whether any strategic decision
justified defense counsel’s failure to object to the evidence.
In the context of the State’s other evidence, we conclude that
there is no reasonable probability that the result of the pro-
ceeding would have been different even if Burries’ counsel
had successfully objected to Helligso’s testimony and had not
elicited her testimony on cross-examination that the additional
allele could have come from someone else and that she had not
determined Burries’ DNA profile.
First, the DNA evidence was weak. As stated, Helligso
conceded that the additional allele was probably an artifact or
false reading and that she had no way of determining whether
the allele was an artifact or came from another person. Equally
important, while the evidence permitted the jurors to speculate
that Burries was linked to the evidence, this case is also similar
to Johnson in that the State’s other evidence of Burries’ guilt
was overwhelming.
Howard’s testimony and the State’s cell phone records
showed that Burries was inside Hoult’s apartment within min-
utes of 3:40 a.m. on Friday, when Hoult sent her last text
message to him. After returning to Howard’s car, he covered
himself from view with his jacket, ordered her not to look at
him, and demanded that she drive him across a bridge where he
threw something out the passenger window. Shortly before he
demanded that Howard drive him across the bridge, he threat-
ened her that she would be prosecuted as an accessory if she
told anyone that he had been at Hoult’s apartment.
His statements to investigators showed that he had a key to
Hoult’s apartment and that after Howard drove him back to his
residence, he burned his clothes in the fireplace. On Saturday,
he thoroughly cleaned Howard’s vehicle. On Monday morning,
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Cite as 297 Neb. 367after police officers had found Hoult’s body and he knew they
were investigating at his residence, he frantically told Eledge
that something bad had happened and that he needed to get out
of town. Shortly before trial, he again threatened Howard about
testifying against him through a letter he penned.
We conclude that the record in this direct appeal is suffi-
cient to show that Burries was not prejudiced by his attorney’s
failure to object to the State’s inconclusive DNA evidence
or his cross-examination of Helligso. There is no reasonable
probability that the jury’s guilty verdict rested on speculation
that Burries’ DNA was found in a blood sample taken from
Hoult’s arm.
3. R ecord Is Insufficient to A ddress
Burries’ R emaining Ineffective
Investigation Claims
Burries also contends that his trial counsel was ineffective
in failing to investigate and obtain favorable evidence from
several potential witnesses and in failing to investigate other
potential sources of favorable evidence.
Specifically, Burries contends that despite his requests, trial
counsel failed to independently investigate, interview, depose,
or subpoena each of the following entities and/or potential wit-
nesses: subpoena cell phone location and/or global positioning
system data, nor did he obtain all information extracted from
Hoult’s cell phone in 2014, which would have demonstrated
that Howard, Burries, and/or Hoult were not present in the
places or at the times offered by the State’s theory at trial;
subpoena records, receipts, and video from a fast-food restau-
rant, which would have disproved Howard’s testimony regard-
ing her visit to the restaurant at Burries’ request on the night
of the murder and further disproved the State’s theory as to
the timeline of the murder; call Burries’ brother as a witness,
who would have confirmed Hoult’s involvement with multiple
boyfriends with whom Hoult drank excessively and who sub-
jected Hoult to violence; call Burries’ brother-in-law as a wit-
ness, who would have testified similarly to Burries’ brother,
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Cite as 297 Neb. 367and who also would have testified that he saw Howard in
handcuffs on her front lawn just prior to her interview with
police; call Burries’ cousin as a witness, who would have tes-
tified that police interrogated her and disclosed their motive
for maliciously prosecuting Burries—that all the women asso-
ciated with Burries were scared of him and had been beaten
and that it needed to stop; call an acquaintance of Burries as
a witness, who would have provided an alibi for Burries at a
time when, according to the neighbors’ testimony, Burries was
arguing with Hoult; subpoena an airline itinerary that would
have corroborated Burries’ alibi for the time when, accord-
ing to the neighbors’ testimony, Burries was arguing with
Hoult in her apartment; call a potential witness who would
have provided testimony invalidating the State’s witnesses’
claims that Hoult had bruising and that Burries had likely
caused the bruising; call another potential witness who would
testify as to seeing Hoult alive after the time of death accord-
ing to the State’s theory, corroborating a neighbor of Hoult’s
testimony that Hoult was alive the morning of Friday, May
16, 2014; subpoena records of a hospital which would have
disproved Hoult’s coworkers’ testimony that Hoult did not
work Friday, May 16; subpoena Hogan’s work and cell phone
records which would have disproved Hogan’s alibi at the time
of Hoult’s death and proved that Hogan did have a romantic
relationship with Hoult; obtain Hogan’s prior criminal record
which could have been used in impeachment; subpoena video
footage from a bar in Hoult’s neighborhood on May 13,
which would have disproved the testimony of the State’s wit-
nesses; obtain all video footage of Hoult’s apartment com-
plex’s address between the dates of May 14 and June 14,
which would have supported the exculpatory testimony of two
potential witnesses; subpoena medical records from Hoult’s
medical providers, which contained evidence suggesting drug
use, supporting the defense’s theory that Hoult’s involvement
in the illicit drug community led to her murder; obtain record-
ings of inmate calls from the Douglas County Correctional
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Cite as 297 Neb. 367Center which would have provided support to the defense’s
theory that someone other than Burries murdered Hoult; call
Hoult’s aunt, who would have testified as to Hoult’s having
multiple boyfriends at the time of her murder, at least one of
which was potentially dangerous.
Burries further contends that trial counsel failed to act or
present evidence during trial when trial counsel knew action
was required or evidence should be presented. The following
is a list of trial counsel’s failures as alleged by Burries: con-
front a trial witness who was a police investigator with prior,
off-the-record, inconsistent statements made to her during her
interview with a potential witness who told her that she saw
Hoult alive at 2:30 p.m. on Friday, May 16, 2014; make a
record and move for replacement of a juror or a mistrial after
he learned that one of the jurors had a close association with
one of the State’s witnesses; make a record and either move
for replacement of a juror or a mistrial when the juror repeat-
edly slept through much of the trial; make a record and object
during voir dire to the State’s peremptory challenges that the
State used those challenges to strike all but one minority juror
for race-based reasons; present evidence of Burries’ heavy
intoxication at the time of his interview with Cahill; file a
motion based on the State’s violation of Brady v. Maryland 48
that occurred when the State refused to turn over exculpatory
text messages it obtained during its 20l4 extraction of data
from Hoult’s cell phone; call as a witness a cell phone expert
hired by Burries, who would have rebutted the testimony of
the State’s cell phone experts as to the reasons for the delayed
text message between Hoult and Burries on May 16; impeach
a trial witness who was a neighbor of Hoult with his prior
inconsistent identification of a different man as Burries; intro-
duce Burries’ clothing that would have proved, contrary to the
State’s theory, that he did not burn the clothing he had worn
on the night of May 15.
48
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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Cite as 297 Neb. 367[28,29] When a defendant’s appellate counsel is not the
defendant’s trial counsel, the defendant must raise on direct
appeal any claim that the trial counsel provided ineffective
assistance, if the issue is known to the defendant or apparent
from the record, in order to avoid a procedural bar to raising
the claim later in a postconviction proceeding.49 An appellant
must make specific allegations of the conduct that he or she
claims constitutes deficient performance by a trial counsel
when raising an ineffective assistance claim on direct appeal.50
[30,31] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean
that it can be resolved.51 The determining factor is whether
the record is sufficient to adequately review the question.52 An
ineffective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing.53 We
will address a claim on direct appeal that a defendant’s trial
counsel was ineffective only if the record is sufficient to
adequately review the question.54 This principle applies to
Burries’ claims that his trial counsel should have investigated
sources of potentially favorable evidence, and we do not
address them here.
4. Court Did Not Err in A dmitting
Evidence of Burries’ 2012
Assault of Hoult
Rule 404(2) provides the following:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may,
49
See Parnell, supra note 5.
50
Betancourt-Garcia, supra note 17.
51
State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
52
Id.53
Id.54
See Betancourt-Garcia, supra note 17.
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Cite as 297 Neb. 367however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or accident.
[32,33] It should be noted that rule 404(2)’s list of permis-
sible purposes is not exhaustive.55 Nonetheless, under our
decisional law, rule 404(2) does not apply to evidence of a
defend­ant’s other crimes or bad acts if the evidence is inextri-
cably intertwined with the charged crime.56
In its pretrial order, the court ruled that evidence of Burries’
2012 assault of Hoult was admissible under the inextricably
intertwined exception to rule 404(2), because Burries had
claimed that the clothes he burned on May 16, 2014, were
from the 2012 assault. At trial, however, the court concluded
that rule 404 governed the admission of the assault evidence.
It overruled Burries’ request to limit the jurors’ consideration
of 2012 assault evidence to determining whether Burries had a
motive to murder Hoult. Instead, the court stated it would read
rule 404(2) as an instruction to the jury. The State then agreed
that all of its intended evidence was relevant to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absen[ce of] mistake or accident.”
(a) Parties’ Contentions
Burries contends that the court committed reversible error
when it admitted documentary and testimonial evidence of
his 2012 assault of Hoult. He argues that the State’s primary
purpose for presenting this evidence was to establish that he
had a bad character and to suggest that he likely killed Hoult
because of his propensity to perpetrate domestic violence. He
contends that the court erred in concluding in its pretrial order
that the evidence was part of the res gestae of the crime. He
argues that the assault occurred 17 months before Hoult’s mur-
der and was not closely intertwined with it.
55
See Parnell, supra note 5.
56
See State v. Perrigo, 244 Neb. 990, 510 N.W.2d 304 (1994).
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Cite as 297 Neb. 367Burries also contends that both the prosecutor’s arguments to
the court for admitting the evidence and the court’s instruction
to the jury did not comply with our requirements under State
v. Sanchez 57 for admitting evidence of a defendant’s other bad
acts under rule 404(2). He argues that the prosecutor offered no
purpose for the evidence other than to state it was res gestae
evidence and that the court failed to identify a specific purpose
for which it would receive the evidence.
The State contends that rule 404 did not apply because the
evidence of Burries’ 2012 assault of Hoult and Beck’s testi-
mony of his past conduct was inextricably intertwined with the
charged murder. It argues that this evidence was part of the fac-
tual setting of the crime because it showed the following: (1)
the increasingly violent nature of Hoult and Burries’ relation-
ship; (2) why law enforcement focused on him as a suspect;
(3) what Burries meant when he told investigators that he had
burned his clothes from the December 2012 assault at Hoult’s
request; (4) why Hoult sent texts to Burries about his control
of her and his threats to torture her, and why she stated that
she did not feel safe around him; and (5) what Burries meant
when he told Robinson that “he did time once for [Hoult] and
he wasn’t scared to do it again.” The State argues that without
Beck’s testimony and evidence of Hoult’s injuries from the
2012 assault, the jury would believe that despite Hoult’s long-
term relationship with Burries, she had an “unexplained and
unsupported fear of Burries.”58
(b) Evidence of Burries’ 2012 Assault
Was Inextricably Intertwined
With Charged Murder
[34] Inextricably intertwined evidence includes evidence
that forms part of the factual setting of the crime, or evidence
that is so blended or connected to the charged crime that proof
57
State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
58
Brief for appellee at 29.
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Cite as 297 Neb. 367of the charged crime will necessarily require proof of the other
crimes or bad acts, or if the other crimes or bad acts are nec-
essary for the prosecution to present a coherent picture of the
charged crime.59
We have previously explained that our jurisprudence initially
adopted a broad concept of this class of evidence.60 Although
in other cases we have partially backed away from the inex-
tricably intertwined exception and instead applied a broader
notion of rule 404, the exception is still viable.61
The 2012 assault of Hoult was part of the factual setting
of her murder in May 2014. During the murder trial, the jury
heard testimony that Burries and Hoult had a volatile relation-
ship; that while Burries was in prison for the assault, he would
call Hoult and threaten her; that after being released from
prison, Burries threatened Hoult on multiple occasions; that
prior to the murder, Hoult had injuries consistent with being
assaulted; that Burries told Robinson that he had served time
in prison for Hoult; and that Burries told Cahill and Eledge
that he burned his clothes because they still had blood on them
from the last time he assaulted her before he went to prison.
Burries himself repeatedly interjected the 2012 assault of
Hoult into the 2014 murder of Hoult. Burries told investigators
that Hoult had asked him to get rid of the clothes he had worn
during the previous assault, Burries told Eledge that Hoult
wanted him to get rid of the clothing from the last time he went
to jail, and Burries told Robinson that “he did time once for
[Hoult] and he wasn’t scared to do it again.”
The record supports the trial court’s finding that the evi-
dence of the assault was necessary to present a coherent picture
of the murder. As a result, we conclude that the trial court did
not err in its pretrial ruling that the 2012 assault was part of the
factual setting of the crime.
59
See, e.g., Parnell, supra note 5.
60
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
61
See id.- 406 -
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Cite as 297 Neb. 367We are cognizant of the fact that at trial, the court con-
cluded that the admission of Burries’ 2012 assault of Hoult
was admissible under rule 404(2). However, since we find that
the assault evidence was inextricably intertwined and not 404
evidence, we need not consider that ruling.
5. Court Did Not Err in A dmitting
Testimony of Burries’ Threats
of Further Assaults
Burries contends that the court erred by admitting the tes-
timony from Hoult’s acquaintances that Burries threatened
Hoult while he was incarcerated from December 2012 to
November 2013, and after his release from prison. However,
in several circumstances, this court has held that evidence of a
defend­ant’s threats to a murder or assault victim can be admit-
ted under the inextricably intertwined exception to rule 404.
In State v. Smith,62 the defendant and another man were
convicted of shooting two brothers, one fatally, after the broth-
ers cooperated with federal authorities in exchange for more
lenient sentencing. We concluded that rule 404 did not apply to
evidence that within 30 to 40 days prior to the shootings, one
of the defendants’ made threatening statements to the brothers
on two occasions. We held that the evidence was necessary
to present a coherent picture of the crime and was part of the
factual setting.
In concluding that the threats were inextricably intertwined
with the shootings, we relied on another case involving evi-
dence of a defendant’s stated desire to harm or kill a murder
victim. In State v. Canbaz,63 the disputed evidence did not
involve the defendant’s threats to the victim. Instead, after the
defendant’s girlfriend broke up with him, he told witnesses
that he wanted to kill her and her family members, or he made
statements that evidenced his desire to kill her. Some of his
62
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
63
State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
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Cite as 297 Neb. 367statements were made a few days before the murder, but oth-
ers were made at an unspecified time after the defendant’s
girlfriend broke up with him in early July. He killed her in
early September. We held that rule 404(2) did not govern the
admission of the defendant’s statements to these witnesses and
that the trial court erred in concluding otherwise. Instead, the
statements were admissible as evidence that the defendant had
killed intentionally and with premeditation.
More recently, in State v. Parnell,64 the defendant shot two
women multiple times, killing one of them. The woman who
survived described the defendant’s vehicle, which she had
previously seen. She testified that 2 days before the shooting,
the defendant had threatened her with a gun because she had
brought a rival gang member to a party. He was prosecuted
and convicted of making a terroristic threat before the State
tried him for shooting the women. The State filed notice that
it intended to present evidence of the terroristic threat under
rule 404 to show his motive, intent, and plan. After a pretrial
hearing, the trial court ruled that the threat was inextricably
intertwined with the shooting but would have also been admis-
sible under rule 404. We affirmed the court’s ruling that the
inextricably intertwined exception applied. We reasoned that
evidence of the threat was necessary to present a coherent pic-
ture of the crimes because it showed that he had acted upon a
recent threat to the victim.
[35] Under this precedent, evidence of a murder defend­
ant’s previous threat to the victim or statement to others
showing a desire to harm or kill the victim are facts that
are inextricably intertwined with the charged murder if the
defend­ant made the threat or statement fairly close in time to
the murder.65
Accordingly, the inextricably intertwined exception applied
to Beck’s testimony that she overheard threats from Burries
64
Parnell, supra note 5.
65
See id.
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Cite as 297 Neb. 367in his calls to Hoult while he was incarcerated. Though these
threats were made at least 6 months prior to the murder, the
threats were relevant to show that Burries killed Hoult inten-
tionally or with premeditation or that he had acted on a recent
threat to harm or kill Hoult.
The inextricably intertwined exception applied to Robinson’s
testimony of hearing Burries’ statement about doing time for
Hoult in April. It also applied to Robinson’s testimony of
seeing Hoult upset after getting a call from Burries in May.
Further, it applied to Hoult’s statement to Robinson shortly
after that call about the threats made to her by Burries.
The inextricably intertwined exception applied to Coburn’s
testimony that about a month before Hoult’s murder, he also
heard Burries threaten Hoult.
Because Burries’ threats prior to the murder were inextrica-
bly intertwined with the murder, the court did not err in fail-
ing to comply with the procedural requirements for admitting
evidence under rule 404 and failing to properly instruct the
jury on the specific purpose for which it was receiving the
testimony.
As we discuss later, we reject Burries’ argument that the
State failed to prove by clear and convincing evidence that
Burries, and not someone else, had threatened Hoult. There
was ample evidence that Burries was known as “Tony.” These
witnesses testified to hearing threatening statements in calls
from “Tony” to Hoult, or Hoult told them that “Tony” had
threatened her after speaking to him on her cell phone.
6. Court Erred in A dmitting Burries’
Threatening Letter to Howard
(a) Additional Facts
Burries’ letter to Howard was presented to the court during
the trial because Howard gave it to the prosecutor when she
appeared to testify. During an in camera hearing, the State
argued that the letter was relevant because Burries’ intimidat-
ing statements to Howard bordered on witness tampering. The
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Cite as 297 Neb. 367prosecutor stated that if the court ordered a redaction, she
would comply. But she felt strongly that the entire letter should
be admitted. Defense counsel did not believe the letter was
admissible at all but stated that the defense would consider
a redacted version after seeing it. The court agreed with the
prosecutor and admitted the entire letter.
Before the letter was read to the jury, the court instructed
the jury as follows:
[S]ome of the evidence you are about to receive is — evi-
dence of other crimes, wrongs or acts is not admissible to
prove the character of a person or in order to show that
he or she is acting in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident.
(b) Parties’ Contentions
Burries contends that the court erred in admitting the entire
letter because portions of the letter were not relevant for any
purpose other than proving that he had a bad character. He
also contends that the court erred in reciting potential pur-
poses under rule 404(2) per the letter, instead of providing the
jury with a precise purpose for which the court was admitting
the evidence. The State responds that Burries did not ask for
a redaction and that even if he had, the unredacted portions
would have been the most probative of his consciousness of
guilt. Relying on State v. Jenkins,66 the State also argues that
Burries’ letter was not subject to rule 404 and that it was highly
probative of his consciousness of guilt.
(c) Resolution
We disagree with the State that Burries’ attorney should
have requested a redaction when the prosecutor offered to
redact the letter and the court determined that the entire letter
was admissible under rule 404. However, as the State argued,
66
State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016).
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Cite as 297 Neb. 367the unredacted portions would have been the most probative of
his consciousness of guilt and the admission of the remaining
portions of the letter was harmless error.
We also disagree with the State that under Jenkins, Burries’
letter to Howard was not subject to rule 404. In Jenkins, the
defendant was convicted of first degree murder. Sometime after
the murder, the defendant got into a heated argument with her
mother. When her brother took the defendant into a different
room, her sisters heard her yell that she would “‘pop that bitch
like I popped that nigga.’”67 We concluded that in the context
of witnesses’ testimonies, the jurors could have reasonably
inferred that she had threatened to shoot her mother, just like
she had shot the victim. We concluded that her statement was
an admission, which was not subject to exclusion under rule
404(2), because it was direct evidence of the charged crime.
But Burries did not admit to killing Hoult in his letter to
Howard, so Jenkins does not control here.
[36] However, we do agree with the State that Burries’ let-
ter to Howard was intended to threaten her on the eve of her
testimony. This court has held that “[a] defendant’s attempted
intimidation or intimidation of a State’s witness is evidence of
the defendant’s ‘conscious guilt’ that a crime has been commit-
ted and serves as a basis for an inference that the defendant is
guilty of the crime charged.”68
In State v. Clancy,69 evidence was presented that the defend­
ant had called a woman and threatened to kill her or her
husband or to blow up their house if the woman provided
further information to law enforcement authorities. We held
that evidence of a threatening communication to a witness had
probative value and was admissible as relevant evidence if it
67
Id. at 480, 883 N.W.2d at 357.
68
State v. Clancy, 224 Neb. 492, 499, 398 N.W.2d 710, 716 (1987),
disapproved on other grounds, State v. Culver, 233 Neb. 228, 444 N.W.2d
662 (1989).
69
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Cite as 297 Neb. 367allowed a reasonable juror to believe that it was more prob-
able that the declarant was conscious or knew that a crime had
been committed.70
As such, Burries’ letter to Howard was relevant to show
his consciousness of guilt.71 Though neither the prosecutor
nor the court stated this purpose, the court acknowledged that
portions of the letter were relevant to show Burries’ threats to
a witness.
However, we also held in Clancy that consciousness of guilt
evidence is subject to rule 404(2).72 As a result, evidence of
Burries’ letter to Howard was subject to the same procedural
requirements as other evidence offered under rule 404(2).
[37] Pursuant to rule 404(3), before the prosecution can
offer evidence of a criminal defendant’s extrinsic acts under
rule 404(2), it must first prove to the trial court, by clear and
convincing evidence and outside the jury’s presence, that the
defendant committed the act.73
[38-40] Upon objection to evidence offered under rule
404(2), the proponent must state on the record the specific
purpose or purposes for which the evidence is being offered,
and the trial court must similarly state the purpose or purposes
for which it is receiving the evidence.74 A trial court must
then consider whether the evidence is independently relevant,
which means that its relevance does not depend upon its
tendency to show propensity.75 Additionally, evidence offered
under rule 404(2) is subject to the overriding protection of
rule 403, which requires a trial court to consider whether the
probative value of the evidence is substantially outweighed
70
Id.71
See id.72
See id.73
See Jenkins, supra note 66.
74
See, e.g., id.; State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
75
See, State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v.
McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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Cite as 297 Neb. 367by the danger of unfair prejudice.76 Finally, when requested,
the trial court must instruct the jury on the specific purpose
or purposes for which it is admitting the extrinsic acts evi-
dence under rule 404(2), to focus the jurors’ attention on
that purpose and ensure that it does not consider it for an
improper purpose.77
In Sanchez, we agreed with the reasoning of federal courts
under their counterpart to rule 404(2) that a fine line often
exists between what is admissible and inadmissible evidence
under this rule because such evidence can sometimes carry a
substantial danger of unfair prejudice. “‘Therefore, it is advis-
able for a trial judge to insist that a party offering [extrinsic
acts] evidence place on the record a clear explanation of
the chain of inferences leading from the evidence in ques-
tion to a fact “that is of consequence to the determination of
the action.”’”78
[41] A proponent’s clear explanation for evidence offered
under rule 404(2) ensures that a trial court has an opportunity
to examine the evidence for its independent relevance and the
potential for unfair prejudice. The requirement that the trial
court state on the record the purpose or purposes for which
such evidence is received is primarily to ensure that an appel-
late court can review the trial court’s ruling.79 The requirement
that the court give the jury a limiting instruction upon request
ensures that the jury does not focus on the evidence for an
improper purpose.80
In the instant case, the court’s limiting instruction did not
instruct the jury on the specific purpose or purposes for which
the letter was being admitted. Instead, it instructed the jury
76
See, Pullens, supra note 10; Perrigo, supra note 56.
77
See, Oldson, supra note 75; Torres, supra note 74.
78
Sanchez, supra note 57, 257 Neb. at 307, 597 N.W.2d at 374, quoting U.S.
v. Murray, 103 F.3d 310 (3d Cir. 1997).
79
See id. Accord State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
80
See Oldson, supra note 75.
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Cite as 297 Neb. 367that the evidence “may . . . be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident.”
(Emphasis supplied.)
The court’s instruction allowed the jury to consider the let-
ter for any purpose under rule 404(2) instead of considering it
for Burries’ conscious guilt for the crime charged, exclusively.
As a result, the court’s admission of the letter was error.
7. Court Properly A dmitted Evidence of
Burries’ and Hoult’s Statements
to Robinson
Although we have concluded that Robinson’s testimony
about Burries’ threatening statements to Hoult were inextri-
cably intertwined with the charged crime, Burries argues that
the court erred in failing to exclude his testimony under other
evidence rules.
(a) Additional Facts
As previously mentioned, Robinson testified that about the
middle of April, he answered a call on Hoult’s cell phone and
saw the name “Tony” on it. Robinson believed that he was
speaking to Burries. Robinson said that after asking where
Hoult was, the caller said that “he did time once for [Hoult]
and he wasn’t scared to do it again.” The court overruled
Burries foundation objection to this testimony. In its pretrial
order, the court explained its ruling:
[Robinson] can testify as to what he saw and observed
even though he cannot testify that the caller actually was
[Burries]. This is no different from a fact witness testify-
ing that he saw a particular make/model/color of car in a
parking lot without . . . being able to specifically iden-
tify it as belonging to a Defendant. The evidence is still
admissible even though it is subject to weight and cred-
ibility considerations.
Robinson also testified that on Monday, May 12, 2014,
Hoult told him “Tony” was calling and that he overheard
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Cite as 297 Neb. 367part of the conversation and saw Hoult become distressed
and emotional. He stated that about 20 to 30 minutes later,
she told him that “Tony” had threatened to beat her, revive
her, and beat her again. The court overruled Burries’ hear-
say objections to Robinson’s testimony that Hoult told him
“Tony” was the caller and that Hoult told him that “Tony”
had said he would beat her. In its pretrial order, the court
ruled that Hoult’s statements to Robinson on May 12 were
admissible under three hearsay exceptions: the excited utter-
ance exception, the state-of-mind exception, and the resid-
ual exception.
(b) Foundation Challenge to
Robinson’s Testimony
Regarding Burries’ Call
to Hoult in April 2014
Burries argues that the court erred in rejecting his founda-
tion challenge because Robinson could not know that Burries
was the person calling Hoult in April 2014 when he saw the
name “Tony” on Hoult’s cell phone. He argues that despite
the court’s ruling that Robinson could not identify Burries as
the caller, it permitted him to testify that he believed the caller
was Burries.
First, we reject Burries’ interpretation of the court’s order.
The court meant that Robinson could testify to what he saw on
Hoult’s cell phone—i.e., the name “Tony”—even if Robinson
could not positively know whether Hoult had assigned the
name “Tony” to calls that she received from Burries’ cell
phone number. It did not preclude Robinson from testifying
that he believed the caller was Burries. It ruled that the evi-
dence was admissible even though it was subject to weight and
credibility considerations.
[42-44] Second, we reject Burries’ authentication argument.
Neb. Evid. R. 90181 requires authentication or identification of
81
Neb. Rev. Stat. § 27-901 (Reissue 2016).
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Cite as 297 Neb. 367evidence sufficient to support a finding that a matter is what
the proponent claims as a condition precedent for admission.
But authentication or identification under rule 901 is not a high
hurdle.82 A proponent is not required to conclusively prove
the genuineness of the evidence or to rule out all possibilities
inconsistent with authenticity.83 If the evidence is sufficient to
support a finding that the evidence is what it purports to be,
the rule is satisfied.84 And we have held that the identity of a
participant in a telephone conversation may be established by
circumstantial evidence such as the circumstances preceding
or following the telephone conversation.85 Many other courts
hold the same.86
The State did not submit records of the cell phone calls
that Hoult received in April 2014. But at that time, her cell
phone was programmed to identify the caller as “Tony.” As
stated, ample evidence in the record established that Burries
was known as Tony. The record also showed that Robinson
knew Hoult had a boyfriend named “Tony” and that on May
12, 2014, he heard “Tony” speaking to Hoult on her cell phone
in a threatening manner. It would have been an implausible
coincidence if Hoult had known two different males named
“Tony” who called her to make threats. Equally important, on
redirect examination, Robinson testified that he recognized the
voice he heard on May 12—when Hoult identified the caller
as “Tony”—as the same voice that he had heard when he
answered Hoult’s cell phone in April. We conclude that the cir-
cumstantial evidence sufficiently established that Burries was
the “Tony” who called Hoult’s cell phone in April and spoke
to Robinson.
82
See, e.g., Casterline, supra note 11.
83
Id.84
Id.85
See State v. McSwain, 194 Neb. 31, 229 N.W.2d 562 (1975).
86
See Annot., 79 A.L.R.3d 79 (1977 & Supp. 2017).
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Cite as 297 Neb. 367(c) Hearsay Challenge to
Robinson’s Testimony
About May 12, 2014,
Call From Burries
Burries contends that the court erroneously ruled that
Hoult’s statements to Robinson on May 12, 2014, were admis-
sible under residual hearsay exception or under the excep-
tions for excited utterances and to show the declarant’s state
of mind. The State argues that Burries’ statements to Hoult
were admissible as the statement of a party opponent and that
Hoult’s statements to Robinson were admissible as excited
utterances. Regarding the excited utterance exception, Burries
argues that Hoult did not tell Robinson about Burries’ threats
to beat her until 20 to 30 minutes after Robinson observed
her change in demeanor during the call. He also suggests
that Hoult was not upset by the time she made the statement
because Robinson testified that she “‘just needed someone to
vent to.’”87
[45,46] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered to
prove the truth of the matter asserted.88 A declarant’s out-of-
court statement offered for the truth of the matter asserted is
inadmissible unless it falls within a definitional exclusion or
statutory exception.89
[47] Under Neb. Evid. R. 803(1),90 the rule against hearsay
does not exclude a “statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition.” This exception
comprises excited utterances.91
87
Brief for appellant at 27.
88
Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
89
See, Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2016); State v.
McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
90
Neb. Rev. Stat. § 27-803(1) (Reissue 2016).
91
See, e.g., Smith, supra note 62.
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Cite as 297 Neb. 367[48] Excited utterances are an exception to the hearsay rule,
because the spontaneity of excited utterances reduces the risk
of inaccuracies inasmuch as the statements are not the result of
a declarant’s conscious effort to make them.92 The justification
for the excited utterance exception is that circumstances may
produce a condition of excitement which temporarily stills the
capacity for reflection and produces utterances free of con-
scious fabrication.93
[49,50] For a statement to be an excited utterance, the fol-
lowing criteria must be met: (1) There must be a startling
event, (2) the statement must relate to the event, and (3) the
declarant must have made the statement while under the stress
of the event.94 An excited utterance does not have to be con-
temporaneous with the exciting event.95 An excited utterance
may be subsequent to the startling event if there was not time
for the exciting influence to lose its sway.96 The true test for
an excited utterance is not when the exclamation was made,
but whether, under all the circumstances, the declarant was
still speaking under the stress of nervous excitement and shock
caused by the event.97
[51] The period in which the excited utterance exception
applies depends on the facts of the case.98 Relevant facts
include the declarant’s physical conditions or manifestation
of stress and whether the declarant spoke in response to ques-
tioning.99 But a declarant’s response to questioning, other than
questioning from a law enforcement officer, may still be an
92
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
93
Id.94
Id.95
See State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
96
Id.97
Britt, supra note 92.
98
Hale, supra note 95.
99
See id.
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Cite as 297 Neb. 367excited utterance if the context shows that the declarant made
the statement without conscious reflection.100
The record does not show the lapse of time from when
Hoult ended her conversation with Burries and when Robinson
saw her outside. Robinson testified that Hoult was still on
the cell phone with Burries when he and Hoult’s other guests
went outside because “it was getting inappropriate for a child
to be in the room.” He said he saw Hoult 20 to 30 min-
utes later when she came outside. But she could have been
on her cell phone with Burries until just before she appeared
outside.
Moreover, Robinson’s statement that Hoult “just needed
someone to vent to” showed only that Hoult spoke voluntarily,
as distinguished from responding to questioning. It did not
show that Hoult was no longer speaking under the influence
of nervous excitement and shock because of Burries’ threats.
Robinson specifically testified that Hoult came outside with
tears in her eyes. We conclude that the court did not err in
admitting Hoult’s statement to Robinson under the excited
utterance exception. Because we reach this conclusion, we do
not consider the court’s rulings that the statement was admis-
sible under other hearsay exceptions.
8. Burries Failed to Preserve
Error R egarding Coburn’s
Testimony A bout Hoult’s
Statements to Him
Burries contends that Coburn’s testimony was inadmissible
for other reasons, despite our conclusion that it was inextrica-
bly intertwined with the charged murder. Coburn testified that
on the Sunday before Hoult was killed, he checked her apart-
ment, because Hoult wanted him to make sure that Burries
was not inside. After Coburn assured Hoult that Burries was
not there, she gathered some clothes to stay at a friend’s
100
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Cite as 297 Neb. 367house. But when her friend did not come, Coburn took Hoult
back to her apartment and made sure she was locked inside.
Burries did not object to Coburn’s testimony.
Burries argues that the court erred in its pretrial ruling that
(1) Hoult’s statements to Coburn were admissible under the
residual hearsay exception and under exceptions for excited
utterances and present sense impressions and (2) the tes-
timony was relevant to show Hoult was avoiding Burries
and the volatility of their relationship was escalating just
before Hoult’s murder. The State contends that Burries did
not timely object to this testimony. Alternatively, the State
argues that Coburn’s testimony was relevant to show Hoult’s
fear of Burries and not offered to prove the truth of the mat-
ter asserted.
[52,53] A motion in limine is a procedural step to prevent
prejudicial evidence from reaching the jury.101 Normally, when
a motion in limine to exclude evidence is overruled, to pre-
serve error for appeal, the movant must renew the objection
when the particular evidence which was sought to be excluded
by the motion is offered during trial.102 We recognize that
the court allowed Burries to have a standing objection to its
pretrial rulings under rule 404. But it did not give Burries a
standing objection to its pretrial rulings under any other rule
of evidence. Accordingly, because Burries failed to object to
Coburn’s testimony at trial, he did not preserve his claimed
errors for appeal.
9. Burries Failed to Preserve Error
R egarding A nother of Hoult’s
Neighbor’s Testimony A bout
Overhearing A rguments
Another of Hoult’s neighbors testified that she would often
hear loud arguments between Hoult and a male or Hoult
101
State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
102
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Cite as 297 Neb. 367and a female. She thought that the last time she heard yell-
ing between Hoult and a male was on the Wednesday or
Thursday night before Hoult was killed. But she could not
identify the male who had argued with Hoult because she
never saw anything.
Burries contends that this testimony lacked foundation
because she could not identify the male voice and that her
testimony posed a high potential for unfair prejudice because
Hoult could have been arguing with another person. However,
the record shows that Burries failed to object to the neighbor’s
testimony at trial. So, we again conclude that he did not pre-
serve his claimed error for appeal.
10. Court’s Improper A dmissions of
Burries’ Letter to Howard
Was H armless Error
[54-56] In a jury trial of a criminal case, an erroneous evi-
dentiary ruling results in prejudice to a defendant unless the
error was harmless beyond a reasonable doubt.103 Harmless
error review looks to the basis on which the jury actually
rested its verdict. The inquiry is not whether in a trial that
occurred without the error, a guilty verdict would surely have
been rendered, but whether the actual guilty verdict rendered
was surely unattributable to the error.104 The erroneous admis-
sion of evidence is generally harmless error and does not
require reversal if the evidence is cumulative and other rel-
evant evidence, properly admitted, supports the finding by the
trier of fact.105
As stated, the court erred in admitting evidence of the letter
that Burries wrote to Howard shortly before the trial to show
his consciousness of guilt. Although the letter was admissible
for that purpose, the court’s jury instruction was erroneous.
103
State v. Rask, 294 Neb. 612, 617, 883 N.W.2d 688, 693 (2016).
104
Draper, supra note 8.
105
See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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Cite as 297 Neb. 367But the jury heard cumulative, and much stronger, evidence of
his consciousness of guilt that was properly admitted.
Specifically, Howard testified that after she drove Burries
away from Hoult’s apartment, he had her stop in front of a
randomly chosen house and screamed at her that she would
be an accessory if she told anyone that he had been at Hoult’s
apartment that night. An innocent person would not have
referred to Howard as an accessory or threatened her with
criminal liability for reporting his whereabouts on the night
Hoult was killed. Immediately after this statement, Burries had
Howard drive across a bridge where he threw something out
the window. Howard testified that she complied with his orders
that night because she was afraid of what he might do to her.
This evidence firmly established that Burries had attempted
to intimidate Howard into silence and that she was afraid he
would harm her.
Given the strength of the State’s properly admitted evidence,
we conclude that the jury’s guilty verdict was surely unattrib­
utable to the court’s error.
VI. CONCLUSION
We conclude that the court erred in admitting evidence of
Burries’ letter to Howard without complying with the pro-
cedural requirements for admitting such evidence under rule
404(2). But we conclude that because the State’s other evi-
dence of Burries’ guilt was overwhelming, the court’s error was
harmless beyond a reasonable doubt. As a result, we affirm.
A ffirmed.