State v. Wood , 310 Neb. 391 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/26/2021 01:10 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. WOOD
Cite as 310 Neb. 391State of Nebraska, appellee, v.
Marvin L. Wood, appellant.
___ N.W.2d ___
Filed November 19, 2021. No. S-20-877.
1. Trial: Expert Witnesses. The right of an indigent defendant to the
appointment of an expert witness at the State’s expense generally rests
in the discretion of the trial court.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
3. 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.
4. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal; the deter-
mining factor is whether the record is sufficient to adequately review
the question.
5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
6. Due Process. There are three factors of procedural due process set forth
in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976): First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards; and finally, the government’s
interest, including the function involved and the fiscal and administra-
tive burdens that the additional or substitute procedural requirement
would entail.
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STATE v. WOOD
Cite as 310 Neb. 3917. Expert Witnesses. With respect to a defense request for the appoint-
ment of an expert independent of the prosecution, the question in each
case must be not what field of science or expert knowledge is involved,
but, rather, how important the scientific issue is in the case and how
much help a defense expert could have given.
8. ____. Some reasonable preliminary showing by the defense justifying
its request for the appointment of an expert is necessary because the
criminal justice system cannot afford defense experts on demand.
9. Judges: Expert Witnesses. The determination of whether a defend­
ant has made an adequate showing of the reasonable necessity for an
appointed expert lies within the discretion of the trial judge.
10. Courts: Words and Phrases. A district court abuses its discretion when
its reasoning or rulings are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying a just result in matters submitted
for disposition.
11. Constitutional Law: Expert Witnesses. Outside the context of psy-
chiatric expertise, to show a constitutional right to appointment of an
independent expert at the State’s expense, the accused must timely make
a preliminary, particularized showing (1) that an issue involving spe-
cialized knowledge is likely to be a significant factor in the accused’s
defense and (2) that there is a reasonable necessity for the defense to
have expert assistance in contesting that issue.
12. Expert Witnesses. To be a significant factor in an accused’s defense,
an issue involving specialized knowledge must be one likely to make a
difference as to the outcome if the defendant is successful in contest-
ing it.
13. ____. There is a reasonable necessity for appointed expert assistance
if the defendant shows some basis for believing the issue can only be
strongly contested with the assistance of an appointed expert.
14. Trial: Expert Witnesses. Sometimes, under the facts presented, pretrial
access to the State’s experts and their cross-examination at trial will be
adequate to contest the issue.
15. Expert Witnesses. In the context of a motion for appointment of an
expert, public money need not provide defense counsel with equipment
for a “fishing expedition.”
16. ____. The defense cannot be asked to support the motion for appoint-
ment of an expert with information that can only be found by paying for
expert assistance the defendant cannot afford. Neither should the trial
court demand defense counsel conduct a lay investigation outside the
bounds of what can be expected from an attorney of ordinary training
and experience.
17. Trial: Expert Witnesses. There must be some particularized preliminary
showing by the defendant either that cross-examination of the State’s
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. WOOD
Cite as 310 Neb. 391experts was inadequate to the task of revealing misleading or inadequate
information or that there was a reasonable necessity for an independent
expert to help the defense prepare for effective cross-examination of the
State’s experts.
18. Effectiveness of Counsel: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved.
19. 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.
20. Effectiveness of Counsel: Records: Proof: Appeal and Error. An
appellate court can determine whether the record proves or rebuts the
merits of a claim of ineffective assistance of trial counsel only if it
has knowledge of the specific conduct alleged to constitute deficient
performance.
21. Effectiveness of Counsel: Appeal and Error. In order to preserve a
claim of ineffective assistance of trial counsel when new counsel repre-
sents the defendant on direct appeal, the appellant must make specific
allegations of the conduct the appellant claims constituted deficient
performance by trial counsel.
22. Effectiveness of Counsel: Waiver: Records: Appeal and Error.
Appellate counsel does not waive a claim of ineffective assistance
of trial counsel by failing to specifically allege and argue prejudice,
because doing so would often require details unlikely to be found in the
record or known to the defendant without further inquiry.
23. Records: Appeal and Error. An appellate court ordinarily does
not scour the record in search of facts that might support an appel-
lant’s claim.
24. Rules of Evidence: Hearsay: Evidence: Witnesses. Neb. Rev. Stat.
§ 27-806 (Reissue 2016) allows the credibility of a declarant of a hear-
say statement or statement defined in Neb. Rev. Stat. § 27-801(4)(b)(iii),
(iv), or (v) (Cum. Supp. 2020)—statements offered against a party that
are by a person authorized by the party, by the party’s agent or servant,
or by the party’s coconspirator—to be attacked by any evidence that
would be admissible for those purposes if the declarant had testified as
a witness, without any opportunity to deny or explain.
25. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
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STATE v. WOOD
Cite as 310 Neb. 39126. Hearsay. Statements offered to show their effect on the listener are
not hearsay.
27. ____. Statements are not hearsay to the extent they are offered for con-
text and coherence of other admissible statements and not for the truth
or the truth of the matter asserted.
28. Witnesses: Impeachment: Prior Convictions. The basic premise
underlying impeachment of a witness by evidence of a prior felony
conviction is that any past felony committed by the witness is to some
degree relevant to that individual’s credibility.
29. Witnesses. Credibility of a witness is not at issue when the truth of the
assertions are not in dispute.
30. Judges: Evidence: Appeal and Error. The exercise of judicial dis-
cretion is implicit in determinations of relevancy, and a trial court’s
decision regarding relevancy will not be reversed absent an abuse of
discretion.
31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guar-
antees an opportunity for effective cross-examination, but not in what-
ever way or to whatever extent the defendant might wish, and trial
judges retain wide latitude to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.
32. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
33. Effectiveness of Counsel: Presumptions. In assessing deficiency in
counsel’s performance, a court presumes that counsel rendered adequate
assistance and made all significant decisions in the exercise of reason-
able professional judgment.
34. Effectiveness of Counsel. Trial counsel’s decisions that amount to rea-
sonable trial strategy do not constitute deficient performance.
35. ____. Decisions about whether to engage in cross-examination, and if so
to what extent and in what manner, are strategic in nature and generally
will not support an ineffective assistance claim.
36. Effectiveness of Counsel: Appeal and Error. An appellate court does
not use perfect hindsight to criticize unsuccessful trial strategies or
second-guess trial strategy.
37. Expert Witnesses: Words and Phrases. An expert does not have to
couch his or her opinion in the magic words of reasonable certainty, but
it must be sufficiently definite and relevant to provide a basis for the
fact finder’s determination of a material fact.
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STATE v. WOOD
Cite as 310 Neb. 39138. Expert Witnesses. A court should exclude an expert’s opinion when it
gives rise to conflicting inferences of equal probability, so the choice
between them is a matter of conjecture.
39. DNA Testing: Evidence: Jurors. The potential precision of DNA
testing is well known; thus, jurors might wrongly assume, absent evi-
dence of statistical relevance, that any DNA profile match is extremely
unlikely and therefore extremely probative.
40. ____: ____: ____. Because of the significance that jurors will likely
attach to DNA evidence, the value of inconclusive testing results with-
out statistical relevance is substantially outweighed by the danger that
the evidence will mislead the jurors.
41. Sexual Assault: DNA Testing: Evidence: Jurors. In an alleged sexual
assault described by a female victim as involving her genital area and
a male perpetrator, the presence of male DNA near the victim’s genital
area is relevant to whether the assault occurred as the victim described,
and such evidence is not outweighed by a danger of confusing the issues
or misleading the jurors even if the DNA is of insufficient quantity or
quality to obtain a profile.
42. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
43. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
44. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
instruct on a lesser-included offense if (1) the elements of the lesser
offense for which an instruction is requested are such that one cannot
commit the greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant of the
lesser offense.
45. Lesser-Included Offenses: Sexual Assault. Attempted first degree sex-
ual assault of a child is a lesser-included offense of first degree sexual
assault of a child.
Appeal from the District Court for Hall County: Andrew C.
Butler, Judge. Affirmed.
Robert W. Alexander, Deputy Hall County Public Defender,
for appellant.
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STATE v. WOOD
Cite as 310 Neb. 391Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
Marvin L. Wood appeals from his conviction of first degree
sexual assault of a child. He asserts the trial court erred by
refusing to appoint him a DNA expert, sustaining the prosecu-
tion’s objection to further use of a forensic video to refresh
the victim’s recollection, and sustaining the State’s relevancy
objection to his attempt to adduce the fact that the declarant
of certain out-of-court statements was a convicted felon. Wood
also makes numerous claims of ineffective assistance of his
trial counsel, including the failure to adequately support the
motion for a DNA expert, the handling of the State’s DNA evi-
dence, and the cross-examination of the victim. We affirm the
judgment below.
II. BACKGROUND
With counsel different from trial counsel, Wood appeals
his conviction, following a jury trial, of first degree sexual
assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a)
(Reissue 2016). Trial counsel did not request that the jury be
instructed on a lesser-included offense of attempted first degree
assault of a child. The victim was friends with Wood’s daugh-
ter, and the assault occurred during a sleepover with Wood’s
daughter at Wood’s apartment. The victim was 8 years old at
the time of the assault and 9 years old at the time of trial.
1. Motion to Employ Expert Witness
Wood was charged in September 2019. Due to laboratory
delays in DNA testing, trial was continued to August 3, 2020,
with a pretrial conference set for July 2. The DNA test results
became available to the defense on June 8. At the July 2 pre-
trial conference, defense counsel indicated readiness to go
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STATE v. WOOD
Cite as 310 Neb. 391to trial. However, on July 17, Wood moved to continue trial
on the grounds that he would be asking the court to provide
funds to retain a DNA expert and that the expert Wood wished
to hire was not available during the scheduled week of trial.
The prosecutor objected, noting it was the first she had heard
about the alleged need for a DNA expert. The court granted the
contin­uance, ordering trial to begin on September 14.
On July 27, 2020, Wood moved for the court to provide him
“with reasonable funds to employ an independent expert wit-
ness in the field of DNA science” and set forth the estimated
costs and fees for the expert witness he proposed to hire. As for
the need for such an expert, the motion elaborated that “[b]ased
on counsel’s review of discovery, the State’s evidence in the
above-styled case appears to consist of testimony of an alleged
victim, photographs of her injuries, medical reports and expert
testimony.” This meant that
[Wood] has a particularized need for the assistance of
an independent expert in the field of DNA science to
assess the DNA reports and testing methods completed
by the Nebraska Crime Lab and explain if they are con-
sistent with the statement(s) of the alleged victim, proper
scientific methods, and the other evidence collected in
this case.
Based upon the DNA report completed by the Nebraska State
Patrol Crime Laboratory, “it has become apparent further anal-
ysis is needed regarding test results and methods of testing
used by the Nebraska State Patrol Crime Laboratory.” Finally,
the motion set forth that “[c]ounsel for [Wood] lacks the nec-
essary expertise to question the DNA reports provided by the
State in regards to DNA testing methods and DNA results to
determine whether the alleged victim’s statements and testing
are consistent with the DNA evidence that may exist.” And
“[c]ounsel lacks expertise regarding testing methodology and
if such testing was conducted according to the recognized stan-
dards.” Therefore, trial counsel was “in need of the assistance
of an expert witness in the DNA field to assist in evaluating
these matters.”
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STATE v. WOOD
Cite as 310 Neb. 391At hearings on the motion, trial counsel introduced evidence
to support Wood’s indigent status. The court acknowledged
the evidence demonstrated Wood was indigent. Trial counsel
explained Wood had used all his assets in retaining counsel
that was continuing representation on a pro bono basis. The
only other evidence offered by trial counsel was a copy of the
motion and its attached cost estimate for the proposed expert.
Trial counsel acknowledged that the court had allowed Wood
to employ an expert sexual assault nurse examiner to testify on
behalf of the defense and that the State had allowed the defense
to have access to its DNA expert from the Nebraska State
Patrol Crime Laboratory. Nevertheless, trial counsel became
aware of the need for a DNA expert after witness preparation
occurred with Wood’s expert sexual assault nurse examiner in
mid-July. Trial counsel argued that “based on some of the con-
clusions and the methodology that was used in the creation of
the DNA report, we’re needing a DNA expert” “to look at how
these tests were performed.” Trial counsel elaborated:
We believe it’s necessary to employ a DNA expert to
help the jury to understand what the DNA evidence in this
case means. Specifically, I believe the evidence will show
that there was found on the alleged victim’s underwear a
mixture of DNA from three people, a 4 percent portion of
which appears to be that of . . . Wood.
However, the amount of DNA, the amount of cells
where it was found, to explain to the jury how that actu-
ally exists in life, whether it’s touch DNA, what kind of
cells, all of that, Judge, I’m not an expert in DNA. The
jury is not an expert in DNA. But I believe it’s important
that we have someone who can explain to them exactly
what this means.
The State will have an expert that does all of that and
explain how things were tested and how it was found,
why they believe that it’s . . . Wood’s DNA on those
underwear, but the jury also needs to understand the facts
in totality.
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STATE v. WOOD
Cite as 310 Neb. 391Because in speaking to our expert, talking about mark-
ers, talking about whether it’s one in a billion or one in a
trillion or one in 500,000, all these probabilities of who it
could be, how many cells, what kind of cells, whether it’s
touch DNA, seminal fluid or semen, all of these things
matter. It’s something we don’t have the expertise to
explain to the jury.
Trial counsel also described an alleged phone call with the
Nebraska State Patrol Crime Laboratory in which it was dis-
closed that no male DNA was detected in any of the swabs and
the biologist “didn’t understand the findings that were in that
lab report.” Trial counsel summarized that the request was for
the court to “allow us to hire this expert and to use her both for
review of the trial to help educate us as to DNA and its mean-
ing, and then to educate the jury and educate a layman exactly
what that means.”
The court denied the motion. It observed that “virtually no
evidence to support the motion was offered” and that “[t]he
reasons that prompted an ‘apparent’ need for an expert witness
remain largely unspecified.” It then reasoned:
The State has indicated that it intends to call upon an
expert in genetic analysis employed by the Nebraska
Crime Lab. While this expert would technically be con-
sidered the State’s witness, this Court finds no evidence
to suggest that defense counsel is deprived of the right
to cross examination. Likewise, this Court possesses no
knowledge that would indicate that defense counsel is
incapable of amassing sufficient independent research on
the subject that would equip defense counsel with the rel-
evant knowledge and resources required to conduct such
cross examination.
The court concluded that it was not “required to provide
[Wood] with the tools needed for a ‘fishing expedition’” and it
was “confident that defense counsel in this case has the intel-
lectual capacity, resources, and creativity required to mount an
exceptionally comprehensive cross examination of the State’s
proposed expert witness.”
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STATE v. WOOD
Cite as 310 Neb. 3912. Mother’s Testimony
The first witness called by the State was the victim’s mother.
She testified that she was in a romantic relationship with
Matthew Price, the owner of an auto shop where Wood worked,
and that her daughter and Wood’s daughter were friends.
The two girls often played together at the shop where Wood
was employed.
The mother testified that the morning after the victim spent
the night at Wood’s apartment for a sleepover with Wood’s
daughter, she was informed the victim would be going to
Lincoln, Nebraska, with Wood and his daughter because Wood
had to get a title to a vehicle. These arrangements were unex-
pected and were made without her input. Later that day, Wood
dropped the victim off at a parking lot near Price’s softball
game that the mother was attending. Wood’s daughter was not
with him. The victim exited Wood’s vehicle first, holding an
outfit Wood had purchased for her in Lincoln. When Wood
exited the vehicle, the first thing he said was, “‘She’s been a
fucking brat all day.’” Price invited Wood to stay for the game,
but Wood declined.
The mother and the victim sat in the dugout to watch the
game. The mother testified that, since the victim’s arrival,
the victim “was being really quiet,” “clinging on to me pretty
tight,” and “wasn’t saying anything when anybody was around
at all.” The mother asked the victim if something was wrong.
The victim told her mother she needed to tell her a “secret.”
After the victim told her the “secret,” the mother immediately
“hollered to the field,” telling Price she needed to leave. They
took the victim immediately to a hospital. The mother told the
victim they needed to see a doctor because of what happened.
The victim said, “‘Okay.’” She “was crying in the car the
whole time.”
There was a delay in finding someone to come to the hospi-
tal to examine the victim. The mother testified that while they
were waiting for the victim to be examined, the victim needed
to use the restroom. The mother accompanied her. After the
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STATE v. WOOD
Cite as 310 Neb. 391victim wiped herself, she showed her mother the toilet paper,
because it had blood on it. The mother conveyed this informa-
tion to a nurse at the hospital. The mother explained that before
that day, the victim had not complained of experiencing any
irritation in her vaginal area, and that the victim normally tells
her “right away” if something like that is wrong.
They waited about 5 hours while the hospital attempted to
set up a medical examination, but it was not able to do so.
The entire time, the victim kept wearing everything she had
worn since being dropped off with her mother, because the
staff “didn’t want to contaminate anything.” This included the
underwear she had worn during the sleepover.
After the victim was released from the hospital, her mother
and Price took her to a child advocacy center. The victim was
quiet on the ride there. The victim was asked to change her
underwear and give the underwear she was wearing to the
interviewer at the child advocacy center, who put them in a
paper bag. The victim was interviewed, and then they went
home. The interview had lasted until approximately 1 a.m.;
they had arrived there late in the evening.
The victim was finally able to be examined by a pediatrician
2 days after she spent the night at Wood’s apartment.
The mother described changes in the victim’s behavior. Her
normally “pretty happy kid” had become more quiet and would
“get angry about small things.” The victim has two siblings.
While the victim used to occasionally shower with her younger
sister when there was not enough time for all three siblings to
take separate showers, she no longer did. The victim did not
want to get dressed in front of anyone. When it was time to
go to bed, the victim “would start crying that she didn’t want
to be, like, in her room by herself” and she “would wake up
crying a lot.” This was not behavior the mother had observed
before the victim spent the night at Wood’s apartment.
During trial counsel’s cross-examination of the mother, she
was asked whether she knew Price was a convicted felon.
The prosecution objected, and counsel had an in-chambers
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STATE v. WOOD
Cite as 310 Neb. 391conference in which the prosecution explained its objection
was on the grounds of relevance and improper character evi-
dence. Defense counsel argued the evidence supported the
theory that Price and the victim’s mother “got together and
chose to have [the victim] make up this story.” The court sus-
tained the objection, explaining that, at that time, there was no
evidence supporting the relevancy of Price’s criminal history.
The court explained that it would retain the mother for added
testimony later, if defense counsel wished. Defense counsel
said nothing further on the matter. The jury was instructed to
disregard the question regarding Price’s criminal history.
The mother’s testimony during direct examination had
referred to approximately five general statements by Price. At
one point in describing the events leading up to the sleepover,
she said Price had told her that because the victim had been
good all day, he was going to let her go to the sleepover. She
also described how Price had told her that Wood took the vic-
tim directly from the shop to the sleepover at his apartment.
Price had informed the mother that the victim was going with
Wood and Wood’s daughter to Lincoln the day following the
sleepover. The mother testified as to how Price had invited
Wood to stay and watch the softball game. Finally, when the
mother later yelled at Price that she needed to leave, she testi-
fied Price asked her, “‘What’s wrong?’”
3. Law Enforcement Officer Testimony
A law enforcement officer who had met the victim at the
hospital testified at trial. She described the victim as “with-
drawn” and “in shock.” The officer testified she became aware
at the hospital that blood had been observed on a piece of toilet
paper after the victim used the restroom. She elaborated that
she heard multiple medical professionals speaking about it.
The officer went to the child advocacy center when the
victim did, collected the underwear, and placed it into evi-
dence. The officer later went to Wood’s apartment, and Wood
accompanied the officer to the police station for an interview.
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STATE v. WOOD
Cite as 310 Neb. 391In the interview, Wood said he had gone to his daughter’s room
to comfort the victim who was scared of a severe storm that
occurred that night. The officer affirmed on cross-examination
that a large storm had occurred on the night in question.
The officer testified that Wood said he brought the victim
to the sofa bed in the living room, which had been turned
into a bed; gave the victim a “tablet [computer] for entertain-
ment”; and lay down next to her and fell asleep. Wood denied
any physical contact other than putting his arm around her for
comfort. At some point during the interview, Wood expressed
that the victim had put on only a shirt and underwear to wear
to bed and that he thought it was unacceptable she was not
wearing pants. Further, Wood said that sometimes the victim
would climb all over him, “but she sets those boundaries.”
Wood stated that when he woke up on the sofa bed, “she was
right there, that she sets those boundaries.”
4. DNA and Serum Testing of Clothing
and Medical Examination Swabs
A forensic biologist in the DNA unit of the Nebraska State
Patrol Crime Laboratory testified as to the procedures and
results of DNA and serum testing of the victim’s clothing and
of swabs taken during the medical examination.
(a) Serum Testing
The biologist tested the items from the sexual assault medi-
cal examination kit, which included two vaginal swabs, two
external genital swabs, and two oral evidence swabs. Serology
testing did not detect the presence of semen in any item con-
tained in the kit.
(b) DNA Processing of Examination
Swabs and Exhibit 18
The biologist then processed all the examination swabs for
DNA. Exhibit 18, entered into evidence by the State without
objection, is the laboratory report signed by the biologist. It
shows that no semen was found in the swabs and that DNA
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STATE v. WOOD
Cite as 310 Neb. 391testing was performed on them. It shows that DNA processing
of the DNA samples in both the two vaginal swabs and the
two oral evidence swabs was stopped “due to the insufficient
quantity of male DNA detected.” The victim’s DNA was found
on the external genital swabs, while Wood was excluded as a
contributor to the DNA profile detected.
The biologist explained that the aspect of the report showing
processing of the two vaginal swabs and the two oral swabs
was stopped, due to the insufficient quantity of male DNA
detected, meant that she “was not able to detect the presence
of male DNA on the sample.” The State then asked the biolo-
gist, “Can you say with certainty that there was no male DNA
on the two vaginal swabs?” She responded, without objection,
“I couldn’t say definitively, no, there’s no DNA present. It
just wasn’t in great enough amounts to be detected using this
form of testing.” With respect to the oral swabs, the biologist
again confirmed, without objection, she was not able to say
with absolute certainty whether or not there was male DNA
on them.
The biologist was also asked about the external genital
swabs. She explained that, referring to some of the worksheets
generated as a byproduct of her testing during the quantitation
portion of the DNA process, she had detected the presence of
both male and female DNA. This information is not reflected
in the report. The biologist testified that, as stated in the report,
Wood’s profile was excluded from that sample, while the vic-
tim’s DNA was included. The biologist explained Wood was
excluded because she was not able to find a profile of that
male DNA to compare with other DNA profiles. “In samples
like this where there’s a greater female present than male, the
female can essentially drown out any potential load level of
male DNA.”
(c) Y-STR DNA Testing of Examination
Swabs and Exhibit 20
The biologist testified that in a further attempt to find
a profile in the male DNA she had detected, she sent the
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STATE v. WOOD
Cite as 310 Neb. 391external genital swabs for “Y-STR testing,” which can ignore
the female DNA and just focus on the male DNA. This can
make it possible to obtain a DNA profile to use for comparison
purposes. The Y-STR DNA testing was performed by one of
the supervisors in the biology unit of the Nebraska State Patrol
Crime Laboratory. The biologist reviewed the report, marked
as exhibit 20, before testifying further. She then testified that
the Y-STR DNA testing was, like the DNA testing conducted
by herself, unable to detect a male DNA profile. As a result,
the male DNA found could not be compared with any other
known DNA profiles for comparison purposes.
The State did not offer exhibit 20 into evidence. But on
cross-examination, trial counsel offered exhibit 20 into evi-
dence and it was received. The biologist testified that the
supervisor’s report, marked as exhibit 20, was a true and accu-
rate copy and that she recognized the supervisor’s signature
on it.
Exhibit 20 is a short report that concludes no Y-STR DNA
profile was found.
(d) Epithelial DNA on Underwear and Exhibit 17
The biologist also performed testing on the victim’s under-
wear that she wore at the time of the incident, which testing did
not detect semen. Swabs for epithelial, or “touch,” DNA on the
waistband and crotch area of the underwear were tested, and a
mixture of DNA originating from three individuals was found.
The victim was a major contributor to that mixture.
Testing included Wood as one of the minor contributors to
the mixture. Two percent of the DNA mixture was from an
unknown person. The results of this DNA testing were entered
into evidence as exhibit 17.
During cross-examination, the biologist explained that touch
DNA could be transferred directly or indirectly by touching
things a person has touched. She also explained that one would
expect to find the touch DNA of a person on surfaces where
that person lives.
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STATE v. WOOD
Cite as 310 Neb. 3915. Victim’s Testimony
The victim testified that the last time she spent the night at
Wood’s apartment, she had slept in the top bunk of a bunk bed
in her friend’s bedroom. She testified that Wood woke her up.
Wood accompanied her to the living room, where a sofa bed
had been made into a bed. The victim described that while
she stood by the sofa bed, Wood removed her pajama pants.
She admitted she was unsure if she was wearing a nightgown
instead of pants. The victim described that Wood removed her
underwear. Wood lay down on the sofa bed with the victim and
unzipped and pulled his pants down “a little.” The victim testi-
fied Wood lay on top of her and “put[] his finger in my private
part.” They eventually went to Wood’s bedroom, where the
victim described “he put his private in mine.”
The victim described that during the shopping excursion
the following day, Wood said he did not want the victim “to
tell” because she and Price “were his only friends.” The victim
could not remember if she was wearing the new clothes the fol-
lowing day when she was brought back to her mother.
The victim explained that she told her mother what had hap-
pened and that they went to the hospital. At the hospital, her
mother accompanied her when she had to use the bathroom,
and her “pee” was light red and it hurt when she urinated. The
victim also explained that she was wearing the same underwear
she had worn when Wood had woken her up.
(a) Refreshing Recollection With Video
Trial counsel had moved before trial for the release of the
child advocacy center video of the victim’s forensic interview,
but had then withdrawn this request, explaining, “We needed
to have it formatted in a way we could go back and forth in
time in case we need to refresh the memory of the [victim].
We were able to do that without the necessity of releasing it
to anyone.” On cross-examination, the victim testified she did
not remember if she had taken clothes to Wood’s apartment
or if she had taken a shower or bath while there. Most of the
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Cite as 310 Neb. 391cross-examination centered on the victim’s prior statements in
the forensic interview and deposition.
At one point, trial counsel asked about the interview and the
fact that it was just the victim and the interviewer present in
the room. When trial counsel then asked questions such as, “do
you remember where you told them that this took place?,” a
series of questions and answers revealed the victim’s confusion
about whether she was being asked about the room where the
interview had taken place or the location where the assault had
taken place.
She eventually testified she had told the interviewer the
incident started in her friend’s room, moved to the living
room, and then to Wood’s bedroom. At that point, in chambers,
defense counsel was permitted to show the victim a portion of
the video of the interview. Upon returning to the courtroom,
the victim stated that the video had refreshed her memory.
The victim confirmed she had told the interviewer that
Wood and she went from her friend’s bedroom to Wood’s bed-
room. She had not told the interviewer anything with Wood
had occurred in the living room.
Trial counsel also confronted the victim with her deposition
testimony that Wood had taken her to the living room, where
all the events described occurred. She did not testify in her
deposition that she had gone to Wood’s bedroom.
Trial counsel proceeded to ask the victim if she remembered
what she had told the interviewer with respect to whether Wood
took his clothes off or only unzipped his pants. When the vic-
tim said she did not remember, she was again taken in cham-
bers where she watched a portion of the video of her interview.
Upon returning to the courtroom, the victim testified she had
told the interviewer that Wood had taken his clothes off.
Next, trial counsel confronted the victim with her statement
in her deposition that Wood had placed her into his bed. Trial
counsel asked if she remembered what she had said in this
regard in her interview at the child advocacy center. She did
not remember. But before the court ruled on trial counsel’s
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STATE v. WOOD
Cite as 310 Neb. 391request to take the victim back in chambers to watch a portion
of the video, an off-the-record discussion between counsel and
the court took place, after which the jury was dismissed until
the continuation of trial the following day.
(b) Plan to Have Victim Watch Entire Video
The court articulated that a plan had been made for the
victim to watch the entirety of the interview video with her
guardian ad litem and have the transcript of her deposition read
to her before testifying the next day. The court explained this
was to avoid the “up-and-down issue that we have been having
with this.”
The following morning, however, the prosecution explained
the victim had her deposition read to her, but only watched
about 16 minutes of the 45-minute interview before the guard-
ian ad litem decided to stop it. The guardian ad litem explained
she became “very concerned with [the victim’s] demeanor and
a change in her demeanor that I thought she became just vis-
ibly upset and kind of shrunken down into her chair.”
(c) Objection and Ruling That Video
Could Not Be Used
The prosecution stated that it had reflected upon “what hap-
pened yesterday” and that, after some research, it decided to
motion the court to prohibit the defense from using the inter-
view video to refresh the victim’s recollection. The prosecu-
tion relied on the fact that Neb. Rev. Stat. § 27-612 (Reissue
2016) refers only to writings, as well as the case of State v.
Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). Even if
refreshing the victim’s recollection with the video were per-
missible, the State argued the procedure used did not comport
with § 27-612. Lastly, the prosecution explained it believed
counsel was attempting to impeach the victim under the guise
of refreshing her recollection.
According to the prosecution, when the attempted impeach-
ment did not work because the victim did not remember what
she had said, the rules contemplated impeachment through
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Cite as 310 Neb. 391extrinsic evidence, not by using extrinsic evidence to refresh
a victim’s recollection so she could then impeach herself. The
prosecution argued there were other means to impeach the vic-
tim’s testimony without making her watch the interview video.
For example, the defense could call another witness who was
present at the interview and impeach the witness’ testimony by
adducing the other witness’ testimony about what was said.
Trial counsel responded no notice was given that this was
to be discussed and the matter was believed to be settled. That
said, “Certainly I have no issue using her prior statements
against her without her being refreshed. Probably would have
been easier for her.” But trial counsel also pointed out that
Neb. Rev. Stat. § 27-613 (Reissue 2016) describes giving a
witness the opportunity to explain or deny a prior inconsistent
statement. Trial counsel then argued that “for her to simply say
I don’t remember when she made an inconsistent statement is
not acceptable. We would then be unable to delve into it by
actually playing that portion of the video to the jury.”
The court ruled that the victim’s recollection could no longer
be refreshed by use of the interview video, nor could the video
be played for the jury as extrinsic evidence to impeach the vic-
tim. The court said:
Yes, going forward, the moment [the victim] indicates
she doesn’t remember, she doesn’t remember. That is her
answer. You do have the opportunity through [§ 27-]613
for the inconsistent statements with extrinsic evidence,
but that will not include the playing of that video or the
refreshing of her recollection with that video.
We still have the deposition, which that has been read
to her this morning, and you can question regarding that.
Trial counsel did not respond to this pronouncement and did
not ask to make an offer of proof as to any impeachment
believed to be thereby impeded.
(d) Resumption of Cross-Examination
When cross-examination resumed, the victim admitted that
she had told defense counsel in her deposition that she had
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STATE v. WOOD
Cite as 310 Neb. 391dressed herself after the assault, while in her testimony at trial
she said Wood put her clothes on her. Defense counsel also
questioned the victim about the details of her shopping trip
with Wood the following day.
6. Testimony of Forensic Interviewer
The forensic interviewer testified about her interview of
the victim the evening after the assault. She said that she was
trained in the disclosure process children typically use when
disclosing traumatic events and that disclosure does not usually
happen all at once. Also, a child may not disclose all the details
involved in the assault during the forensic interview.
On cross-examination, trial counsel asked the interviewer
where the victim had told her the incident had taken place.
The interviewer answered in the bedroom. Then trial counsel
asked, “Let’s talk first about [Wood’s] bedroom. Is that where
she said the, I’ll call it touching, took place?” The prosecution
objected on the grounds of hearsay and improper impeach-
ment. In a discussion at the bench, the trial counsel asserted
the question was not hearsay because it was asked to elicit the
prior inconsistent statements for purposes of impeachment. The
prosecution responded:
He is only able to impeach specific statements that [the
victim] testified to when she testified in this court hear-
ing, and asking this witness to have her essentially recount
everything that [the victim] told her is above and beyond
impeachment. He needs to be specific, needs to ask her
— I mean, we haven’t even said a specific statement he’s
attempting to impeach. To use [the interviewer] to reiter-
ate the entirety of the interview is not confined enough to
qualify as improper impeachment.
Trial counsel withdrew the question and agreed to ask a
more specific question. The following cross-examination then
took place:
Q Did [the victim] tell you that the incident took place
in [Wood’s] room?
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STATE v. WOOD
Cite as 310 Neb. 391A Part of it, yes.
Q Did [the victim] tell you that in [Wood’s] room [he]
put his private parts in her private parts?
A Yes.
Q Did [the victim] tell you that [Wood] took her
back to her bed, the bunkbed, got in bed with her and
kissed her?
A Yes.
....
Q [The victim] then said that [Wood] got out of the top
bunk and she went to sleep, correct?
A Yes.
....
Q Did [the victim] tell you that . . . Wood took off his
clothes?
A Yes.
On redirect, the interviewer testified that children dis-
closing traumatic events do not always disclose the facts
chronologically.
7. Sexual Assault Examination
The pediatrician who performed the victim’s sexual assault
examination testified the victim had disclosed she had some
burning and some blood when she urinated the night before,
but those issues had resolved by the time of the examination.
The pediatrician testified that the victim eventually became
uncooperative when the pediatrician attempted to swab the out-
side of the victim’s vaginal opening and that the pediatrician
was unable to swab fully.
All other aspects of the sexual examination kit were com-
pleted successfully. The pediatrician also conducted a physi-
cal examination for injuries. She photographed the area, but
explained the photographs could have been better had the vic-
tim been more cooperative when they were taken. The victim
at that point had become “uncomfortable.”
- 412 -
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STATE v. WOOD
Cite as 310 Neb. 391The pediatrician testified that she observed during the physi-
cal examination “an extreme amount of redness and irritated
tissue from about 3 o’clock going around to about 9 o’clock on
the face of a clock.” She explained, “Lots of young girls have
redness down there, but this was impressive, much more than
you see on a standard exam of a child.”
The pediatrician also observed a superficial, vertical lac-
eration at about the 9 o’clock position and in the folds of the
labia minora adjacent to the vaginal opening. The tissue of
the vagina heals very quickly; therefore, she concluded the
observed injuries were recent.
The victim’s injuries, the pediatrician explained, could have
caused bleeding when they first occurred, as well as burning
during urination. Further, there would not necessarily be blood
on the victim’s underwear given the injuries and reported
bleeding. Rather, “[t]he way that it’s hidden up in these tis-
sues,” it was possible that “when [she] wiped over it, it opened
it up again or that that blood had sort [sic] been tucked up in
that tissue.”
The pediatrician stated the observed injuries could be con-
sistent with digital or penile penetration of the vagina. On
cross-examination, the pediatrician conceded it was “possible”
the observed injuries were caused by acts that were not “crimi-
nal or nefarious.”
8. Defense Expert Witness
The defense called as an expert witness the sexual assault
nurse examiner, who was also a nurse practitioner with a
doctorate degree in nursing. The expert works as the assistant
manager of a forensic assessment consultation and treatment
program. She had reviewed the police records, a transcript of
the forensic interview, the medical records from the hospital,
and the medical records from the forensic examination.
The expert testified that redness is a nonspecific finding
that “really holds no significance to the exam.” She observed
no physical injuries from the photographs taken during the
examination.
- 413 -
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Cite as 310 Neb. 391The expert stated that if there was blood observed after
urinating, she would expect blood cells would be detected in
a urinalysis. A urinalysis had been completed at the hospital.
The expert stated that if she remembered correctly, “the blood
was negative, the urine was clear. And then I believe there
were minimal whites, which is white blood cells, and then red
blood cells were present.”
Based on her review of the records, the expert opined
there was no injury indicative of sexual abuse. On cross-­
examination, the expert admitted that it is possible for a sexual
assault not to cause any injuries.
9. Jury Instruction Conference
and Closing Arguments
Wood’s trial counsel did not object to any of the jury instruc-
tions or the verdict form and did not submit any additional pro-
posed instructions. During closing arguments, the prosecution
pointed out the victim’s physical injuries and made the follow-
ing argument with respect to the DNA evidence:
We had DNA evidence. Sure, I think it was pointed
out by one of the defense attorneys during their cross-
examination maybe in 100 years we’ll finally catch up to
CSI and all of the other television shows. Fair enough.
But we know that there was male DNA on the external
genital swabs that were collected from [the victim] during
[the victim’s] exam. There shouldn’t be male DNA on the
external area of an eight-year-old’s vagina.
We also know that . . . Wood’s DNA is on [the vic-
tim’s] underwear, the underwear she was wearing imme-
diately before, immediately after the assault happened.
The prosecution also pointed out that disclosure of a sexual
assault is a process that does not necessarily happen all at once
or in a perfect chronological retelling. The prosecution pointed
out that the victim was a child who did not know about sexual
intercourse and who had no experience to assist in processing
this trauma. Despite this, she was expected to talk about the
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STATE v. WOOD
Cite as 310 Neb. 391assault and then have a pediatrician examine her “on a part of
her body that isn’t normal for an eight-year-old girl to have
examined.” Lastly, the prosecution described the testimony
indicating the victim’s changes in behavior and demeanor after
the assault.
Trial counsel emphasized in closing arguments the burden of
proof. Trial counsel pointed out that the victim had told three
different stories and that there were multiple inconsistencies in
her statements about the alleged assault. In fact, trial counsel
had counted the inconsistencies to be “into the teens.” Trial
counsel asserted, “It’s easy to remember the truth. It’s very
hard to remember a lie.”
Trial counsel also emphasized that its expert found no injury
demonstrating sexual assault and that the presence of epithelial
cells in underwear worn overnight while in Wood’s “messy
apartment” was not incriminating, given that the cells can be
transferred via surfaces.
III. ASSIGNMENTS OF ERROR
Wood assigns that the district court erred when it (1) denied
his motion that a DNA expert be appointed, (2) refused to
allow Wood to refresh the victim’s recollection by having her
watch the video of her forensic interview, and (3) prohibited
Wood from asking the victim’s mother if Price, who was
Wood’s employer, was a convicted felon.
Wood assigns that trial counsel was ineffective in (1) fail-
ing to request a lesser-included instruction of attempted first
degree sexual assault of a child, (2) “Failing to Investigate the
Case Fully,” (3) presenting “Virtually No Evidence in Support
of his Motion to Employ an Expert Witness and for Payment
of the Same,” (4) failing to object to “Clearly Irrelevant and
Unduly Prejudicial Testimony About DNA Testing Results
with No Statistical Significance,” (5) failing to object to the
biologist’s “Testimony” regarding the Y-STR DNA testing
conducted by her supervisor, (6) offering exhibit 20, (7) “in
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STATE v. WOOD
Cite as 310 Neb. 391his Cross-Examination” of the victim, and (8) “in his Cross-
Examination” of the forensic interviewer.
IV. STANDARD OF REVIEW
[1] The right of an indigent defendant to the appointment of
an expert witness at the State’s expense generally rests in the
discretion of the trial court. 1
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. 2 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. 3
[4,5] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved on direct appeal; the determining factor is whether
the record is sufficient to adequately review the question. 4 The
record is sufficient to resolve on direct appeal a claim of inef-
fective assistance of counsel if the record affirmatively proves
or rebuts either deficiency or prejudice with respect to the
defendant’s claims. 5
V. ANALYSIS
Wood asserts on appeal three errors by the trial court and
numerous alleged acts of ineffective assistance by his trial
counsel. Wood argues the court erred by denying his pretrial
motion that a DNA expert be appointed and, alternatively,
1
State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Quezada, 20
Neb. App. 836, 834 N.W.2d 258 (2013).
2
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
3
Id.4
See State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
5
See id.- 416 -
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STATE v. WOOD
Cite as 310 Neb. 391that defense counsel was ineffective for presenting “Virtually
No Evidence” in support of the motion for appointment of
a DNA expert. Wood argues the court erred during trial in
prohibiting defense counsel from eliciting testimony from
the victim’s mother that Price was a convicted felon in order
to impeach Price’s out-of-court statements. Wood argues the
trial court erred by sustaining the prosecution’s objection to
any further use of the forensic video to refresh the victim’s
recollection. Relatedly, he asserts defense counsel was inef-
fective in the manner the victim was cross-examined. Defense
counsel was also allegedly ineffective in cross-examining the
forensic examiner about the victim’s interview statements.
Wood claims defense counsel failed to “Investigate the Case
Fully” and mishandled the evidence relating to the DNA test-
ing of the swabs from the medical examination. Finally, Wood
argues defense counsel was ineffective by failing to request an
instruction on the lesser-included offense of attempt.
1. Failure to Appoint DNA Expert and
Alleged Ineffectiveness in Trial
Counsel’s Lack of Support
for Its Motion
The right of an indigent defendant to the appointment of an
expert witness at the State’s expense generally rests in the dis-
cretion of the trial court. 6 Neb. Rev. Stat. § 27-706(1) (Reissue
2016) provides, in part:
The judge may on his own motion or on the motion of
any party enter an order to show why expert witnesses
should not be appointed, and may request the parties to
submit nominations. The judge may appoint any expert
witnesses agreed upon by the parties, and may appoint
witnesses of his own selection.
Under § 27-706(2), “Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the judge may
6
State v. Baue, supra note 1.
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STATE v. WOOD
Cite as 310 Neb. 391allow. The compensation thus fixed is payable from funds
which may be provided by law in criminal cases . . . .”
We have repeatedly held that the right of an indigent defend­
ant to the appointment of an expert witness at the State’s
expense generally rests in the discretion of the trial court. 7
Wood asserts the trial court abused its discretion because deny-
ing his request for appointment of a DNA expert violated his
rights to procedural due process.
The U.S. Supreme Court has said that “when a State brings
its judicial power to bear on an indigent defendant in a crimi-
nal proceeding, it must take steps to assure that the defendant
has a fair opportunity to present his defense,” and that “justice
cannot be equal where, simply as a result of his poverty, a
defendant is denied the opportunity to participate meaningfully
in a judicial proceeding in which his liberty is at stake.” 8 The
Court stated, “[A] criminal trial is fundamentally unfair if the
State proceeds against an indigent defendant without making
certain he has access to the raw materials integral to the build-
ing of an effective defense.” 9 The State need not purchase for
the indigent defendant all the assistance wealthier counterparts
might buy, 10 but the “‘basic tools of an adequate defense or
appeal’” must be provided to those defendants who cannot
afford to pay for them. 11
In Ake v. Oklahoma, 12 and McWilliams v. Dunn, 13 the Court
held that an indigent defendant has a constitutional right
7
Id.8
Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 84 L. Ed. 2d 53(1985).
9
Id., 470 U.S. at 77.
10
See id. See, also, Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed.
2d 341 (1974).
11
Ake v. Oklahoma, supra note 8.
12
Id.13
McWilliams v. Dunn, ___ U.S. ___, 137 S. Ct. 1790, 198 L. Ed. 2d 341(2017).
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Cite as 310 Neb. 391to access to an expert in psychiatry after the defendant has
made a preliminary showing that the defendant’s sanity at
the time of the offense is “likely” to be “a significant fac-
tor in his defense.” 14 It found the need for an independent
expert psychiatrist necessarily followed from a showing of
such materiality, because psychiatry is not an “exact science”
and “psychiatrists disagree widely and frequently,” so jurors
“must resolve differences in opinion within the psychiat-
ric profession on the basis of the evidence offered by each
party.” 15 Thus,
without the assistance of a psychiatrist to conduct a pro-
fessional examination on issues relevant to the defense,
to help determine whether the insanity defense is via-
ble, to present testimony, and to assist in preparing the
cross-examination of a State’s psychiatric witnesses,
the risk of an inaccurate resolution of sanity issues is
extremely high. 16
The U.S. Supreme Court elaborated that a qualified mental
health expert must be “sufficiently available” to the defense
and “independent from the prosecution” in order to effectively
“‘assist in evaluation, preparation, and presentation of the
defense.’” 17 While the Court has recognized the simplest way
to achieve this goal is to provide a qualified expert retained
specifically for the defense team, it has declined to address
whether appointment of an expert for the defense is always
required when sanity is likely to be a significant factor in the
accused’s defense. 18
14
Ake v. Oklahoma, supra note 8, 470 U.S. at 86.
15
Id., 470 U.S. at 81.
16
Id., 470 U.S. at 82.
17
McWilliams v. Dunn, supra note 13, 137 S. Ct. at 1800, quoting Ake v.
Oklahoma, supra note 8.
18
McWilliams v. Dunn, supra note 13.
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Cite as 310 Neb. 391[6] The Court explained that access to an expert with State
funds is at its foundations analyzed under the three factors
of procedural due process set forth in Mathews v. Eldridge 19:
First, the private interest that will be affected by the offi-
cial action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safe-
guards; and finally, the government’s interest, including the
function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would
entail. 20 While the Court recognized the State may suffer
some financial burden in providing defense access to an inde-
pendent psychiatrist at its expense, in circumstances where a
defendant’s mental condition is at issue and relevant to cul-
pability or punishment, this financial burden is outweighed
by both the State’s and the defendant’s interests in fair and
accurate adjudications of criminal cases—given the complex-
ity of the determination for which such expert testimony can
be crucial. 21
These procedural due process standards have since been
applied by Nebraska courts, 22 as well as by both federal
19
Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
20
Id.21
See Ake v. Oklahoma, supra note 8.
22
See, State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002); State v. Jacob,
253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on other grounds,
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012); State v. Grimes,
246 Neb. 473, 519 N.W.2d 507 (1994), overruled on other grounds, State
v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. White, 244
Neb. 577, 508 N.W.2d 554 (1993), overruled on other grounds, State v.
Burlison, supra note 22; State v. Boppre, 234 Neb. 922, 453 N.W.2d 406(1990); State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989); State v.
Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978); State v. Quezada, supra
note 1; State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998); State v.
Doremus, 2 Neb. App. 784, 514 N.W.2d 649 (1994).
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Cite as 310 Neb. 391courts 23 and courts in other states, 24 to a variety of other fields
of expert knowledge shown likely to be a significant factor
to the accused’s defense. The U.S. Supreme Court has not
spoken on the question of other areas of scientific knowledge,
declining in Caldwell v. Mississippi 25 to consider a trial court’s
refusal to appoint fingerprint and ballistics experts, because the
defendant had “offered little more than undeveloped assertions
that the requested assistance would be beneficial.”
[7] We agree with the Eighth Circuit that “[t]here is no
principled way to distinguish between psychiatric and non-
psychiatric experts,” inasmuch as an expert in any field of
expertise may, under the circumstances, be a “‘basic tool[] of
an adequate defense’” or appeal. 26 With respect to a defense
request for the appointment of an expert independent of the
prosecution, “[t]he question in each case must be not what field
of science or expert knowledge is involved, but rather how
important the scientific issue is in the case, and how much help
a defense expert could have given.” 27
23
See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.
2d 231 (1985); Scott v. State of La., 934 F.2d 631 (5th Cir. 1991); Terry
v. Rees, 985 F.2d 283 (6th Cir. 1993); Little v. Armontrout, 835 F.2d 1240(8th Cir. 1987); Dunn v. Roberts, 963 F.2d 308 (10th Cir. 1992); Moore v.
Kemp, 809 F.2d 702 (11th Cir. 1987).
24
See, e.g., Ex parte Moody, 684 So. 2d 114 (Ala. 1996); Doe v. Superior
Court, 39 Cal. App. 4th 538, 45 Cal. Rptr. 2d 888 (1995), disapproved on
other grounds, James G. v. Superior Court, 80 Cal. App. 4th 275, 95 Cal.
Rptr. 2d 135 (2000); Bright v. State, 265 Ga. 265, 455 S.E.2d 37 (1995);
People v. Lawson, 163 Ill. 2d 187, 644 N.E.2d 1172, 206 Ill. Dec. 119(1994); State v. Coker, 412 N.W.2d 589 (Iowa 1987); State v. Moore, 321
N.C. 327, 364 S.E.2d 648 (1988); State v. Mason, 82 Ohio St. 3d 144,
694 N.E.2d 932 (1998); Rogers v. State, 890 P.2d 959 (Okla. Crim. App.
1995); State v. Rogers, 313 Or. 356, 836 P.2d 1308 (1992); Rey v. State,
897 S.W.2d 333 (Tex. Crim. App. 1995); Husske v. Com., 252 Va. 203, 476
S.E.2d 920 (1996).
25
Caldwell v. Mississippi, supra note 23, 472 U.S. at 323-24, n.1.
26
Little v. Armontrout, supra note 23, 835 F.2d at 1243.
27
Id.- 421 -
Nebraska Supreme Court Advance Sheets
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STATE v. WOOD
Cite as 310 Neb. 391(a) No Preliminary Showing of
Necessity Supporting Motion
[8] The State does not contest that defendants may, depend-
ing on the circumstances, have a procedural due process right
to appointment of a DNA expert. It asserts the district court did
not abuse its discretion in finding Wood failed to demonstrate
the need for such an appointment. We agree. “Courts uni-
formly stress that the showing of need must set forth in detail
what assistance is being requested and why it is needed.” 28
Some reasonable preliminary showing by the defense justify-
ing its request for the appointment of an expert is necessary
because the criminal justice system cannot afford defense
experts on “demand.” 29
[9,10] The determination of whether a defendant has made an
adequate showing of the reasonable necessity for an appointed
expert lies within the discretion of the trial judge. 30 A district
court abuses its discretion when its reasoning or rulings are
clearly untenable, unfairly depriving a litigant of a substan-
tial right and denying a just result in matters submitted for
disposition. 31 The district court did not abuse its discretion in
finding that Wood’s trial counsel did not make this prelimi-
nary showing.
[11,12] Outside the context of psychiatric expertise, to show
a constitutional right to appointment of an independent expert
at the State’s expense, the accused must timely make a pre-
liminary, particularized showing (1) that an issue involving
specialized knowledge is likely to be a significant factor in
the accused’s defense and (2) that there is a reasonable neces-
sity for the defense to have expert assistance in contesting that
28
3 Wayne R. LaFave et al., Criminal Procedure § 11.2(e) at 745 (4th ed.
2015).
29
See Moore v. Kemp, supra note 23, 809 F.2d at 712.
30
See, e.g., Husske v. Com., supra note 24.
31
See State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
- 422 -
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Cite as 310 Neb. 391issue. 32 To be a significant factor, the issue must be one likely
to make a difference as to the outcome if the defendant is suc-
cessful in contesting it. 33
[13] There is a reasonable necessity for appointed expert
assistance if the defendant shows some basis for believing the
issue can only be strongly contested with the assistance of an
appointed expert. 34 A general appeal to the complexity of the
material issue involving specialized knowledge is insufficient
to show need for the appointment of an expert unless the
defendant demonstrates the very nature of the scientific field
suggests ground for challenge—for instance, that it is one filled
with controversy and disputes over methodology. 35 On the
other extreme, where the scientific methodology is well estab-
lished and its application is viewed as largely mechanical, the
defense must show a specific reason, such as the prosecution
expert’s bias or incompetence, for concluding that a defense
expert is needed to assist in a successful challenge to such sci-
entific evidence. 36
32
See, e.g., Cade v. State, 658 So. 2d 550 (Fla. App. 1995); Isaacs v. State,
259 Ga. 717, 386 S.E.2d 316 (1989); State v. Dahl, 874 N.W.2d 348 (Iowa
2016); Sommers v. Com., 843 S.W.2d 879 (Ky. 1992), abrogated on other
grounds, Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021); State v.
Allen, 77 N.C. App. 142, 334 S.E.2d 410 (1985); Tibbs v. State, 819 P.2d
1372 (Okla. Crim. App. 1991); Davis v. State, 905 S.W.2d 655 (Tex. App.
1995); Husske v. Com., supra note 24. See, also, 3 LaFave et al., supra
note 28.
33
See 3 LaFave et al., supra note 28. See, also, e.g., Dunn v. State, 291 Ark.
131, 722 S.W.2d 595 (1987); Stafford v. Love, 726 P.2d 894 (Okla. 1986).
34
See 3 LaFave et al., supra note 28 (and cases cited therein). See, also, e.g.,
Moore v. Kemp, supra note 23; State v. Scott, 33 S.W.3d 746 (Tenn. 2000);
3 Nancy Hollander et al., Wharton’s Criminal Procedure § 16:2 (14th ed.
2017).
35
See, e.g., Sommers v. Com., supra note 32; 3 LaFave et al., supra note 28.
36
See 3 LaFave et al., supra note 28. See, also, e.g., Scott v. State of La.,
supra note 23; McLeod v. State, 581 So. 2d 1144 (Ala. Crim. App. 1990);
Schultz v. State, 497 N.E.2d 531 (Ind. 1986); State v. Balfa, 506 So. 2d
1369 (La. App. 1987); Johnson v. State, 529 So. 2d 577 (Miss. 1988).
- 423 -
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Cite as 310 Neb. 391[14,15] Here, the district court reasoned defense counsel
had failed to demonstrate the DNA evidence could not be
strongly contested through rigorous cross-examination with-
out the assistance of an appointed expert. Sometimes, under
the facts presented, pretrial access to the State’s experts and
their cross-examination at trial will be adequate to contest
the issue. 37 In State v. Turco, 38 the Nebraska Court of Appeals
explained public money need not provide defense counsel with
equipment for a “‘fishing expedition.’” Rather, there must be
some showing by defense counsel that the expert is necessary
for an adequate defense, and the district court did not abuse its
discretion in denying a motion to appoint an expert when the
defendant failed to show why a vigorous cross-examination of
the State’s witnesses would not achieve the same result. 39
[16] Wood argues he was caught in a Catch-22 whereby he
had to employ an expert he could not afford in order to dem-
onstrate the need for the appointment of an expert. This is a
concern discussed by several courts and legal authorities. 40 We
find that a Catch-22 is only created when the burden of the
preliminary showing of necessity is unreasonably high. 41 The
37
See 3 LaFave et al., supra note 28.
38
State v. Turco, supra note 22, 6 Neb. App. at 731, 576 N.W.2d at 852,
quoting United States v. Schultz, 431 F.2d 907 (8th Cir. 1970).
39
See State v. Turco, supra note 22.
40
See, e.g., F.T.C. v. Atlantex Associates, 872 F.2d 966 (11th Cir. 1989);
Yarbrough v. Johnson, 490 F. Supp. 2d 694 (E.D. Va. 2007); U.S. v.
Warner, 62 M.J. 114 (C.A.A.F. 2005); Emily J. Groendyke, Ake v.
Oklahoma: Proposals for Making the Right a Reality, 10 N.Y.U. J. Legis.
& Pub. Policy 367 (2007); Fred Warren Bennett, Toward Eliminating
Bargain Basement Justice: Providing Indigent Defendants With Expert
Services and an Adequate Defense, 58 Law & Contemp. Probs. 95 (Winter
1995); A. Michelle Willis, Comment, Nonpsychiatric Expert Assistance
and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal
Justice System, 37 Emory L.J. 995 (1988).
41
See Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in
a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).
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STATE v. WOOD
Cite as 310 Neb. 391defense cannot be asked to support the motion for appoint-
ment of an expert with information that can only be found
by paying for expert assistance the defendant cannot afford.
Neither should the trial court demand defense counsel conduct
a lay investigation outside the bounds of what can be expected
from an attorney of ordinary training and experience. 42 But the
district court did not impose an unreasonably high standard in
finding Wood’s request inadequate.
[17] The defendant does not have a right to the appointment
of an expert every time the material incriminating evidence
adduced by the State involves specialized knowledge. There
must be some particularized preliminary showing either that
cross-examination of the State’s experts was inadequate to the
task of revealing misleading or inadequate information or that
there was a reasonable necessity for an independent expert to
help the defense prepare for effective cross-examination of the
State’s experts. 43
Defense counsel asserted in support of Wood’s motion for
appointment of an expert that the need for an expert was
“apparent” because counsel lacked expertise in DNA testing;
that the jury needed to understand the significance of minor
contributors in a mixture of touch DNA and how touch DNA
“exists in life”; and, without any supporting affidavit or testi-
mony, that there was a phone call giving the defense reason to
question the State’s experts and proof. The district court did
not require Wood to support his motion with expert testimony
or assertions as to what an appointed expert would say, 44 but
found counsel’s unsupported arguments to be insufficient. We
cannot say this was an abuse of discretion.
(b) Ineffective Assistance
[18] Wood alternatively asserts defense counsel was inef-
fective in failing to provide adequate support for the motion
42
See, e.g., Cade v. State, supra note 32.
43
See id.
44
See, e.g., Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980).
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Cite as 310 Neb. 391for appointment of a DNA expert. On direct appeal when the
defendant has obtained new counsel, the resolution of inef-
fective assistance of trial counsel claims turns upon the suf-
ficiency of the record to affirmatively prove or rebut the merits
of the ineffective assistance claims. 45 The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. 46 The determining
factor is whether the record is sufficient to adequately review
the question. 47
[19] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, 48 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 49 An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. 50
[20,21] An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assist­
ance of trial counsel only if it has knowledge of the specific
conduct alleged to constitute deficient performance. 51 Thus,
in order to preserve a claim of ineffective assistance of trial
counsel when new counsel represents the defendant on direct
appeal, the appellant must make specific allegations of the
conduct the appellant claims constituted deficient performance
by trial counsel. 52
[22] In contrast, appellate counsel does not waive a
claim of ineffective assistance of trial counsel by failing to
45
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
46
Id.47
Id.48
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
49
State v. Filholm, supra note 45.
50
Id.
51
Id.
52
See id.
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Cite as 310 Neb. 391specifically allege and argue prejudice, because doing so would
often require details unlikely to be found in the record or
known to the defendant without further inquiry. 53 It is, never-
theless, advisable for appellate counsel to specifically argue
prejudice if counsel believes the details in the trial record perti-
nent to the prejudice prong of the ineffective assistance inquiry
are sufficient to adequately review the question. Appellate
courts are free to determine on direct appeal the effectiveness
of trial counsel on the prejudice prong if the record affirma-
tively proves or rebuts the claim on that ground. 54
We conclude that Wood has adequately assigned and argued
the issue of his trial counsel’s deficient conduct with respect to
the motion for appointment of an expert, but neither the ques-
tion of deficiency nor of prejudice can affirmatively be proved
or rebutted by the trial record. We have already determined
defense counsel’s motion and support thereof was inadequate
to compel, under procedural due process, the appointment of a
DNA expert. However, defense counsel would only have been
constitutionally ineffective in this regard if adequate support
actually existed.
Wood argues defense counsel could have at least proffered
an affidavit by Wood’s appointed expert sexual assault nurse
examiner. We agree with the State this was unlikely to have
made a difference, because her opinions about the need for a
DNA expert would fall outside the range of her expertise. But
Wood does not limit his allegations to trial counsel’s failure
to proffer the sexual assault nurse examiner’s affidavit. For
instance, he additionally refers to the possibility, reflected in
the discussion at the hearing on the motion, that someone at the
Nebraska State Patrol Crime Laboratory had said no male DNA
was detected on any of the swabs.
53
See id.54
See, e.g., State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v.
Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004); State v. Cody, 248 Neb.
683, 539 N.W.2d 18 (1995).
- 427 -
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Cite as 310 Neb. 391The trial record does not affirmatively prove or rebut
whether there were such grounds to dispute the biologist’s tes-
timony that male DNA was found or whether there were addi-
tional reasons why the opportunity to cross-examine the State’s
experts, without independent expert advice in preparation, was
inadequate to contest the incriminating DNA evidence. Though
the incriminating evidence against Wood was not limited to the
DNA evidence, the DNA evidence, including the presence of
male DNA on the external vaginal swabs, was not insignificant,
and we cannot speculate as to what extent an appointed expert
would have been pivotal in contesting it.
The record does not affirmatively prove or refute whether it
is reasonably probable that effective trial counsel could have
adequately supported the motion or that the appointment of a
DNA expert would have led to a challenge to prejudicial DNA
evidence which could have changed the result of trial. 55 As
such, we do not resolve on direct appeal Wood’s claim that
trial counsel was ineffective in failing to adequately support his
motion for appointment of a DNA expert.
2. Refusal to Allow Impeachment of Price’s
Character as Convicted Felon
[23] Turning back to Wood’s alleged trial errors, we observe
in relation to Wood’s assertion that the trial court erred in
denying his attempt to adduce that Price was a convicted felon
in order to impeach Price’s out-of-court statements, Wood
fails to specify the out-of-court statements he believes to be at
issue. We ordinarily do not scour the record in search of facts
that might support an appellant’s claim. 56 But having read the
entirety of the testimony of the victim’s mother, we find that
there are few potential out-of-court statements which could
be subject to this claim and that the trial court did not abuse
55
See, e.g., State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
56
See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
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Cite as 310 Neb. 391its discretion in sustaining the State’s relevancy objection to
Price’s status as a convicted felon.
[24-27] Neb. Rev. Stat. § 27-806 (Reissue 2016) allows
the credibility of a declarant of a hearsay statement or state-
ment defined in Neb. Rev. Stat. § 27-801(4)(b)(iii), (iv), or (v)
(Cum. Supp. 2020)—statements offered against a party that
are by a person authorized by the party, by the party’s agent
or servant, or by the party’s coconspirator—to be attacked by
any evidence that would be admissible for those purposes if
the declarant had testified as a witness, without any opportu-
nity to deny or explain. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted. 57
Statements offered to show their effect on the listener are not
hearsay. 58 Also, statements are not hearsay to the extent they
are offered for context and coherence of other admissible state-
ments and not for the truth or the truth of the matter asserted. 59
It does not appear that any of Price’s out-of-court statements
were hearsay.
[28,29] Moreover, Price’s out-of-court statements do not
concern matters that were in dispute at trial. The basic premise
underlying impeachment of a witness by evidence of a prior
felony conviction is that any past felony committed by the wit-
ness is to some degree relevant to that individual’s credibility. 60
But credibility of a witness is not at issue when the truth of the
assertions is not in dispute. 61
57
State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021). See, also,
§ 27-801(3).
58
See 2 McCormick on Evidence § 249 (Robert P. Mosteller ed., 8th ed.
2020).
59
See, U.S. v. Ralston, 973 F.3d 896 (8th Cir. 2020); U.S. v. Spencer, 592
F.3d 866 (8th Cir. 2010); State v. Childs, 309 Neb. 427, 960 N.W.2d 585(2021).
60
See, e.g., State v. Bush, 131 Idaho 22, 951 P.2d 1249 (1997); People v.
Garth, 93 Mich. App. 308, 287 N.W.2d 216 (1979).
61
See State v. Veiman, 249 Neb. 875, 546 N.W.2d 785 (1996).
- 429 -
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Cite as 310 Neb. 391[30] The exercise of judicial discretion is implicit in deter-
minations of relevancy, and a trial court’s decision regarding
relevancy will not be reversed absent an abuse of discretion. 62
The trial court did not abuse its discretion in concluding that
Price’s credibility was not relevant to Price’s out-of-court state-
ments adduced during the mother’s testimony.
3. Prohibiting Wood From Further Refreshing
Victim’s Recollection With Video and
Effectiveness of Cross-Examination of
Victim and Forensic Interviewer
We also do not agree with Wood’s assertion that he was
deprived of the right to confrontation by the court’s decision
prohibiting him on the second day of cross-examination of the
victim from further use of the interview video to refresh her
recollection or to impeach her testimony. First, it is unclear that
defense counsel objected below to the trial court’s ruling at all,
and defense counsel certainly did not raise the right to confron-
tation. Therefore, the alleged error was waived. 63
[31] But, for the sake of completeness, we also observe
that the record does not support the alleged error. Under Neb.
Rev. Stat. § 27-611(1) (Reissue 2016), the trial judge shall
exercise reasonable control over the mode and order of inter-
rogating witnesses and presenting evidence so as to make the
interrogation and presentation effective for the ascertainment
of the truth, avoid needless consumption of time, and pro-
tect witnesses from harassment or undue embarrassment. The
Confrontation Clause guarantees an opportunity for effective
cross-examination, but not in whatever way or to whatever
extent the defendant might wish, and trial judges retain wide
latitude to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment,
62
Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999).
63
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
- 430 -
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Cite as 310 Neb. 391prejudice, confusion of the issues, the witness’ safety, or inter-
rogation that is repetitive or only marginally relevant. 64
In making its ruling, the trial court agreed with the pros-
ecution that if the defense was trying to refresh the victim’s
recollection in an attempt to impeach her testimony at trial,
defense counsel could do so through other means, such as
through the testimony of the forensic interviewer. It cited to
State v. Molina, 65 in which we held that the court did not abuse
its discretion in refusing to play for the jury a video recording
of a witness as extrinsic evidence of an inconsistent statement,
because its probative value was outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
We see nothing amiss in the trial court’s ruling, and we find
no merit to Wood’s arguments that seek to avoid the applicable
standards pertaining to the trial court’s discretion by framing
the error as an act of the guardian ad litem who stopped the
victim from watching the video in its entirety, as had been
ordered. The court was free to order that the victim watch the
remainder of the video, if it had continued to believe that was
a reasonable approach. The court did not err in determining it
was not.
Wood alternatively argues trial counsel was ineffective by
apparently abandoning further attempts to refresh the victim’s
recollection after the court’s ruling and by having impeached
the victim’s every inconsistent statement in an allegedly clumsy
manner that Wood argues bolstered the forensic interviewer’s
testimony that child victims of sexual assault do not always
disclose all the details of an assault in a linear fashion. We
find these contentions of ineffective assistance of counsel are
affirm­atively refuted by the trial record.
64
See State v. Schreiner, 276 Neb. 393, 745 N.W.2d 742 (2008). See, also,
Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).
65
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
- 431 -
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Cite as 310 Neb. 391[32,33] To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. 66 In assessing deficiency in counsel’s performance, a court
presumes that counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable profes-
sional judgment.” 67
[34-36] Trial counsel’s decisions that amount to reason-
able trial strategy do not constitute deficient performance. 68
Decisions about whether to engage in cross-examination, and
if so to what extent and in what manner, are strategic in nature
and generally will not support an ineffective assistance claim. 69
We do not use perfect hindsight to criticize unsuccessful trial
strategies 70 or second-guess trial strategy. 71
We caution that it is more the exception than the rule that
defense counsel’s strategy can be reasonably inferred from the
trial record on direct appeal. However, given defense counsel’s
cross-examination of the victim and arguments in closing, the
record here is sufficient to demonstrate it was defense coun-
sel’s strategy to undermine the victim’s credibility by point-
ing out her inconsistent statements in describing the details of
the assault.
This was not unreasonable. The assertion that this strat-
egy may have inherently served to bolster the forensic inter-
viewer’s testimony about the way children disclose sexual
assault—which was adduced to reduce any inference that such
inconsistencies impeached the witness’ credibility in the first
place—does not render defense counsel’s cross-examination
66
State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
67
Strickland v. Washington, supra note 48, 466 U.S. at 690.
68
McKinney v. State, 281 Ga. 92, 635 S.E.2d 153 (2006).
69
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003).
70
Id.71
Calkins v. U.S., 795 F.3d 896 (8th Cir. 2015).
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Cite as 310 Neb. 391deficient. Nor was defense counsel constitutionally deficient in
the manner in which the victim’s inconsistent statements were
adduced or by not adducing more inconsistent statements.
We find similarly with respect to Wood’s claim that defense
counsel was deficient in cross-examining the forensic inter-
viewer. The entirety of Wood’s argument with respect to cross-
examination of the forensic interviewer borders on conclusory.
Wood asserts that adducing the victim’s statements that Wood
put his private part in her private part in the bedroom and took
off his clothes “accomplished nothing for Wood” and “bol-
stered” the victim’s testimony. 72 The record reflects that Wood
adduced numerous inconsistent statements and was attempting
to effectuate that strategy during his cross-examination of the
forensic interviewer. The simple assertion that defense counsel
could have performed better is not grounds to conclude defense
counsel was constitutionally deficient.
The record affirmatively refutes Wood’s claims regarding
ineffective assistance of trial counsel in cross-examining the
victim and the forensic interviewer.
4. Ineffective Assistance in Failing to Object
to Inconclusive DNA Testing Results, Offering
Exhibit 20, and Failing to Object to Testimony
Describing Testing Done by Another Forensic
Biologist Who Did Not Testify at Trial
Wood makes several claims of ineffective assistance relating
to the DNA evidence. We will address each in turn.
First, Wood assigns and argues that counsel was ineffective
for failing to object to the biologist’s testimony that male DNA
was present on the external vaginal swabs and that she could
not say with certainty that no male DNA was on the vaginal
or oral swabs. Wood also argues counsel was ineffective in
failing to object to exhibit 18, which shows there was an insuf-
ficient quantity of DNA present on the external vaginal swabs
72
Brief for appellant at 36.
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Cite as 310 Neb. 391to obtain any profile to attempt to match with Wood’s profile
or anyone else’s. Wood did not assign as error that defense
counsel was ineffective in failing to object to exhibit 18, and
thus, we will not consider that argument. 73 Exhibit 18 is not
cumulative to the biologist’s testimony stating male DNA was
found. Wood argues the biologist’s testimony was inadmissible
due to its potential to mislead the jurors because the testing of
that male DNA did not lead to conclusive results. For the fore-
going reasons, we find no merit to this argument.
[37,38] An expert does not have to couch his or her opin-
ion in the magic words of “reasonable certainty,” but it must
be sufficiently definite and relevant to provide a basis for the
fact finder’s determination of a material fact. 74 A court should
exclude an expert’s opinion when it gives rise to conflicting
inferences of equal probability, so the choice between them is
a matter of conjecture. 75
Wood relies on State v. Johnson 76 to support his argument
that the biologist’s testimony that male DNA was detected on
the external vaginal swabs was insufficiently definite and rel-
evant. We held in Johnson that the trial court had improperly
admitted, over defense counsel’s objections, irrelevant DNA
testing results, though ultimately the evidentiary error was
harmless. At issue was expert testimony that the defendant’s
DNA profile could be neither included nor excluded from a
mixed DNA sample from one of the victim’s fingernails. The
expert testified the results were inconclusive because there
was only a partial minor profile obtained from the samples;
however, the expert revealed that some of the defendant’s
alleles matched those found in the partial minor profile of
one of the samples. The expert could not determine the sex of
73
See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
74
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
75
Id.76
Id. See, also, State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
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Cite as 310 Neb. 391the minor contributor. The expert also testified that there may
have been a minor contributor’s DNA on one of the finger-
nails and that she could not draw any conclusions about the
partial minor profile she found on a sample of the rope used
in the crime. 77
[39,40] We held in Johnson:
Presenting this evidence without offering any statistical
relevance of the matching alleles she found, or the prob-
ability that the minor profile would exclude a random per-
son, suggested to the jury that [the defendant] was linked
to the evidence and that the proof would be even stronger
if investigators had found more DNA. 78
We explained that the potential precision of DNA testing is
well known; thus, jurors might wrongly assume, absent evi-
dence of statistical relevance, that any DNA profile match is
extremely unlikely and therefore extremely probative. 79 We
held that because of the significance that jurors will likely
attach to DNA evidence, the value of inconclusive testing
results without statistical relevance is substantially outweighed
by the danger that the evidence will mislead the jurors. 80
Here, the biologist’s testimony that male DNA was present
on the external vaginal swabs taken during the physical exami-
nation of the victim is not analogous to the evidence found in
Johnson to be lacking in probative value. The biologist conclu-
sively testified that male DNA was present. We disagree with
Wood’s supposition that conclusive evidence of the presence of
male DNA was nevertheless insufficiently certain and was mis-
leading because further DNA testing could not obtain a DNA
profile from it.
[41] In an alleged sexual assault described by a female vic-
tim as involving her genital area and a male perpetrator, the
77
State v. Johnson, supra note 74.
78
State v. Johnson, supra note 74, 290 Neb. at 882, 862 N.W.2d at 773.
79
State v. Johnson, supra note 74.
80
See id.- 435 -
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STATE v. WOOD
Cite as 310 Neb. 391presence of male DNA near the victim’s genital area is relevant
to whether the assault occurred as the victim described, and
such evidence is not outweighed by a danger of confusing the
issues or misleading the jurors even if the DNA is of insuf-
ficient quantity or quality to obtain a profile. 81 Here, the pres-
ence of male DNA on the external vaginal swabs of the victim’s
external vaginal area made the truth of the victim’s allegations
more probable, even if the DNA did not identify Wood specifi-
cally. Because the testimony concerning the presence of male
DNA on the external vaginal swabs was admissible, defense
counsel was not deficient at trial for failing to object to it.
We also find the biologist’s testimony acknowledging the
hypothetical possibility of the presence of male DNA that she
was unable to detect on other swabs distinguishable from the
testimony in Johnson that there may have been a minor con-
tributor. 82 The biologist simply acknowledged she could not
“say definitively, no, there’s no DNA present. It just wasn’t in
great enough amounts to be detected using this form of test-
ing.” Such testimony did not call for speculation but merely
affirmed that simply because something microscopic cannot be
detected by the current scientific methods available that does
not mean it does not exist.
The record affirmatively refutes Wood’s claim that counsel
was ineffective in failing to object to the biologist’s testimony
that he alleges was insufficiently certain and definite.
Wood also assigns and argues with respect to the DNA
evidence that defense counsel was ineffective by introducing
exhibit 20, the report of the Y-STR DNA testing showing that
no Y-STR DNA profile was found from the male DNA, and by
failing to object to the biologist’s testimony about those test
results, on the grounds of confrontation, because they were not
81
See Rodriguez v. State, 158 N.E.3d 802 (Ind. App. 2020). See, also, In
re Brandon P., 2013 IL App (4th) 111022, 992 N.E.2d 651, 372 Ill. Dec.
809 (2013). But see State v. Gutierrez, 391 Wis. 2d 799, 943 N.W.2d 870(2020).
82
See State v. Johnson, supra note 74.
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Cite as 310 Neb. 391conducted by her. We find the record affirmatively refutes this
claim of ineffective assistance of counsel.
In light of the admissibility of the presence of male DNA on
the external vaginal swabs, it is reasonably apparent from the
record that defense counsel’s strategy in introducing exhibit
20 and in not objecting to the biologist’s testimony pertaining
to exhibit 20 was to minimize the prejudice of the biologist’s
prior testimony that male DNA was found. By introducing
exhibit 20 and not objecting to the biologist’s testimony about
the testing reflected therein, defense counsel demonstrated
that even the most sophisticated testing was unable to detect
a profile from that male DNA, which, notably, was not from
semen. This would have been consistent with minimal amounts
of DNA and allowed defense counsel to argue the jury should
infer that the male DNA found was the result of indirect trans-
fer during the victim’s prolonged presence in Wood’s home. In
light of the presumption that defense counsel made all signifi-
cant decisions in the exercise of reasonable professional judg-
ment, we cannot find that the defense counsel’s decision was
unreasonable.
5. Failure to Investigate Case Fully
[42,43] Wood’s argument that his trial counsel was ineffec-
tive in “Failing to Investigate the Case Fully” is insufficiently
specific. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. 83 As stated, when
the claim is raised in a direct appeal, the appellant is not
required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims consti-
tutes deficient performance by trial counsel. 84 Assignments of
error on direct appeal regarding ineffective assistance of trial
counsel must specifically allege deficient performance, and
83
State v. Figures, supra note 2.
84
Id.- 437 -
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Cite as 310 Neb. 391an appellate court will not scour the remainder of the brief in
search of such specificity. 85
We held, in State v. Mrza, 86 that an assignment of error that
trial counsel was ineffective by “‘fail[ing] to adequately inves-
tigate [the defendant’s] defenses’” lacked the specificity we
demand on direct appeal. Wood’s assignment of error is simi-
lar. It lacks any specificity as to what component of investiga-
tion his counsel was allegedly deficient in failing to conduct.
Therefore, we do not address it.
6. Failure to Request
Lesser-Included Instruction
[44,45] Lastly, we consider Wood’s argument that his trial
counsel was ineffective by failing to request an instruction on
the lesser-included offense of attempted first degree sexual
assault of a child. A court must instruct on a lesser-included
offense if (1) the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the
greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for
acquitting the defendant of the greater offense and convicting
the defendant of the lesser offense. 87 The Nebraska Supreme
Court has previously held that attempted first degree sexual
assault of a child is a lesser-included offense of first degree
sexual assault of a child. 88
The defense’s expert nurse practitioner testified there were
no injuries indicative of sexual abuse; therefore, according
to Wood, there was a rational basis for acquitting him of
the greater offense and convicting him of the lesser offense.
Under § 28-319.01, as relevant here, a person commits sexual
assault of a child in the first degree when he or she subjects
85
State v. Mrza, supra note 73.
86
See id. at 935, 926 N.W.2d at 86.
87
State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).
88
See State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
- 438 -
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Cite as 310 Neb. 391another person under 12 years of age to sexual penetration
and the actor is at least 19 years of age or older. Under Neb.
Rev. Stat. § 28-201 (Reissue 2016), a person shall be guilty
of an attempt to commit a crime if that person intentionally
engages in conduct which would constitute the crime if the
attendant circumstances were as he or she believes them to be
or that person intentionally engages in conduct which, under
the circumstances as he or she believes them to be, constitutes
a substantial step in a course of conduct intended to culminate
in his or her commission of the crime. When causing a partic-
ular result is an element of the crime, a person shall be guilty
of an attempt to commit the crime if, acting with the state of
mind required to establish liability with respect to the attend­
ant circumstances specified in the definition of the crime, he
or she intentionally engages in conduct which is a substantial
step in a course of conduct intended or known to cause such
a result. 89 Conduct shall not be considered a substantial step
under this section unless it is strongly corroborative of the
defendant’s criminal intent. 90
There was conflicting evidence whether there were sequelae
of a sexual assault by penetration found during the physical
examination of the victim. The touch DNA was on the vic-
tim’s underwear, and the male DNA detected was outside of
the vaginal opening. But it is apparent from the trial record
that counsel’s strategy was to argue that nothing inappropriate
occurred during the sleepover. It is a valid strategy to obtain
a full acquittal through an “‘all or nothing’ defense.” 91 We
will not second-guess that strategy. The record affirmatively
rebuts Wood’s claim that defense counsel was deficient by
failing to request an instruction on the lesser-included offense
of attempt.
89
§ 28-201.
90
Id.
91
Williams v. State, 353 Ga. App. 821, 830, 840 S.E.2d 32, 39 (2020). See
Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011).
- 439 -
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Cite as 310 Neb. 391VI. CONCLUSION
For the foregoing reasons, we find no merit to Wood’s
claims of trial error. We likewise find no merit to Wood’s
claims of ineffective assistance of counsel, with the exception
that we do not reach the merits of his argument that counsel
was ineffective in failing to adequately support his motion for
a DNA expert.
Affirmed.