State v. Howard , 26 Neb. Ct. App. 628 ( 2018 )

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STATE v. HOWARD
Cite as 26 Neb. Ct. App. 628
State of Nebraska, appellee, v.
John J. Howard, appellant.
___ N.W.2d ___
Filed December 4, 2018. No. A-17-543.
1. Trial: Appeal and Error. In order to preserve, as a ground of appeal,
an opponent’s misconduct during closing argument, the aggrieved party
must have objected to improper remarks no later than at the conclusion
of the argument.
2. Trial: Motions for Mistrial. When a party has knowledge during trial
of irregularity or misconduct, the party must timely assert his or her
right to a mistrial.
3. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and
Error. A party who fails to make a timely motion for mistrial based
on prosecutorial misconduct waives the right to assert on appeal that
the court erred in not declaring a mistrial due to such prosecutorial
misconduct.
4. Trial: Juries: Evidence. Trial courts have broad discretion in allow-
ing the jury to have unlimited access to properly received exhibits that
constitute substantive evidence of a defendant’s guilt.
5. Trial: Juries: Evidence: Appeal and Error. A trial court’s decision to
allow a jury during deliberations to rehear or review evidence, whether
such evidence is testimonial or nontestimonial, is reviewed by an appel-
late court for an abuse of discretion.
6. Trial: Testimony: Evidence: Words and Phrases. Testimonial evi-
dence refers to trial evidence, including live oral examinations, affida-
vits and depositions in lieu of live testimony, and tapes of examinations
conducted prior to the time of trial for use at trial in accordance with
procedures provided by law.
7. Records: Appeal and Error. It is incumbent upon an appellant to sup-
ply a record which supports his or her appeal.
8. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
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Evidence Rules; judicial discretion is involved only when the rules make
such discretion a factor in determining admissibility.
9. Trial: Waiver: Appeal and Error. A party may not waive an error,
gamble on a favorable result, and, upon obtaining an unfavorable result,
assert the previously waived error.
10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred.
11. Effectiveness of Counsel: Proof. 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 per­
formance actually prejudiced the defendant’s defense.
12. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
Error. Determining whether defense counsel was ineffective in failing
to object to prosecutorial misconduct requires an appellate court to first
determine whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
ences from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.
14. Pretrial Procedure: Prosecuting Attorneys: Evidence. A prosecutor
has a duty to disclose all favorable evidence to a criminal defendant
prior to trial.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Pirtle, R iedmann, and Welch, Judges.
R iedmann, Judge.
I. INTRODUCTION
John J. Howard appeals his convictions and sentences in the
district court for Douglas County of first degree sexual assault,
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Cite as 26 Neb. Ct. App. 628
sexual assault of a child, and first degree sexual assault of a
child. We find that the record is insufficient to address several
of his ineffective assistance of counsel claims but otherwise
find no merit to the arguments raised on appeal. We there-
fore affirm.
II. BACKGROUND
Howard was charged with first degree sexual assault, count
1; sexual assault of a child, count 2; and first degree sexual
assault of a child, count 3. The charges were based on alle-
gations made by two of his daughters, M.H. and S.H., ages
22 and 16 respectively at the time of trial. Both daughters
claimed that when they were around the ages of 4 or 5,
Howard would digitally penetrate them when giving them
baths. S.H. also described incidents, prior to the time she was
in third grade, where Howard would force her to perform oral
sex on him and would touch her vagina or force her to touch
his penis.
During the investigation of the matter, M.H. made a “one-
party consent phone call” (phone call) to Howard, which was
recorded by police. The recording was received into evidence
at trial and played for the jury. During the call, M.H. repeat-
edly attempted to get Howard to admit that he had intention-
ally digitally penetrated her while bathing her when she was
younger, and Howard’s standard response was that he was
just bathing her how her mother had shown him.
The matter proceeded to a jury trial. During deliberations,
the jury asked to rehear the recorded phone call, but the dis-
trict court denied the jury’s request. The jury ultimately found
Howard guilty of the charges. He was sentenced to imprison-
ment for 30 to 50 years on count 1, 2 to 3 years on count
2, and 45 to 60 years on count 3, with all sentences to run
consecutively. Howard now appeals to this court. Additional
facts will be provided below as necessary to address Howard’s
assigned errors.
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STATE v. HOWARD
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III. ASSIGNMENTS OF ERROR
Howard assigns that the district court erred in (1) permitting
the prosecutor to repeatedly misstate evidence during closing
arguments, (2) denying the jury’s request to rehear the recorded
phone call during deliberations, (3) overruling his objection to
a police detective’s testimony that Howard apologized during
the recorded call for digitally penetrating M.H., and (4) deny-
ing his motion for mistrial with respect to the victims’ mother’s
testimony and the State’s failure to disclose all impeachment
evidence. He also claims that he received ineffective assistance
of trial counsel in numerous respects.
IV. ANALYSIS
1. Prosecutorial Misconduct
During Closing A rguments
Howard assigns and argues that the district court erred in
denying his motion for mistrial after the prosecutor committed
misconduct by repeatedly misstating evidence during closing
arguments. At trial, however, Howard did not object to the
prosecutor’s statements. Shortly after closing arguments began,
Howard interrupted and asked if the parties could approach
the bench. He asserted that there was a graphic displayed
for the jury indicating that during the recorded phone call,
Howard admitted to digital penetration, which he alleged was
a mischaracterization of the evidence. He therefore objected
and moved for mistrial. The motion was denied. The State
then completed its closing argument, including making sev-
eral statements Howard challenges on appeal, with no further
objection from Howard.
[1-3] In order to preserve, as a ground of appeal, an oppo-
nent’s misconduct during closing argument, the aggrieved party
must have objected to improper remarks no later than at the
conclusion of the argument. State v. Watt, 285 Neb. 647, 832
N.W.2d 459 (2013). Likewise, when a party has knowledge
during trial of irregularity or misconduct, the party must timely
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assert his or her right to a mistrial. State v. Custer, 292 Neb.
88, 871 N.W.2d 243 (2015). A party who fails to make a timely
motion for mistrial based on prosecutorial misconduct waives
the right to assert on appeal that the court erred in not declaring
a mistrial due to such prosecutorial misconduct. Id.
Because Howard did not object at trial to the statements he
now challenges or move for a mistrial on that basis, this issue
has not been properly preserved for appeal. Howard relies
upon Neb. Rev. Stat. § 25-1141 (Reissue 2016) to argue that
his initial objection was sufficient to challenge all of the pros-
ecutor’s statements and that he was not required to repeatedly
object to every statement he now challenges. We first note that
Howard never objected to any statements made during clos-
ing arguments; rather, he objected only to the graphic that was
displayed for the jury. His objection to the graphic does not
encompass the prosecutor’s statements as well.
Additionally, § 25-1141 provides that where an objection
has once been made to the admission of testimony and over-
ruled by the court, it is unnecessary to repeat the same objec-
tion to further testimony of the same nature by the same wit-
ness in order to save the error, if any, in the ruling of the court
whereby such testimony was received. By its plain language,
§ 25-1141 applies to objections made to the testimony of the
same nature by the same witness. Here, Howard’s objections
were not to the testimony of a witness, but to a demonstrative
exhibit and/or statements made by the prosecutor during clos-
ing arguments. We therefore find this statute inapplicable in the
instant case.
To the extent Howard challenges the denial of his motion
for mistrial based on the graphic displayed for the jury, the
graphic is not contained in the record before us, and we there-
fore cannot conclude that the district court abused its discretion
in denying the motion for mistrial. See State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014) (whether to grant mistrial
is within trial court’s discretion, and appellate court will not
disturb its ruling unless court abused its discretion).
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2. A llowing Jury to R ehear R ecorded
Phone Call During Deliberations
During deliberations, the jury asked the court if it could
rehear the recorded phone call between Howard and M.H. The
court denied the jury’s request. On appeal, Howard argues
that the district court erred in doing so, because it was clear
that the jury was confused by statements the prosecutor made
during closing arguments, which he claims mischaracterized
the evidence. He argues that allowing the jury to rehear
the recording for itself would have provided an opportunity
to mitigate some of the prejudice caused by the prosecu-
tor’s statements. We find no abuse of discretion in the trial
court’s ruling.
[4,5] Under Nebraska case law, the trial judge has discretion
to allow the jury to reexamine evidence during deliberations.
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
Under this rule, trial courts have broad discretion in allowing
the jury to have unlimited access to properly received exhibits
that constitute substantive evidence of the defendant’s guilt.
Id. A trial court’s decision to allow a jury during deliberations
to rehear or review evidence, whether such evidence is testi-
monial or nontestimonial, is reviewed by an appellate court for
an abuse of discretion. State v. Vandever, 287 Neb. 807, 844
N.W.2d 783 (2014).
[6] In the present case, the parties agree, as do we, that the
recorded phone call is properly characterized as substantive,
nontestimonial evidence. As explained in State v. Vandever,
supra, testimonial evidence refers to trial evidence, including
live oral examinations, affidavits and depositions in lieu of
live testimony, and tapes of examinations conducted prior to
the time of trial for use at trial in accordance with procedures
provided by law. Here, although verbal in nature, the recording
was not prepared as or admitted into evidence as a substitute
for live testimony at trial. Therefore, the trial court had broad
discretion in allowing or disallowing the jury to rehear the
recording during deliberations.
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The record before us includes a copy of the jury’s question
and the judge’s notes, which report that Howard asked that the
jury be permitted to rehear the recording, but the State objected
to the request. If the parties discussed the issue with the court
prior to the court’s responding to the jury’s question, a tran-
scription of their discussion is not contained in our record.
Thus, we are unable to adequately review the court’s rationale
for denying the jury’s request.
[7] It is incumbent upon an appellant to supply a record
which supports his or her appeal. State v. Boche, 294 Neb. 912,
885 N.W.2d 523 (2016). Absent such a record, as a general
rule, the decision of the lower court as to those errors is to be
affirmed. Id. Given that a trial court has broad discretion to
disallow a jury to rehear nontestimonial evidence and based
on the record before us, we cannot conclude that the district
court’s decision in this case was an abuse of its discretion. We
therefore find no merit to this assigned error.
3. Objection to Detective’s Testimony
During redirect examination of the police detective who
investigated the case, the State asked her to confirm that
during the recorded phone call Howard had apologized to
M.H. for digitally penetrating her, and the detective responded,
“Yes.” Howard objected, arguing that the question and answer
misstated the evidence, but his objection was overruled. On
appeal, Howard asserts that the district court erred in overrul-
ing his objection.
[8] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make such discretion a factor in determining admissi-
bility. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, the admis-
sibility of evidence is reviewed for an abuse of discretion. Id.
A judicial abuse of discretion exists only when the reasons or
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rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in mat-
ters submitted for disposition. Id.
In the present case, the decision to overrule Howard’s objec-
tion was not an abuse of discretion. During the recorded phone
call, Howard repeatedly apologized to M.H., albeit without
directly admitting or denying intentional digital penetration. As
discussed in greater detail below, the State’s interpretation of
the phone call was based on reasonably drawn inferences from
Howard’s comments during the phone call and therefore did
not mischaracterize the evidence. As such, this assigned error
lacks merit.
4. Motion for Mistrial Based on
Testimony of Howard’s Ex-Wife
Howard argues that the district court erred in denying
his motion for mistrial with respect to the testimony of his
ex-wife. At some point after S.H. disclosed the sexual abuse,
she alleged that during one particular incident, Howard made
her wear a “sports bra” belonging to her mother, who is
Howard’s ex-wife. During a deposition of Howard’s ex-wife,
she apparently denied owning any sports bras. At trial, how-
ever, during cross-examination, she testified that she did own
a sports bra. She admitted that during her deposition she had
denied owning one but said that she subsequently discovered
that she did, in fact, have one. During redirect, she said that
she raised the issue with the county attorney before trial
because she realized that she had not given an honest answer
in her deposition.
Howard did not object when his ex-wife was testifying
regarding the sports bra issue, nor did he immediately move
for a mistrial. After her testimony concluded, the State called
one additional witness to testify before it rested. Howard then
began presenting his defense by calling his first witness to tes-
tify. After that witness’ testimony concluded, Howard moved
for a mistrial based on his ex-wife’s testimony. He claimed
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that the State should have disclosed the inaccuracy of her
deposition testimony prior to trial. The district court denied the
motion for mistrial.
[9] When a party has knowledge during trial of irregularity
or misconduct, the party must timely assert his or her right
to a mistrial. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779
(2010). A party may not waive an error, gamble on a favorable
result, and, upon obtaining an unfavorable result, assert the
previously waived error. See id. The Nebraska Supreme Court
has held that a motion for mistrial made after the testimony of
a witness who followed the witness whose testimony was the
basis for the mistrial was not timely. See State v. Morrow, 237
Neb. 653, 467 N.W.2d 63 (1991).
In the instant case, Howard did not move for a mistrial
based on his ex-wife’s testimony until two additional witnesses
had testified. His motion was therefore untimely, and the issue
has not been preserved for appeal.
5. Ineffective Assistance of Counsel
[10] Howard is represented on direct appeal by different
counsel than the counsel who represented him at trial. When
a defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record; otherwise, the
issue will be procedurally barred. State v. Schwaderer, 296
Neb. 932, 898 N.W.2d 318 (2017). An ineffective assistance
of counsel claim is raised on direct appeal when the claim
alleges deficient performance with enough particularity for
(1) an appellate court to make a determination of whether the
claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief will
recognize whether the claim was brought before the appellate
court. Id.
The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can
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be resolved. Id. The determining factor is whether the record is
sufficient to adequately review the question. Id.
[11] 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. State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (2018).
To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. To show preju-
dice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. Id. A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome. Id. The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel’s actions were
reasonable. Id.
Howard asserts that his trial counsel was ineffective in
numerous respects. We address his claims below.
(a) Failure to Object During
Closing Arguments
Howard asserts that trial counsel was ineffective in failing
to object to the prosecutor’s statements during closing argu-
ments. Specifically, he contends that the prosecutor committed
misconduct when she repeatedly misstated the evidence by
claiming that during the recorded phone call he never denied
digitally penetrating M.H.
[12,13] Determining whether defense counsel was ineffec-
tive in failing to object to prosecutorial misconduct requires
an appellate court to first determine whether the petitioner
has alleged any action or remarks that constituted prosecuto-
rial misconduct. State v. Ely, 295 Neb. 607, 889 N.W.2d 377
(2017). A prosecutor’s conduct that does not mislead and
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unduly influence the jury does not constitute misconduct. Id.
A prosecutor is entitled to draw inferences from the evidence
in presenting his or her case, and such inferences generally do
not amount to prosecutorial misconduct. Id.
After reviewing the recorded phone call, we conclude
that the prosecutor’s statements did not constitute miscon-
duct, because they rested on reasonably drawn inferences
from the evidence. The theme of the State’s comments with
respect to the recorded call was that Howard did not react to
M.H.’s allegations with outright denials. Instead, he repeat-
edly asserted that he was bathing M.H. in the manner in which
her mother had taught him. Thus, when M.H. accused him of
digitally penetrating her, his response was not that he never
did so, but, rather, that he was doing what her mother told
him to do.
We recognize that at one point, Howard responded to M.H.’s
accusation of digital penetration by saying that “it wasn’t in
you, it was around the rim, I mean, is how I remember her
showing me.” The statement that “it wasn’t in you” could
constitute an outright denial of digital penetration, but when
considered in context of the entire sentence, what Howard
actually said was that he remembers M.H.’s mother show-
ing him how to bathe M.H. in a manner that did not include
putting his fingers in her vagina. That statement is different
than Howard’s denying that digital penetration ever actually
occurred. Howard appeared to make other quasi-denials during
the conversation when he made statements such as, “I don’t
believe I did that,” “I don’t think I ever did that,” or more fre-
quently, “I cleaned you the way your mom showed me to clean
you” and other words to that effect. However, the prosecutor’s
comments were inferences that could reasonably be drawn
from what Howard did not say to M.H. Accordingly, because
we find that the prosecutor’s statements made during closing
arguments were reasonably drawn inferences and thus not
improper, trial counsel was not ineffective in failing to object
and move for mistrial.
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(b) Failure to Timely Move
for Mistrial
Howard next alleges that his trial counsel was ineffective
in failing to timely move for a mistrial on the basis of his
ex-wife’s testimony. He claims that because the State knew
prior to trial that she had testified falsely during her deposition,
the State was required under Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose this infor-
mation to him before trial.
[14] In Brady v. Maryland, the U.S. Supreme Court held that
a prosecutor has a duty to disclose all favorable evidence to a
criminal defendant prior to trial. See State v. Harris, 296 Neb.
317, 893 N.W.2d 440 (2017). While the fact that Howard’s
ex-wife owned a sports bra corroborated S.H.’s testimony,
and thus was unfavorable to Howard, the record reveals that
Howard relied upon his ex-wife’s denial in her deposition to
prove the improbability of S.H.’s version of the events. He
confirmed through several witnesses that S.H. had reported
wearing a sports bra belonging to her mother, who is Howard’s
ex-wife, during one of these incidents, and it is clear that he
questioned his ex-wife to prove that S.H.’s memory could not
possibly be correct. However, his attempt to negate S.H.’s
version of the events was thwarted by his ex-wife’s changed
testimony.
Because the record on direct appeal contains no informa-
tion as to why trial counsel did not immediately move for a
mistrial, we find the record insufficient to address this claim.
(c) Failure to Properly
Cross-Examine M.H.
Howard asserts that trial counsel was ineffective in fail-
ing to cross-examine M.H. about allegations that she also
had been inappropriately touched by her grandfather. At trial,
M.H. testified that she did not tell her mother about the sexual
abuse from Howard earlier because of the nature of their rela-
tionship. In other words, M.H. asserted that she did not feel
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comfortable disclosing the abuse to her mother at the time
it occurred.
Howard alleges, however, that his ex-wife testified in her
deposition that M.H. immediately reported to her an incident
where M.H.’s grandfather had inappropriately touched her
when she was approximately 11 years old. Howard attempted
to impeach M.H.’s testimony at trial through questioning of
his ex-wife rather than by cross-examination of M.H., and the
State successfully objected to such questioning of his ex-wife
on the grounds of improper impeachment. We find the record
is insufficient to address this claim because the deposition of
Howard’s ex-wife is not in our record, and the record does not
contain any information as to why trial counsel elected not to
raise this issue during cross-examination of M.H.
(d) Failure to Call Witness
Howard argues that trial counsel was ineffective in failing
to call Dr. Kirk Newring as a witness at trial. According to
Howard, Newring was hired to evaluate the circumstances of
this case and prepared a report of his conclusions. Newring’s
name was included on Howard’s witness list filed with the
district court prior to trial. The State filed a motion in limine
to exclude Newring’s testimony, and the district court reserved
ruling on the motion. Newring was not called to testify at trial.
The record on direct appeal is insufficient to address this claim
because we are unable to ascertain why trial counsel elected
not to call Newring to testify.
(e) Failure to Properly Investigate
and Present Defense
Finally, Howard claims that trial counsel was ineffective
in failing to properly investigate and present several key
aspects of his defense. He lists 16 different ways in which
he alleges trial counsel’s performance in this respect was
deficient. Each of these alleged failures involve trial strategy.
An evaluation of trial counsel’s actions, or inactions as the
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case may be, would require an evaluation of trial strategy and
of matters not contained in the record. We conclude that the
record on direct appeal is not sufficient to adequately review
these claims.
V. CONCLUSION
As concluded above, the record on direct appeal is insuffi-
cient to address several of the ineffective assistance of counsel
claims Howard raises on direct appeal. Otherwise, finding no
merit to the arguments raised here, we affirm Howard’s convic-
tions and sentences.
A ffirmed.