State v. Adams , 33 Neb. Ct. App. 212 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. ADAMS
Cite as 33 Neb. App. 212State of Nebraska, appellee, v.
Brian K. Adams, appellant.
___ N.W.3d ___
Filed October 1, 2024. No. A-23-561.
1. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
3. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance.
4. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity 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 to recognize whether
the claim was brought before the appellate court.
5. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitute defi-
cient performance by trial counsel.
6. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
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Cite as 33 Neb. App. 212evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
7. Jury Instructions: Pleadings: Evidence. Whether requested to do so or
not, a trial court has the duty to instruct the jury on issues presented by
the pleadings and the evidence. Because of this duty, the trial court, on
its own motion, must correctly instruct on the law.
8. Self-Defense: Jury Instructions: Evidence. In the context of a self-
defense instruction, a trial court must instruct the jury on the issue of
self-defense where there is any evidence adduced which raises a legally
cognizable claim of self-defense.
9. Self-Defense: Claims. To successfully assert the claim of self-defense,
one must have a both reasonable and good faith belief in the necessity
of using force.
10. Self-Defense. The force used in defense must be justified under the
circumstances.
11. Jury Instructions: Evidence. A trial court is not required to give
an instruction where there is insufficient evidence to prove the facts
claimed; however, it is not the province of the trial court to decide fac-
tual issues even when it considers the evidence produced in support of
one party’s claim to be weak or doubtful.
12. Self-Defense: Jury Instructions: Evidence. It is only when the evi-
dence does not support a legally cognizable claim of self-defense, or
the evidence is so lacking in probative value as to constitute a failure
of proof, that a trial court may properly refuse to instruct a jury on a
defendant’s theory of self-defense.
13. ____: ____: ____. That a slight amount of evidence may ultimately
be insufficient for the defendant to prevail on his or her claim of self-
defense does not bear on whether a self-defense instruction should have
been given by a trial court.
14. Self-Defense: Jury Instructions: Juries: Evidence. Only where the
jury could reasonably find that the defendant’s use of force was justi-
fied should the trial court instruct the jury on self-defense; however, it
is not enough to merely show any evidence of self-defense to support an
instruction thereon.
15. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
16. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
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STATE V. ADAMS
Cite as 33 Neb. App. 212104 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.
17. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
18. ____: ____. To show prejudice from counsel’s deficient performance,
the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
19. Effectiveness of Counsel. Counsel is not ineffective for failing to make
an objection that has no merit.
20. Self-Defense: Evidence: Proof. Evidence of a victim’s violent character
is probative of the victim’s violent propensities and is relevant to the
proof of a self-defense claim.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Matthew K. Kosmicki for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Riedmann, Chief Judge, and Moore and Bishop, Judges.
Riedmann, Chief Judge.
I. INTRODUCTION
Brian K. Adams appeals from his convictions of second
degree murder and use of a deadly weapon to commit a felony
following a jury trial. Adams assigns that the district court
for Lancaster County erred in failing to instruct the jury on
self-defense, and he includes numerous claims of ineffective
assistance of counsel. Because we find that the district court
correctly determined the evidence presented did not warrant
a self-defense instruction, it did not err in refusing to give the
instruction. We affirm.
II. BACKGROUND
Adams was charged with the first degree murder of Trevious
D. Clark and use of a deadly weapon to commit a felony. A
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Cite as 33 Neb. App. 212jury trial was held May 8 through 10, 2023. Three witnesses
testified as to the altercation that resulted in Clark’s death:
Malaki Williams (Clark’s cousin), Mylijah Wagy (a tenant who
witnessed part of the altercation from his window), and Adams.
Additional witnesses included law enforcement personnel and
a forensic pathologist. Their testimony, as relevant to Adams’
assigned errors, disclosed the following facts.
1. Evidence at Trial
On October 18, 2021, Clark had driven Williams to a phar-
macy and a fast-food restaurant. They were on their way back
to Clark’s home and cut through an alley that ran through
an apartment parking lot. As they were driving through the
parking lot, Clark saw some friends and stopped to talk.
Adams, who at the time was unknown to both Clark and
Williams, approached the van and expressed an interest in buy-
ing it. Clark told Adams the van was not for sale. According
to Williams, Adams opened and slammed Clark’s door twice.
Adams, however, testified that Clark became irate with him
after Clark dropped some marijuana he was attempting to roll,
Clark tried to exit the van, and Adams pushed the door closed.
Clark eventually exited the van, and Adams and Clark got into
an altercation.
There is some discrepancy regarding the specifics of the
altercation, but the witnesses generally agree that Adams and
Clark exchanged punches and ended up on the ground. Two
people in the parking lot separated them. After Adams stood
up, Clark swung again, striking Adams in the eye and knocking
him to the ground.
After Adams got back up, he went to his van that he had
backed into a parking space along the fence. He retrieved from
the back of his van what Williams and Wagy identified as a
“pole” but was actually a tire jack handle. Adams testified he
intended to use the handle to chase off Clark. The other two
people in the lot took the tire jack handle from Adams, set it
on the ground 2 to 5 feet behind Clark’s van, and encouraged
Adams and Clark to leave.
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Cite as 33 Neb. App. 212Clark walked back to his van, and Adams picked up the tire
jack handle. Williams testified that Clark yelled out to Adams
that he would be back. Adams stated that when Clark got to
his van, “he said he was finna come and finish me off.” Clark
drove the van between 5 to 15 feet toward the street and then
stopped. Wagy testified that Adams was following Clark’s van
as it drove forward; Adams, however, testified that Clark had
come to a stop before he approached the van. According to
Adams, he moved toward the back of Clark’s van to provide
himself coverage if Clark got out of the van with a gun.
When Clark stopped the van, he said something to Williams
about “just get this over with, drop the beef.” Williams could
see Adams approaching the van with the tire jack handle. Clark
got out of his van and swung at Adams. Wagy, who was watch-
ing from his upstairs window, could no longer see what was
happening once Clark exited his van.
Adams testified that when Clark stepped out of the van, he
saw something in Clark’s hand, but he did not know what it
was. Adams then struck Clark on the top of his head with the
tire jack handle and Clark fell to the ground. Adams stomped
on what he believed to be Clark’s back to make sure he let go
of whatever was in his hand. He testified, however, that he
could not see well due to his eye injury, so he was uncertain
whether he stomped on Clark’s head or his back. Williams
testified that Adams stood over Clark’s body saying that “he
beat his ass, he did it to him,” and that Adams then stomped
on Clark’s head.
Williams got out of the van and saw Clark on the ground.
Adams testified he saw Williams take whatever Clark had in
his hand and drive away. Williams confirmed that he left the
scene in Clark’s van but denied taking anything from the scene.
According to Williams, Adams ran away and someone drove
off in Adams’ van. Williams testified that he did not contact
law enforcement, but that at some point they contacted him.
Video footage from a neighbor’s camera was entered into
evidence, but the camera did not record the entire event. The
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Cite as 33 Neb. App. 212video shows the location of both Adams’ and Clark’s vans
and captures Adams’ initial approach with the tire jack handle
prior to it being taken away from him. The next images are
of Adams’ van pulling out of the parking lot after Clark was
struck with the tire jack handle. There is no video of the
actual altercations.
Clark was taken to a hospital, where he was pronounced
deceased. An autopsy was conducted, and the pathologist
determined that Clark died from blunt force injury to the head.
The pathologist also noted there were abrasions and contu-
sions along Clark’s scalp and facial area. He confirmed that
the injuries he saw were consistent with being hit on the head
with something like a pole and would also be consistent with
having the head stomped on. The pathologist did not note any
broken ribs during the autopsy. Adams’ left shoe was found to
have a spot of Clark’s blood on it.
Officers became aware that Adams had made a social media
post about the incident, and they were able to view it and
record it. In the video, Adams stated that someone tried to
“play him” that day and that when Adams left, the man was
not breathing. Adams further stated in the video that the man
hit Adams in the eye and Adams “beat his ass.” Officers
located Adams hours after the incident, and he was arrested
and taken to the hospital to receive treatment for an injury
under his eye. Adams gave a statement to law enforcement but
did not mention that he believed Clark had a weapon.
2. Jury Instructions
Adams requested a self-defense jury instruction although a
proposed instruction is not included in our record. The State
argued that Adams could have retreated, and thus was not
entitled to a self-defense instruction. It relied upon Adams’
testimony that he returned to his van to get the tire jack handle
and that at that time, he could have stayed in his van or used
his cell phone to call police. It also argued that although
Adams testified that initially Clark’s van was blocking Adams’
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Cite as 33 Neb. App. 212access to leave, Adams admitted that once Clark moved his
van toward the street, he had room to leave. The State argued
that instead of doing so, “he chose to advance on the van to
take cover.”
The district court found that a self-defense instruction was
not warranted by the evidence because Adams testified that he
could have gotten in his van and called the police, or he could
have gotten in his van and waited until Clark left, and because
Adams eventually conceded that after Clark’s van had moved
forward after the initial altercation, Adams did have room to
leave in his van but chose not to do so.
3. Verdicts and Sentencing
The jury found Adams guilty of second degree murder and
use of a deadly weapon to commit a felony. Adams was sen-
tenced to a term of 50 to 60 years’ imprisonment for his con-
viction of second degree murder and a term of 10 to 20 years’
imprisonment for his conviction of use of a deadly weapon to
commit a felony. Adams appeals.
III. ASSIGNMENTS OF ERROR
Adams assigns, consolidated and restated, that the district
court erred in refusing to instruct the jury on self-defense. He
also assigns that trial counsel was ineffective in failing to (1)
object at the formal jury instruction conference and not offer
a proposed jury instruction on self-defense, which would have
preserved the issue for appellate review; (2) produce evi-
dence through the pathologist and autopsy photographs that
Clark did not have debris or bruising on his head to support
Adams’ testimony that he did not stomp on Clark’s head; (3)
introduce evidence through Adams’ testimony that his van
was blocked, which prevented him from retreating; (4) pre­
sent evidence that Williams did not stay on scene or contact
police to support Adams’ testimony that Williams removed
something from the scene; (5) produce evidence or argue that
Adams could not see what was in Clark’s hand to strengthen
Adams’ self-defense claim; and (6) pursue character evidence
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Cite as 33 Neb. App. 212through Clark’s nickname to support that Clark was the initial
aggressor.
IV. STANDARD OF REVIEW
[1] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision. State v. Gonzalez, 32 Neb. App. 763, 5
N.W.3d 221 (2024).
[2,3] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. State
v. Turner, 315 Neb. 661, 998 N.W.2d 783 (2024). In reviewing
claims of ineffective assistance of counsel on direct appeal,
an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assist­
ance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance. Id.[4,5] 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 peti-
tion for postconviction relief to recognize whether the claim
was brought before the appellate court. Id. When a claim of
ineffective assistance of counsel 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 constitute deficient performance by trial coun-
sel. Id.V. ANALYSIS
1. Jury Instruction
[6] Adams assigns that the district court erred by refus-
ing to instruct the jury on self-defense. We find that the evi-
dence did not warrant a self-defense instruction and that the
district court did not err in refusing to give the instruction.
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Cite as 33 Neb. App. 212To establish reversible error from a court’s refusal to give a
requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and
(3) the appellant was prejudiced by the court’s refusal to give
the tendered instruction. State v. Johnson, 314 Neb. 20, 988
N.W.2d 159 (2023).
[7] There is no proposed self-defense jury instruction in the
record, but it appears from the bill of exceptions that the court
provided a potential instruction that outlined self-defense.
Normally, an appellant’s failure to include a proposed jury
instruction in the record on appeal precludes appellate deter-
mination of whether the tendered instruction was a correct
statement of law and was warranted by evidence. See State
v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015). Nonetheless,
whether requested to do so or not, a trial court has the duty
to instruct the jury on issues presented by the pleadings and
the evidence. State v. Gonzalez, supra. Because of this duty,
the trial court, on its own motion, must correctly instruct on
the law. Id. As such, despite Adams’ failure to include the
proposed jury instruction in the appellate record, we review
whether the district court erred in refusing to instruct the jury
on self-defense.
[8-11] Self-defense is a statutorily affirmative defense in
Nebraska. See State v. France, 279 Neb. 49, 776 N.W.2d
510 (2009) (defendant has burden of going forward with evi-
dence of self-defense, after which State has burden to prove
defendant did not act in self-defense). In the context of a
self-defense instruction, a trial court must instruct the jury on
the issue of self-defense where there is any evidence adduced
which raises a legally cognizable claim of self-defense. State
v. Bedford, 31 Neb. App. 339, 980 N.W.2d 451 (2022). To
successfully assert the claim of self-defense, one must have
a both reasonable and good faith belief in the necessity of
using force. Id. The force used in defense must be justified
under the circumstances. Id. A trial court is not required to
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Cite as 33 Neb. App. 212give an instruction where there is insufficient evidence to
prove the facts claimed; however, it is not the province of the
trial court to decide factual issues even when it considers the
evidence produced in support of one party’s claim to be weak
or doubtful. Id.[12-14] It is only when the evidence does not support a
legally cognizable claim of self-defense, or the evidence is so
lacking in probative value as to constitute a failure of proof,
that a trial court may properly refuse to instruct a jury on a
defendant’s theory of self-defense. Id. That a slight amount
of evidence may ultimately be insufficient for the defendant
to prevail on his or her claim of self-defense does not bear
on whether a self-defense instruction should have been given
by a trial court. Id. Only where the jury could reasonably
find that the defendant’s use of force was justified should the
trial court instruct the jury on self-defense; however, it is not
enough to merely show any evidence of self-defense to sup-
port an instruction thereon. Id.Neb. Rev. Stat. § 28-1409 (Reissue 2016) provides in part
that “the use of force upon or toward another person is justifi-
able when the actor believes that such force is immediately
necessary for the purpose of protecting himself against the
use of unlawful force by such other person on the present
occasion.” However, the statute also provides that the use of
deadly force shall not be justifiable if “[t]he actor knows that
he can avoid the necessity of using such force with complete
safety by retreating . . . .” § 28-1409(4)(b).
Here, the evidence showed that after Clark punched Adams
in the eye, Adams went to his van and got the tire jack handle.
Adams testified that he did not have enough room to pull his
van out of the lot at that time because Clark’s van was block-
ing him, but he admitted he could have stayed in his van
instead of returning to confront Clark or called the police from
his cell phone in the van. But he chose to do neither. In other
words, Adams could have safely retreated but did not.
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Cite as 33 Neb. App. 212After the tire jack handle was taken from Adams, Clark
returned to his van and drove 5 to 15 feet toward the street.
According to Adams, when Clark’s van started moving, Adams
was standing between the front of his van and the back of
Clark’s van. His testimony was that he was “quite a ways from
the back of [Clark’s] van.” At that point, Adams could have
gotten into his van and pulled out of the parking lot because
his van was no longer blocked by Clark’s van. However,
Adams advanced to the back of Clark’s van either as it was
moving or once it stopped, and that is when he struck Clark
with the tire jack handle.
As such, Adams could have safely retreated before using
deadly force. Thus, Adams did not establish a legally cogni-
zable claim of self-defense because § 28-1409(4)(b) provides
that the use of deadly force is not justifiable if the actor can
avoid the necessity of using the force with complete safety
by retreating. See, State v. Moniz, 224 Neb. 198, 397 N.W.2d
37 (1986) (defendant did not act in self-defense when he
could have safely retreated to car); State v. Kuntzelman, 215
Neb. 115, 337 N.W.2d 414 (1983) (refusal to instruct on self-
defense not error where defendant could have safely retreated
to his van).
Because the evidence did not establish a legally cognizable
claim of self-defense, the instruction was not warranted by the
evidence. The district court did not err in refusing to instruct
the jury on self-defense.
2. Ineffective Assistance of Counsel
[15] Adams assigns numerous ways in which he believes
his trial counsel was ineffective. We first set forth the gen-
eral framework for our analysis before addressing each claim
individually. 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
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Cite as 33 Neb. App. 212barred in a subsequent postconviction proceeding. State v.
Turner, 315 Neb. 661, 998 N.W.2d 783 (2024).
[16-18] 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. Turner, supra. To show that counsel’s per-
formance was deficient, the defendant must show counsel’s
performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. To show prejudice from
counsel’s deficient performance, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different. Id.(a) Jury Instruction
[19] Adams assigns that his trial counsel was ineffective by
not objecting at the formal jury conference or offering a pro-
posed self-defense jury instruction and therefore not preserv-
ing the issue of a self-defense instruction for appeal. We have
already addressed whether the district court erred in refusing
to instruct on self-defense, and we concluded that it did not.
Thus, Adams cannot show deficient performance because an
objection to the jury instructions would have had no merit
and the failure to propose a self-defense instruction did not
prejudice him. Counsel is not ineffective for failing to make
an objection that has no merit. State v. Gonzalez, 32 Neb. App.
763, 5 N.W.3d 221 (2024). This assigned error fails.
(b) Autopsy Evidence
Adams assigns that his trial counsel was ineffective in fail-
ing to produce evidence, through the pathologist and autopsy
photographs, that there was a lack of debris around Clark’s
head, which would support Adams’ testimony that he did not
stomp on Clark’s head. Williams testified that Adams stomped
on Clark’s head after he hit him with the tire jack handle.
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Cite as 33 Neb. App. 212The pathologist confirmed that the skull fractures he observed
on Clark were consistent with being hit on the head with a
tire jack handle and were also consistent with the head being
stomped on. He stated that Clark did not have any broken
ribs. Adams testified that at the time, he could not really see,
and that he did not know if he stomped on Clark’s head or
his back.
Assuming without deciding that Adams could establish defi-
cient performance, he could not establish prejudice. The evi-
dence showed that Adams stomped on Clark after Clark had
fallen to the ground. The evidence at trial was not that Adams
conclusively stated that he did not step on Clark’s head, but
that he was not sure. There was no indication that the stomp,
whether it occurred to the back or head, was accidental, nor
was there evidence that someone else struck Clark at any time
during the altercation. The evidence was that Adams struck
Clark with the tire jack handle and stomped on some part of his
body and that Clark died from the injuries he sustained from
Adams’ actions. Whether the stomp occurred to the head or
back does not change these essential facts. Adams cannot show
prejudice. This assigned error fails.
(c) Ability to Retreat
Adams assigns that trial counsel was ineffective by not
introducing evidence from Adams that his van was blocked in
and that he was prevented from retreating. Adams argues that
he conceded on cross-examination that in hindsight he may
have been able to get in his van and either call the police or
drive away, but that this was conjecture by the State with the
benefit of hindsight. He argues that, despite requesting trial
counsel to call him back to the stand so that he could testify
he did not feel he could safely retreat, trial counsel did not
do so.
Adams’ assigned error is related to counsel’s alleged failure
to call him back to the stand to testify that his van was blocked
in. The record is replete, however, with Adams’ testimony
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testified that he was blocked in by Clark’s van. Through this
testimony, the jury was aware that Adams believed he could
not drive away, and counsel was not deficient in not recalling
him to the stand to repeat testimony the jury had already heard.
This assigned error fails.
(d) Williams’ Actions
Adams assigns that trial counsel was ineffective in failing
to present evidence and argue to the jury that Williams did not
stay on the scene, come back to the scene, or contact officers,
which would have supported Adams’ theory that Williams
removed something from the scene. Adams testified that he
thought he saw something in Clark’s hand when Clark exited
his van and that Williams removed it from the scene. Adams
argues this evidence would have supported that he acted in
self-defense. However, a review of the record shows that
Williams admitted that he did not stay on the scene, that he
returned and parked in a lot across from the scene, and that
he did not contact officers but instead waited until they con-
tacted him.
The jury was aware of all the information Adams claims
trial counsel should have put before it. Further, whether Clark
had a weapon when he exited his van does not negate the
evidence of Adams’ earlier ability to retreat; therefore, Adams
cannot show either deficient performance or prejudice. This
assigned error fails.
(e) Adams’ Belief Clark Had Weapon
Adams assigns that his trial counsel was ineffective in fail-
ing to produce evidence and argue that Adams could not see
what was in Clark’s hand to strengthen Adams’ self-defense
argument. But as discussed above, whether Clark had some-
thing in his hand does not negate Adams’ testimony that he
could have retreated after the initial altercation but did not do
so. While Adams argues this would have supported his self-
defense argument, the jury was not instructed on self-defense
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Cite as 33 Neb. App. 212because Adams could have safely retreated but chose not to
do so. Even if we assume that Adams could establish deficient
performance, he could not show prejudice. This assigned
error fails.
(f) Clark’s Nickname
Adams assigns that his trial counsel was ineffective in fail-
ing to pursue character evidence of Clark’s nickname to show
Clark’s propensity for violence and that he was the initial
aggressor. During trial, but outside the presence of the jury,
the State made an oral motion in limine to prohibit the use
of Clark’s nickname, “Trigger Trey.” The State argued it was
irrelevant and possibly prejudicial as it might be used to insin-
uate that Clark had a gun. Adams’ counsel argued the nick-
name was relevant because most of the witnesses did not know
“actual names,” but, rather, they used nicknames. He con-
firmed he did not intend to use the nickname to insinuate that
Adams knew the nickname and therefore would have thought
Clark had a gun, or for any other “404” purpose. The court
granted the State’s motion, stating it did not see the relevance
of Clark’s nickname, “[e]specially if it’s not being offered for
any 404 purpose.” See Neb. Evid. R. 404(1)(b), Neb. Rev. Stat.
§ 27-404(1)(b) (Cum. Supp. 2022).
[20] Adams argues on appeal that his counsel should have
pursued use of the nickname to prove Clark’s character and
reputation. Evidence of a victim’s violent character is pro-
bative of the victim’s violent propensities, and many courts
have recognized that evidence of a victim’s violent charac-
ter is relevant to the proof of a self-defense claim. State v.
Lewchuk, 4 Neb. App. 165, 539 N.W.2d 847 (1995). See,
also, § 27-404(1)(b) (providing evidence of person’s character
admissible in certain circumstances). Adams argues that his
counsel should have pursued use of Clark’s nickname to show
that he was the first aggressor.
The State argues that any such attempt would have failed
because the record does not explain how the nickname
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. ADAMS
Cite as 33 Neb. App. 212“Trigger Trey” is evidence that Clark had a violent or aggres-
sive character. But we read Adams’ assignment of error as a
claim that his counsel was ineffective for failing to develop
an argument that the nickname was relevant as character evi-
dence. Because this claim involves matters of trial strategy
that are not in the record before us, we cannot address it. As
such, it is preserved for postconviction review.
VI. CONCLUSION
We find that the district court did not err in refusing to
instruct the jury on self-defense. We reject Adams’ claims of
ineffective assistance of counsel except for his claim related
to use of Clark’s nickname, which is preserved for postconvic-
tion review. We affirm the judgment of the district court.
Affirmed.