State v. Lierman ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/01/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LIERMAN
Cite as 305 Neb. 289
State of Nebraska, appellee, v.
Darryl Lierman, appellant.
___ N.W.2d ___
Filed March 20, 2020. No. S-18-402.
1. Rules of Evidence. 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
discretion a factor in determining admissibility.
2. 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.
3. Criminal Law: Judgments: Proof. An acquittal in a criminal case does
not preclude the government from relitigating an issue when it is pre-
sented in a subsequent action governed by a lower standard of proof.
4. Criminal Law: Proof. The standard of proof in a criminal case is that
the State must prove the charges against the defendant beyond a reason-
able doubt.
5. Sexual Assault: Evidence. Evidence that a defendant committed an act
of sexual assault is, by its very nature, prejudicial.
6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of the witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
7. Judges: Recusal. A recusal motion is initially addressed to the discre-
tion of the judge to whom the motion is directed.
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8. Trial: Judges: Words and Phrases. An ex parte communication occurs
when a judge communicates with any person concerning a pending or
impending proceeding without notice to an adverse party.
9. Trial: Judges: Recusal. A judge who initiates or invites and receives
an ex parte communication concerning a pending or impending proceed-
ing must recuse himself or herself from the proceedings when a litigant
requests such recusal.
10. Judges: Recusal. A judge should recuse himself or herself when a liti-
gant demonstrates that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or prejudice
was shown.
11. Judges: Recusal: Presumptions. A party alleging that a judge acted
with bias or prejudice bears a heavy burden of overcoming the presump-
tion of judicial impartiality.
12. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
13. Judgments: Words and Phrases. Abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
14. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
15. Effectiveness of Counsel: Appeal and Error. 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.
16. ____: ____. 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.
17. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. In order to know whether the record is insufficient to address
assertions on direct appeal that trial counsel was ineffective, appellate
counsel must assign and argue deficiency with enough particularity (1)
for an appellate court to make a determination of whether the claim can
be decided upon the trial record and (2) for a district court later review-
ing a petition for postconviction relief to be able to recognize whether
the claim was brought before the appellate court.
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305 Nebraska Reports
STATE v. LIERMAN
Cite as 305 Neb. 289
18. Effectiveness of Counsel: Proof: Appeal and Error. When a claim
of ineffective assistance of trial 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 constitutes
deficient performance by trial counsel.
Appeal from the District Court for Antelope County: Mark
A. Johnson, Judge. Affirmed.
Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
I. INTRODUCTION
Darryl Lierman was convicted of multiple counts of sexual
assault of a child and child abuse and was sentenced to a total
term of 70 to 140 years’ imprisonment, with credit for 272
days’ time served. The child in question was B.L., Lierman’s
adopted daughter, who was born in January 2000. Lierman’s
primary argument on appeal is that the district court erred in
admitting evidence of prior sexual assault alleged to have been
committed by Lierman against another adopted daughter, A.L.,
because Lierman was acquitted in that case. We affirm.
II. BACKGROUND
Lierman was charged by information with three counts of
first degree sexual assault of a child, three counts of third
degree sexual assault of a child, and four counts of child abuse.
Though further details of these charges will be discussed in
more detail below, it is sufficient to note here that B.L. alleged
this sexual abuse began in approximately 2010. At that time,
Lierman was on bond awaiting trial on charges that he sexu-
ally abused B.L.’s biological sister, A.L., who was another of
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STATE v. LIERMAN
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Lierman’s adopted daughters. Lierman was eventually acquit-
ted by a jury of the charges involving A.L.
B.L.’s allegations first came to light on or about February
12, 2015. On February 7, B.L. ingested an unknown number
of pills in an attempted suicide and was taken to a hospital in
Kearney, Nebraska. During a counseling session on February
12, B.L. made statements suggesting that Lierman had been
sexually abusing her. An interview at a child advocacy center
was scheduled, at which time B.L. made further allegations
against Lierman, including that he would make her model
bras for him and that he would watch her while she was
showering. B.L. was placed in foster care while the matter
was investigated.
In July 2015, B.L. disclosed that from the ages of 12 to 14,
she was subject to digital and penile penetration by Lierman
on more than one occasion, primarily while at the family’s
home in Neligh, Nebraska. Lierman was ultimately charged
with the allegations set forth above. Various pretrial hearings
were held, details of which will be noted below as relevant.
After a jury trial, Lierman was found guilty of all charges.
He appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Lierman assigns that the district court erred
in (1) allowing the State to present evidence of prior sexual
assaults, where that evidence was in support of charges of
sexual assault for which Lierman was ultimately acquitted,
or where at least some of those assaults were alleged to have
been committed by Lierman in other jurisdictions; (2) not
admitting evidence that prior to her suicide attempt, B.L. was
unhappy at home and at school and was using the home com-
puter to access adult dating sites; (3) finding the evidence suf-
ficient to convict Lierman; (4) not recusing itself; (5) imposing
excessive sentences; and (6) not permitting Lierman to issue
subpoenas duces tecum in order to obtain records through
depositions. Lierman additionally assigns that his counsel was
ineffective by not (1) calling certain witnesses, (2) utilizing
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STATE v. LIERMAN
Cite as 305 Neb. 289
evidence of Lierman’s driving logs to form an alibi defense,
(3) filing a motion in limine regarding the evidence to be
sought about B.L.’s difficulties at school and general unhappi-
ness, (4) objecting to the order in which the State presented its
evidence, and (5) objecting to the State’s use of B.L.’s suicide
attempts and ideations.
IV. ANALYSIS
1. Admissibility of Evidence
(a) Standard of Review
[1,2] 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 discretion a factor in determining admis-
sibility. 1 Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. 2
(b) Background
Prior to trial, the State filed a motion for a hearing to deter-
mine the admissibility of prior sexual assault evidence and an
intent to offer additional evidence pursuant to Neb. Rev. Stat.
§§ 27-404 and 27-414 (Reissue 2016). The State averred that
it wished to use evidence that had previously been presented
against Lierman in the case involving A.L.’s allegations.
At this hearing, the State introduced evidence gener-
ally comprising three categories: (1) evidence that had been
offered against Lierman during A.L.’s trial in Antelope County,
Nebraska, for which Lierman was acquitted; (2) evidence that
was not offered in Antelope County either for reasons not clear
from the record or because the events in question did not occur
in Antelope County, but instead in Madison County, Nebraska,
1
State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
2
Id.
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or while Lierman was on the road with A.L; and (3) evidence
of allegations by B.L. that did not occur in Antelope County,
but instead in Madison County, or while Lierman was on the
road with B.L.
A.L. testified that Lierman began sexually abusing her when
she was approximately 10 years old, when the family lived in
both Neligh and Tilden, Nebraska. A.L. testified that Lierman
had, for the 2 or 3 years prior, sought “hip rubs” from A.L.
and asked her to walk on his back. (There was testimony at
trial that “hip rubs” and the children’s walking on Lierman’s
back were a common occurrence for all of the children in the
household and were apparently performed to relieve pain that
Lierman suffered as a result of his over-the-road trucking job.
The record shows that Lierman was obese, weighing approxi-
mately 500 pounds.)
The first sexual abuse occurred when A.L. was sleeping with
Lierman and Lierman’s wife, Julie Lierman (the mother of the
adopted children), in the couple’s bed. Early in the morning
of this first occasion, A.L. was giving Lierman a hip rub and
accidently rubbed his penis over his clothing. A.L. was told
to stop and was sent to her own bed. But the next night, A.L.
was again sleeping with Lierman and Julie in their bed, when
Lierman told her to “do what [you] did last night.” At first
A.L. thought Lierman meant a hip rub, but subsequently began
rubbing his penis over his clothes, and Lierman did not tell her
to stop.
Lierman eventually introduced A.L. to the “cowlick,” which
involved Lierman’s licking A.L.’s vagina. A.L. testified that
at the time, she and Lierman were watching television in the
couple’s bedroom and Julie was not at home. The “cowlick”
began after the family moved to Tilden.
A.L. also testified that Lierman began taking her on his
multiday trucking routes and would engage in sexual activ-
ity with her in the sleeper portion of the semi-truck. On one
such occasion in the truck, A.L. and Lierman were watching a
movie and Lierman told A.L. to rub his penis, which A.L. did
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STATE v. LIERMAN
Cite as 305 Neb. 289
over his clothing. Lierman then directed her to rub his penis
under his clothing. In a second incident, A.L. was walking on
Lierman’s back, when he rolled over and she accidentally hit
his groin area, causing him pain. He then grabbed her, took
off her pajamas, got on top of her, and penetrated her vagina
with his penis. A.L. cried out that it hurt and screamed at him
to stop, but Lierman placed a pillow over her head to muffle
the screams. A.L. further testified that almost every time she
went with Lierman in the truck, some type of sexual activity
occurred, and that she was often asked to model underwear that
he had brought along.
A.L. testified that after the family moved from Tilden to
Neligh, she shared a room with another sister. The house was
being remodeled, so Lierman and Julie’s bed was in the living
room, and as a result, no sexual abuse took place during that
time. But as soon as the remodel was finished, the sexual abuse
resumed. The abuse usually began with a request that A.L. give
Lierman a hip rub or back rub, and it occurred most evenings
when Lierman was not on the road. A.L. also testified that she
performed oral sex on Lierman and that Lierman used a purple
sex toy on her on at least two occasions.
A.L. disclosed some of these events to Neligh school author-
ities on September 17, 2010, after speaking with the counselor
about her concern that Lierman may have impregnated her. A
search of the family’s home revealed bedding and a purple sex
toy. DNA that included Lierman and A.L., but excluded Julie,
was found on both items. (The DNA evidence was apparently
either not available or not offered at the time of Lierman’s trial
on A.L.’s allegations.)
Evidence of non-Antelope County incidents involving B.L.
and Lierman was also offered. B.L.’s therapist testified that
B.L. revealed to her that Lierman began sexually abusing her
when she was approximately 10 years old, when the family
lived in Meadow Grove, Nebraska, and while Lierman was
out on bond for the charges he faced involving A.L. Similar to
A.L., the abuse began with Lierman’s asking B.L. to massage
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STATE v. LIERMAN
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his penis. B.L. reported that Lierman assaulted her while she
was with him on the road and that Lierman was “‘not right
down there,’” meaning something was wrong with his penis.
B.L. also reported that Lierman penetrated her with his penis
and that it hurt.
Following this hearing, the court found that (1) the State was
not barred by principles of collateral estoppel from introducing
evidence regarding A.L., despite the fact that Lierman had been
acquitted of those charges; (2) A.L.’s allegations were inextri-
cably intertwined with B.L.’s allegations; and (3) the evidence
the State sought to admit as to both A.L. and B.L. was con-
ditionally admissible under §§ 27-404 and 27-414, subject to
confirmation of factual similarities deemed relevant at trial.
(c) Analysis
In his first assignment of error, Lierman assigns that the
district court erred in admitting A.L.’s allegations, because he
was acquitted of those charges at trial. He contends that the
principles of collateral estoppel prevent the State from offering
evidence about charges for which he was acquitted. Lierman
also asserts that by offering evidence regarding A.L.’s allega-
tions, the State was attempting to convince the jury that he
should have been found guilty in A.L.’s case and that it had an
opportunity to correct that wrong.
We turn first to Lierman’s assertion that the U.S. Supreme
Court’s decision in Ashe v. Swenson 3 precludes the admission
of that evidence. In Ashe, the Court explained that in the con-
text of collateral estoppel, “when an issue of ultimate fact has
once been determined by a valid and final judgment, that issue
cannot again be litigated between the same parties in any future
lawsuit.” 4
[3] We find Lierman’s assertion to be without merit. While
Ashe does speak to the issue of collateral estoppel in the
criminal case, the Court expanded on that holding in Dowling
3
Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).
4
Id., 397 U.S. at 443.
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STATE v. LIERMAN
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v. United States. 5 In Dowling, the Court noted that “an acquit-
tal in a criminal case does not preclude the Government from
relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof.” 6
Section 27-414 provides:
(1) In a criminal case in which the accused is accused
of an offense of sexual assault, evidence of the accused’s
commission of another offense or offenses of sexual
assault is admissible if there is clear and convinc-
ing evidence otherwise admissible under the Nebraska
Evidence Rules that the accused committed the other
offense or offenses. If admissible, such evidence may
be considered for its bearing on any matter to which it
is relevant.
(2) In a case in which the prosecution intends to offer
evidence under this section, the prosecuting attorney shall
disclose the evidence to the accused, including statements
of witnesses or a summary of the substance of any testi-
mony that is expected to be offered, at least fifteen days
before the scheduled date of trial or at such later time as
the court may allow for good cause.
(3) Before admitting evidence of the accused’s com-
mission of another offense or offenses of sexual assault
under this section, the court shall conduct a hearing out-
side the presence of any jury. At the hearing, the rules of
evidence shall apply and the court shall apply a section
27-403 balancing and admit the evidence unless the risk
of prejudice substantially outweighs the probative value
of the evidence. In assessing the balancing, the court may
consider any relevant factor such as (a) the probability
that the other offense occurred, (b) the proximity in time
and intervening circumstances of the other offenses, and
(c) the similarity of the other acts to the crime charged.
5
Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed. 2d 708
(1990).
6
Id., 493 U.S. at 349.
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STATE v. LIERMAN
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(4) This section shall not be construed to limit the
admission or consideration of evidence under any other
section of the Nebraska Evidence Rules.
Thus, under § 27-414, assuming that notice and hear-
ing requirements are met and the evidence survives a more-
probative-than-prejudicial balancing test, evidence of prior
sexual assaults are admissible if proved by clear and convinc-
ing evidence.
[4] The standard of proof in a criminal case is that the State
must prove the charges against the defendant beyond a reason-
able doubt, 7 a higher standard of proof. 8 Because the standard
set forth as to the question of whether A.L.’s allegations were
proved for purposes of § 27-414 is lower than the standard of
proof the State was held to in prosecuting those allegations,
the principles of collateral estoppel do not bar the admission
of that evidence.
And we disagree with Lierman’s contention that the State
did not prove A.L.’s allegations by clear and convincing evi-
dence. A.L. testified to the truth of her allegations, and her
testimony was at least partially corroborated by DNA test-
ing and other physical evidence. Lierman attempted to attack
A.L.’s credibility by pointing out inconsistencies and failed
memory, but as the State noted, those inconsistencies are typi-
cal of a young adult remembering traumatic events that took
place years ago.
While the fact that Lierman was acquitted does not affect
the threshold admissibility of the evidence under § 27-414,
it is relevant to the undue prejudice analysis conducted under
§ 27-414 and Neb. Rev. Stat. § 27-403 (Reissue 2016). We
held in State v. Kirksey, 9 a case involving § 27-404, that a
prior acquittal
7
See, U.S. Const. amend. XIV; In re Winship, 397 U.S. 358, 90 S. Ct. 1068,
25 L. Ed. 2d 368 (1970).
8
See, e.g., State v. Bigelow, 303 Neb. 729, 931 N.W.2d 842 (2019).
9
State v. Kirksey, 254 Neb. 162, 180, 575 N.W.2d 377, 390-91 (1998).
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does not, in and of itself, preclude admission of the facts
underlying the charge as evidence of other bad acts when
offered for one of the purposes specified in [§ 27-404(2)].
. . . However, the acquittal is a factor which the court
must consider when weighing the probative value of the
evidence against the potential for unfair prejudice under
[§ 27-403].
[5] We turn to the balancing test set forth in §§ 27-414 and
27-403. We first note that evidence that a defendant commit-
ted an act of sexual assault is, by its very nature, prejudicial 10:
The [§ 27-403] unfairly prejudicial analysis cannot be
based on the fact that evidence of sexual misconduct pro-
pensity evidence would be prejudicial. . . . Of course, the
more probative the evidence is in establishing a similar
deviant sexual propensity the more prejudicial the evi-
dence becomes, but such prejudice is not unfair under
[§ 27-403] because of its enhanced probative value. 11
Despite the prejudice inherent in this type of evidence, the
Legislature enacted § 27-414. Assuming that the evidence met
the balancing test of § 27-414, the Legislature set no limitation
on a fact finder’s use of this evidence. This stands in contrast
to § 27-404, where other types of character or bad acts evi-
dence are presumed to be inadmissible, and where admissible
for one or more of the particular purposes as set forth by the
statute, the evidence may be considered only for those pur-
poses. Thus, while § 27-404 is a rule of exclusion, § 27-414 is
a rule of admissibility.
It is with an understanding of the prejudicial nature of such
evidence, and the wide range of purpose for which the fact
finder may consider it, that we weigh the various factors of the
balancing test set forth in § 27-414.
The district court found, and we agree, that there was clear
and convincing evidence that the events composing A.L.’s
10
See State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
11
3 R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-414[D](5) at
334 (2019).
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allegations occurred. In addition, we have previously noted
that evidence of the repeated nature of sexual assault incidents
may be relevant in proving these crimes occurred, especially
when committed against “‘“persons otherwise defenseless
due to age.”’” 12 This is applicable in this situation, given
the young age of B.L. (as well as A.L.) at the time of the
alleged assaults.
In addition, the events described in A.L.’s allegations were
close in time to the charges involving B.L. for which Lierman
was on trial. According to A.L., Lierman sexually assaulted her
until the time of his arrest, while B.L. testified that Lierman
began assaulting her when he was on bond awaiting trial on
A.L.’s allegations.
A.L.’s allegations were similar to the allegations made by
B.L. The girls were similar in age when the assaults began,
were sisters, and were both adopted daughters to Lierman.
Both girls reported that the sexual acts grew out of “hip rubs”
that they each gave Lierman, which led to fondling outside of
clothing, and then eventually, penile penetration. Both girls
reported incidents occurring in Lierman’s bedroom and in his
semi-truck while on the road.
Of course, as Lierman points out, he was acquitted by a jury
of A.L.’s allegations, which we consider in this balancing test.
Lierman argues that the State offered A.L.’s allegations in part
to argue to the jury in B.L.’s case that the jury in the first case
made a mistake, while this second jury could rectify it. But
we are not persuaded by this: the jury was clearly instructed
that “[t]he defendant [was] on trial only for the crimes alleged
herein,” and that fact was pointed out to the jury by both the
State and Lierman’s counsel.
Nor is there any distinction between the allegations for
which Lierman was convicted and those for which he was
never charged. Other than arguing the State could have charged
him earlier, Lierman does not explain how this fact would
12
See State v. Kibbee, supra note 10, 284 Neb. at 95, 815 N.W.2d at 891,
quoting State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).
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prevent the use of the allegations per § 27-414. That statute
allows conduct to be admitted, not convictions.
There is no merit to Lierman’s first assignment of error.
2. Evidence of Alternative Reasons
for B.L.’s Unhappiness
(a) Standard of Review
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 discretion a factor in determining admissibility. 13
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. 14
(b) Background
In his second assignment of error, Lierman argues that
during the State’s examination of B.L., it opened the door to
the introduction of specific evidence that when considered
together, showed that B.L. was not happy and that it was this
unhappiness, and not any alleged sexual abuse, that resulted in
B.L.’s attempted suicide. At issue was evidence that B.L. was
(1) caught using the computer to access an adult dating web-
site, (2) using social media to arrange a meeting with a boy
her age, (3) using a tablet computer to access adult-oriented
websites on dates when Lierman claims he was out of town,
and (4) being bullied at school.
The district court sustained the State’s objection to Lierman’s
attempts to present evidence of these instances.
(i) Use of Adult Dating Website
An offer of proof was made wherein Julie would have testi-
fied that sometime in 2013, she was on the family computer
13
State v. Kibbee, supra note 10.
14
Id.
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and noticed that B.L. had left her email account open. Julie
discovered that B.L. had been creating a profile on a dating
website. In response, Lierman and Julie summoned the county
sheriff to explain to B.L. the dangers of this type of activity.
Lierman also wanted to offer a portion of B.L.’s deposition in
which she testified that she had not had contact with anyone
on the website, but that she had only created a profile using
false information. In her deposition testimony, B.L. testified
that Lierman sexually assaulted her after Julie went to work the
night that B.L.’s actions were discovered. In support of admit-
ting this evidence, Lierman argued it was part of the res gestae
of the crimes charged, because B.L. claimed that it led directly
to another sexual assault.
The district court declined to admit this evidence, finding
the implication was that B.L. had engaged in some type of
sexual misconduct, violating Neb. Rev. Stat. § 27-412 (Reissue
2016). In addition, the court sustained the State’s objection
that Lierman’s cross-examination of B.L. on this point was
improper under § 27-403 and Neb. Rev. Stat. § 27-608(2)
(Reissue 2016).
(ii) Social Media Message About
Meeting With Classmates
A second offer of proof would have had Julie testify that
one night when she was on the computer, an instant mes-
sage for B.L. appeared. The message indicated that B.L. was
attempting to arrange to meet classmates, including a particu-
lar boy, after school to go to another location and that this was
a violation of the rules of the Lierman household. The district
court refused to admit this evidence as well, again on the basis
of §§ 27-412 and 27-608(2).
(iii) Websites Accessed on Tablet Computer
A third offer of proof involved a tablet computer used by
B.L. Law enforcement examined the tablet and determined
that it was used on several occasions to access pornographic
websites. The offer of proof also established that there was
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no way to know who had accessed the websites, but Lierman
argued that his trucking logs would have established that it
was not him. The district court found that this evidence was
not relevant, because it could not be established that B.L. was
the person who accessed the websites, and that in any case, the
evidence was inadmissible under § 27-412.
(iv) Unhappiness at Home and School
In a final offer of proof, Lierman asserted that if admitted,
testimony from family members would show that B.L. was
being bullied at school. In addition, this testimony would show
that B.L. was unhappy at home because, as the prior incidents
indicated, she had trouble following the rules of the household.
The district court found that the matter of B.L.’s not liking or
following the rules of the household to be irrelevant and in vio-
lation of § 27-608(2). As for the bullying at school, the district
court concluded it was not relevant, because B.L. had changed
schools by the time of the suicide attempt.
(c) Analysis
Lierman’s argument on appeal with respect to these various
pieces of evidence is that the State opened the door to B.L.’s
credibility and that he was then permitted to cross-examine her
with respect to these incidents. “Opening the door” is a rule of
expanded relevancy which authorizes admitting evidence that
would otherwise be irrelevant in order to respond to (1) admis-
sible evidence which generates an issue or (2) inadmissible
evidence admitted by the court over objection. 15
Lierman contends that the State opened the door to B.L.’s
truthfulness in the following exchange between the State’s
attorney and B.L.:
Q. Another thing, during the — those times you
described and generally, those things you described with
. . . Lierman and you, did . . . Lierman always call you by
his own name — by your own name, rather?
A. No.
15
State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
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Q. Explain, please.
A. Yeah. Well, I have nicknames, I mean, like Nanna
and stuff.
Q. Speak up.
A. Like Nanna. But when he got mad at me or I did
something like lie about doing the dishes and I didn’t do
them, he would call me . . .
Q. What I’m talking about is . . . during the times sex
things were going on, was there another name used?
Lierman additionally argues that the State opened the door
by offering into evidence exhibit 201, which he identified as a
letter written to Lierman from B.L., detailing B.L.’s unhappi-
ness and the bullying she was facing at school.
In fact, exhibit 201 is a photograph of a piece of lined note-
book paper that repeats the sentence, “I will respeck [sic] my
mom and dad.” This exhibit was initially offered, but the State
acknowledged that it was done so in error and it was with-
drawn, though it had been published to the jury. (The letter was
not sent back with the jury during its deliberations.) The letter
from B.L. to Lierman was actually exhibit 246, and it was
offered into evidence. With the exception of the salutation and
the signature, which B.L. said did not look like her handwrit-
ing, B.L. agreed that she wrote the letter.
Lierman argues only about the letter from B.L. to Lierman,
not about the “respeck” lines. But the record shows that this
letter was offered and admitted and that B.L. was questioned
about it. As for the other incident—the questioning about B.L.’s
lying about doing the dishes—such did not “open the door” to
questions about B.L.’s credibility. B.L.’s answer appears to
be born of not understanding the question asked of her, and
the State immediately redirected her testimony. Moreover, the
specific instances of B.L.’s misbehavior were not relevant to
B.L.’s truthfulness, because as the district court noted, those
instances are excludable as specific instances of misconduct, or
at worst, attempting to impugn B.L. by implying that she was
involved in risky sexualized behavior.
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Because the State did not open the door to the evidence
which Lierman argues is admissible, there is no merit to
Lierman’s second assignment of error.
3. Sufficiency of Evidence
(a) Standard of Review
[6] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of the witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 16
(b) Analysis
In his third assignment of error, Lierman assigns that the dis-
trict court erred in finding that the evidence was sufficient to
convict him. Lierman argues that without the evidence pertain-
ing to the allegations made by B.L., “it is highly unlikely that
[Lierman] would have been convicted. The evidence pertaining
to the allegations made by B.L. was very weak with no real
physical evidence present and frequently changing allegations
by B.L. during the course of the case.” 17 In addition, Lierman
asserts that “[t]here [was] no specificity in [B.L.’s] responses”
as to the dates of the alleged offenses and that such was neces-
sary because the only distinction between many of the offenses
was B.L.’s age at the relevant time. 18
We find that the evidence was sufficient to support Lierman’s
convictions. B.L. testified that she was sexually assaulted by
Lierman during the relevant time periods. This court does not
16
State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
17
Brief for appellant at 44.
18
Id.
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reweigh that evidence. Lierman’s assignment of error to the
contrary is without merit.
4. Recusal
(a) Standard of Review
[7] A recusal motion is initially addressed to the discretion
of the judge to whom the motion is directed. 19
(b) Analysis
In his fourth assignment of error, Lierman contends that
the district court erred in not recusing itself because of an ex
parte communication with the State and because it presided at
a hearing regarding a grant of immunity given to Julie without
giving Lierman notice.
[8-11] An ex parte communication occurs when a judge
communicates with any person concerning a pending or
impending proceeding without notice to an adverse party. 20 A
judge who initiates or invites and receives an ex parte com-
munication concerning a pending or impending proceeding
must recuse himself or herself from the proceedings when a
litigant requests such recusal. 21 A judge should recuse him-
self or herself when a litigant demonstrates that a reasonable
person who knew the circumstances of the case would ques-
tion the judge’s impartiality under an objective standard of
reasonableness, even though no actual bias or prejudice was
shown. 22 A party alleging that a judge acted with bias or preju-
dice bears a heavy burden of overcoming the presumption of
judicial impartiality. 23
The first motion to recuse, filed on January 29, 2016, details
events from earlier that same day. It appears there was an issue
19
Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589
(2019).
20
State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
21
Id.
22
Thompson v. Millard Pub. Sch. Dist. No. 17, supra note 19.
23
Id.
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surrounding the taking of B.L.’s deposition. One of the State’s
attorneys went to the district court’s courtroom while the
judge was on the bench regarding matters in unrelated cases.
At the conclusion of those matters, but before the court had
adjourned, the State’s attorney indicated that the parties were
having an issue with the deposition and sought a hearing. The
district court then asked his staff to contact defense counsel to
see whether a hearing could be set for later that day. Defense
counsel refused to do so based on just the State’s oral motion,
then filed the recusal motion.
A hearing was held on this motion on February 1, 2016. At
the hearing, the court declined to hear evidence, but instead
explained the facts, as set forth above, and denied the motion.
During the hearing, Lierman made an oral motion to recuse,
which the court requested be filed as a written motion.
A second hearing on the motions to recuse was held on
February 5, 2016. The operative motion at that hearing was the
amended second motion to recuse, which sought the district
court’s recusal because the court had failed to give notice to
Lierman that his wife, Julie, was being offered immunity for
her testimony. Following that hearing, the district court denied
the motion to recuse, reasoning that Lierman was not entitled
to notice of any grant of immunity to Julie.
We turn first to the issue of B.L.’s deposition. The record
indicates that the State, not the court, initiated the conversation
and that the conversation pertained to scheduling a hearing.
The court’s response was to have defense counsel contacted
about the issue. This is not an improper ex parte communica-
tion that would give rise to a need for a judge’s recusal. 24
Nor was there error with respect to the grant of immunity
to Julie. The language of the relevant statute, Neb. Rev. Stat.
§ 29-2011.02 (Reissue 2016), and our case law interpreting
that statute, 25 provides that because the Legislature “has given
courts the power to immunize a witness solely upon the request
24
Neb. Rev. Code of Judicial Conduct § 5-302.9.
25
State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
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of the prosecutor, it is not a power the court can exercise upon
the request of the defendant or upon its own initiative.” 26 The
court is not obligated under § 29-2011.02 to notify a defendant
when the State offers a witness immunity. As such, the district
court did not show bias or prejudice against Lierman by failing
to provide notice to him.
To the extent that Lierman is suggesting that the hearing
in which Julie was given immunity might have been consid-
ered an ex parte communication, this argument is also without
merit. The hearing took place in a separately docketed case, in
open court, and on the record. There is no merit to Lierman’s
fourth assignment of error.
5. Excessive Sentences
(a) Standard of Review
[12,13] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. 27 Abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 28
(b) Analysis
In his fifth assignment of error, Lierman contends that the
district court’s sentences were excessive. Lierman argues that
he is obese and in poor health, with no record of prior sexual
assault convictions, and that at his age, his sentence total of 70
to 140 years’ imprisonment amounts to a life sentence.
When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and
26
Id. at 989, 840 N.W.2d at 514.
27
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
28
Id.
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(8) the violence involved in the commission of the crime. 29
The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. 30
We have reviewed Lierman’s sentences and conclude that
they were not excessive. Lierman was convicted of multiple
counts of sexual assault of his adolescent daughter over a
period of several years. The sentences were within statutory
limits and were not an abuse of discretion. This assignment of
error is without merit.
6. Subpoenas Duces Tecum
(a) Standard of Review
[14] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 31
(b) Analysis
In his sixth assignment of error, Lierman assigns that the
district court erred in quashing the subpoenas duces tecum
served upon several witness set for deposition. Lierman argues
that in addition to their testimony, he ought to be permitted to
ask deponents to provide materials relevant to B.L.’s allega-
tions. In quashing the subpoenas duces tecum, the district court
found that there was no statutory authority for such a request
in criminal cases and that the lack of this procedure did not
violate the constitution. Lierman argues on appeal that he is
“concerned with the possibility that one of the witnesses may
have some information that the State does not request or does
not hand over pursuant to discovery. In that respect, [Lierman]
can not obtain such information.” 32
29
Id.
30
Id.
31
Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169
(2019).
32
Brief for appellant at 51.
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No reciprocal discovery order had been sought in this case
as of the time of the issuance of these subpoenas, but a Brady 33
notice was filed. Lierman concedes that he does not accuse the
State of failing to hand over Brady material.
Neb. Rev. Stat. § 29-1917(1) (Reissue 2016) provides for the
issuance of a deposition subpoena in a criminal case:
(1) Except as provided in section 29-1926, at any time
after the filing of an indictment or information in a felony
prosecution, the prosecuting attorney or the defendant
may request the court to allow the taking of a deposition
of any person other than the defendant who may be a wit-
ness in the trial of the offense. The court may order the
taking of the deposition when it finds the testimony of
the witness:
(a) May be material or relevant to the issue to be deter-
mined at the trial of the offense; or
(b) May be of assistance to the parties in the prepara-
tion of their respective cases.
Both § 29-1917(3) and Neb. Rev. Stat. § 29-1905 (Reissue
2016) similarly provide that the taking of the deposition of a
witness “shall be governed in all respects as the taking of depo-
sitions in civil cases.”
The general procedures to be used in issuing subpoenas in
a civil case are set forth in Neb. Rev. Stat. § 25-1223 (Cum.
Supp. 2018). Neb. Rev. Stat. § 25-1224(1) (Cum. Supp. 2018)
provides:
A subpoena commanding an individual to appear and
testify at a trial or deposition may command that at the
same time and place specified in the subpoena for the
individual to appear and testify, the individual must pro-
duce designated documents, electronically stored infor-
mation, or tangible things in the individual’s possession,
custody, or control. The scope of a command to produce
documents, electronically stored information, or tangible
33
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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things pursuant to this section is governed by the rules of
discovery in civil cases.
This section, when considered with §§ 29-1905 and 29-1917,
forms the basis of Lierman’s argument on appeal that “[t]he
proceedings in taking the deposition of a witness pursuant to
this section and returning it to the court shall be governed
in all respects as the taking of depositions in civil cases.” 34
Lierman suggests that the ability to seek “designated docu-
ments, electronically stored information, or tangible things in
the individual’s possession, custody, or control” is part of the
procedure referenced in §§ 29-1905 and 29-1917.
Section 25-1223 generally sets forth the procedure for the
issuance of trial and deposition subpoenas. The power to
specifically issue a subpoena duces tecum is the topic of
§ 25-1224. It is § 25-1224(1) which explicitly notes that “[t]he
scope of a command to produce documents, electronically
stored information, or tangible things pursuant to this section is
governed by the rules of discovery in civil cases.”
The crux of Lierman’s argument is that a subpoena duces
tecum allows him to obtain records that he might not otherwise
have known existed. But even assuming that the subpoena
duces tecum is available in criminal cases in Nebraska, it is not
intended to be used as a “‘fishing expedition.’” 35 Generally,
documents sought in such a way are subject to a showing of
relevance and admissibility, with requested documents identi-
fied with adequate specificity. 36 Nebraska’s rules of civil dis-
covery provide that “the designation of the materials to be pro-
duced pursuant to the subpoena shall be attached to or included
in the notice.” 37
34
§ 29-1917(3).
35
United States v. Nixon, 418 U.S. 683, 700, 94 S. Ct. 3090, 41 L. Ed. 2d
1039 (1974).
36
2 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence
§ 10:9 (15th ed. 1998 & Cum. Supp. 2019-20) (collecting cases).
37
Neb. Ct. R. Disc. § 6-330(C)(1) (rev. 2016).
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As an initial matter, we lack a complete record on this
issue. The record before this court generally shows that
Lierman sought deposition testimony and documents, but,
with a few exceptions, the record does not include the perti-
nent notices of deposition or otherwise identify the witnesses
upon whom notices were served. Moreover, Lierman failed to
explain below or on appeal what documents he would have
requested that witnesses bring to their depositions or what
documents he believes they might have had in their posses-
sion, custody, or control. But without this showing, Lierman’s
subpoenas amount to no more than an impermissible fish-
ing expedition.
For these reasons, we find no error in the district court’s
quashing of the subpoenas duces tecum, and Lierman’s assign-
ment of error is without merit.
7. Ineffective Assistance of Counsel
(a) Standard of Review and
Propositions of Law
[15] 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. 38
[16] 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 perform­
ance which is known to the defendant or is apparent from
the record. 39 Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits
of the ineffective performance claims. 40
38
State v. Lee, supra note 27.
39
Id.
40
Id.
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[17,18] In order to know whether the record is insufficient
to address assertions on direct appeal that trial counsel was
ineffective, appellate counsel must assign and argue deficiency
with enough particularity (1) for an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) for a district court later reviewing a peti-
tion for postconviction relief to be able to recognize whether
the claim was brought before the appellate court. 41 When a
claim of ineffective assistance of trial 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 constitutes deficient performance
by trial counsel. 42
(b) Analysis
In his final assignment of error, Lierman assigns that his
trial counsel was ineffective by (1) failing to call certain wit-
nesses, (2) not utilizing evidence of Lierman’s driving logs to
form an alibi defense, (3) failing to file a motion in limine to
exclude evidence regarding B.L.’s difficulties at school and
general unhappiness, (4) not objecting to the order in which the
State presented its evidence, and (5) not objecting to the State’s
use of B.L.’s suicide attempts and ideation.
(i) Failure to Call Certain Witnesses
Lierman first assigns that his counsel was ineffective in fail-
ing to call two particular witnesses: Dr. Ashutosh Atri, a doctor
at the hospital where B.L. was admitted following her suicide
attempt, and Dr. Hugo Gonzalez, another doctor who would
have testified that B.L. never reported a sexual assault to him.
Lierman alleges Atri would have testified that B.L. indicated
early in her stay she was not a victim of sexual assault, that
she participated in family counseling sessions, and, further, that
41
Id.
42
Id.
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she made no allegations of sexual assault until she learned she
might be discharged to go home soon.
There is nothing in the record to explain why counsel did
not call Atri and Gonzalez. As such, we lack the record to
determine this issue on direct appeal.
We additionally note that Lierman argues that his trial coun-
sel was ineffective in failing to ask certain questions of B.L.’s
aunt. But we need not consider that argument, because Lierman
did not separately assign that failure as error. 43
(ii) Driving Logs as Alibi Defense
Lierman argues that his trial counsel erred in not pursuing an
alibi defense through the use of Lierman’s driving logs, which
were apparently created by Lierman himself. Lierman claims
those logs would have shown that he was on the road during
some of the “relevant dates.”
There is nothing in the record to explain why counsel chose
not to introduce these driving records. As such, we lack the
record to determine this issue on direct appeal.
(iii) Failure to File Motion in Limine
Regarding B.L.’s School and
Home Difficulties
Lierman argues that trial counsel was ineffective in fail-
ing to file pretrial motions in limine regarding “evidence
that would call into question the credibility of the State’s
witnesses.” 44 Lierman contends that had trial counsel done so,
counsel would have known what evidence would have been
admissible versus inadmissible and would have been better
prepared for trial.
Lierman has not sufficiently pled this allegation. He does
not identify what evidence should have been subject to a
motion in limine or which witness’ credibility would have been
43
See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
44
Brief for appellant at 54.
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challenged by that evidence. As such, we find that this allega-
tion of deficient conduct has not been pled with the specificity
necessary to avoid a future procedural bar.
(iv) Failure to Object to Order of
State-Presented Evidence
Lierman next contends that his counsel was ineffective
in failing to object to the order in which the State pre-
sented its evidence. Specifically, Lierman argues that at the
§ 27-414 hearing held prior to trial, the evidence of A.L.’s
allegations was found by the trial court to be conditionally
admissible dependent upon a showing of sufficient factual
similarities and trial counsel should have objected when the
State offered that evidence prior to showing those similari-
ties. Lierman argues that “counsel should have objected to the
sequence of the evidence being presented because the Court
gave counsel the opportunity to force the State to produce
evidence in another order than the one it was comfortable
with.” 45 We have a sufficient record to determine this issue
on direct appeal, and we find that trial counsel was not
ineffective.
First, we observe that Neb. Rev. Stat. § 29-2016 (Reissue
2016) sets forth the procedure that a trial court should follow in
conducting a criminal trial. There is nothing in that section, nor
does Lierman direct us to other law, that might suggest that a
criminal defendant has any control, directly or otherwise, over
the order in which the State presents its evidence.
Lierman suggests that he had the ability to dictate the
sequence of the State’s evidence had counsel objected and held
the State to the district court’s earlier order finding the State’s
§ 27-414 evidence to be only conditionally admissible. But
having reviewed the record as a whole, we conclude that the
State made a sufficient showing as to the similarities between
A.L.’s and B.L.’s allegations such that A.L.’s allegations
45
Id.
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were admissible. As such, Lierman cannot show that counsel
was ineffective.
(v) Failure to Object to State’s
Use of Lierman’s Suicide Attempts
Finally, Lierman asserts that his trial counsel was ineffec-
tive for failing to object to the admission into evidence of
Lierman’s two suicide attempts. One attempt occurred during
a standoff between him and law enforcement when he returned
home from a trucking job to find that A.L. had accused him of
sexual abuse. The second attempt occurred while he was in jail
on those charges.
The record indicates that these issues were addressed at a
pretrial hearing on Lierman’s motions to suppress, in limine,
and for a determination of relevancy. The trial court, in its
order largely denying Lierman’s motions, found that the events
were relevant and were admissible as evidence of Lierman’s
consciousness of guilt. In particular, Lierman now argues
that while suicide attempts might be probative of “‘conscious
guilt,’” they also speak toward “potential mental illness,” and
that thus, the admission of this evidence was more prejudicial
than probative. 46
An analysis under § 27-403 consists of a balancing test,
which is left to the sound discretion of the trial court. 47 That
balancing test provides that “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” 48
We find that the district court did not abuse its discretion in
admitting evidence of Lierman’s suicide attempts and ideation.
Both suicide attempts were made contemporaneous to A.L.’s
46
Id. at 55.
47
See State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019).
48
§ 27-403. See State v. Stubbendieck, supra note 47.
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allegations, one immediately prior to Lierman’s arrest at a time
when he was aware that he was about to arrested. The second
attempt was made at the jail when Lierman was incarcerated
after his arrest and immediately following a visit with members
of his family.
It was not an abuse of discretion for the district court to
conclude that Lierman’s actions were probative of his guilt
and that this outweighed any possible prejudice. We decline
Lierman’s invitation to conclude that a suicide attempt can
never be probative of consciousness of guilt; indeed, the facts
in this case show that these suicide attempts were probative of
Lierman’s consciousness of guilt.
Because the district court did not err in admitting the evi-
dence, counsel was not ineffective for failing to object. There
is no merit to Lierman’s argument to the contrary.
V. CONCLUSION
The judgment and sentences of the district court are affirmed.
Affirmed.
Freudenberg, J., not participating.
Cassel, J., concurring.
I write separately only to address Lierman’s argument, which
he makes at least implicitly, that the scope of discovery and, in
particular, the scope of a subpoena duces tecum in a criminal
case is as broad as in a civil case. He is wrong.
Civil and criminal cases have different limitations upon
when depositions may be taken. In civil cases, depositions
may be taken without leave of court, except within 30 days of
service of summons. 1 And there are exceptions to the 30‑day
limitation. 2 In criminal cases, however, leave of court is always
required. 3 Although this statute was amended in 2019, the same
1
See Neb. Ct. R. Disc. § 6‑330 (rev. 2016).
2
See id.
3
See Neb. Rev. Stat. § 29‑1917(1) (Supp. 2019).
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requirement for leave existed at all relevant times in the pros-
ecution against Lierman. 4
Section 29‑1917 limits the scope of a discovery deposition
in a criminal case in two significant ways. First, only a “person
other than the defendant who may be a witness in the trial of
the offense” may be deposed. 5 In other words, if the person
could not possibly be called as a witness at the trial in the
criminal case, no deposition is permitted.
The second limitation is more significant. A court is permit-
ted to order the taking of a deposition in a criminal case only
if the witness’ testimony “[m]ay be material or relevant to the
issue to be determined at the trial of the offense” or “[m]ay be
of assistance to the parties in the preparation of their respective
cases.” 6 In a criminal case, the elements of the charged crime
or crimes define the issues. 7 Thus, a court may grant leave to
take a criminal case deposition only where the testimony would
be material or relevant to the existence or nonexistence of an
element of a charged offense or where the testimony would
assist a party in preparing its case.
In contrast, the scope of discovery in civil cases extends
much further. Generally, in a civil case, parties may obtain dis-
covery “regarding any matter, not privileged, which is relevant
to the subject matter involved in the pending action.” 8 Further,
the rule adds, “It is not ground for objection that the informa-
tion sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery
of admissible evidence.” 9 Obviously, the civil discovery rule
articulates a much wider scope for inquiry than is permitted in
a criminal case.
4
See § 29‑1917 (Reissue 2016).
5
§ 29‑1917(1).
6
§ 29‑1917(1)(a) and (b) (emphasis supplied).
7
See State v. George, 228 Neb. 774, 424 N.W.2d 350 (1988).
8
Neb. Ct. R. Disc. § 6‑326(b)(1) (emphasis supplied).
9
Id. (emphasis supplied).
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Neither statute upon which Lierman relies expands the scope
of depositions in criminal cases. He cites two criminal pro-
cedure statutes: § 29‑1917 and Neb. Rev. Stat. § 29‑1905
(Reissue 2016). In both instances, his reliance is misplaced.
First, he reads too much into § 29‑1905, which states: “The
proceedings in taking the examination of such [deposition] wit-
ness and returning it to court shall be governed in all respects
as the taking of depositions in all civil cases.” In reading a
penal statute, a court must determine and give effect to the pur-
pose and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense. 10 The plain language of § 29‑1905 applies the
civil procedures to criminal cases only in “taking the examina-
tion” and “returning it to court.” In the context of civil discov-
ery depositions under § 6‑330, the procedures of “taking” and
“returning” would include subsections (c) 11 and (f). 12
Second, the text of § 29‑1905 predates discovery deposi-
tions in criminal cases. It was first enacted in 1873 13 and has
not been amended since the 1943 codification. 14 The criminal
case discovery statute, § 29‑1917, in contrast, was initially
adopted only in 1969. 15 Section 29‑1905 simply does not speak
to the scope of discovery permitted in a deposition in a crimi-
nal case.
Lierman’s reliance on § 29‑1917(3) fares no better. At
the relevant times in the court below, this subsection stated
only, “The proceedings in taking the deposition of a witness
pursuant to this section and returning it to the court shall be
10
State v. Jedlicka, ante p. 52, ___ N.W.2d ___ (2020).
11
§ 6‑330(c) (“Examination and Cross‑Examination; Record of Examination;
Oath; Objections”).
12
§ 6‑330(f) (“Certification and Delivery by Officer; Copies; Notice of
Delivery”).
13
Gen. Stat. ch. 58, § 463, p. 825 (1873).
14
See § 29‑1905 (1943).
15
See 1969 Neb. Laws, ch. 235, § 6, p. 870.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LIERMAN
Cite as 305 Neb. 289
governed in all respects as the taking of depositions in civil
cases.” 16 This language, like § 29‑1905, is limited to the
“taking” and “returning” of the deposition. It addresses pro-
cedural steps rather than the scope of discovery. In 2019, the
Legislature appended the words, “including section 25‑1223.” 17
This was apparently done in light of a substantial rewrite of
Neb. Rev. Stat. § 25‑1223 (Cum. Supp. 2018) in 2017. 18 The
changes in § 25‑1223 speak mainly to the “nuts and bolts” of
the procedures for issuance, service, and return of a subpoena.
And nothing in the 2019 amendment of § 29‑1917 to include
provisions from § 25‑1223 regarding “taking” and “return-
ing” a deposition suggests, let alone dictates, any intention
to modify the scope of inquiry permitted in a deposition in a
criminal case.
These statutes, taken as a whole, demonstrate the
Legislature’s understanding that the issues in a criminal case
are always circumscribed by the elements of the crime or
crimes with which a defendant is charged. And the differences
in scope and procedure prevent discovery from being used
in a “fishing expedition” or an attempt to confuse the issues.
Thus, while I agree with the outcome of the court’s decision,
I would squarely reject Lierman’s attempt to judicially expand
the scope of discovery in criminal cases beyond that clearly
articulated by the Legislature.
16
§ 29‑1917(3) (Reissue 2016).
17
§ 29‑1917(3) (Supp. 2019).
18
See 2017 Neb. Laws, L.B. 509, § 1.