State v. Figures , 308 Neb. 801 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
06/25/2021 08:10 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801State of Nebraska, appellee, v.
Phillip P. Figures, appellant.
___ N.W.2d ___
Filed April 2, 2021. No. S-19-1210.
1. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
2. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to
the prosecution.
3. Judgments: Words and Phrases. An 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.
4. Right to Counsel: Appeal and Error. An appellate court reviews a
trial court’s rulings on motions to withdraw as counsel and motions to
dismiss appointed counsel and appoint substitute counsel for an abuse
of discretion.
5. Right to Counsel. When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to the court for
the removal of counsel, his or her only alternative is to proceed pro se if
he or she is competent to do so.
6. ____. An indigent defendant’s right to have counsel does not give the
defendant the right to choose his or her own counsel.
7. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not
enough to secure the appointment of substitute counsel.
8. Pretrial Procedure: Appeal and Error. Unless granted as a matter of
right under the Constitution or other law, discovery is within the discre-
tion of a trial court, whose ruling will be upheld on appeal unless the
trial court has abused its discretion.
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STATE v. FIGURES
Cite as 308 Neb. 8019. Trial: Juries: Appeal and Error. The retention or rejection of a juror
is a matter of discretion for the trial court, and this rule applies both to
the issue of whether a venireperson should be removed for cause and to
the situation involving the retention of a juror after the commencement
of trial; thus, the standard of review in a case involving discharge of a
juror is whether the trial court abused its discretion.
10. Trial: Juries. A trial court has broad discretion to discharge a juror for
cause so long as the court has a legal or factual basis to believe that the
juror cannot serve as an impartial juror.
11. ____: ____. A court’s decision to discharge a juror is an abuse of discre-
tion if it is without factual support or for a legally irrelevant reason.
12. Trial: Waiver. Whether a defendant could and, in fact, did waive his
or her right to attend all stages of his or her trial presents a question
of law.
13. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
14. Constitutional Law: Trial: Waiver. A defendant’s right to be present
at trial may be waived, but any waiver of this right must be knowing
and voluntary.
15. Waiver: Words and Phrases. A waiver is the voluntary and intentional
relinquishment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct.
16. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules and judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.
17. 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.
18. Evidence: Waiver: Appeal and Error. A party who fails to make a
timely objection to evidence waives the right on appeal to assert preju-
dicial error concerning the evidence received without objection.
19. Trial: Verdicts: Appeal and Error. Harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
20. Trial: Evidence: Appeal and Error. Erroneous admission of evi-
dence is harmless error and does not require reversal if the evidence is
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Nebraska Supreme Court Advance Sheets
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STATE v. FIGURES
Cite as 308 Neb. 801cumulative and other relevant evidence, properly admitted, supports the
finding by the trier of fact.
21. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
22. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
23. Prosecuting Attorneys: Appeal and Error. When considering a claim
of prosecutorial misconduct, an appellate court first considers whether
the prosecutor’s acts constitute misconduct.
24. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
concludes that a prosecutor’s acts were misconduct, the court next
considers whether the misconduct prejudiced the defendant’s right to a
fair trial.
25. Prosecuting Attorneys: Juries. A prosecutor should not make argu-
ments calculated to appeal to the prejudices of the jury and should
refrain from arguments which would divert the jury from its duty to
decide the case on the evidence.
26. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
prejudices a defendant’s right to a fair trial when the misconduct so
infects the trial that the resulting conviction violates due process.
27. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
prejudicial depends largely upon the context of the trial as a whole.
28. 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 witnesses, or reweigh the evidence, and 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 essen-
tial elements of the crime beyond a reasonable doubt.
29. Criminal Law: Evidence: Confessions: Proof. A voluntary confession
is insufficient, standing alone, to prove that a crime has been commit-
ted, but that it is competent evidence of that fact and may, with slight
corroboration, establish the corpus delicti as well as the defendant’s
guilty participation.
30. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
Whether cumulative error deprived a criminal defendant of his or her
Sixth Amendment right to a trial by an impartial jury presents a question
of law to be reviewed de novo.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 80131. 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.
32. ____: ____. 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 assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
33. 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 constitutes defi-
cient performance by trial counsel.
34. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Phillip P. Figures challenges his con-
victions, pursuant to a jury verdict, for first degree murder and
use of a firearm to commit a felony. Figures presents numerous
assignments of error aimed at the trial court, the sufficiency of
the evidence presented, and his allegedly ineffective trial coun-
sel. Because we find no reversible error or abuse of discretion,
we affirm.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801II. BACKGROUND
1. Charges
The State charged Figures with first degree murder, a Class
IA felony, 1 and use of a firearm to commit a felony, a Class
IC felony. 2 After Vanessa Figures, Figures’ then spouse, pro-
vided a statement to police, he became a suspect in Fredrick
Green’s death in Omaha, Nebraska, on July 15, 2018. Charges
soon followed.
Citing Vanessa’s statement and other corroborating evi-
dence, the State alleged that Figures ordered Rufus Dennis
to kill Green to ensure that Green would not “snitch” to the
police. According to Vanessa, Green was home when Figures
and Dennis attempted to burglarize Green’s house.
2. Trial Events
Figures was tried by a jury. The trial is summarized below.
Additional facts pertinent to Figures’ assigned errors are pre-
sented in the analysis.
(a) The State’s Case
Vanessa served as the State’s primary witness. The State
corroborated Vanessa’s testimony with investigators’ testimony.
The State also endeavored to disprove that other people may
have committed the murder.
(i) Vanessa’s Testimony
At the time of the murder, Vanessa lived with Figures as
his wife. Before the trial, they divorced. In this section, we set
forth the facts that she testified to at trial.
Recounting the days leading up to the murder, Vanessa paid
for all the living expenses for Figures and herself. Figures
was unemployed and did not contribute to their finances.
Becoming upset with the financial situation, Vanessa demanded
that Figures “get on [his] feet and help [her] pay these
1
Neb. Rev. Stat. § 28-303 (Reissue 2016).
2
Neb. Rev. Stat. § 28-1205 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801bills.” Figures responded that he and Dennis planned on get-
ting money by burglarizing Green’s house, which, according to
Figures, contained an estimated $50,000.
On the day of the murder, Figures left Vanessa’s house in a
rush after it was reported to him that Green had left his home.
When Figures returned in the afternoon, his “adrenaline [was]
going.” Figures said, “‘Rufus killed him . . . Fred Green, he
killed him.’”
Figures explained that the burglary had gone wrong; Green
was home. After Figures and Dennis entered through an
unlocked door to Green’s house, they found Green talking
on a phone. Dennis pointed a gun at Green, who responded,
“‘This is Pooh, this is Pooh on the phone right now, it’s cool
. . . .’” Dennis’ sister, Winnie Dennis, was known by the
name “Pooh.”
Figures forced Green into the basement. Figures then
assaulted Green. Figures “tased him so much that . . . [t]he
back flew off the taser and the batteries popped out.” Figures
recovered the taser’s batteries, but not the back of the taser.
Figures then instructed Dennis to guard Green while Figures
searched the home. Soon after, Dennis shot Green in the leg.
Figures returned to the basement, and Dennis said, “‘I got to
kill him, he’s gonna snitch . . . .’” Figures responded, “‘Kill
him then, cuz.’” Dennis shot Green three or four times, killing
him. Before returning to Vanessa’s house, Figures took $2,000
and a gold necklace from Green’s house.
To cover his tracks, Figures buried the necklace in the yard
of Vanessa’s house, dumped the clothes he was wearing during
the murder at a nearby carwash, changed his phone number,
ensured that Dennis got rid of the murder weapon, and went to
a state park.
In the days following the murder, Figures became “more and
more paranoid,” resulting in hostile behavior toward Vanessa.
On July 26, 2018, Figures’ temper apexed and he moved out
of Vanessa’s house. However, Figures continued to call and
text Vanessa, demanding that she “keep [her] mouth shut.”
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801Figures later returned to Vanessa’s house and threatened,
“‘Don’t make me kill you, Vanessa.’”
Fearing for her life, Vanessa retrieved Green’s necklace
from the yard and drove to the Papillion Police Department in
Papillion, Nebraska. Vanessa gave a detailed statement to the
Papillion Police Department and, later, to the Omaha Police
Department, featuring the information she testified to at trial.
(ii) Corroborating Evidence
The State amplified Vanessa’s credibility by corroborat-
ing her testimony with the findings of its investigation. The
State used a collection of law enforcement investigators to
present the following: Winnie’s jailhouse phone call, Green’s
autopsy report, the taser’s back piece, video footage of Figures
allegedly throwing away the clothes he was wearing during
the murder, Figures’ interviews with investigators, cell phone
records, DNA evidence, and cell tower metadata showing
Figures near Green’s house around the time of the murder. The
context surrounding each piece of evidence will be addressed
in turn.
First, Investigator Wendi Dye explained that the front
door to Green’s house was unlocked, and she described the
location of Green’s body and the evidence collected at the
scene. Additionally, two police officers, Patrick Dempsey and
Beau Taylor, recounted how Vanessa’s statement aided the
investigation. For instance, Vanessa’s statement alerted them
to the taser’s back piece, which was later recovered from
Green’s basement.
Next, a coroner discussed Green’s autopsy. She explained
that Green died from three gunshot wounds to the head and
chest. Green also suffered a gunshot to the knee.
The State played a recorded phone call between Green
and Winnie. Because Winnie was then incarcerated, the call
was recorded by the correctional facility. In the recording,
Green said, “Pooh’s on the phone . . . Pooh, say some-
thing to your brother.” Without hanging up the phone, Green
stopped talking.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801The State displayed video surveillance footage from a car-
wash. The footage allegedly showed Figures dumping the
clothes he was wearing during the murder in the carwash’s trash
bin. However, investigators were unable to recover the clothes
before a sanitation truck collected the bin’s contents.
The State also played a redacted version of Figures’ first
interview with Investigator Ryan Hinsley. In the video, Figures
claimed that he was putting a stereo system into his sister’s car
on the day of the murder. Also, Figures denied knowing Dennis
or having any knowledge of the murder. However, Hinsley
testified that, in a followup interview, Figures admitted that
he knew who the “killer” was and that he could provide more
information to the investigators. For instance, Figures claimed
that the “killer” dumped Green’s cell phone in a trash can,
sewer, or other location, but would not be any more specific.
Based on this information, investigators found Green’s phone
in a sewer drain near Vanessa’s house.
Figures consented to a police search of his cell phone
and provided a DNA sample. Police officer Oscar Dieguez
downloaded the contents of Figures’ phone and testified to its
contents alongside the contents of Dennis’ and Vanessa’s cell
phones. Dieguez pointed out that Figures’ phone communi-
cated with Dennis’ phone multiple times before, during, and
after the day of the murder. Dieguez also verified the threaten-
ing text messages that Figures sent to Vanessa.
A DNA analyst testified regarding the DNA testing of 17
items. Notably, Green’s and another person’s DNA were found
on some of the items. While Figures was not a DNA contribu-
tor on a few items, testing of Figures’ DNA was inconclusive
on other items.
Finally, investigators used cell tower metadata to show that
Figures was near Green’s house during the time of the mur-
der. Both a telecommunications representative and an agent
with the Federal Bureau of Investigation reviewed metadata
from Omaha cell towers and concluded that Figures’ cell
phone traveled near Green’s house before and after the murder.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801Because the phone was inactive during the time the State
believed the murder occurred, neither witness could specifi-
cally pinpoint Figures’ phone to be at Green’s house. Another
telecommunications representative confirmed that Figures
changed his phone number following the murder.
(iii) Other Witnesses’ Testimony
The State presented three other witnesses: Cynthia Anderson,
Green’s girlfriend; Akil Williams, Green’s business partner;
and Jazmyne McMiller, Williams’ girlfriend. These three wit-
nesses collectively discovered Green’s body, but none was
able to place Figures at the crime scene. However, they estab-
lished that Green’s murder occurred between 11:45 a.m. and
1:30 p.m. on July 15, 2018.
McMiller arrived first at Green’s house around 1:30 p.m.,
and when no one answered the door, she remained on the
porch. Soon after, Williams met McMiller on the porch, where
they stayed. Finally, Anderson returned to the house. Anderson
lived at the property and had left around 11:45 a.m. to donate
plasma. Anderson entered the house and became alarmed
when she saw that her bedroom’s dresser drawers were ran-
sacked. McMiller and Williams then went inside the house, and
Anderson discovered Green’s body in the basement.
Anderson called the 911 emergency dispatch service and
tried to resuscitate Green, but McMiller and Williams immedi-
ately left the property. Williams testified that they left because
he did not want to risk being around law enforcement while
possessing a gun. After Williams hid the gun, McMiller and
Williams returned to Green’s house, but law enforcement had
arrived. All three witnesses complied with investigators and
subjected themselves to interviews and DNA requests.
(b) Defense Evidence
Figures raised his defense during his cross-examination
of the State’s witnesses—claiming that Williams murdered
Green. Figures elicited testimony that Green and Williams sold
drugs together and that Williams owed Green $8,000. Figures
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Nebraska Supreme Court Advance Sheets
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STATE v. FIGURES
Cite as 308 Neb. 801highlighted that Williams fled the scene after Green’s body was
discovered instead of trying to resuscitate him. Figures also
brought out that investigators declined to test Williams’ DNA
against Green’s items. Finally, Figures presented video camera
footage from Vanessa’s doorbell camera that showed he was
not carrying the clothes that Vanessa had told police he wore to
commit the crime. Figures rested without testifying or present-
ing his own witnesses.
3. Verdict and Sentences
The jury found Figures guilty of first degree murder and use
of a firearm to commit a felony. The court sentenced Figures
to life imprisonment for the murder conviction and 40 to 50
years’ imprisonment for the firearm conviction, to be served
consecutively, with 476 days’ credit for time served on the lat-
ter sentence.
Represented by new counsel, Figures filed a timely appeal.
III. ASSIGNMENTS OF ERROR
Figures assigns 10 errors with multiple subparts. For pur-
poses of clarity, we have reordered and consolidated the
assignments.
Two assignments address pretrial hearings. Figures attacks
orders overruling his motions for appointment of successor
trial counsel and Figures’ trial counsels’ motions to withdraw.
Figures also claims the court abused its discretion by denying
Figures’ request to be provided physical copies of discovery
while incarcerated.
Four assignments speak to trial events. Figures asserts that
the court abused its discretion by sustaining the State’s motion
to dismiss the “jury’s only African-American juror,” erred by
allowing the State to present a portion of its case in chief in
Figures’ absence, erred by permitting the State to introduce
inadmissible hearsay testimony and character evidence over
Figures’ objections, and erred in overruling his motion for
a mistrial.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801Two assignments speak generally. Figures assigns that the
evidence was insufficient to support his convictions. He also
raises an assignment of cumulative error.
[1] Finally, Figures assigns that he received ineffective
assistance of trial counsel. We have held that assignments of
error on direct appeal regarding ineffective assistance of trial
counsel must specifically allege deficient performance, and
an appellate court will not scour the remainder of the brief in
search of such specificity. 3 We quote Figures’ assignment of
errors in this section. However, for purposes of clarity, we will
reorder and consolidate these assignments in the analysis.
Figures assigns that his trial counsel failed
1) to seek a trial continuance and/or to object/to seek to
exclude witnesses that the State endorsed in its “Amended
Motion For Leave To Endorse,” dated July 18, 2019; 2)
to seek a continuance and/or to object/to seek to exclude
digital forensic reports and/or to obtain an expert to
counter said reports and related testimony; 3) to sub-
ject Vanessa to rigorous cross-examination; 4) to subject
Williams to rigorous cross-examination; 5) to move the
Court for a sequestration order and prohibition order
pursuant to State v. Hess . . . ; 6) to subject Dye to rig-
orous cross-examination; 7) to posit the proper founda-
tion objection to Hinsley’s testimony/to subject Hinsley
to rigorous cross-examination; 8) to renew a pre-trial
motion in limine/posit the proper objections to Dieguez’s
“expert” testimony; 9) to file a motion for new trial pur-
suant to § 29-2101; 10) to investigate Figures’ alibi wit-
nesses and to present an alibi defense when so instructed;
11) to posit proper objections to Dempsey and Taylor’s
“expert” testimony; [and] 12) to secure DNA/GSR testing
of Williams’ sample.
With the exception of the ninth instance, the State concedes
that the assignments of deficient conduct were sufficiently
3
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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Nebraska Supreme Court Advance Sheets
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STATE v. FIGURES
Cite as 308 Neb. 801specific. Based on this concession, we do not consider the
specificity of the other assignments further.
IV. STANDARD OF REVIEW
[2,3] In an appeal of a criminal conviction, we review the
evidence in a light most favorable to the prosecution. 4 An
abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. 5 Additional standards of review will be set forth in
the analysis.
V. ANALYSIS
1. Motion for New Counsel
Figures first assigns that the court abused its discretion by
denying his motions for appointment of successor trial coun-
sel and, correspondingly, by denying Figures’ trial counsel’s
and cocounsel’s motion to withdraw. Figures asserts that his
motions were based upon his trial counsel’s incompetence
and not rooted in mere dissatisfaction. Additionally, Figures
argues that the court applied the wrong legal standard, claiming
that the court applied an “exceptional circumstances” standard
instead of a “good cause” standard.
(a) Additional Facts
Because Figures was indigent, counsel was appointed.
However, Figures repeatedly moved the court to allow his
court-appointed counsel to withdraw.
First, Figures’ trial counsel, at Figures’ request, filed a
motion on September 24, 2018. In a hearing on the motion,
Figures explained that (1) he did not agree to his specific
counsel representing him, (2) he was not comfortable with
his attorney, (3) he wanted an attorney with more experience
with murder trials, and (4) he disagreed with his counsel’s
4
State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).
5
State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).
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STATE v. FIGURES
Cite as 308 Neb. 801defense strategy. The court denied Figures’ motion, finding
that “[Figures had not] shown good cause, and mere dissat-
isfaction [was] not sufficient.” Figures then filed a document
pro se on October 3, reciting the arguments he presented at
the hearing and also claiming that his trial counsel should be
removed because (1) his trial counsel was “hired [and] picked”
by the prosecution, (2) he does not trust his counsel, (3) coun-
sel was not communicating with him, and (4) trial counsel was
not following his instructions. No hearing was held on this
pro se document.
In response to Figures’ filing another document pro se
on May 6, 2019, Figures’ trial counsel again filed a motion
to withdraw on May 23. At a hearing regarding the motion,
Figures reiterated his arguments from the September 2018
hearing and his pro se document. He added that his counsel
failed to explain the ramifications of waiving his right to a
speedy trial and that he could not review the entire discovery
because of his poor working relationship with counsel. Figures
also declined to represent himself pro se and explained that he
could not afford private counsel.
The district court overruled Figures’ motions, finding that
Figures did not show good cause for removal of his counsel.
While the court referenced “exceptional circumstances” when
it explained to Figures what conditions would warrant new
counsel, it ultimately cited State v. Bratton 6 and ruled that “[it
did not] find that [there was] good cause shown for appoint-
ment of new counsel.” Figures’ counsel noted in a later hear-
ing on June 20, 2019, that Figures’ relationship with him had
“significantly improved.”
Figures’ cocounsel also moved to withdraw from the case
on July 17, 2019. However, counsel’s basis for the motion
was that he had taken a new job in another state. Because
cocounsel’s motion was on the eve of trial, the court overruled
his motion.
6
State v. Bratton, 187 Neb. 460, 191 N.W.2d 612 (1971).
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STATE v. FIGURES
Cite as 308 Neb. 801(b) Standard of Review
[4] An appellate court reviews a trial court’s rulings on
motions to withdraw as counsel and motions to dismiss
appointed counsel and appoint substitute counsel for an abuse
of discretion. 7
(c) Discussion
[5-7] When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to
the court for the removal of counsel, his or her only alternative
is to proceed pro se if he or she is competent to do so. 8 An
indigent defendant’s right to have counsel does not give the
defend­ant the right to choose his or her own counsel. 9 Mere
distrust of, or dissatisfaction with, appointed counsel is not
enough to secure the appointment of substitute counsel. 10
Because Figures declined to proceed pro se or retain private
counsel, Figures had to show that his trial counsel was incom-
petent. Figures cited evidence that he disliked his trial counsel
and that Figures did not have a good working relationship
with him.
The district court found that Figures failed to prove that his
trial counsel was incompetent. The court applied the correct
standard and did not abuse its discretion.
2. Discovery
Figures next assigns that the court abused its discretion
by denying his request to obtain his own physical copies of
discovery material. Figures asserts the court failed to base
its decision on Neb. Rev. Stat. § 29-1912 (Reissue 2016).
Figures also argues he could not properly review discovery
7
See, State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020); State v.
Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
8
Weathers, supra note 7.
9
Id.10
Id.- 815 -
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STATE v. FIGURES
Cite as 308 Neb. 801because of his “dysfunctional” relationship with his trial
counsel. 11
(a) Additional Facts
Figures requested copies of discovery that he could keep in
his possession, instead of reviewing discovery with his attor-
ney. Figures was incarcerated for the entirety of the proceed-
ings. While not in the record, the State’s brief explained that
Figures’ counsel followed local practice and agreed to not pro-
vide physical copies of the discovery to Figures in exchange
for the State providing more discovery than was required by
statute. At oral arguments, Figures’ appellate counsel con-
ceded that “traditionally, the way discovery is disseminated
to a criminal defendant is through counsel.” The court denied
Figures’ request.
(b) Standard of Review
[8] Unless granted as a matter of right under the Constitution
or other law, discovery is within the discretion of a trial court,
whose ruling will be upheld on appeal unless the trial court has
abused its discretion. 12
(c) Discussion
Section 29-1912 “permit[s] the defendant to inspect and
copy or photograph [discovery],” but does not mandate that
the State provide physical copies of discovery for a defendant
to possess while incarcerated. Figures’ counsel possessed the
physical copies of the discovery, which Figures could review.
Therefore, we find that the court did not abuse its discretion in
denying his request.
3. Juror Dismissal
Figures next assigns that the court abused its discretion
by sustaining the State’s motion to strike the “jury’s only
11
Brief for appellant at 34.
12
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
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STATE v. FIGURES
Cite as 308 Neb. 801African-American juror.” Figures argues that the court’s ruling
was not supported by the record and that the State did not artic-
ulate a race-neutral reason pursuant to Batson v. Kentucky 13
for discharging the juror. However, the juror’s removal did
not result from a peremptory challenge by the State; rather, it
occurred during the course of the trial.
(a) Additional Facts
In the middle of the trial, the State brought to the court’s
attention that a juror may have had improper communications
with Figures’ associate. The court heard from two witnesses
and the juror. The two witnesses testified that the day before,
they saw the juror talking with a man in the courthouse, which
they recognized as being Figures’ associate.
The juror initially denied talking to anyone. However, the
juror returned to the courtroom a short time later and modi-
fied her testimony. The juror then testified that a man had
approached her, but she thought he was just trying to “hit on
[her],” so she ignored him.
The State moved to strike the juror, citing the witnesses’ and
juror’s testimony. The court sustained the State’s motion over
Figures’ objection. In its ruling, the court noted that “there was
quite a discrepancy in the [juror’s] testimony” about “conduct
not even 24 hours ago.”
(b) Standard of Review
[9] The retention or rejection of a juror is a matter of dis-
cretion for the trial court, and this rule applies both to the
issue of whether a venireperson should be removed for cause
and to the situation involving the retention of a juror after the
commencement of trial; thus, the standard of review in a case
involving discharge of a juror is whether the trial court abused
its discretion. 14
13
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d. 69 (1986).
14
State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
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Neb. Rev. Stat. § 29-2004(2) (Reissue 2016) authorizes a
court to disqualify a juror for cause after the juror has been
sworn in. Section 29-2004(2) has been amended since Figures’
trial, but neither version of § 29-2004(2) identifies the reasons
for which a juror might be discharged. 15
[10,11] Case law, however, establishes that a trial court has
broad discretion to discharge a juror for cause so long as the
court has a legal or factual basis to believe that the juror can-
not serve as an impartial juror. 16 Therefore, a court’s decision
to discharge a juror is an abuse of discretion if it is without
factual support or for a legally irrelevant reason. 17
We find that the court did not abuse its discretion in dis-
charging the juror. Noting that there were “discrepanc[ies]” in
the juror’s testimony, the court had a factual basis to believe
that the juror would not be able to serve as an impartial juror.
Additionally, we find no merit to Figures’ claim that the juror’s
dismissal violated Batson. 18
4. Figures’ Absence
Figures assigns that the court erred by allowing the State
to present a portion of its case in chief in Figures’ absence.
Figures argues that the court deprived him of his right to be
present in the courtroom at every stage of his trial.
(a) Additional Facts
After the African-American juror was excused, Figures left
the courtroom for the remainder of the day, declining to
be present for the opening portion of Dye’s direct exami-
nation. The court allowed the State to continue to present
witnesses. Figures was not deprived of his opportunity to
15
See, generally, State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
16
See, e.g., Huff, supra note 14.
17
See id.18
Batson, supra note 13.
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Cite as 308 Neb. 801cross-­examine Dye, and Figures’ counsel was present during
the entire testimony.
(b) Standard of Review
[12,13] Whether a defendant could and, in fact, did waive
his or her right to attend all stages of his or her trial presents a
question of law. 19 When reviewing questions of law, an appel-
late court has an obligation to resolve the questions indepen-
dently of the conclusion reached by the trial court. 20
(c) Discussion
[14] The Confrontation Clause of the Sixth Amendment to
the U.S. Constitution and Neb. Const. art I, § 11, provide for
the accused’s right to be present in the courtroom at every
stage of the trial. 21 Neb. Rev. Stat. § 29-2001 (Cum. Supp.
2020) provides: “No person indicted for a felony shall be
tried unless personally present during the trial.” However, a
defendant’s right to be present at trial may be waived, but any
waiver of this right must be knowing and voluntary. 22
[15] A waiver is the voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct. 23 We have
explained that if a defendant could “‘prevent the completion
of the trial by voluntarily absenting himself, and thus tie the
hands of justice, he would be permitted to take advantage of
his own wrong.’” 24
Figures voluntarily and intentionally waived his right to
be present during a portion of the trial. Figures left the
19
State v. Warlick, ante p. 656, ___ N.W.2d ___ (2021).
20
State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020).
21
Warlick, supra note 19.
22
Id.
23
Id.
24
Id. at 677-78, ___ N.W.2d at ___ (quoting Scott v. State, 113 Neb. 657,
204 N.W. 381 (1925)).
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Cite as 308 Neb. 801courtroom on his own accord. We will not allow Figures to take
advantage of his own conduct. Figures’ claim has no merit.
5. Evidentiary Rulings
Combining two of Figures’ assignments, Figures assigns that
the court abused its discretion or erred by permitting the State
to introduce two pieces of inadmissible evidence: character
evidence and hearsay. First, Figures argues that the court erred
by allowing the State to elicit testimony of a failed drug deal
and Figures’ threats toward Vanessa. Next, Figures asserts that
investigators’ testimony regarding Vanessa’s statement to law
enforcement was inadmissible hearsay. Each will be addressed
in turn.
(a) Standard of Review
[16,17] In proceedings where the Nebraska Evidence
Rules apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules and judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. 25 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. 26
[18] A party who fails to make a timely objection to evi-
dence waives the right on appeal to assert prejudicial error
concerning the evidence received without objection. 27
[19,20] Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but, rather, whether
the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error. 28 Erroneous admission of
25
Martinez, supra note 5.
26
Id.27
State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
28
State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
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Cite as 308 Neb. 801evidence is harmless error and does not require reversal if the
evidence is cumulative and other relevant evidence, properly
admitted, supports the finding by the trier of fact. 29
(b) Alleged Character Evidence
(i) Additional Facts
During pretrial hearings and a colloquy immediately before
opening arguments were presented at trial, the parties disputed
the admissibility of two of Figures’ actions after the murder: a
failed drug deal and threats toward Vanessa. After the murder,
Figures had a verbal dispute with Vanessa’s aunt at Vanessa’s
house. The State alleged that the dispute originated from a
failed drug deal. Additionally, as recounted earlier, Figures
repeatedly threatened Vanessa, demanding that she not tell any-
one about his involvement in Green’s death.
Figures sought to exclude evidence of his actions pursuant
to Neb. Rev. Stat. § 27-404(2) (Reissue 2016). Figures argued
that the State planned to use this evidence to show his bad
character and propensity to commit the murder.
The State refuted Figures’ arguments. However, because the
State never brought up the failed drug deal at trial, the only
evidence that reached the jury was Figures’ threats toward
Vanessa. Citing State v. Parnell, 30 the State argued that Figures
made terroristic threats toward Vanessa, which were inex-
tricably intertwined with the charged offense and fell out-
side § 27-404(2).
The district court agreed with the State, allowing Vanessa to
testify about Figures’ threats toward her. While Figures had a
continuous objection regarding the failed drug deal, he did not
object to Vanessa’s testimony regarding the threats at trial.
(ii) Discussion
For separate reasons, we dispose of this assignment without
addressing its merits. Because the State never presented the
29
Id.
30
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
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Cite as 308 Neb. 801alleged drug deal to the jury, it could not generate prejudicial
error. Regarding Vanessa’s testimony about Figures’ threats,
Figures failed to object to this testimony at trial. Therefore,
Figures waived his right to assert prejudicial error concerning
the evidence of Figures’ threats.
(c) Hearsay
(i) Additional Facts
The State elicited testimony from both Dempsey and Taylor,
police officers who took Vanessa’s statement. They recited
Vanessa’s statements to law enforcement, including what
Figures told Vanessa. Figures objected, based upon hearsay.
The court overruled the objection, but noted Figures’ continu-
ing objection.
(ii) Discussion
The court erred by allowing the officers to testify to inad-
missible hearsay. The officers testified about statements which
were made out of court and used for the truth of the matter
asserted. 31 While Vanessa’s statements regarding what Figures
told her are admissible as opposing party statements, it does
not justify allowing the officers to testify regarding Vanessa’s
own statements. 32
The court’s error, however, was harmless. The officers’ tes-
timony was cumulative to Vanessa’s testimony earlier in the
trial, and the State presented other relevant evidence that sup-
ported the jury’s verdict. We will not reverse based upon this
harmless error.
6. Motion for Mistrial
Figures next assigns the court erred in overruling his motion
for a mistrial. Figures argues that he was deprived of a fair
trial, because prosecutorial misconduct misled the jury as to the
evidence it could consider.
31
See Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
32
See § 27-801(4)(b).
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During the trial, the State stipulated to the admissibility of a
video clip from Vanessa’s doorbell video camera (exhibit 372).
However, the State noted that, in response, it would play the
rest of the camera’s footage (exhibit 373) to argue that the time
stamps were altered. Figures stipulated to the admissibility of
exhibit 373.
During Hinsley’s cross-examination, Figures offered into
evidence and played exhibit 372 to the jury. On Hinsley’s
redirect, the State offered exhibit 373 “not to go back to the
jury, but just for purposes of the record and then ask[ed] . . .
permission to, for demonstrative purposes, illustrate a few that
will assist the detective in explaining his testimony.” The
State then played a portion of exhibit 373 to the jury in order
for Hinsley to assert that the doorbell footages’ time stamps
were altered.
The parties readdressed these exhibits in their closing argu-
ments. First, Figures asserted that exhibit 372 contradicted
Vanessa’s testimony that Figures was carrying the clothes he
wore to Green’s house on the day of the murder. Figures then
argued that because the State could not refute exhibit 372, it
did not want the jury to see the exhibit.
The State objected to Figures’ argument, asserting that it
misstated the evidence on the record. The court did not explic-
itly rule on the State’s objection, but Figures amended his argu-
ment to focus on the States’ claim that exhibit 372’s time stamp
was manipulated.
During rebuttal, the State stated that “[i]t’s one thing to
zealously represent your client, but it’s quite another thing to
come up here and make the implications that you just heard
over the last hour.” The State accused Figures of mischaracter-
izing exhibit 372 as evidence that the State wanted to “hide.”
Referencing the time stamp manipulation, the State explained
that it presented neither exhibit 372 nor exhibit 373 during
Hinsley’s direct examination, because it did not believe it had
the foundation to offer it.
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Cite as 308 Neb. 801After the jury was sent to deliberate, Figures moved for
a mistrial. Figures argued that the jury was instructed that it
could only consider evidence that had been properly admitted.
Figures claimed the jury was under the impression that exhibit
372, which was properly admitted, could not be considered
based upon the parties’ interactions at closing statements and
the State’s rebuttal statement. Figures concluded that he did not
have a fair trial, because the entire proceedings were tainted.
Explaining that “[it did not] think we’ve even gotten close to
that,” the court overruled Figures’ motion for a mistrial.
(b) Standard of Review
[21,22] An appellate court will not disturb a trial court’s
decision whether to grant a motion for mistrial unless the court
has abused its discretion. 33 A mistrial is properly granted in a
criminal case where an event occurs during the course of trial
which is of such a nature that its damaging effect cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial. 34
(c) Discussion
[23,24] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct. 35 If we conclude that a prosecutor’s acts were mis-
conduct, we next consider whether the misconduct prejudiced
the defendant’s right to a fair trial. 36
We have acknowledged that “prosecutorial misconduct” can-
not be neatly defined, but we have said that generally, it
encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine
33
State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).
34
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
35
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
36
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Cite as 308 Neb. 801a defendant’s right to a fair trial. 37 We have also said that a
­prosecutor’s conduct that does not mislead and unduly influ-
ence the jury is not misconduct. 38
We disagree with Figures’ assertion that the State made
baseless objections that misled the jury. The record shows that
at a sidebar, the parties had a genuine dispute regarding which
exhibits were not offered to the jury. The court grappled with
that issue as well. We do not find the State’s objections consti-
tuted prosecutorial misconduct.
[25] However, we are concerned with the State’s rebuttal
statement. We have ruled that a prosecutor should not make
arguments calculated to appeal to the prejudices of the jury
and should refrain from arguments which would divert the jury
from its duty to decide the case on the evidence. 39 We recog-
nize that hyperbole in closing arguments is hardly rare and that
juries should be given credit for the ability to filter out ora-
torical flourishes. 40 But comments by prosecutors to the effect
that a defense attorney’s job is to mislead the jury in order to
garner an acquittal for his or her client is not only distasteful
but borders on being unethical and such comments only serve
to denigrate the legal profession in the eyes of the jury and,
consequently, the public at large. 41
Here, the State stated that “[i]t’s one thing to zealously
represent your client, but it’s quite another thing to come up
here and make the implications that you just heard over the
last hour.” Here, the State never explicitly argued that Figures
was lying or trying to mislead the jury. But the implication
37
Id.38
Id.39
See State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727(2007).
40
See id.41
See id.- 825 -
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Cite as 308 Neb. 801of the State’s argument reaches the extreme end of permis-
sible conduct.
[26,27] However, even if we assume that the State’s argument
crossed the line into prosecutorial misconduct, it does not war-
rant reversal because it did not prejudice Figures. Prosecutorial
misconduct prejudices a defendant’s right to a fair trial when
the misconduct so infects the trial that the resulting conviction
violates due process. 42 Whether prosecutorial misconduct is
prejudicial depends largely upon the context of the trial as a
whole. 43 In determining whether a prosecutor’s improper con-
duct prejudiced the defendant’s right to a fair trial, we consider
the following factors: (1) the degree to which the prosecutor’s
conduct or remarks tended to mislead or unduly influence the
jury, (2) whether the conduct or remarks were extensive or
isolated, (3) whether defense counsel invited the remarks, (4)
whether the court provided a curative instruction, and (5) the
strength of the evidence supporting the conviction. 44
Because the State’s conduct was not prejudicial and did not
violate Figures’ right to a fair trial, we find that the court did
not abuse its discretion in overruling Figures’ motion for a
mistrial. The single comment was made at the end of the trial
and was overshadowed by the plenitude of evidence supporting
Figures’ conviction. It was within the court’s discretion to find
that the jury could filter out the State’s hyperbole and render a
verdict based upon the evidence presented.
7. Sufficiency of Evidence
Figures argues that the evidence presented was insufficient
to support his convictions. Citing State v. Scott, 45 Figures
claims there was insufficient corroboration of Figures’ confes-
sion to Vanessa.
42
State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
43
Hernandez, supra note 35.
44
Id.45
See State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978).
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[28] 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 witnesses, or reweigh the evidence, and
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. 46
(b) Discussion
[29] Scott mandates that a voluntary confession is insuffi-
cient, standing alone, to prove that a crime has been commit-
ted, but that it is competent evidence of that fact and may, with
slight corroboration, establish the corpus delicti as well as the
defendant’s guilty participation. 47
The State presented sufficient corroborating evidence for the
jury to convict Figures. The State presented evidence regard-
ing Green’s cause of death, the condition of the crime scene,
a recorded phone call, tangible physical evidence, forensics,
cell phone data, and cell tower metadata. This evidence cor-
roborated Figures’ confession to Vanessa. Figures’ claim has
no merit.
8. Accumulation of Errors
Figures next argues that the aggregated errors in Figures’
case warrants reversal.
(a) Standard of Review
[30] Whether cumulative error deprived a criminal defendant
of his or her Sixth Amendment right to a trial by an impartial
jury presents a question of law to be reviewed de novo. 48
46
See State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).
47
See Scott, supra note 45.
48
State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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Cite as 308 Neb. 801(b) Discussion
Because we already determined that the errors assigned by
Figures were either meritless or inconsequential, we decline to
reverse based on the cumulative error doctrine. It has no appli-
cation here.
9. Ineffective Assistance
of Counsel
Finally, Figures presents 12 assignments of ineffective assist­
ance of counsel. Figures’ appellate counsel is different than his
trial counsel. For purposes of clarity, we have reordered and
consolidated some of Figures’ assignments.
(a) Standard of Review
[31-33] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 49 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 preju-
diced by counsel’s alleged deficient performance. 50 When the
claim is raised in a direct appeal, the appellant is not required
to allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel. 51
[34] An alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error
to be considered by an appellate court. 52
49
State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
50
Id.51
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
52
State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
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Cite as 308 Neb. 801(b) Specific Assignments
(i) Witness List
Figures starts his ineffective assistance of counsel assign-
ments by arguing that his trial counsel was defective by (1) not
seeking a trial continuance after the State amended its witness
list or (2) not objecting to and seeking to exclude newly added
witnesses from testifying at trial. Both parts of Figures’ claim
will be addressed in turn.
First, the record is insufficient to address why Figures’ trial
counsel did not move for a continuance. While Figures’ trial
counsel objected to the State’s motion, a continuance was never
raised. The record does not explain why Figures’ trial counsel
did not do so.
Next, Figures’ trial counsel was not deficient by not object-
ing and seeking to exclude the witnesses at trial. Because the
State amended its witness list more than 30 days before trial,
the court overruled Figures’ pretrial objection. 53 It would have
been futile to object again at trial.
(ii) Digital Forensic Reports
Figures argues his trial counsel was defective by (1) not
seeking a trial continuance after the State disclosed the digital
forensic reports, (2) not objecting to and seeking to exclude the
reports at trial, and (3) failing to obtain an expert to refute the
reports. Each part of the claim will be addressed in turn.
The record is insufficient to address the first part of Figures’
claim. The record does not detail why Figures’ trial counsel
did not move for a continuance. At the hearing following the
State’s disclosure of the digital forensic reports, Figures’ trial
counsel explicitly stated that Figures was not requesting a
continuance at that time, but he did not provide an explana-
tion why.
Figures’ trial counsel was not deficient for failing to object
to and seek to exclude the contents of the digital forensic
53
See Neb. Rev. Stat. § 29-1602 (Reissue 2016).
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Cite as 308 Neb. 801reports at trial. Because the timely reports were admissible evi-
dence, the court overruled Figures’ pretrial motion to preclude
the reports, based upon alleged late disclosure, and it would
have been futile to object again at trial. 54
Finally, the record does not provide the necessary context
regarding obtaining or presenting a digital forensic expert. The
court granted Figures’ motion to obtain an expert. However,
the record does not explain whether Figures did in fact obtain
an expert and, if so, why Figures did not present the expert to
counter the digital forensic reports.
(iii) Witness Testimony
Figures also assigns that his trial counsel deficiently cross-
examined witnesses and failed to raise proper objections to
witnesses’ testimony at trial. Each claim will be addressed
in turn.
a. Vanessa
Figures assigns his trial counsel ineffectively cross-­examined
Vanessa by not inquiring into Vanessa’s inconsistent statements
to law enforcement, her delay in reporting the crime, and
whether she had entered into an agreement to testify in lieu of
criminal prosecution. The record is devoid as to why Figures’
trial counsel chose not to ask Vanessa particular questions. We
agree with the State that the record is insufficient to address
this assignment.
b. Williams
Figures next assigns that his trial counsel ineffectively
cross-examined Williams by not asking about Williams’ prior
inconsistent statements to law enforcement, by not asking
about Williams’ drug use on the day of the murder, and by
failing to obtain Williams’ criminal history before his testi-
mony. Figures also asserts that his trial counsel “los[t] control
54
See Crowder v. Aurora Co-op Elev. Co., 223 Neb. 704, 393 N.W.2d 250(1986).
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Cite as 308 Neb. 801of Williams’ testimony.” 55 Each claim will be addressed
in turn.
First, the record is insufficient to explain why Figures’ trial
counsel declined to ask Williams about his prior inconsistent
statements and marijuana use. Additionally, the record does
not establish whether Figures suffered prejudice by his trial
counsel’s failure to obtain Williams’ criminal record before
trial. However, the record is sufficient to address Figures’ trial
counsel’s “losing control of Williams’ testimony.” 56
We disagree with Figures’ characterization of his trial coun-
sel’s interaction with Williams. While Williams provided hostile
commentary throughout his cross-examination, Figures’ trial
counsel sufficiently bypassed Williams’ aggression, objected to
nonresponsive testimony, and remained focused on extracting
testimony from Williams. Figures’ claim has no merit.
Finally, Figures argues, but fails to assign, that his trial
counsel was deficient by not objecting to relevance and
improper witness bolstering on Williams’ redirect examina-
tion. 57 Because Figures failed to assign error on these matters,
we decline to address them. 58
c. Dye
Figures also assigns that his trial counsel ineffectively
cross-examined Dye by failing to inquire into her presence in
the courtroom during Williams’ testimony, how she learned of
the contents of Williams’ testimony, and her investigation of
Williams as a suspect in Green’s homicide. The record again
lacks the detail necessary to address Figures’ claim, because
it does not explain why Figures’ trial counsel declined to
ask Dye particular questions. Therefore, we cannot resolve
this claim.
55
See brief for appellant at 67.
56
See id.57
See Neb. Rev. Stat. §§ 27-401, 27-402, and 27-608 (Reissue 2016).
58
See McGuire, supra note 52.
- 831 -
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Cite as 308 Neb. 801In Figures’ brief, he also argues, but fails to assign, that his
trial counsel was ineffective for failing to object to multiple
portions of Dye’s testimony, failing to offer pertinent motions,
and eliciting evidence from Dye that contradicted Figures’
defense. Because Figures’ failed to assign error on these mat-
ters, we decline to address them. 59
d. Hinsley
Figures next assigns that his trial counsel was ineffective
by failing to make a foundational objection to exhibit 373
and moving to strike to Hinsley’s related testimony. Figures’
assignment mischaracterizes the record. As discussed ear-
lier, Figures and the State entered into stipulations regarding
the doorbell footage. The State stipulated to Figures’ playing
exhibit 372 with the understanding that it would play exhibit
373 to argue that the time stamps were manipulated. Figures’
trial counsel agreed to this arrangement. Consequently, Figures
was able to play exhibit 372 without the State’s making a foun-
dational objection.
In this appeal, Figures now argues that his trial coun-
sel should have presented a foundational objection to exhibit
373—from which exhibit 372 originates. The State’s sole pur-
pose in playing exhibit 373 was to explain to the jury that it
did not present the exhibit earlier because it did not believe
there was sufficient foundation to present it. Figures’ objection
would have proved the State was right and discredited exhibit
372, which he presented earlier. Therefore, Figures’ trial coun-
sel was not deficient.
Figures also argues, but fails to assign, that his trial counsel
was ineffective by eliciting incriminating testimony against
Figures from Hinsley. We likewise decline to address this argu-
ment, because Figures failed to properly assign error. 60
59
See id.60
See id.- 832 -
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Cite as 308 Neb. 801e. Dieguez
Figures assigns that his trial counsel was ineffective by fail-
ing to (1) renew his pretrial motion to preclude Dieguez from
testifying; (2) object to Dieguez’ testimony and the exhibits
that Dieguez used during his testimony for being irrelevant,
improper expert witness testimony, hearsay, and having a pro-
bative value that was substantially outweighed by the danger
of unfair prejudice; and (3) object to the exhibits for violating
Crowder v. Aurora Co-op. Elevator Co. 61 Each claim will be
addressed in turn.
First, Figures’ claim that his trial counsel should have
renewed his pretrial motion to preclude Dieguez from testify-
ing has no merit. Figures argued in his pretrial motion that
§ 29-1602 required that the State disclose that Dieguez would
serve as an expert witness. However, while statute mandates
that the State endorse a list of witnesses known to it, it does
not require that the State highlight a witness’ expert status. 62
Next, Figures could not have properly objected to Dieguez’
testimony or the exhibits presented. Dieguez’ testimony and
exhibits discussed relevant statements made by Figures and
had a probative value that was not outweighed by any unfair
prejudice. Also, the exhibits did not violate Crowder. 63 The
exhibits were a PowerPoint presentation of the digital forensic
reports of Figures’, Vanessa’s, and Dennis’ phones. The docu-
ments summarized by the exhibits were identifiable, admissi-
ble, voluminous, and previously disclosed to Figures. Figures’
claim has no merit.
Figures argues, but fails to assign, that his trial counsel inef-
fectively cross-examined Dieguez. Because Figures failed to
assign error, we decline to address the argument. 64
61
See § 27-401 and Neb. Rev. Stat. §§ 27-403, 27-602, 27-702, 27-705,
27-802, and 27-1006 (Reissue 2016); Crowder, supra note 54.
62
See § 29-1602.
63
See Crowder, supra note 54.
64
See McGuire, supra note 52.
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308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801f. Dempsey and Taylor
Figures assigns that his trial counsel was ineffective by fail-
ing to object to Dempsey’s and Taylor’s “expert” testimony.
However, Figures argues that his trial counsel was ineffec-
tive by failing to object to the officers’ testimony regarding
Vanessa’s statements to them as hearsay and needlessly cumu-
lative evidence. Figures’ arguments differ from his assignment,
and therefore, we decline to address them. 65
(iv) Sequestration of Witnesses
Figures also assigns his trial counsel was ineffective by fail-
ing to move for the witnesses to be sequestered. Figures argues
his trial counsel’s failure to move for sequestration led to the
State’s witnesses coordinating their testimony.
The record is insufficient to address Figures’ assignment.
The record does not provide any evidence that the witnesses
coordinated their testimony or that Figures suffered any preju-
dice by his trial counsel’s not moving for the sequestration
of witnesses.
(v) Motion for New Trial
Figures argues that his trial counsel was ineffective by fail-
ing to move for a new trial based upon evidence that arose
after the jury rendered its verdict. Figures alleges Vanessa sent
him a letter, which contained information supporting a motion
for new trial, 2 days after the jury rendered its verdict. Figures
asserts that he provided the letter to his trial counsel, but trial
counsel never moved for a new trial.
But the State responds that Figures’ assignment—which,
as quoted above, asserted only that trial counsel failed to
file a motion for new trial—was insufficient. We agree. We
have already recounted a defendant’s obligation to specifi-
cally allege the deficient conduct which is asserted as a claim
of ineffective assistance of counsel. 66 The assignment fails to
state any ground for the motion.
65
See id.66
See Mrza, supra note 3.
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308 Nebraska Reports
STATE v. FIGURES
Cite as 308 Neb. 801Even if we were to consider his argument’s reference to a
letter, the assignment still lacks specificity. In the context of
direct appeal, like the requirement in postconviction proceed-
ings, mere conclusions of fact or law are not sufficient to
allege ineffective assistance of counsel. 67 Figures fails to state
what “information” was contained in the letter. 68 Without that
specificity, it is at best a mere conclusion and an insufficient
allegation of deficient conduct.
(vi) Alibi
Figures assigns that his trial counsel was ineffective by
failing to present his alibi defense. Figures told investigators
that he was installing a car stereo with his brother and sister
at the time of Green’s death. Figures avers that he instructed
his trial counsel to present that statement as an alibi defense,
but, instead, his trial counsel only asserted that Williams killed
Green. The record is insufficient to address this claim.
(vii) Williams’ DNA Sample
Finally, Figures assigns that his trial counsel was ineffective
by failing to secure testing of Williams’ DNA and gunshot resi-
due samples. Neither sample was tested by law enforcement.
Figures claims his trial counsel’s inaction was inconsistent with
his defense that Williams killed Green.
The record does not explain why Figures’ trial counsel did
not request that Williams’ DNA and gunshot residue samples
be tested. Therefore, we cannot address Figures’ final claim.
VI. CONCLUSION
We find no court errors or abuse of discretion warrant-
ing reversal. The evidence presented was sufficient for the
jury to convict Figures. Finally, based upon the record pro-
vided, Figures did not receive ineffective assistance of counsel.
Therefore, we affirm the judgment of the district court.
Affirmed.
67
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
68
Brief for appellant at 72.