State v. Devers

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/18/2020 09:08 AM CDT
- 429 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
State of Nebraska, appellee, v.
Jason D. Devers, appellant.
___ N.W.2d ___
Filed July 10, 2020. No. S-19-629.
1. Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
cretion with respect to sanctions involving discovery procedures, and
their rulings thereon will not be reversed in the absence of an abuse
of discretion.
2. Appeal and Error. Appellate courts do not generally consider argu-
ments and theories raised for the first time on appeal.
3. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
4. 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.
5. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
6. Trial: Evidence. Balancing the probative value of evidence against the
danger of unfair prejudice is within the discretion of the trial court.
7. ____: ____. Evidence that is irrelevant is inadmissible.
8. Evidence. Relevancy requires only that the probative value be some-
thing more than nothing.
9. Rules of Evidence. Under Neb. Rev. Stat. § 27-403 (Reissue 2016),
relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.
10. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
11. ____: ____. Unfair prejudice speaks to the capacity of some concededly
relevant evidence to lure the fact finder into declaring guilt on a ground
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
different from proof specific to the offense charged, commonly on an
emotional basis.
12. Evidence: Corroboration: Testimony. Evidence may be relevant
because it corroborates other testimony.
13. Criminal Law: Evidence. The State is allowed to present a coherent
picture of the facts of the crimes charged, and it may generally choose
its evidence in so doing.
14. Evidence. Most, if not all, evidence offered by a party is calculated to
be prejudicial to the opposing party.
15. Jury Instructions. In construing an individual jury instruction, the
instruction should not be judged in artificial isolation but must be
viewed in the context of the overall charge to the jury considered as
a whole.
16. Evidence: Words and Phrases. Circumstantial evidence is not inher-
ently less probative than direct evidence.
17. 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 surely
would have been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
18. 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; 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.
19. Criminal Law: Aiding and Abetting: Intent: Other Acts. One who
intentionally aids and abets the commission of a crime may be respon-
sible not only for the intended crime, if it is in fact committed, but also
for other crimes which are committed as a natural and probable conse-
quence of the intended criminal act.
20. 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.
21. ____: ____. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record.
22. ____: ____. Once issues of trial counsel’s ineffective performance are
properly raised, the appellate court will determine whether the record
on appeal is sufficient to review the merits of the ineffective perform­
ance claims.
23. 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.
24. 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 Douglas County: Timothy
P. Burns, Judge. Affirmed.
Michael J. Wilson, of Berry Law Firm, 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.
Per Curiam.
I. INTRODUCTION
Jason D. Devers appeals from convictions, pursuant to a jury
verdict, for first degree felony murder and use of a firearm to
commit a felony. We find no merit in his claims regarding the
termination of a witness’ deposition, admission of controlled
substance and firearm evidence, and sufficiency of the evi-
dence to support his intentions to commit robbery and use a
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
firearm. Further, he asserts 13 claims of ineffective assistance
of trial counsel, but the three that we reach on direct appeal
lack merit. We affirm.
II. BACKGROUND
In the early morning hours of January 6, 2018, Kyle LeFlore
was shot and killed outside of Reign Lounge, a bar and night-
club in Omaha, Nebraska. Following an investigation, Devers
was arrested. The State filed an information charging him with
first degree felony murder, 1 use of a deadly weapon to commit
a felony, 2 and possession of a deadly weapon by a prohib-
ited person. 3
Before delving into the proceedings, a brief summary of the
surrounding events is necessary. In accordance with our stan-
dard of review, we synopsize them in the light most favorable
to the State.
On the evening of January 5, 2018, Devers and Larry
Goynes went to Reign Lounge. At some point during the
evening, Devers told Goynes that he knew of a “lick” (target
for robbery). Sometime past midnight, Devers and Goynes
left and sat in Devers’ vehicle in the parking lot. Goynes
received a message that LeFlore was leaving. Goynes got out
of the vehicle, and Devers drove off. Goynes attempted to
rob LeFlore, but LeFlore fought back. Goynes shot LeFlore
and stole his jewelry. Later that morning, LeFlore died.
After shooting LeFlore, Goynes ran down the street to where
Devers had moved his vehicle and got in. Following an inves-
tigation, law enforcement authorities suspected Devers and
Goynes of the murder. During several searches pursuant to
warrants, the authorities found a firearm linked to Devers and
Goynes and found controlled substances and ammunition in
Devers’ home.
1
Neb. Rev. Stat. § 28-303(2) (Cum. Supp. 2018).
2
Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016).
3
Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Supp. 2017).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
1. Pretrial
(a) Motions in Limine
(i) Piya Milton’s
Deposition
Prior to trial, Devers moved to take the deposition of Piya
Milton, a witness for the State. The district court granted
the motion and ordered that it take place on August 9, 2018.
It entered a similar order in a companion case pertaining to
Latiba Lemon.
At the deposition, with Devers’ counsel present, Milton
refused to answer questions, claiming that her life would be
in danger if she did. The court was asked to intervene. After
Milton informed the court of her belief, the court ordered
the deposition to be discontinued and appointed counsel for
Milton. The court stated that after Milton received counsel,
Devers would be free to file another motion to take Milton’s
deposition. At that time, the State indicated that it would
not object.
Instead of filing another motion to depose Milton, Devers
filed a motion in limine asking the court to prohibit the State
from calling Milton as a witness, based upon her refusal to
cooperate at the deposition. The court’s order overruling the
motion recounted the events and reiterated that Devers was free
to file an additional motion to take Milton’s deposition. Devers
did not do so.
(ii) Firearms and Controlled
Substances
Devers filed a separate motion in limine to prohibit the
introduction of several items of evidence, including “[a]ny
evidence regarding firearms that were recovered and alleged
to have been used in the homicide of . . . Le[F]lore [and a]ny
evidence regarding [controlled substances] that were recov-
ered from [Devers’] residence on January 6, 2018, pursuant to
search warrant.”
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
The district court overruled the motion in limine regard-
ing the evidence related to a firearm, stating that it “[could
not] make a pretrial ruling on it because it’ll depend on how
the evidence comes in.” The State argued that the evidence
regarding controlled substances found in Devers’ home was
relevant to corroborate the testimony of a jailhouse informant.
Regarding the controlled substances, the court took the matter
under advisement.
(b) Motion to Dismiss
Devers filed a pro se motion to dismiss, alleging a violation
of his rights to a speedy trial under Neb. Rev. Stat. §§ 29-1207
and 29-1208 (Reissue 2016) and under the Sixth Amendment
to the U.S. Constitution. The court overruled his motion. The
court’s order discussed the respective claims.
Regarding the statutory claim, the court calculated that
Devers’ motion for discovery, motion to take Milton’s deposi-
tion, and requested continuance resulted in 108 days of exclud-
able time. This, the court explained, extended Devers’ trial
date several months beyond the date on which he had filed his
motion to dismiss. It noted that Devers’ motion for discovery
alone, which excluded only 4 days, was sufficient to defeat his
motion to dismiss.
As to the constitutional claim, the court applied the bal-
ancing test from State v. Johnson. 4 It noted that Devers’ trial
was scheduled to begin less than a year from the date of the
offense. Devers’ counsel, the court explained, “has done any-
thing any other criminal defense attorney would have done.”
It reasoned that “if Devers’ counsel was not allowed the time
to properly prepare for trial, Devers, in the event he was con-
victed, would [argue] later in a postconviction motion that he
did not receive the effective assistance of counsel.” The court
found that Devers had not shown unreasonable delay in bring-
ing him to trial, or that he was prejudiced.
4
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
2. Trial
(a) Reign Lounge Events
We now summarize the evidence presented at trial regarding
the events of January 5 and 6, 2018, relevant to the assign-
ments of error asserted on appeal.
(i) Milton
Prior to discussing the incident, Milton testified that she had
been diagnosed with bipolar depression and, on the night of the
incident, was on medication. We now summarize her testimony
regarding the events that night.
On the evening of January 5, 2018, Milton drove herself and
two friends to Reign Lounge. Around 10:15 p.m., they arrived.
They left their jackets in Milton’s vehicle, and she gave her car
keys to one of her friends.
At about 1 o’clock the following morning, Milton had an
altercation with another woman. A security guard “pick[ed]
[her] up and took [her] out” of the club. The guard refused to
allow Milton to retrieve her car keys. She was then outside for
15 to 20 minutes in below-zero temperatures without her jacket
or keys.
While Milton was outside, she heard a man calling her name.
The man got out of the passenger’s seat of a maroon sport util-
ity vehicle (SUV), walked toward her, asked if she remembered
him, and said he knew her child’s father. After Milton talked
to the man, he invited her to warm up in his vehicle. Milton
got into the vehicle and sat behind the passenger’s seat. She
described the vehicle as “a maroon truck” that was a smaller
SUV than her vehicle.
Once in the maroon SUV, the man sat in the passenger’s
seat, and there was another man in the driver’s seat. The man
in the passenger’s seat identified himself as “Ratchet.” She
described Ratchet as “heavyset, low cut, brown skin.” Milton
identified a picture of Goynes in evidence as depicting Ratchet.
She described the driver as “a dark skin dude with a black coat
on with braids, or dreads.” She identified the driver as Devers.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
After Goynes and Milton discussed why she had been
kicked out of the club, he showed her a black gun. According
to Milton, “[i]t was readily apparent that he was armed with
a firearm” and “[h]e had it out the whole time.” Around 1:55
a.m., Goynes received a call or text message; said, “‘Right
now, right now’”; and jumped out of the maroon SUV. After
Goynes jumped out, Devers drove away. At that point, Milton
asked to leave the vehicle, and Devers said, “‘You can’t go out
right now.’” Devers drove for a while and then parked by “a
whole bunch of trees.”
Devers and Milton remained parked for about 20 minutes.
While they were parked, Devers identified himself as “‘Little
Pockets.’” Milton asked to be returned to Reign Lounge,
and Devers stated, “‘We can’t go over there right now.’”
After another 10 minutes, Milton saw Goynes running to the
maroon SUV.
Once Goynes was in the vehicle, Devers asked, “‘What
did you get?’” Goynes responded, “‘He really didn’t have
nothing.’” Milton testified that “[Goynes] said that [LeFlore]
wouldn’t give up nothing so [Goynes] had to shoot him.”
Devers asked, “‘You didn’t get nothing?’” In response, Goynes
held up “these little chains,” and Devers asked, “‘Can I get
one?’” Devers took one of the chains and put it around his
neck. Milton stated that she did not know which chain Devers
took but that she knew one chain had a cross on it.
Devers then drove off, and Milton asked to be taken back
to Reign Lounge. Devers responded, “‘No. I can’t go over
there.’” Devers drove them to Lemon’s home and told Goynes
to “go in there and hide something, take his clothes off and
go take a bath, or something like that.” Devers further told
Goynes, “‘I’ll get rid of something for you,’” but Milton was
unsure what it was. Goynes got out of the vehicle and did not
come back.
Devers then drove Milton back to Reign Lounge. While he
dropped her off, she put his cell phone number in her own
cell phone under the name “Pockets.” Due to police presence,
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
Milton was unable to retrieve her vehicle. Milton called
Devers, and he picked up Milton and her friends. After Devers
dropped off Milton’s friends at home, he drove Milton to his
home to sell her marijuana and then drove her home.
Several days after the incident, Milton communicated with
a family member of LeFlore’s. LeFlore’s family recorded the
conversation. Five days after the events, a homicide detective
interviewed Milton. Milton signed a consent form allowing the
police to search her cell phone.
(ii) Marvin Stockdale
Marvin Stockdale, a jailhouse informant, testified about
conversations he had with Devers in the Douglas County
Correctional Center. Stockdale informed the jury that he was
interviewed by law enforcement as a jailhouse informant in
two cases, one of which pertained to Devers. At the time
of trial, Stockdale was facing several charges and potential
imprisonment of 73 years.
After becoming Stockdale’s cellmate, Devers discussed the
incident with Stockdale. At or near the time of the conversation
with Devers, Stockdale took notes. At trial, Stockdale’s notes
were read verbatim to the jury. Here, we briefly summarize
his testimony.
Devers told Stockdale that on the evening of the incident,
he started out at a gas station selling “ecstasy pills” to some
“girls.” The girls were heading to Reign Lounge, and Devers
told them he would be there later. Devers went to Reign
Lounge with Goynes. When Devers arrived at Reign Lounge,
he found the girls from the gas station. He explained that “the
Army dude” offered to buy the girls drinks and that the girls
then started talking to “the Army dude.”
Devers said that he felt it was rude the girls stopped pay-
ing attention to him and that he went looking for Goynes.
Devers found Goynes and told Goynes that “he had a lick for
him.” Stockdale explained that a “lick” means a target for rob-
bery. Goynes asked, “‘Where?’” Devers pointed to “the Army
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
dude,” who, Devers said, had a “big wad of cash.” Devers
told Goynes that he did not care about the money and that he
just wanted “the Army dude[’s]” jewelry. Devers said, “‘I just
didn’t think my little cousin stupid ass would kill him. . . . I
told him to shoot if he act up, but damn.’”
Devers then jumped forward in the story and said that he
picked up Goynes “on the corner.” Devers stated that he was in
the driver’s seat and that Milton was in the back seat. Devers
explained that Milton got into his vehicle because it was cold
outside. Stockdale testified that he did not know Milton and
had never had a conversation with her.
(iii) Michael Sullivan
Michael Sullivan, another jailhouse informant, testified
regarding conversations he had with Devers in the Douglas
County Correctional Center. Sullivan explained that he did not
prod for information; rather, Devers just kept talking. Sullivan
also took notes of these conversations.
After a month of their being in jail together, Devers told
Sullivan about his charges. Sullivan said, “‘They must think
you’re the shooter.’” Devers responded, “‘No. I was the driver.’”
A few weeks later, after Devers returned from a meeting
with his counsel, he and Sullivan discussed Devers’ case again.
Devers stated that he was going to trial and that the main wit-
ness was his “brother’s baby’s mom,” because she overheard
him talking about a “lick.” Sullivan testified that he understood
a “lick” to mean a robbery of a drug dealer.
During their last conversation, Devers told Sullivan, “‘I was
selling “X” at the club. I was walking around with baggies in
my hand. I think they got me on camera. I’m pretty sure they
did. They got me on camera, so they got me.’”
(b) Search of Devers’ Home
At trial, evidence was presented regarding controlled sub-
stances found during a search of Devers’ home. We summarize
that evidence.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
(i) Aaron Hanson
Aaron Hanson, a sergeant of the Omaha Police Department,
testified about the search. Hanson obtained a search warrant
for a North 40th Street residence in Omaha (Devers’ home).
The warrant authorized law enforcement to search for firearms
and narcotics.
On the evening of January 6, 2018, Hanson and other offi-
cers executed the search warrant. At that time, four individuals
were at the home, including Kenvaughn Glass. Law enforce-
ment did not find a firearm but found 9-mm and .22-caliber
ammunition.
Before the State could present evidence of narcotics found
during the search, Devers renewed his motion in limine. The
district court overruled the renewed motion, granted Devers a
continuing objection, and gave the following limiting instruc-
tion to the jury:
Members of the jury, this evidence of the seized con-
trolled substance, marijuana, located at [Devers’ home]
is received for the limited purpose of the potential or the
possibility of corroborating the testimony of . . . Milton
or a later witness . . . Stockdale. You must consider the
evidence only for that limited purpose and no other.
Hanson testified that during the search, law enforcement
found synthetic marijuana, methamphetamine, and drug pack-
aging materials.
(ii) Jailhouse Informants
Stockdale stated that Devers discussed the search of his
home. Devers stated that law enforcement found “some drugs.”
Stockdale did not remember what kind of drugs Devers said
were found.
Sullivan stated that Devers discussed the search. According
to Sullivan, Devers stated that law enforcement found “K-2.”
Sullivan explained that “K-2” is synthetic marijuana.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
(iii) Patricia Smith
Patricia Smith, the mother of Devers’ children, testified at
trial. She testified that in January 2018, she lived at the same
address as Devers’ home. At the time, Devers, who had his
own set of keys, was staying at the house because Smith’s
7-month-old child had been admitted to the hospital. Smith
stated that she did not know that narcotics, firearms, or ammu-
nition were in her home.
Smith additionally testified that Devers was a “family per-
son who spen[t] a lot of time with . . . his family” and that
Kenvaughn came over to her home often.
(c) Search at Benson Towers
At trial, the State also presented evidence regarding a fire-
arm linked to the murder.
(i) Chae Glass
Chae Glass, a juvenile detention specialist at the Douglas
County Youth Center, testified regarding a firearm that was
found at Benson Towers. Chae was an adopted cousin of
LeFlore’s and a maternal uncle to Kenvaughn and Shydale
Glass. Devers is a paternal uncle to Kenvaughn and Shydale.
On January 6, 2018, Shydale established contact with Chae.
Chae picked up Shydale and drove him to Chae’s sister’s
home. On their way, Shydale told Chae to stop and pick up
Kenvaughn.
While in his sister’s home, Chae saw Kenvaughn and Shydale
in the bathroom wiping down a firearm with a T-shirt. Chae
described the firearm as a chrome and black handgun. After
the bathroom observation, Chae did not see either Shydale or
Kenvaughn with the firearm. But he stated, “[T]here was a
lot of, you know, interchanging going on under the shirt, you
know what I’m saying, hiding it.”
Chae then drove Kenvaughn and Shydale to Benson Towers.
Once at Benson Towers, Chae dropped off Kenvaughn and
Shydale and drove a couple of blocks away to make a call
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STATE v. DEVERS
Cite as 306 Neb. 429
to the 911 emergency dispatch service. Chae instructed the
police to pull him over.
(ii) Hanson
Hanson testified about a search of an apartment at Benson
Towers that led to the seizure of a firearm linked to the murder.
On January 6, 2018, at the end of Hanson’s shift, he
received information that led him to Benson Towers. Hanson
became aware that Kenvaughn and Devers were related.
Hanson began looking for a familial connection to Kenvaughn
at Benson Towers. Based upon information from other officers,
Hanson found that Kenvaughn was related to Wendy Williams,
a Benson Towers resident.
The next morning, Hanson and other officers went to
Williams’ apartment in Benson Towers for a “knock and talk,”
and at the apartment, Williams’ roommate answered the door
and allowed law enforcement to enter. Shanequa Dismuke
was also present. During the “knock and talk,” Hanson found
unlawful items and another officer drafted a search war-
rant affidavit.
Law enforcement received a warrant and was allowed to
search for narcotics and firearms. During the search, law
enforcement personnel found and opened a safe. Hanson testi-
fied that they found two 9-mm firearms and multiple packages
of marijuana.
At trial, after Hanson disclosed the contents of the safe, a
sidebar was held and the court explained that the testimony
must be limited to the firearm that was found wrapped in a
T-shirt. Devers renewed his motion in limine and requested
a continuing objection. The court granted the continuing
objection.
Hanson clarified that one of the 9-mm firearms belonged to
Dismuke and that the other was found wrapped in a T-shirt.
He confirmed that the 9-mm ammunition seized from Devers’
home could be fired by the T-shirt-wrapped firearm found at
Benson Towers.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
3. Final Jury
Instructions
The final jury instructions contained a specific instruction
regarding the evidence of controlled substances found during
the search of Devers’ home: “The evidence of the seized con-
trolled substances located at [Devers’ home] was received for
the limited purpose of the potential or the possibility of cor-
roborating the testimony of . . . Milton, . . . Stockdale, and . . .
Sullivan. You must consider this evidence only for that limited
purpose, and no other.”
4. Verdict and
Sentences
The jury found Devers not guilty of possession of a deadly
weapon by a prohibited person. The jury found him guilty of
first degree felony murder and use of a deadly weapon to com-
mit a felony. The district court sentenced Devers to life impris-
onment for first degree murder and 5 to 5 years’ imprisonment
for use of a deadly weapon. The sentences imposed were to
run consecutively.
Devers filed a timely appeal, in which he is represented by
different counsel than at trial.
III. ASSIGNMENTS OF ERROR
Devers assigns, reordered and restated, that the district court
(1) abused its discretion when it terminated the deposition of
Milton and overruled his motion in limine to exclude Milton’s
testimony and (2) erred in admitting irrelevant and unfairly
prejudicial testimony regarding (a) the controlled substances
found during a search of his home and (b) the firearm found
at Benson Towers. He also assigns that (3) the evidence was
insufficient to convict him of first degree felony murder and
use of a deadly weapon, because a trier of fact could not find
(a) that Devers knew in advance that Goynes intended to rob
LeFlore and (b) that Devers knew in advance that Goynes
intended to use a firearm.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
In compliance with our decision in State v. Mrza, 5 Devers
assigned 13 claims of ineffective assistance of trial counsel.
Twelve claims asserted trial counsel performed deficiently by
failing to
•  “object to the trial court’s erroneous limiting instruction
regarding the drug testimony by Hanson”;
•  “submit evidence in support of [Devers’ pro se] motion [to
dismiss on constitutional speedy trial grounds] and . . . file
an interlocutory appeal of the trial court’s order denying
dismissal”;
•  “present testimony from Corrections Officer Hall, who would
have testified that Devers resisted having Stockdale as a
cellmate because Devers knew Stockdale would use the cell
assignment as an opportunity to fabricate incriminating state-
ments by Devers”;
•  “present testimony from Joequana Goynes, . . . Lemon,
and Teosha Valentine, who would have testified that Milton
admitted (1) that Devers did not knowingly aid in the rob-
bery, (2) that prosecutors coached her testimony, and (3)
that prosecutors threatened prosecution of Milton if she did
not comply”;
•  “present testimony from . . . Sullivan’s father, Michael
Sullivan, Sr., who would have testified that Sullivan admit-
ted to him that he lied to police about his conversations with
Devers, and that he received off-the-record promises of leni-
ency in exchange for testifying”;
•  “present testimony from Corey Finley, who would have tes-
tified that he observed Devers in the area of 25th and Fort
Streets at the time of the shooting”;
•  “present testimony from Emmanuel Jackson and Kaleena
Johnson, who both would have testified that . . . Stockdale
admitted that he lied to police about his conversations with
Devers, and that he received off-the-record promises of leni-
ency in exchange for testifying”;
5
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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STATE v. DEVERS
Cite as 306 Neb. 429
•  “investigate or present testimony from Kenvaughn and
Shydale . . . , who both would have testified that the handgun
seen in their possession by Chae . . . had no connection to
Devers or Goynes, and that they were coerced into remain-
ing silent”;
•  “obtain or present the recording of Milton made by LeFlore’s
family members on January 11, 2019”;
•  “consult or call as a witness an expert in pharmacology who
would have testified that, on both January 6, 2018 and at the
time of trial, Milton’s prescriptions affected her ability to
both accurately form and recall memories”;
•  “consult with, or call as a witness, an independent telecom-
munications expert because he or she would have testified
that the cell phone evidence did not support the State’s
theory as to Devers’ and Milton’s movements on January 5-6,
2019, but instead was either inconclusive or directly refuted
Special Agent Kevin Hoyland’s testimony and demonstrative
exhibit”; and
•  “investigate and bring to the attention of the trial court and/or
the jury the prosecutors’ use of malicious prosecution tactics
against . . . Smith to coerce her testimony against Devers.”
The last claim asserted that trial counsel “not only . . . pro-
vided unreasonable advice that Devers should waive his right
to testify, but . . . interfered with Devers’ freedom to decide
whether to testify by telling Devers he must abide by [coun-
sel’s] advice not to testify.”
IV. ANALYSIS
1. Deposition Sanctions
(a) Standard of Review
[1] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. 6
6
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
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(b) Discussion
Devers argues that the district court abused its discretion
when it terminated Milton’s deposition and denied Devers’
motion in limine to exclude her as a witness. He contends that
there are no rules governing depositions that allow a party to
bring the trial judge to terminate the deposition. He further
contends that because Milton refused to testify at the depo-
sition, the court abused its discretion in denying the motion
in limine.
[2,3] Devers’ first argument—concerning the lack of dis-
covery rules allowing a judge to terminate a deposition—was
not raised to the district court. Appellate courts do not gener-
ally consider arguments and theories raised for the first time
on appeal. 7 And, as noted by the State, when the district court
terminated the deposition, Devers failed to object. Failure to
make a timely objection waives the right to assert prejudicial
error on appeal. 8 Because Devers failed to object to the termi-
nation of the deposition and did not raise the termination argu-
ment during his motion in limine hearing, we will not address
this argument.
Regarding Devers’ second argument, the district court
entered an order in compliance with its statutory powers.
Pursuant to a criminal discovery statute, Devers filed a motion
to take Milton’s deposition. 9 During the deposition, Milton
refused to answer questions over concerns for her safety and
the district court terminated the deposition. Under another
criminal discovery statute, when a party fails to comply with
criminal discovery procedures, including the statute authorizing
depositions, “the court may” 10 either “[p]rohibit the party from
calling a witness not disclosed or introducing in evidence the
7
State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
8
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
9
See Neb. Rev. Stat. § 29-1917 (Reissue 2016).
10
Neb. Rev. Stat. § 29-1919 (Reissue 2016).
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material not disclosed” 11 or “[e]nter such other order as it
deems just under the circumstances.” 12 In the district court’s
order, it specifically stated that “Devers [was] free to file an
additional motion to take [Milton’s] deposition . . . .” Because
the court’s order was entered in November 2018 and trial
occurred in March 2019, significant time remained in which to
depose Milton again. Under these circumstances, we agree with
the district court that authorizing a second deposition was a
sufficient remedy. Accordingly, the district court did not abuse
its discretion in denying Devers’ motion in limine.
2. Relevancy and Unfair Prejudice
(a) Standard of Review
[4-6] 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. 13 A trial court’s determination of the relevancy and
admissibility of evidence must be upheld in the absence of
an abuse of discretion. 14 Balancing the probative value of
evidence against the danger of unfair prejudice is within the
discretion of the trial court. 15
(b) Discussion
Because both of Devers’ assignments asserting error in the
admission of evidence are based on relevancy and unfair preju-
dice, we recall general applicable principles.
[7,8] Evidence that is irrelevant is inadmissible. 16 “Relevant
evidence means evidence having any tendency to make the
11
§ 29-1919(3).
12
§ 29-1919(4).
13
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
14
State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
15
State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).
16
Neb. Rev. Stat. § 27-402 (Reissue 2016); State v. Brown, 302 Neb. 53, 921
N.W.2d 804 (2019).
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existence of any fact that is of consequence to the deter­
mination of the action more probable or less probable than it
would be without the evidence.” 17 Relevancy requires only that
the probative value be something more than nothing. 18
[9-11] Under Neb. Rev. Stat. § 27-403 (Reissue 2016),
relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. 19
Unfair prejudice means an undue tendency to suggest a deci-
sion based on an improper basis. 20 Unfair prejudice speaks
to the capacity of some concededly relevant evidence to lure
the fact finder into declaring guilt on a ground different from
proof specific to the offense charged, commonly on an emo-
tional basis. 21
(i) Controlled Substances
Devers makes two arguments concerning the admission of
controlled substances seized from the search of his home.
Neither is persuasive.
First, he argues that evidence of methamphetamine, syn-
thetic marijuana, and packaging materials had little to no
probative value. Second, he argues that the minimal probative
value of the drug evidence was substantially outweighed by the
danger that the jury believed him to be a “trafficker of danger-
ous narcotics.” 22 And, he asserts, the court’s attempt to cure the
problem by means of a contemporaneous limiting instruction
did not encompass all of the target evidence, and consequently,
he “suffered the full prejudicial effects of this wrongly admit-
ted evidence.” 23 We disagree.
17
Neb. Rev. Stat. § 27-401 (Reissue 2016).
18
State v. Brown, supra note 16.
19
Id.
20
Id.
21
Id.
22
Brief for appellant at 19.
23
Id. at 20.
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[12,13] Contrary to Devers’ first argument, the admission of
the testimony regarding controlled substances was relevant to
corroborate the testimony of Milton, Stockdale, and Sullivan.
We have recognized that evidence may be relevant because it
corroborates other testimony. 24 This follows from a broader
principle: The State is allowed to present a coherent picture of
the facts of the crimes charged, and it may generally choose its
evidence in so doing. 25 Hanson testified that during the search
of Devers’ home, law enforcement seized synthetic marijuana,
methamphetamine, and packaging materials. Milton testified
that on the night of the incident, she purchased marijuana from
Devers. Stockdale testified that during his conversations with
Devers, Devers stated that his house was searched and that
drugs were found. And Devers told Sullivan that law enforce-
ment seized “K-2” from Devers’ home. The evidence was
relevant to corroborate the testimony of an eyewitness and jail-
house informants. In other words, the evidence had substantial
probative value to corroborate both Milton’s testimony that she
was with Devers the night of the incident and Devers’ state-
ments to Stockdale and Sullivan about the incident.
[14,15] Nor was the evidence’s probative value substan-
tially outweighed by unfair prejudice. Most, if not all, evi-
dence offered by a party is calculated to be prejudicial to the
opposing party. 26 But the court’s limiting instruction restricted
the use of the evidence only to corroborate the testimony of
Milton, Stockdale, and Sullivan. Although the court’s initial
limiting instruction, given contemporaneously with Hanson’s
testimony, referred only to evidence of “marijuana,” the court’s
final jury instructions broadly encompassed the “evidence
of seized controlled substances located at [Devers’ home].”
In construing an individual jury instruction, the instruction
should not be judged in artificial isolation but must be viewed
24
See State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
25
Id.
26
State v. Thomas, supra note 15.
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in the context of the overall charge to the jury considered
as a whole. 27 Here, the situation resembled that in another
case where we said, “The district court’s limiting instruction
restricted the jury’s use of the evidence and minimized the
tendency to suggest a decision on an improper basis.” 28 Based
on the limiting instructions, taken as whole, we cannot say
that the district court abused its discretion in admitting the
evidence of controlled substances.
(ii) Firearm
Devers makes two arguments concerning the admission of
the firearm seized at Benson Towers. First, he argues that
the firearm evidence had minimal probative value and was
substantially outweighed by the danger of unfair prejudice,
because “the State introduced little, if any, evidence establish-
ing a direct connection between Devers and the handgun . . .
at the Benson Towers.” 29 Second, he argues that the prosecutor
elicited testimony from Hanson about “‘multiple packages of
marijuana’” found in the safe that served only to confuse the
issues and unfairly prejudice Devers. 30
To support the first argument, Devers relies upon State v.
Sellers. 31 There, the defendant argued that the district court
should have admitted the evidence of a handgun seized during
the search of the victim. After unsuccessful attempts to serve
the victim with a subpoena, the victim was arrested. At the
home where the arrest occurred, law enforcement conducted a
search and seized several items, including firearms. The district
court granted the State’s motion in limine to exclude admission
of firearm evidence. On appeal, we reasoned that the proba-
tive value of the firearms seized at the arrest was minimal.
27
State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
28
See State v. Perrigo, 244 Neb. 990, 1001, 510 N.W.2d 304, 311 (1994).
29
Brief for appellant at 28.
30
Id.
31
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
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There was no proof linking the victim to the handgun, and law
enforcement personnel testified that they could not place the
handgun as having been in the victim’s possession. We con-
cluded that the minimal probative value was outweighed by the
danger of prejudice.
Here, however, the State relied upon circumstantial evidence
to connect Devers to the firearm seized at Benson Towers.
Milton stated that after the incident, Devers drove Goynes to
Lemon’s house and that Devers told Goynes that Devers would
get rid of something for Goynes. It was known that Devers
spent a lot of time with family, including Kenvaughn. The next
day, Chae picked up Kenvaughn and Shydale and took them
to their mother’s home. Chae saw them wipe down a firearm
with a T-shirt. Chae then drove Kenvaughn and Shydale to
Benson Towers. Later that evening, Kenvaughn was at Devers’
home when law enforcement executed the search warrant. The
following morning, law enforcement received a search war-
rant for an apartment with a family connection to Kenvaughn
and Shydale. Law enforcement seized a handgun wrapped in a
T-shirt. Milton described the handgun as black, Chae described
the handgun as chrome and black, and Hanson stated that the
ammunition found at Devers’ home could be fired by the hand-
gun found at Benson Towers.
[16] Devers contends that the circumstantial nature of the
firearm evidence had minimal probative value and therefore
prejudiced him. Circumstantial evidence is not inherently
less probative than direct evidence. 32 Unlike the situation
in Sellers, the temporal proximity from the shooting to the
seizure of the firearm increased the probative value of the cir-
cumstantial evidence. 33 And, here, the evidence of the firearm
was relevant to the crimes charged. We cannot say that the
circumstantial evidence of the firearm was substantially out-
weighed by the danger of unfair prejudice. Accordingly, the
32
See State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020).
33
See State v. Sellers, supra note 31.
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district court did not abuse its discretion in admitting evidence
of the firearm.
[17] Regarding Devers’ second argument, assuming with-
out deciding that admission of the statement about “multiple
packages of marijuana” seized in the safe with the firearm
was error, we conclude the error was harmless. 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 surely would have
been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to
the error. 34 In the entirety of the trial, the challenged testimony
represented only a single isolated statement. Here, the guilty
verdicts were surely unattributable to this sole reference. Any
error in admitting that evidence was harmless.
3. Sufficiency of Evidence
(a) Standard of Review
[18] 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;
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. 35
(b) Discussion
(i) Intent to Commit Robbery
Devers argues that the jury could not have found him guilty
of first degree felony murder, because there was insufficient
34
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
35
State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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evidence to support that Devers “‘intended that the crime be
committed[,] or [Devers] knew that the other person intended
to commit the crime[,] or [Devers] expected the other person
to commit the crime.’” 36 He contends that Milton’s testimony
was not credible because a security guard did not identify
Devers as the driver of the vehicle and that video surveil-
lance footage inside Reign Lounge “did not confirm many
of Stockdale’s claims.” 37 This, however, merely invites us to
pass on credibility or reweigh the evidence. We decline to
do so.
The evidence adduced at trial showed Devers knew Goynes
intended to commit robbery. Because the testimony showed
Devers turned Goynes on to the “lick,” refused to return to
Reign Lounge while Goynes was gone, implicitly understood
why Goynes left the vehicle, and waited for Goynes to return,
there was sufficient evidence for the jury to find Devers
intended, knew, or expected Goynes to commit the robbery.
Viewed in the light most favorable to the prosecution, there
was sufficient evidence for any rational trier of fact to find
Devers guilty beyond a reasonable doubt.
(ii) Intent to Use
Firearm
Devers argues that the jury could not have found him
guilty of use of a firearm to commit a felony. He argues that
Milton’s “evidence that Devers was present in the vehicle
outside Reign Lounge such that he had an opportunity to
know that Goynes both intended to rob LeFlore and intended
to use a firearm to do so” 38 was insufficient to support his
conviction.
The record shows sufficient evidence that Devers knew
Goynes intended to use a firearm to commit the robbery.
36
Brief for apellant at 38.
37
Id. at 39.
38
Id.
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Stockdale testified that Devers said, “‘I just didn’t think
my little cousin stupid ass would kill him. . . . I told him to
shoot if he act up, but damn.’” Milton agreed that when she
was in the vehicle with Devers and Goynes, it was readily
apparent that Goynes was armed with a firearm, and she testi-
fied that he “had it out the whole time.” This evidence alone
is sufficient.
[19] Based on Nebraska’s aiding and abetting statute, 39 the
State argues an alternative theory that the reasoning in State v.
McClain, 40 which in turn relies upon State v. Mantich, 41 applies
here. In Mantich, we explained that “one who intentionally
aids and abets the commission of a crime may be responsible
not only for the intended crime, if it is in fact committed, but
also for other crimes which are committed as a natural and
probable consequence of the intended criminal act.” 42 There,
we determined that using a firearm was a natural and prob-
able consequence of kidnapping, robbing, and terrorizing the
victim. And as an aider or abettor of the criminal acts, the
defendant could properly be convicted of using a firearm to
commit a felony “even if the jury believed that [the defendant]
was unarmed.” 43
The same reasoning applies here. The record shows that
the State prosecuted Devers as an aider and abettor. Devers
intended to rob LeFlore, Goynes shot and robbed LeFlore,
Devers aided Goynes by driving the vehicle, and LeFlore died
of his wounds. Use of the firearm in the commission of the
murder was a natural and probable consequence of the intended
act of robbery. Considered in the light most favorable to the
prosecution, the evidence was sufficient for any rational trier
of fact to find Devers guilty.
39
See Neb. Rev. Stat. § 28-206 (Reissue 2016).
40
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
41
State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
42
Id. at 327, 543 N.W.2d at 193.
43
Id. at 328, 543 N.W.2d at 193.
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4. Ineffective Assistance of Counsel
(a) Standard of Review
[20] 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. 44
(b) Legal Framework
[21,22] 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. 45 Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits
of the ineffective performance claims. 46
[23,24] 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. 47 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. 48
44
State v. Lierman, supra note 13.
45
Id.
46
Id.
47
Id.
48
Id.
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(c) Discussion
(i) Limiting Instruction
Devers argues that trial counsel was ineffective for fail-
ing to object to the allegedly deficient limiting instruction
that misdescribed the evidence of controlled substances. He
contends that at trial, the district court limited the evidence to
“marijuana,” but that Hanson’s testimony included evidence of
synthetic marijuana, methamphetamine, and packing materials.
The claim is sufficiently alleged, and the record is sufficient to
review it.
Regarding the admission of evidence of controlled sub-
stances, the record shows that the district court gave two limit-
ing instructions. While the original instruction restricted the
jury to consider only the evidence of “marijuana” to corrobo-
rate witness testimony, the final jury instruction encompassed
evidence of all controlled substances. As we previously deter-
mined, the limiting instructions, taken as a whole, removed any
prejudice regarding the additional controlled substances. We
conclude that this argument is without merit.
(ii) Motion to Dismiss
Devers argues that trial counsel erred in failing to present
evidence that he asserted his constitutional right to a speedy
trial early and often in communications with his counsel.
Devers further argues that counsel was ineffective for failing
to file an interlocutory appeal from the denial of his motion to
dismiss. We agree with the State that this claim is sufficiently
alleged and that the record is sufficient to review it.
Devers’ first argument addresses only a purported failure
to present evidence on his constitutional speedy trial claim.
The State argues that counsel was not ineffective for fail-
ing to produce evidence to support Devers’ motion, because
Devers did not argue to the district court that he asserted
his constitutional right early and often in communications
with counsel. 49 Even if we assume that the State’s argument
49
See Johnston v. Mahally, 348 F. Supp. 3d 417 (E.D. Pa. 2018).
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is incorrect, Devers was not prejudiced. The district court
analyzed Devers’ constitutional speedy trial claim and found
no unreasonable delay or prejudice. We agree and find that
Devers’ trial counsel’s actions did not prejudice Devers; thus,
his claim lacks merit.
Devers’ second argument also fails. As the U.S. Supreme
Court has stated, “application of the principles articulated
in [Cohen v. Beneficial Loan Corp. 50] and [Abney v. United
States 51] to [constitutional] speedy trial claims compels the
conclusion that such claims are not appealable before trial.” 52
Because denial of a motion to dismiss based upon a consti-
tutional speedy trial claim is not a final, appealable order,
Devers’ argument lacks merit.
(iii) Corrections Officer Hall
Devers argues trial counsel was ineffective for failing to
present testimony from “Corrections Officer Hall,” who would
have testified that “upon learning that Stockdale would be
moved into [Devers’] cell, Devers became irate due to his
belief . . . Stockdale would use the opportunity to fabricate
incriminating statements by Devers in an effort to obtain
leniency,” 53 and that Corrections Officer Hall informed Devers
he would have to lock Devers down because Devers was so
upset about Stockdale’s being moved into his cell. The claim is
sufficiently alleged, and the record is sufficient to review part
of the claim.
Devers’ argument that Corrections Officer Hall would testify
that Devers believed that Stockdale would fabricate incrimi-
nating evidence is without merit. First, Corrections Officer
50
Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed.
1528 (1949).
51
Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651
(1977).
52
United States v. MacDonald, 435 U.S. 850, 861, 98 S. Ct. 1547, 56 L. Ed.
2d 18 (1978).
53
Brief for appellant at 46.
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Hall would not be able to testify to Devers’ personal beliefs,
pursuant to Neb. Rev. Stat. § 27-603 (Reissue 2016). And any
statements that Devers made to Corrections Officer Hall would
be inadmissible hearsay, pursuant to Neb. Rev. Stat. § 27-801
(Reissue 2016). Accordingly, the claim is without merit.
The record is insufficient to address the claims concern-
ing observations that Corrections Officer Hall made when
Devers received the news that Stockdale would be his cellmate
and concerning any statements Corrections Officer Hall made
to Devers.
(iv) Remaining Claims
The State concedes that the remaining claims of ineffective
assistance of counsel, not addressed above, are sufficiently
alleged, but the record is insufficient to review them. We need
not address them further.
V. CONCLUSION
We conclude that the district court did not err in overruling
Devers’ motions in limine and did not err in admitting evidence
of controlled substances from Devers’ home and evidence of
the firearm seized at Benson Towers. We also conclude that the
admission of a sole reference to “multiple packages of mari-
juana” was, at most, harmless error. Viewing the evidence in
the light most favorable to the State, we further conclude that
the evidence at trial supported Devers’ convictions. Finally,
we conclude that the assignments of ineffective assistance of
counsel that we reach on direct appeal lack merit. Accordingly,
we affirm Devers’ convictions and sentences.
Affirmed.
Cassel, J., concurring.
In numerous decisions, this court has determined that an
allegation of ineffective assistance of trial counsel, asserted
by new appellate counsel, was not stated with sufficient speci-
ficity where it failed to allege the name of the witness who
would have testified and the specific content of the witness’
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proposed testimony. 1 This naturally followed from this court’s
holding that an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient perform­
ance by trial counsel when raising an ineffective assistance
claim on direct appeal. 2 As this court stated, “[g]eneral allega-
tions . . . are insufficient . . . .” 3
But this court has not insisted upon a specification of the
name of a purported expert witness, where the allegation of
ineffective assistance of trial counsel asserts a failure to adduce
expert testimony for a particular opinion or conclusion. 4 And
here, perhaps because of our case law, the State conceded that
allegations of ineffective assistance for failing to “consult or
call as a witness an expert in pharmacology who would have
testified that, on [the date of the events,] Milton’s prescrip-
tions affected her ability to both accurately form and recall
memories” 5 and failing to “consult with, or call as a witness,
an independent telecommunications expert because he or she
would have testified that the cell phone evidence did not sup-
port the State’s theory as to Devers’ and Milton’s movements
on [the dates of the events]” 6 were “sufficiently alleged” 7 or
“sufficiently stated.” 8
1
See, e.g., State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State v.
Marks, 286 Neb. 166, 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb.
558, 787 N.W.2d 700 (2010); State v. Davlin, 277 Neb. 972, 766 N.W.2d
370 (2009).
2
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
3
Id. at 770, 848 N.W.2d at 578.
4
See, State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017) (failure to
retain unnamed expert witness to refute State’s DNA evidence not deemed
insufficiently specific); State v. Filholm, supra note 2 (failure to consult
and present testimony of unnamed DNA expert witness not deemed
insufficiently specific).
5
Brief for appellant at 51.
6
Id. at 52.
7
Brief for appellee at 32.
8
Id.
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One might wonder whether an assignment of error on direct
appeal regarding an unnamed expert is sufficiently specific.
In posing this question, I emphasize that I am not criticizing
appellate counsel here—either for the degree of specificity of
Devers’ assignment or for the State’s concession.
Several principles are settled: A criminal defendant has the
right to the effective assistance of appellate counsel in his
or her first appeal as of right. 9 There is no federal or state
constitutional right to an attorney in state postconviction pro-
ceedings. 10 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. 11
These principles collectively teach that where appellate
counsel is different from trial counsel, the state and federal
Constitutions provide a defendant only one opportunity for
the assistance of counsel in framing allegations of ineffective
assistance of trial counsel.
Might one then expect that appellate counsel should craft
such allegations at least in accordance with the standard used
to measure deficient performance? To show deficient perform­
ance, a defendant must show that counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. 12 Should it then follow that such ordinary train-
ing and skill includes evaluating the need for expert testimony
and determining whether such testimony can be secured? And
9
See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d
552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.
Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.
2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d
341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed.
2d 811 (1963).
10
State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
11
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
12
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. DEVERS
Cite as 306 Neb. 429
if there is an expert witness who would testify to a specific
proposition, might it demand that appellate counsel locate and
name the expert?
This could mean that more time may be required to prepare
and submit a brief on direct appeal where appellate counsel is
different from trial counsel. But is this not merely a necessary
consequence of an important principle: The need for final-
ity in the criminal process requires that a defendant bring all
claims for relief at the first opportunity. 13
In an appropriate case, this court should consider whether
allegations of trial counsel’s deficient performance regard­
ing a potential expert witness’ testimony are sufficient with-
out naming the expert. The matter was not raised in the case
decided today. If it is raised in the future, it deserves this
court’s attention.
13
State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).