State v. Ash

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/20/2016 11:06 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. ASH
Cite as 293 Neb. 583
State of Nebraska, appellee, v.
Vencil Leo Ash III, appellant.
___ N.W.2d ___
Filed May 20, 2016. No. S-15-327.
1. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
ciency 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.
2. 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.
3. Motions for New Trial: Appeal and Error. A trial court’s order deny-
ing a motion for new trial is reviewed for an abuse of discretion.
4. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when allegations of deficient performance are made with enough
particularity for (1) an appellate court to make a determination of
whether the claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate court.
5. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel raised on direct appeal may be deter-
mined on direct appeal is a question of law.
6. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only questions of law: Are the
undisputed facts contained within the record sufficient to conclusively
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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?
7. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of a 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.
8. Motions for Mistrial. Events that may require the granting of a mis-
trial include egregiously prejudicial statements of counsel, the improper
admission of prejudicial evidence, and the introduction to the jury of
incompetent matters.
9. Motions for Mistrial: Appeal and Error. Whether to grant a motion
for mistrial is within the trial court’s discretion, and an appellate court
will not disturb its ruling unless the court abused its discretion.
10. 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.
11. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
12. Verdicts: Juries: Appeal and Error. In a harmless error review, an
appellate court looks at the evidence upon which the jury rested its ver-
dict; 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 guilty verdict rendered in the trial court was surely unattributable to
the error.
13. Motions for Mistrial: Motions to Strike: Appeal and Error. Generally,
error cannot be predicated on the failure to grant a mistrial if an objec-
tion or motion to strike the improper material is sustained and the jury
is admonished to disregard such material.
14. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
15. Effectiveness of Counsel: Proof: Presumptions: Appeal and Error.
The two prongs of the ineffective assistance of counsel test under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), may be addressed in either order, and the entire ineffective-
ness analysis should be viewed with a strong presumption that counsel’s
actions were reasonable.
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16. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.
17. Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a state-
ment, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted.
18. Effectiveness of Counsel: Proof: Appeal and Error. When making
an ineffective assistance of counsel claim on direct appeal, allegations
of prejudice are not required. However, a defendant must make spe-
cific allegations of the conduct that he or she claims constitutes defi-
cient performance.
19. Effectiveness of Counsel. A general allegation that counsel failed to
object, without any kind of assertion as to what grounds supported
any objection, is insufficient to preserve a claim that trial counsel per-
formed deficiently.
Appeal from the District Court for Kimball County: Derek
C. Weimer, Judge. Affirmed.
Leonard G. Tabor for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Stacy, J.
I. INTRODUCTION
This is the second time Vencil Leo Ash III has been before
us challenging his conviction for first degree murder. In 2012,
Ash was convicted of the first degree murder of Ryan Guitron
and was sentenced to life in prison. On direct appeal, we
reversed, and remanded for a new trial. We found the trial court
erred in denying Ash’s request for a continuance after the State
disclosed, on the brink of trial, that a codefendant would be
testifying pursuant to a plea agreement.1
1
State v. Ash, 286 Neb. 681, 838 N.W.2d 273 (2013).
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Ash was retried in 2015, and again was found guilty of first
degree murder and sentenced to life in prison. He timely filed
this direct appeal and was appointed different counsel to rep-
resent him on appeal. We affirm his conviction and sentence.
II. BACKGROUND
On November 4, 2003, Guitron was reported missing by his
girlfriend. Guitron’s remains were discovered nearly 7 years
later, on April 8, 2010, under a woodpile on an abandoned
farm in rural Kimball County, Nebraska. The cause of death
was determined to be two gunshot wounds, one through his
right eye and the other through the back of his neck. The bullet
recovered from Guitron’s skull was fired from a .380-caliber
pistol purchased by Ash’s sister. Guitron’s death was found to
have occurred on October 15, 2003.
In August 2003, Ash and his 15-year old girlfriend, Kelly
Meehan (whom Ash later married), began living with Guitron
in Fort Collins, Colorado. Guitron, Ash, and Meehan were
methamphetamine users. After living together for several
weeks, Ash and Meehan moved out of Guitron’s trailer home
and began living in a tent near Grover, Colorado. While liv-
ing in the tent, Ash retrieved the .380-caliber pistol from his
sister because Meehan wanted some form of protection. Ash
was with his sister when she purchased the pistol on August 1,
2003, in Walsenburg, Colorado.
1. Meehan’s Version of Events
Meehan testified that Ash threatened to kill Guitron after
finding Meehan’s bra and underwear in Guitron’s backpack,
along with a pornographic magazine. On the day of the mur-
der, Ash asked Guitron to travel with Ash and Meehan to get
methamphetamine. Ash drove them in Guitron’s car to an
abandoned farm. Ash, Guitron, and Meehan smoked meth-
amphetamine during the drive, and again upon arriving at the
abandoned farm.
According to Meehan, all three got out of Guitron’s car and
walked around the farm. They discovered parts of a baby bed,
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and Ash instructed Meehan to collect the parts and take them
back to the car. On her way back to the car, Meehan heard a
gunshot. She looked back and saw Ash standing over Guitron’s
body, holding the .380-caliber pistol. Meehan testified this was
the first time she had seen the pistol that day, because Ash
normally tucked the pistol in his pants. Meehan stated she did
not hear or see a struggle or see any other weapon during the
incident. Ash then walked to the car, got a pair of black gloves,
and told Meehan he was going to bury Guitron under a wood-
pile near the farm. According to Meehan, after Ash covered
up the body, they left to get gas and then drove Guitron’s car
back to Fort Collins. During the drive to Fort Collins, Ash told
Meehan that Guitron had come after him with a knife, so Ash
shot him.
2. Ash’s Version of Events
Ash denied finding Meehan’s bra and underwear in Guitron’s
backpack and claimed he and Guitron were good friends. Ash
claimed that on the day of the murder, he, Guitron, and Meehan
went in Guitron’s car to get some iodine from Guitron’s source
so that Ash could “‘cook’” more methamphetamine.2 The
three of them smoked methamphetamine during the drive. Ash
missed a turn, and they ended up at an abandoned farm where
some old cars caught his eye. Ash claimed he left his sister’s
.380-caliber pistol in a cooler in the back seat next to Meehan.
According to Ash, they found a baby bed while walking the
farm property. Ash went back to the car to retrieve tools so that
Meehan could dismantle the baby bed, and at the same time,
Guitron returned to the car and got a .22-caliber rifle. While
Meehan dismantled the baby bed, Ash and Guitron continued
to search the property.
During the search, Guitron wanted to smoke more meth-
amphetamine, but discovered none was left. According to
Ash, Guitron said that “‘he was going to kill that . . . bitch,’”
2
Id. at 684, 838 N.W.2d at 276.
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referring to Meehan, and “‘took off running’” with the rifle
in hand.3 Ash claimed he went after Guitron and saw Guitron
fire a shot from the .22-caliber rifle at Meehan. Ash then
knocked the rifle out of Guitron’s hand, which caused another
round to go off. The two men struggled, and then Ash saw
Meehan and heard a shot. The men fell to the ground, and Ash
heard another shot. Ash claimed he then saw Guitron lying
on the ground and saw Meehan in the car, banging her head
against the dashboard. Ash claimed he and Meehan then left
in Guitron’s car to get gas. They returned, however, to pick
up the rifle and retrieve from Guitron’s person the address for
Guitron’s iodine source.
After the murder, Ash traded Guitron’s car for a Cadillac
Escalade. Ash and Meehan then drove the Escalade to Guitron’s
home in Fort Collins and loaded some of Guitron’s property
into the Escalade.
3. Investigation
On October 18, 2003, 3 days after Guitron’s death, Ash
was arrested on a warrant for parole violations. The Escalade
remained with Meehan after Ash’s arrest. The following day,
Meehan was arrested on a juvenile warrant, and the .380-­caliber
pistol was discovered under Meehan’s bed at Ash’s sister’s
house, where Meehan had been living. After Meehan’s arrest,
the Escalade was towed and several of Guitron’s possessions
were found inside, including his credit card and various per-
sonal items. Pieces of the baby bed gathered on the day of the
murder were also found in the Escalade. Later, on November
24, law enforcement retrieved the .380-caliber pistol from
Ash’s sister. It was not disputed that this was the weapon used
to shoot Guitron.
After Guitron’s disappearance, Ash was questioned by law
enforcement on several occasions. On November 4, 2003,
Ash indicated he had last seen Guitron on October 17. Ash
3
Id. at 684, 838 N.W.2d at 277.
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claimed Guitron was supposed to pick him up to work at an
oil rig the next day, but never showed up. On March 18, 2004,
Ash was interviewed by the lead investigator into Guitron’s
disappearance. At that time, Ash claimed he had seen Guitron
alive on October 18, 2003, at Guitron’s home. Ash denied
killing Guitron, but at the end of the interview, unsolicited,
he asked whether they had found Guitron’s body. Ash then
stated that if Guitron was dead, law enforcement would have
found his body because it had been quite some time since
Guitron’s disappearance.
On April 2, 2010, Meehan was interviewed by law enforce-
ment on a different matter. During the interview, she vol-
unteered that Ash had killed Guitron. Meehan was then
escorted by the lead investigator to try to locate the aban-
doned farm, but she failed to do so. A few days later, on
April 7, the lead investigator again interviewed Ash. During
this interview, Ash initially denied shooting Guitron, but then
admitted shooting Guitron twice to protect Meehan because
Guitron was shooting at her. Ash then directed law enforce-
ment to the abandoned farm, where Guitron’s remains were
later discovered.
Officers also located two .22-caliber rifle casings at the
abandoned farm. One casing was found on top of the dirt, and
the other on top of some cement; neither casing was rusted.
Based on the locations of the two casings, law enforcement
determined the casings could not have been ejected to their
respective locations from where Guitron had been shot, as
shown by physical evidence that still remained at the scene, or
from where his remains were located.
Ash was charged with first degree murder in connection
with Guitron’s death. In a separate information, Meehan was
charged with aiding and abetting the first degree murder
of Guitron.4 Meehan eventually reached a plea agreement
with the State, and she testified as a central witness against
4
State v. Ash, supra note 1.
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Ash at both the first and the second jury trial. After the
second jury trial, Ash was found guilty of first degree mur-
der and sentenced to life in prison. He timely filed this
direct appeal.
III. ASSIGNMENTS OF ERROR
Ash presents four assignments of error on appeal: (1) There
was insufficient evidence to support the jury verdict, (2) the
trial court erred in various evidentiary rulings made during
trial, (3) the trial court erred in overruling his motion for new
trial, and (4) his trial counsel was ineffective.
IV. STANDARD OF REVIEW
[1] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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 favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.5
[2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility.6
[3] A trial court’s order denying a motion for new trial is
reviewed for an abuse of discretion.7
5
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015); State v. Esch,
290 Neb. 88, 858 N.W.2d 219 (2015).
6
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015); State v. Stricklin,
290 Neb. 542, 861 N.W.2d 367 (2015).
7
State v. Stricklin, supra note 6; State v. Draper, 289 Neb. 777, 857 N.W.2d
334 (2015).
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[4] An ineffective assistance of counsel claim is raised on
direct appeal when allegations of deficient performance are
made with enough particularity for (1) an appellate court to
make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing
a petition for postconviction relief to be able to recognize
whether the claim was brought before the appellate court.8
[5,6] Whether a claim of ineffective assistance of trial
counsel raised on direct appeal may be determined on direct
appeal is a question of law.9 In reviewing claims of ineffec-
tive assist­ance of counsel on direct appeal, an appellate court
decides only questions of law: Are the undisputed facts con-
tained within the record sufficient to conclusively determine
whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by coun-
sel’s alleged deficient performance?10
V. ANALYSIS
1. Sufficiency of Evidence
Ash argues the evidence was insufficient to convict him
of first degree murder. His brief highlights several incon-
sistencies in the evidence—particularly in the testimony of
Meehan. Ash suggests that because of these inconsisten-
cies, the evidence presented lacked sufficient probative value.
We disagree.
The evidence submitted at the second trial, including
Meehan’s testimony, was substantially similar to the evidence
submitted at the first trial. In Ash’s first direct appeal, we
specifically analyzed whether the evidence presented was
sufficient to convict Ash of first degree murder, and found
8
See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State v.
Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
9
See State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
10
Id.
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it was.11 Ash now argues that Meehan’s testimony was not
credible, but it is not this court’s function to assess the cred-
ibility of witnesses when determining the sufficiency of the
evidence.12 Viewed in the light most favorable to the prosecu-
tion, the evidence presented at the second trial was sufficient
for a rational jury to find beyond a reasonable doubt that Ash
was guilty of first degree murder. This assignment of error is
without merit.
2. Errors in Trial Court Rulings
Ash assigns broadly that there were “[e]rrors in the ruling
of the trial court during the trial.”13 In his brief, Ash identifies
six rulings relating to this assignment of error. We address each
in turn.
(a) State’s Opening Statements
and Motion for Mistrial
During opening statements, the prosecutor gave a detailed
and lengthy summary of the procedural and substantive his-
tory of the case. As part of that summary, the prosecutor said
detectives had a “big break” in April 2010 when Meehan
was interviewed on an unrelated incident. The prosecutor
explained that “during that interview,” Meehan told investiga-
tors she had information about Guitron’s disappearance. The
prosecutor then went on to describe Meehan’s general version
of events and, in doing so, referred sometimes to Meehan’s
anticipated trial testimony using typical phrases like “she will
tell you” and “she will testify” and other times referred instead
to what Meehan “said.” Ash did not object to the prosecu-
tor’s remarks during the State’s opening statement. Instead,
after both parties’ opening statements were finished and the
jurors were excused for the evening, Ash made a record of his
11
State v. Ash, supra note 1.
12
State v. Dominguez, supra note 5.
13
Brief for appellant at 18.
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objection that the prosecutor’s opening statement referenced
inadmissible hearsay, and moved for mistrial. In opposing the
motion, the State conceded the prosecutor’s remarks had been
imprecise, but argued the point was to “get across the fact that
this is [Meehan’s] story and this is the story [the jury would]
hear . . . when she comes up [to] testify.” The court overruled
the motion for mistrial.
[7-9] Ash contends the overruling of his motion for mistrial
was error. A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is
of such a nature that its damaging effect cannot be removed
by proper admonition or instruction to the jury and thus pre-
vents a fair trial.14 Events that may require the granting of a
mistrial include egregiously prejudicial statements of counsel,
the improper admission of prejudicial evidence, and the intro-
duction to the jury of incompetent matters.15 Whether to grant
a motion for mistrial is within the trial court’s discretion, and
an appellate court will not disturb its ruling unless the court
abused its discretion.16
Assuming without deciding that Ash’s objection adequately
preserved the issue for appellate review, we conclude the
court did not abuse its discretion in overruling the motion
for mistrial. Our review of the record demonstrates the pros-
ecutor’s description of Meehan’s testimony was ambiguous in
terms of tense, and the jury could easily have understood the
prosecutor’s remarks as foretelling Meehan’s trial testimony,
rather than referencing what she actually said to investigators
in 2010. The prosecutor’s occasional reference to “she said”
rather than “she will testify” in the opening statement is not the
type of egregious or prejudicial statement that requires a mis-
trial, particularly when the jury was specifically admonished
14
State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
15
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
16
Id.
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that counsel’s statements were not evidence. There is no merit
to this assignment of error.
(b) Guitron’s Oakland Raiders
Jacket and Television
At trial, the State presented evidence that Ash had pawned
two items belonging to Guitron: an Oakland Raiders jacket and
a television. The jacket was pawned 2 days before the murder
and the television 2 days after. Ash objected to this evidence
based on Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), arguing
it was inadmissible character evidence. The court overruled his
objections and admitted the evidence.
[10] Ash asserts in his brief that this evidence was errone-
ously admitted, but he presents no argument as to how or why
the court erred, and we decline to speculate. 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.17 This requirement is not designed to impede
appellate review, but to facilitate it by preventing parties
from shifting to appellate courts the critical tasks of search-
ing the record for relevant facts, identifying possible error,
and articulating a legal rationale that supports the assigned
error. Because Ash presents no argument regarding the error
he assigns to admission of this evidence, the issue is not
properly presented for appellate review and we do not address
it further.
(c) Meehan’s Testimony
In his brief, Ash asserts that Meehan testified she regret-
ted telling investigators about Ash’s role in Guitron’s murder,
because she married Ash in 2010. Ash also notes there was
evidence he and Meehan had several conversations about her
anticipated testimony. Other than generally referencing this
evidence, Ash’s brief cites no evidentiary ruling he claims was
17
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015); State v. Filholm,
supra note 8.
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erroneous and presents no argument that the admission of this
evidence resulted in any type of error or prejudice. We are left
to speculate as to both the source and the nature of any error,
and we decline to do so.
An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to
be considered by an appellate court.18 Because this error was
assigned but not argued, we do not address it further.
(d) Guitron’s Background
During trial, an investigator was asked by the State whether
Guitron was “wanted” for any criminal activity at the time of
his disappearance. Ash objected to the question on relevance,
but the objection was overruled. The investigator responded
that Guitron did not have any outstanding warrants.
[11,12] On appeal, Ash contends his objection should have
been sustained because whether Guitron had warrants at the
time of his disappearance was not relevant evidence. Evidence
is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be with-
out the evidence.”19 Assuming that overruling the objection
was error, we nevertheless conclude it was harmless. In a
harmless error review, an appellate court looks at the evi-
dence upon which the jury rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
guilty verdict rendered in the trial was surely unattributable to
the error.20 Here, the guilty verdict was surely unattributable
to any error in admitting the evidence regarding Guitron’s
lack of warrants.
18
Id.
19
Neb. Rev. Stat. § 27-401 (Reissue 2008).
20
State v. Britt, ante p. 381, ___ N.W.2d ___ (2016); State v. Hinrichsen,
292 Neb. 611, 877 N.W.2d 211 (2016).
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(e) Premeditation Instruction
At the jury instruction conference, Ash asked that the jury
be instructed using only the statutory definition of premedita-
tion set forth in Neb. Rev. Stat. § 28-302(3) (Reissue 2008),
which provides: “Premeditation shall mean a design formed to
do something before it is done.” In jury instruction No. 5, the
district court instead gave a premeditation definition consistent
with NJI2d Crim. 4.0: “Premeditated/Premeditation means to
form the intent to do something before it is done. The time
needed for premeditation may be so short as to be instanta-
neous provided that the intent to act is formed before the act
and not simultaneously with the act.”
Ash’s brief contends this was error, but does not argue or
explain why. Because the alleged error is not both assigned and
argued, it is not preserved for our review.21
(f) Hearsay During Investigator’s
Testimony
During the State’s examination of an investigator, the fol-
lowing exchange took place:
Q. Okay, do you recall what you told Investigator Maul
at that time?
A. Something to the effect that —
[Defense counsel]: I’m going to object [on] hearsay.
THE COURT: That’s overruled. Go ahead.
....
A. It was something to the effect that we had devel-
oped some information about a possible missing person
that they were working and . . . Meehan had just told me
that . . . Ash had killed . . . Guitron.
[Defense counsel]: Object, move to strike.
The court then sustained defense counsel’s objection, struck
the investigator’s response, and admonished the jury to disre-
gard the investigator’s statement about what Meehan had told
21
See, State v. Cook, supra note 17; State v. Filholm, supra note 8.
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him. Ash then moved for a mistrial, and the court overruled
the motion. Ash now argues the court abused its discretion in
overruling the motion for mistrial.
[13] Generally, error cannot be predicated on the failure
to grant a mistrial if an objection or motion to strike the
improper material is sustained and the jury is admonished to
disregard such material.22 Moreover, although the investiga-
tor’s testimony was hearsay, its admission here was harmless.
It was not important at trial that one investigator told another
investigator what Meehan had reported, particularly since
Meehan herself testified at trial that Ash killed Guitron. Under
the circumstances, the court did not abuse its discretion in
overruling the motion for mistrial, and this assignment of error
has no merit.
3. Denial of Motion
for New Trial
Ash argues the district court erred in overruling his motion
for new trial, because the evidence was insufficient to show
the murder occurred in Nebraska. But there was evidence
presented at trial via Meehan, and Ash’s own testimony from
the first trial, that the murder occurred on a farm located
in Kimball County. That evidence was sufficient to support
the venue of the murder in Kimball County. There was no
abuse of discretion in denying Ash’s motion for new trial on
this basis.
We note that in his brief, Ash also makes reference to tes-
timony he gave at the hearing on his motion for new trial—
testimony to the effect that his earlier statements and testi-
mony regarding the location of the murder were involuntary.
However, because Ash presents no argument with respect to
these statements, and because no error was assigned regarding
these statements, we do not address this issue on appeal.23
22
State v. Davis, 290 Neb. 826, 862 N.W.2d 731 (2015).
23
See, State v. Cook, supra note 17; State v. Filholm, supra note 8.
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4. Ineffective Assistance
of Trial Counsel
[14,15] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,24 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.25
The two prongs of this test may be addressed in either order,
and the entire ineffectiveness analysis should be viewed with
a strong presumption that counsel’s actions were reasonable.26
[16] Ash is represented on direct appeal by different coun-
sel than the counsel who represented him at trial. When a
defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal
any issue of trial counsel’s ineffective performance which
is known to the defendant or is apparent from the record.
Otherwise, the issue will be procedurally barred.27 An inef-
fective assistance of counsel claim is raised on direct appeal
when the claim alleges deficient performance with enough
particularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and
(2) a district court later reviewing a petition for postconviction
relief to recognize whether the claim was brought before the
appellate court.28
The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can be
resolved on direct appeal.29 The determining factor is whether
24
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
25
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015); State v. Rocha,
286 Neb. 256, 836 N.W.2d 774 (2013).
26
State v. Cullen, supra note 9.
27
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
28
See, State v. Abdullah, supra note 8; State v. Filholm, supra note 8.
29
State v. Cullen, supra note 9.
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the record is sufficient to adequately review the question.30 An
ineffective assistance of counsel claim will not be resolved on
direct appeal if it requires an evidentiary hearing.31
(a) Stipulations
The parties stipulated that on December 13, 2003, law
enforcement conducted a traffic stop of a car owned by Guitron.
The driver told officers she received the car from her brother.
The brother had received the car from Ash after trading the
Escalade. The parties also stipulated that the .380-caliber pis-
tol identified as the murder weapon was submitted for DNA
testing, but that no usable DNA profile was discovered. Ash
argues his trial counsel performed deficiently by entering into
these stipulations, because it “made it easier for the [S]tate to
try the case.”32
Defense counsel does not perform in a deficient manner sim-
ply by failing to make the State’s job more difficult. And Ash
offers no other argument as to why his counsel’s performance
regarding these stipulations was deficient. Most notably, there
is no argument that the State would have been unable to offer
the evidence in the absence of the stipulations. This assignment
of error is without merit.
(b) Dr. Schilke’s Testimony
Dr. Peter Schilke, a pathologist, performed an autopsy on
Guitron’s remains. He testified on direct that he sent the jaw-
bone and teeth to a forensic dentist for a positive identifica-
tion of the body. Schilke then testified that he was aware the
forensic dentist was able to positively identify the remains as
those of Guitron. Ash’s counsel did not object to this testimony
from Schilke. On appeal, Ash contends this was deficient per-
formance because the testimony was hearsay.
30
Id.
31
Id.
32
Brief for appellant at 40.
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[17] Hearsay is a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.33 We need not
analyze whether Schilke’s testimony was hearsay, because
even if it was, the record affirmatively shows Ash was not
prejudiced by his attorney’s failure to object. There was no
dispute at trial that the skeletal remains were Guitron’s, and at
least one other expert testified the remains were identified as
belonging to Guitron. The record here affirmatively shows the
admission of Schilke’s testimony did not amount to prejudicial
error sufficient to support a claim for ineffective assistance
of counsel.
(c) Ash’s Recorded Interview
During trial, portions of an April 7, 2010, recorded inter-
view between Ash and law enforcement were played for the
jury. Trial counsel did not object. On appeal, Ash contends
the failure to object was deficient performance. He does not,
however, explain why or on what grounds an objection should
have been made.
[18,19] When making an ineffective assistance of coun-
sel claim on direct appeal, allegations of prejudice are not
required.34 However, a defendant must make specific alle-
gations of the conduct that he or she claims constitutes
deficient performance.35 Appellate counsel must present the
claim with enough particularity for (1) an appellate court to
make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing
a petition for postconviction relief to be able to recognize
whether the claim was brought before the appellate court.36 A
general allegation that counsel failed to object, without any
33
State v. Stricklin, supra note 6.
34
State v. Casares, supra note 27.
35
State v. Filholm, supra note 8.
36
See, State v. Abdullah, supra note 8; State v. Filholm, supra note 8.
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kind of assertion as to what grounds supported any objec-
tion, is insufficient to preserve a claim that trial counsel per-
formed deficiently.37
Because he has not indicated any grounds which support an
objection to this evidence, Ash has not raised this claim with
sufficient particularity, and we therefore conclude it is not
properly raised in this direct appeal.38
(d) DNA Analysis
Ash argues in his brief that his trial counsel possessed a
report showing female DNA was on the barrel of the murder
weapon, and he claims counsel performed deficiently by fail-
ing to offer the DNA report at trial. We need not determine
whether counsel was deficient in failing to offer the report,
because even if he was, the record affirmatively shows Ash
was not prejudiced by the failure to offer the report. Evidence
at trial demonstrated that two females—Meehan and Ash’s sis-
ter—came in contact with the gun after the murder but before
the gun was recovered by police. Under the circumstances,
the presence of female DNA evidence on the barrel of the gun
was not exculpatory to Ash. This assignment of error is with-
out merit.
(e) Aquilla Rios’ Statement
Ash argues his trial counsel had a statement from Aquilla
Rios wherein Rios stated that Meehan told her she was in the
car when the murder happened. Ash argues his trial counsel
performed deficiently by failing to get the statement from
Rios into evidence. Ash suggests Rios’ statement would have
affected Meehan’s credibility, because Meehan testified at trial
that she was walking to the car when she heard the gunshot.
We conclude the record on direct appeal is insufficient to
address this claim.
37
See State v. Filholm, supra note 8.
38
See, State v. Abdullah, supra note 8; State v. Filholm, supra note 8.
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(f) Investigation of Rios and
Drug Psychosis Expert
In our prior opinion,39 we concluded Ash was prejudiced
when the district court denied his motion for a continuance,
because he did not have an opportunity to investigate either
Meehan’s statements that she experienced drug-induced hal-
lucinations or her prior statement to Rios about the murder. In
his brief, Ash generally asserts that his trial counsel failed to
investigate either of these matters after remand. He does not
specifically state why trial counsel was deficient in not doing
so, but implies that if we deemed it necessary to permit a con-
tinuance in order to allow counsel the opportunity to investi-
gate these matters, it was important enough that counsel should
have conducted further investigation.
We conclude the record is insufficient to review this claim
on direct appeal.
(g) Psychiatric Evaluation of Meehan
Ash claims his trial counsel possessed a psychiatric eval­
uation performed on Meehan when she was 16, but never
offered or used the evaluation at trial. Ash makes no further
allegation about what the contents of the evaluation were,
how it could have been used, or what it might have been
offered to prove. We conclude Ash has not alleged deficient
performance with sufficient particularity, and therefore this
claim is not properly raised in this appeal.40
(h) Motion to Suppress
Ash argues his trial counsel was ineffective because he did
not file a motion to suppress any of the State’s evidence. Ash
does not identify any specific evidence which should have
been suppressed, nor does he specify any legal basis for fil-
ing such a motion. We conclude Ash has not alleged deficient
39
State v. Ash, supra note 1.
40
See, State v. Abdullah, supra note 8; State v. Filholm, supra note 8.
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performance with sufficient particularity, and therefore this
claim is not properly raised in this appeal.41
(i) Attorney Visits and
Letter From Meehan
Ash asserts that his trial counsel visited him only two or
three times while he was incarcerated. Ash also asserts he
gave his trial counsel a letter from Meehan in which she con-
fessed to the murder, but his counsel made no use of that letter
at trial.
We understand this assignment to allege trial counsel per-
formed deficiently by not adequately preparing for trial and
not presenting exculpatory evidence. We determine the record
is insufficient to review this claim on direct appeal.
(j) Ash’s Former Trial Testimony
Ash’s testimony from the first trial was offered into evi-
dence at the second trial. His counsel objected to portions of
the prior testimony, and those portions were redacted and not
admitted at the second trial. Ash contends his trial counsel was
ineffective for failing to object to the entirety of Ash’s former
trial testimony.
Ash does not, however, explain what was objectionable
about the remainder of his prior testimony or allege why his
counsel performed deficiently in failing to object to the prior
testimony in its entirety. We conclude this claim has not been
presented with sufficient particularity, and therefore it is not
properly raised in this appeal.42
(k) Venue of Murder
Ash argues his trial counsel never followed up on Ash’s
assertions that the crime was committed in Colorado,
rather than Nebraska. We conclude the record affirmatively
41
See id.
42
See id.
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disproves this allegation of ineffective assistance of coun-
sel. Ash testified at his first trial that the crime occurred in
Nebraska. After his second trial, during the hearing on his
motion for new trial, Ash testified that after the guilty verdict
was returned, he called his attorney and provided the attorney
with information that the murder occurred in Colorado. The
record affirmatively shows that Ash’s counsel followed up on
the information, and eventually filed a motion for new trial
based on the information. This assignment of error is with-
out merit.
(l) Evidence at Hearing on
Motion for New Trial
At the hearing on the motion for new trial, the State offered
exhibits 138 to 143, which generally consisted of prior state-
ments made by Ash concerning the location of Guitron’s
murder and revealing Ash’s motivation for challenging the
location of the murder after his conviction. Ash contends
his trial counsel was ineffective in failing to object to his
prior statements.
Ash does not indicate on what grounds counsel could have
objected. We conclude deficient performance has not been
alleged with sufficient particularity, and therefore this claim is
not properly raised in this appeal.43
(m) Witness Todd Rowell
Ash argues his trial counsel had information about a wit-
ness named “Todd Rowell” who “had some information which
would have corroborated [Ash’s] testimony.”44 He contends
trial counsel was deficient in failing to further investigate
Rowell or subpoena him.
Ash does not explain what information Rowell possessed
or what part of Ash’s testimony would have been corroborated
43
See id.
44
Brief for appellant at 44.
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by Rowell. This allegation of deficient performance is not
made with sufficient particularity, and therefore this claim is
not properly raised in this appeal.45
(n) Motion for Directed Verdict
Ash contends his trial counsel was deficient for failing to
move for a directed verdict. He implies such a motion should
have been made because the evidence was insufficient to con-
vict. We disagree.
As already noted, there was sufficient evidence in the record
to support the jury verdict. The record thus affirmatively shows
counsel was not deficient in failing to move for a directed ver-
dict, and this claim is without merit.
VI. CONCLUSION
Ash’s claim that there was insufficient evidence to support
the verdict is without merit. None of Ash’s claims of trial
court error have merit. The motion for new trial was prop-
erly denied. Any claim of ineffective assistance of counsel is
either affirm­atively disproved by the record, not sufficiently
presented for our review, or not able to be reviewed on the
record before us. Accordingly, Ash’s conviction and sentence
are affirmed.
A ffirmed.
45
See, State v. Abdullah, supra note 8; State v. Filholm, supra note 8.