State v. Allen

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/21/2023 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 663State of Nebraska, appellee, v.
Keith L. Allen, appellant.
___ N.W.2d ___
Filed July 14, 2023. No. S-22-169.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, 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.
2. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of counsel may be determined on direct appeal is a
question of law.
4. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
5. Self-Defense. To successfully assert the claim of self-defense, one must
have a reasonable and good faith belief in the necessity of using force.
6. Homicide: Words and Phrases. A sudden quarrel is a legally recog-
nized and sufficient provocation which causes a reasonable person to
lose normal self-control.
7. Evidence. In determining the sufficiency of the evidence, the court
should not resolve conflicts in the evidence, pass on the credibility
of the witnesses, or reweigh the evidence, as these matters are for the
finder of fact.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 6638. Criminal Law: Juror Misconduct: Proof. A criminal defendant claim-
ing jury misconduct bears the burden of proving, by a preponderance
of the evidence, (1) the existence of jury misconduct and (2) that such
misconduct was prejudicial to the extent that the defendant was denied a
fair trial.
9. Juror Misconduct: Proof. When an allegation of jury misconduct is
made and is supported by a showing which tends to prove that serious
misconduct occurred, the trial court should conduct an evidentiary hear-
ing to determine whether the alleged misconduct actually occurred.
10. Motions for New Trial: Evidence. A court’s obligation to conduct an
evidentiary hearing upon a motion for new trial is satisfied where the
judge provides the movant with an opportunity to present evidence at a
hearing on the motion for new trial.
11. Juror Misconduct. The matter of whether jury misconduct occurred is
largely a question of fact.
12. Juror Misconduct: Trial. If jury misconduct occurred, the trial court
must determine whether it was prejudicial to the extent that the defend­
ant was denied a fair trial.
13. ____: ____. The question whether prejudice resulted from jury miscon-
duct must be resolved by the trial court’s drawing, from an independent
evaluation of all the circumstances of the case, of reasonable inferences
as to the effect of the extraneous information on an average juror.
14. Juror Misconduct: Evidence. The subject matter of the complaining
party’s offer of proof at an evidentiary hearing on alleged jury miscon-
duct is carefully circumscribed by statute.
15. Verdicts: Rules of Evidence: Jurors: Testimony. Neb. Rev. Stat.
§ 27-606(2) (Reissue 2016) generally provides that in connection with
an inquiry into the validity of a verdict, a juror may not testify as to
anything that occurred during deliberations or as to the effect anything
had on the juror’s decision.
16. Verdicts: Rules of Evidence: Jurors. Pursuant to Neb. Rev. Stat.
§ 27-606(2) (Reissue 2016), no evidence may be received concerning
the effect of any statement upon a juror’s mind, its influence upon the
juror, or the mental processes of a juror.
17. Verdicts: Rules of Evidence: Jurors: Affidavits. Neb. Rev. Stat.
§ 27-606(2) (Reissue 2016) does not allow a juror’s affidavit to impeach
a verdict on the basis of jury motives, methods, misunderstanding,
thought processes, or discussions during deliberations.
18. Words and Phrases. “Extraneous,” in the phrase “extraneous preju-
dicial information,” means existing or originating outside or beyond;
external in origin; coming from the outside; or brought in, introduced,
or added from an external source or point of origin.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 66319. Jurors. Internal matters include the general body of experiences that
jurors are understood to bring with them to the jury room.
20. ____. A juror’s possible prejudices or improper motives are not extrane-
ous influences.
21. Rules of Evidence: Jurors. Whether an intradeliberational statement
by a juror about pretrial personal knowledge is extraneous informa-
tion within the meaning of Neb. Rev. Stat. § 27-606(2) (Reissue 2016)
depends on whether it was directly related to the litigation at issue.
22. ____: ____. For purposes of Neb. Rev. Stat. § 27-606(2) (Reissue 2016),
information directly relates to the litigation at issue only when it is rel-
evant to the factual circumstances of the case.
23. Rules of Evidence: Jurors: Pretrial Procedure. Where a juror’s
intradeliberational statements do not relate directly to a factual ques-
tion in the case, the proper time to have raised the issue of the potential
impact of the juror’s special knowledge was during voir dire.
24. 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 the defendant’s defense.
25. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.
26. ____: ____. To show prejudice from counsel’s deficient performance,
the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
27. Evidence: Expert Witnesses: Testimony. A forensic pathologist who
did not perform the autopsy at issue may nevertheless provide expert
testimony regarding the cause of death, and any lack of firsthand knowl-
edge goes to the weight of the opinion rather than its admissibility.
28. Rules of Evidence: Expert Witnesses: Hearsay. Neb. Rev. Stat.
§ 27-703 (Reissue 2016) contemplates admission of an expert’s opinion
based on hearsay supplying facts or data for that opinion, rather than
requiring firsthand knowledge as the only source of information for an
expert’s opinion.
29. Expert Witnesses: Hearsay. An expert may rely on hearsay facts or
data that are reasonably relied on by experts in his or her field.
30. Effectiveness of Counsel. Counsel is not ineffective for failing to make
an objection that has no merit.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 663Appeal from the District Court for Lincoln County: Richard
A. Birch, Judge. Affirmed.
Charles D. Brewster, of Anderson, Klein, Brewster & Brandt,
for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant appeals from his conviction of first degree
murder and use of a weapon to commit a felony. He argues
the evidence was insufficient to support the jury’s verdicts.
Alternatively, the defendant argues he is entitled to a new trial
based on juror misconduct during deliberations when jurors
allegedly discussed the reputation of the victim’s family and
speculated it might be “bad for us” if they did not convict
the defendant. He asserts the trial court erred by finding the
averment of a juror about such intradeliberational statements
inadmissible under the general prohibition of Neb. Rev. Stat.
§ 27-606(2) (Reissue 2016) against “juror . . . testi[mony]
as to any matter or statement occurring during the course of
the jury’s deliberations or to the effect of anything upon . . .
any . . . juror’s mind or emotions as influencing [the juror] or
concerning his [or her] mental processes in connection there-
with.” The defendant argues the juror’s testimony fell under the
exception for “extraneous prejudicial information.” 1 Finally,
having new counsel on appeal, the defendant argues trial coun-
sel was ineffective by failing to call a key eyewitness to testify
at trial and failing to object to the opinion, by a pathologist
who did not perform the autopsy, as to the victim’s cause of
death. We affirm.
1
§ 27-606(2).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 663II. BACKGROUND
Keith L. Allen was convicted by a jury of first degree mur-
der and use of a weapon to commit a felony, in relation to the
shooting death of Brett Torres on May 22, 2020, at approxi-
mately 2:30 p.m. The defense argued the shooting was in self-
defense. Allen was sentenced to the mandatory statutory term
of life imprisonment for first degree murder and to 20 to 30
years’ incarceration for the use of a weapon conviction.
The evidence was not in dispute that Allen shot Torres
from the window of the passenger side of Allen’s sedan, using
a Glock 21 semiautomatic pistol that Allen was carrying in a
holster on his hip. That pistol being a semiautomatic weapon,
each trigger press fires only one round, but the trigger can be
pressed in rapid succession. Amanda Beall was the driver of
the sedan.
Beall had a volatile “on again, off again” romantic relation-
ship with Torres, and they were “off again” on May 22, 2020.
Allen testified that while he and Beall had once been romanti-
cally involved, on May 22 they were only friends.
Allen had accompanied Beall earlier that morning when
she dropped off a receipt in Torres’ mailbox. The receipt was
for items Torres had purchased for Beall and wished to return
because Beall and he were no longer together. Beall and Allen
were on their way to Allen’s house when they passed Torres
at an intersection. Torres was driving his sport utility vehicle
(SUV). He had a passenger, Devan Hovden, in the passenger
seat, and Torres’ dog was in the back seat. When Torres saw
Beall, he turned around and followed the sedan in an attempt
to speak with Beall. There were differing reports as to the
speed and nature of Torres’ driving, but Beall was not driving
fast. Beall, Allen, Torres, and Hovden were all in possession
of cell phones.
Beall eventually stopped next to Allen’s house in an alley
that ran through the middle of a city block, near the exit of
the alley to the adjoining city street. Torres, who had fol-
lowed her down the alley, pulled up along the right-hand side
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 663of the sedan. Torres’ SUV was facing the same direction as the
sedan and positioned in such a way that the front passenger
window of the sedan was lined up with the driver’s window of
the SUV. The vehicles were approximately 2½ feet apart.
Words were exchanged, the nature of which was in dispute.
As soon as Torres opened the SUV’s driver’s-side door, Allen
began shooting. Nine shell casings were found at the scene,
and nine retained projectiles were found in Torres’ body. Most
of Torres’ injuries were to his left side.
Torres was unarmed, and there were no firearms found in
his SUV. Minor dents and scuff marks were later found on
the sedan that indicated the SUV’s driver’s-side door had
made contact with the sedan’s passenger side at some point
before law enforcement arrived. Torres was found by law
enforcement in the driver’s seat of the SUV, slumped over
the center console, with his door open and one foot on the
SUV’s floorboard.
1. Cause of Death
Dr. Erin Linde, a forensic pathologist, was called by the
State to give her independent expert opinion on Torres’ inju-
ries and cause of death. Linde described forensic pathology as
the subspecialty of pathology that uses medical legal autopsy
in conjunction with death investigation, medical history, cir-
cumstances of death, and ancillary testing to determine cause
of death. Linde explained she did not conduct the autopsy,
which was conducted by Dr. Matthias Okoye. In reaching her
independent conclusions regarding Torres’ injuries and cause
of death, Linde had reviewed Okoye’s reports and autopsy
photographs taken by his team, photographs taken by law
enforcement of the scene and of Torres’ injuries, investigative
reports, medical records and imagery, and emergency medical
technician reports.
The State offered exhibit 113, which consisted of autopsy
photographs, as well as photographs of Torres’ body, which
had been taken by law enforcement. Defense counsel did
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STATE V. ALLEN
Cite as 314 Neb. 663not object, and the exhibit was received. Linde describes her
notations on those photographs and what she found significant
therein. This included her observation of gunshot entrance and
exit wounds depicted in the autopsy photographs and in the
photographs taken by law enforcement.
When Linde was asked if she could explain which wounds
were identified in Okoye’s report as entrance wounds, defense
counsel objected on the ground of hearsay. The court asked the
State to lay more foundation.
Linde reiterated she had reviewed both the autopsy photo-
graphs and the law enforcement photographs taken at a hos-
pital and had reached her own conclusions about how many
entrance wounds Torres had. She described, without objec-
tion, how many entrance wounds Okoye had documented and
opined that Okoye had missed one entrance wound, because he
had missed three wounds on Torres’ posterior. Linde acknowl-
edged that Torres was very large and opined that these wounds
were missed by “not fully viewing the posterior or back aspect
of . . . Torres at the time of autopsy.” Linde explained she
was able to ascertain those three wounds from the hospital
photographs taken by law enforcement. They were not photo-
graphed by Okoye or his team.
Without objection, Linde testified she had identified 19
defects that included 13 entrance wounds and 4 exit wounds.
Nine projectiles had been found in Torres’ body. She could
not determine how many times Torres had been shot, since a
single bullet can cause more than one entrance wound. She
testified that the toxicology laboratory detected relatively
low amounts of cocaine and methamphetamine in Torres’
system. She could not determine when those substances had
been ingested. Linde opined, without objection, that Torres’
cause of death was multiple gunshot wounds of his torso
and extremities.
Defense counsel objected, on the ground of hearsay, to
the State’s subsequent offer of Linde’s written report,
because it contained Okoye’s comments and Okoye was not
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 663available for cross-examination. Defense counsel also believed
the lengthy report would distract the jury. After a discussion
between counsel and the court, the State withdrew the offer.
2. Hovden
Hovden testified that the day of the shooting, he was visiting
with Torres. Torres was upset about Beall and asked Hovden
if he wanted to drive around rather than “sitting at the house.”
Hovden described that they were “[j]ust chilling,” listening to
music, talking, and smoking cigarettes together.
Hovden noticed that Torres appeared to be occasionally
messaging someone with his phone, but Hovden did not know
with whom or ascertain the nature of the communications. In
the SUV, Hovden and Torres briefly sat at the corner of an
intersection and Torres seemed to be “sending long texts.”
Hovden “could tell” Torres was “upset about something.”
When they proceeded from the intersection, going straight,
they passed Beall driving in the opposite direction with a male
passenger whom Hovden later identified as Allen. Hovden
testified that he had never seen nor heard of Allen before
that day.
Torres exclaimed, “‘That’s [Beall]’” and turned the SUV
around in a parking lot, backing up quickly enough that the
tires “screeched.” Torres then started following behind Beall’s
sedan, going approximately 15 miles per hour.
According to Hovden, Torres yelled out the SUV’s window,
“‘Pull over. I want to talk to [Beall].’” Beall did not stop, and
Torres followed behind her.
When Torres eventually pulled the SUV up alongside the
sedan where Beall had stopped it at the front of the alley,
Hovden heard Allen say “to get the fuck out of here and to
keep going.” According to Hovden, Torres responded, “‘No. I
want to talk to [Beall].’”
Torres then “threw [the SUV] in park” and started to exit.
Hovden testified that Torres had his left foot out and his right
foot on the SUV’s running board when Allen began to shoot.
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Nebraska Supreme Court Advance Sheets
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STATE V. ALLEN
Cite as 314 Neb. 6633. Beall Interview Statements
Beall did not testify at trial. Informal discussions in the
record reflect that neither the prosecution nor the defense was
able to secure her attendance at scheduled depositions and that
although subpoenaed for trial, Beall was physically ill, was
suffering from anxiety, and had not shown up. The prosecu-
tion and defense had agreed that in lieu of Beall’s testifying at
trial, Officer Justin Erickson would testify, without either party
making hearsay objections, about Beall’s statements made dur-
ing a police interview a few days after the shooting. The court
informed the jury that Beall was unavailable.
Erickson testified that Beall told him there had been some
domestic violence in her relationship with Torres. On the
morning of the day of the shooting, Allen had accompa-
nied Beall to Torres’ house, where she deposited a receipt
in Torres’ mailbox. Allen had been insistent on helping her,
even though she wanted to do the errand by herself. Beall
relayed that Torres was jealous of Allen and that she was
afraid of a confrontation. Beall reported that Torres owned a
9-mm handgun.
Later that day, Beall had picked Allen up at work and was
taking him back to his house when they encountered Torres.
Beall said Torres was yelling something out the window of his
SUV, but she could not hear what he was saying. Beall reported
to Erickson that when Torres was following them into the alley,
Allen had said, “‘All I need is a clear shot.’”
Still, when Beall stopped in the alley, she trusted that Allen
would handle the situation appropriately. Erickson testified
that during the later interview, Beall was “an emotional roller-
coaster” and “difficult to follow,” such that trying to “tie things
together and make somewhat of a timeline was very difficult.”
Erickson did not testify as to any statements by Beall concern-
ing her observations in the moments immediately preceding
the shooting.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. ALLEN
Cite as 314 Neb. 6634. Rosendo Duran
Rosendo Duran, a resident who lived nearby, was outside
using her phone when she saw what was later identified as
Torres’ SUV following what was later identified as Allen’s
sedan. The vehicles traveled away from her view, but she
eventually heard yelling. According to Duran, one male with
a deep voice was yelling, “‘Just give me my stuff,’” while a
different male voice repeatedly yelled, “‘Fight me like a man’”
and “‘Get out. Get out of the vehicle.’” The man with the deep
voice eventually responded, “‘If I get out of this vehicle, I’m
going to . . . beat your ass.’” Duran then heard gunfire.
5. Messages
Numerous messages leading up to the shooting, sent between
Beall and Allen and between Beall and Torres, were entered
into evidence at trial.
(a) Between Beall and Allen
In a message sent by Allen to Beall a month before the
shooting, Allen said he had been looking for Beall and hoped
she was not at Torres’ place or with someone else “who’s
gonna get [her] back on meth.” Allen then expressed his anger
toward “those motherfuckers” and threatened to kill them: “I
swear to God, I’ll kill those motherfuckers. Go ahead and turn
me in if [you] want. I already did. Called Ft. Leavenworth
yesterday.” In a voicemail sent from Allen to Beall around
the same time, Allen said, “If you’re with who I think you’re
with,” then he was “going to start killing.”
One week before the shooting, Allen messaged Beall, indi-
cating a rift in their relationship: “All your stuff is here. I
didn’t throw anything away,” and “Please talk.” This was
followed with another message: “Where do you want me to
take your stuff? I’m finished. Can’t believe you’re doing this
again. What did I do?” Later, Allen messaged Beall, “All your
stuff from here is across the street in the corner of the park-
ing lot. I can’t do this anymore.” In further messages between
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Nebraska Supreme Court Advance Sheets
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STATE V. ALLEN
Cite as 314 Neb. 663Beall and Allen, Beall confirmed that she had retrieved her
belongings from the parking lot. Subsequently, Allen shared
with Beall, “I’m so sad and confused. I don’t know what the
hell happened.”
(b) Between Beall and Torres
An investigator described Beall and Torres as having
exchanged “literally . . . hundreds of — of messages back and
forth throughout all hours of the day.” A day before the shoot-
ing, messages from Torres to Beall reflect that they were not
getting along and that Torres wanted a receipt for items he had
purchased for Beall so he could return them. Torres eventu-
ally became frustrated with Beall’s being nonresponsive to his
messages and messaged Beall, “Tell the bitch boy your [sic]
with to fight me.”
Approximately 15 minutes later, he messaged, “Hurry up or
imma Come there! And he will get fucked up by 3 people.”
This was followed with several other messages, including:
“Not fucking around,” “Stop playing u fuckin piece of shit,”
“And my girl wanna fight you,” “I’ll show u how whores get
pimped out,” and “Just wait run cant hide everything iv said
I meant it.”
Beall eventually responded, “Tomorrow sorry” and “Quit
threatening me then you’ll get it.”
By the early morning hours of May 22, 2020, the messages
from Torres to Beall became more subdued. Around 8 a.m.,
Beall messaged Torres about a nightmare she had. Torres
responded around 9:30 a.m., “I’d hug you if I could take night-
mares away.” Torres told Beall he missed her, “Ur the one 4
me,” and “I love you.” Although by approximately 10 a.m.,
Torres messaged, “I said that just to piss u off.”
Beall messaged Torres around 10 a.m., “Do you know
that you have 72 hours to report a shooting?” When Torres
expressed confusion, Beall referred to “fucking that bitch up
for fun.”
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Cite as 314 Neb. 663Torres reiterated several times during their conversation that
he needed the receipt, and starting at approximately 10:30 a.m.,
their conversation focused on this topic. Around noon, Beall
messaged Torres that the receipt was in Torres’ mailbox.
Torres shifted his focus to getting Beall to retrieve her
belongings. He messaged Beall, “Grab ur cloths [sic]” and
“Get ur shit outta here already.” Torres became impatient with
Beall, sending messages such as “[C]ome now n hurry up”
and “I got shit to do fr.” Torres wrote, “Jesus I’ll just throw it
outside ur moms w ha t in the actual fuck get ur shit!” When
Beall asked Torres why he was not dropping her things off if
he was so impatient, he responded, “I’m not digging threw
ur shit.”
Beall messaged, “Please can you wait[?]” But Torres con-
tinued to pressure Beall to hurry, explaining, “Got home
girl moving in.” Torres then started threatening to throw
Beall’s belongings away. Torres was shot approximately 10
minutes later.
6. Allen’s Testimony
Allen testified in his own defense. He explained that he had
been in a romantic relationship with Beall for a short time in
2020, after which they remained friends. Beall stayed over at
Allen’s house “[o]ff and on.” Allen testified that several weeks
before the shooting, he saw messages on Beall’s phone that
were threatening to Beall. He also understood the messages as
being threatening toward him, although Allen admitted Torres
never mentioned him by name. Allen said he also saw the
message from Torres the day before the shooting stating, “Tell
the bitch boy . . . to fight me.”
According to Allen, when his sedan, driven by Beall, crossed
paths with Torres’ SUV, Torres yelled at Beall, “‘Is that your
boyfriend?’” When Torres subsequently followed Beall and
Allen, he was yelling for them to pull over and shouting,
“‘Fight me like a man.’” Torres also reportedly yelled, “‘You
can’t outrun me. I’ll get you. I’ll end you.’”
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Cite as 314 Neb. 663Allen testified that once Beall and he were stopped in the
alley, he drew his pistol, held it out the sedan’s window, and
“waved it and looked in their direction,” after which he heard
Torres’ SUV start to decelerate. Allen testified that he then
yelled at Torres, “‘Don’t you fucking stop. Get the fuck out
of here.’”
Allen testified that Torres responded, “‘Oh, fuck you’” and
opened his door a little bit. Allen again waved his pistol and
asked, “‘Don’t you see this?’”
According to Allen, he shot Torres when Torres further
threatened him and pushed open his SUV’s driver’s-side door,
hitting the passenger door of Allen’s sedan. Allen testified:
“And then he — he leaned . . . down as if — as if he was
reaching, and then his next words were, ‘Fuck that shit, I’m
kill [sic] both of you bitches,’ and he pushed his door open.
And when his door hit mine, that’s when I fired.”
Allen admitted he never saw Torres with a firearm. Still,
Allen explained, based on the threatening messages he had pre-
viously seen, he “was a hundred percent convinced that there
was three people in [Torres’ SUV] armed and I was about to
get shot to death.” Apparently, Allen had mistaken Torres’ dog
for a third person.
Allen said that Beall had turned the ignition off and that he
did not feel he had any means of escape. He did not feel safe
from a firearm simply by keeping the sedan’s doors locked and
its windows up. He testified he did not think he could exit the
sedan and outrun the danger, explaining he had health prob-
lems reducing his ability to walk or move. When asked if he
had told Beall to drive away, Allen testified, “I made several
suggestions. She just wouldn’t — wouldn’t respond.”
7. Character Evidence of Torres
The defense presented testimony pertaining to Torres’ repu-
tation for violent and aggressive behavior. A witness described
Torres as the first aggressor in an assault at a party in 2017
at Torres’ house. An ex-girlfriend described various instances
where Torres had physically abused her.
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Cite as 314 Neb. 663The defense also presented evidence of Torres’ drug usage.
A witness related that he and Torres used illicit drugs together
and that the last time they did so was around 9 a.m. on the
day Torres was killed. They “did a loader of meth,” which
the witness explained was methamphetamine through intrave-
nous injection. They consumed approximately .25 grams each,
which is “not really a huge amount, but . . . was enough for
intoxification [sic].” This witness also testified that he had
seen Torres be aggressive, elaborating that 2 weeks before the
shooting, Torres had broken the windows of a vehicle of some-
one who owed him money.
8. Admonishment of Family Members
At one point during trial, while the jury was in the jury
room, the court directed some comments to Torres’ family
members to ensure there were no outbursts that would require
them to be removed. The court said:
These are going to be — this is where it’s going to get
difficult for some of the family members. And I noticed
this morning that some of the family members were
becoming rather emotional, and it’s going to get harder.
And you’re certainly entitled to be here, but we need to
make sure that there aren’t any outbursts, there [isn’t]
any overflowing of emotions. And I know that this is
going to be very hard for some of you just from where
we started to get and from what I saw this morning, and
this, frankly, is primarily directed toward . . . Torres’s
family. You’re welcome to be in here as long as — but if
you think you’re going to have difficulty controlling your
emotions and dealing with what you’re going to have to
look at, I’d appreciate it if you’d leave now rather than
us needing to remove you later, because this is not going
to be easy.
So what I want to do is give you a — I’m going to
take about a five-minute break, give you a chance just
to think about it, settle down, see if you think you can do
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Cite as 314 Neb. 663it. If you can, you’re welcome to stay. If it’s going to be
difficult for you, I’d ask you to consider whether or not
you want to stay or if you want to come back.
We can certainly have — when we get beyond the
photographs, we can certainly figure out a way to let you
know so you can come back.
After a short adjournment, trial resumed. Before the autopsy
photographs were displayed for the jury, the court gave family
members an opportunity to leave the courtroom, explaining,
“[I]t’s going to be hard. If anybody starts crying or sobbing,
we’ll probably have to have you removed at that point, so you
need to be able to keep your emotions in check while we’re
going through this.”
9. Instructions on
Extraneous Information
Prior to deliberations, the jury was instructed to “rely solely
upon the evidence in this trial and that general knowledge
everyone has” and “disregard . . . personal knowledge of any
other specific facts.” The court instructed that the evidence
from which the jury was to find the facts consisted of the tes-
timony of witnesses and exhibits received in evidence. Among
the things the court described as not evidence was “anything
[jurors] have — may have seen or heard about this case outside
the courtroom.”
10. Juror Discussion of Torres
Family Reputation
Following the verdicts and after the jury was discharged,
trial counsel moved for a new trial on the ground of juror mis-
conduct. The court granted defense counsel a continuance of
sentencing for 2 months to investigate the matter. An eviden-
tiary hearing was subsequently held on the motion.
(a) Exhibit 301
At the evidentiary hearing, the court accepted into evi-
dence an affidavit by defense counsel, exhibit 301, with the
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Cite as 314 Neb. 663caveat that it was for the “purpose of foundation as to the pro-
cedures [defense counsel] underwent in order to get the infor-
mation that is contained in Exhibit 300.” Furthermore, the
court instructed, “To the extent it’s hearsay, it’s not received
for the truth of the matter.”
In exhibit 301, defense counsel described having reached out
to the jurors after a nonjuror reported to him that she had spo-
ken to one of the jurors after trial, who said three jurors were
intimidated to change their not-guilty votes. Five jurors did
not respond to defense counsel’s inquiries. Six jurors indicated
they had not witnessed anything improper during deliberations
and had not heard any comments regarding the Torres fam-
ily reputation.
Two jurors noted that three fellow jurors had originally felt
the case was one of self-defense, but that those jurors changed
their opinions after discussing the law and facts with other
jurors. One juror indicated that during a break when there were
only two or three jurors in the room, another juror mentioned
the Torres family.
Jurors reported that there were no threats, coercion, or bully-
ing during deliberations. One juror stated that early on in delib-
erations, the jurors had agreed they could not consider anything
not brought up during trial.
(b) Exhibit 300
The court sustained the State’s objection, pursuant to
§ 27-606, to defense counsel’s offer of exhibit 300, which con-
sisted of the affidavit of one of the jurors who had been party
to the conversation with fellow jurors about the reputation of
the Torres family. In refusing to enter exhibit 300 into evi-
dence, the court explained that the statements contained therein
pertained to deliberations and not to extraneous matters.
Trial counsel asked that the exhibit be sealed in order
to protect the identity of the juror, and the court sealed the
exhibit. In exhibit 300, a juror averred that “[t]he reputation
of the Torres family came up during deliberations.” According
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family” and “[its] reputation of being a mafia-type family was
mentioned”; “it was stated that if this goes bad, meaning the
outcome was not what the Torres family wanted, it may be bad
for us (the jurors).”
The juror averred to having been, along with two other
jurors, originally of the opinion that Allen acted in self-defense
and eventually “the lone hold-out juror with this opinion.”
“The other jurors were not threatening or derogatory,” but the
averring juror felt “pressure to give up [that] honest opinion of
not guilty,” because the other jurors “wanted to . . . go back to
their lives and get the case over.”
(c) Motion Overruled
No other evidence was offered by defense counsel in support
of the motion for a new trial. Defense counsel did not request
that the court have the jurors return to be examined. Because
the jury had been discharged and the jurors were not called
to testify at the hearing, the court did not question any of the
jurors directly.
The court overruled the motion for new trial, stating that
Allen had failed to meet his burden of proof. The court found
that even if exhibit 300 would have been admissible, it would
have been insufficient to support a new trial, because the only
pressure to change the verdicts described in the affidavit was
the pressure from the other jurors “to go home.” The court
elaborated that while the jurors said the Torres family reputa-
tion was discussed, the juror nowhere stated that anybody was
influenced by that discussion.
III. ASSIGNMENTS OF ERROR
Allen assigns that (1) the evidence adduced at trial was
insufficient to sustain his convictions, because a rational trier
of fact could not have concluded that Allen killed Torres
purposely and with deliberate and premediated malice and
not in self-defense. Allen assigns that the trial court erred
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Cite as 314 Neb. 663with respect to alleged juror misconduct (2) by not granting
his motion for new trial, (3) by not receiving his evidence
at the hearing on the motion for new trial, (4) by ruling that
jurors’ statements during deliberations regarding the Torres
family were not extraneous prejudicial evidence, (5) by find-
ing that jurors’ statements during deliberations regarding the
Torres family were not sufficient to prove jury misconduct, (6)
by finding that Allen did not meet his burden of proving jury
misconduct through his evidence submitted to the court at the
hearing on his motion for new trial, (7) by not conducting an
investigation into Allen’s claim of jury misconduct upon being
informed of the alleged misconduct, (8) when jurors considered
the potential revenge of Torres’ family members if the jury
returned verdicts of not guilty, and (9) when the jury failed to
follow the court’s instructions. Allen assigns that trial counsel
was ineffective by (10) failing to call a key eyewitness to the
incident in question and (11) failing to object to, and stipulat-
ing to, the admission of scientific evidence offered by the State
in the form of testimony concerning Torres’ autopsy and cause
of death.
IV. STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, 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
[2] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed. 3
2
State v. Cox, ante p. 104, 989 N.W.2d 65 (2023).
3
State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
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Cite as 314 Neb. 663[3] Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. 4
[4] 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. 5
V. ANALYSIS
1. Sufficiency of Evidence
We first address Allen’s assignment of error attacking
the sufficiency of the evidence to sustain his convictions.
According to Allen, a rational trier of fact could not have
concluded that he killed Torres purposely and with deliberate
and premediated malice, as opposed to in self-defense or upon
a sudden quarrel. When reviewing a criminal conviction for
sufficiency of the evidence to sustain the conviction, the rel-
evant 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. 6 Applying this
standard, we hold the evidence was sufficient for the jury to
find that Allen shot Torres purposely and with deliberate and
premediated malice and not in self-defense or upon a sud-
den quarrel.
[5] We have repeatedly stated that to successfully assert
the claim of self-defense, one must have a reasonable and
good faith belief in the necessity of using force. 7 Neb. Rev.
Stat. § 28-1409(1) (Reissue 2016) generally provides the
4
State v. Johnson, ante p. 20, 988 N.W.2d 159 (2023).
5
State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023).
6
State v. Cox, supra note 2.
7
State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).
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Cite as 314 Neb. 663use of force upon or toward another person is justifiable only
if the actor believes that such force is “immediately neces-
sary for the purpose of protecting himself [or herself] against
the use of unlawful force by such other person on the present
occasion.” Section 28-1409(4) states that the use of deadly
force shall not be justifiable unless the actor believes that such
force is necessary to protect himself or herself against death,
serious bodily harm, kidnapping, or sexual intercourse com-
pelled by force or threat. According to § 28-1409(4), nor is it
justifiable if, among other things, the actor “provoked the use
of force against himself [or herself] in the same encounter” or,
subject to certain exceptions not applicable here, “knows that
he [or she] can avoid the necessity of using such force with
complete safety by retreating.”
[6] A sudden quarrel is a legally recognized and sufficient
provocation which causes a reasonable person to lose normal
self-control. 8 It is not the provocation alone that reduces the
grade of the crime, but, rather, the sudden happening or occur-
rence of the provocation so as to render the mind incapable of
reflection and obscure the reason so that the elements neces-
sary to constitute murder are absent. 9
There was evidence in this case from which a rational
jury could have concluded that Allen had talked about kill-
ing Torres before the shooting and, as Torres slowly followed
his sedan down the alley, had exclaimed, “‘All I need is
a clear shot.’” A rational jury could have found that when
Torres stopped alongside Allen, Allen repeatedly provoked
Torres by yelling, “‘Fight me like a man’” and “‘Get out of
the vehicle.’” A rational jury could have disbelieved Allen’s
testimony that he thought Torres had reached for a gun and
that there were two other occupants of the SUV who were
armed. Or, it could have found such beliefs unreasonable.
Either way, a rational jury could have found that Allen was
8
State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).
9
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Cite as 314 Neb. 663not in imminent danger of serious bodily harm while inside
his sedan and that Allen could have called for help, regardless
of any mobility issues he may have had.
[7] While Allen relies on his testimony as to a different
version of events, in determining the sufficiency of the evi-
dence, we do not resolve conflicts in the evidence, pass on
the credibility of the witnesses, or reweigh the evidence, as
these matters are for the finder of fact. 10 There was sufficient
evidence to support the jury’s finding that Allen, who shot
Torres at least nine times before Torres had fully exited his
SUV, killed Torres purposely and with deliberate and preme-
diated malice.
2. Juror Misconduct
We next address Allen’s assertions that juror misconduct
warranted a new trial. We limit our consideration to those
alleged errors that have been both specifically assigned and
specifically argued in his initial brief. 11 Allen assigns and
argues that the trial court erred by failing to receive exhibit
300 into evidence. He argues the juror’s averment therein
that there were discussions during deliberations regarding the
Torres family’s potentially seeking revenge was admissible
under § 27-606(2) because it concerned extraneous informa-
tion improperly brought to the jury’s attention. He also assigns
and argues that the trial court erred by not questioning the
jurors when exhibit 300 tended to prove that serious miscon-
duct had occurred. Pointing to the court’s admonishments of
the Torres family members in the courtroom and the alleged
violation of the jurors’ oaths to disregard personal knowl-
edge, Allen generally concludes that further inquiry of the
jurors would have shown he was prejudiced by the extrane-
ous information.
10
See State v. Cox, supra note 2.
11
See, State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019); U.S. Pipeline
v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460 (2019).
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Cite as 314 Neb. 663Neb. Rev. Stat. § 25-1142(2) (Reissue 2016) provides, “The
former verdict, report, or decision shall be vacated and a new
trial granted on the application of the party aggrieved for any
of the following causes affecting materially the substantial
rights of such party: . . . (2) misconduct of the jury or prevail-
ing party.” “[M]isconduct of the jury,” as the term is used in
§ 25-1142(2), does not necessarily mean a jury’s bad faith or
malicious motive, but means a jury’s violation of, or departure
from, an established rule or procedure for production of a
valid verdict. 12
[8-10] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence,
(1) the existence of jury misconduct and (2) that such mis-
conduct was prejudicial to the extent that the defendant was
denied a fair trial. 13 We have held that when an allegation of
jury misconduct is made and is supported by a showing which
tends to prove that serious misconduct occurred, the trial court
should conduct an evidentiary hearing to determine whether
the alleged misconduct actually occurred. 14 The court’s obliga-
tion to conduct an evidentiary hearing is satisfied where the
judge provides the movant with an opportunity to present evi-
dence at the hearing on the motion for new trial. 15
[11-13] The matter of whether the misconduct occurred
is largely a question of fact. 16 If jury misconduct occurred,
the trial court must then determine whether it was preju-
dicial to the extent that the defendant was denied a fair
trial. 17 The question whether prejudice resulted from jury
12
Loving v. Baker’s Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991).
13
State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
14
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
15
See, State v. McDonald, 230 Neb. 85, 430 N.W.2d 282 (1988); Anis v.
BryanLGH Health System, 14 Neb. App. 372, 707 N.W.2d 60 (2005).
16
State v. Steinmark, 201 Neb. 200, 266 N.W.2d 751 (1978).
17
State v. Stricklin, supra note 14.
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Cite as 314 Neb. 663misconduct must be resolved by the trial court’s drawing, from
an independent evaluation of all the circumstances of the case,
of reasonable inferences as to the effect of the extraneous
information on an average juror. 18
[14] However, the subject matter of the complaining party’s
offer of proof at an evidentiary hearing on alleged jury mis-
conduct is carefully circumscribed by statute. 19 An evidentiary
hearing with regard to allegations of jury misconduct does
not extend to matters which are barred from inquiry under
§ 27-606(2). 20
[15] Section 27-606(2) generally provides that in connec-
tion with an inquiry into the validity of a verdict, a juror may
not testify as to anything that occurred during deliberations or
as to the effect anything had on the juror’s decision. Section
27-606(2) allows an exception to this rule for a juror to testify
“on the question whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon
any juror.”
Section 27-606(2) states in full:
Upon an inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or state-
ment occurring during the course of the jury’s delibera-
tions or to the effect of anything upon his or any other
juror’s mind or emotions as influencing him to assent to
or dissent from the verdict or indictment or concerning
his mental processes in connection therewith, except that
a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the
jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may his
18
See State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).
19
See State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 (1993).
20
State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).
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Cite as 314 Neb. 663affidavit or evidence of any statement by him indicating
an effect of this kind be received for these purposes.
[16,17] Pursuant to § 27-606(2), no evidence may be
received concerning the effect of any statement upon a juror’s
mind, its influence upon the juror, or the mental processes of
a juror. Section 27-606(2) does not allow a juror’s affidavit
to impeach a verdict on the basis of jury motives, methods,
misunderstanding, thought processes, or discussions during
deliberations. 21
Section 27-606(2) is designed principally to protect the
jury’s deliberation process, including its votes. 22 Allowing
the use of jurors’ testimony to set aside their verdicts would
result in jurors’ being “‘harassed and beset by the defeated
party in an effort to secure from them evidence of facts which
might establish misconduct.’” 23 As stated by the U.S. Supreme
Court, this would transform what was intended to be a private
deliberation into a constant subject of public investigation,
thereby destroying “‘“all frankness and freedom of discussion
and conference,”’” and as further stated by the Court, while
“[t]here is little doubt that postverdict investigation into juror
misconduct would in some instances lead to the invalidation of
verdicts reached after irresponsible or improper juror behav-
ior,” “[i]t is not at all clear . . . that the jury system could sur-
vive such efforts to perfect it.” 24
The exceptions under § 27-606(2) for extraneous prejudi-
cial information and outside influence are intended to strike
a balance between ensuring a just result in an individual
case and the rule’s principal policy of “‘safeguard[ing] the
21
See State v. Stricklin, supra note 14.
22
See State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
23
Rahmig v. Mosley Machinery Co., 226 Neb. 423, 454, 412 N.W.2d 56, 76
(1987), quoting McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed.
1300 (1915).
24
Tanner v. United States, 483 U.S. 107, 120, 107 S. Ct. 2739, 97 L. Ed. 2d
90 (1987).
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Cite as 314 Neb. 663institution of trial by jury.’” 25 “Drawing the line between
‘extraneous prejudicial information’ and ‘thought processes’
that inhere in the verdict deliberations, has been a chal-
lenging assignment for the courts.” 26 At issue in this case
is whether intradeliberational statements by a juror sharing
pretrial knowledge of the reputation of the Torres family and
discussion about whether jurors would be in danger if they did
not convict Allen were extraneous information for purposes
of § 27-606(2).
[18-20] We have defined “extraneous,” in the phrase “extra-
neous prejudicial information,” as meaning “existing or origi-
nating outside or beyond: external in origin: coming from the
outside . . . brought in, introduced, or added from an external
source or point of origin.” 27 Many cases conclude that an influ-
ence may be considered “outside” only if it does not originate
within the jury. 28 This is in contrast to “‘internal’” matters,
which include the general body of experiences that jurors are
understood to bring with them to the jury room. 29 We have
specifically held that a juror’s possible prejudices or improper
motives are not extraneous influences. 30
[21,22] We have held that whether an intradeliberational
statement by a juror sharing pretrial personal knowledge is
extraneous information within the meaning of § 27-606(2)
25
See Rahmig v. Mosley Machinery Co., supra note 23, 226 Neb. at 455,
412 N.W.2d at 77, quoting 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Evidence ¶ 606[03] (1987).
26
R. Collin Mangrum, Mangrum on Nebraska Evidence § 27-606 at 520
(2023).
27
State v. Hairston, supra note 13, 298 Neb. at 258, 904 N.W.2d at 6
(internal quotation marks omitted).
28
27 Charles Alan Wright & Victor James Gold Federal Practice and
Procedure § 6075 n.14 at 521 (2d ed. 2007), and cases cited therein.
29
Warger v. Shauers, 574 U.S. 40, 51, 135 S. Ct. 521, 190 L. Ed. 2d 422(2014).
30
See Rahmig v. Mosley Machinery Co., supra note 23.
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Cite as 314 Neb. 663depends on whether it was “directly related to the litigation”
at issue. 31 For purposes of § 27-606(2), information directly
relates to the litigation at issue only when it is “relevant to the
factual circumstances of the case.” 32
We have long held that a juror who makes intradelibera-
tional statements based on specific pretrial knowledge relevant
to a factual dispute in the litigation acts as a witness in the case
without being cross-examined 33 and that such statements are
admissible to support claims of juror misconduct. 34 For exam-
ple, in State v. Steinmark, 35 in a criminal proceeding involving
the alleged unlawful delivery of illegal substances, a juror told
fellow jurors during deliberations that the defendant had pre-
viously been convicted of the same offenses and that the bar
where the defendant worked was known to be a place where
illegal drugs could be purchased. We held that the statements
were admissible as extraneous information. 36
In contrast, in Nichols v. Busse, 37 we addressed, in an action
for intentional infliction of emotional distress brought by
the mother of a victim who died in a car accident, a juror’s
intradeliberational statements recounting a similar accident
that killed her cousin. Also, this same juror stated during
31
See Malchow v. Doyle, 275 Neb. 530, 539, 748 N.W.2d 28, 37 (2008).
Accord, Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999); Nichols
v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993).
32
Leavitt v. Magid, supra note 31, 257 Neb. at 449, 598 N.W.2d at 728(emphasis supplied).
33
See, Ewing v. Hoffine, 55 Neb. 131, 75 N.W. 537 (1898); Wood River Bank
v. Dodge, 36 Neb. 708, 55 N.W. 234 (1893).
34
See State v. Steinmark, supra note 16. See, also, Leavitt v. Magid, supra
note 31; Nichols v. Busse, supra note 31.
35
State v. Steinmark, supra note 16.
36
Id. See, also, U.S. v. Swinton, 75 F.3d 374 (8th Cir. 1996); Taite v. State,
48 So. 3d 1 (Ala. Crim. App. 2009). See, also, generally, 58 A.L.R.2d 556(1958).
37
Nichols v. Busse, supra note 31.
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Cite as 314 Neb. 663deliberations that as an insurance worker, she had witnessed
inflated insurance claims. Evidence had been adduced at trial
that the accident victim’s estate received a $100,000 wrong-
ful death settlement, but the jury was told to disregard it. We
held that the juror’s statements were not extraneous informa-
tion, because they were not directly related to the litigation
as issue.
Likewise, in Leavitt v. Magid, 38 we held that the legal
knowledge expressed by an attorney-juror who had allegedly
intimidated other jurors into using a definition of proximate
cause that conflicted with the jury instruction was not extra-
neous prejudicial information. 39 We acknowledged that the
definition of proximate cause may relate generally to the legal
issues presented for the jury to determine. We explained that,
nevertheless, it was not specific to the “factual circumstances
of the case.” 40
While we have not had occasion to specifically address
intradeliberational statements sharing community knowledge
of local inhabitants’ reputations, at least one other court has
explained that “community knowledge” is not external infor-
mation. 41 The court in Titus v. State 42 reasoned that “general-
ized knowledge that is available to a significant portion of the
community should not qualify for the exception both because
it would make it impossible to hold trials in small communities
and because such information is more likely to be tested by the
jury itself.”
Applying these principles, the court in Titus held, in a trial
for rape in a community of approximately 750 people, that
38
Leavitt v. Magid, supra note 31. See, also, Malchow v. Doyle, supra note
31.
39
See, also, e.g., State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).
40
Leavitt v. Magid, supra note 31, 257 Neb. at 449, 598 N.W.2d at 728.
41
See Titus v. State, 963 P.2d 258, 264 (Alaska 1998).
42
Id. at 263.
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Cite as 314 Neb. 663jurors’ discussion of their general knowledge of the defend­
ant’s drinking habit was not extraneous information. Neither
was it extraneous information when the jurors speculated that
the defendant had been drinking the night of the alleged rape
because there had been a local carnival. This was in con-
trast to the jurors’ alleged statements that they had observed
or otherwise knew the defendant had actually been drinking
on the night in question, which the court held was extrane-
ous information. 43
The court in Titus also held that because defense counsel
did not challenge jurors or request a change of venue, despite
the jurors’ revealing during voir dire their general familiarity
with the defendant, defense counsel had waived the defend­
ant’s right to impeach the jury verdict based on bias stemming
from general familiarity. However, because none of the jurors
revealed during voir dire knowledge of the defendant’s actual
conduct at the time of the alleged rape, the defendant did not
waive his right to impeach the jury verdict based on the con-
sideration of extra-record evidence.
[23] We have explained that where the juror’s intradelib-
erational statements of preexisting knowledge do not relate
directly to a factual question in the case, the proper time to
have raised the issue of the potential impact of the juror’s
special knowledge was during voir dire. 44 We discussed in
Nichols that an appellant waives a juror’s use of special-
ized or general preexisting knowledge during deliberations
by not making appropriate inquires or challenging the juror
for cause before trial commenced. 45 This is consistent with
the view of other jurisdictions that the exception for extrane-
ous prejudicial information applies only to matters that could
not have been discovered during voir dire through adequate
43
See Titus v. State, supra note 41.
44
See Nichols v. Busse, supra note 31.
45
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Cite as 314 Neb. 663questioning, either because a juror’s exposure to extra-record
evidence occurred after voir dire or because the juror lied
during that process. 46 It has been said, “‘[O]ur system would
grind to a halt if venirepersons could be left on the jury and
then be criticized after the verdict for doing nothing more than
what was imminently (sic) foreseeable.’” 47
The shooting in the instant case took place, and the trial was
held, in North Platte, Nebraska, a city of the first class having
a population of more than 5,000 but fewer than 100,000 inhab-
itants. 48 It was foreseeable that members of the community
where Allen and Torres lived might have knowledge of the
reputation of the Torres family. There is no allegation that this
knowledge was deliberately concealed during voir dire. The
proper time to have raised the issue of the potential impact of
the jurors’ knowledge of the reputation of the Torres family
was during voir dire.
More fundamentally, the reputation of Torres’ surviving
extended family was generalized knowledge available to a sig-
nificant portion of the community that did not directly relate
to the litigation. The reputation of the Torres family was not
specific to the factual circumstances of the case. It was not
relevant to whether Allen killed Torres with deliberate and pre-
meditated malice.
And the jurors’ speculation, based on this community
knowledge, that they might suffer some harm from the Torres
family if Allen were not convicted, is not information from
an external source at all. Such speculation originated within
the jurors from their general body of experiences, preju-
dices, or improper motives, which we have explained are
not extraneous influences. This speculative fear is similar to
46
27 Wright & Gold, supra note 28.
47
People v. Newman, 471 P.3d 1243, 1252 (Colo. App. 2020).
48
See, Neb. Rev. Stat. § 17-101 (Reissue 2022); Tryon v. City of North
Platte, 295 Neb. 706, 890 N.W.2d 784 (2017).
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Cite as 314 Neb. 663that presented in U.S. v. Krall. 49 The Eighth Circuit Court of
Appeals held in Krall that a juror’s fear the Internal Revenue
Service might retaliate if the juror did not convict the defend­
ant of filing false tax returns went to the juror’s own mental
process and subjective prejudices or improper motives and
was not external information. Such speculative fear is distinct
from evidence that an outside threat was actually brought to
bear upon a juror. 50
We find no merit to Allen’s reliance on Pena-Rodriguez v.
Colorado 51 as supporting the admissibility of exhibit 300. The
Court in Pena-Rodriguez held:
[W]here a juror makes a clear statement that indicates he
or she relied on racial stereotypes or animus to convict
a criminal defendant, the Sixth Amendment requires that
the no-impeachment rule give way in order to permit
the trial court to consider the evidence of the juror’s
statement and any resulting denial of the jury trial
guarantee. 52
The Court in Pena-Rodriguez set forth several reasons why
racial bias should be treated differently from ordinary bias,
including the fact that racial bias “implicates unique historical,
constitutional, and institutional concerns” and is “a familiar
and recurring evil that, if left unaddressed, would risk sys-
temic injury to the administration of justice.” 53 The Court in
Pena-Rodriguez also pointed out that the safeguards of voir
dire are not as effective in exposing racial bias and that
in fact, questions during voir dire can exacerbate whatever
prejudice might exist. The reputation of the Torres family and
49
U.S. v. Krall, 835 F.2d 711 (8th Cir. 1987).
50
See Tanner v. United States, supra note 24.
51
Pena-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct. 855, 197 L. Ed. 2d
107 (2017).
52
Id., 580 U.S. at 225.
53
Id., 580 U.S. at 224.
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Cite as 314 Neb. 663speculation as to what its members might do in response to
the jury’s verdicts do not implicate the same concerns as racial
animus against a defendant.
We hold that exhibit 300 did not contain extraneous infor-
mation within the meaning of § 27-606(2). As such, the court
did not err in ruling it was inadmissible in support of Allen’s
motion for a new trial based on juror misconduct. Allen does
not challenge the court’s rulings pertaining to the admission of
exhibit 301 for the limited purpose of foundation for the infor-
mation contained in exhibit 300. There being no other evidence
that was presented at the evidentiary hearing on Allen’s motion
for a new trial, the allegations of misconduct were completely
unsupported by admissible evidence.
We disagree with Allen’s contention that the court erred by
not recalling the jurors to be questioned. Not only did defense
counsel make no request for the court to do so, but the lack of
admissible evidence tending to prove that serious misconduct
occurred ended the court’s obligations respecting the motion. 54
The court did not abuse its discretion in denying Allen’s
motion for a new trial.
3. Ineffective Assistance
[24] Lastly, we address Allen’s claims of ineffective assist­
ance of trial counsel. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 55 the
defendant must show that counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense. 56
[25,26] To show that counsel’s performance was defi-
cient, the defendant must show counsel’s performance did
54
See State v. Stricklin, supra note 14.
55
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
56
See State v. Miranda, supra note 5.
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Cite as 314 Neb. 663not equal that of a lawyer with ordinary training and skill in
criminal law. 57 To show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different. 58
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. 59
(a) Cause of Death
Allen first argues that trial counsel was ineffective by fail-
ing to object “on lack of personal knowledge (foundation),
chain of custody, and hearsay” 60 grounds to photographs from
the autopsy and to Linde’s expert testimony on Torres’ cause
of death. Allen takes issue with the fact that Linde neither
performed the autopsy nor took the autopsy photographs, stat-
ing that “[t]he usual way that the prosecution proves the cause
of death in a homicide case is by and through testimony of a
forensic pathologist who conducted a forensic autopsy on the
body of the alleged victim.” 61
Allen also describes the autopsy as having been “botched,” 62
apparently in reference to the wounds Okoye failed to notice
on Torres’ posterior, but he does not explain how these defi-
ciencies in the autopsy affected the admissibility of the
autopsy photographs of the other parts of Torres’ body or
57
Id.58
See id.59
Id.60
Brief for appellant at 11.
61
Id.62
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Cite as 314 Neb. 663the admissibility of Linde’s expert testimony. Allen makes
no argument that the autopsy photographs, which he asserts
counsel should have objected to for lack of foundation, were
independently prejudicial, but instead suggests that if trial
counsel would have objected to the autopsy photographs, such
objections would have been sustained and Linde’s testimony
would have been inadmissible as a result. Allen concludes
that defense counsel’s failure to object to the autopsy photo-
graphs and Linde’s testimony “was obviously deficient” and
“certainly prejudiced [Allen,]” because the cause of death was
critical to making the prosecution’s case. 63
Leaving aside that Torres’ cause of death was not in dispute
under defense counsel’s strategy of arguing the shooting was in
self-defense or upon a sudden quarrel, Linde’s testimony was
not objectionable simply because Okoye did not testify at trial.
Neither was the admissibility of Linde’s testimony dependent
upon the admissibility of the autopsy photographs.
[27-29] A forensic pathologist who did not perform the
autopsy may nevertheless provide expert testimony regarding
cause of death, and any lack of firsthand knowledge goes to the
weight of the opinion rather than its admissibility. 64 Neb. Rev.
Stat. § 27-703 (Reissue 2016) provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those per-
ceived by or made known to him [or her] at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible
in evidence.
We have explained that § 27-703 contemplates admission of
an expert’s opinion based on hearsay supplying facts or data
for that opinion, rather than requiring firsthand knowledge
63
Id. at 13.
64
See State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
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Cite as 314 Neb. 663as the only source of information for an expert’s opinion. 65
Further, an expert may rely on hearsay facts or data that are
reasonably relied on by experts in his or her field. 66
[30] There is no basis for concluding that Linde’s opinion
as to Torres’ cause of death was inadmissible. Allen does not
assert that the facts and data Linde described she relied upon
were not the kind reasonably relied upon by experts in her
field. Counsel is not ineffective for failing to make an objec-
tion that has no merit. 67 We find no merit to Allen’s assertion
that trial counsel was ineffective for failing to object to Linde’s
testimony as to Torres’ cause of death.
(b) Failure to Call Beall
Allen also asserts counsel was ineffective for failing to call
Beall to testify at trial. He argues he was prejudiced because
Beall would have testified about Torres’ prior violent behavior
toward her and threats toward Allen. Furthermore, he generally
points out that Beall saw and heard the exchange leading to
Torres’ death and asserts that “Erickson was a poor substitute
for . . . Beall, as his memory was good for things that helped
the State and bad for things that helped the defense.” 68 Allen
asserts that failing to call Beall “as a witness for the defense
to confirm and corroborate the evidence for [his] self-defense
claim was clearly a deficient act on the part of trial counsel and
very clearly prejudicial to [his] defense.” 69
We agree with the State that an evaluation of trial counsel’s
actions would require an evaluation of trial strategy and of
matters not contained in the record. The record is insufficient
to review this claim of ineffective assistance of counsel in this
direct appeal.
65
Id.66
Id.67
State v. Tyler, 301 Neb. 365, 918 N.W.2d 306 (2018).
68
Brief for appellant at 12.
69
Id. at 13.
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Cite as 314 Neb. 663VI. CONCLUSION
Finding no merit to Allen’s claims of insufficiency of the
evidence and jury misconduct, and finding that his claims
of ineffective assistance of trial counsel either lack merit or
cannot be addressed on direct appeal, we affirm the judg-
ment below.
Affirmed.