State v. Wyrick

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/02/2023 09:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE v. WYRICK
Cite as 31 Neb. App. 815State of Nebraska, appellee, v.
Roy E. Wyrick, appellant.
___N.W.2d___
Filed May 2, 2023. No. A-22-176.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that it
was procured in violation of the safeguards established by the U.S.
Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), an appellate court applies a two-part standard
of review. With regard to historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts suffice
to meet the constitutional standards, however, is a question of law,
which an appellate court reviews independently of the trial court’s
determination.
2. Evidence: Miranda Rights: Waiver. Statements made during a cus-
todial interrogation in the absence of Miranda warnings and a valid
Miranda waiver, even if otherwise voluntarily made, are inadmissible.
3. Miranda Rights: Waiver: Confessions: Police Officers and Sheriffs.
To determine whether an accused’s statement was given voluntarily
and freely, courts examine police conduct under the totality of the cir-
cumstances. The analysis is the same to determine the voluntariness of
a waiver of Miranda rights or a confession: the focus is on the conduct
of governmental actors, and relevant factors include tactics used by
police, characteristics known to police that may cause the accused’s
will to easily be overborne, and details of the interrogation.
4. Miranda Rights: Waiver: Proof: Police Officers and Sheriffs. As a
predicate to the totality of the circumstances test, there must be a show-
ing of coercive police activity to find that a waiver of Miranda rights is
not voluntary.
5. Confessions: Mental Competency. A defendant’s mental illness is a
factor in the totality of the circumstances test when evaluating the vol-
untariness of a statement.
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STATE v. WYRICK
Cite as 31 Neb. App. 8156. Miranda Rights: Waiver. Waiver of a Miranda right is voluntary if it
is made with the full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.
7. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evi-
dence is direct, circumstantial, or a combination thereof, the standard is
the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact. The relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
8. Homicide: Intent. Both second degree murder and voluntary man-
slaughter involve intentionally killing; they are differentiated only by the
presence or absence of the sudden quarrel provocation.
9. Criminal Law: Intent. A trier of fact may infer that the defendant
intended the natural and probable consequences of the defendant’s vol-
untary acts.
10. Homicide: Intent: Weapons. An intent to kill can be inferred from the
deliberate use of a deadly weapon in a manner reasonably likely to cause
death.
11. 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.
12. Effectiveness of Counsel: Proof. Generally, 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 his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
13. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity 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 a claim was brought before the appellate court.
14. Trial: Constitutional Law: Testimony. A defendant has a fundamental
constitutional right to testify.
15. Trial: Attorney and Client: Testimony: Waiver. The right to testify
is personal to the defendant and cannot be waived by defense counsel’s
acting alone.
16. ____: ____: ____: ____. A trial court does not have a duty to advise the
defendant of his or her right to testify or to ensure that the defendant
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STATE v. WYRICK
Cite as 31 Neb. App. 815waived this right on the record. Instead, defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
17. Trial: Effectiveness of Counsel: Witnesses. The decision whether to
call a particular witness is a decision for counsel to make as a matter
of trial strategy, and even if that choice proves unproductive, it will not
sustain a finding that trial counsel was ineffective without more.
18. Self-Defense. The question of whether a defendant had a reasonable
and good faith belief in the necessity to use force is a question of fact
to be determined by a jury and is not to be determined solely by the
defendant’s own subjective belief in the necessity to use force.
19. Effectiveness of Counsel: Evidence. A reasonable strategic decision to
present particular evidence, or not present particular evidence, will not,
without more, sustain a finding of ineffective assistance of counsel.
20. Trial: Evidence: Appeal and Error. The erroneous admission of evi-
dence is not reversible error if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding of the trier
of fact.
21. Trial: Effectiveness of Counsel: Presumptions. Trial counsel is
afforded due deference to formulate trial strategy and tactics, and there
is a strong presumption that counsel acted reasonably.
22. Sentences: Appeal and Error. An abuse of discretion takes place
when a sentencing court’s reasons or rulings are clearly untenable and
unfairly deprive the litigant of a substantial right and a just result.
23. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the amount of
violence involved in the commission of the crime.
24. ____. The sentencing court is not required to articulate on the record
that it has considered each sentencing factor or make specific findings
as to the facts pertaining to the factors or weight given to them.
25. ____. The sentencing court is not limited to any mathematically
applied set of factors, but the appropriateness of the sentence is neces-
sarily a subjective judgment that includes the sentencing judge’s obser-
vations of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
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STATE v. WYRICK
Cite as 31 Neb. App. 815Joe Nigro, Lancaster County Public Defender, Matthew
F. Meyerle, and Katherine L. Hoatson, Senior Certified Law
Student, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Riedmann, Judge.
I. INTRODUCTION
Roy E. Wyrick appeals his convictions and sentences fol-
lowing a jury trial in the district court for Lancaster County.
He was convicted of one count of second degree murder and
one count of use of a deadly weapon to commit a felony. On
appeal, he argues the district court committed evidentiary
errors, his trial counsel was ineffective, and his sentences were
excessive. Having considered his arguments and reviewed the
record, we affirm his convictions and sentences.
II. BACKGROUND
On July 13, 2020, Wyrick was walking past Jeremy Lane’s
apartment on his way to visit a friend. Lane was entering the
front door of the apartment building when Wyrick called over
to him and they exchanged words. Wyrick then pulled his shirt
up to reveal the hilt of a gun in his waistband. Lane charged at
Wyrick, which sparked their first altercation.
Wyrick and Lane fought in the street. Within a minute,
Wyrick knocked Lane to the ground. Wyrick then turned and
continued walking down the street. Lane got up and ran into
his apartment. After roughly 30 seconds, video cameras show
Lane exiting his apartment building with a knife to pursue
Wyrick up the street. When Wyrick saw Lane charging toward
him with a knife, Wyrick picked up three rocks and walked
toward Lane. Wyrick threw the rocks, but Lane continued to
approach, and the two began fighting again.
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STATE v. WYRICK
Cite as 31 Neb. App. 815During the second altercation, Wyrick gained possession of
the knife. He then knocked Lane to the ground again. Video
from cameras on a nearby building showed Wyrick standing
over Lane, taking two steps forward, using his left arm to pin
Lane’s chest to the ground, and reaching his right hand back
prior to making a thrusting motion. Lane got up but collapsed
after taking a few steps. Lane died shortly thereafter from a
single stab wound to the chest. The knife that killed Lane was
never recovered, but Wyrick admitted to police that he threw it
in a nearby dumpster.
On July 14, 2020, law enforcement investigators located and
arrested Wyrick. He was interrogated by the investigators and
was charged with second degree murder and use of a deadly
weapon to commit a felony. Following a jury trial, he was
convicted of both crimes. He was sentenced to 22 to 30 years’
imprisonment for the second degree murder conviction and a
consecutive 4 to 8 years’ imprisonment for the use of a deadly
weapon conviction. Wyrick now appeals. Additional relevant
facts are set forth below.
III. ASSIGNMENTS OF ERROR
Wyrick assigns, reordered and restated, that the district court
erred in (1) denying his motion to suppress his statements to
investigators, (2) granting the State’s motion in limine to bar
any evidence that the victim had drugs in his system at the
time of his death, and (3) finding the evidence was sufficient
to convict him of second degree murder and use of a deadly
weapon to commit a felony. He also assigns his trial counsel
was ineffective and his sentences were excessive.
IV. ANALYSIS
1. Wyrick’s Motion to Suppress
(a) Additional Facts
In May 2020, Wyrick was charged with third degree assault,
criminal trespass, criminal mischief, and obstruction of a police
officer. A competency evaluation was ordered as a part of those
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STATE v. WYRICK
Cite as 31 Neb. App. 815proceedings, and Wyrick was found not mentally competent
to stand trial. Dr. Jennifer Cimpl-Bohn evaluated Wyrick and
concluded that Wyrick did not appear capable of meeting the
stresses of the proceedings without experiencing a breakdown
in rationality or judgment. Since Wyrick was not mentally
competent to stand trial, the district court ordered he be com-
mitted to a regional center for appropriate treatment until such
a time as the disability may be removed. However, at the time
of the order, the regional center did not have any open beds,
so Wyrick was released until one was available. The altercation
with Lane occurred while Wyrick was waiting to be admitted
to the regional center.
After Wyrick’s altercation with Lane and subsequent arrest,
Investigators Brian Agnew and Trent Petersen interviewed
Wyrick at the Lincoln Police Department. Agnew began the
interview by telling Wyrick that although he may have heard
his rights before, since he had no background on Wyrick, they
still needed to fully review his Miranda rights. Agnew testified
that Wyrick was read his Miranda rights and that it appeared
he understood them before he ultimately waived them.
During questioning, Wyrick recounted what he did on July
13, 2020, which included spending time with a friend at an
apartment near the altercation site. Wyrick recalled that he was
going back to visit that friend when he walked by Lane’s apart-
ment and said something to catch Lane’s attention. Wyrick told
police he apologized to Lane for a past dispute; a video camera
at Lane’s apartment showed Wyrick walking past the apart-
ment, getting Lane’s attention, and then lifting his shirt up to
reveal the hilt of a weapon.
Wyrick first told investigators he had not stabbed Lane
but later admitted to stabbing him accidentally. He stated
that immediately after the altercation ended, he ran with the
knife, apologized to some of the neighbors who were outside
with their children, and threw the knife away. Then he went
to Joshua Sanders and Shelly Reikofski’s apartment, which is
where he often slept since he was homeless. However, after
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STATE v. WYRICK
Cite as 31 Neb. App. 815telling Sanders that he was in a fight, Sanders did not want him
staying there, so he ended up staying with Sanders’ neighbor.
Roughly 45 minutes into the 11⁄2-hour interrogation, Wyrick
mentioned that he was trying to stay out of trouble because
he was awaiting a bed at a regional center. He told investiga-
tors he was “sentenced” to a regional center because he was
not in a condition to stand trial. Wyrick stated he was diag-
nosed with schizoaffective disorder and bipolar disorder but
affirmed that he was taking medication and felt that he man-
aged his symptoms.
Throughout the interrogation, Wyrick appeared aware of
the consequences of his actions, as he repeatedly asked if he
was going to jail. When the investigators asked Wyrick if he
would waive his rights to a search of his phone and for his
DNA, Wyrick consented after his rights were read to him. At
the end of the interrogation, Wyrick offered to help police by
retracing his steps to locate the knife he used to stab Lane;
however, dumpsters in the area had been emptied, and the
knife was not recovered.
(b) Standard of Review
[1] In reviewing a motion to suppress a statement based
on its claimed involuntariness, including claims that it was
procured in violation of the safeguards established by the U.S.
Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a
two-part standard of review. State v. Guzman, 305 Neb. 376,
940 N.W.2d 552 (2020). With regard to historical facts, we
review the trial court’s findings for clear error. Id. Whether
those facts suffice to meet the constitutional standards, how-
ever, is a question of law, which we review independently of
the trial court’s determination. Id.(c) Discussion
Wyrick argues that the statements he made to police should
have been suppressed because he did not voluntarily and freely
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STATE v. WYRICK
Cite as 31 Neb. App. 815waive his Miranda rights. Wyrick contends, and the State
agrees, that he was in custody during the interrogation.
[2] Miranda warnings are a prerequisite to interrogation
and fundamental with respect to the Fifth Amendment privi-
lege. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
As applied to state governments through the incorporation
of the 14th Amendment to the U.S. Constitution, the 5th
Amendment protects against compelled self-incrimination.
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
Statements made during a custodial interrogation in the absence
of Miranda warnings and a valid Miranda waiver, even if oth-
erwise voluntarily made, are inadmissible. State v. Hernandez,
supra.
In Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L.
Ed. 2d 954 (1987), the U.S. Supreme Court articulated two
dimensions for determining whether an individual voluntarily,
knowingly, and intelligently waived his or her constitutional
privilege against self-incrimination. First, the waiver must
have been voluntary, so that it was without intimidation, coer-
cion, or deception. Id. Second, the waiver must have been
made in full awareness of both the nature of the right waived
and the consequences of waiving such right. Id. Neither the
U.S. nor the Nebraska Constitution requires criminal sus-
pects to know and understand every possible consequence of
waiving the privilege against self-incrimination. Colorado v.
Spring, supra; State v. Benson, 305 Neb. 949, 943 N.W.2d
426 (2020).
(i) Waiver Is Voluntarily Made
[3-4] To determine whether an accused’s statement was
given voluntarily and freely, courts examine police conduct
under the totality of the circumstances. See State v. Burries,
supra. The analysis is the same to determine the voluntariness
of a waiver of Miranda rights or a confession: the focus is
on the conduct of governmental actors, and relevant factors
include tactics used by police, characteristics known to police
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STATE v. WYRICK
Cite as 31 Neb. App. 815that may cause the accused’s will to easily be overborne, and
details of the interrogation. See State v. Hernandez, supra.
There is no per se rule that invalidates the volunteered state-
ment of a mentally ill defendant. State v. Connelly, 307 Neb.
495, 949 N.W.2d 519 (2020). As a predicate to the totality of
the circumstances test, there must be a showing of coercive
police activity to find that a waiver is not voluntary. See State
v. Hernandez, supra.
In Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93
L. Ed. 2d 473 (1986), the defendant—who police later dis-
covered to be diagnosed with schizophrenia—approached a
uniformed police officer and told him that he wished to con-
fess to a murder. When the defendant moved to suppress his
confession, he presented testimony from a psychiatrist, who
explained that the defendant was in the throes of a schizo-
phrenic episode and was being directed by voices in his head
to confess to the murder. Id. The U.S. Supreme Court held
that mental illness alone could not invalidate a confession,
especially without a showing of coercion. Id. Additionally,
the defendant had waived his Miranda rights twice and police
officers that questioned him reportedly perceived no indica-
tion that the defend­ant was suffering from mental illness.
Colorado v. Connelly, supra. Ultimately, the Court reasoned
that a waiver made as a result of moral or psychological pres-
sures that did not include police coercion was not constitu-
tionally invalid. Id.
Here, there was no police coercion, so Wyrick’s waiver
was voluntary. Akin to the circumstance in Colorado v.
Connelly, supra, police perceived no indication that Wyrick
was suffering from mental illness. Although he admitted
that he was awaiting treatment at the regional center, he
confirmed that he was on medication and that he thought it
managed his symptoms. Agnew did not use this information
to employ tactics designed to overtake Wyrick’s will. Wyrick
continued the interview after discussing his mental condition,
and he continued to competently answer questions, provided
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Cite as 31 Neb. App. 815his password so police could access information on his phone,
and offered to help police locate the knife he used to stab
Lane. Officers informed Wyrick of his rights, they did not
make any inducements, and the record reflects that Wyrick
appeared of sound mind during his interrogation. Therefore,
without a showing of coercion, Wyrick’s waiver and state-
ment were voluntarily made.
Wyrick argues that Colorado v. Connelly, supra, is dis-
tinguishable because in that case, the “defendant was found
incompetent after his waiver, not before.” Brief for appellant
at 35 (emphasis omitted). But there is no temporal distinc-
tion to be made, as the U.S. Supreme Court held that the
defendant’s statement remained voluntary in the absence of
police coercion despite his therapist’s testimony that at the
time of the statements the defendant was in the throes of a
psychotic episode. Colorado v. Connelly, supra. It explained
that suppressing the defendant’s statements to police on the
sole account of his mental illness would expand the voluntari-
ness requirement “into a far-ranging requirement that courts
must divine a defendant’s motivation for speaking or acting.”
Id., 479 U.S. at 165-66. Rather, the Court held that a defend­
ant’s mental condition was relevant to his susceptibility to
police coercion.
[5] The Nebraska Supreme Court has likewise rejected a
per se rule that statements made by a mentally ill defendant
were involuntary. See, e.g., State v. Connelly, 307 Neb. 495,
949 N.W.2d 519 (2020); State v. Dickson, 223 Neb. 397,
389 N.W.2d 785 (1986) (holding statement by mentally ill
defend­ant is subject to general rule that statement freely and
voluntarily given without any compelling influences is admis-
sible). A defendant’s mental illness is a factor in the totality
of the circumstances test. See, Colorado v. Connelly, 479
U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); State v.
Connelly, supra.
This standard is further reinforced by the factors laid
out by both courts, which provide that the totality of the
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STATE v. WYRICK
Cite as 31 Neb. App. 815circumstances should include characteristics known to police
that may cause the accused’s will to easily be overborne. See
State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
Mental illness would fall under this factor. Here, investigators
became aware approximately halfway through the interview
that Wyrick was awaiting a bed at the regional center because
he was not in a condition to stand trial. They also knew that
Wyrick had been diagnosed with schizoaffective disorder and
bipolar disorder, but Wyrick affirmed that he was taking medi-
cation and felt that he managed his symptoms. His responses
to questions supported this. Investigators did not use this infor-
mation to engage in tactics that would cause Wyrick’s will to
be easily overborne, and they did not coerce him.
Applying a totality of the circumstances test, we find that
Wyrick voluntarily waived his right against self-incrimination.
Wyrick argues police should have known about his criminal
history and prior order of not competent to stand trial before
questioning him. Wyrick explains that investigators should
have known what Wyrick meant when he said he was waiting
for a bed at the regional center, but they continued question-
ing him.
Wyrick’s argument asks this court to impose a new standard
to the waiver analysis under the Fifth Amendment, which
would be either an actual or a constructive knowledge test
that would require police to know an accused’s entire mental
health and criminal background before presenting him or her
with the rights accorded an accused and the opportunity to
waive them. The U.S. Supreme Court refused to impose such
a standard in both Colorado v. Spring, 479 U.S. 564, 107 S.
Ct. 851, 93 L. Ed. 2d 954 (1987), and Colorado v. Connelly,
supra. To hold otherwise would have required Agnew to
divine information about Wyrick’s motivation for waiving his
rights, because Agnew admitted at the beginning of the inter-
rogation that he had no background on Wyrick. The Court
in Colorado v. Connelly, supra, refused to require a court to
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Cite as 31 Neb. App. 815engage in such divination, and we refuse to impose such a
standard here.
(ii) Waiver Is Knowingly and Intelligently Made
[6] A waiver is voluntary if it is made with the full aware-
ness of both the nature of the right being abandoned and
the consequences of the decision to abandon it. See State v.
Hernandez, supra. The accused must only receive adequate
Miranda warnings, understand them, and have an opportunity
to invoke these rights before giving any answers or admis-
sions. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
Factors about the accused are relevant to the totality of the
circumstances, and include the suspect’s age, education, intel-
ligence, prior contact with the authorities, and mental health.
State v. Connelly, supra.
The evidence shows that Wyrick knowingly and intel-
ligently waived his Miranda rights. Petersen read Wyrick
his Miranda rights, which Wyrick affirmed he understood
and waived before signing the waiver. Agnew testified that
throughout the interrogation, Wyrick appeared to understand
his rights and answered questions competently and coher-
ently. The taped interrogation shows Wyrick’s answering the
investigators’ questions and clearly recounting the events from
the day before, including that there were children present and
that he apologized to the bystanders as he ran away. When he
disclosed that he was waiting for a bed at a regional center,
Agnew followed up with questions to determine his mental
capacity. Wyrick answered Agnew’s questions, and Agnew
testified that none of the answers caused him to question
Wyrick’s competency. Altogether, the totality of the circum-
stances reveals that Wyrick understood his rights and the con-
sequences of waiving them.
Wyrick argues his mental health should have received more
weight in the totality of the circumstances analysis. However,
it is but one factor to be considered, and when viewing the
totality of the circumstances, Wyrick appeared to understand
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Cite as 31 Neb. App. 815his rights as read to him and the consequences of waiving
them. And the district court’s analysis considered the relevant
factors, including his mental health. Thus, we reject this argu-
ment, and we hold that Wyrick’s Fifth Amendment rights were
voluntarily, knowingly, and intelligently waived.
2. State’s Motion in Limine
(a) Additional Facts
Prior to trial, the State filed a motion in limine to exclude
any evidence that Lane had drugs or alcohol in his system at
the time of death. The State argued this evidence was not rel-
evant, was contrary to law, and could confuse the jury.
At the pretrial hearing, the State conceded that Lane had
drugs in his system at the time of his death but argued that
using it as evidence could prejudice the jury. Wyrick responded
by arguing that because Lane had methamphetamine in his
system at the time of his death, it would explain Lane’s erratic
behavior and add context to how Wyrick felt during the alter-
cations. Ultimately, the district court took the issue under
advisement.
The district court later held that the evidence of Lane’s
intoxication at the time of death should be excluded as irrel-
evant unless Wyrick could show, outside the presence of the
jury, that the evidence was relevant to the case and that the
danger of unfair prejudice did not outweigh the probative value.
(b) Standard of Review
An appellant who has assigned only that the trial court
erred in denying a motion in limine has not triggered appellate
review of the evidentiary ruling at trial. State v. Ferrin, 305
Neb. 762, 942 N.W.2d 404 (2020).
(c) Discussion
Wyrick claims the district court erred by granting the State’s
motion in limine, which prevented him from showing the jury
that Lane had drugs in his system at the time of his death.
Wyrick argues that the presence of drugs or alcohol in Lane’s
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Cite as 31 Neb. App. 815system at the time of his death was relevant to the jury’s
determination of whether Wyrick was acting in self-defense.
Wyrick’s contention is that “[w]hether or not Lane was intoxi-
cated by drugs or alcohol” provides “evidence on multiple
essential elements of the self-defense instruction.” Brief for
appellant at 38.
A motion in limine is only a procedural step to prevent
prejudicial evidence from reaching the jury. State v. Schreiner,
276 Neb. 393, 754 N.W.2d 742 (2008). Under Neb. Rev. Stat.
§ 27-103 (Reissue 2016), error may not be predicated upon a
ruling that excludes evidence unless a substantial right of the
party is affected, and in excluding evidence, the substance of
the evidence was made known to the judge by offer. Such an
offer of proof must be made at trial to be preserved for appeal,
since a motion in limine is not a final ruling on the admissibil-
ity of evidence. State v. Ferrin, supra.At the preliminary hearing, Wyrick’s counsel argued and
objected to the State’s motion in limine. But at trial, no offer of
proof was ever made regarding the toxicology reports to show
that Lane had drugs or alcohol in his system at the time of his
death. Since a motion in limine is a procedural step and no
additional offer of proof was made at trial, Wyrick did not pre-
serve the matter for appellate review. See State v. Castaneda,
287 Neb. 289, 842 N.W.2d 740 (2014).
3. Sufficiency of Evidence
(a) Additional Facts
Eyewitness testimony largely supports the same series of
events set forth in the statement of facts, and we do not repeat
it here.
Because the murder weapon was never recovered, the State
called forensic pathologist Michelle Elieff, who performed the
autopsy on Lane, to testify to Lane’s cause of death. Elieff
identified the cause of death as a single knife wound to Lane’s
chest. She testified the wound was consistent with a stab
wound, and she estimated the blade that caused the wound was
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Cite as 31 Neb. App. 815longer than 3 inches, because the knife wound measured 31⁄4
inches into Lane’s body and punctured his heart. She explained
that this type of injury was severe and that medical interven-
tion would likely not have been able to save Lane’s life. She
also conceded she could not identify what position Lane was
in when he was stabbed.
None of the trial testimony conclusively established whether
Lane was standing up or lying down when he was stabbed.
Jonathan Herrera witnessed the altercation that led to Lane’s
death but could not specify how it happened, just that Wyrick
fell on Lane while they were fighting. Another witness testi-
fied he watched what he believed to be the last punch of the
fight while both parties were standing, but later realized when
he was calling the 911 emergency dispatch service that Lane
was stabbed. None of the other witnesses saw the second
altercation.
The State presented video evidence from security cameras
surrounding the area where the altercations occurred. To sup-
port this evidence, the State called a forensic video technician
employed by the Lincoln Police Department, Jared Minary,
who had conducted a frame-by-frame analysis of the videos.
For trial, he created a presentation of the second altercation,
using software to take 15 pictures per second of video, and
zoomed in on each relevant frame.
The State originally offered an exhibit that included a short-
ened video of the incident and two frame-by-frame analyses.
One of those analyses contained markings by Minary of
where he believed the men’s arms were during the alterca-
tion. Wyrick’s counsel objected, and Minary was questioned
outside the presence of the jury so the district court could
determine the validity of Minary’s analysis. Minary explained
that his analysis required him to break down the footage
using software, which in turn created pictures from each
frame of the video. He then zoomed in and marked some of
those pictures to indicate where Wyrick’s and Lane’s arms
were to aid the jury in identifying what happened in the
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Cite as 31 Neb. App. 815video. Minary conceded that his analysis was not “perfectly
accurate.” The district court ultimately allowed the State to
convert the exhibit into two separate exhibits, one containing
the frame-by-frame analysis without the arm markings and
the other analysis (exhibit 34) containing the arm markings. It
allowed the State to use exhibit 34 with the arm markings for
demonstrative purposes only.
Back in the presence of the jury, Minary explained his
process again and discussed how he used his own judgment
to determine when there was enough clarity in the pictures to
determine where Wyrick’s and Lane’s arms were. Both videos
were played in the presence of the jury, and the video without
the arm markings was received into evidence.
(b) Standard of Review
[7] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. See State v. Keadle, 311
Neb. 919, 977 N.W.2d 207 (2022). 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. Id.(c) Analysis
(i) Second Degree Murder
Wyrick claims there was insufficient evidence to convict
him of second degree murder. He contends that there were
insufficient facts to support that he acted intentionally in stab-
bing Lane and that there were insufficient facts to support a
finding the stabbing did not occur upon sudden quarrel.
[8] To prove second degree murder, the State was required
to show beyond a reasonable doubt that Wyrick caused Lane’s
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Cite as 31 Neb. App. 815death “intentionally, but without premeditation.” Neb. Rev.
Stat. § 28-304(1) (Reissue 2016). Voluntary manslaughter is a
lesser degree offense, not a lesser-included offense, of second
degree murder. State v. Stack, 307 Neb. 773, 950 N.W.2d 611(2020). Thus, it is possible to commit second degree murder
without committing voluntary manslaughter. Id. Both second
degree murder and voluntary manslaughter involve intention-
ally killing; they are differentiated only by the presence or
absence of the sudden quarrel provocation. Id.[9,10] Second degree murder requires the killing to be
intentional. § 28-304(1). In the context of a criminal statute,
intentionally means willfully or purposefully, and not acci-
dentally or involuntarily. State v. Morton, 310 Neb. 355, 966
N.W.2d 57 (2021). It is a fundamental maxim of criminal law
that a trier of fact may infer that the defendant intended the
natural and probable consequences of the defendant’s volun-
tary acts. Id. Also, an intent to kill can be inferred from the
deliberate use of a deadly weapon in a manner reasonably
likely to cause death. State v. Escamilla, 291 Neb. 181, 864
N.W.2d 376 (2015).
Here, the evidence is sufficient to conclude that Wyrick
intentionally killed Lane. The intent to kill can be inferred by
Wyrick’s use of a knife; Elieff determined a knife wound to
be Lane’s cause of death. Wyrick admitted to taking the knife
from Lane and admitted to disposing of it after he used it to
stab Lane. Additionally, after reviewing the video evidence, a
jury could reasonably determine Wyrick stabbed Lane while
Lane was on the ground. When we view the evidence in the
light most favorable to the prosecution, the surveillance videos,
as well as Minary’s and Elieff’s testimony, provide enough
evidence for a reasonable trier of fact to find the requisite ele-
ments beyond a reasonable doubt.
[11] A sudden quarrel is a legally recognized and sufficient
provocation which causes a reasonable person to lose normal
self-control. State v. Smith, 284 Neb. 636, 822 N.W.2d 401- 832 -
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Cite as 31 Neb. App. 815(2012). The question is whether there existed reasonable and
adequate provocation to excite one’s passion and obscure and
disturb one’s power of reasoning to the extent that one acted
rashly and from passion, without due deliberation and reflec-
tion, rather than from judgment. Id. This test is an objective
one, and for our purposes, the question becomes whether,
after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could find there was not
reasonable and adequate provocation to excite one’s passion.
See id.Here, a rational trier of fact could find there was not rea­
sonable and adequate provocation to establish a sudden quar-
rel defense. A rational trier of fact could find beyond a rea­
sonable doubt that after disarming and distancing himself
from Lane, Wyrick was not adequately inflamed when he
pinned Lane and stabbed him. Wyrick had taken the knife from
Lane, Lane was on the ground, and Wyrick still had the means
to escape. Instead, he stabbed Lane in the chest. Although the
series of events from Lane’s attack to his stabbing occurred in
a matter of minutes, there is no firm time requirement in a sud-
den quarrel defense claim. See State v. Davis, 276 Neb. 755,
757 N.W.2d 367 (2008) (finding evidence sufficient for second
degree murder when defendant shot victim roughly 30 seconds
after initiating party began to walk away).
A rational trier of fact could have found that Wyrick acted
intentionally in stabbing Lane and that he did not meet the
elements of a sudden quarrel defense; therefore, there was suf-
ficient evidence to convict him of second degree murder.
(ii) Use of Deadly Weapon
Wyrick claims that the evidence was insufficient to prove
him guilty of the charge of use of a deadly weapon to commit
a felony, because the State failed to prove he acted intention-
ally and not upon sudden quarrel. He does not argue that he
did not use a deadly weapon to stab Lane. In our analysis
above, we found that a reasonable juror could have found
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Cite as 31 Neb. App. 815Wyrick stabbed Lane intentionally and not upon sudden quar-
rel; therefore, we do not revisit that argument here.
Wyrick also argues that “the evidence was overwhelming”
that he was acting in self-defense. Brief for appellant at 54.
But he does not assign that the jury erred in rejecting his
claim of self-defense; nor does he argue it in support of his
assigned error relating to the sufficiency of the evidence to
convict him of second degree murder. Because the evidence
was sufficient to convict him of second degree murder and
there is no doubt that the murder was accomplished by use
of a deadly weapon, we reject Wyrick’s argument that the
evidence was insufficient to convict him of use of a deadly
weapon to commit a felony.
For purposes of completeness, however, we note that
Wyrick’s success on a self-defense theory would have required
a jury to find that Lane threatened or attempted to cause death
or serious bodily harm to Wyrick, that Wyrick did not provoke
any threat or use of force by Lane with the intent of using
deadly force in response, that Wyrick reasonably believed that
his use of deadly force was immediately necessary to protect
himself, and that Wyrick either tried to get away or did not
try because he reasonably did not believe he could do so in
complete safety. See NJI2d Crim 7.3.
The video offered and received into evidence depicts Lane
on the ground when Wyrick makes what appears to be a lung-
ing motion at him. Considering the series of events, the fact
that Wyrick had possession of the knife while Lane lay 5 or 6
feet from him on the ground, and the size difference between
the two men, a reasonable jury could have determined that
Wyrick was not acting in self-defense when he stabbed Lane
in the chest. In fact, Wyrick admits in his brief on appeal
that the evidence was insufficient to support an acquittal
based on self-defense, stating, “Although there was evi-
dence to support some of the elements [of self-defense] from
other witness testimony, [Wyrick’s] testimony was crucial to
the jury’s findings on two elements.” Brief for appellant at
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Cite as 31 Neb. App. 81544-45. Accordingly, we find the evidence sufficient to support
Wyrick’s convictions.
4. Ineffective Assistance of Counsel
(a) Standard of Review
Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. State v.
Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). 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 assist­
ance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance. Id. When the claim is
raised on direct appeal, the appellant is not required to allege
prejudice; however, appellants must make specific allegations
of the conduct that they claim constitute deficient performance
by trial counsel. Id.(b) General Principles of Law
[12] Generally, to prevail on a claim of ineffective assist­
ance 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 his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense. State v. Anders, 311 Neb. 958, 977 N.W.2d
234 (2022). To show counsel’s performance was deficient, a
defend­ant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Id. To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient perform­
ance, the result of the proceeding would have been differ-
ent. Id.[13] An ineffective 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
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Cite as 31 Neb. App. 815determination 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 a claim
was brought before the appellate court. State v. Stelly, 304
Neb. 33, 932 N.W.2d 857 (2019). The fact that an ineffective
assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Anders, supra.The determining factor is whether the record is sufficient to
adequately review the question. Id. The record is sufficient if it
establishes either that trial counsel’s performance was not defi-
cient, that the appellant will not be able to establish prejudice,
or that trial counsel’s actions could not be justified as a part of
any plausible trial strategy. State v. Stelly, supra.
Here, Wyrick is represented by counsel different from his
trial counsel. When a defendant is represented by counsel dif-
ferent from his or her trial counsel on direct appeal, the defend­
ant must raise any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. State v. Golyar, 301
Neb. 488, 919 N.W.2d 133 (2018).
(c) Failure to Call Wyrick to Testify
at Motion to Suppress Hearing
Wyrick argues his trial counsel was ineffective because he
failed to call Wyrick to testify during the motion to suppress
hearing so he could testify about his current and historical
mental health, medication compliance, and understanding of
his Fifth Amendment rights. Furthermore, Wyrick claims his
trial counsel never discussed with him the possibility of testify-
ing at the hearing.
[14-16] A defendant has a fundamental constitutional right
to testify. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714(2017). The right to testify is personal to the defendant and
cannot be waived by defense counsel’s acting alone. Id. But
a trial court does not have a duty to advise the defendant of
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Cite as 31 Neb. App. 815his or her right to testify or ensure that the defendant waived
this right on the record. Id. Instead, defense counsel bears the
primary responsibility for advising a defendant of his or her
right to testify or not to testify, of the strategic implications of
each choice, and that the choice is ultimately for the defendant
to make. Id.Wyrick’s claim on direct appeal is raised with enough par-
ticularity to allege deficient performance. As described above,
to have an ineffective assistance of counsel claim on this
issue, Wyrick’s testimony would have had to show that he was
coerced into waiving his Miranda rights or that the waiver
was not knowingly and intelligently made. The record is insuf-
ficient to establish whether trial counsel’s performance was
justified as a part of a plausible trial strategy. Therefore, we are
unable to address Wyrick’s claim on direct appeal that his trial
counsel was ineffective for failing to call him to testify at the
motion to suppress hearing.
(d) Failure to Call Wyrick to Testify at Trial
Wyrick argues his trial counsel failed to adequately explain
the benefits of testifying at trial, which prevented Wyrick
from testifying to present his self-defense claim. For the same
reasons stated above regarding Wyrick’s claim relating to the
motion to suppress, Wyrick’s claim cannot be resolved on
direct appeal, because it implicates matters outside of the
record. See State v. Hibler, 302 Neb. 325, 923 N.W.2d 398(2019). Wyrick and the State both acknowledge that this claim
cannot be resolved on direct appeal. We agree.
(e) Failure to Call Cimpl-Bohn to Testify
at Motion to Suppress Hearing
Wyrick claims his trial counsel was ineffective for failing to
call Cimpl-Bohn to testify at the motion to suppress hearing.
He argues that Cimpl-Bohn’s testimony would have established
Wyrick’s impaired cognitive functioning, which would have
established that he did not voluntarily, knowingly, and intel-
ligently waive his rights.
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Cite as 31 Neb. App. 815[17] The decision whether to call a particular witness is a
decision for counsel to make as a matter of trial strategy, and
even if that choice proves unproductive, it will not sustain a
finding that trial counsel was ineffective without more. See
State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014).
When reviewing trial counsel’s strategic decisions, there is
a strong presumption that counsel’s actions were reason-
able. See State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d
865 (2018).
We determined above that Wyrick’s waiver of his Miranda
rights was made voluntarily because there was no evidence of
police coercion. Therefore, regardless of Cimpl-Bohn’s testi-
mony, this determination would remain unaffected. However,
the waiver must also have been made knowingly and intel-
ligently. This requires a determination that the defendant pos-
sessed the capacity to understand and act in response to
the warnings given by an interrogating officer. See State v.
Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). Although
the video of Wyrick’s interrogation and Agnew’s testimony
support a determination that the waiver was made knowingly
and intelligently, the record is insufficient to determine what
Cimpl-Bohn would have testified to in this regard and why trial
counsel did not call her to testify. Therefore, we are unable to
address this claim on direct appeal.
(f) Failure to Preserve Issue of
Lane’s Drug Ingestion
Wyrick claims his trial counsel was ineffective by not pre-
serving the issue of presence of drugs or alcohol in Lane’s
system at the time of his death and the presence of drug para-
phernalia in his apartment for appellate review. Before trial,
Wyrick’s trial counsel objected to the State’s motion in limine
that would bar any evidence at trial about drugs in Lane’s
system at his time of death. Thus, as explained above, to
preserve Wyrick’s objection to the exclusion of the evidence,
trial counsel should have objected during the trial and made
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Cite as 31 Neb. App. 815an offer of proof as to the drugs Lane had in his system. Since
trial counsel failed to make this showing, we did not reach the
merits of Wyrick’s claim that the court erred in granting the
State’s motion in limine. He claims that this omission trans-
lates to a finding of ineffectiveness of counsel.
[18] Wyrick’s claim is without merit because, even assum-
ing his trial counsel was ineffective for failing to preserve
the issue of whether Lane had alcohol or drugs in his system
at the time of death, Wyrick cannot prove it prejudiced him.
To establish self-defense, a defendant must have a reasonable
and good faith belief that the force used was necessary. State
v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on
other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d
31 (1998). A defendant’s claim of self-defense is a question of
fact for the jury. Id. Thus, the question of whether a defendant
had a reasonable and good faith belief in the necessity to use
force is a question of fact to be determined by a jury and is
not to be determined solely by the defendant’s own subjective
belief in the necessity to use force. Id.Whether Wyrick believed the use of deadly force was nec-
essary and the reasonableness of that belief if so held were
to be determined by the jury based upon the actions of Lane.
These actions were observable to the jury from the video of
the altercation and supplemented by the testimony of Minary
and the eyewitnesses. It was Lane’s actions, and not whether
the actions were drug induced, that determined the validity of
Wyrick’s self-defense claim. Therefore, even if the jury had
been informed that Lane had drugs in his system at the time of
the altercation, Lane’s actions upon which Wyrick predicated
his claim of self-defense remained the same.
Regarding Wyrick’s claim that counsel was ineffective for
failing to preserve the issue of drug paraphernalia located in
Lane’s apartment, this issue was not included in the State’s
motion in limine. Rather, Investigator Chris Fields testified
on direct examination that drug paraphernalia was located
in Lane’s apartment. On cross-examination, defense counsel
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Cite as 31 Neb. App. 815attempted to inquire into the nature of the drug paraphernalia
and the State objected on the basis of relevancy. Before the
court made its ruling, counsel met with the court outside the
presence of the jury to make their arguments. Wyrick’s counsel
stated that he was not intending to elicit testimony that Lane
had ingested drugs prior to the altercation; rather, he was
inquiring only into the nature of the paraphernalia located. The
court ultimately sustained the relevancy objection.
The absence of an offer of proof by Wyrick’s counsel does
not constitute ineffective assistance of counsel, because we
agree with the district court that the evidence sought was irrel-
evant. Therefore, regardless of the nature of the paraphernalia
found, such evidence was inadmissible and counsel was not
ineffective for failing to pursue its admission beyond the man-
ner in which he attempted at trial.
(g) Failure to Advise Wyrick
of Plea Negotiations
Wyrick claims that prior to trial, his counsel informed him
that there was a plea offer in which he could plead guilty
to second degree assault, but he rejected it because counsel
advised him there was a “‘90 percent’” chance of winning at
trial. Brief for appellant at 43. Shortly before trial, the State
and trial counsel acknowledged on the record that there was a
second plea offer in which Wyrick could plead guilty to man-
slaughter, but that he had rejected the offer. Wyrick argues his
counsel never relayed this offer to him. As a result, Wyrick
claims his counsel was ineffective based upon his failure to
communicate the manslaughter plea offer, failure to compe-
tently advise him regarding the second degree assault plea
offer, and failure to advise him about the probability of his
conviction of more serious charges at trial.
Wyrick’s claim cannot be resolved on direct appeal, because
it implicates matters outside of the record. See State v. Hibler,
302 Neb. 325, 923 N.W.2d 398 (2019). Wyrick and the State
both acknowledge that this claim cannot be resolved on direct
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Cite as 31 Neb. App. 815appeal. We agree. See State v. Warner, 312 Neb. 116, 977
N.W.2d 904 (2022) (holding claim of ineffective assist­ance
of counsel cannot be resolved when claim arises about con-
versations with trial counsel where record is devoid of what
occurred in those conversations).
(h) Failure to Call Mattie McIntosh as Witness
Wyrick argues trial counsel should have called Mattie
McIntosh—an expert witness in the field of audio and visual
technology who the district court previously approved for pay-
ment—to rebut Minary’s testimony. Essentially, Wyrick con-
tests the validity of Minary’s testimony and claims McIntosh
could have used her expertise to rebut Minary’s analysis of
the frame-by-frame video.
[19] A reasonable strategic decision to present particular
evidence, or not present particular evidence, will not, without
more, sustain a finding of ineffective assistance of counsel.
State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014).
The decision to call a witness is a matter of trial strategy, so
the pertinent questions are whether failing to call McIntosh
could not be justified as a plausible trial strategy or failing
to call McIntosh could not have prejudiced Wyrick. See State
v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
The record is insufficient to determine either question, as it
is unclear what McIntosh could have testified to regarding
Minary’s testimony.
The State argues that the record is sufficient to determine
that failing to call McIntosh could not prejudice Wyrick. The
State claims that because no witnesses at trial could defini-
tively say whether Lane was on the ground or standing when
he was stabbed, there is not a reasonable probability the result
of the trial would have been different if McIntosh was called
to testify. The record contradicts this assertion.
The State was allowed to present for demonstrative pur-
poses a frame-by-frame analysis of the altercation in which
Minary marked what he believed to be the two men’s arms.
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Cite as 31 Neb. App. 815In that analysis, he depicted Lane on the ground at the time
Wyrick made a stabbing motion at Lane’s chest. Although
the exhibit was not provided to the jury during deliberations,
it was played during trial and the State showed portions of
it again during its closing argument. Wyrick’s counsel pro-
vided no expert testimony to contradict Minary’s opinions as
expressed in the exhibit despite a court order allowing pay-
ment for the retention of a video and audio expert.
The record does not reveal whether the defense expert was
retained, what her opinion was if she was retained, or why
counsel did not call her to testify. Absent this information,
we are unable to conclude that Wyrick was not prejudiced
by counsel’s decision not to call a video and audio expert to
rebut Minary’s testimony. Accordingly, we cannot address this
issue on direct appeal.
(i) Failure to Call David Young as Witness
Wyrick argues trial counsel should have called David
Young—an expert witness in the field of forensic pathology
who was previously approved for payment by the district
court—to rebut Elieff’s testimony. Wyrick claims Young would
have rebutted Elieff’s testimony about the positioning of the
stab wound, which Wyrick argues would have resolved the
conflicting testimony about whether Lane was stabbed when
lying down or standing up.
For the same reasons the record is insufficient to determine
if trial counsel was ineffective for failing to call McIntosh, the
record is insufficient to determine if trial counsel was ineffec-
tive for failing to call Young.
(j) Failure to Adequately Cross-Examine Agnew
Wyrick assigns his trial counsel was ineffective because
he failed to adequately cross-examine Agnew at trial about
Wyrick’s mental state during the interrogation. He argues that
counsel should have inquired about Agnew’s familiarity with
Wyrick and Wyrick’s history, what Agnew meant when he
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Cite as 31 Neb. App. 815testified at the suppression hearing that Wyrick “elaborated
a little bit more” on his stay at the Lincoln Regional Center,
and what Agnew’s experience was in dealing with incompetent
persons. He concludes, “The jury had no way of examining
whether the statements were freely, intelligently, and know-
ingly waived.” Brief for appellant at 47.
We determine that Wyrick cannot prove prejudice as a result
of the inquiries he claims counsel should have made. The jury
was shown a video of the interrogation. In that video, Agnew
states he had no background on Wyrick; therefore, there was
no need to inquire on cross-examination what background
he had on Wyrick. Furthermore, because the jury watched
the interrogation, it was unnecessary to inquire of Agnew
how Wyrick further “elaborated” on his stay at the Lincoln
Regional Center during the interrogation. As Wyrick correctly
states in his brief, whether the statements were freely, intelli-
gently, and knowingly waived was a determination to be made
by the jury. Because the jurors had the opportunity to view the
interrogation, they were able to make that determination inde-
pendently of any additional cross-examination of Agnew, and
we fail to see how further questioning would have affected
that decision.
Wyrick also argues that trial counsel should have made an
offer of proof about Wyrick’s mental condition at the time
of interrogation to rebut the State’s contention that his state-
ments were made voluntarily, knowingly, and intelligently.
However, he did not assign this as error. An error must be
specifically assigned and argued to be considered by an
appellate court. State v. Jennings, 312 Neb. 1020, 982 N.W.2d
216 (2022).
(k) Failure to Object to Fields’
Hearsay Testimony
Wyrick argues he was denied his 6th and 14th Amendment
rights to confront witnesses against him because Fields testi-
fied that he was told that Wyrick gave a BB gun located in
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Cite as 31 Neb. App. 815Sanders and Reikofski’s apartment to one of the apartment
residents after the July 13, 2020, altercation and further testi-
fied that one of the witnesses reported that Wyrick appeared to
be in possession of a handgun at the time of the altercation. He
claims that trial counsel’s failure to object to Fields’ testimony
had no reasonable strategic basis and that therefore, it amounts
to ineffective assistance of trial counsel.
[20] Even assuming that the statements made by Fields
were inadmissible hearsay, trial counsel’s failure to object
does not amount to reversible error, because the testimony
about the BB gun was cumulative. Cumulative evidence means
evidence tending to prove the same point of which other evi-
dence has been offered. State v. Ramirez, 287 Neb. 356, 842
N.W.2d 694 (2014). The erroneous admission of evidence is
not reversible error if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding of
the trier of fact. Id.There was already properly admitted evidence to support
Fields’ testimony. Herrera testified that he saw Wyrick with a
“pistol.” The video evidence shows Wyrick walking by Lane’s
apartment and lifting up his shirt to show a weapon. Although
the video does not clearly show the hilt of a gun, Herrera’s tes-
timony supports the finding that Wyrick had the BB gun tucked
in his waistband. Agnew’s testimony further supports this find-
ing, as he described Wyrick’s motion of lifting up his shirt and
putting his hand on the object in his waistband indicates that
person is threatening or trying to intimidate someone—usually
with a firearm. Overall, there was relevant, properly admitted
evidence to show Wyrick possessed a BB gun even without the
hearsay testimony; thus, Wyrick cannot show prejudice result-
ing from Agnew’s statement that he was told Wyrick had a gun
at the time of the altercation.
Likewise, Wyrick is unable to prove prejudice from Agnew’s
testimony that he was told the BB gun found in the apart-
ment had been given to one of the residents by Wyrick after
the altercation. There was competent evidence to support a
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Cite as 31 Neb. App. 815determination that Wyrick had a gun on him at the time of the
altercation, and the fact that a gun was located in the apart-
ment does not affect the ultimate determination that Wyrick
stabbed Lane. We therefore reject this assigned error.
(l) Failures Relating to Exhibit 34
Wyrick makes two arguments to explain how his trial coun-
sel was ineffective regarding exhibit 34, the frame-by-frame
analysis with arm position markings. First, he claims trial
counsel was ineffective for not objecting to testimony the State
elicited from Minary that his frame-by-frame analysis was
derived from expertise. Second, trial counsel was ineffective
for not seeking a limiting instruction for exhibit 34.
As explained above, the district court admitted exhibit 34
for demonstrative purposes only because Minary’s analysis
was not a recognized scientific method of evaluating video.
During the State’s examination, the State asked Minary if the
analysis was completed with his “expert opinion in this line
of work.” Wyrick claims that trial counsel’s failure to object
prejudiced him because it allowed Minary to testify under the
guise of an expert.
[21] The record is insufficient to address Wyrick’s claim.
The decision whether to object at trial is a part of trial strat-
egy. State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013).
Trial counsel is afforded due deference to formulate trial
strategy and tactics, and there is a strong presumption that
counsel acted reasonably. Id. There is nothing in the record to
determine whether Wyrick’s trial counsel consciously chose
not to object as a part of its trial strategy, so we cannot reach
Wyrick’s claim.
Wyrick also argues that because demonstrative exhibits
are not substantive evidence, his trial counsel prejudiced
him by not requesting a limiting instruction for exhibit 34.
Although demonstrative exhibits are not substantive evidence,
limiting instructions are generally used when the demonstra-
tive exhibits are sent with the jury for deliberations. State v.
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Cite as 31 Neb. App. 815Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013). In State
v. Pangborn, supra, the court held that a limiting instruction
is a valuable protection when the jury can take the exhibit
into deliberation, but other protections include requiring the
proponent of the exhibit to lay foundation for its use outside
the presence of the jury, having the individual who prepared
the exhibit testify concerning the exhibit, and allowing exten-
sive cross-examination of the individual who prepared the
exhibit. Additionally, a trial judge possesses broad discre-
tion to make discovery and evidentiary rulings conducive to
the conduct of a fair and orderly trial, as well as exercising
reasonable control over the mode and order of interrogating
witnesses and presenting evidence. Id.Here, exhibit 34 was not sent with the jury during deliber­
ations. Despite the exhibit’s not being sent into jury delib-
erations, trial counsel still exercised the same precautions laid
out in Pangborn. The State was required to lay foundation
outside the presence of the jury after trial counsel objected
to Minary’s testimony and exhibit 34. Minary was asked to
explain at length his process in creating the frame-by-frame
analysis. Trial counsel also extensively cross-examined
Minary. Because of trial counsel’s objection and subsequent
voir dire of Minary, the district court rejected his analy-
sis as expertise and, instead, required the State to separate
the unmarked and marked versions of the clip, providing
only the unmarked version to the jury during deliberations.
Altogether, the record shows Wyrick cannot show prejudice
resulting from the absence of a limiting instruction.
(m) Failure to Properly Preserve Wyrick’s
Motion to Suppress
Wyrick argues that if this court finds trial counsel did not
properly renew his motion to suppress, then we should deter-
mine if that failure amounts to ineffective assistance of counsel.
But the motion to suppress was preserved because trial counsel
objected to the interview tape at trial. See State v. Montoya,
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Cite as 31 Neb. App. 815305 Neb. 581, 941 N.W.2d 474 (2020). And as addressed
above, the district court did not err in denying the motion to
suppress. Therefore, there is no claim to address here.
(n) Failure to Strike Jurors
Wyrick claims his trial counsel was ineffective for failing
to strike two jurors who stated during voir dire that they had
personal familiarity with the prosecuting attorneys. One juror
had met the prosecuting attorney while working at a daycare
at the prosecuting attorney’s church, and the other worked in
“IT” for the city of Lincoln. Wyrick argues that both jurors
were more apt to view the State’s argument as persuasive
because of this personal familiarity, so not striking the jurors
was ineffective.
The retention or rejection of a venireperson as a juror is
a matter of discretion with the trial court. State v. Vela, 297
Neb. 227, 900 N.W.2d 8 (2017). In State v. Vela, supra, the
defendant alleged a juror’s relationship with the prosecutor as
his pastor indicated he could not have been fair and impartial.
But the Nebraska Supreme Court held that since the juror
stated during voir dire that his profession as a pastor would
not affect his decisions as a juror, the district court would not
have abused its discretion by rejecting a challenge made by the
defendant’s counsel. Id.Here, the jurors’ relationship with the prosecuting attorney
are less personal than the relationship in Vela. Additionally,
each juror disclosed familiarity with the prosecutors during
voir dire and were subjected to further inquiry. Each juror
denied that the relationship would impact the ability to be
impartial. Thus, Wyrick cannot prove he was prejudiced by
those serving on the jury.
(o) Failure to Object to Trial Schedule
Wyrick argues scheduling his trial for an aggressive sched-
ule the week before Christmas prejudiced him and undermined
his due process and constitutional rights. He claims that the
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Cite as 31 Neb. App. 815trial’s timing caused his trial counsel not to cross-examine wit-
nesses or call any witnesses on Wyrick’s behalf.
Wyrick’s claim is without merit, and he cannot show
prejudice. Trial courts have a wide discretion to ensure the
timely disposition of cases. State v. Schreiner, 276 Neb. 393,
754 N.W.2d 742 (2008). The trial began December 17, 2021,
and the district court told prospective jurors the trial would
take 2 to 3 days to complete—which it did. Trial then took
place on December 20 and 21, with jury deliberations begin-
ning and ending on December 22. There is no indication that
the trial impacted any juror’s holiday. All jurors were asked
if they had any major commitment that would prevent them
from serving, and the one juror indicating a major conflict
was excused.
Wyrick’s counsel was provided an opportunity to present
evidence following the close of the State’s case, but advised
the court it would not be calling any witnesses. The jury was
excused early that day. The record does not support that coun-
sel was precluded from presenting Wyrick’s case due to sched-
uling pressures or that the ability to cross-examine witnesses
was affected. The record therefore refutes Wyrick’s assertion
that the scheduling of his case during the week of Christmas
had a prejudicial effect on him.
5. Excessive Sentences
(a) Additional Facts
Wyrick was convicted of second degree murder and use of
a deadly weapon to commit a felony. At the sentencing hear-
ing, Wyrick argued that he acted in self-defense, despite what
the jury found. Wyrick contended that although he regrets the
events of that day, he still believes that if he had not done what
he did that day, he would not be alive. He asked the district
court to consider all the facts and circumstances when consid-
ering its sentence.
The district court noted that while mental health issues
may have played a role in the altercations, it would not be the
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Cite as 31 Neb. App. 815first time Wyrick has acted in a violent manner. It discussed
Wyrick’s extensive criminal history and history of violence.
The district court conceded that it did not believe Wyrick
intended to kill Lane, but the sentence must reflect the seri-
ousness of the crimes. It then summarized the relevant factors
it was required to consider by law and determined probation
would depreciate the seriousness of the crimes committed.
(b) Standard of Review
A sentence imposed within the statutory limits will not be
disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022).
(c) Discussion
Wyrick was sentenced to 22 to 30 years’ imprisonment for
his second degree murder conviction and 4 to 8 years’ impris-
onment for his use of a deadly weapon to commit a felony
conviction. Second degree murder is a Class IB felony, which
carries a minimum sentence of 20 years’ imprisonment and a
maximum sentence of life imprisonment. § 28-304(2); Neb.
Rev. Stat. § 28-105 (Reissue 2016). Use of a deadly weapon,
other than a firearm, to commit a felony is a Class II felony,
which carries a minimum sentence of 1 year’s imprisonment
and a maximum sentence of 50 years’ imprisonment. Neb. Rev.
Stat. § 28-1205 (Reissue 2016); § 28-105. Since Wyrick’s sen-
tences are within the statutory guidelines, our review is limited
to abuse of discretion.
[22] An abuse of discretion takes place when a sentencing
court’s reasons or rulings are clearly untenable and unfairly
deprive the litigant of a substantial right and a just result. State
v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
[23-25] When imposing a sentence, a sentencing judge
should customarily consider the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
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Cite as 31 Neb. App. 815nature of the offense and (8) the amount of violence involved
in the commission of the crime. State v. Blake, supra. The
sentencing court is not required to articulate on the record that
it has considered each sentencing factor or make specific find-
ings as to the facts pertaining to the factors or weight given to
them. State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
The sentencing court is not limited to any mathematically
applied set of factors, but the appropriateness of the sentence
is necessarily a subjective judgment that includes the sentenc-
ing judge’s observations of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life. Id.Wyrick was 28 years old at the time of sentencing. He
dropped out of school after completing the 11th grade. Wyrick
has been diagnosed with schizoaffective and bipolar disor-
ders. Prior to the altercation that led to the present case, it
was determined that Wyrick was not competent to stand trial.
Cimpl-Bohn concluded he was not capable of meeting the
stresses of trial without experiencing a breakdown in ratio-
nality or judgment. During his interview with police, Wyrick
told investigators he was receiving monthly injections to treat
his mental health conditions. Six months after Cimpl-Bohn’s
determination, Wyrick was evaluated again and found com­
petent to stand trial. The presentence investigation report con-
veys that he appears to be in good physical and mental health
and is still taking his medications.
Wyrick has a lengthy criminal history beginning as a juve-
nile. As a juvenile, Wyrick was convicted of assault and injury
to property belonging to another and was ordered into out-of-
home placement for uncontrollable behavior. Wyrick grew up
in foster care in California but was eventually adopted by a
family in Nebraska. At the age of 16, he briefly moved back
to California to live with his biological family but returned to
Nebraska shortly thereafter.
As an adult, Wyrick has been convicted multiple times for
disturbing the peace, trespass, destruction of property, and
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Cite as 31 Neb. App. 815assault-related crimes. Additionally, he admitted regularly
using marijuana and methamphetamine before his incarcera-
tion, but at the time of his presentence investigation, he
scored a low risk of recidivism for illegal substances given
the length of time since he had last used drugs or alcohol.
He estimated that he had been using methamphetamine
for the past 7 years. When he was arrested, he was home-
less and unemployed. The presentence investigation report
placed Wyrick in the high risk level for recidivism, with high
risk factors in the categories of criminal history, education/
employment, leisure/recreation, companions, procriminal
attitude/orientation, and antisocial pattern.
Wyrick’s crime involved stabbing another person during an
altercation. It is a violent offense. Although the motivation is
unclear because Wyrick still claims he acted in self-defense,
the events surrounding the stabbing also show violent tenden-
cies. And Wyrick acknowledges his conduct is what caused
Lane’s death but minimizes his role by blaming Lane for put-
ting him “through this.”
Wyrick claims that the district court abused its discretion
in its sentences by not considering all the relevant sentencing
factors and considering only his criminal history and the seri-
ousness of the offenses. But the district court noted at the sen-
tencing hearing that it had read the presentence investigation
report and considered Wyrick’s condition. Furthermore, the
district court is under no duty to explain on the record that it
considered each factor. See State v. Greer, 309 Neb. 667, 962
N.W.2d 217 (2021). The district court considered the requisite
factors; and based upon our review of the record, it did not
abuse its discretion in sentencing Wyrick.
V. CONCLUSION
For the aforementioned reasons, we affirm Wyrick’s con-
victions and sentences. The record is insufficient to address
his claims of ineffective assistance of counsel relating to not
calling Wyrick to testify at the motion to suppress hearing
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Cite as 31 Neb. App. 815or at trial, not calling Cimpl-Bohn to testify at the motion
to suppress hearing regarding his mental state, not properly
communicating with Wyrick regarding plea offers, not calling
McIntosh or Young to testify, and failing to object to Minary’s
testimony; therefore, these claims are preserved.
Affirmed.