State v. Vazquez
Citation319 Neb. 192
Date Filed2025-06-20
DocketS-22-495
Cited13 times
StatusPublished
Full Opinion (html_with_citations)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/20/2025 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. VAZQUEZ
Cite as 319 Neb. 192
State of Nebraska, appellee, v.
Felipe N. Gonzalez Vazquez, appellant.
___ N.W.3d ___
Filed June 20, 2025. No. S-22-495.
1. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial courtâs decision whether to grant a motion for mistrial
unless the trial court has abused its discretion.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. Convictions: Evidence: Appeal and Error. In 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.
5. 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.
6. ____: ____. 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 counselâs alleged deficient
performance.
7. Effectiveness of Counsel: Records: Appeal and Error. The record
on direct appeal is sufficient to conclusively determine a claim of
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ineffective assistance of counsel if it establishes either that trial coun-
selâs performance was not deficient, that the appellant will not be able
to establish prejudice as a matter of law, or that trial counselâs actions
could not be justified as a part of any plausible trial strategy.
8. ____: ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if the record is insufficient to address it.
9. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
10. Motions for Mistrial: Appeal and Error. An appellate court reviews
rulings on motions for mistrial for an abuse of discretion.
11. Motions for Mistrial: Juries: Appeal and Error. Where a motion
for mistrial is premised on adducing evidence that violates an order in
limine, an appellate court will consider that the trial judge was in the
best position to assess the potential impact of such evidence on the jury.
12. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, a defendant faces a higher thresh-
old than merely showing a possibility of prejudice. The defendant must
prove the alleged error actually prejudiced him or her.
13. Rules of Evidence: Words and Phrases. Under Neb. Evid. R. 401,
Neb. Rev. Stat. § 27-401 (Reissue 2016), relevant evidence means evi-
dence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.
14. Evidence: Proof. The bar for establishing evidentiary relevance is not
a high one and requires only the probative value of the evidence to be
something more than nothing.
15. Homicide: Evidence: Intent. Evidence of lack of remorse is relevant to
the issue of whether a killing is done purposely and with deliberate and
premeditated malice.
16. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.
Whether cumulative error deprived a criminal defendant of his or her
Sixth Amendment right to a trial by an impartial jury presents a question
of law to be reviewed de novo.
17. Constitutional Law: Jury Trials: Appeal and Error. In a criminal
jury trial, although one or more trial errors might not, standing alone,
constitute prejudicial error, their cumulative effect may be to deprive
the defendant of his or her constitutional right to a public trial by an
impartial jury.
18. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendantâs trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
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issue of trial counselâs ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
19. ____: ____: ____: ____. To raise an ineffective assistance of counsel
claim on direct appeal, the defendant must allege deficient performance
with enough particularity for (1) an appellate court to make a determina-
tion of whether the claim can be decided upon the trial record and (2)
a district court later reviewing a petition for postconviction relief to
recognize whether the claim was brought before the appellate court.
20. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
21. 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
his or her counselâs performance was deficient and that this deficient
performÂance actually prejudiced the defendantâs defense.
22. ____: ____. To show that counselâs performance was deficient, a defendÂ
ant must show that counselâs performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
23. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counselâs deficient performance, the result of the proceeding
would have been different.
24. Proof: Words and Phrases. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
25. Effectiveness of Counsel: Proof. A court may examine performance
and prejudice in any order and need not examine both prongs if a
defendÂant fails to demonstrate either.
26. Effectiveness of Counsel: Trial: Appeal and Error. When review-
ing claims of alleged ineffective assistance of counsel, trial counsel is
afforded due deference to formulate trial strategy and tactics.
27. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
28. Effectiveness of Counsel: Appeal and Error. In determining whether
there is a reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the proceeding,
an appellate court may consider the strength of the admissible evidence
relating to the controverted issues in the case.
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Cite as 319 Neb. 19229. Rules of Evidence. Under Neb. Evid. R. 403,Neb. Rev. Stat. § 27-403
(Reissue 2016), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by consideration of undue delay,
waste of time, or needless presentation of cumulative evidence.
30. Criminal Law: Trial: Prosecuting Attorneys. Prosecutors have a duty
to conduct criminal trials in a manner that provides the accused with
a fair and impartial trial and may not inflame the jurorsâ prejudices or
excite their passions against the accused. This rule includes intentionally
eliciting testimony from witnesses for prejudicial effect.
31. Trial: Homicide: Photographs. Gruesome crimes produce gruesome
photographs, and photographs illustrating a controverted issue in a
homicide case are admissible even if gruesome, so long as the probative
value is not outweighed by the prejudicial effect.
32. Juries: Prosecuting Attorneys. Prosecutors should not make statements
or elicit testimony intended to focus the juryâs attention on the qualities
or personal attributes of the victim, unless such facts are relevant to the
criminal prosecution.
33. Trial: Attorneys at Law: Evidence. A party is allowed considerable
latitude in making an opening statement, and it is permissible for the
State to discuss what the evidence may show.
34. Effectiveness of Counsel. Trial counsel cannot be ineffective for failing
to make a meritless motion, objection, or argument.
35. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966), pro-
hibits the use of statements derived during custodial interrogation unless
the prosecution demonstrates the use of procedural safeguards that are
effective to secure the privilege against self-incrimination.
36. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
The term âinterrogationâ under Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966), refers not only to express ques-
tioning, but also to any words or actions on the part of the police that
the police should know are reasonably likely to elicit an incriminating
response from the suspect.
37. Right to Counsel: Self-Incrimination. If a suspect indicates that he or
she wishes to remain silent or that he or she wants an attorney, the inter-
rogation must cease.
38. ____: ____. To require cessation of custodial interrogation, the invoca-
tion of the right to counsel must be unambiguous and unequivocal.
39. Miranda Rights: Police Officers and Sheriffs: Self-Incrimination.
The desire to cut off questioning must be made with sufficient clar-
ity that a reasonable police officer under the circumstances would
understand the statement as an invocation of the right to remain silent.
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Cite as 319 Neb. 192
Ambiguous or equivocal statements that might be construed as invok-
ing the right to silence do not require the police to discontinue their
questioning.
40. Right to Counsel: Self-Incrimination. It is a mixed question of law
and fact whether there has been an unambiguous invocation of the right
to remain silent or to have counsel.
41. Self-Incrimination: Police Officers and Sheriffs: Appeal and Error.
In determining whether there has been a clear invocation of the right
to remain silent, an appellate court reviews the totality of the cir-
cumstances surrounding the statement in order to assess the words in
context. Relevant facts include the words spoken by the defendant and
the interrogating officer, the officerâs response to the suspectâs words,
the speech patterns of the suspect, the content of the interrogation, the
demeanor and tone of the interrogating officer, the suspectâs behavior
during questioning, the point at which the suspect allegedly invoked the
right to remain silent, and who was present during the interrogation.
42. Trial: Rules of Evidence: Police Officers and Sheriffs. Statements
made by law enforcement in a recorded interview that implicate the
defendantâs credibility are not categorically inadmissible. Instead, they
are to be analyzed under the ordinary rules of evidence, particularly
Neb. Rev. Stat. §§ 27-401 and 27-403 (Reissue 2016).
43. Jury Instructions: Police Officers and Sheriffs. Upon request, a
defendant is entitled to a limiting instruction that statements by law
enforcement officers on the veracity of the defendant or other witness
are to be considered only for the permissible purpose of providing con-
text to the defendantâs statements in an interview.
44. Criminal Law: Rules of Evidence: Other Acts. In a criminal case,
Neb. Evid. R. 404(1), Neb. Rev. Stat. § 27-404(1) (Cum. Supp. 2024),
operates as a broad exclusionary rule of relevant evidence that speaks
to a criminal defendantâs propensity to have committed the crime or
crimes charged. Meanwhile, rule 404 operates as an inclusionary rule of
evidence by providing that evidence that raises a propensity inference is
admissible for other proper purposes, including proof of motive, intent,
preparation, or absence of mistake or accident.
45. Rules of Evidence: Other Acts: Words and Phrases. Evidence that is
offered for a proper purpose under Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2024), is often referred to as having âspecialâ
or âindependentâ relevance, meaning its relevance does not depend upon
its tendency to show propensity.
46. Criminal Law: Rules of Evidence: Other Acts: Proof: Evidence.
Under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp.
2024), proof of another distinct substantive act is admissible in a crimi-
nal prosecution when there is some legal connection between the two
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upon which it can be said that one tends to establish the other or some
essential fact in issue. In other words, evidence of other crimes, wrongs,
or acts may be admitted where the evidence is so related in time, place,
and circumstances to the offense charged as to have substantial proba-
tive value in determining the accusedâs guilt of the offense in question.
47. Rules of Evidence. An admission showing consciousness of guilt falls
outside the scope of Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2024).
48. Witnesses. It is generally improper for a witness to testify as to the
credibility of another witness.
49. Prosecuting Attorneys: Witnesses. It is improper for a prosecutor to
inquire of a witness whether another person may or may not be telling
the truth.
50. Juror Qualifications: Parties. During voir dire, parties may generally
ask hypothetical questions designed to determine whether prospective
jurorsâ preconceived attitudes or biases would prevent them from fol-
lowing the law or applying a legal theory or defense.
51. Juror Qualifications: Attorneys at Law. Counsel may not use voir
dire to preview prospective jurorsâ opinions of the evidence that will
be presented. Nor may counsel secure in advance a commitment from
prospective jurors on the verdict they would return, given a set of hypo-
thetical facts.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Michael T. Hilgers, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Felipe N. Gonzalez Vazquez (Vazquez) fired multiple gun-
shots during a standoff with law enforcement officers. Two
officers were injured in the shooting, and one officer died from
his injuries. Vazquez was charged with first degree murder
and other related felonies, and a jury found him guilty on all
counts. He was sentenced to prison.
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STATE V. VAZQUEZ
Cite as 319 Neb. 192
In this direct appeal, Vazquez assigns error to several rul-
ings by the trial court, argues that cumulative error entitles him
to a new trial, and argues that the evidence was insufficient to
support two of his convictions. Additionally, Vazquez asserts
17 claims of ineffective assistance of trial counsel. We affirm
his convictions and sentences.
I. FACTS
1. Standoff
On August 26, 2020, Lincoln police investigator Luis Mario
Herrera and seven other law enforcement officers went to a
residence in Lincoln, Nebraska, to arrest 17-year-old Vazquez
on two warrants. One was for escaping from a juvenile institu-
tion, and the other was for felony assault relating to a stabbing
death in March 2020.
When the officers arrived at the residence, Vazquezâ step-
mother gave them permission to enter. Once inside the resi-
dence, officers learned that Vazquez had locked himself inside
a ground floor bedroom. Officers informed Vazquez, through
the bedroom door, that they were there to arrest him on a fel-
ony warrant. Vazquez refused to come out of the bedroom. For
safety, officers removed Vazquezâ family from the residence
during the standoff.
Some officers remained inside the residence and tried to
coax Vazquez out of the bedroom, while other officers were
stationed outside the residence. During the standoff, Vazquez
repeatedly asked officers inside the residence how many offi-
cers were present at the scene. Officers stationed outside the
residence could see there were two individuals inside the bed-
roomâone was Vazquez and the other was later identified as
Orion Ross.
Officers knew that Vazquez had a cell phone with him in
the bedroom and was using it to communicate with people
outside the residence during the standoff. Because officers sus-
pected that Vazquez was soliciting others to interfere with the
impending arrest, additional officers were called to the scene,
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Cite as 319 Neb. 192
nearby traffic was shut down, and an elementary school across
the street was placed in âlockdown.â Several officers, includ-
ing Herrera and Cole Jennings, positioned themselves outside
the residence in a location where they could monitor the bed-
room window, using a tree and nearby vegetation for cover.
Approximately 30 minutes into the standoff, Ross threw
a ceramic mug through the bedroom window, after which
Ross and Vazquez both climbed through the broken glass.
Ross immediately ran away, while Vazquez fired a total of
three shots from a .45-caliber gun before also running away.
Jennings was standing next to the tree and holding a police
shield when he heard the glass break, and he took cover behind
the tree and returned fire. Ross and Vazquez ran from the
scene, and neither was shot.
Both Jennings and Herrera were injured in the shooting.
Jennings sustained injuries to his shins, and Herrera was struck
in the chest by the first shot fired by Vazquez. The bullet
passed through Herreraâs body, causing severe internal injuries,
and he died from his injuries 12 days later.
Herreraâs police-issued recording device captured the sounds
of breaking glass, firing guns, Herreraâs audible response to
being shot, and the response of other officers coming to
Herreraâs aid. A portion of that audio recording was offered
and received at Vazquezâ trial and will be discussed in more
detail later in the opinion.
After the shooting, Ross was quickly apprehended by law
enforcement on the elementary school playground across the
street. Vazquez was eventually discovered hiding inside the
enclosed porch of a nearby residence, and he was taken into
custody. Drone footage of Vazquezâ arrest was offered and
received at trial without objection.
While hiding on the porch, Vazquez placed the .45-caliber
handgun inside a glove and hid it in a tool bucket, where
it was eventually discovered by police after his arrest. The
gun had Vazquezâ blood on it, and there was evidence that
Vazquezâ right hand was bleeding when he was taken into
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custody. It is generally undisputed that the gun used by
Vazquez in the shooting was stolen from Rossâ stepfather in
July 2020 and that Vazquez knew it was stolen.
2. Postarrest Interview
After Vazquez was taken into custody, he was interviewed
by Sgt. Michael Hipps of the Lancaster County sheriffâs office.
That interview was recorded and admitted into evidence at
trial. When the video of the interview was published to the
jury, a written transcript was provided as an aid.
During the recorded interview, Vazquez admitted that before
climbing out the bedroom window, he saw a âguy with [a]
shieldâ standing by the corner of the residence and another
officer by the tree. But Vazquez denied having a gun or fir-
ing any shots during the standoff. Other facts relevant to the
recorded interview will be discussed later in the opinion.
3. Charges and Pretrial Motions in Limine
Vazquez was charged with first degree murder, two counts
of use of a firearm to commit a felony, attempted assault on
an officer, possession of a firearm by a prohibited person, pos-
session of a stolen firearm, and escape using deadly force or a
deadly weapon. He entered pleas of not guilty to all charges.
Vazquez filed multiple pretrial motions, including motions in
limine seeking to prohibit testimony about (1) Vazquezâ gang
membership or activities and (2) the nature of the arrest war-
rants that were being executed at the time of the standoff. At
the hearing on these motions, evidence was introduced show-
ing that Vazquez was a member of the âNo Name Demonsâ or
âNNDâ gang.
The district court sustained both motions in limine and
entered an order precluding testimony about Vazquezâ gang
affiliation. The order also generally precluded testimony about
the specific nature of either of the arrest warrants being served
at the time of the standoff, but it clarified that the State would
be allowed to refer more generally to the arrest warrants as
âfelony warrantsâ or âwarrants for a serious crime.â
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4. Jury Trial
Over the course of an 11-day jury trial, approximately 50
witnesses testified and hundreds of exhibits were received into
evidence. In addition to the facts recited above, evidence was
adduced regarding various accounts of the shooting and state-
ments made by Vazquez both before and after the shooting.
We discuss only that evidence which is necessary to address
the assignments of error raised on appeal, and we expand on
some of that evidence later in the analysis.
(a) Accounts of Shooting
(i) Vazquezâ Cellmate
A cellmate who was housed with Vazquez for approximately
2 weeks in February 2021 testified that Vazquez talked with
him about the shooting. According to the cellmate, Vazquez
said that when he got to the bedroom window, he saw an offi-
cer standing outside who was âpointing his gun at him.â He
said that the officer was âstanding in front of him in front of
the windowâ and that he âlooked at the officer and fired two
shots.â Vazquez also said that he âlooked at the cop and it
was either [me] or the cop,â so he fired the gun. Vazquez told
the cellmate that he also saw another officer with a shield in
the area. Vazquez said that after he fired the shots, he heard
screams of pain.
At trial, Vazquez admitted making these statements to the
cellmate, but claimed he just was trying to appear tough
because he was scared and did not want to be perceived as a
âkidâ or someone to be âmessed with.â
(ii) Vazquezâ Testimony
Vazquez testified in his own defense at trial. He did not deny
possessing or shooting the gun during the standoff. He said that
while he and Ross were locked inside the bedroom, they were
planning their escape. Vazquez testified that he told Ross:
Iâm like, Bro, you have to break the window, Iâm going
to shoot at the tree, and by then when they hear gunshots
theyâre going to be scared, they going to run for cover,
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and by then when they look back up, weâre nowhere in
sight, you know, weâre down the street.
Vazquez testified that before climbing out of the bedroom
window, he cocked the gun to make sure there was a bullet in
the chamber. According to Vazquez, he fired the gun, intending
to scare the officers, not shoot them, but he also said:
[W]hen I started aiming towards the tree, everything just
happening so fast, it just felt like five to four seconds, you
know, it was just everything is happening so quick.
Like someone came around the tree and Iâm like, oh,
boom, and I shot, it just felt like a cannon had left my
hand, and then it was just like, oh, and I squeezed it again,
boom, it just popped again, and I just remember . . . as
weâre jumping out the window thereâs shots coming from
the left side. I hear someone screaming, you know, Iâm
just like, oh, I just â I just â I just know something bad
happened. And, you know, we just kept running.
Vazquez admitted that when he was interviewed immedi-
ately after his arrest, he lied to police and denied having or
shooting a gun. But he testified that at the time, he was still
trying to âbelieve what happened really happened.â
(iii) Rossâ Testimony
Ross testified at trial pursuant to a proffer agreement with
the State. According to Ross, he and Vazquez devised a plan
to escape through the bedroom window and run to a nearby
cemetery, where they had arranged for an acquaintance to pick
them up. Vazquez retrieved a gun that was hidden in a pillow-
case, then he cocked the gun and went to the bedroom window.
Ross looked out the window and saw a single officer with a
shield crouching on the right side of the tree. Ross threw a
heavy ceramic mug to break the window, and he saw Vazquez
draw the gun and point it toward the window. Ross did not
recall hearing any shots being fired, but he did hear someone
yelling in pain.
Ross denied ever hearing Vazquez say that he would shoot
at police if they tried to arrest him, but he remembered
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Vazquez asking him, before going out the bedroom window,
âCan I shoot out?â to which Ross replied, ââWhat you do is
what you do.ââ When Ross was asked on cross-examination
whether he believed that Vazquez fired the gun because he
âwanted to scare law enforcement,â Ross responded, âYeah.â
(b) Motions for Mistrial
Vazquez made two motions for mistrial, both premised on
alleged violations of the courtâs order in limine prohibiting tes-
timony about the nature of the specific crimes underlying the
warrants being executed at the time of the standoff.
(i) First Motion
Rossâ girlfriend, Mayte Brown, was called as a prosecution
witness at trial. Brown testified that approximately 3 months
before the standoff, Vazquez told her that if he ever got
âpicked up on a prior incidentâ then âhe would shoot at police,
or try to kill them.â Brown did not elaborate on the nature
of the prior incident, but she did say that Vazquez âwasnât
worried about getting picked upâ because âsomeone else was
charged with that.â
On cross-examination, Brown reiterated that Vazquez told
her âif he was caught for prior incidents that he would shoot
at police.â When defense counsel asked Brown to clarify when
this conversation took place, Brown responded, âIâm not sure
of exact dates. I know it was after the first stabbing occurred
earlier in the year, and months before the shooting occurred.â
Defense counsel requested a sidebar and, outside the presence
of the jury, objected to Brownâs response as a violation of the
courtâs order in limine. Defense counsel argued that it would
be âvery easy for the jury to drawâ a connection between
Vazquezâ arrest warrant and Brownâs reference to the âfirst
stabbing.â Defense counsel asked that Brownâs response be
stricken and that the jury be instructed to disregard it. She
also moved for a mistrial, asserting, âI donât think we can
un-ring this bell.â The court overruled the objection and all
related motions.
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(ii) Second Motion
As stated, Ross was called as a prosecution witness at
trial. On cross-examination, Ross testified that Vazquez locked
the bedroom door after officers knocked, identified them-
selves, and said they were there on a warrant. Defense counsel
asked Ross for the âexact wordsâ used by the officers, and
he responded, âLike, itâs LPD, and they have a warrant for
[Vazquez], for a second degree assault.â Counsel continued
with cross-examination, but at the next break, she moved for
a mistrial outside the presence of the jury, arguing that Rossâ
reference to âsecond degree assaultâ marked the second time a
witness had violated the order in limine prohibiting reference
to the specific nature of the warrants.
The State opposed mistrial and argued that the witness
had only mentioned the nature of the warrant in response to
defense counselâs question asking him for the officerâs exact
words. Defense counsel explained that, based on transcripts
of the encounter at the bedroom door, she expected Ross to
give a different answer. The trial court overruled the motion
for mistrial.
5. Guilty Verdicts and Sentencing
The jury returned guilty verdicts on all seven charges. The
court accepted the verdicts and found Vazquez guilty of first
degree murder, two counts of use of a firearm to commit a
felony, attempted first degree assault on a peace officer, pos-
session of a firearm by a prohibited person, possession of a
stolen firearm, and escape using force or a deadly weapon.
The judge requested preparation of a presentence investigation
report and set the matter for sentencing.
At the sentencing hearing, the judge acknowledged receiv-
ing and reviewing the presentence investigation report, which
included a psychological evaluation of Vazquez and a sen-
tencing letter from defense counsel that will be discussed
later in the opinion. After considering sentencing remarks
and allocution, the court sentenced Vazquez to imprisonment
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for a term of not less than 70 years nor more than life on
the first degree murder conviction. On the remaining convic-
tions, Vazquez was sentenced to indeterminate prison terms
as follows:
⢠15 to 20 years for each of two counts of use of a firearm to
commit a felony;
⢠20 to 30 years for attempted first degree assault on an officer;
⢠5 to 10 years for possession of a firearm by a prohibited
person;
⢠5 to 10 years for possession of a stolen firearm; and
⢠4 to 6 years for escape using force or a deadly weapon.
The sentence for possession of a stolen firearm was ordered to
be served concurrently to the other sentences, and the remain-
ing sentences were all ordered to be served consecutively.
Vazquez filed this direct appeal, represented by new counsel.
II. ASSIGNMENTS OF ERROR
Vazquez assigns, consolidated and restated, that the district
court erred in (1) denying both motions for mistrial, (2) admit-
ting certain testimony from Vazquezâ father, and (3) accept-
ing the guilty verdicts when there was insufficient evidence
to support the convictions involving Jennings. Vazquez also
assigns that â[c]umulative [e]rrorâ deprived him of his consti-
tutional right to a fair trial.
Additionally, represented by new counsel on direct appeal,
Vazquez asserts that his trial counsel was constitutionally inef-
fective in the following 17 respects:
(1)âââfailing to object to the Stateâs unduly emotional and
inflammatory evidence and argument,
(2)âââfailing to redact or seek suppression of portions of
Vazquezâ recorded interview,
(3)âââfailing to object to evidence and argument regarding
Vazquezâ character,
(4)âââasking Vazquez improper questions about the veracity of
other witnesses and failing to object to the Stateâs doing
the same,
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(5)âââfailing to object to a gang reference in an exhibit,
(6)âââfailing to safeguard attorney work product,
(7)âââfailing to object during voir dire when the State ques-
tioned prospective jurors about evidence that was to be
presented,
(8)âââmaking an ineffective opening statement,
(9)âââfailing to object to the improper evidence and argument
relating to the amount of force used to locate and arrest
Vazquez,
(10)ââfailing to impeach Brownâs credibility with evidence of
impaired memory,
(11)ââfailing to impeach Brownâs credibility with evidence of
bias relating to pending criminal charges,
(12)ââfailing to use information supplied by Vazquez to impeach
Brown,
(13)ââadducing adverse testimony from Brown,
(14)ââadducing adverse testimony from Ross,
(15)ââproviding unreasonable advice about the right to testify
and not to testify,
(16)ââfailing to object when the State questioned Vazquez about
his employment status, and
(17)ââfailing to present adequate evidence and argument at the
sentencing hearing.
III. STANDARD OF REVIEW
[1] An appellate court will not disturb a trial courtâs decision
whether to grant a motion for mistrial unless the trial court has
abused its discretion. 1
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
1
State v. Lenhart, 317 Neb. 787, 11 N.W.3d 661 (2024); State v. Haynie,
317 Neb. 371, 9 N.W.3d 915 (2024).
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Cite as 319 Neb. 192admissibility. 2 Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. 3 [4] In 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. 4 [5-8] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 5 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 counselâs alleged deficient performance. 6 The record on appeal is sufficient if it establishes either that trial counselâs performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counselâs actions could not be justified as a part of any plausible trial strategy. 7 Conversely, an ineffective assistÂance of counsel claim will not be addressed on direct appeal if the record is insufficient to address it. 8 2 State v. Swartz,318 Neb. 553
, 17 N.W.3d 174 (2025); State v. Anthony,316 Neb. 308
, 4 N.W.3d 393 (2024). 3Id.
4 See, State v. Perry,318 Neb. 613
, 17 N.W.3d 504 (2025); State v. Clausen,318 Neb. 375
, 15 N.W.3d 858 (2025). 5 State v. Torres Aquino,318 Neb. 771
, 19 N.W.3d 222 (2025); State v. Rezac,318 Neb. 352
, 15 N.W.3d 705 (2025). 6Swartz, supra note 2
. 7 TorresAquino, supra note 5
;Rezac, supra note 5
. 8 See State v. Dap,315 Neb. 466
,997 N.W.2d 363
(2023).
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IV. ANALYSIS
1. No Error in Overruling
Motions for Mistrial
Vazquez contends the district court erred in overruling his
motions for mistrial, both of which were premised on alleged
violations of the order in limine. As stated, that order generally
precluded witnesses from testifying about the specific nature
of the warrants for Vazquezâ arrest, but it permitted referring to
warrants for a âseriousâ or âfelonyâ crime.
[9-11] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus prevents
a fair trial. 9 We review rulings on motions for mistrial for an
abuse of discretion, 10 and our deferential standard stems in
part from the recognition that the trial judge is often better
situated than a reviewing court to assess the atmosphere of
the trial and the impact of certain evidence or events. 11 And
where, as here, a motion for mistrial is premised on adducing
evidence that violates an order in limine, an appellate court
will consider that the trial judge was in the best position to
assess the potential impact of such evidence on the jury. 12
[12] To prove error predicated on the failure to grant a
mistrial, a defendant faces a higher threshold than merely
9
Lenhart, supra note 1. 10 Seeid.
11 State v. Trail,312 Neb. 843, 889
,981 N.W.2d 269
, 302 (2022) (observing that deferential standard of review âstems in part from the recognition that the trial judge is better situated than a reviewing court to pass on questions of witness credibility and the surrounding circumstances and atmosphere of the trialâ). 12 State v. Todd,296 Neb. 424, 438
,894 N.W.2d 255, 265
(2017) (observing
trial judge had âthe best position to assess the potential impact on the juryâ
when defense counsel repeatedly adduced evidence in violation of order in
limine).
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showing a possibility of prejudice. 13 The defendant must prove
the alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice. 14 In the sections that
follow, we consider each of Vazquezâ motions for mistrial and
ultimately find no abuse of discretion in overruling either.
(a) First Motion for Mistrial
As stated, the first motion for mistrial was premised on
Brownâs answer to a question posed by defense counsel seek-
ing to pinpoint the date of a certain conversation between
Brown and Vazquez. Brown replied, âIâm not sure of exact
dates. I know it was after the first stabbing occurred earlier
in the year, and months before the shooting occurred.â At a
sidebar, Vazquez moved for mistrial, arguing that when Brown
mentioned the âstabbing,â she was referring to the March 2020
stabbing death that formed the basis for one of Vazquezâ arrest
warrants, and that therefore, the testimony violated the order in
limine. The court overruled the motion.
On appeal, Vazquez argues this amounted to prejudicial
error because the jury was allowed âto speculate about and
consider [Vazquezâ] possible involvement in a serious vio-
lent crime of stabbing another human being.â 15 The premise
of Vazquezâ argument is that the jury necessarily connected
Vazquez to the particular stabbing that formed the basis for one
of the arrest warrants, but we find that somewhat implausible
on this record.
Jurors knew that officers were attempting to arrest Vazquez
on a felony warrant when the standoff occurred, but we see
nothing in the record suggesting that jurors had any reason
to suspect the underlying felony involved a fatal stabbing.
Nor do we find it likely that jurors might have assumed the
13
See State v. Vaughn, 314 Neb. 167,989 N.W.2d 378
(2023), cert. denied ___ U.S. ___,144 S. Ct. 241
, 217 L. Ed. 2d. 109. 14Id.
15
Brief for appellant at 38.
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stabbing was the âprior incidentâ that Brown referred to in
her testimony, because Brown expressly testified that some-
one other than Vazquez had been charged in that incident.
Simply put, we see nothing about Brownâs vague reference
to a âstabbingâ that would suggest to a reasonable juror that
Vazquez was involved in the stabbing or was being arrested
for the stabbing, and we have been directed to no other trial
evidence that might support such an inference. On this record,
it appears the trial court overruled the motion for mistrial
because it did not think Brownâs testimony plainly violated
the order in limine at all. We find no abuse of discretion in
that ruling.
(b) Second Motion for Mistrial
During cross-examination, Ross was asked by defense coun-
sel for the âexact wordsâ officers used after they knocked on
the bedroom door, and he replied that officers said they had a
warrant for Vazquez for a âsecond-degree assault.â Vazquez
moved for mistrial, arguing this testimony violated the order
in limine prohibiting evidence about the nature of the crimes
underlying the arrest warrants. Again, we see no abuse of dis-
cretion in the courtâs decision not to grant a mistrial.
Although Rossâ testimony about a warrant for âsecond-
degree assaultâ was a technical violation of the courtâs order
in limine, we cannot conclude this evidence was of such a
nature that it actually prejudiced Vazquez and prevented a fair
trial. First, the witnessesâ single reference to âsecond-degree
assaultâ was directly responsive to defense counselâs question,
even though the record suggests counsel was anticipating a
different response. But more importantly, we see nothing about
mentioning a warrant for second degree assault that can be said
to have actually prejudiced Vazquez in this case, particularly
since jurors already knew, through properly admitted evidence,
that at least eight officers were present to arrest Vazquez on a
warrant for a âserious felony.â The district court did not abuse
its discretion in overruling the motion for mistrial based on
this testimony.
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2. No Error in Overruling Objection
to Testimony of Vazquezâ Father
The State called Vazquezâ father as a witness in its case
in chief. When the prosecutor asked the father what sort
of response Vazquez had to the shooting, defense counsel
objected on grounds of relevance, and the objection was
overruled. The father replied that he did not remember his
sonâs response to the shooting. The State then attempted to
refresh the fatherâs recollection by having him review a typed
transcript of a recorded phone call between the father and
Vazquez. After reviewing the transcript, the father testified
that he remembered Vazquez saying he felt bad about the
shooting. The State then asked the father whether Vazquez had
actually said that he âdidnât feel bad.â The father again replied
that he could not remember.
On appeal, Vazquez argues the trial court abused its discre-
tion in overruling defense counselâs relevancy objection to the
line of questions asking about Vazquezâ response to the shoot-
ing. We disagree.
[13,14] Under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401(Reissue 2016), â[r]elevant evidence means evidence having any tendency to make the existence of any fact that is of con- sequence to the determination of the action more probable or less probable than it would be without the evidence.â 16 The bar for establishing evidentiary relevance is not a high one and requires only the probative value of the evidence to be something more than nothing. 17 Vazquez contends, without citation to any legal authority, that evidence of his remorse, or lack thereof, did not relate 16 See, State v. German,316 Neb. 841
, 7 N.W.3d 206 (2024); State v. Abligo,312 Neb. 74
,978 N.W.2d 42
(2022). See, also, State v. Tucker,301 Neb. 856, 865
,920 N.W.2d 680, 688
(2018) (â[e]vidence is relevant if it tends in any degree to alter the probability of a material factâ). 17German, supra note 16
;Abligo, supra note 16
.
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to any fact of consequence and therefore was irrelevant. The
State, on the other hand, contends the objection was properly
overruled because Vazquezâ lack of remorse was relevant to a
fact of consequenceâwhether Vazquez intended to shoot at the
officers or, as he claimed, only intended to shoot at the tree.
We have suggested that a defendantâs lack of remorse
for a killing is relevant to whether the killing was done
âintentionally.â 18 Other courts have likewise held that a defendÂ
antâs comments and actions tending to show a lack of remorse
for a killing are relevant and admissible to prove the defendÂ
antâs mental state, including malice and premeditation. 19
[15] In this case, Vazquezâ mental state at the time he fired
the gun was the primary controverted issue at trial. Evidence
that he expressed a lack of remorse for Herreraâs killing is
relevant because it tends to show that he shot purposely and
with deliberate and premediated malice. The district court did
not abuse its discretion in overruling the relevancy objection to
this evidence.
3. Sufficiency of Evidence
Vazquez assigns that the evidence was insufficient to sup-
port his convictions for attempted first degree assault on an
18
State v. Mowell, 267 Neb. 83, 100,672 N.W.2d 389, 403
(2003).
19
See, e.g., Government of Virgin Islands v. Donovan, 335 Fed. Appx. 206,
209-10 (3d Cir. 2009) (defendantâs statement was âquite probative insofar
as it shows a striking lack of remorse indicative of malice aforethought
and premeditationâ); Hubers v. Commonwealth, 617 S.W.3d 750 (Ky.
2020) (evidence that defendant would smile, wink, and laugh about
murder showed lack of remorse and was relevant to prove defendantâs
mental state when crime was committed); People v. Michaels, 28 Cal.
4th 486, 528,49 P.3d 1032, 1057
,122 Cal. Rptr. 2d 285, 315
(2002)
(absence of remorse âmay be relevant, because it sheds light on the
defendantâs mental state, in determining the degree of the homicide or the
existence of special circumstancesâ); People v. Paquette, 214 Mich. App.
336, 342,543 N.W.2d 342, 345
(1995) (â[d]efendantâs conduct after the
killing is relevant to a determination whether there was premeditation and
deliberation sufficient for a finding of first-degree murderâ).
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Cite as 319 Neb. 192officer and the corresponding conviction for use of a firearm to commit a felony. Both these convictions relate to the inju- ries suffered by Jennings during the shooting. We understand Vazquez to argue the evidence was insufficient in two respects: (1) He claims there was no evidence that he intentionally shot at Jennings, and (2) he claims there was insufficient evidence that the injuries to Jenningsâ shins were caused by bullet frag- ments rather than debris from the ceramic mug thrown through the window by Ross. As stated, in 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. 20 First degree assault on an officer is defined byNeb. Rev. Stat. § 28-929
(1) (Cum. Supp. 2024) as âintentionally or knowingly caus[ing] serious bodily injuryâ to a âpeace officerâ while such officer âis engaged in the performance of his or her official duties.â A âpeace officerâ includes a police officer. 21 Attempt is defined byNeb. Rev. Stat. § 28-201
(Cum. Supp. 2024) as either â[i]ntentionally engag[ing] in conduct which would constitute the crime if the attendant circumstances were as [the defendant] believes them to beâ or â[i]ntentionally engag[ing] in conduct which, under the circumstances as [the defendant] believes them to be, constitutes a substantial step in a course of conduct intended to culminate in [the defendantâs] commission of the crime.â On appeal, Vazquez argues there is âno evidenceâ that he âfired at Jennings or that he attempted to fire at someone else and that caused injury to Jennings.â 22 We disagree. Viewed in 20Perry, supra note 4
;Clausen, supra note 4
. 21 SeeNeb. Rev. Stat. § 49-801
(15) (Reissue 2021).
22
Brief for appellant at 45.
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the light most favorable to the State, there is significant circum-
stantial evidence that Vazquez intentionally shot at Jennings.
Audio captured by Herreraâs police-issued recording device
establishes that Vazquezâ first shot hit Herrera, who screamed
in pain almost immediately. Thereafter, Vazquez fired two
additional shots. Vazquez admitted that he made sure the gun
was cocked before he exited the window, and he admitted that
he saw an officer holding a shield when he looked out the
window; other evidence at trial established that Jennings was
standing near a tree holding a shield. A reasonable fact finder
could infer from this evidence that Vazquez not only knew
where Jennings was standing when he fired the gun, but also
that he intentionally fired multiple shots at Jennings.
Vazquez also argues there was insufficient evidence that
the injuries to Jenningsâ shins were caused by debris from the
gunshots as opposed to debris from the ceramic mug that was
thrown through the window. But Jennings testified that he felt
debris hit him as he moved to his right, which, according to
Jennings, occurred after the ceramic mug had already been
thrown through the window. Thus, there was evidence from
which a reasonable juror could conclude that debris from the
gunshots, and not from the ceramic mug, caused Jenningsâ
injuries. There was also evidence from a firearms expert that
the metal jacket of a fired bullet can tear apart and peel off and
result in debris.
And, finally, because the evidence was sufficient to support
the conviction for attempted assault on an officer, it was suf-
ficient to support the conviction for use of a firearm to commit
that offense. This assignment of error is without merit.
4. Cumulative Trial Error
[16,17] Vazquez assigns and argues that cumulative error
at trial deprived him of his right to a fair trial by an impartial
jury and warrants a new trial. We have generally recognized
the doctrine of cumulative error in the context of a criminal
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jury trial, and whether cumulative error deprived a criminal
defendant of his or her Sixth Amendment right to a trial by
an impartial jury presents a question of law to be reviewed de
novo. 23 Although one or more trial errors might not, standing
alone, constitute prejudicial error, their cumulative effect may
be to deprive the defendant of his or her constitutional right to
a public trial by an impartial jury. 24
Vazquez argues he is entitled to a new trial based on cumu-
lative error for the following reasons:
This case involved many consolidated claims that
included multiple errors. There were enough claims with
merit to resonate. This was an 11[-]day trial that did not
need to be that long. The trial suffered from efforts to
pursue themes that were presented for effect and not for
presenting evidence that might serve to prove or disprove
an element of the offenses. There was deficient performÂ
ance by trial counsel and misconduct on the part of the
State. The big picture here is more than an accumulation
of the parts. One can remove a pixel here or there and
still have enough to discern an image of a trial that broke
down and did not deliver fairness and the process that
was due. 25
Based on this argument, we understand Vazquez to con-
tend that his claim of cumulative error encompasses not only
alleged error by the trial court, but also alleged deficient
performance by trial counsel. Although we acknowledge that
some of our prior opinions have referenced both when discuss-
ing claims of cumulative error, 26 we have not expressly held
that meritorious claims of ineffective assistance are properly
23
See, Dap, supra note 8; State v. Anders,311 Neb. 958
,977 N.W.2d 234
(2022); State v. Stelly,304 Neb. 33
,932 N.W.2d 857
(2019). 24Anders, supra note 23
. 25 Brief for appellant at 77. 26 See,Anders, supra note 23
;Stelly, supra note 23
.
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included in an analysis under the cumulative error doctrine.
This is an open question in other jurisdictions too. 27
But this case does not require us to affirmatively decide
whether meritorious claims of ineffective assistance of trial
counsel can be part of the cumulative error analysis, because
even assuming without deciding that they can, there is no
cumulative error on this record. As we have already explained,
none of Vazquezâ claims of error by the trial court have merit.
And as we will explain next, Vazquezâ claims of ineffective
assistÂance of counsel fare no better. Because his ineffec-
tive assistÂance claims are either without merit or not suffi-
ciently raised or the record is insufficient to resolve them on
direct appeal, this record does not support a claim of cumula-
tive error. 28
5. Claims of Ineffective
Assistance of Counsel
In this direct appeal, Vazquez asserts 17 claims of ineffective
assistance of trial counsel, which we generally group into eight
categories. As recategorized, Vazquez contends his trial coun-
sel was deficient in (1) failing to object to evidence designed
to appeal to jurorsâ emotions, (2) failing to redact or seek sup-
pression of portions of the recorded interview, (3) failing to
object to improper character evidence, (4) asking and failing
to object to improper questions about veracity, (5) failing to
impeach certain witnesses, (6) failing to conduct effective voir
dire, (7) failing in miscellaneous other ways, and (8) failing to
present effective evidence and argument at sentencing.
27
See, e.g., Middleton v. Roper, 455 F.3d 838(8th Cir. 2006) (holding cumulative effect of alleged errors by trial counsel not grounds for granting habeas relief under cumulative error analysis); U.S. v. Rivera,900 F.2d 1462, 1471
(10th Cir. 1990) (holding cumulative error analysis evaluates only effect of matters actually determined to be error and âcumulative effect of non-errorsâ is irrelevant). But see U.S. v. Baptiste,8 F.4th 30
(1st Cir. 2021) (finding ineffective assistance of counsel based on cumulative error doctrine). 28 See,Anders, supra note 23
;Stelly, supra note 23
.
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Cite as 319 Neb. 192On direct appeal, familiar principles guide our analysis of claims that trial counsel was ineffective. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a question of law. 29 In reviewing claims of ineffec- tive 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 counselâs alleged deficient performance. 30 [18-20] When a defendantâs trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counselâs ineffective per- formance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. 31 To raise an ineffective assistance of counsel claim on direct appeal, the defendant must allege deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconvic- tion relief to recognize whether the claim was brought before the appellate court. 32 When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims con- stitutes deficient performance by trial counsel. 33 Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the 29 TorresAquino, supra note 5
;Rezac, supra note 5
. 30Swartz, supra note 2
. 31Id.
32 See State v. Miranda,313 Neb. 358
,984 N.W.2d 261
(2023). 33Id.
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Cite as 319 Neb. 192ineffective performance claims. 34 The record on direct appeal is sufficient to conclusively determine a claim of ineffective assistance of counsel if it establishes either that trial counselâs performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial coun- selâs actions could not be justified as a part of any plausible trial strategy. 35 Conversely, an ineffective assistance of coun- sel claim will not be addressed on direct appeal if it requires examination of facts not contained in the record. 36 [21-25] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 37 the defendant must show that his or her counselâs performance was deficient and that this deficient performance actually prejudiced the defendÂantâs defense. 38 To show that counselâs performance was deficient, a defendant must show that counselâs perform ance did not equal that of a lawyer with ordinary training and skill in criminal law. 39 To show prejudice in a claim of inef- fective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counselâs deficient per- formance, the result of the proceeding would have been dif- ferent. 40 A reasonable probability is a probability sufficient to undermine confidence in the outcome. 41 A court may examine performance and prejudice in any order and need not examine both prongs if a defendant fails to demonstrate either. 42 34Id.
35Id.
See, also, TorresAquino, supra note 5
;Rezac, supra note 5
. 36 SeeDap, supra note 8
. 37 Strickland v. Washington,466 U.S. 668
,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984). 38Swartz, supra note 2
. 39Id.
40Id.
41 State v. Goynes,318 Neb. 413
, 16 N.W.3d 373 (2025). 42 State v. Esch,315 Neb. 482
,997 N.W.2d 569
(2023).
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[26-28] When reviewing claims of alleged ineffective assistÂ
ance of counsel, trial counsel is afforded due deference to for-
mulate trial strategy and tactics. 43 There is a strong presump-
tion that counsel acted reasonably, and an appellate court will
not second-guess reasonable strategic decisions. 44 And finally,
in determining whether there is a reasonable probability that
any deficient performance of trial counsel would have resulted
in a different outcome in the proceeding, an appellate court
may properly consider the strength of the admissible evidence
relating to the controverted issues in the case. 45
(a) Failure to Object to Unduly Emotional
and Inflammatory Evidence
Vazquez asserts that his trial counsel was ineffective in fail-
ing to object to several pieces of evidence he characterizes as
âinflammatory.â 46 This evidence includes (1) an audio record-
ing of Herrera at the scene of the shooting, (2) remarks about
Herrera made by the prosecution during opening statement,
(3) testimony about how Herreraâs wife and daughter were
notified of the shooting, (4) photographs of Herreraâs belong-
ings, and (5) testimony from Herreraâs wife. Vazquez argues,
somewhat interchangeably, that all such evidence was irrel-
evant under rule 401 and was unduly prejudicial under Neb.
Evid. R. 403, Neb. Rev. Stat. § 27-403(Reissue 2016). We discuss his arguments regarding this evidence in the sections that follow, but first we review the relevant legal principles. [29,30] As already noted, rule 401 defines relevant evi- dence as âevidence having any tendency to make the exis- tence of any fact that is of consequence to the determination of the action more probable or less probable than it would 43 State v. Garcia,315 Neb. 74
,994 N.W.2d 610
(2023). 44Id.
45 See,Stelly, supra note 23
; State v. Dubray,289 Neb. 208
,854 N.W.2d 584
(2014); State v. Iromuanya,282 Neb. 798
,806 N.W.2d 404
(2011).
46
Brief for appellant at 48.
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be without the evidence.â Rule 403 provides that â[a]lthough
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consid-
eration of undue delay, waste of time, or needless presenta-
tion of cumulative evidence.â Generally, prosecutors have a
duty to conduct criminal trials in a manner that provides the
accused with a fair and impartial trial. 47 They may not inflame
the jurorsâ prejudices or excite their passions against the
accused. 48 This rule includes intentionally eliciting testimony
from witnesses for prejudicial effect. 49
(i) Herrera Audio
A 41-minute-long audio recording captured by Herreraâs
police-issued recording device was offered by the State at trial
and was published to the jury. Vazquezâ trial counsel did not
object to any portion of this recording. The audio started dur-
ing Herreraâs initial interaction with Vazquezâ stepmother and
concluded as Herrera was removed from the scene by medics.
A transcription of the audio was given to the jury as an aid
when it was published.
As relevant here, the audio recorded the sound of the
ceramic mug breaking the window and Herrera asking, â[W]hat
was that?â About 2 seconds later, more breaking glass is heard
as Ross and Vazquez exit the window, and then a voice that
appears to be Herreraâs shouts, âHey, get on the ground!â
Immediately thereafter, at least one âpopâ is heard and Herrera
begins screaming in pain. As he screams, more pops are heard
in the background. Herrera continues screaming and yells, âI
canât breathe.â He then says, âCall my wife.â Another voice
is heard in the background saying, â[O]fficer down.â After
47
See, State v. McSwine, 292 Neb. 565,873 N.W.2d 405
(2016); Iromuanya,
supra note 45.
48
Id.
49
Iromuanya, supra note 45.
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the popping ends, the audio recording continues for several
more minutes as Herrera is attended to by other officers and
paramedics. During this time, Herrera can be heard moaning in
pain, repeating that he cannot breathe, and expressing love for
his wife and children.
On appeal, Vazquez concedes the audio recording was rele-
vant and provided âthe best evidence of the sequence of events
from the moment the window was broken through the firing of
Jenningsâ four shots.â 50 But he argues that once the gunshots
stopped, trial counsel should have objected to the admissibility
of the final few minutes of the audio on grounds of relevance
and unfair prejudice. He argues that counselâs failure to do so
amounted to deficient performance and inflamed the passions
of the jury with âevidence of [Herreraâs] desperation and the
need to have someone let his wife and children know he loved
themâa message that was heard through [Herreraâs] own voice
amongst the nearly unbearable screams, moans and unquench-
able sadness.â 51
Having carefully reviewed the audio, we agree it is emo-
tionally intense, both before and after the gunshots stop.
But we are not persuaded by Vazquezâ assertion that if trial
counsel had objected to the last several minutes of the audio
recording, the trial court would have sustained the objection.
Events occur quickly on the audioâglass breaks, Herrera
yells to get down, and then the first âpopâ is heard and
Herreraâs screams begin almost simultaneously. Herreraâs first
plea for someone to contact his wife occurs almost immedi-
ately after the first pop, while other pops are happening in the
background. As such, in the portion of the audio recording
that Vazquez rightly concedes was both relevant and admis-
sible, the jury already heard Herreraâs screams of pain and his
urgent pleas to tell his wife and children that he loved them.
The final few minutes of the audio contain similar sounds
50
Brief for appellant at 52.
51
Id. at 52-53.
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Cite as 319 Neb. 192and in that respect was cumulative, but it also documented the crime scene live, as events unfolded, and was relevant for that purpose as well. [31] We have observed that gruesome crimes produce grue- some photographs, and we have consistently held that photo- graphs illustrating a controverted issue in a homicide case are admissible even if gruesome, so long as the probative value is not outweighed by the prejudicial effect. 52 Much like graphic photographic evidence of a crime, the audio recording of the crime in this case was intense, but it was relevant and accu- rately depicted the stark reality of an officer who had been shot by a fleeing suspect. We cannot find that the probative value of the audio recording was outweighed either by the danger of unfair prejudice or by considerations of needlessly cumulative evidence. But even if trial counsel could be found deficient in fail- ing to object to the last few minutes of the audio, the record affirmatively shows that Vazquez cannot show actual preju- dice under Strickland. 53 The trial courtâs written instructions informed the jurors they must not decide the case based on sympathy or prejudice, and the few minutes of audio after the gunshots ended was a short moment in a long trial where the critical issue was Vazquezâ mental state when he fired at the officers. 54 There was considerable evidence adduced that Vazquez intended to shoot the officers, and the evidence in that regard was strong. Summarized, the evidence showed that Vazquez knew the officers were outside the window dur- ing the standoff, that he asked Ross if he could âshoot out,â that he cocked the loaded gun before exiting the window, that he aimed the gun out the window knowing that officers were outside, that he continued to fire the gun after hearing 52 See State v. Boswell,316 Neb. 542
, 5 N.W.3d 747 (2024). 53 SeeStrickland, supra note 37
. 54 Cf.,Stelly, supra note 23
; Dubray, supra note 45; Iromuanya, supra note
45.
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Herreraâs screams of pain, and that after he was caught and
arrested, he lied about having and shooting the gun. In addi-
tion, Vazquez admitted to telling his cellmate that he inten-
tionally shot at least one officer, and Brown testified that
before the standoff, Vazquez said he would fire at officers if
they attempted to arrest him.
In other cases, where evidence relating to the controverted
issue was particularly strong, we held the record affirmatively
demonstrated that the defendant could not establish prejudice
under Strickland because there was no reasonable probability
that any deficient performance of trial counsel would have
resulted in a different outcome in the proceeding. 55 We reach
the same conclusion here.
On this record, even if trial counsel had successfully objected
to the last few minutes of the audio recording and the jury had
not heard that evidence, there is no reasonable probability that
the outcome of the proceeding would have been different. This
claim of ineffective assistance has no merit.
(ii) Opening Statement
During opening statements, the prosecutor informed the jury:
â[Y]ou will hear testimony that Officer Luis Mario Herrera
answered his last call. You will hear testimony that he goes
by Mario, Badge No. 1205.â Vazquez argues this was âan
improper appeal to sympathy highlighting the special status of
a police officer victim and asserting a societal loss because he
is no longer able to protect and serve.â 56
[32,33] As a general rule, prosecutors should not make
statements or elicit testimony intended to focus the juryâs
attention on the qualities or personal attributes of the victim,
unless such facts are relevant to the criminal prosecution. 57 But
a party is allowed considerable latitude in making an opening
55
Id.SeeStrickland, supra note 37
.
56
Brief for appellant at 50-51.
57
See Iromuanya, supra note 45.
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statement, 58 and it is generally permissible for the State to
discuss what the evidence may show. 59 Given the nature of
this case, it would be impossible to discuss the charged crimes
without reference to the fact that the victims were police offi-
cers. The statement âyou will hear testimony that Officer Luis
Mario Herrera answered his last callâ is primarily one of fact,
and because it provided an accurate preview of the anticipated
trial evidence in a case involving the shooting death of an
officer, we cannot find that trial counsel performed deficiently
in failing to object to it.
(iii) First Witnessâ Testimony
The Stateâs first trial witness was Sgt. Dustin Romshek,
who testified that after the shooting he drove to the workplace
of Herreraâs wife, Carrie, to inform her that Herrera had been
shot. Carrie worked at a high school, and Romshek testified
that he asked a priest at the school to help him tell Carrie
about the shooting. One of Herreraâs daughters was a student
at the high school, and officers drove Carrie and her daughter
to the hospital.
While at the hospital, Romshek collected and photographed
Herreraâs clothing and belongings as part of the investigation.
The items photographed included a neck gaiter, a gun holster
and magazine, a flashlight, socks, shoes, a bloody shirt, and
a St. Michael medallion. During Romshekâs testimony, the
State offered photographs of Herreraâs shoes, shirt, and medal-
lion. These photographs were admitted into evidence without
objection.
On appeal, Vazquez argues that trial counsel was defi-
cient in failing to object to Romshekâs testimony about how
Herreraâs wife and daughter learned about the shooting and
58
State v. Molina, 271 Neb. 488,713 N.W.2d 412
(2006); State v. Bradley,236 Neb. 371
,461 N.W.2d 524
(1990). 59 State v. McMillion,23 Neb. App. 687
,875 N.W.2d 877
(2016). See U.S. v. Kalagian,957 F.2d 527
(8th Cir. 1992).
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in failing to object to certain photographs depicting Herreraâs
clothing and belongings. We address each argument in turn.
Vazquez relies on State v. Iromuanya 60 to argue that trial
counsel was deficient for failing to object when Romshek testi-
fied about how Herreraâs wife and daughter learned about the
shooting. He argues that evidence of how a family learns of an
injury or death is improper and inadmissible and that here, it
served only to inflame the emotions of the jury.
In Iromuanya, the defendant fired one gunshot that injured
two college students, who were friends. One of the students
later died from her injuries. While the surviving student was
testifying, he was asked to describe how he learned about the
death of his friend; the testimony was so intense it caused two
jurors to start crying. On appeal, we stated the prosecutor had
no proper purpose for asking the student how he learned of
his friendâs death and should have known the questions would
elicit highly emotional testimony. Ultimately, however, we
concluded the defendant could not show prejudice because,
even if his trial counsel had timely objected to the improper
testimony, there was no reasonable probability that the jury
would have acquitted the defendant. That was so, we reasoned,
because the improper testimony was just a small part of the
Stateâs evidence, the jury was instructed not to decide the case
on sympathy or prejudice, and there was strong evidence of
the defendantâs intent to shoot that tempered any prejudicial
impact of the improper testimony.
Unlike in Iromuanya, there is nothing in the record here
suggesting that jurors had an intense emotional reaction to
Romshekâs testimony. But even if we assume that counsel was
deficient in not objecting to testimony about how Herreraâs
family learned he had been shot, Vazquez cannot show actual
prejudice as a result. In other words, even if trial counsel had
successfully objected to the testimony about how Herreraâs
wife and daughter learned about the shooting, there is no
60
Iromuanya, supra note 45.
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reasonable probability the outcome of the proceeding would
have been different.
Vazquez also contends trial counsel was ineffective for fail-
ing to object to some of the photographs of Herreraâs clothing
and belongings introduced during Romshekâs testimony, argu-
ing the photographs were irrelevant and prejudicial. Vazquez
particularly contends that the St. Michael medallion was an
improper attempt to use a religious symbol to incite jurorsâ
emotions. To the extent the photographs were offered to docu-
ment items of evidence collected from Herrera as part of the
criminal investigation, we cannot agree with Vazquez that the
photographs had no relevance at all. This evidence depicted
the items that Herrera was wearing when he was shot, and the
âbloodyâ shirt depicted where the bullet entered and exited.
And to the extent Vazquez argues that evidence of the St.
Michael medallion was designed to appeal to religious sym-
pathies, we note that neither Romshek nor any other witness
testified about the religious symbolism of the medallion.
But even assuming without deciding that trial counsel was
deficient in failing to object to the photographs of Herreraâs
belongings introduced during Romshekâs testimony, we con-
clude there is no reasonable probability the result of the
proceeding would have been different had the photographs
been excluded. Again, the jury was instructed to not decide
the case based on sympathy or prejudice, and as noted, there
was strong evidence on the critical issue of Vazquezâ intent
to shoot at the officers. On this record, there is no reason-
able probability that Vazquez would have been acquitted or
that the result of the proceeding would have been different if
trial counsel had successfully objected to the photographs of
Herreraâs belongings.
(iv) Testimony of Herreraâs Wife
The State called Herreraâs wife, Carrie, as a witness at
trial. She was shown a portrait of a man in a police uniform,
whom she identified as Herrera. She testified she had known
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Herrera for 28 years and the next day would have been their
26th wedding anniversary. She also testified they had a son
and three daughters. She then testified briefly about the morn-
ing of the shooting and her last interaction with Herrera:
It was a Wednesday morning and it was Marioâs Monday
and he always got up to go to work before we all got up.
And it was about 7:30 in the morning, everybody was
gone to school, and I was still blow drying my hair and
our house kind of has a long waysâa long hallway, so
when you open the door, the front door, I can see down
the hallway.
And he opened it and I said, âWhat are you doing
home?â [A]nd he said, âOh, I forgot this,ââthis little
backpack that he used to carry, and he gave me a kiss,
said he loved me and then he left.
Carrie also identified the photographs of some of Herreraâs
belongings, including his shoes and the St. Michael medallion
that she testified Herrera ânever took . . . off.â
Vazquez argues that all of Carrieâs testimony was designed
to appeal to jurorâs emotions and was either irrelevant or
unduly prejudicial; he contends that trial counsel was deficient
for failing to object to the testimony on those grounds.
When reviewing claims of alleged ineffective assistance of
counsel, an appellate court affords trial counsel due deference
to formulate trial strategy and tactics. 61 There is a strong pre-
sumption that counsel acted reasonably, and an appellate court
will not second-guess reasonable strategic decisions. 62 On this
record, considering Carrieâs status as Herreraâs widow, defense
counsel may have had sound strategic reasons for not object-
ing to her trial testimony.
Ultimately, however, we need not decide whether the lack
of objection to Carrieâs testimony was the result of trial
counselâs strategy or even whether an objection to Carrieâs
61
Garcia, supra note 43.
62
Id.
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testimony would have been sustained. Because even though
Carrieâs testimony about her husbandâs death in the line of
duty was understandably emotional, Vazquez cannot show
actual prejudice from this testimony under Strickland. 63
In light of the jury instruction on sympathy and prejudice
already mentioned, the general nature of the case, and the
strong evidence relating to the critical issue of Vazquezâ intent
to shoot at the officers, we cannot find a reasonable probabil-
ity that the outcome of the trial would have been different if
jurors had not heard Carrieâs testimony.
(b) Failure to Seek Redaction or Suppression
of Recorded Interview
After his arrest, Vazquez was interviewed at the police sta-
tion by Hipps. A video recording of the interview was admitted
into evidence, and while the recording was being published,
jurors were provided a typed transcript as an aid. Because
the transcript was not admitted as evidence, we quote directly
from the video recording itself when discussing the recorded
interview.
Vazquez argues that his trial counsel was ineffective in vari-
ous ways for allowing portions of the recorded interview into
evidence. We address each of his arguments in turn, providing
additional background as necessary.
(i) No Motion to Redact First
22 Minutes of Interview
The recorded interview starts with officers bringing Vazquez
into an interview room in handcuffs. His right hand is ban-
daged. He sits alone in the room for almost 22 minutes before
the interview begins, except for a brief period when an officer
brings him a bottle of water and helps him to drink it because
he is handcuffed. During that brief period, Vazquez is respect-
ful and thanks the officer. After the officer leaves the room,
63
See Strickland, supra note 37.
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Vazquez burps and says, âExcuse me.â For the remainder
of the 22 minutes, Vazquez mostly sits quietly with his eyes
closed and appears to be sleeping. At times, he sings or raps
softly. At one point, he walks over to a wastebasket in the cor-
ner of the room and spits.
On appeal, Vazquez argues that trial counsel was ineffective
for not objecting to or moving to redact the entire 22-minute
portion of the recording. He contends that this entire portion
was irrelevant and that any arguable relevance was outweighed
by the danger of unfair prejudice. He asserts that counselâs
failure to redact this portion of the video allowed the State to
reference the video during closing argument and suggest to the
jury that it showed a lack of remorse, arguing, âHeâs singing,
heâs burping, heâs spitting, heâs sleep â heâs yawning, all after
he just shot a police officer.â
The State argues that the entire 22 minutes at the beginning
of the interview was relevant and admissible because it was
part of the police investigation, it demonstrated Vazquezâ state
of mind immediately after the shooting, and it showed a lack
of remorse that provided circumstantial evidence of premedi-
tation and intent. The State also contends that the relevance
of this portion of the video was not outweighed by unfair
prejudice and that therefore, trial counsel was not deficient in
failing to object to or seek redaction of the first 22 minutes of
the recording.
[34] We agree with the State that this portion of the record-
ing was relevant evidence, and we are not persuaded that
an objection on relevance would have been sustained to the
entirety of the first 22 minutes of the video. As a matter of law,
trial counsel cannot be ineffective for failing to make a merit-
less motion, objection, or argument. 64
Nor are we persuaded, on this record, that the trial court
would have sustained an objection on the basis that any
64
See, Rezac, supra note 5; State v. Mabior,314 Neb. 932
,994 N.W.2d 65
(2023), cert denied ___ U.S. ___, 144 S. Ct. 1073,218 L. Ed. 2d 249
(2024); State v. Collins, 299 Neb. 160,907 N.W.2d 721
(2018).
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relevance was outweighed by the danger of unfair prejudice.
Indeed, during closing argument, defense counsel expressly
referenced and relied on the first 22 minutes of the video,
stating: âNow, youâve seen many witnesses testify about
[Vazquezâ] politeness, his respectfulness. Youâve seen it on
display in his statement when he was arrested. He burped in an
empty room, nobody around to hear him, and he said, âExcuse
me.â . . . [T]hey want to try to show him as being disrespectful,
but youâve seen evidence to the contrary.â Defense counselâs
reliance on this portion of the recording suggests it was a stra-
tegic or tactical decision not to seek redaction of the first 22
minutes of the recording. And reasonable strategic decisions
by trial counsel will not be second-guessed on appeal. 65
For all these reasons, we conclude the record affirmatively
shows that trial counsel did not perform deficiently in failing
to object to or seek redaction of the first 22 minutes of the
recorded interview.
(ii) No Motion to Suppress
Pre-Miranda Statements
After Hipps entered the interview room and introduced
himself to Vazquez, the two engaged in small talk and then the
following colloquy occurred:
HIPPS: Iâm hoping you and I can have a conversation.
Some pretty crazy things happened tonight and hopefully
you can tell me your side of the story. Figure out whatâs
going on. Right now, I only know a very little bit of what
Iâm being told by other people happened. I wasnât there.
. . . Iâm hoping maybe you can help me out, help me
understand what was going on. And, uh
VAZQUEZ: I was only person that got caught.
HIPPS: Help me out with that. Okay. Well you, uh, you
want to tell me your side of the story?
VAZQUEZ: I mean I just woke up to people knocking
on the door.
65
Garcia, supra note 43.
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HIPPS: Okay.
VAZQUEZ: And I was I wasnât trying to go. So, I just
did what I did. Went out through the window and I ran.
HIPPS: Okay. Well you made it a ways.
VAZQUEZ: In a major way?
HIPPS: I said, you made it a ways.
VAZQUEZ: Oh, yeah. I tried to.
Immediately after this exchange, Hipps advised Vazquez of his
Miranda rights, and Vazquez waived those rights and agreed
to speak with Hipps.
Vazquez argues that trial counsel was ineffective for fail-
ing to seek suppression of these pre-Miranda statements. He
contends that because of counselâs failure, the prosecutor was
able to refer in closing argument to Vazquezâ statements that
he âwasnât trying to goâ and he just âdid what [he] did,â and
that the State relied on these statements to show âevidence of
a guilty mind.â 66
[35] Miranda v. Arizona 67 prohibits the use of statements
derived during custodial interrogation unless the prosecution
demonstrates the use of procedural safeguards that are effective
to secure the privilege against self-incrimination. 68 Because
Vazquez was plainly in custody when these statements were
made, we focus first on whether Hippsâ words or actions con-
stituted interrogation.
[36] Generally, the term âinterrogationâ under Miranda
refers not only to express questioning, but also to any words
or actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating response
from the suspect. 69 Here, when Hipps said, âHelp me out with
that . . . . [Y]ou want to tell me your side of the story?â he
66
Brief for appellant at 56.
67
Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602
,16 L. Ed. 2d 694
(1966). 68Vaughn, supra note 13
. 69Id.
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arguably engaged in questioning that was likely to elicit an
incriminating response. But even assuming, for the sake of
argument, that Hippsâ statement could be characterized as
interrogation rather than an introductory statement, and fur-
ther assuming that Vazquezâ somewhat vague response that
he âdid what [he] didâ was incriminating, we think the record
affirmatively shows that Vazquez cannot establish prejudice
from the failure to seek suppression of that response. In other
words, even if counsel had suppressed Vazquezâ response and
the jury did not hear him say, âI just did what I did. Went
out through the window and I ran,â there is not a reasonable
probability that the result of the proceeding would have been
any different.
We have already discussed the strength of other properly
admitted evidence tending to establish Vazquezâ premeditation
and intent to shoot at the officers, and we need not repeat it.
Given that evidence, Vazquez cannot establish actual preju-
dice based on his trial counselâs failure to suppress his pre-
Miranda statements. This claim of ineffective assistance is
without merit.
(iii) No Motion to Suppress
Post-Miranda Statements
Vazquez also argues that trial counsel was deficient for fail-
ing to seek suppression of several statements he made to Hipps
after waiving his Miranda rights. Before addressing these
arguments, we provide additional background regarding the
interview with Hipps.
Shortly after waiving his Miranda rights, Vazquez was
asked, âSo what actually happened today?â He told Hipps that
after he jumped out of the window, he âheard the gunshots and
started running.â Vazquez repeatedly denied having a gun with
him at any point during the events that day.
Hipps eventually told Vazquez that law enforcement had
recovered the gun. When Hipps asked Vazquez where he got
the gun he used to shoot at the officers, Vazquez replied: âIf
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yâall got the gun, then go do what you gotta do bro . . . Iâm just
gonna go to jail right now, gonna make my one phone call, eat,
take a shower, and go to bed.â Immediately after this reply, the
following exchange occurred:
HIPPS: Okay. Uhm, you were involved in something
pretty scary today. And something pretty crazy. And this
is your only chance that youâre gonna have to just sit
here and tell your side of the story. And, uh, I really need
honesty. I want honesty from you right now.
VAZQUEZ: Iâm, uh, Iâm tired. I told you what it
was bro.
HIPPS: Okay. But what youâre telling me, does not
match up with the facts.
VAZQUEZ: Iâm gonna do no more.
HIPPS: Okay?
VAZQUEZ: Man, this is what happened bro.
HIPPS: Did you shoot through that window?
VAZQUEZ: Man, you, uh, I (chuckles) I ainât (inau-
dible) to shoot out of no window, bro. I jumped through
that motherfucker. Even if I had a gun, I wouldnât shoot.
HIPPS: You did. You did have a gun. So, letâs . . . not
not be (inaudible) around, you did have one, right?
VAZQUEZ: Nah, I ainât saying nothing.
HIPPS: Yeah, you did. We have it.
VAZQUEZ: I mean if yâall got it, what are we trying to
do bro? Then get yâall fingerprints. Thatâs how yâall do it
with yâall cases bro.
HIPPS: Well thatâs not happening right now.
VAZQUEZ: Thatâs good.
HIPPS: And when your fingerprints come around and
tell a different story than what youâre telling, then that . . .
doesnât make you look like someone who made a mistake
and now wants to do whatever they can to make it right.
It makes you look like someone who made a mistake and
is doing everything they can to get away with it. Okay.
And thatâs not gonna happen.
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VAZQUEZ: I understand that. I ainât changing my
story though. So . . . I mean, if you know the truth bro,
why are you asking me?
The interview continued, and Vazquez continued to deny hav-
ing or shooting a gun during the standoff. Then, the following
exchange occurred:
VAZQUEZ: I donât know. I donât touch guns bro. I
shot my first gun when I was like 4 years old but I never
shot a gun since.
HIPPS: Yeah, except for today.
VAZQUEZ: Yeah. I donât know man. (Inaudible) ques-
tions, bro cause I just (inaudible) I need my lawyer so I
can go to jail bro. Iâm trying to get this shit washed up
(gestures to his bandaged hand). Well that nasty ass cut
right there.
HIPPS: I see that.
VAZQUEZ: I mean yâall must have caught the other
dude too, right or no? Must have. . . . Can I go? (Laughs)
This is crazy. You just staring at me, Iâm not trying to be
here, itâs like come on, just get it over with, put me in the
cruiser and to to JDC . . . to County if you want to, I donât
even care, bro just take me somewhere.
HIPPS: Well before you go, um, do you have a cell
phone?
VAZQUEZ: No sir.
HIPPS: You donât own one or you donât have one
with you?
VAZQUEZ: Yâall took my last one . . . .
At trial, Hipps testified that immediately after this exchange,
he stopped the interview because he understood Vazquez to
be requesting a lawyer and to be transported to either juvenile
detention or county jail. On appeal, Vazquez does not dispute
that Hipps ended the interview after this exchange, but he con-
tends it should have ended sooner.
More specifically, Vazquez contends that he invoked his
right to remain silent three times before Hipps ended the
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interrogation, and he argues that his trial counsel was defi-
cient for not moving to suppress all statements made after
these claimed invocations. He also argues that trial counsel
was deficient for failing to seek suppression of a statement by
Hipps that Vazquez characterizes as expressing an improper
opinion on Vazquezâ honesty. As we will explain, the record
on appeal affirmatively refutes these claims of ineffective
assistance.
a. Invocations of Right to Remain Silent
[37-41] We first address Vazquezâ contention that his coun-
sel should have moved to suppress all post-Miranda state-
ments he made after he invoked his right to remain silent. If a
suspect indicates that he or she wishes to remain silent or that
he or she wants an attorney, the interrogation must cease. 70 To
require cessation of custodial interrogation, the invocation of
the right to counsel must be unambiguous and unequivocal. 71
The desire to cut off questioning must be made with sufficient
clarity that a reasonable police officer under the circumstances
would understand the statement as an invocation of the right
to remain silent. 72 Ambiguous or equivocal statements that
might be construed as invoking the right to silence do not
require the police to discontinue their questioning. 73 It is a
mixed question of law and fact whether there has been an
unambiguous invocation of the right to remain silent or to
have counsel. 74 In determining whether there has been a clear
invocation, an appellate court reviews the totality of the cir-
cumstances surrounding the statement in order to assess the
70
Mabior, supra note 64. 71 Seeid.
72German, supra note 16
; State v. Schroeder,279 Neb. 199
,777 N.W.2d 793
(2010). 73Id.
74 See State v. Rogers,277 Neb. 37
,760 N.W.2d 35
(2009).
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words in context. 75 Relevant facts include the words spoken
by the defendant and the interrogating officer, the officerâs
response to the suspectâs words, the speech patterns of the
suspect, the content of the interrogation, the demeanor and
tone of the interrogating officer, the suspectâs behavior during
questioning, the point at which the suspect allegedly invoked
the right to remain silent, and who was present during the
interrogation. 76
As noted, Vazquez contends that he unambiguously invoked
his right to remain silent at least three times during the inter-
view prior to the point at which Hipps stopped the interroga-
tion. The first time was when he said, âIf yâall got the gun,
then go do what you gotta do bro . . . . Iâm just gonna go
to jail right now, gonna make my one phone call, eat, take a
shower, and go to bed.â The second time was in response to
Hippsâ telling him that his story âdoes not match up with the
facts,â to which Vazquez replied, âIâm gonna do no more.â
And the third time was in response to Hipps asking, â[Y]ou
did have [a gun], right?â to which Vazquez replied, âNah, I
ainât saying nothing.â
When these three statements are viewed in the context of
the full interrogation, we cannot find that a reasonable police
officer under the circumstances would have understood any
of the statements to be a clear and unambiguous invocation
of the right to remain silent. To the contrary, considering all
the circumstances surrounding these statements, we think a
reasonable officer would have understood Vazquezâ first state-
ment as nothing more than hyperbole, his second statement
as an indication that he was not inclined to change his story,
and his third statement as merely refusing to answer a spe-
cific question about whether he had a gun. After each of these
three statements, Vazquez continued to willingly participate in
the interview by both asking and responding to questions. In
75
See, German, supra note 16;Schroeder, supra note 72
.
76
State v. Clifton, 296 Neb. 135,892 N.W.2d 112
(2017).
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sum, the record affirmatively refutes Vazquezâ claim that his
counsel was deficient in failing to seek suppression based on
any of the three statements, because none of the statements
clearly invoked the right to remain silent.
b. Statements About Truthfulness
Next, Vazquez argues that his trial counsel was ineffective
for failing to object to or move to suppress certain statements
about honesty made by Hipps during the interview. We first
quote the statements being challenged on appeal and then dis-
cuss the relevant legal principles.
After Vazquez denied having or shooting a gun during the
standoff, Hipps stated:
I wanna get your side of the story. But when its so clear
that your side of the story isnât true, what youâre telling
me isnât true, and it goes contrary to a bunch of other
people that saw what happened and the evidence that we
have, that makes you look like, it makes you look bad. It
makes you look dishonest. And not just like someone who
made a mistake. . . . But someone whoâs sinister, evil, and
dishonest. And I donât think youâre that kind of person. I
donât know you, I donât. And Iâm not gonna pretend I do.
But just sitting here talking to you, you donât seem like
that kind of person to me. Okay?
On appeal, Vazquez argues that trial counsel was deficient
for not objecting to or moving to redact these statements by
Hipps. His argument relies exclusively on our opinion in State
v. Rocha. 77
In Rocha, illegal drugs were found in the defendantâs car
after he was arrested. During his postarrest interview, the
defendant said the drugs belonged to his cousin, who had
given them to him to hold as collateral for a $700 loan. During
the course of the interview, the interrogating officer repeat-
edly made statements questioning the defendantâs veracity,
and the defendant insisted he was being honest. The defendant
77
State v. Rocha, 295 Neb. 716,890 N.W.2d 178
(2017).
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objected to the admissibility of the investigatorâs statements
on the basis that it was impermissible opinion testimony on
whether the drugs belonged to the defendant and whether the
defendant was being honest. The court overruled the objection,
but gave a limiting instruction advising jurors that the officerâs
statements were ââinterview techniques and should not be
considered as substantive evidence in any way in determining
if [the defendant was in] possession of the alleged controlled
substance, nor . . . when considering the truthfulness of any
statements made by [the defendant].ââ 78 No similar instruction
was requested or given in the instant case.
[42,43] In Rocha, we found no reversible error in admitting
the officerâs statements. When discussing the admissibility of
statements made by interrogating officers during a recorded
interview played for the jury, Rocha rejected a rule that
âwould render categorically inadmissible all statements by law
enforcement in a recorded interview that happened to implicate
a defendantâs credibility,â reasoning that such a rule would risk
âexcluding important and necessary context to the defendantâs
admissible responses.â 79 But we also rejected a rule that would
categorically allow all such statements, reasoning that âwould
run the risk of allowing the admission of irrelevant and poten-
tially unfair prejudicial statements.â 80 Instead, we adopted the
following rule:
[S]tatements by law enforcement officials on the verac-
ity of the defendant or other witnesses, made within a
recorded interview played for the jury at trial, are to be
analyzed under the ordinary rules of evidence. Such com-
mentary is not admissible to prove the truth of the matter
asserted in the commentary. But it may be independently
admissible for the purpose of providing necessary con-
text to a defendantâs statements in the interview which
78
Id. at 725, 890 N.W.2d at 190. 79Id. at 740
,890 N.W.2d at 199
. 80Id.
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are themselves admissible. The police commentary must
be probative and material in light of that permissible pur-
pose of providing context to the defendantâs responses.
And even statements that are otherwise admissible may
be excluded under rule 403. Upon request, a defendant
is entitled to a limiting instruction that such statements
are to be considered only for the permissible purpose of
providing context to the defendantâs statements in the
interview. 81
Rocha cautioned that by adopting this rule, we did not open a
ââback doorâ to allow the admission of improper opinion testi-
mony simply by labeling it as âcontext,ââ 82 and we emphasized
that â[t]rial courts have a serious responsibility to ensure that
statements are relevant for the permissible purpose of provid-
ing necessary context to a defendantâs statements or that such
statements do not run afoul of rule 403.â 83 Rocha also observed
that nothing about its holding âshould be read to effect the
operation of the rule of completeness, under which a party is
entitled to admit the entirety of an act, declaration, conversa-
tion, or writing when the other party admits a part and when
the entirety is ânecessary to make it fully understood.ââ 84
Applying the Rocha framework here, we note that the
nature of Hippsâ statements are somewhat different than those
considered in Rocha. In Rocha, the interrogating officerâs
statements directly and repeatedly accused the defendant of
lying during the interview about whether the drugs were his
and whether he knew the drugs were in his vehicleâboth
those issues were contested matters for the jury to determine.
In the instant case, Hippsâ statements were framed more as an
appeal to give honest answers so that Vazquez would not âlook
dishonestâ later. And because Vazquez admitted at trial that
81
Id. at 740-41, 890 N.W.2d at 199. 82Id. at 741
,890 N.W.2d at 199
. 83Id. at 741
,890 N.W.2d at 199-200
. 84Id. at 742
,890 N.W.2d at 200
.
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he was lying during the interview when he denied having or
shooting a gun, his veracity in that regard was not a contested
issue for the jury to determine. But perhaps more importantly,
we cannot overlook the fact that Hipps also stated, two times,
that he did not think Vazquez seemed like the âkind of personâ
who was evil or dishonest. In light of these more positive
statements about Vazquezâ truthfulness, it is at least plausible
that defense counsel made a tactical decision not to object
under Rocha, believing that Hippsâ statements were, on bal-
ance, something counsel wanted the jury to hear.
But even if counselâs actions could not be justified as part
of a plausible trial strategy, we nevertheless conclude, on this
record, that Vazquez cannot establish actual prejudice under
Strickland. 85 That is so because even if all of Hippsâ statements
about Vazquezâ honesty had been redacted from the recorded
interview, for all of the reasons we have previously articulated
related to the strength of the evidence against Vazquez, there
is not a reasonable probability that the result of the proceeding
would have been any different.
(c) Failure to Object to Character
and Propensity Evidence
[44,45] Next, Vazquez argues that trial counsel was inef-
fective in failing to object to improper character or propen-
sity evidence offered by the State at trial. In a criminal case,
Neb. Evid. R. 404(1), Neb. Rev. Stat. § 27-404(1) (Cum.
Supp. 2024), operates as a broad exclusionary rule of relevant
evidence that speaks to a criminal defendantâs propensity to
have committed the crime or crimes charged. 86 Rule 404(2),
however, has been described by this court as a rule of inclu-
sion because it permits evidence of other crimes, wrongs,
or acts to be admissible for all purposes except to prove the
character of a person in order to show that such person acted
85
See Strickland, supra note 37.
86
Esch, supra note 42.
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in conformity with that character. 87 Evidence that is offered
for a proper purpose under rule 404(2) is often referred to as
having âspecialâ or âindependentâ relevance, which means
its relevance does not depend upon its tendency to show
propensity. 88
[46] Relatedly, under rule 404(2), proof of another distinct
substantive act is admissible in a criminal prosecution when
there is some legal connection between the two upon which
it can be said that one tends to establish the other or some
essential fact in issue. 89 In other words, evidence of other
crimes, wrongs, or acts may be admitted where the evidence
is so related in time, place, and circumstances to the offense
charged as to have substantial probative value in determining
the accusedâs guilt of the offense in question. 90
The specific evidence Vazquez challenges includes (1) a
question asked of his stepbrother about his knowledge of
Vazquezâ feelings toward police, (2) a statement Vazquez made
to police while detained at a juvenile detention center after
his arrest, (3) a âgoodbyeâ letter Vazquez left at the deten-
tion center when he was moved to jail after turning 18 years
old, (4) a statement made by Ross during his testimony, and
(5) a statement made by Vazquezâ father that was captured on
body camera footage. We address the first three together, and
the remaining two separately. But first, we provide additional
background facts.
(i) Stepbrother, Youth Center,
and âGoodbyeâ Letter
Vazquezâ stepbrother testified for the defense. On direct
examination, he testified about events that occurred prior
to the standoff and about his communication with Vazquez
87
State v. Moore, 317 Neb. 493, 10 N.W.3d 531 (2024). 88Id.
89Id.
90Id.
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after his arrest. On cross-examination, the stepbrother was
asked whether Vazquez had ever told the stepbrother âhow
he felt about police.â Defense counselâs objections on foun-
dation and relevance were overruled, and the stepbrother
answered, âNo.â
For the first few months after his arrest, Vazquez was
detained in a juvenile detention center because he had not yet
reached 18 years of age. During the Stateâs case in chief, a
supervisor at the detention center testified that in November
2020, police were called in response to an assault at the center
that did not involve Vazquez. Over a foundation objection,
the supervisor testified that while police officers were at the
center, he heard Vazquez yell, ââHey, Officer, how is Officer
Herrera?ââ It is not disputed that by November 2020, Vazquez
knew that Herrera had died. The supervisor testified that offi-
cers heard Vazquezâ comment.
Vazquez was subsequently disciplined for the incident and
wrote an apology letter. In it, Vazquez claimed that when the
officers came to the center, he had actually yelled, ââR.I.P.
Herreraââ because he thought the âcop looked at me in a mad
way like I was being disrespectful towards them.â When the
supervisor was asked whether he heard Vazquez yell âanything
about rest in peace,â he replied, âNo, he did not say that.â
Once Vazquez turned 18 years old, he was transferred to
the county jail pending trial, and he wrote a âgoodbyeâ letter
to staff at the juvenile detention center. That letter was admit-
ted into evidence over defense counselâs objections based on
foundation, speculation, relevance, and rule 403. On appeal,
Vazquez challenges the admissibility of the first line of that
letter, which stated, âMan as we all know I [am] in here for
something the average person wouldnât do, but that doesnât
describe the type of person I am.â
All of the evidence described above was admitted over trial
counselâs foundation and/or relevance objections, but Vazquez
argues trial counsel performed deficiently by not also object-
ing to the evidence as improper character evidence under
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(only issues both specifically assigned and specifically argued on appeal will be considered by appellate court). 92 SeeMowell, supra note 18
. 93 See, generally, State v. Jenkins,294 Neb. 475
,883 N.W.2d 351
(2016)
(holding statement made after murder was admission and direct evidence
of charged crime not subject to rule 404(2)).
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(ii) Rossâ Testimony
While Ross was testifying, the prosecution asked him
whether he heard Herrera screaming in pain at the scene of
the shooting. Vazquezâ appellate brief asserts, without further
explanation or discussion, that this question was âindefensible
conduct.â 94 We cannot tell whether this assertion is intended to
present a claim of ineffective assistance of counsel or a claim
of prosecutorial misconduct. But either way, the assertion is
insufficiently alleged and argued, and we decline to address
it further. 95
(iii) Body Camera Footage
of Vazquezâ Father
During the standoff, while other officers were in the resi-
dence attempting to coax Vazquez out of the bedroom, one offi-
cer stayed with Vazquezâ stepmother, father, and other family
members, all of whom were standing on the south side of the
residence. Body camera footage from that officer was played
at trial. The footage shows the family members patiently wait-
ing for the standoff to resolve, and then the sound of broken
glass and gunshots is heard. The video then depicts the father
screaming obscenities and yelling for police to not kill his son.
No objection was made to this portion of the video footage.
On appeal, Vazquez argues trial counsel was deficient for
not moving to redact his fatherâs outburst from the video
footage. He generally contends it âamounted to bad character
evidence against the father which had the potential of being
misapplied to appellant.â 96 We are not persuaded that an objec-
tion to this evidence on rule 404 grounds would have been
94
Brief for appellant at 53.
95
See, State v. Mrza, 302 Neb. 931,926 N.W.2d 79
(2019) (assignment of error on direct appeal regarding ineffective assistance of counsel must specifically allege deficient performance); State v. Filholm,287 Neb. 763
,848 N.W.2d 571
(2014) (mere conclusions of fact or law are not sufficient
to support assignment of error).
96
Brief for appellant at 53.
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sustained. But regardless, we see no reasonable probability
that, but for the admission of the video showing Vazquezâ
father yelling, the result of trial would have been different. As
such, Vazquez cannot show actual prejudice under Strickland,
and this claim fails as a matter of law. 97
(d) Failure to Object to
Questions About Veracity
During trial, both parties introduced evidence bearing on
the veracity of certain witnesses. On appeal, Vazquez contends
that his trial counsel was ineffective in asking questions that
elicited some of this evidence and in failing to object to ques-
tions by the State eliciting such evidence. In the sections that
follow, we first summarize the questions and responses about
which Vazquez complains. We then summarize his arguments,
recite the applicable legal principles, and explain why his
claims are meritless.
(i) Trial Counselâs Questions
Both Ross and Vazquez were questioned by defense coun-
sel about the gun used in the shooting. Ross testified that
Vazquez stole the gun from Rossâ stepfatherâs home while
they were helping Rossâ mother move out of that home. Ross
testified that Vazquez first showed him the stolen gun when
they stopped at a gas station during a road trip they took to
Arkansas right after the move.
When questioning Vazquez, trial counsel asked, âYou werenât
entirely honest [during your interview after your arrest] were
you?â to which he replied, âNo.â Defense counsel also asked
Vazquez several questions about Rossâ testimony. In response
to these questions, Vazquez denied that he stole the gun and
testified that it was Ross who stole it. Defense counsel then
recounted Rossâ testimony that Vazquez had shown him the
stolen gun at a gas station and asked, â[W]as that accurate?â
to which Vazquez answered, â[N]o, that wasnât accurate.â
97
See Strickland, supra note 37.
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Defense counsel also asked Vazquez questions that elicited
responses showing he agreed with some of Rossâ testimony,
including testimony that before the standoff, the stolen gun was
brought to a âgender revealâ party, and that Ross fired the gun
at a friendâs house.
Defense counsel also asked Vazquez questions about
Brownâs trial testimony, focusing in particular on her testimony
that before the shooting, Vazquez told her if he got âpicked
upâ by law enforcement, âhe would shoot at police, or try
to kill them.â Defense counsel asked Vazquez, âDid you say
what she said you said?â and he replied, âNo.â Counsel also
asked Vazquez about the detention supervisorâs testimony, and
Vazquez expressly denied shouting, ââHowâs Herrera?ââ
(ii) Prosecutionâs Questions
While the State was cross-examining Vazquez, the prosecu-
tor summarized the testimony of Vazquezâ stepbrother regard-
ing events that occurred the night before the standoff, and
then asked Vazquez, âThatâs not what happened?â Vazquez
responded by providing additional details about what had
occurred, stating that his stepbrother often âleave[s] some
stuff out.â
Vazquez was also asked about his interactions with the
owner of the home where he was found hiding after the
shooting. The following colloquy between the prosecutor and
Vazquez occurred:
Q. Did [the homeowner] ever come back and say,
âHey, you got to get out there. They have the place
surroundedâ?
A. No, sir.
Q. So, he was mistaken when he said he came back
and told you that a second time?
A. Yes, sir. He probably came to the window, and he
probably saw that I wasnât there but.
Q. Well, thatâs not what he said â
A. Yeah, I know â I know what he said.
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Q. âwas it? You heard him testify, correct?
A. Yes, sir. Yes, sir.
Q. And he testified that he opened up the door, again,
and said, âHey, you got to get out of here. Theyâre sur-
rounding the placeâ?
A. Yes, I heard that.
Q. And he said that, correct?
A. No, sir. Not when he shut the door first.
Q. You heard him testify to that?
A. Yes, sir, I did.
Q. Was he incorrect when he testified to that?
A. Yes, sir.
The prosecutor asked Vazquez whether he had been honest
with the police during his postarrest interview, and he said,
âNo.â The prosecutor also asked Vazquez questions about the
detention center supervisorâs testimony, and Vazquez reiter-
ated his belief that the supervisorâs testimony was âwrong.â
Vazquez was also asked questions about Brownâs testimony,
and Vazquez reiterated that Brown was âincorrectâ and was
ânot telling the truthâ when she testified that Vazquez told her
he would shoot at police if they tried to arrest him. Finally, in
response to questions about his motherâs testimony, Vazquez
insisted that his mother had hit him with a belt and knocked
his teeth out as a child, even though according to the prosecu-
tor, she âsaid that didnât occurâ and his dad did not âremember
seeing any teeth.â Vazquez testified that both of his parents
were âincorrectâ in this regard. Trial counsel did not object to
any of these questions.
During closing, the prosecutor referred to Vazquezâ testi-
mony regarding the testimony of other witnesses, stating:
Vazquez, when he took the stand, he took the stand and
he said [Brown], sheâs lying, although believe her when
she says I was scared. My mom, sheâs lying. [Ross], heâs
lying. [The inmate], well, heâs telling the truth, âcause
thatâs what I told him.
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(iii) Arguments and Legal Standards
On appeal, Vazquez argues that all the questions described
above were improper attempts to elicit testimony about the
credibility of other witnesses. He contends that his trial counsel
was deficient for asking such questions and for failing to object
when the State asked such questions. He argues that questions
going to the veracity of other witnesses âinvade the province of
the jury, lack probative value, distort the prosecutionâs burden
of proof, create âno winâ situations and are argumentative.â 98
He does not explain how this testimony resulted in actual
prejudice to his defense, although we acknowledge that on
direct appeal, a defendant claiming ineffective assistance of
trial counsel âneed not also allege prejudice.â 99
[48,49] We have endorsed the general principle that it is
ââimproper for one witness to testify as to the credibility of
another witness.ââ 100 Similarly, we have held that it is improper
for a prosecutor to inquire of a witness whether another person
may or may not have been telling the truth. 101 But to date, we
have not applied these propositions to limit a criminal defendÂ
antâs testimony that he or she disagrees with the incriminating
testimony of other witnesses.
Some jurisdictions, however, have adopted the general rule
that asking a defendant to directly comment on the veracity
98
Brief for appellant at 70.
99
Stelly, supra note 23,304 Neb. at 49
,932 N.W.2d at 871
. See, also,
Filholm, supra note 95 (holding no justification for requiring appellant to
allege prejudice when claiming ineffective assistance of trial counsel on
direct appeal).
100
State v. Archie, 273 Neb. 612, 633,733 N.W.2d 513, 530
(2007). See,
also, State v. Senteney, 307 Neb. 702, 712,950 N.W.2d 585
, 592 (2020)
(improper for investigator to testify regarding âindicators of deceptionâ
displayed by defendant during interview); Rocha, supra note 77
(investigator cannot comment on defendantâs veracity during interview);
State v. Beermann, 231 Neb. 380,436 N.W.2d 499
(1989) (deputy cannot
testify as to credibility of victim).
101
Archie, supra note 100 (officer cannot testify she thought victim was being
truthful).
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of another witness is improper. 102 These jurisdictions gener-
ally hold that a defendant cannot be asked if another wit-
ness is âlying,â âmistaken,â ânot telling the truth,â or similar
inquiries. 103
However, there are also jurisdictions that allow, at least in
some contexts, questions asking a defendant whether another
witness was âwrongâ or âmistaken,â 104 reasoning that such
questions can merely ââhighlight[] the objective conflictââ
between the two witnesses. 105 Still other jurisdictions hold that
102
See, e.g., Liggett v. People, 135 P.3d 725 (Colo. 2006) (improper to ask
defendant whether another witness was lying); State v. Maluia, 107 Haw.
20, 23,108 P.3d 974, 977
(2005) (improper to ask whether witnesses had
any reason to ââmake up a storyââ against defendant); Jensen v. State, 116
P.3d 1088, 1097 (Wyo. 2005) (cannot ask if another witness is ââlying,ââ
âânot telling the truth,ââ or ââmistakenââ); State v. Santiago, 269 Conn.
726,850 A.2d 199
(2004) (improper to ask if all of Stateâs witnesses
were lying); State v. Graves, 668 N.W.2d 860, 867 (Iowa 2003) (improper
to ask whether another witness ââmade that upââ); State v. Manning,
270 Kan. 674,19 P.3d 84
(2001) (improper to ask if other witnesses
are lying); Commonwealth v. Martinez, 431 Mass. 168,726 N.E.2d 913
(2000) (improper to ask if another witness was lying); Burgess v. State,
329 S.C. 88, 91,495 S.E.2d 445, 447
(1998) (cannot âpit[]â one witness
against anotherâno matter how question is phrased, cannot ask defendant
to comment on truthfulness of another witness); Knowles v. State, 632 So.
2d 62 (Fla. 1993) (cannot ask defendant whether he thinks other witnesses
were lying); State v. Emmett, 839 P.2d 781 (Utah 1992) (improper to ask if
victim was lying); State v. Casteneda-Perez, 61 Wash. App. 354,810 P.2d 74
(1991) (improper to ask if another witness told lie or was lying); State
v. Flanagan, 111 N.M. App. 93, 97, 801 P.2d 675, 679 (1990) (improper to
ask if another witness is ââmistakenââ or ââlyingââ); People v. Adams, 148
A.D.2d 964,539 N.Y.S.2d 200
(1989) (cannot ask if other testimony was
lie); People v. Riley, 63 Ill. App. 3d 176,379 N.E.2d 746
,19 Ill. Dec. 874
(1978) (improper to ask defendant if another witness was lying); Mason v.
State, 449 S.W.2d 47 (Tex. Crim. App. 1969) (improper to ask if another
witness is lying).
103
See id.
104
See, U.S. v. Gaines, 170 F.3d 72(1st Cir. 1999); U.S. v. Gaind,31 F.3d 73
(2d Cir. 1994).
105
Gaines, supra note 104, 170 F.3d at 82.
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the propriety of asking defendants questions about the veracity
of other witnesses depends on the factual context. 106
But this case does not require us to decide whether Nebraska
will adopt a bright-line rule prohibiting all questions asking
a defendant to comment on the veracity of another witness
or whether we instead will permit such questions depending
on how they are phrased or depending on the factual circum-
stances. Because, as we explain next, even assuming without
deciding that counsel could be found deficient for asking, or
failing to object to, questions that invited Vazquez to comment
on the credibility or veracity of other witnesses, the record
affirmatively shows that Vazquez cannot establish actual preju-
dice based on such alleged deficiency.
(iv) Analysis
All of the questions that Vazquez now claims his counsel
was deficient for asking him were designed to give him an
opportunity to dispute, under oath, some of the incriminat-
ing statements attributed to him by other witnesses. Setting
aside whether the form of these questions was proper from an
evidentiary standpoint, we can conceive of no way in which
Vazquez was prejudiced by them, as the questions merely
sought to elicit his version of events and impeach the credibil-
ity of adverse witnesses.
A similar analysis applies to many of the questions from
the prosecutor that Vazquez now contends his trial counsel
should have objected to as calling for improper testimony
about the veracity of other witnesses. Most of the challenged
106
See, Southern Union Co. v. Southwest Gas Corp., 281 F. Supp. 2d 1117
(D. Ariz. 2003) (reasoning propriety of question may depend on context
in which it is asked and finding one question about other witnessesâ lying
could have been phrased better but was not improper in context of case);
State v. Johnson, 273 Wis. 2d 626,681 N.W.2d 901
(2004) (veracity
questions may aid jury with credibility determinations in some contexts);
State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (agreeing with general
rule prohibiting such questions but finding situations may warrant ââwere
they lyingââ questions).
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questions merely gave Vazquez another opportunity to dis-
agree with a version of events that was unfavorable to him.
And although several questions were phrased in a form that
invited Vazquez to comment on whether another witness was
âmistaken,â âwrong,â âincorrect,â ânot telling the truth,â or
lying, the answers to those questions could easily have been
elicited through properly formed questions. Thus, it is possible
that defense counsel made a strategic decision not to object to
questions that gave Vazquez an opportunity to explain why he
disagreed with other witnessesâ testimony.
But even assuming defense counsel could be found defi-
cient for failing to object to one or more of the questions as
calling for improper testimony about the veracity of another
witness, there is no reasonable probability that the result of
the proceeding would have been any different if objections had
been made and sustained to any of the prosecutorâs questions
being challenged on appeal. That is so because in response to
a successful objection, the prosecutor could be expected to
simply rephrase the question in a way that elicited the same
information from Vazquez, but without asking him to comment
directly on the veracity of another witness. As a matter of law,
Vazquez cannot establish actual prejudice under Strickland
based on this claim of ineffective assistance of counsel. 107
(e) Failure to Properly Cross-Examine
and Impeach Brown
Vazquez argues that his trial counsel was ineffective in
cross-examining Brown. More specifically, he contends that
counsel adduced testimony from Brown that was adverse to
him and that counsel failed to properly impeach Brown. We
address each argument in turn.
(i) No Adverse Testimony From Brown
As noted, during her direct examination, Brown testified that
Vazquez told her, months before the shooting, that if he were
107
See Strickland, supra note 37.
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arrested, âhe would shoot at police, or try to kill them. I donât
know exactly what the words were.â On cross-examination, the
following testimony was adduced:
Q. And youâre saying as part of this conversation, . . .
Vazquez said something to the effect of he would shoot
at police?
A. Yes.
Q. What were his exact words?
A. That if he was caught for prior incidents that he
would shoot at police.
Vazquez argues that trial counsel was deficient in pursu-
ing this line of questioning and should have left well enough
alone. According to Vazquez, Brownâs testimony on direct
was âinexactâ and from âthe defense perspective that version
of the conversation was as good as [Vazquez] could hope to
achieve.â 108 He argues that counselâs cross-examination effec-
tively âchanged the first vague statement to an exact and
specific representation which the prosecution would rely upon
thereafter as primary evidence of intent.â 109
We see no deficient performance in this line of question-
ing. First, the substance of Brownâs testimony was the same
on both direct examination and cross-examination; both times,
she testified that Vazquez said he would âshoot at policeâ
if he were picked up or caught. Moreover, it is not insig-
nificant that, on cross-examination, when Brown was asked
about Vazquezâ âexact words,â she did not repeat her earlier
testimony that Vazquez said he would âtry to killâ police.
Particularly since a primary defense theory was that Vazquez
intended to shoot to scare the police but did not intend to
kill police, this line of cross-examination could be viewed as
helpful to the defense. There is no merit to this claim of inef-
fective assistance.
108
Brief for appellant at 86.
109
Id.
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(ii) Brown Impeachment
Vazquez contends that because premeditation and intent
were controverted issues at trial, it was critical to impeach
Brownâs credibility and call into question her testimony that
Vazquez said he would âshoot at policeâ if he got arrested. He
argues that trial counsel was deficient in failing to impeach
Brownâs credibility on three bases: impaired memory, pending
criminal charges, and contradictory facts.
a. Impaired Memory
Before trial, information was disclosed to defense counsel
that Brownâs sanity was evaluated in an unrelated criminal
case. After learning this, defense counsel sought a ruling from
the trial court allowing her to cross-examine Brown based on
that evaluation. The court ruled that counsel could not âget
intoâ any diagnosis of Brown made in the evaluation and
could not refer specifically to the evaluation or any medical
opinions expressed therein by the doctor who performed it.
But the court told defense counsel she was free to âelicit other
testimonyâ about the evaluation âas it goes to the witnessâs
credibility.â
While cross-examining Brown, trial counsel used a state-
ment Brown made to a doctor during the evaluation to impeach
her credibility and question her honesty. On appeal, Vazquez
broadly contends there was additional information contained
in the evaluation that trial counsel could have used to further
impeach Brownâs reliability as a historian, but he does not spe-
cifically allege what that information was. And he argues that
counsel was ineffective in failing to make an offer of proof
as to issues she was prevented from raising due to the district
courtâs pretrial order, but he does not specifically identify those
issues either.
To raise a claim of ineffective assistance on direct appeal, an
appellant must make specific allegations of the conduct he or
she claims constitutes deficient performance by trial counsel,
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including facts supporting a basis for the deficiency. 110 We
conclude that these allegations are conclusory, lack specific-
ity, and merely assert that trial counsel could have done more.
Because this claim of ineffective assistance was insufficiently
raised, we do not address it further.
b. Criminal Charges
Next, Vazquez argues that trial counsel was ineffective for
failing to cross-examine Brown about criminal charges that
were pending against her at the time of trial and whether those
charges affected her testimony. Vazquez argues that such ques-
tioning was relevant to impeach Brownâs credibility.
The record shows a criminal charge was filed against Brown
in Lancaster County in March 2019. It also shows that during
an August 31, 2020, interview with Brown, law enforcement
discussed proposing an âofferâ to Brown or âdo[ing] some
other thingsâ for her. In light of that interview, the district court
ordered the State to disclose to Vazquez âany benefit [Brown]
received as a result of any statements she made.â
Vazquez does not assert that Brown received any benefit
from the State in exchange for her testimony against Vazquez,
nor does he suggest that trial counsel knew of any such benefit.
But he broadly contends that trial counsel was deficient for
failing to cross-examine Brown about any benefits she received
in exchange for her testimony against Vazquez.
Because nothing in the appellate record suggests that Brown
was promised or received any sort of benefit for testifying, and
because Vazquez does not allege specific facts to support any
basis for questioning Brown about such a benefit, we again
conclude Vazquez has failed to allege this deficient performÂ
ance claim with sufficient specificity. 111
110
See, State v. Blaha, 303 Neb. 415,929 N.W.2d 494
(2019);Mrza, supra note 95
.
111
Id.
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c. Contradictory Facts
Vazquez also argues trial counsel was ineffective in failing
to impeach Brown based upon information Vazquez supplied
to counsel. Among other things, Vazquez contends he told
trial counsel that he was detained in a facility at the time
he allegedly made the statement to Brown about shooting at
police. We find this claim of ineffective assistance of counsel
was adequately raised but the record is insufficient to resolve
it on direct appeal.
d. Failure to Object to Voir Dire
Vazquez alleges that trial counsel was ineffective for failing
to object when the State used voir dire to âpreviewâ jurorâs
opinions of trial evidence. His claim is based on counselâs fail-
ure to object during the following questioning:
[Prosecutor:] Okay. Now, sometimes people will testify
and if they testify and they are charged with a crime they
will have typically an agreement with the State to testify
and in exchange they will get the benefit of whatever
happens on their criminal charges.
Does that make sense to everyone?
PROSPECTIVE JURORS: Yes.
[Prosecutor:] How do you feel about the testimony
coming from the person that has that agreement with
the State?
....
PROSPECTIVE JUROR . . . : Not a big fan.
[Prosecutor:] Not a big fan. Tell me why youâre not a
big fan.
PROSPECTIVE JUROR . . . : So, the State gives
immunity or some reduced sentence to somebody for
their testimony. They get off from whatever they did, is
that â is he â is that person giving their true testimony,
or are they just trying to get out of hot water?
[Prosecutor:] Okay. Whose job will it be to evaluate
that issue, when that person testifies, do you know?
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PROSPECTIVE JUROR . . . : No.
[Prosecutor:] Yeah, it would be the juryâs decision to
decide on issues of credibility. Issues of credibility come
in all forms.
Children who are victims of sexual abuse testify and
what are some of the issues of credibility for that child,
anyone?
PROSPECTIVE JUROR: Memory.
[Prosecutor:] Memory.
PROSPECTIVE JUROR: Scare-age (phonetic).
[Prosecutor:] Scared.
PROSPECTIVE JUROR: Age.
[Prosecutor:] Yeah. So, all of those issues the jury
applies to that witness and determines whether that state-
ment, whether that testimony under oath is credible, and
what weight to give it.
So, a person who is testifying with an agreement,
youâll hear the terms and conditions of that agreement
and then youâll be able to evaluate the credibility of that
testimony in light of the agreement. And then assign
weight to that testimony.
What are some of the ways that you could determine
the credibility of that statement aside from the plea agree-
ment that exists?
....
PROSPECTIVE JUROR . . . : Are their accounts of the
same nature, or the same incident, from other people who
are not getting an agreement?
PROSECUTOR: All right, yeah.
....
PROSPECTIVE JUROR . . . : Evidence.
PROSECUTOR: Yeah, the physical evidence. The wit-
ness testifies one way, and the physical evidence supports
that version, that can be evidence that bolsters or assists
the jury with making that credibility determination. Does
that make sense?
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[50,51] We have said that parties may generally ask hypo-
thetical questions designed to determine whether prospec-
tive jurorsâ preconceived attitudes or biases would prevent
them from following the law or applying a legal theory or
defense. 112 But counsel may not use voir dire to preview
prospective jurorsâ opinions of the evidence that will be pre-
sented. 113 Nor may counsel secure in advance a commitment
from prospective jurors on the verdict they would return, given
a set of hypothetical facts. 114 In sum, parties may not use voir
dire to impanel a jury with a predetermined disposition or to
indoctrinate jurors to react favorably to a partyâs position when
presented with particular evidence. 115
We addressed the proper use of voir dire in Iromuanya. 116
In that case, the defendant shot at and wounded one person,
and the bullet struck and killed another. During voir dire, the
prosecutor explained the legal theory of transferred intent and
asked if anyone thought the theory was unfair as applied to a
hypothetical scenario. The prosecutor did not reference any
of the actual facts in the case, but he asked jurors to consider
what sort of evidence would show intent, and he specifically
asked whether any juror had training in the use of firearms and
warning shots. When one prospective juror responded that his
work protocol required firing a warning shot, the prosecutor
remarked he thought that was a ââpretty good idea.ââ 117
In Iromuanya, we found the prosecutorâs remarks about
transferred intent were proper, but that it was improper to
question jurors about what type of evidence would show
intent and whether a warning shot should be fired, reasoning
these questions were âclearly intended to persuade prospective
112
Iromuanya, supra note 45.
113
Id.
114
Id.
115
Id.
116
Id.
117
Id. at 815, 806 N.W.2d at 424.
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jurors to the Stateâs viewpoint of the evidence before they
heard it.â 118 We concluded, however, that although trial coun-
sel should have objected to this prosecutorial misconduct, the
record failed to show the defendant suffered prejudice as a
result. In doing so, we relied on other evidence in the record
that was generally very favorable to the State.
Other jurisdictions have addressed the propriety of discuss-
ing cooperation or plea agreements during voir dire. These
jurisdictions have held that it is generally proper for a party
to ask jurors if the existence of a plea agreement would affect
their ability to assess the credibility of the witness. 119
For example, in State v. Smith, 120 both the State and the
defendant asked prospective jurors about their ability to objec-
tively judge the credibility of witnesses testifying pursuant to
cooperation agreements with the State. Specifically, jurors were
asked by the State whether they thought the mere existence
118
Id. at 817, 806 N.W.2d at 426.
119
See, U.S. v. Ortiz, 315 F.3d 873, 896 (8th Cir. 2002) (holding âa potential
jurorâs attitude towards immunized testimony is relevant, because it could
help the parties exercise their peremptory challengesâ); Evans v. State, 808
So. 2d 92, 106 (Fla. 2001) (inquiring âinto whether any of the potential
jurors would harbor any biases against a witness who had accepted a plea
bargainâ; proper when State did not bolster witnessesâ credibility, but
instead emphasized that jury needed to wait to view evidence presented
at trial); State v. Dudley, 51 S.W.3d 44 (Mo. App. 2001) (holding proper
for State to ask whether existence of plea agreement would affect jurorsâ
ability to assess credibility of witness); State v. Smith, 46 Conn. App. 600,
700 A.2d 91 (1997) (holding proper for counsel to discuss in voir dire
how cooperation agreement might affect assessment of credibility); State
v. Jones, 347 N.C. 193,491 S.E.2d 641
(1997) (holding permissible to ask
voir dire questions to determine if jury can follow law and be impartial);
Hopkins v. State, 429 N.E.2d 631, 635 (Ind. 1981) (holding voir dire could
not be used to âimplant in jurorsâ minds ideas about the substantive facts
of the case being tried,â but there was ânothing wrong in using voir dire
to inquire into jurorsâ biases or tendencies to believe or disbelieve certain
things about the nature of the crime itself or about the particular line of
defenseâ).
120
Smith, supra note 119.
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of the agreement meant that the witnesses would be lying,
and they were asked by defense how the fact that a witness
would benefit from an agreement would affect their assessment
of credibility. 121 The court held these questions were proper,
reasoning:
The questions at issue in this case went directly to the
prospective jurorsâ ability to assess the credibility of wit-
nesses who would be called at trial. The questions were
not attempts to elicit opinions from prospective jurors
regarding how they would rule on a certain stated set
of facts, or to condition them to prejudge pivotal issues
that would affect the outcome of the trial. . . . [T]hese
questions were proper, and the trial court was justified
in allowing counsel to probe prospective jurors on their
ability to assess witness credibility through the use of
hypothetical questions . . . . 122
And in State v. Jones, 123 the prosecutor told the jury a
coÂdefendant might testify at trial pursuant to a plea agree-
ment and asked whether ââ[t]he mere fact that there is some
plea agreement, some plea bargain, . . . would that affect
your decision or your verdict in this case?ââ When the jurors
responded no, the prosecutor asked whether they could ââlisten
to the courtâs instructions of how you are to view accomplice
or interested witness testimonyââ and ââfollow the courtâs
instructions?ââ 124 He also asked, ââAfter having listened to
that testimony and the courtâs instructions as to what the
law is, and you found that testimony believable, could you
give it the same weight as you would any other uninterested
witness?ââ 125 No objection was made by defense counsel.
121
See id.
122
Id.,46 Conn. App. at 606
,700 A.2d at 95
.
123
Jones, supra note 119,347 N.C. at 201
,491 S.E.2d at 646
.
124
Id. at 202,491 S.E.2d at 646
.
125
Id.
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On appeal, the defendant in Jones argued the voir dire ques-
tions were improper and the court should have sua sponte
prohibited them. The appellate court disagreed, finding they
were permissible questions âdesigned only to determine if pro-
spective jurors could follow the law and serve as impartial and
unbiased jurors.â 126 The court emphasized that the questions
(1) did not incorrectly or inadequately state the law, (2) were
not an impermissible attempt to ascertain how a juror would
vote on a given state of facts, and (3) sought to measure the
ability of the jurors to be unbiased. 127
Turning to the facts of this case, we note as a threshold
matter that according to the appellate record, before asking
any questions in voir dire about plea agreements, the State
requested a sidebar to âclarifyâ what sort of questions would
be permitted. It is unclear what was said by counsel during this
sidebar, because the record contains a notation that the court
reporter âcould not hear Attorneysâ voices.â As such, the record
does not affirmatively show that trial counsel failed to object,
as Vazquez now appears to assert.
But even if Vazquez is correct that trial counsel failed to
object to the voir dire questions inquiring about witnesses
who have agreements with the State, we find no deficient
performance. Counsel cannot be deficient for failing to object
to questions that are permissible, and here, the prosecutorâs
questions related to juror attitudes about testimony based on
plea agreements in general; the questions were not attempts
to persuade prospective jurors to the Stateâs viewpoint of
the evidence. None of these questions related to the substan-
tive facts of the case, or to any particular legal theory of the
case. We see nothing in the voir dire questioning that can be
characterized as incorrectly or inadequately stating the law or
impermissibly attempting to ascertain how a juror would vote
126
Id.,347 N.C. at 204
,491 S.E.2d at 648
.
127
Id.
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on a given set of facts. This claim of ineffective assistance has
no merit.
(f) Miscellaneous
Vazquez asserts several ineffective assistance of counsel
claims that do not neatly fit into any prior category, and we
address them here.
(i) Opening Statement
Vazquez asserts that trial counsel provided ineffective assistÂ
ance during opening statement. His entire argument is that the
opening statement was deficient because:
No theory of defense was presented. The jury was told
the case was sad. The jury was told to keep an open
mind. The jury was also told they would be presented
with unlawful act manslaughter. There was no discus-
sion of any evidence. There was no road map of what
evidence will lead the jury to that lesser included offense.
The statement concluded with a request to find [Vazquez]
guilty of manslaughter. 128
He broadly contends that counselâs opening statement reflected
âinsufficient advocacy in a case of first degree murder,â 129 but
he does not explain why, nor does he identify what potential
evidence or issues defense counsel should have discussed
instead.
Even if we could find that some portion of this claim has
been alleged with sufficient particularity, it is soundly refuted
by the appellate record. Trial counselâs opening statement
discussed the juryâs role, the Stateâs burden of proof, and the
trial process. Counsel discussed the evidence in general terms,
suggested there would be a lack of evidence showing premedi-
tation and intent, and urged the jury to wait until it had heard
all the evidence before making its decision.
128
Brief for appellant at 80.
129
Id.
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We see nothing constitutionally deficient about trial coun-
selâs opening statement. Instead, as Vazquez appears to con-
cede in his appellate brief, counselâs approach to the opening
statement was a matter of trial strategy, which is afforded
due deference by appellate courts when reviewing claims of
alleged ineffective assistance. 130 This claim is meritless.
(ii) Evidence of Force Used
to Arrest Vazquez
Vazquez claims that trial counsel was ineffective for failing
to object to âan accumulation of evidenceâ that âlaw enforce-
ment had committed a large number of officersâ and a âheavy
amount of lethalityâ to his arrest. 131 His only argument in sup-
port of this claim, however, is that trial counsel should have
objected to the admission of drone footage of Vazquezâ actual
arrest. We therefore limit our analysis of this claim to only
that evidence. 132
The drone footage is approximately 5 minutes long and
has no audio. It provides an overhead view of Vazquezâ sur-
render and begins with Vazquezâ standing with his arms in the
air outside the enclosed porch where he was found hiding. A
black armored vehicle with âLancaster County Sheriffâ writ-
ten on the side is parked in the yard, approximately 20 feet
from Vazquez, and an officer with an assault rifle can be seen
in the open roof of the armored vehicle. While 2 officers take
Vazquez to the ground and handcuff him, 10 or so other offi-
cers keep their weapons aimed at the porch area. The drone
then approaches the porch area and views inside; the drone
operator testified this was done to confirm there was no one
else hiding there.
Vazquez argues that trial counsel was deficient for failing
to object to the drone footage âas irrelevant and if overruled
130
See Garcia, supra note 43.
131
Brief for appellant at 80.
132
See Goynes, supra note 41.
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as unduly prejudicial and cumulative under [r]ule 403.â 133 He
presents no argument that the drone footage was irrelevant,
and we see none, so we focus on his argument that it should
have been excluded under rule 403.
He contends the drone footage was unnecessarily cumula-
tive because one of the arresting officers had already testified
about the arrest and the jury had already seen that officerâs
body camera footage of the arrest. Vazquez argues the drone
footage was unduly prejudicial because it was âan unneces-
sary display of the ominous presence of a dozen heavily
armed officers outfitted in battle dress uniforms including hel-
mets, a police canine, and a massive black armored personnel
carrier.â 134 According to Vazquez, the drone footage allowed
the State âto amplify the theme that police believed [Vazquez]
was dangerous.â 135
The record is sufficient to both address and reject this claim
of ineffective assistance. As we will explain, objections to the
admissibility of the drone footage on the basis of rule 403
would have been overruled.
Before addressing rule 403, we acknowledge that trial coun-
sel may have had sound strategic reasons for not objecting to
the drone footage. Although it shows a strong police response
to the shooting, it also shows that Vazquez was compliant,
did not fire additional shots at the officers, and did not resist
being taken into custody. Vazquez acknowledges that his coun-
sel may have made a tactical decision not to object to this
evidence, but we ultimately find it unnecessary to consider
that issue. Because regardless of defense strategy, we are per-
suaded the drone footage would have been admitted over a
rule 403 objection.
Although one of the arresting officers had already testified
about the arrest and his body camera footage was admitted,
133
Brief for appellant at 80.
134
Id. at 81.
135
Id. at 31.
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the drone footage of the event provided a more comprehensive
view of the crime scene and the area where Vazquez was dis-
covered and arrested. The admission of the drone footage was
thus not unnecessarily cumulative. And to the extent the drone
footage depicted a heavy police presence at the scene, which
we understand to be the thrust of Vazquezâ argument that the
footage was unfairly prejudicial, the relevance of the footage
was not outweighed by the danger of unfair prejudice.
The large officer presence and the conduct of those offi-
cers was a direct response to Vazquezâ actions and the danger
he posed. He barricaded himself inside a residence to avoid
arrest on a felony warrant, he shot at and injured police while
attempting to escape, and then, still armed with a gun, he ran
into a residential neighborhood and hid from law enforcement.
As we have often said, â[T]he State is allowed to present a
coherent picture of the facts of the crimes charged, and it may
generally choose its evidence in so doing.â 136 We see nothing
about the drone footage that would tend to suggest a decision
based on an improper basis or would âlure the fact finder into
declaring guilt on a ground different from proof specific to
the offense charged.â 137 Because a rule 403 objection to this
evidence would have been overruled, counsel was not deficient
for failing to make such an objection.
(iii) Testimony Adduced Regarding Ross
Vazquez argues that trial counsel was ineffective, when
cross-examining the officer who arrested Ross, for adducing
the following testimony:
Q. It was fairly salty language that you used when you
spoke with . . . Ross, is that correct?
A. Yes.
Q. And isnât it true that you said, âWhere the fuck is
the gun?â
136
State v. Rush, 317 Neb. 622, 660, 11 N.W.3d 394, 427 (2024), modified on
denial of rehearing 317 Neb. 917, 12 N.W.3d 787.
137
Id. at 661, 11 N.W.3d at 428.
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A. I believe so, yes.
Q. And . . . Ross responded what?
A. He didnât have the gun.
Q. Okay. Did he say, âIf Iâd had a gun I wouldnât have
been runningâ?
A. Yes.
Although Vazquez does not point it out, the record shows
the officer later clarified that Ross actually said, â[I]f I had a
gun[,] I wouldnât have stopped running.â
Vazquez argues that by adducing this testimony, trial coun-
sel permitted the jury to make an adverse inference that âa
person with a gun would use that gun intentionally and initiate
a firefight.â 138 We cannot agree that a reasonable juror would
infer anything from this testimony about whether Vazquez
intentionally shot at officers. The testimony was not related
to Vazquez at all. Nor does Vazquez point to anything in
the record suggesting that this testimony was somehow used
at trial, or referenced in closing argument, to suggest that
Vazquez intentionally shot at officers. Trial counsel did not
perform deficiently by adducing this testimony.
(iv) Unreasonable Advice About
Right to Testify
Vazquez claims his trial counsel was ineffective when advis-
ing him whether to exercise his right to testify at trial. He
alleges that trial counsel did not adequately explain the advan-
tages and disadvantages of testifying, did not tell him what
kind of questions to expect on direct examination or cross-
examination, and did not ârehearseâ 139 with him. Both Vazquez
and the State suggest the record on appeal is insufficient to
resolve this claim. We agree.
Although the record shows that Vazquez was advised by
the court of his right to testify and not to testify, and it also
shows that Vazquez consulted with counsel about these rights
138
Brief for appellant at 87.
139
Id. at 88.
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before advising the court he had decided to testify, the record
is understandably silent as to the nature of counselâs advice.
This claim has been sufficiently raised, but the record on direct
appeal is not sufficient to resolve it.
(v) Questions About Employment Status
Vazquez claims his trial counsel was ineffective for failing
to object when the State asked about his employment status.
The argument is based on the following cross-examination
testimony:
Q. And I wasnât sure, I believe . . . Ross testified that
when [you] were [with him] in [Arkansas] he was work-
ing, is that correct?
A. Yes, sir. Thatâs correct.
Q. And were you working?
A. No sir. I was trying to find a job though.
Q. So, when you werenât working you were staying
at home?
A. Yes, sir.
Vazquez argues that his employment status was not a fact of
consequence and that these questions were asked to âinflame
the emotions of the jury againstâ 140 him based on his unem-
ployment. He generally contends this testimony should have
been objected to under rules 401 and 403.
Even assuming for the sake of argument that objections
to this line of questioning would have been sustained, there
is no reasonable probability that, but for the testimony about
employment status, the outcome of the proceeding would
have been different. Vazquez cannot establish prejudice under
Strickland, and there is no merit to this claim. 141
(vi) References to Gang Membership
Vazquezâ stepbrother testified at trial. During his direct
examination, he testified that he had entered into plea
140
Id. at 89.
141
See Strickland, supra note 37.
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agreements with both State and federal prosecutors. His writ-
ten plea agreement with the State was admitted into evidence,
as were both the State and federal proffer letters. Trial coun-
sel did not object. The federal proffer letter states in part that
the stepbrother agreed to reveal âeverything [known] about
violations of federal and state law committed by members of
the No Name Demons gang and . . . the homicide investiga-
tions and prosecutions concerning [Vazquez].â
During the cross-examination of Vazquez, the prosecu-
tor asked for the screen name Vazquez used to communi-
cate on social media during the standoff, and he answered,
â[S]omething like, you know, no dot murder dot no names.â
Trial counsel did not object to this testimony.
On appeal, Vazquez argues that trial counsel was ineffec-
tive in failing to object to the response about Vazquezâ screen
name and in failing to redact information about gang activity
from the stepbrotherâs federal proffer letter. He contends these
deficiencies allowed the jury to know of Vazquezâ gang affili-
ation and were âso egregious and resulted in such a high level
of prejudice that no tactic or strategy could overcome the effect
of the error.â 142
We find no deficient performance. Both references to gang
affiliations were fleeting and indirect. And although the pros-
ecution and defense both knew Vazquez had connections to
the âNo Name Demonsâ gang, the jury did not know of these
connections. As such, the reference to that gang in the step-
brotherâs proffer letter was not something the jury would nec-
essarily presume related to Vazquez. Indeed, the language in
the proffer letter can be read to refer to two different mattersâ
the first being testimony related to the gang, and the second
being testimony related to Vazquez. Similarly, Vazquezâ mere
recitation of his screen name was not something the jury would
presumptively equate with a gang affiliation.
142
Brief for appellant at 76.
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On this record, we conclude that any arguable connection
between Vazquez and evidence of potential gang affiliation
was so attenuated that trial counsel was not deficient in failing
to object.
(vii) Attorney Work Product
Vazquez claims his trial counsel was deficient in failing to
â[s]afeguardâ her attorney work product. According to Vazquez,
counsel gave him trial preparation materials to review while he
was in custody, and those materials eventually âcame into the
possession ofâ Ross. 143 Vazquez does not allege how, when,
or why that occurred, nor does he describe the nature of the
materials except to broadly allege they âincluded the questions
trial counsel intended to ask of the witnesses.â 144
Vazquez asserts that his attorney was aware of the privacy
risks associated with providing these materials to him while
he was in jail. He asserts counsel was âdeficient by provid-
ing [him] with those notes,â 145 but he does not explain what
steps counsel should have taken to safeguard the materials,
either before or after providing them to him. He also claims
that when counsel âeventually learned that the work product
came into the possession of . . . Ross,â she was deficient in
failing to âascertain how many people had accessâ to the notes
and in failing âto request that the work product be returned if
an unintended disclosure had occurred.â 146 Vazquez does not
actually allege that any unintended disclosure of privileged
information occurred, but he speculates âthe potential for
harm was great.â 147
To show that counselâs performance was deficient, a defendÂ
ant must show that counselâs performance did not equal that
143
Id. at 78.
144
Id.
145
Id.
146
Id.
147
Id.
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of a lawyer with ordinary training and skill in criminal law. 148
Vazquez does not cite to a single case, from this jurisdiction
or any other, for the proposition that an attorney is consti-
tutionally deficient if he or she provides trial preparation
materials to a client who is incarcerated. But even assuming
without deciding that facts could be alleged showing that such
conduct is deficient under certain circumstances, Vazquezâ
vague and uncertain allegations fall far short of the specific-
ity required to raise such a claim. At most, he has alleged
facts showing that his counsel provided him with some trial
preparation materials and that his counsel was not concerned
after learning those materials may have been disclosed. These
facts might support a reasonable inference that counsel did not
think the materials were particularly critical to the defense,
but they do not show deficient performance.
(g) Sentencing
Finally, Vazquez claims that trial counsel was ineffec-
tive in connection with his sentencing. He points to the fact
that he âreceived an aggregate sentence of 129 years to life
imprisonmentâ 149 for the seven convictions in this case, and
he argues that âtrial counsel performed deficiently by not pro-
viding the court . . . with the necessary data and argument to
adequately apply the decisional and statutory authorities that
were controlling.â 150 When he refers to controlling author-
ity, we understand Vazquez to be referring to Neb. Rev. Stat.
§ 28-105.02 (Reissue 2016) and to Miller v. Alabama. 151 We
limit our analysis accordingly.
In Miller, the U.S. Supreme Court held that a criminal
defendant under the age of 18 cannot constitutionally be
148
State v. Assad, 304 Neb. 979,938 N.W.2d 297
(2020).
149
Brief for appellant at 89.
150
Id. at 90.
151
Miller v. Alabama, 567 U.S. 460,132 S. Ct. 2455
,183 L. Ed. 2d 407
(2012).
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sentenced to a mandatory term of life imprisonment without
parole. In light of the holding in Miller, our cases hold that
âa sentencer must consider specific, individualized factors
before handing down a sentence of life imprisonment without
parole for a juvenile.â 152 In response to Miller, the Nebraska
Legislature enacted § 28-105.02, which provides that the sen-
tencing range for a person convicted of a Class IA felony who
is under 18 years of age âshall be a maximum sentence of not
greater than life imprisonment and a minimum sentence of
not less than 40 yearsâ imprisonment.â Section 28-105.02 also
mandates a list of mitigating factors that courts must consider
when imposing sentence. Because Vazquezâ conviction for first
degree murder is a Class IA felony, his sentence was governed
by § 28-105.02.
The courtâs sentencing remarks confirm that it considered
both Miller and the mitigating factors under § 28-105.02 when
imposing sentence. The court stated:
Having regard for the nature and circumstance of the
crime, the history, character and condition of [Vazquez],
and all relevant â and all other relevant factors, includ-
ing the age, mentality, education and experience, social
and cultural background, past criminal record, motiva-
tion for the offense, nature of the offense, amount of
violence involved, impetuosity of [Vazquez], family and
community environment, his ability to appreciate the
risks and consequences of his conduct, his intellectual
capacity, and the mental health evaluation, and including
all the factors set forth in Miller v. Alabama, Graham v.
Florida, and Jones v. Mississippi, and all of the mitigat-
ing factors set forth in Neb. Rev. Stat. Section 28-105.02,
the Court finds that imprisonment of [Vazquez] is neces-
sary for the protection of the public, because the risk
is substantial that, during any period of probation, he
would engage in additional criminal conduct, and a
152
State v. Mantich, 287 Neb. 320, 340,842 N.W.2d 716
, 730 (2014).
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lesser sentence would depreciate the seriousness of his
crimes and promote disrespect for the law.
The court then sentenced Vazquez to imprisonment for not
less than 70 years and not more than life on the first degree
murder conviction, a term well within the statutory sentencing
range under § 28-105.02.
We do not understand Vazquez to argue that the trial court
erred by imposing an excessive sentence or that the court failed
to properly consider either Miller or the mitigating factors
under § 28-105.02. Instead, he argues that trial counsel was
deficient for not specifically mentioning Miller in her sentenc-
ing remarks and for âfail[ing] to present adequate evidenceâ 153
to the court on adolescent brain development. The record
affirmÂatively refutes this claim.
Prior to sentencing, trial counsel referred Vazquez to a
licensed psychologist for a comprehensive mental health evalu-
ation as contemplated by § 28-105.02(f). The 23-page report
of that evaluation was submitted for inclusion in the presen-
tence investigation report and was considered by the sentenc-
ing court. Because the contents of presentence investigation
reports are privileged, 154 we will not quote directly from the
psychologistâs report. However, as relevant to this claim, the
report contained an exhaustive discussion of the current sci-
entific literature on neuropsychological brain development,
including the law that has developed around that science, and
then applied those concepts to Vazquez.
Moreover, trial counsel made both oral and written sentenc-
ing remarks to the court. Each focused heavily on the fact
that Vazquez was a juvenile when these crimes were commit-
ted, emphasized the law on developing juvenile brains, and
addressed the ways in which Vazquezâ impulse control and
decisionmaking were impacted by his young age.
153
Brief for appellant at 91.
154
See Neb. Rev. Stat. § 29-2261 (6)(a) (Cum. Supp. 2024).
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Because the record affirmatively shows that trial counsel
presented the court with argument specifically addressing the
relevant factors under both Miller and § 28-105.02, and with
specific information about Vazquez relating to both, there is no
merit to this claim of ineffective assistance.
V. CONCLUSION
For the foregoing reasons, we conclude that all of Vazquezâ
assignments of error lack merit and that his claims of ineffec-
tive assistance of trial counsel either lack merit, were not raised
with sufficient specificity, or cannot be resolved on direct
appeal. We therefore affirm his convictions and sentences.
Affirmed.
Heavican, C.J., not participating in the decision.