State v. Dubray
| Decision Date | 10 October 2014 |
| Docket Number | No. S–12–1171,S–12–1171 |
| Citation | 854 N.W.2d 584 |
| Court | Nebraska Supreme Court |
| Parties | State of Nebraska, appellee, v. Dominick L. Dubray, appellant. |
James R. Mowbray, Lincoln, and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Trial: Photographs.The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect.
2. Trial: Photographs: Appeal and Error.An appellate court reviews a trial court's admission of photographs of a victim's body for abuse of discretion.
3. Homicide: Photographs.If the State lays proper foundation, photographs that illustrate or make clear a controverted issue in a homicide case are admissible, even if gruesome.
4. Homicide: Photographs.In a homicide prosecution, a court may admit
into evidence photographs of a victim for identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent.
5. Criminal Law: Evidence.The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally choose its evidence in so doing.
6. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error.A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to the misconduct.
7. Trial: Prosecuting Attorneys: Appeal and Error.When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, an appellate court will review the record only for plain error.
8. Appeal and Error.An appellate court may find plain error on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Generally, an appellate court will find plain error only when a miscarriage of justice would otherwise occur.
9. Trial: Prosecuting Attorneys.Prosecutors are charged with the duty to conduct criminal trials in a manner that provides the accused with a fair and impartial trial.
10. Trial: Prosecuting Attorneys: Words and Phrases.Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.
11. Trial: Prosecuting Attorneys: Appeal and Error.When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor's acts constitute misconduct. If it concludes that a prosecutor's act were misconduct, it next considers whether the misconduct prejudiced the defendant's right to a fair trial.
12. Trial: Prosecuting Attorneys: Juries.A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct.
13. Trial: Prosecuting Attorneys: Due Process.Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infected the trial that the resulting conviction violates due process.
14. Trial: Prosecuting Attorneys.Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.
15. Trial: Prosecuting Attorneys: Appeal and Error.In determining whether a prosecutor's improper conduct prejudiced the defendant's right to a fair trial, an appellate court considers the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.
16. Trial: Prosecuting Attorneys: Juries.Prosecutors are not to inflame the jurors' prejudices or excite their passions against the accused. This rule includes intentionally eliciting testimony from witnesses for prejudicial effect.
17. Trial: Prosecuting Attorneys: Juries.Prosecutors should not make statements or elicit testimony intended to focus the jury's attention on the qualities and personal attributes of the victim. These facts lack any relevance to the criminal prosecution and have the potential to evoke jurors' sympathy and outrage against the defendant.
18. Trial: Prosecuting Attorneys: Evidence.A prosecutor commits misconduct when he or she persists in attempting to introduce evidence that the court has ruled inadmissible. This prohibition precludes an artful examination that refers directly to the inadmissible evidence.
19. Prosecuting Attorneys.A prosecutor's attributing deceptive motives to a defense counsel personally or to defense lawyers generally constitutes misconduct.
20. Trial: Prosecuting Attorneys.When a prosecutor's comments rest on reasonably drawn inferences from the evidence, he or she is permitted to present a spirited summation that a defense theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and the defense. These types of comments are distinguishable from attacking a defense counsel's personal character or stating a personal opinion about the character of a defendant or witness.
21. Trial: Prosecuting Attorneys: Juries.A distinction exists between arguing that a defense strategy is intended to distract jurors from what the evidence shows, which is not misconduct, and arguing that a defense counsel is deceitful, which is misconduct.
22. Postconviction: Effectiveness of Counsel: Appeal and Error.A defendant who is represented by different counsel in his or her direct appeal must raise any known or apparent claims of the trial counsel's ineffective assistance, or the claim will be procedurally barred in a later postconviction proceeding.
23. Effectiveness of Counsel: Proof.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
24. Criminal Law: Effectiveness of Counsel.A defense counsel's performance was deficient if it did not equal that of a lawyer with ordinary training and skill in criminal law.
25. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error.To show prejudice from a trial counsel's alleged deficient performance, a defendant must demonstrate a reasonable probability that but for his or her trial counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. An appellate court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or fundamentally unfair.
26. Effectiveness of Counsel: Proof.The two components of the ineffective assistance test, deficient performance and prejudice, may be addressed in either order. If it is more appropriate to dispose of an ineffective assistance claim due to the lack of sufficient prejudice, a court will follow that course.
27. Postconviction: Effectiveness of Counsel: Appeal and Error.When an appellate court reviews a claim of ineffective assistance of counsel in a postconviction proceeding, it often, but not always, presents a mixed question of law and fact.
28. Effectiveness of Counsel: Appeal and Error.For “mixed question” ineffective assistance claims, an appellate court reviews the lower court's factual findings for clear error but independently determines whether those facts show counsel's performance was deficient and prejudiced the defendant.
29. Effectiveness of Counsel: Appeal and Error.In reviewing claims of ineffective assistance on direct appeal, an appellate court is deciding only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?
30. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error.If an alleged ineffective assistance claim rests solely upon the interpretation of a statute or constitutional requirement, which claims present pure questions of law, an appellate court can decide the issue on direct appeal. Otherwise, it addresses ineffective assistance claims on direct appeal only if the record is sufficient to review these questions without an evidentiary hearing.
31. Confessions: Police Officers and Sheriffs: Due Process.Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the 14th Amendment.
32. Confessions: Due Process: Case Overruled.Nebraska's requirement that a defendant's incriminating statements to private citizens must be voluntary to be admissible is incorrect under established due process precedents, overruling State v. Bodtke,219 Neb. 504, 363 N.W.2d 917 (1985), and State v. Kula,260 Neb. 183, 616 N.W.2d 313 (2000).
33. Criminal Law: Confessions: Rules of Evidence.A defendant should challenge incriminating statements allegedly procured through a private citizen's coercion or duress under Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008).
34. Effectiveness of Counsel.Under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant who claims ineffective assistance of counsel is not prejudiced by an alleged error that deprives the defendant of the chance to have a court make an...
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...at 368–69 (emphasis supplied).68 See, e.g., State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).69 See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).70 See Taylor, supra note 68.71 Kass, supra note 36.72 See generally, State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014) ; State v.......
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...does not constitute misconduct.Id. at 54, 870 N.W.2d at 802-03. Further, as the Nebraska Supreme Court stated in State v. Dubray, 289 Neb. 208, 227, 854 N.W.2d 584, 604 (2014), "[b]ut when a prosecutor's comments rest on reasonably drawn inferences from the evidence, he or she is permitted ......
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