State v. Prado

CourtCourt of Appeals of Nebraska
Citation30 Neb.App. 223
Docket NumberA-20-815
PartiesState of Nebraska, appellee, v. Alejandro Garcia Prado, appellant
Decision Date12 October 2021

30 Neb.App. 223

State of Nebraska, appellee,

Alejandro Garcia Prado, appellant

No. A-20-815

Court of Appeals of Nebraska

October 12, 2021

1. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

2. __: __ . Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 3. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

4. Effectiveness of Counsel: Claims. A claim of ineffective assistance that is insufficiently stated is no different than a claim not stated at all.

5. Jurors: Damages. A Golden Rule argument that tells jurors to place themselves in the plaintiff's shoes and award the amount they would charge to undergo equivalent disability, pain, and suffering is improper because it asks the jurors to place themselves or their loved ones in the plaintiff's position, effectively urging them to become advocates for the plaintiff.

6. Juror Qualifications. Parties may not use voir dire to impanel a jury with a predetermined disposition or to indoctrinate jurors to react favorably to a party's position when presented with particular evidence.

7. Effectiveness of Counsel. As a matter of law, counsel is not ineffective for failing to make a meritless objection.

8. Evidence: Words and Phrases. Cumulative evidence means evidence tending to prove the same point of which other evidence has been offered.

[30 Neb.App. 224] 9. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

10. Evidence: Words and Phrases. Evidence which is not relevant is inadmissible. To be relevant, evidence must be probative and material.

11. Rules of Evidence. Under 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.

12. Effectiveness of Counsel: Proof. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

13. Right to Counsel: Appeal and Error. An appellate court reviews a trial court's rulings on motions to withdraw as counsel and motions to dismiss appointed counsel and appoint substitute counsel for an abuse of discretion.

14. Criminal Law: Appeal and Error. A defendant in a criminal case may not take advantage of an alleged error which the defendant invited the trial court to commit.

15. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

16. Constitutional Law: Miranda Rights: Self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 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.

17. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. For purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), interrogation refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

[30 Neb.App. 225] 18. 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.

19. 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.

20. Trial: Evidence. The principle of opening the door is simply a contention that competent evidence which was previously irrelevant is now relevant through the opponent's admission of other evidence on the same issue.

21. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

22. Sentences: Appeal and Error. When a trial court's sentence is within the statutory guidelines, the sentence will be disturbed by an appellate court only when an abuse of discretion is shown.

23. Judgments: Appeal and Error. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

Appeal from the District Court for Lancaster County: Kevin R. McManaman, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and Nathan J. Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Riedmann, Judge


Alejandro Garcia Prado appeals his conviction and sentence in the district court for Lancaster County for first degree [30 Neb.App. 226] sexual assault. He argues multiple ineffective assistance of counsel claims, along with claims that the district court erred in both procedural and evidentiary matters. Prado also assigns that there was insufficient evidence for his conviction and that the sentence imposed was excessive. We affirm.


On March 9, 2018, the victim, D.A., and her friend, Gwen P., each consumed three to four shots of vodka at D.A.'s apartment around 11 p.m. before going to a local club at approximately midnight. D.A.'s friend, Brenden I., met her at the club with two other male friends about 30 minutes later. While at the club, DA., Gwen, and Brenden each consumed more alcohol. At approximately 2:30 a.m., the group returned to D.A.'s apartment. DA., Brenden, Gwen, and one of Brenden's friends each had one to two beers at the apartment, and the group decided to order pizza. At 2:44 a.m., the group ordered a pizza delivery, for which Brenden paid.

Prado arrived at the apartment to deliver the pizza, at which point Brenden informed Prado he did not have cash for a tip but offered Prado a beer in lieu of the tip. Prado accepted, drank the beer at the door to the apartment, and then offered to come back when his shift ended with "a bottle and a pizza." Although Prado testified the group invited him to return, Brenden testified that he remembered hinting to Prado that he did not need to return, because they were just going to eat the pizza and go to bed. Regardless, Brenden and Prado exchanged phone numbers, and Prado said he would return in 20 minutes. Brenden told Prado that the group was tired and that they "probably weren't gonna be up much longer." Brenden did not receive a phone call from Prado later that night.

The witnesses' testimonies conflict at this point, but generally, DA. and her friends testified that Gwen and DA. went to sleep and the three male friends left soon thereafter, somewhere between 4 and 7 a.m. Brenden was the last one out of the apartment, and although he believed he would have turned

[30 Neb.App. 227] off the apartment lights, he could not confirm that he did. He did not believe the music was still playing but was certain that he closed the apartment door. He testified that he did not have a key to lock the front door from the outside.

Prado testified that he returned to D.A.'s apartment when he clocked out of work around 4:30 a.m. According to him, the lights and music were still on, so he knocked and "a brunette answer[ed] the door" and let him into the apartment. He then followed her into the bedroom, where a woman with blond hair was lying on the bed. Prado explained that he climbed into bed between the two women because he thought, "well, hey, if I'm in the middle maybe I might get lucky and have a threesome." Prado claimed that D.A., the woman with blond hair, then kissed him and began stroking his genitals over his pants. Prado admitted to kissing D.A.'s neck. He claimed that DA. then pulled her pants down, which he believed to be an indication that she wanted to have vaginal intercourse with him. Prado testified that he began to position himself to have intercourse with DA., but he prematurely ejaculated. DA. left to use the bathroom, and Prado turned his attention to Gwen, who...

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