State v. Wood
| Citation | 310 Neb. 391 |
| Decision Date | 19 November 2021 |
| Docket Number | S-20-877 |
| Parties | State of Nebraska, appellee, v. Marvin L. Wood, appellant. |
| Court | Nebraska Supreme Court |
State of Nebraska, appellee,
v.
Marvin L. Wood, appellant.
No. S-20-877
Supreme Court of Nebraska
November 19, 2021
1. Trial: Expert Witnesses. The right of an indigent defendant to the appointment of an expert witness at the State's expense generally rests in the discretion of the trial court.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules and 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. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal; the determining factor is whether the record is sufficient to adequately review the question.
5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The record is sufficient to resolve on direct appeal a claim of ineffective assistance of counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to the defendant's claims.
6. Due Process. There are three factors of procedural due process set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[310 Neb. 392] 7. Expert Witnesses. With respect to a defense request for the appointment of an expert independent of the prosecution, the question in each case must be not what field of science or expert knowledge is involved, but, rather, how important the scientific issue is in the case and how much help a defense expert could have given.
8. ___. Some reasonable preliminary showing by the defense justifying its request for the appointment of an expert is necessary because the criminal justice system cannot afford defense experts on demand.
9. Judges: Expert Witnesses. The determination of whether a defendant has made an adequate showing of the reasonable necessity for an appointed expert lies within the discretion of the trial judge.
10. Courts: Words and Phrases. A district court abuses its discretion when its reasoning or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
11. Constitutional Law: Expert Witnesses. Outside the context of psychiatric expertise, to show a constitutional right to appointment of an independent expert at the State's expense, the accused must timely make a preliminary, particularized showing (1) that an issue involving specialized knowledge is likely to be a significant factor in the accused's defense and (2) that there is a reasonable necessity for the defense to have expert assistance in contesting that issue.
12. Expert Witnesses. To be a significant factor in an accused's defense, an issue involving specialized knowledge must be one likely to make a difference as to the outcome if the defendant is successful in contesting it.
13. ___. There is a reasonable necessity for appointed expert assistance if the defendant shows some basis for believing the issue can only be strongly contested with the assistance of an appointed expert.
14. Trial: Expert Witnesses. Sometimes, under the facts presented, pretrial access to the State's experts and their cross-examination at trial will be adequate to contest the issue.
15. Expert Witnesses. In the context of a motion for appointment of an expert, public money need not provide defense counsel with equipment for a "fishing expedition."
16. ___. The defense cannot be asked to support the motion for appointment of an expert with information that can only be found by paying for expert assistance the defendant cannot afford. Neither should the trial court demand defense counsel conduct a lay investigation outside the bounds of what can be expected from an attorney of ordinary training and experience.
17. Trial: Expert Witnesses. There must be some particularized preliminary showing by the defendant either that cross-examination of the State's
[310 Neb. 393] experts was inadequate to the task of revealing misleading or inadequate information or that there was a reasonable necessity for an independent expert to help the defense prepare for effective cross-examination of the State's experts.
18. Effectiveness of Counsel: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved.
19. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.
20. Effectiveness of Counsel: Records: Proof: Appeal and Error. An appellate court can determine whether the record proves or rebuts the merits of a claim of ineffective assistance of trial counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance.
21. Effectiveness of Counsel: Appeal and Error. In order to preserve a claim of ineffective assistance of trial counsel when new counsel represents the defendant on direct appeal, the appellant must make specific allegations of the conduct the appellant claims constituted deficient performance by trial counsel.
22. Effectiveness of Counsel: Waiver: Records: Appeal and Error. Appellate counsel does not waive a claim of ineffective assistance of trial counsel by failing to specifically allege and argue prejudice, because doing so would often require details unlikely to be found in the record or known to the defendant without further inquiry.
23. Records: Appeal and Error. An appellate court ordinarily does not scour the record in search of facts that might support an appellant's claim.
24. Rules of Evidence: Hearsay: Evidence: Witnesses. Neb. Rev. Stat. § 27-806 (Reissue 2016) allows the credibility of a declarant of a hearsay statement or statement defined in Neb. Rev. Stat. § 27-801 (4)(b)(iii), (iv), or (v) (Cum. Supp. 2020)-statements offered against a party that are by a person authorized by the party, by the party's agent or servant, or by the party's coconspirator-to be attacked by any evidence that would be admissible for those purposes if the declarant had testified as a witness, without any opportunity to deny or explain.
25. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
[310 Neb. 394] 26. Hearsay. Statements offered to show their effect on the listener are not hearsay.
27. ___. Statements are not hearsay to the extent they are offered for context and coherence of other admissible statements and not for the truth or the truth of the matter asserted.
28. Witnesses: Impeachment: Prior Convictions. The basic premise underlying impeachment of a witness by evidence of a prior felony conviction is that any past felony committed by the witness is to some degree relevant to that individual's credibility.
29. Witnesses. Credibility of a witness is not at issue when the truth of the assertions are not in dispute.
30. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding relevancy will not be reversed absent an abuse of discretion.
31. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees an opportunity for effective cross-examination, but not in whatever way or to whatever extent the defendant might wish, and trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.
32. Effectiveness of Counsel: Proof. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.
33. Effectiveness of Counsel: Presumptions. In assessing deficiency in counsel's performance, a court presumes that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
34. Effectiveness of Counsel. Trial counsel's decisions that amount to reasonable trial strategy do not constitute deficient performance.
35. ___. Decisions about whether to engage in cross-examination, and if so to what extent and in what manner, are strategic in nature and generally will not support an ineffective assistance claim.
36. Effectiveness of Counsel: Appeal and Error. An appellate court does not use perfect hindsight to criticize unsuccessful trial strategies or second-guess trial strategy.
37. Expert Witnesses: Words and Phrases. An expert does not have to couch his or her opinion in...
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