State v. Munoz

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/10/2019 09:06 AM CDT

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Nebraska Supreme Court A dvance Sheets

303 Nebraska R eports

STATE v. MUNOZ

Cite as 303 Neb. 69

State of Nebraska, appellee, v.

Lucio P. Munoz, appellant.

___ N.W.2d ___

Filed May 10, 2019. No. S-18-050.

1. Appeal and Error. An alleged error must be both specifically assigned

and specifically argued in the brief of the party asserting the error to be

considered by an appellate court.

2. Effectiveness of Counsel: Appeal and Error. Assignments of error on

direct appeal regarding ineffective assistance of trial counsel must spe-

cifically allege deficient performance.

3. 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.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-

fective assistance of trial counsel may be determined on direct appeal

is a question of law. 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 conclu-

sively determine whether counsel did or did not provide effective assist­

ance and whether the defendant was or was not prejudiced by counsel’s

alleged deficient performance.

5. Appeal and Error. In the absence of plain error, where an issue is

raised for the first time in an appellate court, it will be disregarded inas-

much as a lower court cannot commit error in resolving an issue never

presented and submitted to it for disposition.

6. Trial: Prosecuting Attorneys. When considering a claim of prosecuto-

rial misconduct, an appellate court first considers whether the prosecu-

tor’s acts constitute misconduct.

7. ____: ____. A prosecutor is entitled to draw inferences from the evi-

dence in presenting his or her case, and such inferences generally do not

amount to prosecutorial misconduct.

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8. ____: ____. A prosecutor’s conduct that does not mislead and unduly

influence the jury is not misconduct.

9. Rules of Evidence: Intent. The purpose of Neb. Rev. Stat. § 27-513(2)

(Reissue 2016) is to prevent the jury from drawing an unfavorable infer-

ence from a witness’ assertion of a privilege.

10. Effectiveness of Counsel: Postconviction: Records: 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 in a subsequent postconviction proceeding.

11. 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. The determining factor is

whether the record is sufficient to adequately review the question.

12. ____: ____: ____. The record is sufficient if it establishes either that

trial counsel’s performance was not deficient, that the appellant will not

be able to establish prejudice, or that trial counsel’s actions could not be

justified as a part of any plausible trial strategy.

13. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of

ineffective assistance of counsel under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must

show that his or her counsel’s performance was deficient and that this

deficient performance actually prejudiced the defendant’s defense.

14. ____: ____. To show that counsel’s performance was deficient, a defend­

ant must show that counsel’s performance did not equal that of a lawyer

with ordinary training and skill in criminal law.

15. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-

dice, the defendant must demonstrate a reasonable probability that but

for 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.

16. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and

Error. Determining whether defense counsel was ineffective in failing

to object to prosecutorial misconduct requires an appellate court to first

determine whether the petitioner has alleged any action or remarks that

constituted prosecutorial misconduct.

17. Evidence. Evidence is relevant if it has 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.

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STATE v. MUNOZ

Cite as 303 Neb. 69

18. 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.

19. 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.

Appeal from the District Court for Scotts Bluff County: Leo

P. Dobrovolny, Judge. Affirmed.

Kelly S. Breen, of Nebraska Commission on Public

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal from criminal convictions, Lucio P.

Munoz focuses on three incidents at trial: (1) a comment dur-

ing the prosecutor’s opening statement about evidence not

found, (2) a witness’ assertion of a testimonial privilege in

the jury’s presence, and (3) expert testimony regarding blood

spatter evidence. Because trial counsel did not object, Munoz

alleges plain error and ineffective assistance of counsel. We

find neither. The prosecutor’s statement was consistent with the

evidence. The bill of exceptions does not show that the prose-

cutor knew the witness would assert a privilege. And the blood

spatter evidence was neither irrelevant nor unfairly prejudicial.

We affirm the district court’s judgment.

II. BACKGROUND

On Friday, December 30, 2016, at approximately 10 p.m.,

Munoz knocked on Trudy Ziegler’s door. He told her that his

girlfriend, Melissa May, had been raped that morning by a

tenant of the same apartment complex where they all lived.

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Cite as 303 Neb. 69

Ziegler told Munoz to call the police, and he did so from

her apartment.

Just after 11 p.m., two police officers arrived at the apart-

ment complex. Their body cameras recorded the interaction.

Munoz told the officers that May had been raped. He allowed

the officers into his apartment, where an intoxicated May was

asleep on Munoz’ bed. After Munoz woke her, May told the

officers that she did not know why they had been called and

Munoz told her to “tell them the truth.” May did not wish to

make a police report. One of the officers told Munoz that when

May was sober, she could come talk to the police. Munoz

replied that she was not going to do so. He added, “But some-

thing’s gonna happen, I know.”

An upset Munoz returned to Ziegler’s apartment and said

that May did not want to press charges. He asked “what do I do

now,” and Ziegler told him “just love her all the more.”

At approximately 2 a.m. on December 31, 2016, Munoz

called his son, Martin Brady. Munoz told Brady that he “did

something . . . bad” and that he wanted to kill himself. Brady’s

girlfriend called the police to check on Munoz.

The same two officers returned to Munoz’ apartment shortly

after 3 a.m. Again, their body cameras recorded the interaction.

Munoz said that he was feeling bad “because of what hap-

pened.” He allowed the officers into his apartment. The door

to his bedroom was closed, and he told the officers that his

girlfriend had gone home. Munoz agreed to go to a hospital to

speak with someone. He locked the deadbolt on his apartment

door, and one of the officers drove him to the hospital.

At approximately 8 a.m., Brady received a call from a doc-

tor for Munoz “to get out of the . . . hospital.” Brady and his

girlfriend picked up Munoz and took him to Brady’s house.

Munoz stayed at Brady’s house the rest of the morning, and at

some point, arrangements were made for Munoz to leave town.

Brady explained that Munoz had talked about seeing family

because it had “been awhile” and that Munoz had brothers in

Texas and Illinois.

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STATE v. MUNOZ

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A friend of Munoz agreed to take Munoz to Illinois to visit

one of his brothers. The friend asked if Munoz wanted to travel

the next day, but Munoz said he wanted a ride as soon as pos-

sible. So, the friend testified, they “gassed up, and headed out.”

According to the friend, Munoz had no luggage or other items

and he left Munoz in Illinois with Munoz’ brother.

Meanwhile, Ziegler did not see Munoz or May on Saturday,

which she said was unusual. On Sunday and Monday, Ziegler

knocked on Munoz’ door, but there was no answer. On Tuesday,

January 3, 2017, Ziegler asked the property manager to check

on May. Using a master key to unlock the deadbolt, the prop-

erty manager entered Munoz’ apartment. She opened the bed-

room door and discovered May, deceased, on the bed.

An autopsy revealed that May had suffered 37 stab wounds,

and the cause of death was determined to be multiple stab

wounds. The turquoise sweatshirt on May’s body appeared to

match her top as depicted on the December 30, 2016, body

camera footage. Evidence for a sexual assault kit was col-

lected, and it showed no DNA profile other than that of May.

Munoz’ brother in Texas began searching for Munoz due to

a concern that “something had happened . . . where he live[s].”

After making telephone calls, he discovered that Munoz was in

Illinois. Munoz asked his brother to forgive him, but did not

say for what. During later conversations, Munoz “said that he

was going to die in prison.”

Officers with the Scotts Bluff County sheriff’s office flew

to Illinois to transport Munoz back to Scotts Bluff County.

As they were going through the airport to catch a connect-

ing flight, they heard someone playing a piano and Munoz

said “they are playing my death song” and “I’m going to

get the death penalty.” While waiting for a flight, Munoz

asked the other officer questions about Nebraska’s death

penalty, including “if it was voted back in” and the method

of execution.

The State charged Munoz with first degree murder and

use of a deadly weapon to commit a felony, and the court

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conducted a jury trial. Additional background concerning

events occurring during trial will be set forth in the analy-

sis section.

The jury returned verdicts of guilty on both counts. The

court imposed a sentence of life imprisonment for the murder

conviction and of 20 to 40 years’ imprisonment for the use of a

weapon conviction. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

Munoz’ five assignments of error fall into two general cat-

egories. He asserts as plain error that prosecutorial misconduct

occurred during opening statements and that the court erred by

permitting Brady to invoke his Fifth Amendment privilege in

the presence of the jury.

Munoz assigns that his trial counsel provided ineffective

assistance by failing to object to the prosecutor’s opening

statement, failing to demand compliance with Neb. Evid. R.

513(2), Neb. Rev. Stat. § 27-513(2) (Reissue 2016), and failing

to challenge blood spatter evidence.

[1,2] The argument section of Munoz’ brief contains a

subsection concerning additional instances of alleged ineffec-

tive assistance of counsel, but these issues were not assigned

as error. An alleged error must be both specifically assigned

and specifically argued in the brief of the party asserting

the error to be considered by an appellate court.1 Moreover,

assignments of error on direct appeal regarding ineffective

assistance of trial counsel must specifically allege deficient

performance.2 We do not consider these additional unas-

signed matters.

IV. STANDARD OF REVIEW

[3] An appellate court may find plain error on appeal when

an error unasserted or uncomplained of at trial, but plainly

1

State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

2

See State v. Mrza, 302 Neb. 931, ___ N.W.2d ___ (2019).

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evident from the record, prejudicially affects a litigant’s sub-

stantial right and, if uncorrected, would result in damage to the

integrity, reputation, and fairness of the judicial process.3

[4] Whether a claim of ineffective assistance of trial counsel

may be determined on direct appeal is a question of law. 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 preju-

diced by counsel’s alleged deficient performance.4

V. ANALYSIS

1. Plain Error

[5] Munoz presents two issues as a matter of plain error,

because he did not object or otherwise preserve the issue for

appellate review. In the absence of plain error, where an issue

is raised for the first time in an appellate court, it will be

disregarded inasmuch as a lower court cannot commit error

in resolving an issue never presented and submitted to it for

disposition.5

(a) Prosecutorial Misconduct

Munoz contends that the following remarks by the prosecu-

tor during his opening statement amounted to prosecutorial

misconduct:

There is some DNA evidence in this case and I think

I told some of you that the last trial we had. The murder

weapon was not found. His clothing with . . . May’s blood

was not found. Of course, we have about [a] four hour

time gap from the time the police were first there and the

time — the second they were there. And, the clothes he

3

Id.

4

Id.

5

State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).

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has when he is arrested in Illinois and are sent back here

are not the clothes he left with. Those were changed.

Munoz claims the above statements are problematic, because

there was no evidence that Munoz hid or destroyed “blood”

evidence or that May’s blood was found on any article of

clothing belonging to Munoz.

We begin with the observation that the jury was informed

that opening statements are not evidence. The prosecutor told

the jury, “This is opening statement, what we say right now is

not evidence.” And although the court’s preliminary instruc-

tions were not memorialized in the record, Munoz’ coun-

sel stated:

As [the judge] indicated in the preliminary instruction

that he gave to you, we talked about opening statements.

He indicated that the statements that the attorneys get to

make at this time should not be considered as evidence.

So anything that [the prosecutor] told you just a few min-

utes ago should not be considered as evidence and don’t

consider anything that I’m going to tell you is evidence

as well.

[6-8] When considering a claim of prosecutorial miscon-

duct, an appellate court first considers whether the pros-

ecutor’s acts constitute misconduct.6 A prosecutor is enti-

tled to draw inferences from the evidence in presenting his

or her case, and such inferences generally do not amount

to prosecutorial misconduct.7 And a prosecutor’s conduct

that does not mislead and unduly influence the jury is not

misconduct.8

The prosecutor’s opening statement did not constitute pros-

ecutorial misconduct. The evidence at trial was consistent

with the prosecutor’s opening statement: Neither the murder

6

State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

7

State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).

8

State v. Swindle, supra note 6.

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weapon nor any of Munoz’ clothing containing May’s blood

was found, and Munoz was wearing different clothing at the

time of his arrest than the clothing he was wearing when he

left town. Because there was no prosecutorial misconduct, it

follows that there can be no plain error.

(b) Assertion of Privilege

Munoz also claims that plain error occurred when Brady

invoked his Fifth Amendment privilege in the jury’s presence.

After Brady identified Munoz in the courtroom, the following

colloquy occurred:

[Prosecutor:] Okay. Do you then recall having a con-

versation with him in the early [sic] December 31st

of 2016?

[Brady:] I would like to invoke my Fifth Amendment

rights.

[Prosecutor]: Okay. Judge, I’m going to go ahead and

offer immunity.

THE COURT: All right. Sir, the County Attorney has

heard your exercise of your Fifth Amendment rights under

the United States Constitution. Under Nebraska law if the

County Attorney indicates that immunity will be granted

you for anything you may say here in the courtroom, you

are required to testify. So notwithstanding your exercise

of your Fifth Amendment rights, because the County

Attorney has extended you immunity, I’m ordering you to

go ahead and answer his questions.

[Brady]: Okay.

Brady then proceeded to answer all questions posed to him.

[9] Munoz argues that plain error occurred when Brady was

permitted to invoke his Fifth Amendment privilege in the pres-

ence of the jury. He relies on § 27-513(2), which states that

“[i]n jury cases, proceedings shall be conducted, to the extent

practicable, so as to facilitate the making of claims of privi-

lege without the knowledge of the jury.” We have explained

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that the purpose of § 27-513(2) is to prevent the jury from

drawing an unfavorable inference from a witness’ assertion of

a privilege.9

We recently addressed the invocation of a privilege in the

jury’s presence, but the circumstances here are distinguishable.

In State v. Draper,10 the trial court permitted the defendant’s

wife to assert her privilege against self-incrimination in the

presence of the jury. We stated: “[A]ll parties knew that she

would, before being granted immunity, invoke her privilege

against self-incrimination. And the record fails to establish

any basis justifying the assertion of that privilege in front

of the jury.”11 In contrast, the bill of exceptions here does

not indicate that any party or the court knew in advance that

Brady would invoke his Fifth Amendment privilege against

self-incrimination.

Under the circumstances here, error is not plainly evident

from the record. Munoz argues: “Clearly the prosecutor antici-

pated that Brady would invoke his 5th Amendment right not

to testify during his direct examination. Otherwise he would

not have been prepared to immediately offer the witness

immunity.”12 But it is just as conceivable that the criminal

investigation had revealed Brady’s involvement was minimal

and not worthy of prosecution, such that the prosecutor had

no hesitation about offering immunity.13 The bill of excep-

tions does not contain evidence showing that the parties or the

court knew Brady would invoke his privilege. And, after being

given immunity, Brady testified and was subject to cross-

examination. We find no plain error.

9

See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

10

Id.

11

Id. at 789, 857 N.W.2d at 344.

12

Brief for appellant at 13.

13

See Neb. Rev. Stat. § 29-2011.02 (Reissue 2016).

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2. Ineffective Assistance

of Counsel

Munoz’ other assignments of error allege that his trial coun-

sel provided ineffective assistance. After setting forth general

principles, we consider the specific allegations of ineffective

assistance.

(a) General Principles

[10-12] Munoz has different counsel on direct appeal. 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 in a subse-

quent postconviction proceeding.14 The fact that an ineffective

assistance of counsel claim is raised on direct appeal does not

necessarily mean that it can be resolved. The determining fac-

tor is whether the record is sufficient to adequately review the

question.15 The record is sufficient if it establishes either that

trial counsel’s performance was not deficient, that the appel-

lant will not be able to establish prejudice, or that trial coun-

sel’s actions could not be justified as a part of any plausible

trial strategy.16

[13-15] Generally, to prevail on a claim of ineffective assist­

ance of counsel under Strickland v. Washington,17 the defendant

must show that his or her counsel’s performance was deficient

and that this deficient performance actually prejudiced the

14

State v. Mrza, supra note 2.

15

Id.

16

See State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved

on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865

(2018).

17

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

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defendant’s defense.18 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.19 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. A reasonable probability is a probability suffi-

cient to undermine confidence in the outcome.20

(b) Opening Statement

[16] Munoz argues that his trial counsel was ineffective

in failing to object to the prosecutor’s opening statement.

Determining whether defense counsel was ineffective in fail-

ing to object to prosecutorial misconduct requires an appellate

court to first determine whether the petitioner has alleged any

action or remarks that constituted prosecutorial misconduct.21

As we determined above, the prosecutor’s opening statement

did not amount to prosecutorial misconduct. Because there

was no basis to object, Munoz’ counsel did not perform defi-

ciently in failing to object.

(c) Failing to Demand Compliance

With § 27-513

Munoz next contends that counsel was ineffective for failing

to demand compliance with § 27-513. As noted above, the bill

of exceptions does not reveal that any party knew Brady would

assert his Fifth Amendment privilege, and Munoz does not cite

to any evidence that such knowledge existed.

Even if it were known that Brady would invoke the Fifth

Amendment, Munoz cannot show prejudice due to counsel’s

18

State v. Mrza, supra note 2.

19

Id.

20

Id.

21

State v. Taylor, supra note 7.

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failure to object and demand compliance with § 27-513. There

is no indication that by calling Brady as a witness, the prosecu-

tor was trying to build a case out of inferences from use of a

testimonial privilege. Further, we are not presented with the

situation where “‘inferences from a witness’ refusal to answer

added critical weight to the prosecution’s case in a form not

subject to cross-examination.’”22 Because Brady testified and

was subject to cross-examination, Munoz cannot demonstrate a

reasonable probability that the result of the proceeding would

have been different if Brady had invoked the privilege outside

of the jury’s presence.

(d) Blood Spatter Evidence

Finally, Munoz argues that his trial counsel was ineffective

by failing to challenge blood spatter evidence as irrelevant and

unfairly prejudicial. We disagree.

The State’s blood spatter expert visited the scene and docu-

mented bloodstain patterns. Based on the blood evidence,

the expert gave “brief snapshots of what happened at differ-

ent times”:

So there were some impact patterns and castoff near the

head of the bed and it’s my opinion that the victim was

laying there wrapped up in a blanket on top of the blan-

kets underneath her, basically, the black plaid blankets

and the blankets underneath when this attack started.

There were enough spatter patterns to indicate that some

liquid blood had been shed while she was in that posi-

tion, and that something impacted into it. I wasn’t able

to determine what. Sometime during the attack she had

turned around toward with her head toward the foot

of the bed, her feet toward the head of the bed. And,

after she was stabbed she had somehow was laying, as

I mentioned before, laying head first on top of the white

22

State v. Draper, supra note 9, 289 Neb. at 786, 857 N.W.2d at 342.

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comforter, her left arm down creating that pooling off of

the side of the bed. Based on the position of her right arm

and based on the lack of blood around her right arm, . . .

it’s my opinion that somebody took her right arm and

pulled her back up onto the bed. I don’t know if she was

alive at that time, it’s possible. If she was in that final

position when the spatter around her was created, which

led me to believe it’s probably expectorate, but could,

also, be spatter patterns from something impacting the

liquid blood on her. When she was in this final position

somebody covered her up within five to 30 minutes after

her blood was deposited based on the (inaudible) on her

hip. Somebody with blood on them, and I can’t say how

much, but some liquid blood on them moved around to

the foot of that bed creating those transfer patterns. And,

after it was all done, whoever it was, walked into the

bathroom, probably washed off their hands, washed off

the weapon, creating the diluted blood around the rim

of the sink.

Munoz first argues that the evidence was irrelevant. Evidence

which is not relevant is inadmissible.23 Munoz highlights that

the blood spatter expert did not identify any evidentiary link

between the blood evidence and any particular suspect nor any

particular object associated with a suspect.

[17] Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determina-

tion of the action more probable or less probable than it would

be without the evidence.”24 Relevancy requires only that the

probative value be something more than nothing.25

The blood spatter evidence satisfied the low bar for estab-

lishing relevancy. It showed the brutal nature of May’s death,

23

Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016).

24

Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016).

25

State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).

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which was consistent with the State’s theory that Munoz

believed May was “cheating on” him and “react[ed] violently.”

This alone satisfies the minimal requirement that the proba-

tive value of the evidence be something more than nothing.

Because a relevancy objection would have been futile, coun-

sel did not perform deficiently by failing to object on rele­

vancy grounds.

Munoz also claims that the blood spatter evidence was

unfairly prejudicial. He points out that the blood spatter expert

provided testimony regarding photographs that she used in her

report. Munoz claims that the direct examination of the expert

“was merely an opportunity for the State to overly empha-

size the horrific and brutal nature of an unidentified assail-

ant’s attack.”26

[18] 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. Unfair prejudice means an undue tendency

to suggest a decision based on an improper basis.27 It speaks

to the capacity of some concededly relevant evidence to lure

the fact finder into declaring guilt on a ground different from

proof specific to the offense charged, commonly on an emo-

tional basis.28

[19] Gruesome crimes produce gruesome photographs and

evidence.29 But the State is allowed to present a coherent pic-

ture of the facts of the crimes charged, and it may generally

choose its evidence in so doing.30 Using the blood evidence

found at the crime scene, the blood spatter expert helped

explain what happened during the attack on May. Although

26

Brief for appellant at 15.

27

State v. Brown, supra note 25.

28

Id.

29

See State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

30

State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).

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the expert could not identify May’s killer, we do not believe

that the district court would have excluded the evidence on the

basis that the probative value of the expert’s testimony was

substantially outweighed by the danger of unfair prejudice.

Accordingly, Munoz’ trial counsel did not perform deficiently

by failing to object.

VI. CONCLUSION

We find no plain error with regard to the prosecutor’s open-

ing statement or the invocation of Fifth Amendment privilege

in the jury’s presence. With regard to Munoz’ claims of inef-

fective assistance of trial counsel, we conclude that the record

on appeal shows the claims to be without merit. We therefore

affirm the judgment of the district court.

A ffirmed.