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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
State of Nebraska, appellee, v.
Joseph P. Kruger, appellant.
___ N.W.3d ___
Filed November 21, 2025. No. S-24-566.
1. Rules of Evidence: Appeal and Error. 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. 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.
2. 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.
3. Effectiveness of Counsel: Appeal and Error. An appellate court
resolves claims of ineffective assistance of counsel on direct appeal
only where the record is sufficient to conclusively determine whether
trial counsel did or did not provide effective assistance and whether the
defendant was or was not prejudiced by counsel’s alleged deficient performance as matters of law.
4. ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary hearing.
5. ____: ____. Whether a claim of ineffective assistance of counsel may be
determined on direct appeal is a question of law.
6. Self-Defense. A determination of whether the victim was the first
aggressor is an essential element of a self-defense claim, and that evidence of a victim’s aggressive and violent character is relevant to a
defendant’s claim of self-defense.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
7. Rules of Evidence: Other Acts: Self-Defense. Under
Neb. Rev. Stat.
§§ 27-404(1) and 27-405 (Reissue 2016), specific prior acts of the victim’s violent or abusive character are relevant and admissible when a
claim of self-defense is raised.
8. Rules of Evidence: Other Acts: Time. Remoteness, or the temporal
span between a prior crime, wrong, or other act offered as evidence and
a fact to be determined in a present proceeding, goes to the weight to
be given to such evidence and does not render the evidence of the other
crime, wrong, or act irrelevant and inadmissible. While remoteness in
time may weaken the value of prior acts evidence, such remoteness does
not, in and of itself, necessarily justify exclusion of that evidence.
9. Rules of Evidence. The “relevancy-versus-unfairly-prejudicial-effect-balancing” test seeks to weigh the probative value of the proffered evidence against the nonprobative factors listed in Neb. Rev. Stat. § 27-403
(Reissue 2016).
10. Evidence. The probative value of evidence involves a measurement of
the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the fact from the ultimate issue of
the case.
11. Rules of Evidence: Appeal and Error. Because the exercise of judicial discretion is implicit in determinations of admissibility under Neb.
Rev. Stat. § 27-403 (Reissue 2016), the trial court’s decision will not be
reversed absent an abuse of discretion.
12. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
13. Criminal Law: Intent. Intentional crimes may require a general intent,
where the intent relates to the prohibited act, or a specific intent, where
the intent relates to the result achieved.
14. Homicide: Intent. In Nebraska, murder in the first degree, murder
in the second degree, and manslaughter upon a sudden quarrel are
specific intent crimes—they require that the defendant acted with the
specific intent to kill the victim.
15. ____: ____. To commit unlawful act manslaughter, the death must not
be the intended result of the defendant’s act.
16. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, 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.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
17. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing
an ineffective assistance of counsel claim on direct appeal, the question is whether the record affirmatively shows that the defendant’s trial
counsel’s performance was deficient, and that the deficient performance
actually prejudiced the defendant’s defense.
18. Effectiveness of Counsel: Proof. To show deficient performance, the
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.
20. Effectiveness of Counsel: Records: Appeal and Error. On direct
appeal, an appellate court only addresses claims of ineffective assistance
of counsel that can be conclusively determined from the record.
21. 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.
22. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice.
23. Effectiveness of Counsel: Appeal and Error. On direct appeal in a
criminal case, claims of ineffective assistance of counsel must be both
specifically assigned and specifically argued in the appellant’s brief.
24. ____: ____. Assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege the conduct that is
claimed to constitute deficient performance.
25. Appeal and Error. An assignment of error is specific when it addresses
a specific issue that does not require additional information to understand precisely what the assignment attacks.
26. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges 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 postconviction relief to recognize whether
the claim was brought before the appellate court.
27. Speedy Trial: Effectiveness of Counsel: Waiver. Although defense
counsel’s authority to waive a defendant’s statutory right to speedy
trial cannot extend to excuse ineffective representation, defense
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
counsel can effectively waive a defendant’s right to speedy trial. The
question, as it is with all claims of ineffective assistance of counsel,
is whether counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law.
28. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice pertaining to a waiver concerning
the defendant’s right to testify can present a valid claim of ineffective
assistance in two instances: (1) if the defendant shows that counsel
interfered with his or her freedom to decide to testify or (2) if counsel’s
tactical advice to waive the right was unreasonable. In both circumstances, the legal issue is whether the defendant’s decision was made
knowingly and intelligently.
29. Trial: Witnesses: Testimony. Witnesses’ bias affects the reliability of
their testimony at trial.
30. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not
to call, a particular witness, made by counsel as a matter of trial strategy,
even if that choice proves unproductive, will not, without more, sustain
a finding of ineffectiveness of counsel.
31. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic
decision to present particular evidence, or not to present particular evidence, will not, without more, sustain a finding of ineffective assistance
of counsel.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Candice C. Wooster and Sydney J. Clark, Senior Certified
Law Student, for appellant.
Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik,
Freudenberg, and Bergevin, JJ.
Bergevin, J.
I. INTRODUCTION
Joseph P. Kruger appeals from his convictions and sentences
after a jury trial for murder in the first degree 1 and use of a
1
Neb. Rev. Stat. § 28-303(1) (Cum. Supp. 2024).
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
deadly weapon to commit a felony. 2 On appeal, Kruger challenges the district court’s exclusion of evidence he sought to
adduce related to his assertion that he acted in self-defense and
the court’s refusal to give his proposed instruction on unintentional manslaughter to the jury, as well as the sufficiency of
the evidence supporting both convictions. Kruger also claims
that he received ineffective assistance of counsel because his
trial counsel’s performance was deficient in numerous ways.
We affirm.
II. BACKGROUND
Kruger’s convictions stem from a physical altercation with
his father at a family gathering in Lincoln, Nebraska, that
resulted in Kruger’s father’s death. We note that the record
reflects that Kruger’s father was not his biological father—a
fact, according to his testimony, that Kruger learned when he
was in his late 30s, approximately 2 years before the physical
altercation. Because Kruger and other witnesses referred to
him as Kruger’s father throughout trial, so do we. We briefly
summarize the events of that day as shown by the evidence
adduced at trial. We include additional background information
within the analysis section below that is relevant to particular
issues Kruger raises on appeal.
On the date of the altercation, Kruger’s family had gathered
in his sister’s backyard for a celebration of the life of Kruger’s
maternal uncle, who had been recently diagnosed with terminal cancer. A verbal dispute arose between Kruger and his
sister, during which Kruger’s father approached Kruger and
punched him in the head, striking him near his left brow
and temple. By all accounts, Kruger’s father’s actions were
a gross escalation of the verbal dispute, which he was not
involved in until he punched Kruger.
Kruger and his father then engaged in a physical altercation. During the altercation, by some accounts, Kruger told his
2
Neb. Rev. Stat. § 28-1205(1)(b) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
father to leave him alone, and by other accounts, Kruger stated
that he was going to kill his father. The altercation lasted 5 to
10 minutes before they were pulled apart by Kruger’s father’s
longtime friend and Kruger’s sister’s partner.
Once separated, Kruger’s father stood catching his breath,
while Kruger went to a picnic table where he had previously
been seated and other family members were congregated.
By some accounts, Kruger was searching the tabletop for his
keys to leave the gathering when his father moved toward
him to reinitiate the physical altercation. In response, Kruger
grabbed a steak knife off the table, turned, pointed the knife
at his father, and told his father to leave him alone. By other
accounts, Kruger grabbed the steak knife off the table, turned,
and approached his father. None of the witnesses to the altercation could recall seeing what happened next, when the steak
knife penetrated Kruger’s father’s chest.
After he sustained the injury, Kruger’s father walked down
the driveway to the front of the house and sat on the front
stoop. A doorway camera showed that he was shortly followed
by members of the family, including Kruger. Kruger’s father
eventually was unable to sit up, and his torso fell backward
to the front stoop. Kruger performed CPR on his father until
emergency responders arrived, and they began to provide care
to his father.
The first law enforcement officer to arrive was informed en
route that he was responding to a reported stabbing. Upon his
arrival, the officer asked, “[W]ho did it?” Kruger answered,
“‘I did.’” Subsequently, law enforcement took Kruger into
custody, and Kruger complied with law enforcement’s requests
thereafter. Emergency responders transported Kruger’s father
to a hospital, where he was declared dead upon his arrival.
At trial, it was undisputed that Kruger’s father was the initial
aggressor of the physical altercation, that he had died from a
single penetration of the steak knife through his chest and into
his heart, and that Kruger was holding the steak knife when his
father sustained the injury that caused his death.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
The State contended that Kruger committed murder in the
first degree, such that Kruger stabbed his father with the intent
to purposefully kill him with deliberate and premeditated
malice. 3 Kruger raised multiple alternative theories in his
defense: that Kruger pointed the steak knife at his father in
self-defense, his father walked into the knife, and his father’s
resulting death was an accident; that Kruger stabbed his father,
but without the intent to kill him; that Kruger stabbed his
father with the intent to kill him, but in self-defense; and that
Kruger stabbed his father with the intent to kill him, but upon
a sudden quarrel.
Accordingly, the primary factual issues at trial were (1)
whether Kruger stabbed his father or whether his father
impaled himself while Kruger was pointing the steak knife at
him; (2) whether Kruger’s actions with the knife were taken in
self-defense 4; (3) whether Kruger intended to kill his father;
and, (4) if so, whether the killing was committed purposefully with deliberate and premeditated malice, 5 upon a sudden
quarrel, 6 or neither. 7
In total, six witnesses who were present at the time of
the physical altercation testified at trial. Kruger’s sister, her
partner, and a longtime friend of Kruger’s father testified
on behalf of the State. Kruger, his mother, and his maternal
aunt testified in Kruger’s defense. Kruger also presented an
audio recording of a deposition taken from his maternal uncle,
who had lost his battle with cancer before trial. We also note
that over the first few days of the trial, the State presented
testimony from 12 witnesses who either were law enforcement officers or were similarly related to the investigation.
3
See § 28-303(1).
4
See
Neb. Rev. Stat. §§ 28-1409 and 28-1414(2) (Reissue 2016).
5
See § 28-303(1) (murder in first degree).
6
See
Neb. Rev. Stat. § 28-305(1) (Reissue 2016) (voluntary manslaughter).
7
See
Neb. Rev. Stat. § 28-304(1) (Reissue 2016) (murder in second degree).
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
However, with minor exceptions, their testimony is not relevant to the resolution of this appeal.
After nearly 11 hours of deliberation, the jury found Kruger
guilty on both counts. At a later sentencing, the court imposed
a sentence of consecutive terms of life imprisonment for murder in the first degree and 4 to 8 years for use of a deadly
weapon to commit a felony. Kruger filed a timely appeal.
III. ASSIGNMENTS OF ERROR
Kruger assigns, reordered and restated, that the district
court erred when it (1) excluded relevant evidence of specific
instances of his father’s aggressive, violent, and abusive character and (2) abused its discretion by refusing to instruct the
jury on unintentional manslaughter. He also assigns that (3)
insufficient evidence was submitted to support the jury’s verdict of first degree murder.
Finally, Kruger assigns that he received ineffective assistance of counsel when his trial counsel (4) “failed to file a
motion to discharge based on a violation of [Kruger’s] right
to a speedy trial,” (5) “failed to have [Kruger] evaluated by
a mental health professional in order to aid in his defense,”
(6) “failed to introduce evidence of [Kruger’s] Post Traumatic
Stress Disorder diagnosis,” (7) “failed to take [Kruger’s]
insights into consideration when developing a trial strategy,”
(8) “told [Kruger] that he needed to testify over his objection,” (9) “failed to advise [Kruger] of a potential plea deal for
a lesser offense,” (10) “failed to properly investigate whether
the [S]tate’s key witness received a plea deal in exchange for
her testimony,” (11) “failed to cross examine the [S]tate’s key
witness about whether she received a plea deal in exchange for
her testimony,” and (12) “allowed two unpredictable witnesses
to testify.”
IV. STANDARD OF REVIEW
[1] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admissibility. 8 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. 9
Whether jury instructions are correct is a question of law,
to which an appellate court must reach an independent, correct conclusion, irrespective of the determination made by the
court below. 10
[2] 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. 11
[3-5] An appellate court resolves claims of ineffective assistance of counsel on direct appeal only where the record is sufficient to conclusively determine whether trial counsel did or
did not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient
performance as matters of law. 12 An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. 13 Whether a claim of ineffective assistance of counsel may be determined on direct appeal
is a question of law. 14
8
State v. Vazquez,
319 Neb. 192,
21 N.W.3d 615 (2025).
9
Id.
10
See, State v. Dolinar,
319 Neb. 565,
24 N.W.3d 30 (2025); State v. Briggs,
317 Neb. 296,
9 N.W.3d 632 (2024).
11
State v.
Vazquez, supra note 8.
12
State v. Esch,
315 Neb. 482,
997 N.W.2d 569 (2023). See Strickland v.
Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984).
13
State v.
Esch, supra note 12.
14
State v.
Vazquez, supra note 8.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
V. ANALYSIS
We first address Kruger’s challenges to the district court’s
exclusion of evidence related to his claim that he acted in self-defense and the court’s determination not to instruct the jury on
unintentional manslaughter. We then review the sufficiency of
the evidence supporting his convictions before concluding with
an examination of Kruger’s claims concerning the effectiveness
of his trial counsel.
1. Evidence of Prior Acts
Kruger argues that the court erred in excluding evidence
he sought to adduce of his father’s past abusive acts against
him. Before addressing the parties’ arguments, we first provide some additional background information relevant to
this issue.
(a) Supplemental Background
Pretrial, Kruger filed a notice of intent “to offer evidence
of [Kruger’s father’s] prior acts of violence and aggression,
and his reputation for such, in this case.” In response, the
State filed a motion in limine to preclude “[a]ny evidence
of the character, or evidence of a pertinent trait of the character, of [Kruger’s father], unless [Kruger] has first made a
showing outside the presence of the jury that such evidence
is admissible.”
At a hearing on the State’s motion, the State argued that
specific prior bad acts of Kruger’s father’s character, which
primarily concerned his physical abuse of Kruger as a child
and its continuation into Kruger’s adulthood, were not relevant to the trial issues. The State contended that such evidence was too remote in time and that Kruger just wanted
the jury to feel that Kruger’s father “deserved to die instead
of concentrating on what was reasonable. [The prior acts]
are just things to inflame the emotions of the jury.”
Kruger responded that the evidence pertained to his self-defense claim and was relevant for establishing that when the
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
altercation occurred, Kruger believed his actions were immediately necessary for the purpose of protecting himself from
serious bodily injury. 15
The court sustained the State’s motion in limine. In its written order, the court found that the specific acts Kruger sought
to introduce were “[too] far removed” to be relevant—with the
most recent acts having occurred 8 and 9 years before the altercation—and that even if relevant, they were excluded under
Neb. Rev. Stat. § 27-403 (Reissue 2016).
During trial, the issue again came before the court. Outside
the presence of the jury, Kruger made an offer of proof by
testifying as to specific prior acts of abuse he sustained
by his father. In sum, the offer included various acts of abuse,
beginning with an incident when Kruger was about 3 years
old and continuing with other incidents that occurred well
into Kruger’s adulthood. The last act of physical abuse had
occurred approximately 9 years before the altercation in this
case and was the first time that Kruger physically rebuffed
his father’s abuse. The most recent specific act was a verbal
threat of violence that occurred 8 years before the altercation
in this case. The offer of proof also included how the abuse
caused Kruger to suffer from temporal lobe epilepsy and post-traumatic stress disorder.
In its reconsideration of the evidence of the specific acts in
light of the evidence already adduced at trial, the court ruled
that the evidence was relevant and generally admissible. 16
However, in consideration of the remoteness of the prior acts,
as well as unfair prejudice to the State’s case and potential
confusion of the jury, the court ruled that only acts committed within 10 years of the altercation were to be admitted.
The court’s ruling permitted Kruger to adduce evidence about
the last act of physical abuse and the verbal threat of violence.
15
See, generally, § 28-1409(1) and (4).
16
See Neb. Rev. Stat. §§ 27-401 and 27-402 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
(b) Resolution
On appeal, Kruger argues that the court’s 10-year limitation
was erroneous and that by not hearing the entire history of
abuse Kruger suffered at the hands of his father, the jury was
not able to fully consider his mental state and actions at the
time of the altercation, which prejudiced his claim that he acted
in self-defense. 17
[6,7] We have recognized that a determination of whether
the victim was the first aggressor is an essential element of a
self-defense claim, and that evidence of a victim’s aggressive
and violent character is relevant to a defendant’s claim of self-defense. 18 Accordingly, we have held that under Neb. Rev. Stat.
§§ 27-404(1) and 27-405 (Reissue 2016), specific prior acts
of the victim’s violent or abusive character are relevant and
admissible when a claim of self-defense is raised. 19
[8] Moreover, we have recognized that remoteness, or the
temporal span between a prior crime, wrong, or other act
offered as evidence and a fact to be determined in a present
proceeding, goes to the weight to be given to such evidence
and does not render the evidence of the other crime, wrong,
or act irrelevant and inadmissible. 20 While remoteness in time
may weaken the value of prior acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of
that evidence. 21
To the extent the district court’s ruling could be read as
imposing a 10-year “remoteness” limitation on the probity of
17
See § 28-1409.
18
See, e.g., State v. Matthews,
289 Neb. 184,
854 N.W.2d 576 (2014); State
v. Kinser,
259 Neb. 251,
609 N.W.2d 322 (2000); State v. Sims,
213 Neb.
708,
331 N.W.2d 255 (1983). See, also, State v. Lewchuk,
4 Neb. App.
165,
539 N.W.2d 847 (1995).
19
See, e.g., State v. Faust,
265 Neb. 845,
660 N.W.2d 844 (2003), disapproved
on other grounds, State v. McCulloch,
274 Neb. 636,
742 N.W.2d 727
(2007); State v.
Sims, supra note 18.
20
See State v. Yager,
236 Neb. 481,
461 N.W.2d 741 (1990).
21
See State v. Pullens,
281 Neb. 828,
800 N.W.2d 202 (2011).
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STATE V. KRUGER
Cite as 320 Neb. 361
evidence, we reject such a rule. However, the record shows
that the court’s ruling limiting the evidence of specific acts
Kruger could adduce was not grounded on the relevance of the
evidence. The issue is not whether the proffered evidence was
relevant, but whether, despite its relevance, the evidence
was properly excluded.
[9,10] Section 27-403 provides that “[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 considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” 22 The “‘relevancy-versus-unfairly-prejudicialeffect-balancing’” test seeks to weigh the probative value of
the proffered evidence against the nonprobative factors listed
in § 27-403. 23 The probative value of evidence involves a
measurement of the degree to which the evidence persuades
the trier of fact that the particular fact exists and the distance
of the fact from the ultimate issue of the case. 24
[11] Because the exercise of judicial discretion is implicit
in determinations of admissibility under § 27-403, the trial
court’s decision will not be reversed absent an abuse of discretion. 25 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. 26
In light of the parties’ presentations of their cases to the
jury and Kruger’s offer of proof, we cannot say that the court
abused its discretion in limiting Kruger to adducing evidence
of only the two most recent prior acts. We recognize that the
22
See, also, State v.
Vazquez, supra note 8.
23
State v. Stubbendieck,
302 Neb. 702, 710,
924 N.W.2d 711, 719 (2019).
24
State v. Boswell,
316 Neb. 542,
5 N.W.3d 747 (2024).
25
Pierce v. Landmark Mgmt. Group,
293 Neb. 890,
880 N.W.2d 885 (2016).
26
See State v. Sutton,
319 Neb. 581,
24 N.W.3d 43 (2025).
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320 Nebraska Reports
STATE V. KRUGER
Cite as 320 Neb. 361
history of Kruger’s father’s abusive actions against Kruger is
both substantial and lengthy, and that history likely played a
part in Kruger’s beliefs and actions on the day of the altercation, such that it had probative value to Kruger’s defense.
However, when that probative value is weighed against the
nonprobative factors of § 27-403, the record does not show
that the court abused its discretion by not allowing Kruger
to present the entire history to the jury. The court based its
decision upon the applicability of the nonprobative factors
to the proffered evidence, and its reasons are not untenable
or unreasonable. Nor was its action clearly against justice or
conscience, reason, and evidence. Kruger was able to present
evidence, including by reputation and opinion, 27 that informed
the jury of his father’s character for violence and Kruger’s
intimate relationship therewith. We cannot say that, in this
case, the exclusion of evidence of other specific acts affected a
substantial right of Kruger. 28
2. Manslaughter Instruction
Kruger next assigns that the district court erred in refusing to give his requested instruction to the jury on unintentional manslaughter.
[12] To establish reversible error from a court’s refusal
to give a requested instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. 29
[13,14] Intentional crimes may require a general intent,
where the intent relates to the prohibited act, or a specific
27
See §§ 27-404(1) and 27-405.
28
See Neb. Rev. Stat. § 27-103(1) (Reissue 2016) (“[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected . . .”).
29
State v. German,
316 Neb. 841,
7 N.W.3d 206 (2024).
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STATE V. KRUGER
Cite as 320 Neb. 361
intent, where the intent relates to the result achieved. 30 In
Nebraska, murder in the first degree, murder in the second
degree, and manslaughter upon a sudden quarrel are specific
intent crimes—they require that the defendant acted with the
specific intent to kill the victim. 31 However, manslaughter
can also be committed unintentionally, where, as a result of
the commission of an unlawful act, a person causes the death
of another. 32
[15] We note that this court has routinely referred to “sudden quarrel” or “unlawful act” manslaughter, “intentional”
or “unintentional” manslaughter, and “voluntary” or “involuntary” manslaughter interchangeably and that there is no
substantive distinction between them under Nebraska law. 33
Whether referred to as intentional or voluntary, to commit
sudden quarrel manslaughter, like murder in both the first
and second degrees, the killing needs to be the intended
result of the defendant’s act. 34 Similarly, whether referred
to as unintentional or involuntary, to commit unlawful act
manslaughter, the death must not be the intended result of the
defendant’s act. 35
In this case, the jury found Kruger guilty of murder
in the first degree, which required the jury to determine
beyond a reasonable doubt that Kruger intended to kill his
father. Therefore, because the commission of unintentional
30
See State v. Williams,
243 Neb. 959,
503 N.W.2d 561 (1993).
31
See, e.g., State v. Scott,
319 Neb. 153,
21 N.W.3d 490 (2025) (murder
in first degree); State v. Smith,
282 Neb. 720,
806 N.W.2d 383 (2011)
(voluntary manslaughter); State v. Rowe,
214 Neb. 685,
335 N.W.2d 309
(1983) (murder in second degree); Savary v. State,
62 Neb. 166,
87 N.W.
34 (1901) (murder in first degree).
32
See § 28-305.
33
See, e.g., State v. Smith, supra note 31; State v. Pruett,
263 Neb. 99,
638
N.W.2d 809 (2002); State v. Pettit,
233 Neb. 436,
445 N.W.2d 890 (1989).
34
See
id.
35
See
id.
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manslaughter requires the absence of an intent to kill, Kruger
could not have been prejudiced by the court’s refusal to
instruct the jury on unintentional manslaughter. There is no
merit to this assignment.
3. Sufficiency of Evidence
Kruger assigns that the evidence adduced at trial was insufficient to support both of his convictions. We find no merit to
these assignments.
Kruger argues that there is no evidence to support the jury’s
finding that he acted with deliberate and premeditated malice
and that he intended to kill his father. Because the felony that
serves as the basis of a use of a weapon charge must be an
intentional crime, 36 Kruger relatedly argues that there is insufficient evidence to support his conviction for use of a deadly
weapon to commit a felony.
In support of his argument, Kruger first acknowledges that
two witnesses testified that during the altercation, they heard
him say, “‘I’m going to kill you’” to his father. 37 However,
Kruger contends that this evidence was insufficient to support
his conviction for murder in the first degree because neither
witness had informed law enforcement when they were initially
interviewed that they heard that statement, and, instead, it was
not “until they were interviewed a second time . . . , [8] days
after the incident,” that they informed law enforcement they
heard Kruger make the statement. 38 Kruger asserts that the timing “greatly impacted the credibility of their testimony” and
that he denied ever making such a statement. 39
[16] In making this argument, Kruger overlooks that in
reviewing a criminal conviction for a sufficiency of the
36
See, State v. Pruett, supra note 33; State v. Ring,
233 Neb. 720,
447
N.W.2d 908 (1989), disapproved on other grounds, State v. Irish,
292 Neb.
513,
873 N.W.2d 161 (2016).
37
Brief for appellant at 25.
38
Id.
39
Id.
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evidence claim, 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. 40 The jury
heard the two witnesses’ testimony and the circumstances surrounding their delayed disclosure. It was for the jury to determine the credibility and weight of the witnesses’ testimony.
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. 41
When viewing the witnesses’ testimony in the light most
favorable to the prosecution, a rational trier of fact could
have found that Kruger intended to kill his father and acted
with deliberate and premeditated malice. Because sufficient
evidence supported the jury’s finding that Kruger committed
an intentional crime, a rational trier of fact also could have
found that Kruger used a deadly weapon to commit a felony.
Hence, sufficient evidence was adduced at trial to sustain
Kruger’s convictions.
4. Ineffective Assistance of Counsel
Before addressing Kruger’s claims that he received ineffective assistance of trial counsel in multiple respects, we first set
forth certain legal principles and procedural requirements that
govern such claims on direct appeal.
(a) Legal Principles
[17] When reviewing an ineffective assistance of counsel claim on direct appeal, the question is whether the
record affirmatively shows that the defendant’s trial counsel’s performance was deficient and that the deficient
40
State v. Brown, 317 Neb. 273,
9 N.W.3d 871 (2024). See, also, Clark v.
State,
151 Neb. 348,
37 N.W.2d 601 (1949); Palmer v. The People,
4 Neb.
68 (1875).
41
State v.
Vazquez, supra note 8.
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performance actually prejudiced the defendant’s defense. 42 A
court may examine performance and prejudice in any order
and need not examine both prongs if a defendant fails to
demonstrate either. 43
[18,19] To show deficient performance, the defendant must
show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 44 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. 45 A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. 46 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. 47
When reviewing claims of alleged ineffective assistance
of counsel, trial counsel is afforded due deference to formulate trial strategy and tactics. 48 There is a strong presumption
that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions. 49 Ultimately, the
42
State v.
Esch, supra note 12.
43
Id.
44
Id.
45
Id.
46
Id.
47
State v.
Vazquez, supra note 8.
48
Id. See State v. Lindsay,
246 Neb. 101,
517 N.W.2d 102 (1994).
49
State v.
Vazquez, supra note 8; State v. Lyman,
241 Neb. 911,
492 N.W.2d
16 (1992), disapproved on other grounds, State v. Canbaz,
270 Neb. 559,
705 N.W.2d 221 (2005), disapproved on other grounds, State v. Falcon,
319 Neb. 911,
25 N.W.3d 462 (2025).
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Constitution guarantees criminal defendants only a fair trial
and a competent attorney. 50
[20] As mentioned above, on direct appeal, an appellate
court only addresses claims of ineffective assistance of counsel that can be conclusively determined from the record. 51
The record on appeal is sufficient if it establishes either that
trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law,
or that trial counsel’s actions could not be justified as a part
of any plausible trial strategy. 52 Conversely, an ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires examination of facts not contained in
the record. 53
(b) Procedural Requirements
[21,22] 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. 54 When a claim of
ineffective assistance of counsel is raised in a direct appeal, the
appellant is not required to allege prejudice. 55
[23] An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
50
State v. Esch, supra note 12. See Engle v. Isaac,
456 U.S. 107,
102 S. Ct.
1558,
71 L. Ed. 2d 783 (1982).
51
See State v.
Esch, supra note 12.
52
State v.
Vazquez, supra note 8.
53
See
id.
54
State v. Hagens, ante p. 65, 26 N.W. 3d 174 (2025); State v. Golyar,
301
Neb. 488,
919 N.W.2d 133 (2018). See State v. Williams,
259 Neb. 234,
609 N.W.2d 313 (2000).
55
See State v.
Vazquez, supra note 8.
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error to be considered by an appellate court. 56 Claims of ineffective assistance of counsel are no exception. 57 On direct
appeal in a criminal case, claims of ineffective assistance of
counsel must be both specifically assigned and specifically
argued in the appellant’s brief. 58
(i) Specifically Assigned
[24,25] Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege the
conduct that is claimed to constitute deficient performance. 59
A generalized and vague assignment of error that does not
advise an appellate court of the issue submitted for decision
will not be considered. 60 As we have recently explained, an
assignment is specific when it addresses a specific issue that
does not require additional information to understand precisely
what the assignment attacks. 61
One need not look further than the opinion of this court
in State v. Mrza 62 for an example of the requisite level of
specificity. There, we synthesized the appellant’s argument
section into the following assignments that would have been
sufficiently specific:
[T]rial counsel was ineffective in failing to investigate the
time between the assault and N.W.’s first interview with
law enforcement for possible defenses by failing to (1)
subpoena cell phone records of N.W. and the friend she
56
State v. Mrza, 302 Neb. 931,
926 N.W.2d 79 (2019), disapproved on other
grounds, State v. Hagens, supra note 54; State v. Filholm,
287 Neb. 763,
848 N.W.2d 571 (2014); State v. McGhee,
280 Neb. 558,
787 N.W.2d 700
(2010).
57
See, State v.
Mrza, supra note 56; State v. Abdullah,
289 Neb. 123,
853
N.W.2d 858 (2014); State v.
Filholm, supra note 56.
58
See
id.
59
See State v.
Mrza, supra note 56. Cf. State v.
Filholm, supra note 56.
60
State v.
Abdullah, supra note 57; State v.
Filholm, supra note 56.
61
State v. Hagens, supra note 54.
62
State v.
Mrza, supra note 56.
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called following the event, (2) investigate the relationship
between N.W. and her friend, (3) subpoena video from
the restaurant where N.W. and Mrza met before the event,
and (4) subpoena Snapchat to obtain self-destructing messages from Mrza, N.W., and N.W.’s friend. 63
More recently, we found the following assignments of error
sufficiently specific:
[T]rial counsel was ineffective by failing to properly [(1)]
investigate and question the Menards corporate investigator concerning the witness’ bias, [(2)] investigate and
contact witnesses identified by Brown, and [(3)] request
a mistrial after it was revealed that the jury was able to
view evidence not related to the case and manipulated
evidence while in deliberations. 64
In reviewing these assignments, each one addresses a specific issue and does not require additional information to
understand precisely what the assignment attacks. 65 Similarly,
in State v. Miranda, 66 we determined that the assignment that
trial counsel was ineffective for “‘failing to meaningfully participate in voir dire’” was sufficient, whereas the assignment
“‘failing to zealously advocate’” was insufficient. Another
insufficient assignment was that trial counsel was ineffective
for “‘Failing to Investigate the Case Fully.’” 67 Notably, these
two insufficient assignments fail to address a specific issue
and require additional information to understand precisely
what the assignments attack.
(ii) Specifically Argued
[26] An ineffective assistance of counsel claim is raised on
direct appeal when the claim alleges deficient performance
63
Id. at 935-36, 926 N.W.2d at 86.
64
State v.
Brown, supra note 40, 317 Neb. at 282-83, 9 N.W.3d at 881.
65
See State v. Hagens, supra note 54.
66
State v. Miranda,
313 Neb. 358, 362,
984 N.W.2d 261, 268 (2023).
67
State v. Wood,
310 Neb. 391, 414,
966 N.W.2d 825, 846 (2021).
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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 postconviction relief to recognize whether the claim was
brought before the appellate court. 68 A claim insufficiently
stated is no different than a claim not stated at all. 69 An argument that does little more than restate an assignment of error
does not support the assignment, and an appellate court will
not address it. 70 Likewise, where an appellant’s brief contains
conclusory assertions unsupported by a coherent analytical
argument, the appellant has failed to include a specific argument sufficient to raise a claim. 71
For example, when the claim of ineffective assistance on
direct appeal involves uncalled witnesses, it is sufficient that
appellate counsel give on direct appeal the names or descriptions of any uncalled witnesses forming the basis of a claim
of ineffective assistance of trial counsel. 72 But the appellate
court does not need specific factual allegations as to what the
person or persons would have said, which will not be found in
the appellate record. 73
(c) Kruger’s Claims
With the foregoing in mind, we next consider each of
Kruger’s claims of his trial counsel’s conduct that Kruger
alleges constitutes deficient performance.
68
State v. Hagens, supra note 54.
69
State v. Kipple, 310 Neb. 654,
968 N.W.2d 613 (2022); State v.
Abdullah,
supra note 57.
70
State v. Blake,
310 Neb. 769,
969 N.W.2d 399 (2022).
71
See
id.
72
See
id. See, also, State v. Rush,
317 Neb. 622,
11 N.W.3d 394 (2024),
modified on denial of rehearing
317 Neb. 917,
12 N.W.3d 787; State v.
Lee,
304 Neb. 252,
934 N.W.2d 145 (2019); State v.
Abdullah, supra note
57.
73
State v.
Blake, supra note 70. See State v.
Abdullah, supra note 57.
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(i) Trial Counsel “failed to file a motion
to discharge based on a violation of
[Kruger’s] right to a speedy trial”
Kruger alleges that his trial counsel’s performance was deficient by failing to move for absolute discharge under Neb. Rev.
Stat. § 29-1208 (Reissue 2016).
Neb. Rev. Stat. § 29-1207(1) (Reissue 2016) provides that
“[e]very person indicted or informed against for any offense
shall be brought to trial within six months . . . ,” which
we have held refers to a period of 6 calendar months, not
180 days. 74 To calculate the time for speedy trial purposes, a
court must exclude the day the period commenced, count forward 6 months, back up 1 day, and then add any time excluded
under § 29-1207(4) to determine the last day the defendant
can be tried. 75 The excluded periods are likewise computed by
excluding the day of the act, event, or default after which the
designated period of time begins to run. 76
In his argument, Kruger sets forth that the information was
filed on July 19, 2023; accordingly, under § 29-1207(1), the
State was required to bring him to trial by January 19, 2024,
but he was not brought to trial until June 3.
However, Kruger agrees that certain excludable periods
under § 29-1207(4)(a) and (b) apply in his case. Subsection (4)
(a) provides for the exclusion of “[t]he period of delay resulting from other proceedings concerning the defendant, including, . . . the time from filing until final disposition of pretrial
motions of the defendant . . . .” Subsection (4)(b) provides
for the exclusion of “[t]he period of delay resulting from a
continuance granted at the request or with the consent of the
defendant or his or her counsel.”
Kruger recognizes that his trial counsel filed multiple pretrial discovery motions on July 26, 2023, which were finally
74
See, e.g., State v.
Dolinar, supra note 10.
75
State v.
Dolinar, supra note 10.
76
Id.
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disposed of when the court ruled on them on August 8; accordingly, under § 29-1207(4)(a), 13 days were excluded, and the
time to bring Kruger to trial was extended to February 1, 2024.
Kruger also recognizes that his trial counsel requested a
series of continuances for a pretrial conference that the court
granted on September 28, 2023; November 30, 2023; and
February 1, 2024. Additionally, Kruger recognizes that his trial
counsel filed numerous pretrial motions on January 11, 2024, and
that some of them were not finally disposed of until May 30
at the pretrial conference. Kruger acknowledges that applying § 29-1207(4)(a) and (b) to those pretrial motions filed by
his trial counsel and those continuances granted at the request
of his trial counsel, the time to bring him to trial had not run
when trial commenced in his case on June 3.
However, Kruger notes that the record shows that he continually asserted his right to a speedy trial and that his counsel
sought and received the continuances over his objection, and
he asserts that his counsel failed to properly obtain rulings on
the filed pretrial motions. Kruger further notes that the record
shows that he never waived his right to a speedy trial and that
the court never advised him as to his speedy trial right or the
effect of its waiver.
The State argues that the record affirmatively refutes
Kruger’s claim that his counsel was ineffective for failing to
file a motion for absolute discharge because such a motion
would have been meritless. The State contends that, as noted
by Kruger in his appellate brief, sufficient periods of time
were excludable due to Kruger’s trial counsel’s requested continuances and filed pretrial motions, “regardless of Kruger’s
consent.” 77 In support, the State relies on our interpretation of
§ 29-1207(4)(b) (Reissue 1995) in State v. McHenry. 78
[27] In that case, on appeal from the denial of a postconviction motion without an evidentiary hearing, we addressed
77
Brief for appellee at 23.
78
State v. McHenry, 268 Neb. 219,
682 N.W.2d 212 (2004).
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the situation of trial counsel’s obtaining a continuance over
a defendant’s objection. We observed that we had previously
recognized that defense counsel’s reasonable strategic decisions could effectively waive a defendant’s statutory right to
speedy trial 79 and that “except for such basic decisions as . . .
whether to plead guilty, waive a jury trial, or testify in his or
her own behalf, a defendant is bound by the tactical or strategic decisions made by his or her counsel.” 80 We concluded
that the statutory language of § 29-1207(4)(b) made “clear
that the statutory right to a speedy trial is not a personal right
that can be waived only by a defendant.” 81 Thus, although
defense counsel’s authority to waive a defendant’s statutory
right to speedy trial cannot extend to excuse ineffective representation, defense counsel can effectively waive a defendant’s
right to speedy trial. 82 The question, as it is with all claims of
ineffective assistance of counsel, is whether counsel’s performance did not equal that of a lawyer with ordinary training
and skill in criminal law. 83 State v. McHenry stands for the
proposition that reasonable strategic decisions by defense
counsel do not constitute deficient performance, even when
those decisions delay the commencement of trial. 84
Accordingly, in Kruger’s case, the continuances requested
by Kruger’s trial counsel, as well as the pretrial motions, were
valid and effective for purposes of § 29-1207(4)(a) and (b).
Thus, the record affirmatively refutes Kruger’s claim that his
counsel was deficient for failing to file a motion to discharge
under § 29-1208 because the time to bring Kruger to trial had
not run at any point before he was brought to trial.
79
See State v. Russell,
248 Neb. 723,
539 N.W.2d 8 (1995).
80
State v.
McHenry, supra note 78,
268 Neb. at 231,
682 N.W.2d at 224
(internal quotation marks omitted).
81
Id.
82
See State v.
McHenry, supra note 78.
83
See
id.
84
See, also, State v. Fries,
224 Neb. 482,
398 N.W.2d 702 (1987).
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To the extent Kruger’s argument could be read as implying that his counsel’s conduct that led to the requested continuances and filed motions was deficient, 85 that conduct of
his trial counsel was not assigned, and therefore, we do not
consider it.
(ii) Trial Counsel “failed to have [Kruger]
evaluated by a mental health professional
in order to aid in his defense”
Kruger alleges that his trial counsel’s performance was
deficient by failing to have him evaluated by a mental health
professional prior to trial because such an expert witness
could have testified concerning how the lifelong abuse by his
father impacted his perception of danger related to his father’s
actions. He argues:
An expert would have explained that, “Abused children
perceive the behavior of their batterer with a degree
of knowledge and familiarity not accounted for in the
rational observation standard of the self-defense model.
Because of this difference in perception, [these cases] will
always require expert analysis of the defendant’s ability
to assess and respond to the behavior of [their] batterer.”
See Comment, Moreno, Killing Daddy: Developing a
Self-Defense Strategy for the Abused Child (1989), 137
U.Pa.L.Rev. 1281, 1283. 86
Kruger contends that such testimony would have aided the jury
in its consideration of the evidence in determining whether
Kruger acted in self-defense or upon a sudden quarrel and
would have provided the court with further information as to
the relevancy of his excluded § 27-404 evidence.
The State argues that this claim lacks merit because Kruger
cannot show that he was prejudiced, as a matter of law, by
his counsel’s failure to have him evaluated by a mental health
85
See, e.g., id.
86
Brief for appellant at 28.
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professional. The State asserts that any testimony by a mental health professional would have been irrelevant because
the only issue for the jury at trial was the credibility of
Kruger’s testimony.
Regardless of the parties’ arguments, we do not address
this claim because Kruger has failed to specifically assign
what conduct of his trial counsel he claims constituted deficient performance. Kruger identifies that counsel failed to
have him evaluated; however, he stops short of including the
specificity required as to counsel’s deficient performance by
merely stating “to aid in his defense.” Kruger’s assignment
requires additional information to understand precisely what
the assignment attacks.
Because Kruger has failed to specifically assign deficient
performance, we do not consider his corresponding argument.
(iii) Trial Counsel “failed to introduce
evidence of [Kruger’s] Post Traumatic
Stress Disorder diagnosis”
For similar reasons, Kruger relatedly alleges that his trial
counsel’s performance was deficient by failing to introduce
evidence of his post-traumatic stress disorder diagnosis. The
State similarly argues that this claim fails because the only
issue for the jury at trial was the credibility of Kruger’s testimony. We disagree with the State.
Because this assignment addresses a specific issue that does
not require additional information to understand precisely what
the assignment attacks, it is sufficiently specific. Kruger’s
assignment identifies the conduct of his counsel that he attacks,
the failure to introduce evidence, and, specifically, evidence of
his post-traumatic stress disorder diagnosis. His argument then
details how that failure did not equal the performance of a lawyer with ordinary skill and training in criminal law.
However, without knowing what such evidence would
show, we cannot conclusively determine whether Kruger’s trial
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counsel’s failure was reasonable or whether Kruger was prejudiced by his counsel’s failure to do so.
The record is insufficient to conclusively determine
this claim.
(iv) Trial Counsel “failed to take [Kruger’s]
insights into consideration when
developing a trial strategy”
Kruger alleges that his trial counsel’s performance was
deficient by developing a trial strategy without consideration
of Kruger’s thoughts, opinions, and insights, which stemmed
from Kruger’s own detailed review of the discovery in his case
and his personal familiarity with his family’s dynamics and the
scene of the crime. He argues that
a reasonable lawyer with ordinary training and skill
would have taken [his] thoughts, opinions, insights, and
hard work into consideration and listened to what he
desired for his trial strategy. This deficiency prejudiced
[his] defense because had Trial Counsel listened to [his]
insights about the case, a different and more effective
trial strategy could have been executed[,] includ[ing] one
that utilized mental health providers, and this case would
have resulted in a different verdict. 87
The State contends that Kruger’s assignment of error is
insufficiently assigned because Kruger fails to offer specifics
as to how his contributions would have led to a change in trial
strategy. We agree.
This assignment does not address a specific issue and
requires additional information to understand precisely what
the assignment attacks. The assignment vaguely refers to
“insights,” “consideration,” “develop[ment],” and “trial strategy.” These vague terms are not sufficient to understand precisely what the assignment attacks. Kruger’s assignment fails
to identify the insights that trial counsel failed to consider
87
Id. at 38.
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and fails to identify what conduct of his trial counsel’s performance constituted deficient performance because of that
failure. Because the assignment requires such additional information to understand precisely what conduct the assignment
attacks, it lacks sufficient specificity.
Because Kruger has failed to specifically assign deficient
performance, we do not consider his corresponding argument.
(v) Trial Counsel “told [Kruger] that he
needed to testify over his objection”
Kruger alleges that his trial counsel’s performance was deficient by telling Kruger that he needed to testify in his defense
at trial, instead of respecting that the decision to testify was
Kruger’s alone.
The State asserts that this claim fails. It contends that the
claim is contradicted by a colloquy in the record between
the court and Kruger wherein Kruger indicated that he made
the decision to testify “‘freely and voluntarily’” and that there
had not been any “‘promises or threats made to get [him]
to do that.’” 88 We agree that Kruger’s claim fails, albeit on
slightly different reasoning.
We note that the U.S. Supreme Court has recognized that
“[e]very criminal defendant is privileged to testify in his
[or her] own defense, or to refuse to do so.” 89 The privilege
against self-incrimination “‘is fulfilled only when an accused
is guaranteed the right “to remain silent unless he [or she]
chooses to speak in the unfettered exercise of his [or her]
own will.”’” 90 “The choice of whether to testify in one’s own
defense must therefore be ‘unfettered,’ since that choice is an
88
Brief for appellee at 25.
89
Harris v. New York, 401 U.S. 222, 225,
91 S. Ct. 643,
28 L. Ed. 2d 1
(1971).
90
Rock v. Arkansas,
483 U.S. 44, 53,
107 S. Ct. 2704,
97 L. Ed. 2d 37 (1987)
(quoting Harris v. New
York, supra note 89 (Brennan, J., dissenting;
Douglas and Marshall, JJ., join)).
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exercise of the constitutional privilege . . . .” 91 “Freedom of
choice is not a stranger to the constitutional design of procedural protections for a defendant in a criminal proceeding.” 92
We have likewise recognized that the right to testify is
personal to the defendant and that defense counsel bears the
primary responsibility for advising a defendant of his or her
right to testify or not to testify, of the strategic implications of
each choice, and that the choice is ultimately for the defendant
to make. 93 “‘This advice is crucial because there can be no
effective waiver of a fundamental constitutional right unless
there is an “intentional relinquishment or abandonment of a
known right or privilege.”’” 94 The competence and soundness of defense counsel’s tactical advice is crucial to whether
counsel has presented sufficient information to the defendant
to permit a meaningful and effective waiver of the right to
testify. 95 “Even the intelligent and educated lay[person,] . . .
[i]f charged with [a] crime, . . . lacks both the skill and knowledge adequately to prepare his [or her] defense [and] requires
the guiding hand of counsel at every step in the proceedings
against him [or her].” 96
[28] Accordingly, we have held that defense counsel’s advice
pertaining to a waiver concerning the defendant’s right to testify can present a valid claim of ineffective assistance in two
instances: (1) if the defendant shows that counsel interfered
with his or her freedom to decide to testify or (2) if counsel’s
91
Harris v. New
York, supra note 89,
401 U.S. at 230 (Brennan, J.,
dissenting; Douglas and Marshall, JJ., join).
92
Faretta v. California,
422 U.S. 806, 834 n.45,
95 S. Ct. 2525,
45 L. Ed. 2d
562 (1975).
93
See State v. Iromuanya,
282 Neb. 798,
806 N.W.2d 404 (2011).
94
Id. at 811, 806 N.W.2d at 421-22 (quoting U.S. v. Teague,
953 F.2d 1525
(11th Cir. 1992)).
95
See State v. Iromuanya, supra note 93.
96
Powell v. Alabama,
287 U.S. 45, 69,
53 S. Ct. 55,
77 L. Ed. 158 (1932).
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tactical advice to waive the right was unreasonable. 97 In both
circumstances, the legal issue is whether the defendant’s decision was made knowingly and intelligently. 98
Here, Kruger has alleged specific conduct of his trial counsel that may have failed to protect his interests and interfered
with his freedom to decide to testify. 99 However, the record
affirmatively refutes his claim because, assuming that his
counsel’s performance was deficient, it shows that Kruger
will not be able to establish prejudice as a matter of law.
The record shows the following exchange between the court
and Kruger:
THE COURT: . . . You have the absolute right not to
testify. That is a decision that is personal, only you can
make it.
[Kruger:] Right.
THE COURT: If you choose to testify again,
you’re going to be subject to cross-examination and
impeachment like any other witness. If you choose not
to testify, I’m going to specifically instruct the jury that
they cannot hold that against you. They cannot make
any inference based upon your decision to do that and I
will explain to them that, that’s your right and you can
exercise that right. In light of that sir, do you understand
your right to testify and your right — understand your
right not to testify?
97
See State v. Iromuanya, supra note 93. Accord State v. Johnson, 298 Neb.
491,
904 N.W.2d 714 (2017).
98
See State v. Journey,
207 Neb. 717,
301 N.W.2d 82 (1981). See, also, State
v. Dean,
264 Neb. 42,
645 N.W.2d 528 (2002).
99
Compare State v. Hagens, supra note 54, ante at 87, 26 N.W.3d at 193
(ineffective assistance of counsel when counsel “‘advised [appellant] not
to testify’” sufficiently specific), with State v.
German, supra note 29,
316 Neb. at 872, 7 N.W.3d at 229 (ineffective assistance of counsel “‘in
respect to [a]dvice [p]rovided on the [d]ecision to [w]aive the [r]ight to
[t]estify [b]y [p]roviding [u]nreasonable [a]dvi[c]e [n]ecessary for a [m]
eaningful [d]ecision’” insufficiently specific).
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[Kruger:] Yes I do, Your Honor.
THE COURT: And sir, have you decided what you do
would like to do for the purposes of this trial in front of
the jury?
[Kruger:] I’m going to testify.
THE COURT: And are you making that decision freely
and voluntarily?
[Kruger:] Yes.
THE COURT: Any promises or threats made to get you
to do that?
[Kruger:] No.
The colloquy above shows that the court informed Kruger
that whether to testify in his own defense was his personal decision, that Kruger understood the choice was his
personal decision, that Kruger made the free and voluntary
choice to testify, and that Kruger raised no objection to testifying. Thus, the record affirmatively refutes this claim because it
shows that Kruger’s decision to assert his right to testify and
waive his right not to be a witness against himself was made
knowingly and intelligently. Even assuming that Kruger’s
counsel told him that he needed to testify and performed deficiently in doing so, Kruger will not be able to establish prejudice as a matter of law because the court informed Kruger that
he did not need to testify, and Kruger still chose to do so.
To the extent Kruger’s argument implies that his counsel provided him unreasonable advice concerning Kruger’s
choice to testify, he has not assigned what advice his trial
counsel provided or that he claims such advice to have constituted deficient performance. Accordingly, we do not consider
that possibility.
(vi) Trial Counsel “failed to advise
[Kruger] of a potential plea deal
for a lesser offense”
Kruger alleges that his trial counsel’s performance was deficient because counsel was aware of a plea offer from the State
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but never discussed it with him. Kruger and the State agree
that the record is insufficient to determine this claim on direct
appeal because the existence and contents of such a plea offer
are not within the appellate record. We agree.
The record is insufficient to conclusively determine
this claim.
(vii) Trial Counsel “failed to properly investigate
whether the [S]tate’s key witness received a
plea deal in exchange for her testimony”
Kruger alleges that his trial counsel’s performance was
deficient by failing to investigate whether the State’s key
witness received a plea offer in exchange for testifying in
Kruger’s trial. He argues that the circumstances surrounding
his arrest warranted such an investigation and contends that if
such an offer had been made or a plea agreement existed, the
resulting potential bias should have been before the jury for
its consideration.
The State argues that Kruger cannot show he was prejudiced
by this conduct as a matter of law because the witness’ testimony was cumulative of other testimony. In so doing, the State
relies on State v. Ildefonso, 100 where we determined that the
erroneous admission of hearsay evidence was harmless error
and did not require reversal because the hearsay evidence was
cumulative and other properly admitted relevant evidence supported the jury’s verdict. That case is inapplicable here.
[29] As we have recognized, witnesses’ bias affects the reliability of their testimony at trial. 101 The erroneous admission of
hearsay evidence that is cumulative of other properly admitted
evidence is readily distinguishable from the entire absence of
evidence of a witness’ potential bias.
Nevertheless, in his argument, Kruger fails to allege how
his trial counsel was deficient in failing to “investigate.” He
100
State v. Ildefonso, 262 Neb. 672,
634 N.W.2d 252 (2001).
101
State v. Brown, supra note 40. Cf.
Neb. Rev. Stat. § 27-408 (Reissue
2016).
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fails to detail how the conduct that his trial counsel either did
or did not pursue was unreasonable. His argument fails to
allege the details that form the basis of his claim.
Because Kruger has failed to specifically argue this claim, it
is insufficiently raised, and we do not consider it.
(viii) Trial Counsel “failed to cross examine the
[S]tate’s key witness about whether she received
a plea deal in exchange for her testimony”
Relatedly, Kruger alleges that his trial counsel’s performance
was deficient by failing to cross-examine the witness concerning such a plea agreement. The State again relies on State v.
Ildefonso 102 in support of its argument that Kruger cannot show
he was prejudiced by his counsel’s failure to do so as a matter
of law. For the same reasons discussed above, that case is inapplicable here, and we disagree with the State.
Nevertheless, also for the same reasons discussed above,
Kruger has failed to sufficiently raise this claim. In his argument, Kruger has not detailed how his trial counsel’s conduct
amounted to deficient performance. Kruger recognizes that his
counsel did not know of such a plea deal because he did not
“investigate.” But again, he fails to allege the details that form
the basis of his claim—how his counsel’s conduct constituted
deficient performance.
Because Kruger has failed to specifically argue this claim, it
is insufficiently raised, and we do not consider it.
(ix) Trial Counsel “allowed two
unpredictable witnesses to testify”
Finally, Kruger alleges that his trial counsel’s performance
was deficient by calling two witnesses to testify in his defense
whom he asserts were unpredictable. He argues that counsel
“should have realized that [they] were unpredictable witnesses
and either prepped them for trial more effectively or not called
them to testify at all” because they had difficulty recalling the
102
State v. Ildefonso, supra note 100.
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circumstances of the incident, and their testimony at times was
inconsistent with prior statements they had given. 103
The State argues that this claim is meritless because the
witnesses’ testimony was largely consistent with Kruger’s own
testimony, and their testimony provided strong corroboration
of the fact that Kruger’s father consistently aggressed against
Kruger, that Kruger did not aggress against his father, and,
ultimately, that Kruger did not stab his father.
First, to the extent Kruger argues that his trial counsel failed
to sufficiently prepare the witnesses for trial, Kruger did not
assign that conduct amounted to deficient performance. As this
court has continuously held and we set forth above, assignments of error on direct appeal regarding ineffective assistance
of trial counsel must specifically allege the conduct that is
claimed to constitute deficient performance. 104 We decline to
read that portion of Kruger’s argument as a separate assignment of error. Accordingly, we do not consider it.
[30,31] As for Kruger’s trial counsel’s decision to call the
witnesses at trial, we generally agree with the State that their
testimony was favorable to Kruger’s defense. The decision to
call, or not to call, a particular witness, made by counsel as a
matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel. 105 A reasonable strategic decision to present
particular evidence, or not to present particular evidence, will
not, without more, sustain a finding of ineffective assistance
of counsel. 106
In this case, the witnesses were present at the time of the
altercation, and by testifying, the jury was able to hear from all
adult persons who were present. Even though their testimony
103
Brief for appellant at 40.
104
See, State v. Mrza, supra note 56; State v.
Filholm, supra note 56.
105
State v. Alarcon-Chavez, 295 Neb. 1014,
893 N.W.2d 706 (2017); State v.
Evans, 235 Neb. 575,
456 N.W.2d 739 (1990).
106
State v. Alarcon-Chavez, supra note 105.
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consisted of some inconsistencies with their prior statements
and differed from Kruger’s own testimony in some respects,
the State’s witnesses had similar inconsistencies and similarly differed from each other’s testimony in some respects.
Moreover, the witnesses’ testimony was favorable to Kruger
and his defense, and despite conflicting with Kruger’s testimony in some respects, those conflicts still supported other
theories of his defense.
For those reasons, the record affirmatively shows that
Kruger’s trial counsel’s performance was not deficient by calling the witnesses.
VI. CONCLUSION
We have determined that the court did not abuse its discretion in excluding particular evidence under § 27-404, the
court’s refusal to instruct the jury on unintentional manslaughter is not reversible error, sufficient evidence supports
Kruger’s convictions, and as far as the appellate record shows,
Kruger did not receive ineffective assistance of counsel. Thus,
we affirm the judgment of the district court.
Affirmed.
Miller‑Lerman, J., concurring.
A step instruction setting forth the elements of first degree
murder, second degree murder, and manslaughter was given in
this case. The step instruction allowed the jury to find Kruger
guilty of first degree murder without considering the elements
of the lesser‑included offenses of second degree murder and
manslaughter and without making a specific finding that the
killing was not upon a sudden quarrel.
No assignment of error complains about this aspect of
the instruction. I believe the due process implications of the
step instruction in a first degree murder case warrant revisiting, as elucidated in the dissent in State v. Hinrichsen, 292
Neb. 611,
877 N.W.2d 211 (2016) (Connolly, J., dissenting; Miller‑Lerman, J., joins). See, also, State v. Kilmer, 318
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Neb. 148,
13 N.W.3d 717 (2024) (Miller‑Lerman, J., concurring); State v. Esch,
315 Neb. 482,
997 N.W.2d 569 (2023)
(Miller‑Lerman, J., concurring).
