State v. Taylor ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. TAYLOR
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
BERRY L. TAYLOR, APPELLANT.
Filed January 5, 2021. Nos. A-19-1113, A-19-1114.
Appeals from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed
as modified.
Thomas C. Riley, Douglas County Public Defender, and Rebekah S. Keller for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
MOORE, BISHOP, and WELCH, Judges.
MOORE, Judge.
I. INTRODUCTION
In these consolidated cases, Berry L. Taylor appeals from his convictions and sentences in
the District Court for Douglas County, for domestic assault, robbery, and strangulation. Taylor
challenges the sufficiency of the evidence to support his convictions for robbery and strangulation
and the sentences imposed for his convictions. He also asserts that he received ineffective
assistance of counsel. For the following reasons, we affirm as modified.
II. BACKGROUND
1. CASE NO. A-19-1113
On January 16, 2019, Omaha police officers were dispatched to investigate a domestic
incident and met with Kyara Williams at a hospital. Williams told officers that she was in a dating
relationship with Taylor and they were having a conversation when Taylor became angry and
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pushed her onto the bed and began to choke her. Officers observed a scratch on the left side of
Williams’ neck, near the back of her hairline, which was consistent with the assault described.
On April 9, 2019, an information filed in the district court charged Taylor with one count
of strangulation, a Class IIIA felony under Neb. Rev. Stat. § 28-310.01(1) and (2) (Supp. 2019).
An amended information was filed on August 30 charging Taylor with one count of third degree
domestic assault, a Class I misdemeanor. Taylor entered a guilty plea on the same day. The district
court advised Taylor of his rights and explained that Taylor would face a maximum penalty of 1
year’s imprisonment, a $1,000 fine, or both. Taylor acknowledged the possible penalty and that it
could run consecutive or concurrent to his sentence in case No. A-19-1114, agreed that he had
sufficient time to meet with his attorney and was satisfied with the attorney services provided, and
denied believing that his plea would result in a particular sentence.
The district court found Taylor guilty of the charge.
2. CASE NO. A-19-1114
An information also filed on April 9, 2019, charged Taylor with one count of robbery, a
Class II felony, under Neb. Rev. Stat. § 28-324(1) (Reissue 2016), and one count of strangulation,
a Class IIIA felony, under § 28-310.01(1) and (2). At a pretrial hearing on June 18, Taylor waived
his right to a jury trial in favor of a bench trial. The court confirmed that Taylor was informed he
had a right to a jury trial and that he waived his right on his own volition. The bench trial was held
on August 22. The following evidence was heard at trial.
Bernard Fraction testified that on January 27, 2019, he contacted law enforcement because
he had been assaulted by Taylor. Fraction testified that Taylor lives in the same apartment building
as him and gave him a ride to an ATM in exchange for Fraction paying Taylor $10, an arrangement
they made over the phone. Fraction noted that when Taylor picked him up in the parking lot of
their apartment building, a girl was in the car with him. Fraction described the ride as unpleasant,
noting that Taylor seemed upset about something.
Fraction testified that when they arrived at the ATM, Taylor pulled over so that Fraction
could get out of the car and make the withdrawal. When Fraction gave Taylor the agreed-upon $10
for the ride, Taylor demanded more and Fraction refused. Fraction testified that Taylor did not
take him home immediately after that, and made a couple of stops before returning to the
apartment. During this time, Taylor ignored Fraction’s requests to take him home, and Fraction
testified that Taylor was being erratic and talking loudly with the girl in the car.
Fraction testified upon returning to the apartment building, Taylor blocked him from going
into his apartment. Taylor then hit Fraction in the mouth with a closed fist causing him to bleed
and then started choking him from behind while searching his pockets for money. Fraction testified
that Taylor continued to choke him for around a minute, but he did not lose consciousness. Fraction
felt like he was not able to breathe. Fraction further testified that he suffered injuries as a result of
the assault, consisting of a swollen jaw and neck, loose teeth, and bleeding from the mouth.
Fraction estimated that Taylor took around $60 from him, based on the amount of money Fraction
took out of the ATM.
On cross-examination, Fraction testified that the incident occurred around 5:30 p.m.,
“according to the police.” He also indicated that it was during daylight hours, or in the early
evening. When confronted with the police report which stated the incident occurred around 5 a.m.,
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Fraction testified that the police report was incorrect. Although the police report indicates that
Fraction did not report the choking incident, Fraction again testified that the report was untrue or
misleading. On cross-examination, Fraction denied that he had asked Taylor to give him a ride to
pick up drugs.
Omaha Police Officer Brett Wagner testified that around 5:30 in the morning on January
27, 2019, he was dispatched to Fraction’s apartment building to investigate an assault. Upon
arrival, Wagner observed that Fraction had a swollen and bleeding lip, and that there was blood on
the floor outside Fraction’s door. Wagner testified that he believed the assault occurred around 5
a.m. Wagner confirmed that at the time he made the report, Fraction had not reported that he had
been strangled by Taylor. Taylor offered an incident report from the Omaha Housing Authority,
which noted the assault occurred at 5:30 a.m., and the Omaha Police Department incident report
which provided the time of the incident as 5 to 5:15 a.m.
Taylor testified in his own behalf. Taylor testified that in the early morning hours of
January 27, around 1:30 to 2 a.m., he received a call from Fraction asking Taylor to pick up a
package for him and take him to an ATM. Taylor said he picked up a small, thumb-sized package,
and testified that he was “sure that from just the call and the person, that it was a drug transaction.”
Taylor testified that he paid $60 to get the package for Fraction.
After that, Taylor picked Fraction up from the apartment building and went to the ATM.
Taylor requested $10 for the ride and $60 to be reimbursed for the package he picked up. Taylor
testified that the two argued in the car and into the apartment building because Fraction refused to
pay $60. Taylor testified that Fraction challenged him to a fight, and that he hit Fraction on the
mouth because he felt that Fraction was going to attack him. Fraction fell to the ground, and Taylor
testified that he put Fraction in a choke hold to restrain him but that he did not intend to strangle
him. Taylor testified that Fraction continued to talk while being held in the choke hold. Taylor
testified that after two to three minutes of holding Fraction in the choke hold, Fraction agreed to
give Taylor the money in exchange for being released from Taylor’s hold. Taylor denied applying
any pressure during the hold. Taylor testified that Fraction eventually gave him the $60 and then
he left. Taylor also testified that the incident did not occur at 5 p.m., disagreeing with Fraction’s
testimony.
On cross-examination, Taylor agreed that when he hit Fraction in the mouth, Fraction had
not injured or made physical contact with him.
Taylor called Wanda Ammons, who was present in the apartment building at the time of
the incident. Ammons testified that another woman was also present watching the altercation, but
she did not identify her by name. Ammons testified that she saw both Taylor and Fraction punching
each other. Ammons testified that she did not see whether Taylor held Fraction in a choke hold,
because Taylor had his back to her. Ammons further testified that she saw Fraction hand Taylor
money, and that Taylor did not take it forcefully. Ammons could not remember the date and time
of the incident, but thought it likely happened between 9 to 10 p.m.
On August 30, 2019, the district court entered a guilty verdict on both counts against
Taylor.
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3. SENTENCING
The district court simultaneously sentenced Taylor on both cases on October 24, 2019. In
case No. A-19-1113, Taylor was sentenced to 1 year’s incarceration, to be served consecutive to
the sentences imposed in case No. A-19-1114. He was given credit of 229 days previously served
against this sentence. In case No. A-19-1114, Taylor was sentenced to 5 to 7 years’ incarceration
for the robbery charge and 3 to 3 years’ incarceration on the strangulation charge, to run
consecutively to each other and to the sentence imposed in case No. A-19-1113.
III. ASSIGNMENTS OF ERROR
Reordered and restated, Taylor assigns that the evidence was insufficient to support the
convictions for robbery and strangulation and that the sentences imposed were excessive. In
addition, he assigns that his trial counsel was ineffective because he (1) failed to properly advise
Taylor about his right to a jury trial, (2) failed to call all known witnesses, (3) failed to fully and
completely cross-examine Officer Wagner, (4) failed to properly prepare Taylor for direct
examination, (5) failed to fully and completely cross-examine Fraction, (6) failed to object to
inadmissible and irrelevant testimony, (7) failed to object to inadmissible leading questioning of
Fraction, (8) failed to properly advise Taylor on the decision to testify at trial, (9) failed to file a
motion for mutual and reciprocal discovery, (10) emphasized irrelevant, negative character
evidence at sentencing, and (11) failed to correct the district court’s misapplication of jail credit to
which Taylor was entitled. Taylor further asserts that the cumulative effect of all the errors showed
trial counsel’s overall performance was so deficient it denied him the effective assistance of
counsel.
IV. STANDARD OF REVIEW
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. State v. Garcia, 302 Neb. 406, 923 N.W.2d
725 (2019). 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. Id.An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. Id. 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. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).
Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. Id. We determine as a matter of law whether the record
conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was
or was not prejudiced by a defense counsel’s alleged deficient performance. State v. Garcia, supra.
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V. ANALYSIS
1. SUFFICIENCY OF EVIDENCE
Taylor challenges the sufficiency of the evidence to convict him of robbery and
strangulation.
(a) Robbery
Under § 28-324, a person commits robbery if, with the intent to steal, he forcibly and by
violence, or by putting in fear, takes from the person of another any money or personal property
of any value whatever. Taylor contends that the State failed to prove beyond a reasonable doubt
that Taylor took money or property from Fraction without his consent and failed to prove that
Taylor intended to steal the money. In support of his argument, Taylor points to the disputed
testimony regarding whether Fraction willingly gave Taylor the money. While Fraction testified
that Taylor took the money out of Fraction’s pants pocket while Taylor was maintaining a choke
hold on him, Taylor and Ammons testified that Fraction took the money out of his own pocket and
handed it to Taylor. In addition, Taylor testified that he and Fraction agreed that Fraction would
pay him $60 as reimbursement for picking up a package for Fraction and $10 for the ride to the
ATM. However, Fraction testified that he only agreed to pay $10 for the ride; there was no other
agreement for additional payment.
As established above, an appellate court does not resolve conflicts in the evidence or pass
on the credibility of the witnesses; such are matters determined by the finder of fact. See State v.
Garcia, supra. Apparently, the district court found that Fraction’s testimony was more credible
than that of Taylor and Ammons. Thus, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could find that Taylor intended to steal money from Fraction
when, after hitting Fraction in the mouth, Taylor then placed Fraction in a choke hold and forcibly
removed the money from Fraction’s pocket. The district court did not err in finding that the State
proved the elements of the crime of robbery.
(b) Strangulation
Under § 28-310.01(1), a person commits the offense of assault by strangulation or
suffocation if the person knowingly and intentionally impedes the normal breathing or circulation
of the blood of another person by applying pressure on the throat or neck of the other person.
Further, under § 28-310.01(2), an offense is committed under this section regardless of whether a
visible injury resulted.
Taylor argues that the State failed to establish beyond a reasonable doubt that an assault by
strangulation occurred. Taylor argues that, although Fraction testified that he was choked by
Taylor and his breathing was restricted, this was refuted by the fact that such choking was not
noted in the police report. Taylor also notes that although he admitted to holding Fraction in a
choke hold, he did not apply pressure and Fraction was able to talk and move during the hold.
As noted above, this court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. See State v. Garcia, supra. The district court apparently
found that Fraction’s testimony was more credible. A rational trier of fact could have found the
elements of the crime of strangulation were proven. Thus, viewing the evidence in the light most
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favorable to the prosecution, the district court did not err in finding that Taylor committed the
crime of strangulation.
2. EXCESSIVE SENTENCE
Taylor argues that the district court abused its discretion by imposing an excessive
sentence, claiming that the court failed to adequately consider the mitigating factors. Where a
sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the sentence to be
imposed. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019). In determining a sentence to be
imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved in the commission of the crime. Id.In case No. A-19-1113, Taylor was sentenced to 1 year’s incarceration for third degree
domestic assault. Third degree domestic assault is a class I misdemeanor, punishable by a
maximum of 1 year’s imprisonment or a $1,000 fine, or both. § 28-323(4) and (5); Neb. Rev. Stat.
§ 28-105(1).
In case No. A-19-1114, Taylor was sentenced to 5 to 7 years’ incarceration for the robbery
charge and 3 to 3 years’ incarceration for strangulation, to run consecutively to each other and to
the sentence imposed in case No. A-19-1113. Robbery is a Class II felony, punishable by a
maximum of 50 years’ imprisonment and a minimum of 1 year’s imprisonment. § 28-324(2);
§ 28-105(1). Strangulation is a class IIIA felony, punishable by a maximum of 3 years’
imprisonment with no minimum, and 9 to 18 months’ postrelease supervision if imprisonment is
imposed, a $10,000 fine, or both. § 28-310.01(3); § 28-105 (1). Thus, Taylor was sentenced within
the statutory limits in both cases and we look to the other factors outlined above to determine
whether the district court abused its discretion in sentencing Taylor.
At the time the presentence investigation report (PSI) was prepared, Taylor was 35 years
old. Taylor had one adjudication in juvenile court, and he was satisfactorily discharged from
juvenile probation. Taylor also has an adult criminal record dating back to 2001, which included
convictions for failure to appear (twice), trespassing, theft by shoplifting, carrying a concealed
weapon, disorderly conduct (twice), theft by receiving stolen property, assault and battery,
possession of marijuana less than one ounce (three convictions), violation of a protection order
(unsatisfactorily released from probation), false information (twice), possession of a machine gun,
short rifle, or short shotgun (probation revoked and sentence to 1 year’s incarceration), third degree
assault, and numerous traffic-related offenses.
Taylor scored in the medium risk range or higher in every category on his Level of
Service/Case Management Inventory report. Taylor scored as a “very high risk” overall. Taylor
scored in the maximum risk for violence and antisocial behavior on the Substance Abuse
Questionnaire (SAQ), and in the problem risk range for alcohol, drugs, and aggressiveness. The
PSI also indicated that Taylor has significant mental health issues that need to be addressed.
Taylor did not graduate from high school after being expelled in the ninth grade from two
schools and failing to enroll in the alternative school where he was placed. Taylor expressed a
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desire to obtain his GED, but does not believe he is capable of doing so. At the time of the PSI,
Taylor was unemployed due to his incarceration. Taylor indicated that prior to his incarceration,
he held two different positions for a few months each, but had not held any employment between
2012 and 2017.
The probation officer recommended a straight sentence of incarceration, due to Taylor’s
high risk to reoffend, failure to successfully complete probation in the past, and continued
involvement in negative situations.
Taylor argues that the district court did not meaningfully consider the relevant sentencing
factors, and that if the court had properly considered all factors, he would’ve received a lesser
sentence. Specifically, Taylor argued that he was still relatively young and consecutive sentences
of 1 year, 3 years, and 5 to 7 years were counterproductive to allowing him to find treatment and
attempt to be a productive member of society. Taylor also argues that outside of incarceration he
would be able to receive treatment for his mental health and substance abuse issues.
The record shows that the district court clearly considered all of the relevant factors. It is
not the function of an appellate court to conduct a de novo review of the record to determine
whether a sentence is appropriate. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020). The
appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019). Based
on this record, we cannot say that the district court abused its discretion by imposing excessive
sentences.
Taylor also argues that the district court failed to properly apply the credit for time
previously served. The court determined that Taylor was entitled to 229 days of credit and applied
that credit toward the sentence in case No. A-19-1113, the domestic assault conviction. Taylor
asserts that the credit should have been applied to the other sentences in case No. A-19-1114,
reasoning that because he was sentenced to 1 year’s imprisonment on the domestic assault
conviction, he only needed 190 days of credit to be applied to that case. Taylor bases this argument
on the assumption that he would receive good time credit while incarcerated. See Neb. Rev. Stat.
§§ 83-1,107 and 47-502 (Reissue 2016) (provisions for sentence reduction).
Under Neb. Rev. Stat. § 83-1,106 (Reissue 2014), whether a defendant is entitled to credit
for time served and in what amount are questions of law, subject to appellate review independent
of the lower court. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020). The credit for time
served to which a defendant is entitled is an absolute and objective number that is established by
the record. § 83-1,106. State v. McCulley, supra. Although under § 83-1,106 an offender shall be
given credit for time served as a result of the charges that led to the sentences, presentence credit
is applied only once. Therefore, when consecutive sentences are imposed for two or more offenses,
periods of presentence incarceration may be credited only against the aggregate of all terms
imposed. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
The record shows that Taylor was confined 229 days awaiting trial and sentencing for both
cases. He was sentenced to incarceration at the Department of Correctional Services in both cases
and all sentences were imposed consecutively. Because the possibility exists that Taylor’s actual
time served for the misdemeanor charge in case No. A-19-1113 could be less than the credit he is
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due, we modify the sentencing orders to apply the 229 days of credit to the aggregate of the
sentences in case No. A-19-1114 instead of to the sentence in case No. A-19-1113.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
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. See State v. Garcia, 302 Neb. 406, 923 N.W.2d
725 (2019). 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. Id. 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. Id. Whether a claim of ineffective
assistance of trial counsel can be determined on direct appeal depends upon the sufficiency of the
record to address the claim to determine whether a defense counsel’s performance was deficient
and whether the defendant was prejudiced by the alleged deficient performance. State v. Thiesen,
306 Neb. 591, 946 N.W.2d 677 (2020). The record on direct 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, or that trial counsel’s actions could not be justified as a part of any plausible
trial strategy. Id. When a claim of ineffective assistance of trial counsel is raised on direct appeal,
the appellant is not required to allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes deficient performance. State v. Devers,
306 Neb. 429, 945 N.W.2d 470 (2020).
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. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). 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. State v. Anderson, 305 Neb.
978, 943 N.W.2d 690 (2020). To show prejudice in a claim of ineffective assistance of counsel,
the defendant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id.(a) Failure to Advise About Right to Jury Trial
Taylor argues that his trial counsel did not adequately advise him regarding his right to a
jury trial and was deficient in allowing him to waive his right to a jury trial. The record is sufficient
to review and refute this claim. Taylor was advised by the court of his right to a jury trial which
he indicated that he understood. Taylor affirmatively waived that right. Taylor’s counsel advised
the court that they discussed the waiver and that Taylor understood it. Taylor denied that anyone
attempted to threaten or in any way force him to make that decision. Taylor affirmed that his
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waiver was of his own will and volition. Taylor’s claim that his trial counsel did not adequately
advise him regarding his right to a jury trial fails.
(b) Failing to Call All Known Witnesses
Taylor argues that trial counsel failed to call all potential witnesses on Taylor’s behalf,
specifically referring to the other woman who Ammons testified was present during the altercation
between Taylor and Fraction. Taylor argues that this witness would have corroborated Ammons’
testimony and therefore the district court would not have relied on Fraction’s testimony to support
the conviction. The record on direct appeal is insufficient to determine whether this potential
witness could be identified and located, whether trial counsel attempted to contact this potential
witness, what the witness may have testified to, or why trial counsel chose not to call this witness.
Thus, we are unable to address this claim of ineffective assistance of counsel on direct appeal.
(c) Failing to Fully Cross-Examine Wagner
Taylor argues that trial counsel failed to fully and completely cross-examine Officer
Wagner. Specifically, Taylor notes the discrepancies between Wagner’s and Fraction’s testimony
about the time of day during which the incident occurred, and alleges that trial counsel “failed to
fully explore the extent of the differences in testimony.” Taylor argues that Wagner’s testimony
could have been used to impeach Fraction had those differences been explored further.
The record on appeal is sufficient to refute this claim. Taylor’s trial counsel did, in fact,
address the discrepancies between the testimony of Wagner and Fraction regarding the time of day
the incident occurred. Counsel also explored the issue of whether Fraction reported the choking to
Wagner. Taylor has not shown that further cross-examination regarding the inconsistencies in the
witnesses’ testimony would have resulted in a different outcome. We conclude that Taylor cannot
show that trial counsel was deficient in not further cross-examining Wagner, or that Taylor was
prejudiced by the lack of any further cross-examination. We reject this claim of ineffective
assistance of counsel.
(d) Failing to Properly Prepare Taylor
for Direct Examination
Taylor argues that his trial counsel failed to properly prepare him for direct examination.
Specifically, Taylor argues the fact that several of his answers at trial were self-incriminating is
indicative of trial counsel’s failure to adequately prepare him. However, the record is not sufficient
to determine whether trial counsel adequately prepared Taylor for cross-examination. Thus, we
cannot address this claim on direct appeal.
(e) Failing to Fully and Completely
Cross-Examine Fraction
Taylor argues that trial counsel failed to fully and completely cross-examine Fraction.
Specifically Taylor asserts that trial counsel focused too much on the inconsistent testimony
regarding the time of the incident, when he could have explored other lines of questioning to
impeach Fraction, such as the sequence of events, the nature of the physical altercation, and the
manner in which the money came into Taylor’s possession. Upon our review of the record, it is
clear that trial counsel adequately questioned Fraction about all details of the incident including
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time of day, inconsistencies between his testimony and the police reports, and the nature of the
exchange of money, all of which were disputed by the testimony of others. Taylor has failed to
demonstrate that his trial counsel was deficient in this regard. We reject this claim of ineffective
assistance of counsel.
(f) Failure to Object to Inadmissible
and Irrelevant Testimony
Taylor assigns that trial counsel failed to raise pertinent objections which resulted in the
admission of speculative, narrative, and inadmissible testimony. Specifically, Taylor refers to
testimony given by Fraction regarding Taylor’s bad mood, that Taylor was acting crazy and erratic,
that Taylor was high at the time of the incident, and that Taylor’s actions amounted to attempted
murder. Taylor does not explain on what specific grounds objections should have been made or
that any objections would have been successful. Thus, this claim is insufficiently stated. Further,
while some of this testimony was arguably irrelevant, Taylor cannot show a reasonable probability
that the outcome of the proceeding would have been different had trial counsel successfully
objected to this testimony. Absent a showing to the contrary, it is presumed on appeal that the trial
court disregarded all incompetent and irrelevant evidence. See, In re Interest of Ty M. & Devon
M., 265 Neb. 150, 655 N.W.2d 672 (2003); Bornhorst v. Bornhorst, 28 Neb. App. 182, 941 N.W.2d
769 (2020). Here, the factfinder was the trial judge who presumably rejected any irrelevant
testimony. Thus, Taylor cannot establish that he was prejudiced by trial counsel’s failure to object
to the allegedly irrelevant testimony by Fraction. We reject this claim of ineffective assistance of
counsel.
(g) Failure to Object to Inadmissible and
Leading Questioning of Fraction
Similarly, Taylor argues that trial counsel failed to object to inadmissible leading
questioning of Fraction. However, Taylor has failed to show that had objections been made and
sustained, Fraction’s testimony would have been different. Therefore, Taylor cannot show a
reasonable probability that the outcome of the proceeding would have been different had
objections been made to leading questions and as such, we find that he was not prejudiced by trial
counsel’s failure to object to the questions. We reject this claim of ineffective assistance of counsel.
(h) Failure to Fully Advise Taylor
Taylor also argues that trial counsel failed to properly advise Taylor on the decision to
testify at trial due to the fact that Taylor made several self-incriminating statements at trial. Taylor
specifically notes his testimony regarding his involvement in an illegal drug purchase. The record
is insufficient to address this claim on direct appeal.
(i) Failure to File Motion for Mutual
and Reciprocal Discovery
Taylor next argues that trial counsel’s performance was deficient because counsel failed to
file any pre-trial motions, specifically a motion to obtain mutual and reciprocal discovery. Taylor
points to several types of evidence that may have been included in such discovery. He contends
that this failure severely prejudiced his ability to effectively defend himself from the charges at
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hand. Both Taylor and the State suggest that the record is insufficient to address this claim on
direct appeal. We agree.
(j) Improper Emphasis of Irrelevant and
Negative Character Evidence
Taylor argues that trial counsel’s representation of him was deficient because counsel
emphasized Taylor’s drug connections and other negative character evidence at sentencing. Taylor
also claims that trial counsel should have pointed out the discrepancy in Fraction’s statements
between statements in the PSI and his testimony at trial. However, our review of the sentencing
hearing shows that it was the trial judge, not defense counsel, who initially brought up that the
incident occurred as part of a “drug deal.” Counsel admitted that Taylor testified to this, but
emphasized that such testimony was negative toward Fraction and suggested that he was lying
about whether Taylor stole money from him. We see no other reference to negative character
evidence by trial counsel at sentencing, and in fact, counsel argued mitigating factors. And, the
trial court had the PSI before it at the time of sentencing and was able to consider the discrepancies
between Fraction’s statements in the PSI and his trial testimony. The record is sufficient to
determine that Taylor’s counsel was not deficient in connection with any comments made at
sentencing. We reject this claim of ineffective assistance of counsel.
(k) Failure to Correct District Court’s
Misapplication of Jail Credits
Taylor argues that trial counsel was deficient in failing to correct the district court’s
sentence when it ordered all of Taylor’s credit for time served to be applied to the misdemeanor
domestic assault conviction. Because we have modified the sentences to apply the credit for time
served to the felony convictions in case No. A-19-1114, we need not address this claim further.
(l) Cumulative Errors
Finally, Taylor argues that even if any of the errors above were not enough to establish
ineffective assistance of counsel, the cumulative effect of all of the errors are indicative of
ineffective assistance when taken as a whole. As we have addressed above, we find that Taylor’s
arguments regarding ineffective assistance of counsel are either without merit or the record is
insufficient to address. Given our findings above, we cannot say that the cumulative effect of
Taylor’s asserted errors shows an ineffective assistance of counsel. Therefore, we find no
cumulative error in counsel’s performance.
VI. CONCLUSION
Viewing the evidence in the light most favorable to the prosecution, the evidence was
sufficient to find Taylor guilty of the crimes charged. We find no abuse of discretion by the district
court in the sentences imposed or the determination, however, we modify the sentences to apply
the credit for time served to the sentences in case No. A-19-1114 instead of case No. A-19-1113.
Accordingly, we affirm the judgment and sentences of the district court as modified. Further, we
conclude that the following claims of ineffective assistance of trial counsel are without merit:
failure to properly advise Taylor regarding his right to a jury trial, failure to fully cross-examine
Officer Wagner, failure to fully cross-examine Fraction, failure to object to inadmissible and
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irrelevant testimony, failure to object to inadmissible leading questioning of Fraction, emphasis of
irrelevant and negative character evidence at sentencing, failure to correct the district court’s
misapplication of jail credit to which Taylor was entitled, and that the cumulative effect of all
errors are indicative of ineffective assistance of counsel. The record is not sufficient to review
Taylor’s remaining claims of ineffective assistance of counsel.
AFFIRMED AS MODIFIED.
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