State v. Clausen , 307 Neb. 968 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. CLAUSEN
    Cite as 
    307 Neb. 968
    State of Nebraska, appellee, v.
    Timothy J. Clausen, appellant.
    ___ N.W.2d ___
    Filed December 11, 2020.   No. S-20-109.
    1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
    apply, the admissibility of evidence is controlled by the Nebraska
    Evidence Rules; judicial discretion is involved only when the rules make
    discretion a factor in determining admissibility.
    2. Trial: Evidence: Appeal and Error. A trial court’s determination of the
    relevancy and admissibility of evidence must be upheld in the absence
    of an abuse of discretion.
    3. Trial: Evidence. Balancing the probative value of evidence against the
    danger of unfair prejudice is within the discretion of the trial court.
    4. Appeal and Error. Although an appellate court ordinarily considers
    only those errors assigned and discussed in the briefs, the appellate court
    may, at its option, notice plain error.
    5. Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    7. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of counsel may be determined on direct appeal is a
    question of law.
    8. ____: ____. In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
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    9. Self-Incrimination: Juries: Rules of Evidence. Neb. Rev. Stat.
    § 27-513(2) (Reissue 2016) makes it clear that courts must avoid hav-
    ing witnesses claim privilege in the presence of the jury whenever
    practicable.
    10. Self-Incrimination. A witness may not testify voluntarily about a sub-
    ject and then invoke the privilege against self-incrimination when ques-
    tioned about the details.
    11. Criminal Law: Witnesses: Testimony. When a defendant’s witness
    testifies about a criminal action which is central to the defendant’s guilt,
    but then refuses to answer the State’s questions challenging the witness’
    assertion, the testimony may be stricken.
    12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately
    looks to the basis on which the trier of fact actually rested its verdict;
    the inquiry is not whether in a trial that occurred without the error a
    guilty verdict would surely have been rendered, but, rather, whether the
    actual guilty verdict rendered in the questioned trial was surely unattrib-
    utable to the error.
    13. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
    court’s conclusions with regard to evidentiary foundation and witness
    qualification for an abuse of discretion.
    14. ____: ____: ____. The admission or exclusion of evidence is a matter
    left largely to the sound discretion of the trial court, whose ruling will
    be upheld absent an abuse of discretion.
    15. Appeal and Error. Plain error may be found on appeal when an error
    is unasserted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if uncor-
    rected, would result in damage to the integrity, reputation, and fairness
    of the judicial process.
    16. Trial. When there are outbursts of emotion in the courtroom, it is within
    the sound discretion of the trial court to deal with them in such a manner
    as to best preserve the judicial atmosphere and ensure a fair and impar-
    tial trial for the defendant.
    17. Witnesses: Testimony. Striking the testimony of a witness is a drastic
    remedy, which is not to be lightly done.
    18. Courts. Nebraska courts, through their inherent judicial power, have the
    authority to do all things reasonably necessary for the proper administra-
    tion of justice.
    19. Jury Instructions: Proof: Appeal and Error. To establish reversible
    error from a court’s refusal to give a requested instruction, an appel-
    lant 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
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    STATE v. CLAUSEN
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    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction.
    20.   Jury Instructions: Appeal and Error. All the jury instructions must
    be read together, and, if taken as a whole, they correctly state the law,
    are not misleading, and adequately cover the issues supported by the
    pleadings and the evidence, there is no prejudicial error necessitat-
    ing reversal.
    21.   ____: ____. A jury instruction which misstates the issues and has a tend­
    ency to confuse the jury is erroneous.
    22.   Criminal Law: Rules of Evidence. The accused does not have an
    unfettered right to offer testimony that is incompetent, privileged, or
    otherwise inadmissible under standard rules of evidence.
    23.   Constitutional Law: Criminal Law: Trial. The right to present a
    defense is not unqualified and is subject to countervailing public inter-
    ests such as preventing perjury and investigating criminal conduct.
    24.   Trial: Words and Phrases: Appeal and Error. Structural errors are
    errors so affecting the framework within which the trial proceeds that
    they demand automatic reversal.
    25.   ____: ____: ____. Structural errors are distinguished from trial errors,
    which generally occur during the presentation of the case to the jury, and
    which may therefore be quantitatively assessed in the context of other
    evidence presented in order to determine whether they were harmless
    beyond a reasonable doubt.
    26.   Sentences. When imposing a sentence, a sentencing judge should cus-
    tomarily consider 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.
    27.   ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment 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.
    28.   Effectiveness of Counsel: Proof. 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.
    29.   ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
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    STATE v. CLAUSEN
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    30. ____: ____. 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.
    31. ____: ____. The two prongs of the ineffective assistance of coun-
    sel test—deficient performance and prejudice—may be addressed in
    either order.
    32. Constitutional Law: Criminal Law: Witnesses: Self-Incrimination:
    Depositions. Where a witness becomes unavailable due to his assertion
    of Fifth Amendment privilege, such witness’ prior deposition testimony
    is admissible as substantive evidence, given that the deposition had been
    taken in compliance with the law and in the course of the same criminal
    proceeding, and that the opposing party had adequate opportunity in the
    witness’ deposition to examine the witness with similar, if not exact,
    interest and motive on matters relative to the case.
    33. Witnesses: Testimony: Self-Incrimination: Depositions. If a witness
    refuses to answer questions that are so closely related to the subject
    of the case that the entire testimony of the witness should be stricken,
    opposing counsel has been deprived of an adequate opportunity to
    examine the witness during the deposition.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Cassel, J.
    I. INTRODUCTION
    Timothy J. Clausen appeals from sentences imposed pursu-
    ant to jury convictions related to a prison escape. Clausen pri-
    marily argues that rulings—striking his testimony for repeated
    misconduct and his witness’ testimony for refusing cross-
    examination, and excluding other evidence—prevented him
    from presenting a duress defense. Because his own actions, his
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    STATE v. CLAUSEN
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    307 Neb. 968
    witness’ choice, and the inadmissibility of his other evidence
    fundamentally crippled his defense, his claims lack merit.
    Finding no reversible error or abuse of discretion, we affirm.
    II. BACKGROUND
    For Clausen’s role in a 2016 prison escape from the Lincoln
    Correctional Center in Lincoln, Nebraska, he was charged with
    three felonies: escape, theft by unlawful taking, and operating
    a motor vehicle to avoid arrest. Clausen and Armon Dixon
    escaped the facility by hiding in a prison laundry truck with
    the assistance of another inmate, Brandon Williams. After the
    escape, a law enforcement officer discovered the inmates in a
    Lincoln parking lot. Before the officer could apprehend them,
    the inmates stole a vehicle and fled. The officer recognized
    Clausen as the person driving the vehicle. Law enforcement
    pursued the stolen vehicle, but called off the pursuit after it
    was deemed unsafe. After the pursuit ended, two people wit-
    nessed Clausen crash the stolen vehicle into a parked vehicle,
    from which stolen vehicle the inmates ran on foot. In the fol-
    lowing days, Clausen and Dixon were both arrested.
    After Clausen was arrested, law enforcement officers inter-
    viewed him three times to ascertain how he and Dixon escaped.
    During each interview, the officers read Clausen his Miranda
    rights, which he waived. Clausen admitted to escaping the
    facility and described the events surrounding his escape.
    During these interviews, Clausen did not claim to have escaped
    under duress.
    After being deemed competent to stand trial by two separate
    medical professionals, Clausen pled not guilty and proceeded
    to a jury trial. Clausen intended to argue that he had escaped
    only because of duress from Dixon and that it had been Dixon,
    not Clausen, who had taken and driven the stolen vehicle dur-
    ing their escape.
    Before trial, the State moved to exclude the testimony of
    Clausen’s two witnesses: Dixon and Bentley Buckner, Clausen’s
    cellmate in prison. During a deposition, Dixon admitted
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    STATE v. CLAUSEN
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    307 Neb. 968
    to threatening and coercing Clausen during the planning and
    commission of the escape and to driving the escape vehicle.
    At trial, outside the presence of the jury, Dixon repeated his
    deposition testimony. However, because the State would not
    give him immunity for his testimony, Dixon invoked his Fifth
    Amendment privilege and refused to testify about a matter
    the court deemed sufficiently related to Clausen’s defense—
    namely, how the men had obtained a cell phone and drugs they
    used during their escape. Consequently, the court sustained
    the State’s motion to exclude Dixon from testifying, reasoning
    that Nebraska law discourages a court from allowing a witness
    to invoke his Fifth Amendment privilege in the presence of
    the jury. Clausen did not request the court to partially strike
    Dixon’s testimony related to the subjects on which he invoked
    privilege and to allow him to continue to testify regarding
    other matters.
    The State also moved to exclude Buckner from testifying
    that Clausen told Buckner that Dixon was threatening him,
    Buckner saw Dixon possess a knife while near Clausen over
    2 months before their escape, and Buckner believed Clausen’s
    escape was the result of duress based on Dixon’s power and
    authority in the prison system. The court ultimately sustained
    the State’s motion, determining that Buckner’s testimony
    would be inadmissible because it was based on hearsay, was
    too remote in time to aid Clausen’s duress defense, and was
    based on speculation about Clausen’s state of mind.
    At trial, Clausen took the stand in his own defense. He did
    not call any other witnesses. However, before Clausen took the
    stand, he had an outburst in front of the jury where he asked
    the court to “let the jury know . . . why my . . . witnesses was
    denied . . . and why . . . my witnesses . . . is not allowed to
    come into court . . . and testify. . . . Why can’t Armon Dixon
    come testify . . . like I want him to[?]” After the jury was
    excused, the court warned Clausen that if he had another out-
    burst while testifying, he would be waiving his right to testify
    and his testimony would be stricken. On cross-examination,
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    STATE v. CLAUSEN
    Cite as 
    307 Neb. 968
    Clausen again became upset that Dixon and Buckner were not
    allowed to testify. Despite the court’s earlier warnings, he had
    another outburst.
    During a recess, the court informed Clausen that because he
    had refused to subject himself to a complete cross-examination,
    he had forfeited his right to testify. After the recess, the court
    informed the jury that because of Clausen’s conduct it was
    to disregard Clausen’s testimony in its entirety and his testi-
    mony was stricken from the record. However, Clausen was
    allowed to remain in the courtroom for closing arguments.
    Despite defense counsel’s objection, the court refused to give a
    no-inference instruction based on Clausen’s right not to testify
    because, the court reasoned, Clausen did testify and his lack
    of testimony on the record was the result of his conduct rather
    than an invocation of his Fifth Amendment privilege.
    The jury convicted Clausen of all three charges. Following
    an enhancement hearing, the court found Clausen to be a
    habitual criminal and sentenced him to a combined consecu-
    tive term of 80 to 140 years’ imprisonment—40 to 60 years’
    imprisonment for escape, 20 to 40 years’ imprisonment for
    theft by unlawful taking, and 20 to 40 years’ imprisonment
    for operating a motor vehicle to avoid arrest. Although neither
    the oral pronouncement nor the written sentencing judgment
    contains any reference to credit for time served, we have not
    been directed to any facts in the record showing that any credit
    was due.
    Although Clausen initially failed to file a direct appeal, his
    right to appeal was reinstated by postconviction relief. Clausen
    then filed a timely appeal, which we moved to our docket. 1
    III. ASSIGNMENTS OF ERROR
    Clausen assigns 14 errors in his appeal, which he consol­
    idates into 6 overarching arguments. Clausen assigns, con-
    solidated, that the district court erred by (1) excluding the
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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    testimonies of Dixon and Buckner; (2) striking Clausen’s entire
    testimony and instructing the jury to disregard it; (3) failing
    to give a no-inference jury instruction; (4) depriving Clausen
    of his right to present a defense, thereby violating his consti-
    tutional rights and creating structural error; and (5) imposing
    excessive sentences.
    Clausen also assigns that he received ineffective assistance
    of counsel because his trial counsel failed to (1) object to
    nonrelevant questioning of Dixon, (2) disclose Buckner as a
    witness in a timely manner, (3) offer out-of-court testimony of
    Dixon, (4) ensure Clausen received a proper mental evaluation,
    (5) subpoena the police officer who conducted a photographic
    lineup, (6) offer Clausen’s complete interview with investi-
    gators, (7) object or seek corrective instructions regarding
    the State’s improper opening statement commentary, (8) suf-
    ficiently cross-examine Williams, and (9) preserve Clausen’s
    motions to suppress for appeal.
    IV. STANDARD OF REVIEW
    [1-3] 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 admis-
    sibility. 2 A trial court’s determination of the relevancy and
    admissibility of evidence must be upheld in the absence of an
    abuse of discretion. 3 Balancing the probative value of evidence
    against the danger of unfair prejudice is within the discretion
    of the trial court. 4
    [4] Although an appellate court ordinarily considers only
    those errors assigned and discussed in the briefs, the appellate
    court may, at its option, notice plain error. 5
    2
    State v. Devers, 
    306 Neb. 429
    , 
    945 N.W.2d 470
    (2020).
    3
    Id. 4
        Id.
    5
    
        State v. Nadeem, 
    284 Neb. 513
    , 
    822 N.W.2d 372
    (2012).
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    [5] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision. 6
    [6] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court. 7
    [7,8] Whether a claim of ineffective assistance of counsel
    may be determined on direct appeal is a question of law. 8 In
    reviewing claims of ineffective assistance of counsel on direct
    appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively
    determine whether counsel did or did not provide effective
    assistance and whether the defendant was or was not preju-
    diced by counsel’s alleged deficient performance. 9
    V. ANALYSIS
    1. Exclusion of Defense
    Witness Testimony
    Clausen first argues that the trial court erred in prohibiting
    Clausen from calling Dixon and Buckner as witnesses at trial.
    They were his key witnesses regarding duress. Clausen did not
    call any other witnesses to establish that defense.
    Because judicial discretion was involved in these rulings, we
    review them for an abuse of discretion. We address each wit-
    ness separately, because the court assigned different reasons for
    the respective rulings.
    (a) Dixon
    The State filed a motion in limine seeking to bar Dixon from
    testifying. In addressing the State’s motion, the court held a
    hearing outside the jury’s presence where the State questioned
    Dixon about his planned testimony.
    6
    State v. Paez, 
    302 Neb. 676
    , 
    925 N.W.2d 75
    (2019).
    7
    State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
    (2020).
    8
    See
    id. 9
        State v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
    (2018).
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    At the hearing, Dixon stated that he would be willing to
    “testify about what happened, and what went down . . . I ain’t
    got no problem with doing that.” However, Dixon invoked
    privilege when asked how he obtained the phone and drugs
    that contributed to the escape. The State argued that allow-
    ing Dixon to testify on behalf of Clausen and to invoke
    privilege on cross-examination would violate Neb. Rev. Stat.
    § 27-513(2) (Reissue 2016). Clausen countered that Dixon
    would only invoke privilege on collateral matters and that
    because he was critical to Clausen’s defense, Dixon should be
    allowed to testify.
    The court ruled that Dixon would not be allowed to testify.
    The court explained that Dixon’s refusal to answer questions
    on cross-examination regarding events so closely related to
    the commission of the crime in this case would force the court
    to strike Dixon’s entire testimony, because allowing Dixon to
    testify only for his testimony to be stricken when he invoked
    privilege would violate § 27-513(2). Clausen argues the court
    erred in its ruling.
    [9] Section 27-513(2) makes it clear that courts must avoid
    having witnesses claim privilege in the presence of the jury
    whenever practicable. 10 The statutory subsection states: “In
    jury cases, proceedings shall be conducted, to the extent prac-
    ticable, so as to facilitate the making of claims of privilege
    without the knowledge of the jury.” 11 The purpose of that
    subsection is to prevent the jury from drawing an unfavorable
    inference from a witness’ assertion of a privilege. 12
    Section 27-513(2) does not bar a witness from ever invok-
    ing privilege in front of a jury. 13 However, “‘“[a]bsent extraor-
    dinary circumstances, trial courts should exercise their discre-
    tion to forbid parties from calling witnesses who, when called,
    10
    See State v. Draper, 
    289 Neb. 777
    , 
    857 N.W.2d 334
    (2015).
    11
    § 27-513(2).
    12
    Draper, supra note 10.
    13
    See
    id. - 978 -
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    will only invoke a privilege.”’” 14 Therefore, the trial court
    must determine whether the witness intends to refuse to testify
    and decide whether it would be prejudicial to the opposing
    party for the witness to be called in front of the jury. 15 At the
    same time, the trial court may also consider whether the failure
    to call the witness, despite the refusal to testify, would unfairly
    prejudice the party calling the witness. 16
    [10] In making its prejudice determination, the trial court
    must also consider the extent to which a witness’ potential
    testimony would be excluded by the witness invoking privi-
    lege. 17 It is well established that a witness may not testify
    voluntarily about a subject and then invoke the privilege
    against self-incrimination when questioned about the details. 18
    The privilege is waived for the matters to which the witness
    testifies, and “the scope of the ‘waiver is determined by the
    scope of relevant cross-examination.’” 19 Therefore, if the wit-
    ness himself elects to waive his privilege, as he may doubt-
    less do, since the privilege is for his protection and not for
    that of other parties, and discloses his criminal connections,
    he is not permitted to stop, but must go on and make a full
    disclosure; where incriminating facts have been voluntarily
    revealed, the privilege cannot be invoked to avoid disclosure
    of the details. 20
    Because a witness cannot use the protections of the Fifth
    Amendment to distort the facts by selecting a stopping place
    14
    Id. at 789, 857
    N.W.2d at 344 (quoting State v. Robinson, 
    271 Neb. 698
    ,
    
    715 N.W.2d 531
    (2006)).
    15
    See Draper, supra note 10.
    16
    See
    id. 17
         See
    id. 18
         See Mitchell v. United States, 
    526 U.S. 314
    , 
    119 S. Ct. 1307
    , 
    143 L. Ed. 2d
    424 (1999).
    19
    Id., 5
    26 U.S. at 321 (quoting Brown v. United States, 
    356 U.S. 148
    , 78 S.
    Ct. 622, 
    2 L. Ed. 2d 589
    (1958)).
    20
    See Rogers v. United States, 
    340 U.S. 367
    , 
    71 S. Ct. 438
    , 
    95 L. Ed. 344
         (1951).
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    for his or her testimony, either the witness must invoke privi-
    lege at the outset of the questioning regarding an incriminating
    subject or the court will strike the distorted testimony. 21 While
    this court has never addressed the extent to which a court that
    has a witness who has invoked privilege must strike his or her
    testimony, many courts embrace the approach taken in United
    States v. Cardillo. 22 There, the court explained:
    [Not] every refusal to answer by a witness, claiming his
    constitutional right against self-incrimination, requires
    the striking of his testimony or a part thereof. There
    would appear to be at least three categories to be consid-
    ered. The first would be one in which the answer would
    have been so closely related to the commission of the
    crime that the entire testimony of the witness should be
    stricken. The second would be a situation in which the
    subject matter of the testimony was connected solely with
    one phase of the case in which event a partial striking
    might suffice. The third would involve collateral matters
    or cumulative testimony concerning credibility which
    would not require a direction to strike and which could be
    handled (in a jury case) by the judge’s charge if questions
    as to the weight to be ascribed to such testimony arose.
    As to the first and second categories suggested, whether
    all or a part of the testimony should be stricken, must
    depend upon the discretion of the trial judge exercised in
    the light of the particular circumstances. Unsatisfactory
    as such a generality is for a trial judge who is required
    to give instantaneous rulings on close questions and
    who does not enjoy the luxury of reflective appellate
    deliberation, any set of specific dogmas would be even
    more unworkable. 23
    21
    See, e.g., Mitchell, supra note 18.
    22
    United States v. Cardillo, 
    316 F.2d 606
    (2d Cir. 1963).
    23
    Id. at 613. - 980 -
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    While the witness invoking privilege in Cardillo was testify-
    ing on behalf of the State, courts have applied Cardillo in the
    inverse when a witness is testifying on behalf of a defendant. 24
    Important public policy protects even the prosecution’s right
    to fair trials and the pursuit of truth, so that a similar principle
    should govern whether the recalcitrant witness was offered by
    the prosecution or by the defendant. 25 A witness may not say
    enough to exonerate the defendant without implicating himself,
    and the prosecutor is entitled to closely examine a witness to
    expose to the fact finder the witness’ falsification. 26
    [11] We adopt the Cardillo approach. When a defendant’s
    witness testifies about a criminal action which is central to the
    defendant’s guilt, but then refuses to answer the State’s ques-
    tions challenging the witness’ assertion, the testimony may be
    stricken. 27 Therefore, a Nebraska court determining whether
    to exclude a witness pursuant to § 27-513 must consider the
    interrelatedness between the topic invoking the witness’ Fifth
    Amendment protections and his or her cumulative testimony. If
    a court must strike the witness’ entire testimony, then clearly
    the witness must be excluded pursuant to § 27-513.
    Here, Dixon would have testified to the inner workings of
    the escape, which is central to this case. Dixon wished to tes-
    tify about how he planned the entire escape and forced Clausen
    to escape with him. However, he refused to allow the State
    to cross-examine the validity of his assertion that he planned
    the escape.
    During Dixon’s deposition, Dixon admitted to selling drugs
    to raise money to purchase the phone that was used to
    coordinate the escape. He testified: “I sold a lot of drugs,
    24
    See U.S. v. Crews, 
    856 F.3d 91
    (D.C. Cir. 2017).
    25
    Lawson v. Murray, 
    837 F.2d 653
    (4th Cir. 1988).
    26
    See
    id. 27
         See, U.S. v. Davis, 
    690 F.3d 912
    (8th Cir. 2012), cert. granted and
    judgment vacated on other grounds 
    570 U.S. 913
    , 
    133 S. Ct. 2852
    , 186 L.
    Ed. 2d 903 (2013); U.S. v. McKneely, 
    69 F.3d 1067
    (10th Cir. 1995).
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    man. I had a lot of guards in my pocket. I had a lot of inmates
    that would do whatever I told them to do[.]” Once he pur-
    chased the phone, he “made some calls, set up some stuff”
    regarding the escape. Dixon refused to answer the State’s
    questions when asked for the names of the guards and inmates
    who smuggled in the phone and drugs. The State was entitled
    to ask these questions to discover other witnesses who could
    refute the validity of Dixon’s statements. During the hearing
    at trial, Dixon again refused to answer the State’s questions
    about the phone and drugs.
    Dixon’s testimony falls into the first Cardillo category.
    Dixon’s selling drugs to purchase the phone and then using
    it to plan the escape were closely related to the commission
    of the crime at issue—the escape. While this court respects
    Dixon’s interest in not incriminating himself, Dixon’s decision
    to invoke privilege and refuse to answer how he obtained the
    phone and drugs frustrated the State’s cross-examination and
    denied him the opportunity to testify on Clausen’s behalf.
    The court did not abuse its discretion in barring Dixon from
    testifying, because Dixon’s testimony did not warrant being
    only partially stricken. Dixon’s refusal to answer questions on
    cross-examination was not connected solely with one phase
    of the case. Dixon claimed to have planned the entire escape
    and forced Clausen to escape with him. Testimony regarding
    who planned the escape and took preparatory actions was key
    to Clausen’s duress defense, saturating all phases of this case.
    Dixon could not invoke privilege without subjecting his entire
    testimony to being stricken. Under these circumstances, we
    cannot say that the court’s decision to strike all of Dixon’s tes-
    timony was clearly untenable.
    [12] Even if we assume that Dixon’s testimony would have
    been regarding a collateral matter, the court’s error would have
    been harmless. 28 Harmless error review ultimately looks to
    28
    See United States v. Lord, 
    711 F.2d 887
    (9th Cir. 1983). See, also, U.S. v.
    Negrete-Gonzales, 
    966 F.2d 1277
    (9th Cir. 1992).
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    the basis on which the trier of fact actually rested its verdict;
    the inquiry is not whether in a trial that occurred without the
    error a guilty verdict would surely have been rendered, but,
    rather, whether the actual guilty verdict rendered in the ques-
    tioned trial was surely unattributable to the error. 29 The court’s
    potential error was harmless, because Clausen could not prove
    a duress defense.
    For a prisoner to utilize a duress defense based on threat of
    physical harm by another prisoner, the prisoner must report
    immediately to the proper authorities when he attains a posi-
    tion of safety from the threat. 30 In order for Clausen to have
    a duress defense, Clausen would have needed to turn himself
    back into custody after he separated from Dixon during the
    escape. Clausen instead remained in hiding until law enforce-
    ment discovered him in a house and arrested him, invalidating
    his duress defense. To the extent Dixon would have testified
    that he was the one driving the vehicle, the State offered evi-
    dence refuting this assertion.
    (b) Buckner
    The State sought to exclude Buckner’s testimony because
    Clausen did not disclose Buckner as a witness in a timely
    manner. The court ruled instead to exclude Buckner because
    his testimony was (1) based on inadmissible hearsay, (2) too
    remote in time to be admissible evidence for Clausen’s duress
    defense, and (3) based on speculation. Clausen assigns that the
    trial court erred in this order.
    [13,14] An appellate court reviews the trial court’s con-
    clusions with regard to evidentiary foundation and witness
    qualification for an abuse of discretion. 31 The admission or
    exclusion of evidence is a matter left largely to the sound
    29
    State v. Mann, 
    302 Neb. 804
    , 
    925 N.W.2d 324
    (2019).
    30
    State v. Reed, 
    205 Neb. 45
    , 
    286 N.W.2d 111
    (1979).
    31
    State v. Jackson, 
    264 Neb. 420
    , 
    648 N.W.2d 282
    (2002).
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    discretion of the trial court, whose ruling will be upheld absent
    an abuse of discretion. 32
    Buckner would have testified that Clausen told him that
    Dixon was threatening him and saying that he would kill his
    loved ones if Clausen did not help him escape. This testimony
    is hearsay because it is a statement made out of court by
    Clausen offered to prove that Dixon was in fact threatening
    Clausen. 33 Buckner’s hearsay testimony was inadmissible.
    Additionally, Buckner would have testified that he saw
    Dixon threaten Clausen with a knife more than 2 months
    before the escape. A prisoner claiming he escaped under fear
    of impending death or serious bodily injury at the hands of
    another prisoner must prove that the injury was immediately
    impending. 34 Buckner’s testimony would have been inadmis-
    sible because the witnessed threat was too remote from the
    time of escape.
    Finally, Buckner’s belief that Clausen escaped as the result
    of duress based on Dixon’s power and authority in the prison
    system is speculation. 35 Therefore, Buckner’s testimony was
    inadmissible at trial. We see no abuse of discretion in the
    court’s exclusion of Buckner’s testimony.
    2. Exclusion of Clausen’s Testimony
    Clausen next argues that the court erred in striking his entire
    testimony and instructing the jury to disregard it. Clausen did
    not object to the court’s actions at trial, failing to preserve
    this issue for appeal. 36 However, Clausen argues that the court
    committed plain error by not finding Clausen in contempt
    before sanctioning Clausen for his actions at trial and that
    32
    State v. Irish, 
    223 Neb. 578
    , 
    391 N.W.2d 137
    (1986).
    33
    See Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
    34
    See Reed, supra note 30.
    35
    See, generally, Neb. Rev. Stat. § 27-701 (Reissue 2016).
    36
    See State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
    (2016).
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    the court should have imposed an alternative penalty instead
    of a complete strike of his testimony.
    [15] Under most circumstances, we require a party to object
    to a perceived error by a trial court in order to preserve that
    issue for appeal. 37 Conversely, plain error may be found on
    appeal when an error is unasserted or uncomplained of at trial,
    but plainly evident from the record, prejudicially affects a
    litigant’s substantial right and, if uncorrected, would result in
    damage to the integrity, reputation, and fairness of the judi-
    cial process. 38
    The U.S. Supreme Court in Illinois v. Allen 39 articulated
    three principles regarding courtroom decorum. It is essential to
    the proper administration of criminal justice that dignity, order,
    and decorum be the hallmarks of all court proceedings. 40 The
    flagrant disregard in the courtroom of elementary standards
    of proper conduct should not and cannot be tolerated. 41 Trial
    judges confronted with disruptive, contumacious, stubbornly
    defiant defendants must be given sufficient discretion to meet
    the circumstances of each case. 42
    [16-18] The principles articulated in Allen are consistent
    with Nebraska law. When there are outbursts of emotion in
    the courtroom, it is within the sound discretion of the trial
    court to deal with them in such a manner as to best preserve
    the judicial atmosphere and ensure a fair and impartial trial
    for the defendant. 43 Striking the testimony of a witness is a
    drastic remedy, which is not to be lightly done. 44 However,
    37
    See
    id. 38
         Id.
    39
    
         Illinois v. Allen, 
    397 U.S. 337
    , 
    90 S. Ct. 1057
    , 
    25 L. Ed. 2d 353
    (1970).
    40
    Id. 4
    1
    Id. 4
    2
    Id. 4
    3
    State v. Scott, 
    200 Neb. 265
    , 
    263 N.W.2d 659
    (1978).
    44
    Davis, supra note 27; Murray, supra note 25.
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    Nebraska courts, through their inherent judicial power, have
    the authority to do all things reasonably necessary for the
    proper administration of justice. 45
    Here, we see no plain error. The court warned Clausen that it
    would strike his testimony and instruct the jury to disregard it
    if he had another outburst. Clausen’s disruptive outburst was a
    flagrant disregard of the court’s repeated warnings and was an
    attempt to taint the mind of the jury. The court acted within its
    power to ensure a fair and impartial trial.
    3. Jury Instruction
    Clausen assigns that the trial court erred in not giving a
    no-inference jury instruction. Although not precise, a fair
    reading of the record shows the court understood Clausen
    to be requesting a pattern jury instruction. It states: “The
    defend­ant has an absolute right not to testify. The fact that the
    defendant did not testify must not be considered by you as an
    admission of guilt and must not influence your verdict in any
    way.” 46 The district court refused the instruction, explaining
    that Clausen “did testify and that his own conduct eviscer-
    ated that testimony.” Unlike the previous assignment of error,
    Clausen objected to the court’s ruling, preserving this issue
    for appeal.
    [19-21] 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. 47 All the jury instruc-
    tions must be read together, and, if taken as a whole, they
    correctly state the law, are not misleading, and adequately
    45
    Smeal Fire Apparatus Co. v. Kreikemeier, 
    279 Neb. 661
    , 
    782 N.W.2d 848
         (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 
    283 Neb. 369
    , 
    808 N.W.2d 867
    (2012).
    46
    NJI2d Crim. 9.4. See Kreikemeier, supra note 45.
    47
    State v. Abejide, 
    293 Neb. 687
    , 
    879 N.W.2d 684
    (2016).
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    cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal. 48 A jury
    instruction which misstates the issues and has a tendency to
    confuse the jury is erroneous. 49
    Here, we find that the jury was properly instructed. Clausen
    testified in front of the jury, and his testimony was stricken
    only because of his conduct. Under these circumstances, the
    pattern instruction would have incorrectly stated the events at
    trial and misled the jury. We agree with the trial court and find
    no error.
    4. Right to Present Defense
    Clausen argues that the court “stripped away” his entire
    defense because it barred Clausen from calling his two wit-
    nesses—Dixon and Buckner—and also struck his own testi-
    mony from the record. 50 Clausen claims the court’s actions
    denied him his right to present a complete defense as guaran-
    teed by the U.S. Constitution and Rock v. Arkansas, 51 violating
    his 14th Amendment due process rights and his 6th Amendment
    Confrontation Clause rights—which he characterized as struc-
    tural error requiring automatic reversal. These claims will each
    be addressed in turn.
    (a) Due Process and
    Confrontation Clause
    [22,23] We have stated that whether rooted directly in
    the Due Process Clause of the 14th Amendment or in the
    Compulsory Process or Confrontation Clauses of the 6th
    Amendment, the federal Constitution guarantees criminal
    defendants a meaningful opportunity to present a complete
    defense. 52 However, the accused does not have an unfettered
    48
    See State v. Pullens, 
    281 Neb. 828
    , 
    800 N.W.2d 202
    (2011).
    49
    Id. 5
    0
    Brief for appellant at 43.
    51
    Rock v. Arkansas, 
    483 U.S. 44
    , 
    107 S. Ct. 2704
    , 
    97 L. Ed. 2d 37
    (1987).
    52
    State v. Said, 
    306 Neb. 314
    , 
    945 N.W.2d 152
    (2020).
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    right to offer testimony that is incompetent, privileged, or
    otherwise inadmissible under standard rules of evidence. 53 The
    right to present a defense is not unqualified and is subject to
    countervailing public interests such as preventing perjury and
    investigating criminal conduct. 54
    Clausen was entitled to present a complete defense to coun-
    ter the State’s charges against him. However, Clausen did not
    have an unfettered right to offer inadmissible testimony or
    disregard the court’s instruction. Clausen’s inability to present
    witnesses that could provide admissible testimony pursuant to
    the Nebraska Evidence Rules and his disruptive outbursts, not
    the court, “stripped away” his defense. Clausen’s due process
    and confrontation rights were not violated.
    (b) Structural Error
    [24,25] Structural errors are errors so affecting the frame-
    work within which the trial proceeds that they demand auto-
    matic reversal. 55 They are distinguished from trial errors, which
    generally occur “‘during the presentation of the case to the
    jury, and which may therefore be quantitatively assessed in
    the context of other evidence presented in order to determine
    whether [they were] harmless beyond a reasonable doubt.’” 56
    The U.S. Supreme Court limited structural errors to a few
    very specific categories—total deprivation of counsel, trial
    before a judge who is not impartial, unlawful exclusion of
    members of the defendant’s race from a grand jury, denial
    of the right to self-representation at trial, and denial of the
    right to a public trial. 57 The fact that the error in a case was
    53
    Id. 5
    4
    State v. Oldson, 
    293 Neb. 718
    , 
    884 N.W.2d 10
    (2016).
    55
    State v. Abram, 
    284 Neb. 55
    , 
    815 N.W.2d 897
    (2012).
    56
    Id. at 64, 815
    N.W.2d at 905 (quoting Arizona v. Fulminante, 
    499 U.S. 279
    , 
    111 S. Ct. 1246
    , 
    113 L. Ed. 2d 302
    (1991)).
    57
    Abram, supra note 55. See Fulminante, supra note 56.
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    a constitutional error does not in itself mean that it was struc-
    tural error. 58
    The assigned errors Clausen asserts fall in the category
    of trial errors rather than structural errors. The trial court’s
    determination to exclude Clausen’s witnesses and strike his
    testimony occurred during the presentation of the case to the
    jury. His claims do not fall within the limited set of aforemen-
    tioned structural errors established by the U.S. Supreme Court.
    Clausen’s trial does not warrant an automatic reversal.
    5. Excessive Sentences
    Clausen also argues that the court abused its discretion
    by imposing excessive sentences. Clausen claims the court
    made no meaningful factual findings to justify the sentence or
    any substantive factors relating to his prior criminal history.
    Clausen does not address the court’s finding that he was a
    habitual criminal.
    [26,27] As stated above, we review a sentence imposed
    within statutory limits for an abuse of discretion. 59 When
    imposing a sentence, a sentencing judge should customarily
    consider 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 com-
    mission of the crime. 60 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 defend­
    ant’s life. 61
    58
    See Abram, supra note 55.
    59
    See State v. Lierman, 
    305 Neb. 289
    , 
    940 N.W.2d 529
    (2020).
    60
    Id. 61
         Id.
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    We have reviewed Clausen’s sentences and conclude that
    they were not excessive. The court determined Clausen was a
    habitual criminal and sentenced him on all three convictions
    pursuant to the habitual criminal statutory guidelines. 62 The
    court did not abuse its discretion.
    6. Ineffective Assistance of Counsel
    Finally, Clausen presents a plethora of ineffective assistance
    of counsel claims for this court to consider. Clausen’s counsel
    on direct appeal is different from his trial counsel. We conclude
    that the record is sufficient to address all of the assignments of
    error regarding ineffectiveness and that all lack merit.
    [28-31] To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington, 63 the defendant must
    show that his or her counsel’s performance was deficient and
    that this deficient performance actually prejudiced the defend­
    ant’s defense. 64 To show that counsel’s performance was defi-
    cient, a defendant must show that counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in
    criminal law. 65 To show prejudice, the defendant must demon-
    strate a reasonable probability that but for counsel’s deficient
    performance, the result of the proceeding would have been dif-
    ferent. 66 The two prongs of the ineffective assistance of counsel
    test—deficient performance and prejudice—may be addressed
    in either order. 67
    (a) Questioning of Dixon
    Clausen claims that his trial counsel did not object on rel-
    evancy when the State questioned Dixon regarding the escape
    62
    See Neb. Rev. Stat. § 29-2221 (Reissue 2016).
    63
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
         (1984).
    64
    State v. Parnell, 
    305 Neb. 932
    , 
    943 N.W.2d 678
    (2020).
    65
    State v. Anderson, 
    305 Neb. 978
    , 
    943 N.W.2d 690
    (2020).
    66
    Id. 67
         See State v. Privett, 
    303 Neb. 404
    , 
    929 N.W.2d 505
    (2019).
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    preparation at a hearing. The State asked Dixon for the names
    of the individuals who provided him with the phone and
    drugs that aided in the escape. However, Clausen misstates
    the record. Clausen’s trial counsel repeatedly objected to the
    relevancy, and the court overruled the objections. Trial counsel
    was not ineffective on this issue.
    (b) Untimely Disclosure
    of Buckner
    Clausen moves on to claim his trial counsel was ineffective
    by failing to disclose Buckner as a witness in a timely manner.
    However, because the court did not err in excluding Buckner’s
    testimony on separate evidentiary grounds, Clausen did not
    suffer any prejudice from this untimely witness disclosure.
    This claim lacks merit.
    (c) Dixon’s Deposition
    [32] Clausen also claims that his trial counsel was ineffec-
    tive by failing to introduce Dixon’s deposition at trial, because
    he was an unavailable witness. Where a witness becomes
    unavailable due to his assertion of Fifth Amendment privilege,
    such witness’ prior deposition testimony is admissible as sub-
    stantive evidence, given that the deposition had been taken in
    compliance with the law and in the course of the same criminal
    proceeding, and that the opposing party had adequate oppor-
    tunity in the witness’ deposition to examine the witness with
    similar, if not exact, interest and motive on matters relative to
    the case. 68 But a witness’ refusal to answer questions during
    cross-examination of a deposition may deprive the opposing
    counsel of an adequate opportunity to examine the witness dur-
    ing the deposition. 69
    68
    See State v. Allen, 
    252 Neb. 187
    , 
    560 N.W.2d 829
    (1997), disapproved on
    other grounds, State v. Myers, 
    258 Neb. 300
    , 
    603 N.W.2d 378
    (1999). See,
    also, Neb. Rev. Stat. § 27-804(2)(a) (Reissue 2016).
    69
    See, e.g., State v. Privat, 
    251 Neb. 233
    , 
    556 N.W.2d 29
    (1996); Burke v.
    Harman, 
    6 Neb. Ct. App. 309
    , 
    574 N.W.2d 156
    (1998).
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    [33] To determine whether opposing counsel has been
    deprived of the opportunity to examine a witness during cross-
    examination, Nebraska courts apply the Cardillo approach
    discussed earlier. 70 If a witness refuses to answer questions that
    are so closely related to the subject of the case that the entire
    testimony of the witness should be stricken, opposing counsel
    has been deprived of an adequate opportunity to examine the
    witness during the deposition. 71 The incomplete deposition
    cannot be admitted as substantive evidence at trial. 72
    Dixon deprived the State of an adequate opportunity to
    cross-examine him. At his deposition, Dixon refused to answer
    questions regarding how he obtained the phone and drugs
    that aided in the escape. The State’s questioning was closely
    related to the commission of the escape. Dixon’s entire testi-
    mony would have been stricken in accordance with Cardillo if
    Clausen would have submitted Dixon’s deposition at trial, and
    therefore, the record shows that Clausen was not prejudiced by
    trial counsel’s conduct.
    Even if Dixon’s deposition should have been allowed into
    evidence, the record shows that Clausen was not prejudiced by
    trial counsel’s conduct. As discussed earlier, Clausen could not
    prove a duress defense because he failed to surrender himself
    to authorities.
    (d) Mental Evaluation
    of Clausen
    Clausen next claims that his trial counsel was ineffective
    because trial counsel did not ensure that Clausen received a
    proper mental evaluation to determine whether he was com-
    petent to stand trial. By request of his trial counsel, Clausen
    received two evaluations from separate medical profession-
    als—a forensic psychiatrist and a licensed psychologist. Both
    professionals concluded Clausen was feigning his mental
    70
    See, e.g., Cardillo, supra note 22; Harman, supra note 69.
    71
    See, Cardillo, supra note 22; Harman, supra note 69.
    72
    See
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    issues. Clausen argues that these evaluations were cursory and
    that he was never properly assessed.
    This court concludes that the performance of Clausen’s trial
    counsel was not deficient. Trial counsel identified the poten-
    tial competency issue and requested an evaluation. After the
    court deemed Clausen competent to stand trial, trial counsel
    reaffirmed his commitment to his client by requesting another
    mental examination.
    Because both professionals independently reached the same
    conclusion, trial counsel exercised the judgment of a lawyer
    with ordinary training and skill in criminal law in not request-
    ing further mental evaluations. Even if this court were to find
    that trial counsel’s performance was deficient, there is not a
    reasonable probability that an additional evaluation would have
    resulted in Clausen’s being found incompetent to stand trial.
    Clausen’s trial counsel was not ineffective on this issue.
    (e) Failure to Subpoena
    Police Officer
    Clausen also claims that trial counsel was ineffective
    because he failed to subpoena or compel the police officers
    who conducted a photographic lineup. Clausen argues his trial
    counsel’s actions resulted in the overruling of his motion to
    suppress evidence of the photographic lineup. In reality, the
    court sustained his motion at a hearing and no evidence of the
    photographic lineup was admitted into evidence. This claim
    has no merit.
    (f) Failure to Offer
    Complete Interview
    Clausen next claims his trial counsel should have presented
    the jury with Clausen’s entire recorded interviews with law
    enforcement after his arrest, arguing that it gave the jury an
    inaccurate view of Clausen’s role in the escape. The record-
    ings contained information highly prejudicial to Clausen such
    as the offense Clausen was imprisoned for, his participation
    in various crimes, and his overall criminal history. The State
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    presented a redacted version to ensure the jury did not hear
    this highly prejudicial information. The record establishes that
    Clausen suffered no prejudice by the exclusion of this highly
    prejudicial information.
    (g) Opening Statement
    Clausen moves on to claim that his trial counsel was inef-
    fective by failing to object to or ask the district court to take
    any corrective action for the State’s improper commentary in
    opening statements. The State mentioned in its opening state-
    ment that Clausen was found “in a bathroom with a firearm”
    when he was arrested. The parties agree that this statement
    was improper because it was in violation of a pretrial order by
    the court.
    In State v. Iromuanya, 73 we addressed a similar situation
    where the State made improper comments during opening
    statements. We reasoned that the State’s commentary was not
    prejudicial because (1) the trial court had orally instructed
    jurors before the trial that attorneys’ statements and argu-
    ments were not evidence, (2) the statements represented short
    moments in a long trial during which many other witnesses
    testified about the critical issues in the case, and (3) the trial
    court’s written instructions informed the jurors that they must
    not decide the case based on sympathy or prejudice. 74
    We find Iromuanya instructive in this case. Here, the court
    reminded the jury that “opening statements by counsel are not
    evidence”; multiple witnesses testified during a long trial about
    critical issues of the case, which did not include the possession
    of a firearm; and the jury instructions reiterated that statements
    and arguments by counsel were not evidence. The State never
    offered evidence that Clausen possessed a firearm at the time
    of his arrest. In light of these circumstances, the record shows
    that Clausen suffered no prejudice.
    73
    State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
    (2011).
    74
    See
    id. See, also, State
    v. Stelly, 
    304 Neb. 33
    , 
    932 N.W.2d 857
    (2019)
    (discussing Iromuanya, supra note 73).
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    (h) Cross-Examination of Williams
    Clausen continues his ineffective assistance of counsel
    assignment by arguing that his trial counsel was ineffective
    in his cross-examination of Williams. Clausen claims that his
    counsel failed to impeach Williams’ credibility by (1) estab-
    lishing Williams was a felon under Neb. Rev. Stat. § 27-609
    (Reissue 2016), (2) highlighting Williams’ motivation for tes-
    tifying under his plea agreement, and (3) questioning Williams
    about a suicide attempt he made immediately after Clausen and
    Dixon escaped from prison.
    Clausen misstates the record—his trial counsel did, in fact,
    impeach Williams for being a felon. Section 27-609(1) allows a
    party to admit evidence of a conviction resulting in an impris-
    onment in excess of 1 year for purposes of attacking the credi-
    bility of a witness. The statute goes on to state that “[e]vidence
    of a conviction . . . is not admissible if a period of more than
    ten years has elapsed since the date of such conviction or of the
    release of the witness from confinement, whichever is the later
    date.” 75 After the conviction is established, “‘the inquiry must
    end there, and it is improper to inquire into the nature of the
    crime, the details of the offense, or the time spent in prison as
    a result thereof.’” 76
    Trial counsel asked Williams: “I know that you are in the
    penitentiary but tell me, have you had any felony convictions
    in the last ten years?” Williams ultimately responded: “No. Just
    what I have now.” Trial counsel utilized § 27-609 and attacked
    Williams’ credibility for being a felon. Trial counsel’s perform­
    ance was not deficient.
    Next, Williams testified in his direct examination that he was
    charged with two counts of escape because he helped Clausen
    and Dixon escape. Williams explained that in exchange for
    his testimony, the State dropped one of those counts. Trial
    75
    § 27-609.
    76
    State v. Castillo-Zamora, 
    289 Neb. 382
    , 388, 
    855 N.W.2d 14
    , 22 (2014)
    (quoting State v. Johnson, 
    226 Neb. 618
    , 
    413 N.W.2d 897
    (1987)).
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    counsel need not ask redundant questions on information
    already established on direct examination. The jury was aware
    of Williams’ motivation to testify in this case, and therefore,
    Clausen suffered no prejudice.
    Lastly, Clausen’s trial counsel did not provide ineffective
    assistance of counsel by not questioning Williams regarding
    his suicide attempt after Clausen and Dixon escaped from
    prison, because that evidence was inadmissible. Parties can
    only ask witnesses relevant questions that “make the existence
    of any fact that is of consequence to the determination of the
    action more probable or less probable than it would without
    the evidence.” 77 Williams’ suicide attempt had no bearing on
    whether it was more probable or less probable that Clausen
    escaped from prison, stole a vehicle, and operated the vehicle
    to escape arrest. Because this line of questioning would have
    been inadmissible, the record establishes that Clausen was
    not prejudiced.
    (i) Preservation of
    Motions to Suppress
    Clausen claims that his trial counsel was ineffective because
    his counsel failed to preserve his motions to suppress by
    objecting at trial to the introduction of the photographic lineup.
    However, as discussed earlier, Clausen misstates the record.
    Clausen’s motion to suppress evidence of the photographic
    lineup was sustained, and no evidence of a photographic lineup
    was presented at trial. This claim has no merit.
    Furthermore, Clausen also claims that his trial counsel
    was ineffective because his counsel failed to preserve his
    motions to suppress by objecting at trial to the introduction
    of Clausen’s statements made to investigators after he was
    arrested. Clausen filed motions to suppress his statements
    made during his postarrest interview because investigators did
    not read him his Miranda rights until around 15 minutes into
    77
    Neb. Rev. Stat. § 27-401 (Reissue 2016). See, also, Devers, supra note 2.
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    a series of interviews. The court overruled Clausen’s motion
    to suppress evidence of the statements made to investigators
    and allowed redacted portions of the interview to be played
    at trial.
    The record shows that Clausen was not prejudiced by his
    counsel’s failure to preserve his motion to suppress by object-
    ing at trial. Law enforcement interviewed Clausen three times.
    In the first interview, State Patrol investigators did not read
    Clausen his Miranda rights for the first 15 minutes of the
    interview. However, the investigators did not elicit any incrimi-
    nating information from Clausen until after investigators read
    him his Miranda rights. The pre-Miranda discussion focused
    on Clausen’s previous criminal history, his time in solitary
    confinement, and the potential effect of Clausen’s cooperating
    with the investigation. At the start of the final two interviews,
    investigators read Clausen his Miranda rights and he signed
    a Miranda rights waiver form before the interview began.
    As Clausen’s Miranda rights were not violated, no prejudice
    resulted from his trial counsel’s inaction.
    (j) Failure to Request No-Inference
    Jury Instruction
    Finally, Clausen argues, but fails to assign, that trial counsel
    was ineffective for not requesting a no-inference jury instruc-
    tion. Although we decline to reach the merits of this claim
    because it was not assigned as error, the record shows that
    Clausen suffered no prejudice. As we discussed earlier, the
    court did not err in refusing the pattern jury instruction. 78
    VI. CONCLUSION
    Clausen fails to show that the trial court erred or abused its
    discretion in its rulings. The court correctly excluded Dixon’s
    and Buckner’s inadmissible testimonies. Clausen’s failure to
    follow the court’s instructions at trial led to his testimony
    being stricken and disregarded by the jury, thereby forfeiting
    78
    See State v. Smith, 
    292 Neb. 434
    , 
    873 N.W.2d 169
    (2016).
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    his right to a no-inference jury instruction. None of the errors
    that Clausen assigned qualified as structural errors, nor was he
    deprived of his right to present a defense. Clausen’s sentences
    were not excessive. Finally, his claims of ineffective assistance
    of trial counsel lack merit. We affirm the judgment of the dis-
    trict court.
    Affirmed.
    Freudenberg, J., not participating.
    Miller-Lerman, J., concurring.
    This was an imperfect trial. The testimonies of three defense
    witnesses were stricken in their entirety. These witnesses were
    the defendant Clausen, the coperpetrator Dixon, and an addi-
    tional witness who would have supported Clausen’s theory of
    duress. Flawed though it was, I cannot say the trial suffered
    structural error warranting reversal. Accordingly, notwithstand-
    ing my remarks regarding the constitutional dimension of
    exclusion of testimony generally and that of Dixon in particu-
    lar, I concur.
    Jurisprudential Clarification.
    It has been observed that “[s]triking the testimony of a
    witness is a drastic remedy. It is not to be lightly done. . . .
    Striking all of the testimony of the witness may be the only
    appropriate remedy when refusal to answer the questions of the
    cross-examiner frustrates the purpose of the process.” Lawson
    v. Murray, 
    837 F.2d 653
    , 656 (4th Cir. 1988). In the instant
    case, Clausen’s remarks did in fact frustrate the process and
    striking his testimony in its entirety made sense. However, not
    every refusal to cooperate on cross-examination warrants strik-
    ing a witness’ testimony.
    In United States v. Cardillo, 
    316 F.2d 606
    , 613 (2d Cir.
    1963), the Second Circuit recognized this measured approach,
    and I am in agreement with the majority opinion which
    adopts the three category framework of the Cardillo opinion.
    Cardillo stated:
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    [Not] every refusal to answer by a witness, claiming his
    constitutional right against self-incrimination, requires the
    striking of his testimony or a part thereof. There would
    appear to be at least three categories to be considered.
    The first would be one in which the answer would have
    been so closely related to the commission of the crime
    that the entire testimony of the witness should be stricken.
    The second would be a situation in which the subject mat-
    ter of the testimony was connected solely with one phase
    of the case in which event a partial striking might suffice.
    The third would involve collateral matters or cumulative
    testimony concerning credibility which would not require
    a direction to strike and which could be handled (in a jury
    case) by the judge’s charge if questions as to the weight
    to be ascribed to such testimony arose. As to the first
    and second categories suggested, whether all or a part of
    the testimony should be stricken, must depend upon the
    discretion of the trial judge exercised in the light of the
    particular 
    circumstances. 316 F.2d at 613
    .
    The witness who invoked the Fifth Amendment on cross-
    examination in Cardillo was a government witness, so the
    Cardillo framework needs to be applied with some caution
    where the witness who invokes the Fifth Amendment privilege
    on cross-examination, as in the instant case, has been called by
    the defendant. This is so, because different rights are at stake.
    An opinion from a case where a defense witness invoked the
    Fifth Amendment on cross-examination in which Chief Judge
    Garland and then-Judge Kavanaugh joined, makes this point,
    wherein it stated: “The potential prejudice to the government
    from preventing its cross examination of [a defense witness],
    unlike the prejudice to the defendants in Cardillo [seeking to
    cross-examine a government witness], has no constitutional
    dimension.” U.S. v. Crews, 
    856 F.3d 91
    , 99 (D.C. Cir. 2017).
    Elsewhere, it has been observed:
    Cardillo and cases like it do not address the tension
    inherent, when the witness is defendant’s, between the
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    prosecution’s need to cross-examine and the defendant’s
    right to call witnesses on her own behalf. The right to
    present witnesses “has long been recognized as essential
    to due process.” Chambers v. Mississippi, 
    410 U.S. 284
    ,
    294, 
    93 S. Ct. 1038
    , 1045, 
    35 L. Ed. 2d 297
    (1973). The
    compulsory process clause of the Sixth Amendment also
    supports the same right. Taylor v. Illinois, 
    484 U.S. 400
    ,
    409, 
    108 S. Ct. 646
    , 652, 
    98 L. Ed. 2d 798
    (1988).
    Denham v. Deeds, 
    954 F.2d 1501
    , 1503-04 (9th Cir. 1992).
    A trial court must safeguard to the extent possible a criminal
    defendant’s right to present his or her story.
    Id. It has been
    stated: “The key question is whether the defend­
    ant’s right to present witnesses can be protected without frustrat-
    ing the government’s interest in effective cross-­examination.”
    U.S. v. Negrete-Gonzales, 
    966 F.2d 1277
    , 1280 (9th Cir. 1992).
    Based on constitutional imperatives and the authority of Crews
    and similar jurisprudence, to the extent the opinion of the
    court in this case suggests that the State’s or government’s
    right to examine a defense witness who has invoked the Fifth
    Amendment on cross-examination is the constitutional equiva-
    lent of the right at stake of the criminal defendant, I respect-
    fully disagree.
    Striking All or Partial Testimony of Dixon.
    The thrust of the majority opinion is that Dixon’s refusal to
    identify who supplied the drugs and from whom he obtained
    the phone to set up the crimes as charged was testimony in
    the first Cardillo category, i.e., “so closely related to the com-
    mission of the crime that the entire testimony of the witness
    should be stricken.” United States v. Cardillo, 
    316 F.2d 606
    ,
    613 (2d Cir. 1963). I respectfully disagree; instead, I believe
    the “subject matter of the testimony was connected solely with
    one phase of the case” involving steps in the preparation for
    the crimes which warranted a “partial strik[e].”
    Id. The crimes charged
    were escape, theft of a vehicle by
    unlawful taking, and operating a vehicle to avoid arrest. At
    his deposition, Dixon stated he put a knife to Clausen’s neck
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    in the bathroom and told him he was going to help with the
    escape, whether he wanted to or not, and threatened the lives
    of Clausen and his family. Contrary to the opinion of the court,
    I believe Dixon offered details of how he planned the escape
    and the State’s interest in prosecuting Clausen was not frus-
    trated by Dixon’s unwillingness to name names. When asked
    from whom he got the phone to set up the crimes, Dixon
    said he would not answer. Dixon said he paid for the phone.
    When asked how he paid for the phone, he said he had “a lot
    of guards in my pocket” from whom he obtained drugs with
    which to obtain the phone.
    During his deposition and his appearance before the district
    court, Dixon described how he and Clausen escaped in a laun-
    dry truck, cut open the roof, and then stole a pickup, which
    Dixon drove during the pursuit by police. These details and
    admissions would have favored the State. And Dixon’s testi-
    mony, if it had been permitted, could have given Clausen some
    advantage in his attempt to raise doubt with the jury as to his
    guilt as to certain of the counts. In my view, exclusion of the
    entirety of Dixon’s proposed testimony, because of his refusal
    to name names in connection with the preparatory phase,
    diminished the integrity of the trial.
    I am aware of cases where a witness denied that the defend­
    ant was the source of drugs, but on cross-examination refused
    to name the source, and the appellate court concluded the wit-
    ness’ testimony was properly stricken. E.g., U.S. v. McKneely,
    
    69 F.3d 1067
    (10th Cir. 1995). However, in McKneely, “the
    identity of the source was central to the issue of defendant’s
    guilt or 
    innocence.” 69 F.3d at 1076
    . The instant case is more
    similar to U.S. v. 
    Negrete-Gonzales, supra
    , where the appel-
    late court concluded it was improper to strike the testimony
    of a witness who refused to identify her source of cocaine
    on cross-examination where neither defendant was charged
    with supplying cocaine. The instant case is not a drug case,
    and the identities of the source of the drugs and phone were
    not central. Accordingly, in my view, Dixon’s refusal to name
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    the source of the drugs and phone did not warrant striking the
    entirety of his testimony.
    Having concluded that the refusal of defense witness Dixon
    to answer certain questions on cross-examination falls into the
    second Cardillo category, it is necessary for me to determine
    if partial striking was feasible. In U.S. v. Crews, 
    845 F.3d 91
    ,
    101 (D.C. Cir. 2017), the appellate court was unable to ascer-
    tain whether the witness had asserted her Fifth Amendment
    privilege “only with respect to certain, limited questions,” and
    therefore, the trial court could not be faulted for excluding all
    her testimony. Here, however, Dixon was available to provide
    an abundance of information, not all of it favorable to Clausen,
    and his refusal was clearly limited to the identity of the sources
    of the drugs and phone. And although the district court sug-
    gested that Dixon’s refusal only to identify sources might be
    characterized as an assertion of his Fifth Amendment privilege,
    that suggestion is curious where he had already resolved his
    case arising from the escape. In my view, given the record,
    striking all of Dixon’s testimony on the basis that he asserted
    the Fifth Amendment was “drastic.” Lawson v. Murray, 
    837 F.3d 653
    , 656 (4th Cir. 1988).
    It has been observed that “[e]ven when the witness refuses
    to answer questions relevant to matters at issue, striking only
    portions of the testimony may be the more reasonable remedy
    . . . .”
    Id. In this case,
    in my view, a partial striking of Dixon’s
    testimony would have been the better course; however, I rec-
    ognize that the district court was not asked to do so. Under
    similar circumstances, in Crews, the appellate court assumed
    that “the district court had viable alternatives, but [the defend­
    ant] did not suggest any at trial. The court did not plainly err
    by failing to consider them sua 
    sponte.” 856 F.3d at 100-01
    .
    Similarly, on the record before us, not having been presented
    with the alternative of partially striking Dixon’s proposed testi-
    mony, I cannot find that the district court plainly erred when it
    chose to strike Dixon’s testimony in its entirety.
    For the foregoing reasons, I concur.