- 801 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

State of Nebraska, appellee, v. 

Phillip P. Figures, appellant.

___ N.W.2d ___

Filed April 2, 2021. No. S-19-1210.

1. Effectiveness of Counsel: Appeal and Error. Assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must 

specifically allege deficient performance, and an appellate court will not 

scour the remainder of the brief in search of such specificity.

2. Convictions: Appeal and Error. In an appeal of a criminal conviction, 

an appellate court reviews the evidence in a light most favorable to 

the prosecution.

3. Judgments: Words and Phrases. 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.

4. Right to Counsel: Appeal and Error. An appellate court reviews a 

trial court’s rulings on motions to withdraw as counsel and motions to 

dismiss appointed counsel and appoint substitute counsel for an abuse 

of discretion.

5. Right to Counsel. When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to the court for 

the removal of counsel, his or her only alternative is to proceed pro se if 

he or she is competent to do so.

6. ____. An indigent defendant’s right to have counsel does not give the 

defendant the right to choose his or her own counsel.

7. ____. Mere distrust of, or dissatisfaction with, appointed counsel is not 

enough to secure the appointment of substitute counsel.

8. Pretrial Procedure: Appeal and Error. Unless granted as a matter of 

right under the Constitution or other law, discovery is within the discretion of a trial court, whose ruling will be upheld on appeal unless the 

trial court has abused its discretion.

Nebraska Supreme Court Online Library

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

05/28/2021 08:10 AM CDT
- 802 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

9. Trial: Juries: Appeal and Error. The retention or rejection of a juror 

is a matter of discretion for the trial court, and this rule applies both to 

the issue of whether a venireperson should be removed for cause and to 

the situation involving the retention of a juror after the commencement 

of trial; thus, the standard of review in a case involving discharge of a 

juror is whether the trial court abused its discretion.

10. Trial: Juries. A trial court has broad discretion to discharge a juror for 

cause so long as the court has a legal or factual basis to believe that the 

juror cannot serve as an impartial juror.

11. ____: ____. A court’s decision to discharge a juror is an abuse of discretion if it is without factual support or for a legally irrelevant reason.

12. Trial: Waiver. Whether a defendant could and, in fact, did waive his 

or her right to attend all stages of his or her trial presents a question 

of law.

13. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

14. Constitutional Law: Trial: Waiver. A defendant’s right to be present 

at trial may be waived, but any waiver of this right must be knowing 

and voluntary.

15. Waiver: Words and Phrases. A waiver is the voluntary and intentional 

relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person’s conduct.

16. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules and judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility.

17. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

18. Evidence: Waiver: Appeal and Error. A party who fails to make a 

timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

19. Trial: Verdicts: Appeal and Error. Harmless error review 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 unattributable to 

the error.

20. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence is 
- 803 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

cumulative and other relevant evidence, properly admitted, supports the 

finding by the trier of fact.

21. Motions for Mistrial: Appeal and Error. An appellate court will not 

disturb a trial court’s decision whether to grant a motion for mistrial 

unless the court has abused its discretion.

22. Criminal Law: Motions for Mistrial. A mistrial is properly granted in 

a criminal case where an event occurs during the course of trial which 

is of such a nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair trial.

23. Prosecuting Attorneys: Appeal and Error. When considering a claim 

of prosecutorial misconduct, an appellate court first considers whether 

the prosecutor’s acts constitute misconduct.

24. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court 

concludes that a prosecutor’s acts were misconduct, the court next 

considers whether the misconduct prejudiced the defendant’s right to a 

fair trial.

25. Prosecuting Attorneys: Juries. A prosecutor should not make arguments calculated to appeal to the prejudices of the jury and should 

refrain from arguments which would divert the jury from its duty to 

decide the case on the evidence.

26. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct 

prejudices a defendant’s right to a fair trial when the misconduct so 

infects the trial that the resulting conviction violates due process.

27. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is 

prejudicial depends largely upon the context of the trial as a whole.

28. Convictions: Evidence: Appeal and Error. 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, and such 

matters are for the finder of fact. 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.

29. Criminal Law: Evidence: Confessions: Proof. A voluntary confession 

is insufficient, standing alone, to prove that a crime has been committed, but that it is competent evidence of that fact and may, with slight 

corroboration, establish the corpus delicti as well as the defendant’s 

guilty participation.

30. Constitutional Law: Criminal Law: Jury Trials: Appeal and Error.

Whether cumulative error deprived a criminal defendant of his or her 

Sixth Amendment right to a trial by an impartial jury presents a question 

of law to be reviewed de novo.
- 804 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

31. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a 

question of law.

32. ____: ____. 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 prejudiced by counsel’s alleged 

deficient performance.

33. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of 

ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

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

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

considered by an appellate court.

Appeal from the District Court for Douglas County: Thomas 

A. Otepka, Judge. Affirmed.

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal, Phillip P. Figures challenges his convictions, pursuant to a jury verdict, for first degree murder and 

use of a firearm to commit a felony. Figures presents numerous 

assignments of error aimed at the trial court, the sufficiency of 

the evidence presented, and his allegedly ineffective trial counsel. Because we find no reversible error or abuse of discretion, 

we affirm.
- 805 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

II. BACKGROUND

1. Charges

The State charged Figures with first degree murder, a Class 

IA felony, 1 and use of a firearm to commit a felony, a Class 

IC felony. 2 After Vanessa Figures, Figures’ then spouse, provided a statement to police, he became a suspect in Fredrick 

Green’s death in Omaha, Nebraska, on July 15, 2018. Charges 

soon followed.

Citing Vanessa’s statement and other corroborating evidence, the State alleged that Figures ordered Rufus Dennis 

to kill Green to ensure that Green would not “snitch” to the 

police. According to Vanessa, Green was home when Figures 

and Dennis attempted to burglarize Green’s house.

2. Trial Events

Figures was tried by a jury. The trial is summarized below. 

Additional facts pertinent to Figures’ assigned errors are presented in the analysis.

(a) The State’s Case

Vanessa served as the State’s primary witness. The State 

corroborated Vanessa’s testimony with investigators’ testimony. 

The State also endeavored to disprove that other people may 

have committed the murder.

(i) Vanessa’s Testimony

At the time of the murder, Vanessa lived with Figures as 

his wife. Before the trial, they divorced. In this section, we set 

forth the facts that she testified to at trial.

Recounting the days leading up to the murder, Vanessa paid 

for all the living expenses for Figures and herself. Figures 

was unemployed and did not contribute to their finances. 

Becoming upset with the financial situation, Vanessa demanded 

that Figures “get on [his] feet and help [her] pay these 

1 Neb. Rev. Stat. § 28-303 (Reissue 2016).

2 Neb. Rev. Stat. § 28-1205 (Reissue 2016).
- 806 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

bills.” Figures responded that he and Dennis planned on getting money by burglarizing Green’s house, which, according to 

Figures, contained an estimated $50,000.

On the day of the murder, Figures left Vanessa’s house in a 

rush after it was reported to him that Green had left his home. 

When Figures returned in the afternoon, his “adrenaline [was] 

going.” Figures said, “‘Rufus killed him . . . Fred Green, he 

killed him.’”

Figures explained that the burglary had gone wrong; Green 

was home. After Figures and Dennis entered through an 

unlocked door to Green’s house, they found Green talking 

on a phone. Dennis pointed a gun at Green, who responded, 

“‘This is Pooh, this is Pooh on the phone right now, it’s cool 

. . . .’” Dennis’ sister, Winnie Dennis, was known by the 

name “Pooh.”

Figures forced Green into the basement. Figures then 

assaulted Green. Figures “tased him so much that . . . [t]he 

back flew off the taser and the batteries popped out.” Figures 

recovered the taser’s batteries, but not the back of the taser.

Figures then instructed Dennis to guard Green while Figures 

searched the home. Soon after, Dennis shot Green in the leg. 

Figures returned to the basement, and Dennis said, “‘I got to 

kill him, he’s gonna snitch . . . .’” Figures responded, “‘Kill 

him then, cuz.’” Dennis shot Green three or four times, killing 

him. Before returning to Vanessa’s house, Figures took $2,000 

and a gold necklace from Green’s house.

To cover his tracks, Figures buried the necklace in the yard 

of Vanessa’s house, dumped the clothes he was wearing during 

the murder at a nearby carwash, changed his phone number, 

ensured that Dennis got rid of the murder weapon, and went to 

a state park.

In the days following the murder, Figures became “more and 

more paranoid,” resulting in hostile behavior toward Vanessa. 

On July 26, 2018, Figures’ temper apexed and he moved out 

of Vanessa’s house. However, Figures continued to call and 

text Vanessa, demanding that she “keep [her] mouth shut.” 
- 807 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

Figures later returned to Vanessa’s house and threatened, 

“‘Don’t make me kill you, Vanessa.’”

Fearing for her life, Vanessa retrieved Green’s necklace 

from the yard and drove to the Papillion Police Department in 

Papillion, Nebraska. Vanessa gave a detailed statement to the 

Papillion Police Department and, later, to the Omaha Police 

Department, featuring the information she testified to at trial.

(ii) Corroborating Evidence

The State amplified Vanessa’s credibility by corroborating her testimony with the findings of its investigation. The 

State used a collection of law enforcement investigators to 

present the following: Winnie’s jailhouse phone call, Green’s 

autopsy report, the taser’s back piece, video footage of Figures 

allegedly throwing away the clothes he was wearing during 

the murder, Figures’ interviews with investigators, cell phone 

records, DNA evidence, and cell tower metadata showing 

Figures near Green’s house around the time of the murder. The 

context surrounding each piece of evidence will be addressed 

in turn.

First, Investigator Wendi Dye explained that the front 

door to Green’s house was unlocked, and she described the 

location of Green’s body and the evidence collected at the 

scene. Additionally, two police officers, Patrick Dempsey and 

Beau Taylor, recounted how Vanessa’s statement aided the 

investigation. For instance, Vanessa’s statement alerted them 

to the taser’s back piece, which was later recovered from 

Green’s basement.

Next, a coroner discussed Green’s autopsy. She explained 

that Green died from three gunshot wounds to the head and 

chest. Green also suffered a gunshot to the knee.

The State played a recorded phone call between Green 

and Winnie. Because Winnie was then incarcerated, the call 

was recorded by the correctional facility. In the recording, 

Green said, “Pooh’s on the phone . . . Pooh, say something to your brother.” Without hanging up the phone, Green 

stopped talking.
- 808 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

The State displayed video surveillance footage from a carwash. The footage allegedly showed Figures dumping the 

clothes he was wearing during the murder in the carwash’s trash 

bin. However, investigators were unable to recover the clothes 

before a sanitation truck collected the bin’s contents.

The State also played a redacted version of Figures’ first 

interview with Investigator Ryan Hinsley. In the video, Figures 

claimed that he was putting a stereo system into his sister’s car 

on the day of the murder. Also, Figures denied knowing Dennis 

or having any knowledge of the murder. However, Hinsley 

testified that, in a followup interview, Figures admitted that 

he knew who the “killer” was and that he could provide more 

information to the investigators. For instance, Figures claimed 

that the “killer” dumped Green’s cell phone in a trash can, 

sewer, or other location, but would not be any more specific. 

Based on this information, investigators found Green’s phone 

in a sewer drain near Vanessa’s house.

Figures consented to a police search of his cell phone 

and provided a DNA sample. Police officer Oscar Dieguez 

downloaded the contents of Figures’ phone and testified to its 

contents alongside the contents of Dennis’ and Vanessa’s cell 

phones. Dieguez pointed out that Figures’ phone communicated with Dennis’ phone multiple times before, during, and 

after the day of the murder. Dieguez also verified the threatening text messages that Figures sent to Vanessa.

A DNA analyst testified regarding the DNA testing of 17 

items. Notably, Green’s and another person’s DNA were found 

on some of the items. While Figures was not a DNA contributor on a few items, testing of Figures’ DNA was inconclusive 

on other items.

Finally, investigators used cell tower metadata to show that 

Figures was near Green’s house during the time of the murder. Both a telecommunications representative and an agent 

with the Federal Bureau of Investigation reviewed metadata 

from Omaha cell towers and concluded that Figures’ cell 

phone traveled near Green’s house before and after the murder. 
- 809 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

Because the phone was inactive during the time the State 

believed the murder occurred, neither witness could specifically pinpoint Figures’ phone to be at Green’s house. Another 

telecommunications representative confirmed that Figures 

changed his phone number following the murder.

(iii) Other Witnesses’ Testimony

The State presented three other witnesses: Cynthia Anderson, 

Green’s girlfriend; Akil Williams, Green’s business partner; 

and Jazmyne McMiller, Williams’ girlfriend. These three witnesses collectively discovered Green’s body, but none was 

able to place Figures at the crime scene. However, they established that Green’s murder occurred between 11:45 a.m. and 

1:30 p.m. on July 15, 2018.

McMiller arrived first at Green’s house around 1:30 p.m., 

and when no one answered the door, she remained on the 

porch. Soon after, Williams met McMiller on the porch, where 

they stayed. Finally, Anderson returned to the house. Anderson 

lived at the property and had left around 11:45 a.m. to donate 

plasma. Anderson entered the house and became alarmed 

when she saw that her bedroom’s dresser drawers were ransacked. McMiller and Williams then went inside the house, and 

Anderson discovered Green’s body in the basement.

Anderson called the 911 emergency dispatch service and 

tried to resuscitate Green, but McMiller and Williams immediately left the property. Williams testified that they left because 

he did not want to risk being around law enforcement while 

possessing a gun. After Williams hid the gun, McMiller and 

Williams returned to Green’s house, but law enforcement had 

arrived. All three witnesses complied with investigators and 

subjected themselves to interviews and DNA requests.

(b) Defense Evidence

Figures raised his defense during his cross-examination 

of the State’s witnesses—claiming that Williams murdered 

Green. Figures elicited testimony that Green and Williams sold 

drugs together and that Williams owed Green $8,000. Figures 
- 810 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

highlighted that Williams fled the scene after Green’s body was 

discovered instead of trying to resuscitate him. Figures also 

brought out that investigators declined to test Williams’ DNA 

against Green’s items. Finally, Figures presented video camera 

footage from Vanessa’s doorbell camera that showed he was 

not carrying the clothes that Vanessa had told police he wore to 

commit the crime. Figures rested without testifying or presenting his own witnesses.

3. Verdict and Sentences

The jury found Figures guilty of first degree murder and use 

of a firearm to commit a felony. The court sentenced Figures 

to life imprisonment for the murder conviction and 40 to 50 

years’ imprisonment for the firearm conviction, to be served 

consecutively, with 476 days’ credit for time served on the latter sentence.

Represented by new counsel, Figures filed a timely appeal.

III. ASSIGNMENTS OF ERROR

Figures assigns 10 errors with multiple subparts. For purposes of clarity, we have reordered and consolidated the 

assignments.

Two assignments address pretrial hearings. Figures attacks 

orders overruling his motions for appointment of successor 

trial counsel and Figures’ trial counsels’ motions to withdraw. 

Figures also claims the court abused its discretion by denying 

Figures’ request to be provided physical copies of discovery 

while incarcerated.

Four assignments speak to trial events. Figures asserts that 

the court abused its discretion by sustaining the State’s motion 

to dismiss the “jury’s only African-American juror,” erred by 

allowing the State to present a portion of its case in chief in 

Figures’ absence, erred by permitting the State to introduce 

inadmissible hearsay testimony and character evidence over 

Figures’ objections, and erred in overruling his motion for 

a mistrial.
- 811 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

Two assignments speak generally. Figures assigns that the 

evidence was insufficient to support his convictions. He also 

raises an assignment of cumulative error.

[1] Finally, Figures assigns that he received ineffective 

assistance of trial counsel. We have held that assignments of 

error on direct appeal regarding ineffective assistance of trial 

counsel must specifically allege deficient performance, and 

an appellate court will not scour the remainder of the brief in 

search of such specificity. 3 We quote Figures’ assignment of 

errors in this section. However, for purposes of clarity, we will 

reorder and consolidate these assignments in the analysis.

Figures assigns that his trial counsel failed

1) to seek a trial continuance and/or to object/to seek to 

exclude witnesses that the State endorsed in its “Amended 

Motion For Leave To Endorse,” dated July 18, 2019; 2) 

to seek a continuance and/or to object/to seek to exclude 

digital forensic reports and/or to obtain an expert to 

counter said reports and related testimony; 3) to subject Vanessa to rigorous cross-examination; 4) to subject 

Williams to rigorous cross-examination; 5) to move the 

Court for a sequestration order and prohibition order 

pursuant to State v. Hess . . . ; 6) to subject Dye to rigorous cross-examination; 7) to posit the proper foundation objection to Hinsley’s testimony/to subject Hinsley 

to rigorous cross-examination; 8) to renew a pre-trial 

motion in limine/posit the proper objections to Dieguez’s 

“expert” testimony; 9) to file a motion for new trial pursuant to § 29-2101; 10) to investigate Figures’ alibi witnesses and to present an alibi defense when so instructed; 

11) to posit proper objections to Dempsey and Taylor’s 

“expert” testimony; [and] 12) to secure DNA/GSR testing 

of Williams’ sample.

With the exception of the ninth instance, the State concedes 

that the assignments of deficient conduct were sufficiently 

3 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 812 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

specific. Based on this concession, we do not consider the 

specificity of the other assignments further.

IV. STANDARD OF REVIEW

[2,3] In an appeal of a criminal conviction, we review the 

evidence in a light most favorable to the prosecution. 4 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. 5 Additional standards of review will be set forth in 

the analysis.

V. ANALYSIS

1. Motion for New Counsel

Figures first assigns that the court abused its discretion by 

denying his motions for appointment of successor trial counsel and, correspondingly, by denying Figures’ trial counsel’s 

and cocounsel’s motion to withdraw. Figures asserts that his 

motions were based upon his trial counsel’s incompetence 

and not rooted in mere dissatisfaction. Additionally, Figures 

argues that the court applied the wrong legal standard, claiming 

that the court applied an “exceptional circumstances” standard 

instead of a “good cause” standard.

(a) Additional Facts

Because Figures was indigent, counsel was appointed. 

However, Figures repeatedly moved the court to allow his 

court-appointed counsel to withdraw.

First, Figures’ trial counsel, at Figures’ request, filed a 

motion on September 24, 2018. In a hearing on the motion, 

Figures explained that (1) he did not agree to his specific 

counsel representing him, (2) he was not comfortable with 

his attorney, (3) he wanted an attorney with more experience 

with murder trials, and (4) he disagreed with his counsel’s 

4 State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).

5 State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).
- 813 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

defense strategy. The court denied Figures’ motion, finding 

that “[Figures had not] shown good cause, and mere dissatisfaction [was] not sufficient.” Figures then filed a document 

pro se on October 3, reciting the arguments he presented at 

the hearing and also claiming that his trial counsel should be 

removed because (1) his trial counsel was “hired [and] picked” 

by the prosecution, (2) he does not trust his counsel, (3) counsel was not communicating with him, and (4) trial counsel was 

not following his instructions. No hearing was held on this 

pro se document.

In response to Figures’ filing another document pro se 

on May 6, 2019, Figures’ trial counsel again filed a motion 

to withdraw on May 23. At a hearing regarding the motion, 

Figures reiterated his arguments from the September 2018 

hearing and his pro se document. He added that his counsel 

failed to explain the ramifications of waiving his right to a 

speedy trial and that he could not review the entire discovery 

because of his poor working relationship with counsel. Figures 

also declined to represent himself pro se and explained that he 

could not afford private counsel.

The district court overruled Figures’ motions, finding that 

Figures did not show good cause for removal of his counsel. 

While the court referenced “exceptional circumstances” when 

it explained to Figures what conditions would warrant new 

counsel, it ultimately cited State v. Bratton 6 and ruled that “[it 

did not] find that [there was] good cause shown for appointment of new counsel.” Figures’ counsel noted in a later hearing on June 20, 2019, that Figures’ relationship with him had 

“significantly improved.”

Figures’ cocounsel also moved to withdraw from the case 

on July 17, 2019. However, counsel’s basis for the motion 

was that he had taken a new job in another state. Because 

cocounsel’s motion was on the eve of trial, the court overruled 

his motion.

6 State v. Bratton, 187 Neb. 460, 191 N.W.2d 612 (1971).
- 814 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(b) Standard of Review

[4] An appellate court reviews a trial court’s rulings on 

motions to withdraw as counsel and motions to dismiss 

appointed counsel and appoint substitute counsel for an abuse 

of discretion. 7

(c) Discussion

[5-7] When a defendant becomes dissatisfied with courtappointed counsel, unless he or she can show good cause to 

the court for the removal of counsel, his or her only alternative 

is to proceed pro se if he or she is competent to do so. 8 An 

indigent defendant’s right to have counsel does not give the 

defendant the right to choose his or her own counsel. 9 Mere 

distrust of, or dissatisfaction with, appointed counsel is not 

enough to secure the appointment of substitute counsel. 10

Because Figures declined to proceed pro se or retain private 

counsel, Figures had to show that his trial counsel was incompetent. Figures cited evidence that he disliked his trial counsel 

and that Figures did not have a good working relationship 

with him.

The district court found that Figures failed to prove that his 

trial counsel was incompetent. The court applied the correct 

standard and did not abuse its discretion.

2. Discovery

Figures next assigns that the court abused its discretion 

by denying his request to obtain his own physical copies of 

discovery material. Figures asserts the court failed to base 

its decision on Neb. Rev. Stat. § 29-1912 (Reissue 2016). 

Figures also argues he could not properly review discovery 

7 See, State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020); State v. 

Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).

8 Weathers, supra note 7.

9 Id.

10 Id.
- 815 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

because of his “dysfunctional” relationship with his trial 

counsel. 11

(a) Additional Facts

Figures requested copies of discovery that he could keep in 

his possession, instead of reviewing discovery with his attorney. Figures was incarcerated for the entirety of the proceedings. While not in the record, the State’s brief explained that 

Figures’ counsel followed local practice and agreed to not provide physical copies of the discovery to Figures in exchange 

for the State providing more discovery than was required by 

statute. At oral arguments, Figures’ appellate counsel conceded that “traditionally, the way discovery is disseminated 

to a criminal defendant is through counsel.” The court denied 

Figures’ request.

(b) Standard of Review

[8] Unless granted as a matter of right under the Constitution 

or other law, discovery is within the discretion of a trial court, 

whose ruling will be upheld on appeal unless the trial court has 

abused its discretion. 12

(c) Discussion

Section 29-1912 “permit[s] the defendant to inspect and 

copy or photograph [discovery],” but does not mandate that 

the State provide physical copies of discovery for a defendant 

to possess while incarcerated. Figures’ counsel possessed the 

physical copies of the discovery, which Figures could review. 

Therefore, we find that the court did not abuse its discretion in 

denying his request.

3. Juror Dismissal

Figures next assigns that the court abused its discretion 

by sustaining the State’s motion to strike the “jury’s only 

11 Brief for appellant at 34.

12 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
- 816 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

African-American juror.” Figures argues that the court’s ruling 

was not supported by the record and that the State did not articulate a race-neutral reason pursuant to Batson v. Kentucky 13

for discharging the juror. However, the juror’s removal did 

not result from a peremptory challenge by the State; rather, it 

occurred during the course of the trial.

(a) Additional Facts

In the middle of the trial, the State brought to the court’s 

attention that a juror may have had improper communications 

with Figures’ associate. The court heard from two witnesses 

and the juror. The two witnesses testified that the day before, 

they saw the juror talking with a man in the courthouse, which 

they recognized as being Figures’ associate.

The juror initially denied talking to anyone. However, the 

juror returned to the courtroom a short time later and modified her testimony. The juror then testified that a man had 

approached her, but she thought he was just trying to “hit on 

[her],” so she ignored him.

The State moved to strike the juror, citing the witnesses’ and 

juror’s testimony. The court sustained the State’s motion over 

Figures’ objection. In its ruling, the court noted that “there was 

quite a discrepancy in the [juror’s] testimony” about “conduct 

not even 24 hours ago.”

(b) Standard of Review

[9] The retention or rejection of a juror is a matter of discretion for the trial court, and this rule applies both to the 

issue of whether a venireperson should be removed for cause 

and to the situation involving the retention of a juror after the 

commencement of trial; thus, the standard of review in a case 

involving discharge of a juror is whether the trial court abused 

its discretion. 14

13 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d. 69 (1986).

14 State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
- 817 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(c) Discussion

Neb. Rev. Stat. § 29-2004(2) (Reissue 2016) authorizes a 

court to disqualify a juror for cause after the juror has been 

sworn in. Section 29-2004(2) has been amended since Figures’ 

trial, but neither version of § 29-2004(2) identifies the reasons 

for which a juror might be discharged. 15

[10,11] Case law, however, establishes that a trial court has 

broad discretion to discharge a juror for cause so long as the 

court has a legal or factual basis to believe that the juror cannot serve as an impartial juror. 16 Therefore, a court’s decision 

to discharge a juror is an abuse of discretion if it is without 

factual support or for a legally irrelevant reason. 17

We find that the court did not abuse its discretion in discharging the juror. Noting that there were “discrepanc[ies]” in 

the juror’s testimony, the court had a factual basis to believe 

that the juror would not be able to serve as an impartial juror. 

Additionally, we find no merit to Figures’ claim that the juror’s 

dismissal violated Batson.

 18

4. Figures’ Absence

Figures assigns that the court erred by allowing the State 

to present a portion of its case in chief in Figures’ absence. 

Figures argues that the court deprived him of his right to be 

present in the courtroom at every stage of his trial.

(a) Additional Facts

After the African-American juror was excused, Figures left 

the courtroom for the remainder of the day, declining to 

be present for the opening portion of Dye’s direct examination. The court allowed the State to continue to present 

witnesses. Figures was not deprived of his opportunity to 

15 See, generally, State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).

16 See, e.g., Huff, supra note 14.

17 See id.

18 Batson, supra note 13.
- 818 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

cross-examine Dye, and Figures’ counsel was present during 

the entire testimony.

(b) Standard of Review

[12,13] Whether a defendant could and, in fact, did waive 

his or her right to attend all stages of his or her trial presents a 

question of law. 19 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. 20

(c) Discussion

[14] The Confrontation Clause of the Sixth Amendment to 

the U.S. Constitution and Neb. Const. art I, § 11, provide for 

the accused’s right to be present in the courtroom at every 

stage of the trial. 21 Neb. Rev. Stat. § 29-2001 (Cum. Supp. 

2020) provides: “No person indicted for a felony shall be 

tried unless personally present during the trial.” However, a 

defendant’s right to be present at trial may be waived, but any 

waiver of this right must be knowing and voluntary. 22

[15] A waiver is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person’s conduct. 23 We have 

explained that if a defendant could “‘prevent the completion 

of the trial by voluntarily absenting himself, and thus tie the 

hands of justice, he would be permitted to take advantage of 

his own wrong.’” 24

Figures voluntarily and intentionally waived his right to 

be present during a portion of the trial. Figures left the 

19 State v. Warlick, ante p. 656, ___ N.W.2d ___ (2021).

20 State v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020).

21 Warlick, supra note 19.

22 Id.

23 Id.

24 Id. at 677-78, ___ N.W.2d at ___ (quoting Scott v. State, 113 Neb. 657, 

204 N.W. 381 (1925)).
- 819 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

courtroom on his own accord. We will not allow Figures to take 

advantage of his own conduct. Figures’ claim has no merit.

5. Evidentiary Rulings

Combining two of Figures’ assignments, Figures assigns that 

the court abused its discretion or erred by permitting the State 

to introduce two pieces of inadmissible evidence: character 

evidence and hearsay. First, Figures argues that the court erred 

by allowing the State to elicit testimony of a failed drug deal 

and Figures’ threats toward Vanessa. Next, Figures asserts that 

investigators’ testimony regarding Vanessa’s statement to law 

enforcement was inadmissible hearsay. Each will be addressed 

in turn.

(a) Standard of Review

[16,17] In proceedings where the Nebraska Evidence 

Rules apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. 25 Where the Nebraska Evidence Rules commit 

the evidentiary question at issue to the discretion of the trial 

court, an appellate court reviews the admissibility of evidence 

for an abuse of discretion. 26

[18] A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error 

concerning the evidence received without objection. 27

[19,20] Harmless error review 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 unattributable to the error. 28 Erroneous admission of 

25 Martinez, supra note 5.

26 Id.

27 State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).

28 State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).
- 820 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

evidence is harmless error and does not require reversal if the 

evidence is cumulative and other relevant evidence, properly 

admitted, supports the finding by the trier of fact. 29

(b) Alleged Character Evidence

(i) Additional Facts

During pretrial hearings and a colloquy immediately before 

opening arguments were presented at trial, the parties disputed 

the admissibility of two of Figures’ actions after the murder: a 

failed drug deal and threats toward Vanessa. After the murder, 

Figures had a verbal dispute with Vanessa’s aunt at Vanessa’s 

house. The State alleged that the dispute originated from a 

failed drug deal. Additionally, as recounted earlier, Figures 

repeatedly threatened Vanessa, demanding that she not tell anyone about his involvement in Green’s death.

Figures sought to exclude evidence of his actions pursuant 

to Neb. Rev. Stat. § 27-404(2) (Reissue 2016). Figures argued 

that the State planned to use this evidence to show his bad 

character and propensity to commit the murder.

The State refuted Figures’ arguments. However, because the 

State never brought up the failed drug deal at trial, the only 

evidence that reached the jury was Figures’ threats toward 

Vanessa. Citing State v. Parnell,

 30 the State argued that Figures 

made terroristic threats toward Vanessa, which were inextricably intertwined with the charged offense and fell outside § 27-404(2).

The district court agreed with the State, allowing Vanessa to 

testify about Figures’ threats toward her. While Figures had a 

continuous objection regarding the failed drug deal, he did not 

object to Vanessa’s testimony regarding the threats at trial.

(ii) Discussion

For separate reasons, we dispose of this assignment without 

addressing its merits. Because the State never presented the 

29 Id.

30 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
- 821 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

alleged drug deal to the jury, it could not generate prejudicial 

error. Regarding Vanessa’s testimony about Figures’ threats, 

Figures failed to object to this testimony at trial. Therefore, 

Figures waived his right to assert prejudicial error concerning 

the evidence of Figures’ threats.

(c) Hearsay

(i) Additional Facts

The State elicited testimony from both Dempsey and Taylor, 

police officers who took Vanessa’s statement. They recited 

Vanessa’s statements to law enforcement, including what 

Figures told Vanessa. Figures objected, based upon hearsay. 

The court overruled the objection, but noted Figures’ continuing objection.

(ii) Discussion

The court erred by allowing the officers to testify to inadmissible hearsay. The officers testified about statements which 

were made out of court and used for the truth of the matter 

asserted. 31 While Vanessa’s statements regarding what Figures 

told her are admissible as opposing party statements, it does 

not justify allowing the officers to testify regarding Vanessa’s 

own statements. 32

The court’s error, however, was harmless. The officers’ testimony was cumulative to Vanessa’s testimony earlier in the 

trial, and the State presented other relevant evidence that supported the jury’s verdict. We will not reverse based upon this 

harmless error.

6. Motion for Mistrial

Figures next assigns the court erred in overruling his motion 

for a mistrial. Figures argues that he was deprived of a fair 

trial, because prosecutorial misconduct misled the jury as to the 

evidence it could consider.

31 See Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

32 See § 27-801(4)(b).
- 822 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(a) Additional Facts

During the trial, the State stipulated to the admissibility of a 

video clip from Vanessa’s doorbell video camera (exhibit 372). 

However, the State noted that, in response, it would play the 

rest of the camera’s footage (exhibit 373) to argue that the time 

stamps were altered. Figures stipulated to the admissibility of 

exhibit 373.

During Hinsley’s cross-examination, Figures offered into 

evidence and played exhibit 372 to the jury. On Hinsley’s 

redirect, the State offered exhibit 373 “not to go back to the 

jury, but just for purposes of the record and then ask[ed] . . . 

permission to, for demonstrative purposes, illustrate a few that 

will assist the detective in explaining his testimony.” The 

State then played a portion of exhibit 373 to the jury in order 

for Hinsley to assert that the doorbell footages’ time stamps 

were altered.

The parties readdressed these exhibits in their closing arguments. First, Figures asserted that exhibit 372 contradicted 

Vanessa’s testimony that Figures was carrying the clothes he 

wore to Green’s house on the day of the murder. Figures then 

argued that because the State could not refute exhibit 372, it 

did not want the jury to see the exhibit.

The State objected to Figures’ argument, asserting that it 

misstated the evidence on the record. The court did not explicitly rule on the State’s objection, but Figures amended his argument to focus on the States’ claim that exhibit 372’s time stamp 

was manipulated.

During rebuttal, the State stated that “[i]t’s one thing to 

zealously represent your client, but it’s quite another thing to 

come up here and make the implications that you just heard 

over the last hour.” The State accused Figures of mischaracterizing exhibit 372 as evidence that the State wanted to “hide.” 

Referencing the time stamp manipulation, the State explained 

that it presented neither exhibit 372 nor exhibit 373 during 

Hinsley’s direct examination, because it did not believe it had 

the foundation to offer it.
- 823 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

After the jury was sent to deliberate, Figures moved for 

a mistrial. Figures argued that the jury was instructed that it 

could only consider evidence that had been properly admitted. 

Figures claimed the jury was under the impression that exhibit 

372, which was properly admitted, could not be considered 

based upon the parties’ interactions at closing statements and 

the State’s rebuttal statement. Figures concluded that he did not 

have a fair trial, because the entire proceedings were tainted. 

Explaining that “[it did not] think we’ve even gotten close to 

that,” the court overruled Figures’ motion for a mistrial.

(b) Standard of Review

[21,22] An appellate court will not disturb a trial court’s 

decision whether to grant a motion for mistrial unless the court 

has abused its discretion. 33 A mistrial is properly granted in a 

criminal case where an event occurs during the course of trial 

which is of such a nature that its damaging effect cannot be 

removed by proper admonition or instruction to the jury and 

thus prevents a fair trial. 34

(c) Discussion

[23,24] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute 

misconduct. 35 If we conclude that a prosecutor’s acts were misconduct, we next consider whether the misconduct prejudiced 

the defendant’s right to a fair trial. 36

We have acknowledged that “prosecutorial misconduct” cannot be neatly defined, but we have said that generally, it 

encompasses conduct that violates legal or ethical standards for 

various contexts because the conduct will or may undermine 

33 State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).

34 State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).

35 State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).

36 Id.
- 824 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

a defendant’s right to a fair trial. 37 We have also said that a 

prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct. 38

We disagree with Figures’ assertion that the State made 

baseless objections that misled the jury. The record shows that 

at a sidebar, the parties had a genuine dispute regarding which 

exhibits were not offered to the jury. The court grappled with 

that issue as well. We do not find the State’s objections constituted prosecutorial misconduct.

[25] However, we are concerned with the State’s rebuttal 

statement. We have ruled that a prosecutor should not make 

arguments calculated to appeal to the prejudices of the jury 

and should refrain from arguments which would divert the jury 

from its duty to decide the case on the evidence. 39 We recognize that hyperbole in closing arguments is hardly rare and that 

juries should be given credit for the ability to filter out oratorical flourishes. 40 But comments by prosecutors to the effect 

that a defense attorney’s job is to mislead the jury in order to 

garner an acquittal for his or her client is not only distasteful 

but borders on being unethical and such comments only serve 

to denigrate the legal profession in the eyes of the jury and, 

consequently, the public at large. 41

Here, the State stated that “[i]t’s one thing to zealously 

represent your client, but it’s quite another thing to come up 

here and make the implications that you just heard over the 

last hour.” Here, the State never explicitly argued that Figures 

was lying or trying to mislead the jury. But the implication 

37 Id.

38 Id.

39 See State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved 

on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 

(2007).

40 See id.

41 See id.
- 825 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

of the State’s argument reaches the extreme end of permissible conduct.

[26,27] However, even if we assume that the State’s argument 

crossed the line into prosecutorial misconduct, it does not warrant reversal because it did not prejudice Figures. Prosecutorial 

misconduct prejudices a defendant’s right to a fair trial when 

the misconduct so infects the trial that the resulting conviction 

violates due process. 42 Whether prosecutorial misconduct is 

prejudicial depends largely upon the context of the trial as a 

whole. 43 In determining whether a prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, we consider 

the following factors: (1) the degree to which the prosecutor’s 

conduct or remarks tended to mislead or unduly influence the 

jury, (2) whether the conduct or remarks were extensive or 

isolated, (3) whether defense counsel invited the remarks, (4) 

whether the court provided a curative instruction, and (5) the 

strength of the evidence supporting the conviction. 44

Because the State’s conduct was not prejudicial and did not 

violate Figures’ right to a fair trial, we find that the court did 

not abuse its discretion in overruling Figures’ motion for a 

mistrial. The single comment was made at the end of the trial 

and was overshadowed by the plenitude of evidence supporting 

Figures’ conviction. It was within the court’s discretion to find 

that the jury could filter out the State’s hyperbole and render a 

verdict based upon the evidence presented.

7. Sufficiency of Evidence

Figures argues that the evidence presented was insufficient 

to support his convictions. Citing State v. Scott,

 45 Figures 

claims there was insufficient corroboration of Figures’ confession to Vanessa.

42 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

43 Hernandez, supra note 35.

44 Id.

45 See State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978).
- 826 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(a) Standard of Review

[28] 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, and 

such matters are for the finder of fact. 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. 46

(b) Discussion

[29] Scott mandates that a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, but that it is competent evidence of that fact and may, with 

slight corroboration, establish the corpus delicti as well as the 

defendant’s guilty participation. 47

The State presented sufficient corroborating evidence for the 

jury to convict Figures. The State presented evidence regarding Green’s cause of death, the condition of the crime scene, 

a recorded phone call, tangible physical evidence, forensics, 

cell phone data, and cell tower metadata. This evidence corroborated Figures’ confession to Vanessa. Figures’ claim has 

no merit.

8. Accumulation of Errors

Figures next argues that the aggregated errors in Figures’ 

case warrants reversal.

(a) Standard of Review

[30] Whether cumulative error deprived a criminal defendant 

of his or her Sixth Amendment right to a trial by an impartial 

jury presents a question of law to be reviewed de novo. 48

46 See State v. Stack, 307 Neb. 773, 950 N.W.2d 611 (2020).

47 See Scott, supra note 45.

48 State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
- 827 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(b) Discussion

Because we already determined that the errors assigned by 

Figures were either meritless or inconsequential, we decline to 

reverse based on the cumulative error doctrine. It has no application here.

9. Ineffective Assistance 

of Counsel

Finally, Figures presents 12 assignments of ineffective assistance of counsel. Figures’ appellate counsel is different than his 

trial counsel. For purposes of clarity, we have reordered and 

consolidated some of Figures’ assignments.

(a) Standard of Review

[31-33] Whether a claim of ineffective assistance of counsel 

may be determined on direct appeal is a question of law. 49 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 prejudiced by counsel’s alleged deficient performance. 50 When the 

claim is raised in a 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 by trial counsel. 51

[34] An alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error 

to be considered by an appellate court. 52

49 State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).

50 Id.

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

52 State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
- 828 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

(b) Specific Assignments

(i) Witness List

Figures starts his ineffective assistance of counsel assignments by arguing that his trial counsel was defective by (1) not 

seeking a trial continuance after the State amended its witness 

list or (2) not objecting to and seeking to exclude newly added 

witnesses from testifying at trial. Both parts of Figures’ claim 

will be addressed in turn.

First, the record is insufficient to address why Figures’ trial 

counsel did not move for a continuance. While Figures’ trial 

counsel objected to the State’s motion, a continuance was never 

raised. The record does not explain why Figures’ trial counsel 

did not do so.

Next, Figures’ trial counsel was not deficient by not objecting and seeking to exclude the witnesses at trial. Because the 

State amended its witness list more than 30 days before trial, 

the court overruled Figures’ pretrial objection. 53 It would have 

been futile to object again at trial.

(ii) Digital Forensic Reports

Figures argues his trial counsel was defective by (1) not 

seeking a trial continuance after the State disclosed the digital 

forensic reports, (2) not objecting to and seeking to exclude the 

reports at trial, and (3) failing to obtain an expert to refute the 

reports. Each part of the claim will be addressed in turn.

The record is insufficient to address the first part of Figures’ 

claim. The record does not detail why Figures’ trial counsel 

did not move for a continuance. At the hearing following the 

State’s disclosure of the digital forensic reports, Figures’ trial 

counsel explicitly stated that Figures was not requesting a 

continuance at that time, but he did not provide an explanation why.

Figures’ trial counsel was not deficient for failing to object 

to and seek to exclude the contents of the digital forensic 

53 See Neb. Rev. Stat. § 29-1602 (Reissue 2016).
- 829 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

reports at trial. Because the timely reports were admissible evidence, the court overruled Figures’ pretrial motion to preclude 

the reports, based upon alleged late disclosure, and it would 

have been futile to object again at trial. 54

Finally, the record does not provide the necessary context 

regarding obtaining or presenting a digital forensic expert. The 

court granted Figures’ motion to obtain an expert. However, 

the record does not explain whether Figures did in fact obtain 

an expert and, if so, why Figures did not present the expert to 

counter the digital forensic reports.

(iii) Witness Testimony

Figures also assigns that his trial counsel deficiently crossexamined witnesses and failed to raise proper objections to 

witnesses’ testimony at trial. Each claim will be addressed 

in turn.

a. Vanessa

Figures assigns his trial counsel ineffectively cross-examined 

Vanessa by not inquiring into Vanessa’s inconsistent statements 

to law enforcement, her delay in reporting the crime, and 

whether she had entered into an agreement to testify in lieu of 

criminal prosecution. The record is devoid as to why Figures’ 

trial counsel chose not to ask Vanessa particular questions. We 

agree with the State that the record is insufficient to address 

this assignment.

b. Williams

Figures next assigns that his trial counsel ineffectively 

cross-examined Williams by not asking about Williams’ prior 

inconsistent statements to law enforcement, by not asking 

about Williams’ drug use on the day of the murder, and by 

failing to obtain Williams’ criminal history before his testimony. Figures also asserts that his trial counsel “los[t] control 

54 See Crowder v. Aurora Co-op Elev. Co., 223 Neb. 704, 393 N.W.2d 250 

(1986).
- 830 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

of Williams’ testimony.” 55 Each claim will be addressed 

in turn.

First, the record is insufficient to explain why Figures’ trial 

counsel declined to ask Williams about his prior inconsistent 

statements and marijuana use. Additionally, the record does 

not establish whether Figures suffered prejudice by his trial 

counsel’s failure to obtain Williams’ criminal record before 

trial. However, the record is sufficient to address Figures’ trial 

counsel’s “losing control of Williams’ testimony.” 56

We disagree with Figures’ characterization of his trial counsel’s interaction with Williams. While Williams provided hostile 

commentary throughout his cross-examination, Figures’ trial 

counsel sufficiently bypassed Williams’ aggression, objected to 

nonresponsive testimony, and remained focused on extracting 

testimony from Williams. Figures’ claim has no merit.

Finally, Figures argues, but fails to assign, that his trial 

counsel was deficient by not objecting to relevance and 

improper witness bolstering on Williams’ redirect examination. 57 Because Figures failed to assign error on these matters, 

we decline to address them. 58

c. Dye

Figures also assigns that his trial counsel ineffectively 

cross-examined Dye by failing to inquire into her presence in 

the courtroom during Williams’ testimony, how she learned of 

the contents of Williams’ testimony, and her investigation of 

Williams as a suspect in Green’s homicide. The record again 

lacks the detail necessary to address Figures’ claim, because 

it does not explain why Figures’ trial counsel declined to 

ask Dye particular questions. Therefore, we cannot resolve 

this claim.

55 See brief for appellant at 67.

56 See id.

57 See Neb. Rev. Stat. §§ 27-401, 27-402, and 27-608 (Reissue 2016).

58 See McGuire, supra note 52.
- 831 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

In Figures’ brief, he also argues, but fails to assign, that his 

trial counsel was ineffective for failing to object to multiple 

portions of Dye’s testimony, failing to offer pertinent motions, 

and eliciting evidence from Dye that contradicted Figures’ 

defense. Because Figures’ failed to assign error on these matters, we decline to address them. 59

d. Hinsley

Figures next assigns that his trial counsel was ineffective 

by failing to make a foundational objection to exhibit 373 

and moving to strike to Hinsley’s related testimony. Figures’ 

assignment mischaracterizes the record. As discussed earlier, Figures and the State entered into stipulations regarding 

the doorbell footage. The State stipulated to Figures’ playing 

exhibit 372 with the understanding that it would play exhibit 

373 to argue that the time stamps were manipulated. Figures’ 

trial counsel agreed to this arrangement. Consequently, Figures 

was able to play exhibit 372 without the State’s making a foundational objection.

In this appeal, Figures now argues that his trial counsel should have presented a foundational objection to exhibit 

373—from which exhibit 372 originates. The State’s sole purpose in playing exhibit 373 was to explain to the jury that it 

did not present the exhibit earlier because it did not believe 

there was sufficient foundation to present it. Figures’ objection 

would have proved the State was right and discredited exhibit 

372, which he presented earlier. Therefore, Figures’ trial counsel was not deficient.

Figures also argues, but fails to assign, that his trial counsel 

was ineffective by eliciting incriminating testimony against 

Figures from Hinsley. We likewise decline to address this argument, because Figures failed to properly assign error. 60

59 See id.

60 See id.
- 832 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

e. Dieguez

Figures assigns that his trial counsel was ineffective by failing to (1) renew his pretrial motion to preclude Dieguez from 

testifying; (2) object to Dieguez’ testimony and the exhibits 

that Dieguez used during his testimony for being irrelevant, 

improper expert witness testimony, hearsay, and having a probative value that was substantially outweighed by the danger 

of unfair prejudice; and (3) object to the exhibits for violating 

Crowder v. Aurora Co-op. Elevator Co.

 61 Each claim will be 

addressed in turn.

First, Figures’ claim that his trial counsel should have 

renewed his pretrial motion to preclude Dieguez from testifying has no merit. Figures argued in his pretrial motion that 

§ 29-1602 required that the State disclose that Dieguez would 

serve as an expert witness. However, while statute mandates 

that the State endorse a list of witnesses known to it, it does 

not require that the State highlight a witness’ expert status. 62

Next, Figures could not have properly objected to Dieguez’ 

testimony or the exhibits presented. Dieguez’ testimony and 

exhibits discussed relevant statements made by Figures and 

had a probative value that was not outweighed by any unfair 

prejudice. Also, the exhibits did not violate Crowder.

 63 The 

exhibits were a PowerPoint presentation of the digital forensic 

reports of Figures’, Vanessa’s, and Dennis’ phones. The documents summarized by the exhibits were identifiable, admissible, voluminous, and previously disclosed to Figures. Figures’ 

claim has no merit.

Figures argues, but fails to assign, that his trial counsel ineffectively cross-examined Dieguez. Because Figures failed to 

assign error, we decline to address the argument. 64

61 See § 27-401 and Neb. Rev. Stat. §§ 27-403, 27-602, 27-702, 27-705, 

27-802, and 27-1006 (Reissue 2016); Crowder, supra note 54.

62 See § 29-1602.

63 See Crowder, supra note 54.

64 See McGuire, supra note 52.
- 833 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

f. Dempsey and Taylor

Figures assigns that his trial counsel was ineffective by failing to object to Dempsey’s and Taylor’s “expert” testimony. 

However, Figures argues that his trial counsel was ineffective by failing to object to the officers’ testimony regarding 

Vanessa’s statements to them as hearsay and needlessly cumulative evidence. Figures’ arguments differ from his assignment, 

and therefore, we decline to address them. 65

(iv) Sequestration of Witnesses

Figures also assigns his trial counsel was ineffective by failing to move for the witnesses to be sequestered. Figures argues 

his trial counsel’s failure to move for sequestration led to the 

State’s witnesses coordinating their testimony.

The record is insufficient to address Figures’ assignment. 

The record does not provide any evidence that the witnesses 

coordinated their testimony or that Figures suffered any prejudice by his trial counsel’s not moving for the sequestration 

of witnesses.

(v) Motion for New Trial

Figures argues that his trial counsel was ineffective by failing to move for a new trial based upon evidence that arose 

after the jury rendered its verdict. Figures alleges Vanessa sent 

him a letter, which contained information supporting a motion 

for new trial, 2 days after the jury rendered its verdict. Figures 

asserts that he provided the letter to his trial counsel, but trial 

counsel never moved for a new trial.

But the State responds that Figures’ assignment—which, 

as quoted above, asserted only that trial counsel failed to 

file a motion for new trial—was insufficient. We agree. We 

have already recounted a defendant’s obligation to specifically allege the deficient conduct which is asserted as a claim 

of ineffective assistance of counsel. 66 The assignment fails to 

state any ground for the motion.

65 See id.

66 See Mrza, supra note 3.
- 834 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. FIGURES

Cite as 308 Neb. 801

Even if we were to consider his argument’s reference to a 

letter, the assignment still lacks specificity. In the context of 

direct appeal, like the requirement in postconviction proceedings, mere conclusions of fact or law are not sufficient to 

allege ineffective assistance of counsel. 67 Figures fails to state 

what “information” was contained in the letter. 68 Without that 

specificity, it is at best a mere conclusion and an insufficient 

allegation of deficient conduct.

(vi) Alibi

Figures assigns that his trial counsel was ineffective by 

failing to present his alibi defense. Figures told investigators 

that he was installing a car stereo with his brother and sister 

at the time of Green’s death. Figures avers that he instructed 

his trial counsel to present that statement as an alibi defense, 

but, instead, his trial counsel only asserted that Williams killed 

Green. The record is insufficient to address this claim.

(vii) Williams’ DNA Sample

Finally, Figures assigns that his trial counsel was ineffective 

by failing to secure testing of Williams’ DNA and gunshot residue samples. Neither sample was tested by law enforcement. 

Figures claims his trial counsel’s inaction was inconsistent with 

his defense that Williams killed Green.

The record does not explain why Figures’ trial counsel did 

not request that Williams’ DNA and gunshot residue samples 

be tested. Therefore, we cannot address Figures’ final claim.

VI. CONCLUSION

We find no court errors or abuse of discretion warranting reversal. The evidence presented was sufficient for the 

jury to convict Figures. Finally, based upon the record provided, Figures did not receive ineffective assistance of counsel. 

Therefore, we affirm the judgment of the district court.

Affirmed.

67 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

68 Brief for appellant at 72.