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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE v. DEVERS

Cite as 306 Neb. 429

State of Nebraska, appellee, v. 

Jason D. Devers, appellant.

___ N.W.2d ___

Filed July 10, 2020. No. S-19-629.

1. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and 

their rulings thereon will not be reversed in the absence of an abuse 

of discretion.

2. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

3. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

4. 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.

5. 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.

6. Trial: Evidence. Balancing the probative value of evidence against the 

danger of unfair prejudice is within the discretion of the trial court.

7. ____: ____. Evidence that is irrelevant is inadmissible.

8. Evidence. Relevancy requires only that the probative value be something more than nothing.

9. Rules of Evidence. Under Neb. Rev. Stat. § 27-403 (Reissue 2016), 

relevant evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.

10. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

11. ____: ____. Unfair prejudice speaks to the capacity of some concededly 

relevant evidence to lure the fact finder into declaring guilt on a ground 

Nebraska Supreme Court Online Library

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

08/28/2020 01:07 AM CDT
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different from proof specific to the offense charged, commonly on an 

emotional basis.

12. Evidence: Corroboration: Testimony. Evidence may be relevant 

because it corroborates other testimony.

13. Criminal Law: Evidence. The State is allowed to present a coherent 

picture of the facts of the crimes charged, and it may generally choose 

its evidence in so doing.

14. Evidence. Most, if not all, evidence offered by a party is calculated to 

be prejudicial to the opposing party.

15. Jury Instructions. In construing an individual jury instruction, the 

instruction should not be judged in artificial isolation but must be 

viewed in the context of the overall charge to the jury considered as 

a whole.

16. Evidence: Words and Phrases. Circumstantial evidence is not inherently less probative than direct evidence.

17. 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 surely 

would have been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the error.

18. 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; 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.

19. Criminal Law: Aiding and Abetting: Intent: Other Acts. One who 

intentionally aids and abets the commission of a crime may be responsible not only for the intended crime, if it is in fact committed, but also 

for other crimes which are committed as a natural and probable consequence of the intended criminal act.

20. Effectiveness of Counsel: Appeal and Error. 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.

21. ____: ____. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 
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issue of trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record.

22. ____: ____. Once issues of trial counsel’s ineffective performance are 

properly raised, the appellate court will determine whether the record 

on appeal is sufficient to review the merits of the ineffective performance claims.

23. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. In order to know whether the record is insufficient to address 

assertions on direct appeal that trial counsel was ineffective, appellate 

counsel must assign and argue deficiency with enough particularity (1) 

for an appellate court to make a determination of whether the claim can 

be decided upon the trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether 

the claim was brought before the appellate court.

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

of ineffective assistance of trial 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.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Michael J. Wilson, of Berry Law Firm, 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.

Per Curiam.

I. INTRODUCTION

Jason D. Devers appeals from convictions, pursuant to a jury 

verdict, for first degree felony murder and use of a firearm to 

commit a felony. We find no merit in his claims regarding the 

termination of a witness’ deposition, admission of controlled 

substance and firearm evidence, and sufficiency of the evidence to support his intentions to commit robbery and use a 
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firearm. Further, he asserts 13 claims of ineffective assistance 

of trial counsel, but the three that we reach on direct appeal 

lack merit. We affirm.

II. BACKGROUND

In the early morning hours of January 6, 2018, Kyle LeFlore 

was shot and killed outside of Reign Lounge, a bar and nightclub in Omaha, Nebraska. Following an investigation, Devers 

was arrested. The State filed an information charging him with 

first degree felony murder, 1 use of a deadly weapon to commit 

a felony, 2 and possession of a deadly weapon by a prohibited person. 3

Before delving into the proceedings, a brief summary of the 

surrounding events is necessary. In accordance with our standard of review, we synopsize them in the light most favorable 

to the State.

On the evening of January 5, 2018, Devers and Larry 

Goynes went to Reign Lounge. At some point during the 

evening, Devers told Goynes that he knew of a “lick” (target 

for robbery). Sometime past midnight, Devers and Goynes 

left and sat in Devers’ vehicle in the parking lot. Goynes 

received a message that LeFlore was leaving. Goynes got out 

of the vehicle, and Devers drove off. Goynes attempted to 

rob LeFlore, but LeFlore fought back. Goynes shot LeFlore 

and stole his jewelry. Later that morning, LeFlore died. 

After shooting LeFlore, Goynes ran down the street to where 

Devers had moved his vehicle and got in. Following an investigation, law enforcement authorities suspected Devers and 

Goynes of the murder. During several searches pursuant to 

warrants, the authorities found a firearm linked to Devers and 

Goynes and found controlled substances and ammunition in 

Devers’ home.

1 Neb. Rev. Stat. § 28-303(2) (Cum. Supp. 2018).

2 Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016).

3 Neb. Rev. Stat. § 28-1206(1)(a) and (3)(b) (Supp. 2017).
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1. Pretrial

(a) Motions in Limine

(i) Piya Milton’s 

Deposition

Prior to trial, Devers moved to take the deposition of Piya 

Milton, a witness for the State. The district court granted 

the motion and ordered that it take place on August 9, 2018. 

It entered a similar order in a companion case pertaining to 

Latiba Lemon.

At the deposition, with Devers’ counsel present, Milton 

refused to answer questions, claiming that her life would be 

in danger if she did. The court was asked to intervene. After 

Milton informed the court of her belief, the court ordered 

the deposition to be discontinued and appointed counsel for 

Milton. The court stated that after Milton received counsel, 

Devers would be free to file another motion to take Milton’s 

deposition. At that time, the State indicated that it would 

not object.

Instead of filing another motion to depose Milton, Devers 

filed a motion in limine asking the court to prohibit the State 

from calling Milton as a witness, based upon her refusal to 

cooperate at the deposition. The court’s order overruling the 

motion recounted the events and reiterated that Devers was free 

to file an additional motion to take Milton’s deposition. Devers 

did not do so.

(ii) Firearms and Controlled 

Substances

Devers filed a separate motion in limine to prohibit the 

introduction of several items of evidence, including “[a]ny 

evidence regarding firearms that were recovered and alleged 

to have been used in the homicide of . . . Le[F]lore [and a]ny 

evidence regarding [controlled substances] that were recovered from [Devers’] residence on January 6, 2018, pursuant to 

search warrant.”
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Cite as 306 Neb. 429

The district court overruled the motion in limine regarding the evidence related to a firearm, stating that it “[could 

not] make a pretrial ruling on it because it’ll depend on how 

the evidence comes in.” The State argued that the evidence 

regarding controlled substances found in Devers’ home was 

relevant to corroborate the testimony of a jailhouse informant. 

Regarding the controlled substances, the court took the matter 

under advisement.

(b) Motion to Dismiss

Devers filed a pro se motion to dismiss, alleging a violation 

of his rights to a speedy trial under Neb. Rev. Stat. §§ 29-1207 

and 29-1208 (Reissue 2016) and under the Sixth Amendment 

to the U.S. Constitution. The court overruled his motion. The 

court’s order discussed the respective claims.

Regarding the statutory claim, the court calculated that 

Devers’ motion for discovery, motion to take Milton’s deposition, and requested continuance resulted in 108 days of excludable time. This, the court explained, extended Devers’ trial 

date several months beyond the date on which he had filed his 

motion to dismiss. It noted that Devers’ motion for discovery 

alone, which excluded only 4 days, was sufficient to defeat his 

motion to dismiss.

As to the constitutional claim, the court applied the balancing test from State v. Johnson.

 4 It noted that Devers’ trial 

was scheduled to begin less than a year from the date of the 

offense. Devers’ counsel, the court explained, “has done anything any other criminal defense attorney would have done.” 

It reasoned that “if Devers’ counsel was not allowed the time 

to properly prepare for trial, Devers, in the event he was convicted, would [argue] later in a postconviction motion that he 

did not receive the effective assistance of counsel.” The court 

found that Devers had not shown unreasonable delay in bringing him to trial, or that he was prejudiced.

4 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
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Cite as 306 Neb. 429

2. Trial

(a) Reign Lounge Events

We now summarize the evidence presented at trial regarding 

the events of January 5 and 6, 2018, relevant to the assignments of error asserted on appeal.

(i) Milton

Prior to discussing the incident, Milton testified that she had 

been diagnosed with bipolar depression and, on the night of the 

incident, was on medication. We now summarize her testimony 

regarding the events that night.

On the evening of January 5, 2018, Milton drove herself and 

two friends to Reign Lounge. Around 10:15 p.m., they arrived. 

They left their jackets in Milton’s vehicle, and she gave her car 

keys to one of her friends.

At about 1 o’clock the following morning, Milton had an 

altercation with another woman. A security guard “pick[ed] 

[her] up and took [her] out” of the club. The guard refused to 

allow Milton to retrieve her car keys. She was then outside for 

15 to 20 minutes in below-zero temperatures without her jacket 

or keys.

While Milton was outside, she heard a man calling her name. 

The man got out of the passenger’s seat of a maroon sport utility vehicle (SUV), walked toward her, asked if she remembered 

him, and said he knew her child’s father. After Milton talked 

to the man, he invited her to warm up in his vehicle. Milton 

got into the vehicle and sat behind the passenger’s seat. She 

described the vehicle as “a maroon truck” that was a smaller 

SUV than her vehicle.

Once in the maroon SUV, the man sat in the passenger’s 

seat, and there was another man in the driver’s seat. The man 

in the passenger’s seat identified himself as “Ratchet.” She 

described Ratchet as “heavyset, low cut, brown skin.” Milton 

identified a picture of Goynes in evidence as depicting Ratchet. 

She described the driver as “a dark skin dude with a black coat 

on with braids, or dreads.” She identified the driver as Devers.
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After Goynes and Milton discussed why she had been 

kicked out of the club, he showed her a black gun. According 

to Milton, “[i]t was readily apparent that he was armed with 

a firearm” and “[h]e had it out the whole time.” Around 1:55 

a.m., Goynes received a call or text message; said, “‘Right 

now, right now’”; and jumped out of the maroon SUV. After 

Goynes jumped out, Devers drove away. At that point, Milton 

asked to leave the vehicle, and Devers said, “‘You can’t go out 

right now.’” Devers drove for a while and then parked by “a 

whole bunch of trees.”

Devers and Milton remained parked for about 20 minutes. 

While they were parked, Devers identified himself as “‘Little 

Pockets.’” Milton asked to be returned to Reign Lounge, 

and Devers stated, “‘We can’t go over there right now.’” 

After another 10 minutes, Milton saw Goynes running to the 

maroon SUV.

Once Goynes was in the vehicle, Devers asked, “‘What 

did you get?’” Goynes responded, “‘He really didn’t have 

nothing.’” Milton testified that “[Goynes] said that [LeFlore] 

wouldn’t give up nothing so [Goynes] had to shoot him.” 

Devers asked, “‘You didn’t get nothing?’” In response, Goynes 

held up “these little chains,” and Devers asked, “‘Can I get 

one?’” Devers took one of the chains and put it around his 

neck. Milton stated that she did not know which chain Devers 

took but that she knew one chain had a cross on it.

Devers then drove off, and Milton asked to be taken back 

to Reign Lounge. Devers responded, “‘No. I can’t go over 

there.’” Devers drove them to Lemon’s home and told Goynes 

to “go in there and hide something, take his clothes off and 

go take a bath, or something like that.” Devers further told 

Goynes, “‘I’ll get rid of something for you,’” but Milton was 

unsure what it was. Goynes got out of the vehicle and did not 

come back.

Devers then drove Milton back to Reign Lounge. While he 

dropped her off, she put his cell phone number in her own 

cell phone under the name “Pockets.” Due to police presence, 
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Milton was unable to retrieve her vehicle. Milton called 

Devers, and he picked up Milton and her friends. After Devers 

dropped off Milton’s friends at home, he drove Milton to his 

home to sell her marijuana and then drove her home.

Several days after the incident, Milton communicated with 

a family member of LeFlore’s. LeFlore’s family recorded the 

conversation. Five days after the events, a homicide detective 

interviewed Milton. Milton signed a consent form allowing the 

police to search her cell phone.

(ii) Marvin Stockdale

Marvin Stockdale, a jailhouse informant, testified about 

conversations he had with Devers in the Douglas County 

Correctional Center. Stockdale informed the jury that he was 

interviewed by law enforcement as a jailhouse informant in 

two cases, one of which pertained to Devers. At the time 

of trial, Stockdale was facing several charges and potential 

imprisonment of 73 years.

After becoming Stockdale’s cellmate, Devers discussed the 

incident with Stockdale. At or near the time of the conversation 

with Devers, Stockdale took notes. At trial, Stockdale’s notes 

were read verbatim to the jury. Here, we briefly summarize 

his testimony.

Devers told Stockdale that on the evening of the incident, 

he started out at a gas station selling “ecstasy pills” to some 

“girls.” The girls were heading to Reign Lounge, and Devers 

told them he would be there later. Devers went to Reign 

Lounge with Goynes. When Devers arrived at Reign Lounge, 

he found the girls from the gas station. He explained that “the 

Army dude” offered to buy the girls drinks and that the girls 

then started talking to “the Army dude.”

Devers said that he felt it was rude the girls stopped paying attention to him and that he went looking for Goynes. 

Devers found Goynes and told Goynes that “he had a lick for 

him.” Stockdale explained that a “lick” means a target for robbery. Goynes asked, “‘Where?’” Devers pointed to “the Army 
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dude,” who, Devers said, had a “big wad of cash.” Devers 

told Goynes that he did not care about the money and that he 

just wanted “the Army dude[’s]” jewelry. Devers said, “‘I just 

didn’t think my little cousin stupid ass would kill him. . . . I 

told him to shoot if he act up, but damn.’”

Devers then jumped forward in the story and said that he 

picked up Goynes “on the corner.” Devers stated that he was in 

the driver’s seat and that Milton was in the back seat. Devers 

explained that Milton got into his vehicle because it was cold 

outside. Stockdale testified that he did not know Milton and 

had never had a conversation with her.

(iii) Michael Sullivan

Michael Sullivan, another jailhouse informant, testified 

regarding conversations he had with Devers in the Douglas 

County Correctional Center. Sullivan explained that he did not 

prod for information; rather, Devers just kept talking. Sullivan 

also took notes of these conversations.

After a month of their being in jail together, Devers told 

Sullivan about his charges. Sullivan said, “‘They must think 

you’re the shooter.’” Devers responded, “‘No. I was the driver.’”

A few weeks later, after Devers returned from a meeting 

with his counsel, he and Sullivan discussed Devers’ case again. 

Devers stated that he was going to trial and that the main witness was his “brother’s baby’s mom,” because she overheard 

him talking about a “lick.” Sullivan testified that he understood 

a “lick” to mean a robbery of a drug dealer.

During their last conversation, Devers told Sullivan, “‘I was 

selling “X” at the club. I was walking around with baggies in 

my hand. I think they got me on camera. I’m pretty sure they 

did. They got me on camera, so they got me.’”

(b) Search of Devers’ Home

At trial, evidence was presented regarding controlled substances found during a search of Devers’ home. We summarize 

that evidence.
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Cite as 306 Neb. 429

(i) Aaron Hanson

Aaron Hanson, a sergeant of the Omaha Police Department, 

testified about the search. Hanson obtained a search warrant 

for a North 40th Street residence in Omaha (Devers’ home). 

The warrant authorized law enforcement to search for firearms 

and narcotics.

On the evening of January 6, 2018, Hanson and other officers executed the search warrant. At that time, four individuals 

were at the home, including Kenvaughn Glass. Law enforcement did not find a firearm but found 9-mm and .22-caliber 

ammunition.

Before the State could present evidence of narcotics found 

during the search, Devers renewed his motion in limine. The 

district court overruled the renewed motion, granted Devers a 

continuing objection, and gave the following limiting instruction to the jury:

Members of the jury, this evidence of the seized controlled substance, marijuana, located at [Devers’ home] 

is received for the limited purpose of the potential or the 

possibility of corroborating the testimony of . . . Milton 

or a later witness . . . Stockdale. You must consider the 

evidence only for that limited purpose and no other.

Hanson testified that during the search, law enforcement 

found synthetic marijuana, methamphetamine, and drug packaging materials.

(ii) Jailhouse Informants

Stockdale stated that Devers discussed the search of his 

home. Devers stated that law enforcement found “some drugs.” 

Stockdale did not remember what kind of drugs Devers said 

were found.

Sullivan stated that Devers discussed the search. According 

to Sullivan, Devers stated that law enforcement found “K-2.” 

Sullivan explained that “K-2” is synthetic marijuana.
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(iii) Patricia Smith

Patricia Smith, the mother of Devers’ children, testified at 

trial. She testified that in January 2018, she lived at the same 

address as Devers’ home. At the time, Devers, who had his 

own set of keys, was staying at the house because Smith’s 

7-month-old child had been admitted to the hospital. Smith 

stated that she did not know that narcotics, firearms, or ammunition were in her home.

Smith additionally testified that Devers was a “family person who spen[t] a lot of time with . . . his family” and that 

Kenvaughn came over to her home often.

(c) Search at Benson Towers

At trial, the State also presented evidence regarding a firearm linked to the murder.

(i) Chae Glass

Chae Glass, a juvenile detention specialist at the Douglas 

County Youth Center, testified regarding a firearm that was 

found at Benson Towers. Chae was an adopted cousin of 

LeFlore’s and a maternal uncle to Kenvaughn and Shydale 

Glass. Devers is a paternal uncle to Kenvaughn and Shydale.

On January 6, 2018, Shydale established contact with Chae. 

Chae picked up Shydale and drove him to Chae’s sister’s 

home. On their way, Shydale told Chae to stop and pick up 

Kenvaughn.

While in his sister’s home, Chae saw Kenvaughn and Shydale 

in the bathroom wiping down a firearm with a T-shirt. Chae 

described the firearm as a chrome and black handgun. After 

the bathroom observation, Chae did not see either Shydale or 

Kenvaughn with the firearm. But he stated, “[T]here was a 

lot of, you know, interchanging going on under the shirt, you 

know what I’m saying, hiding it.”

Chae then drove Kenvaughn and Shydale to Benson Towers. 

Once at Benson Towers, Chae dropped off Kenvaughn and 

Shydale and drove a couple of blocks away to make a call 
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to the 911 emergency dispatch service. Chae instructed the 

police to pull him over.

(ii) Hanson

Hanson testified about a search of an apartment at Benson 

Towers that led to the seizure of a firearm linked to the murder.

On January 6, 2018, at the end of Hanson’s shift, he 

received information that led him to Benson Towers. Hanson 

became aware that Kenvaughn and Devers were related. 

Hanson began looking for a familial connection to Kenvaughn 

at Benson Towers. Based upon information from other officers, 

Hanson found that Kenvaughn was related to Wendy Williams, 

a Benson Towers resident.

The next morning, Hanson and other officers went to 

Williams’ apartment in Benson Towers for a “knock and talk,” 

and at the apartment, Williams’ roommate answered the door 

and allowed law enforcement to enter. Shanequa Dismuke 

was also present. During the “knock and talk,” Hanson found 

unlawful items and another officer drafted a search warrant affidavit.

Law enforcement received a warrant and was allowed to 

search for narcotics and firearms. During the search, law 

enforcement personnel found and opened a safe. Hanson testified that they found two 9-mm firearms and multiple packages 

of marijuana.

At trial, after Hanson disclosed the contents of the safe, a 

sidebar was held and the court explained that the testimony 

must be limited to the firearm that was found wrapped in a 

T-shirt. Devers renewed his motion in limine and requested 

a continuing objection. The court granted the continuing 

objection.

Hanson clarified that one of the 9-mm firearms belonged to 

Dismuke and that the other was found wrapped in a T-shirt. 

He confirmed that the 9-mm ammunition seized from Devers’ 

home could be fired by the T-shirt-wrapped firearm found at 

Benson Towers.
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3. Final Jury 

Instructions

The final jury instructions contained a specific instruction 

regarding the evidence of controlled substances found during 

the search of Devers’ home: “The evidence of the seized controlled substances located at [Devers’ home] was received for 

the limited purpose of the potential or the possibility of corroborating the testimony of . . . Milton, . . . Stockdale, and . . . 

Sullivan. You must consider this evidence only for that limited 

purpose, and no other.”

4. Verdict and 

Sentences

The jury found Devers not guilty of possession of a deadly 

weapon by a prohibited person. The jury found him guilty of 

first degree felony murder and use of a deadly weapon to commit a felony. The district court sentenced Devers to life imprisonment for first degree murder and 5 to 5 years’ imprisonment 

for use of a deadly weapon. The sentences imposed were to 

run consecutively.

Devers filed a timely appeal, in which he is represented by 

different counsel than at trial.

III. ASSIGNMENTS OF ERROR

Devers assigns, reordered and restated, that the district court 

(1) abused its discretion when it terminated the deposition of 

Milton and overruled his motion in limine to exclude Milton’s 

testimony and (2) erred in admitting irrelevant and unfairly 

prejudicial testimony regarding (a) the controlled substances 

found during a search of his home and (b) the firearm found 

at Benson Towers. He also assigns that (3) the evidence was 

insufficient to convict him of first degree felony murder and 

use of a deadly weapon, because a trier of fact could not find 

(a) that Devers knew in advance that Goynes intended to rob 

LeFlore and (b) that Devers knew in advance that Goynes 

intended to use a firearm.
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In compliance with our decision in State v. Mrza,

 5 Devers 

assigned 13 claims of ineffective assistance of trial counsel. 

Twelve claims asserted trial counsel performed deficiently by 

failing to

•“object to the trial court’s erroneous limiting instruction 

regarding the drug testimony by Hanson”;

•“submit evidence in support of [Devers’ pro se] motion [to 

dismiss on constitutional speedy trial grounds] and . . . file 

an interlocutory appeal of the trial court’s order denying 

dismissal”;

•“present testimony from Corrections Officer Hall, who would 

have testified that Devers resisted having Stockdale as a 

cellmate because Devers knew Stockdale would use the cell 

assignment as an opportunity to fabricate incriminating statements by Devers”;

•“present testimony from Joequana Goynes, . . . Lemon, 

and Teosha Valentine, who would have testified that Milton 

admitted (1) that Devers did not knowingly aid in the robbery, (2) that prosecutors coached her testimony, and (3) 

that prosecutors threatened prosecution of Milton if she did 

not comply”;

•“present testimony from . . . Sullivan’s father, Michael 

Sullivan, Sr., who would have testified that Sullivan admitted to him that he lied to police about his conversations with 

Devers, and that he received off-the-record promises of leniency in exchange for testifying”;

•“present testimony from Corey Finley, who would have testified that he observed Devers in the area of 25th and Fort 

Streets at the time of the shooting”;

•“present testimony from Emmanuel Jackson and Kaleena 

Johnson, who both would have testified that . . . Stockdale 

admitted that he lied to police about his conversations with 

Devers, and that he received off-the-record promises of leniency in exchange for testifying”;

5 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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•“investigate or present testimony from Kenvaughn and 

Shydale . . . , who both would have testified that the handgun 

seen in their possession by Chae . . . had no connection to 

Devers or Goynes, and that they were coerced into remaining silent”;

•“obtain or present the recording of Milton made by LeFlore’s 

family members on January 11, 2019”;

•“consult or call as a witness an expert in pharmacology who 

would have testified that, on both January 6, 2018 and at the 

time of trial, Milton’s prescriptions affected her ability to 

both accurately form and recall memories”;

•“consult with, or call as a witness, an independent telecommunications expert because he or she would have testified 

that the cell phone evidence did not support the State’s 

theory as to Devers’ and Milton’s movements on January 5-6, 

2019, but instead was either inconclusive or directly refuted 

Special Agent Kevin Hoyland’s testimony and demonstrative 

exhibit”; and

•“investigate and bring to the attention of the trial court and/or 

the jury the prosecutors’ use of malicious prosecution tactics 

against . . . Smith to coerce her testimony against Devers.”

The last claim asserted that trial counsel “not only . . . provided unreasonable advice that Devers should waive his right 

to testify, but . . . interfered with Devers’ freedom to decide 

whether to testify by telling Devers he must abide by [counsel’s] advice not to testify.”

IV. ANALYSIS

1. Deposition Sanctions

(a) Standard of Review

[1] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon 

will not be reversed in the absence of an abuse of discretion. 6

6 State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
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(b) Discussion

Devers argues that the district court abused its discretion 

when it terminated Milton’s deposition and denied Devers’ 

motion in limine to exclude her as a witness. He contends that 

there are no rules governing depositions that allow a party to 

bring the trial judge to terminate the deposition. He further 

contends that because Milton refused to testify at the deposition, the court abused its discretion in denying the motion 

in limine.

[2,3] Devers’ first argument—concerning the lack of discovery rules allowing a judge to terminate a deposition—was 

not raised to the district court. Appellate courts do not generally consider arguments and theories raised for the first time 

on appeal. 7 And, as noted by the State, when the district court 

terminated the deposition, Devers failed to object. Failure to 

make a timely objection waives the right to assert prejudicial 

error on appeal. 8 Because Devers failed to object to the termination of the deposition and did not raise the termination argument during his motion in limine hearing, we will not address 

this argument.

Regarding Devers’ second argument, the district court 

entered an order in compliance with its statutory powers. 

Pursuant to a criminal discovery statute, Devers filed a motion 

to take Milton’s deposition. 9 During the deposition, Milton 

refused to answer questions over concerns for her safety and 

the district court terminated the deposition. Under another 

criminal discovery statute, when a party fails to comply with 

criminal discovery procedures, including the statute authorizing 

depositions, “the court may” 10 either “[p]rohibit the party from 

calling a witness not disclosed or introducing in evidence the 

7 State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).

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

9 See Neb. Rev. Stat. § 29-1917 (Reissue 2016).

10 Neb. Rev. Stat. § 29-1919 (Reissue 2016).
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material not disclosed” 11 or “[e]nter such other order as it 

deems just under the circumstances.” 12 In the district court’s 

order, it specifically stated that “Devers [was] free to file an 

additional motion to take [Milton’s] deposition . . . .” Because 

the court’s order was entered in November 2018 and trial 

occurred in March 2019, significant time remained in which to 

depose Milton again. Under these circumstances, we agree with 

the district court that authorizing a second deposition was a 

sufficient remedy. Accordingly, the district court did not abuse 

its discretion in denying Devers’ motion in limine.

2. Relevancy and Unfair Prejudice

(a) Standard of Review

[4-6] 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. 13 A trial court’s determination of the relevancy and 

admissibility of evidence must be upheld in the absence of 

an abuse of discretion. 14 Balancing the probative value of 

evidence against the danger of unfair prejudice is within the 

discretion of the trial court. 15

(b) Discussion

Because both of Devers’ assignments asserting error in the 

admission of evidence are based on relevancy and unfair prejudice, we recall general applicable principles.

[7,8] Evidence that is irrelevant is inadmissible. 16 “Relevant 

evidence means evidence having any tendency to make the 

11 § 29-1919(3).

12 § 29-1919(4).

13 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

14 State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).

15 State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).

16 Neb. Rev. Stat. § 27-402 (Reissue 2016); State v. Brown, 302 Neb. 53, 921 

N.W.2d 804 (2019).
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existence of any fact that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” 17 Relevancy requires only that 

the probative value be something more than nothing. 18

[9-11] Under Neb. Rev. Stat. § 27-403 (Reissue 2016), 

relevant evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice. 19

Unfair prejudice means an undue tendency to suggest a decision based on an improper basis. 20 Unfair prejudice speaks 

to the capacity of some concededly relevant evidence to lure 

the fact finder into declaring guilt on a ground different from 

proof specific to the offense charged, commonly on an emotional basis. 21

(i) Controlled Substances

Devers makes two arguments concerning the admission of 

controlled substances seized from the search of his home. 

Neither is persuasive.

First, he argues that evidence of methamphetamine, synthetic marijuana, and packaging materials had little to no 

probative value. Second, he argues that the minimal probative 

value of the drug evidence was substantially outweighed by the 

danger that the jury believed him to be a “trafficker of dangerous narcotics.” 22 And, he asserts, the court’s attempt to cure the 

problem by means of a contemporaneous limiting instruction 

did not encompass all of the target evidence, and consequently, 

he “suffered the full prejudicial effects of this wrongly admitted evidence.” 23 We disagree.

17 Neb. Rev. Stat. § 27-401 (Reissue 2016).

18 State v. Brown, supra note 16.

19 Id.

20 Id.

21 Id.

22 Brief for appellant at 19.

23 Id. at 20.
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[12,13] Contrary to Devers’ first argument, the admission of 

the testimony regarding controlled substances was relevant to 

corroborate the testimony of Milton, Stockdale, and Sullivan. 

We have recognized that evidence may be relevant because it 

corroborates other testimony. 24 This follows from a broader 

principle: The State is allowed to present a coherent picture of 

the facts of the crimes charged, and it may generally choose its 

evidence in so doing. 25 Hanson testified that during the search 

of Devers’ home, law enforcement seized synthetic marijuana, 

methamphetamine, and packaging materials. Milton testified 

that on the night of the incident, she purchased marijuana from 

Devers. Stockdale testified that during his conversations with 

Devers, Devers stated that his house was searched and that 

drugs were found. And Devers told Sullivan that law enforcement seized “K-2” from Devers’ home. The evidence was 

relevant to corroborate the testimony of an eyewitness and jailhouse informants. In other words, the evidence had substantial 

probative value to corroborate both Milton’s testimony that she 

was with Devers the night of the incident and Devers’ statements to Stockdale and Sullivan about the incident.

[14,15] Nor was the evidence’s probative value substantially outweighed by unfair prejudice. Most, if not all, evidence offered by a party is calculated to be prejudicial to the 

opposing party. 26 But the court’s limiting instruction restricted 

the use of the evidence only to corroborate the testimony of 

Milton, Stockdale, and Sullivan. Although the court’s initial 

limiting instruction, given contemporaneously with Hanson’s 

testimony, referred only to evidence of “marijuana,” the court’s 

final jury instructions broadly encompassed the “evidence 

of seized controlled substances located at [Devers’ home].” 

In construing an individual jury instruction, the instruction 

should not be judged in artificial isolation but must be viewed 

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

25 Id.

26 State v. Thomas, supra note 15.
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in the context of the overall charge to the jury considered 

as a whole. 27 Here, the situation resembled that in another 

case where we said, “The district court’s limiting instruction 

restricted the jury’s use of the evidence and minimized the 

tendency to suggest a decision on an improper basis.” 28 Based 

on the limiting instructions, taken as whole, we cannot say 

that the district court abused its discretion in admitting the 

evidence of controlled substances.

(ii) Firearm

Devers makes two arguments concerning the admission of 

the firearm seized at Benson Towers. First, he argues that 

the firearm evidence had minimal probative value and was 

substantially outweighed by the danger of unfair prejudice, 

because “the State introduced little, if any, evidence establishing a direct connection between Devers and the handgun . . . 

at the Benson Towers.” 29 Second, he argues that the prosecutor 

elicited testimony from Hanson about “‘multiple packages of 

marijuana’” found in the safe that served only to confuse the 

issues and unfairly prejudice Devers. 30

To support the first argument, Devers relies upon State v. 

Sellers.

 31 There, the defendant argued that the district court 

should have admitted the evidence of a handgun seized during 

the search of the victim. After unsuccessful attempts to serve 

the victim with a subpoena, the victim was arrested. At the 

home where the arrest occurred, law enforcement conducted a 

search and seized several items, including firearms. The district 

court granted the State’s motion in limine to exclude admission 

of firearm evidence. On appeal, we reasoned that the probative value of the firearms seized at the arrest was minimal. 

27 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

28 See State v. Perrigo, 244 Neb. 990, 1001, 510 N.W.2d 304, 311 (1994).

29 Brief for appellant at 28.

30 Id.

31 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
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There was no proof linking the victim to the handgun, and law 

enforcement personnel testified that they could not place the 

handgun as having been in the victim’s possession. We concluded that the minimal probative value was outweighed by the 

danger of prejudice.

Here, however, the State relied upon circumstantial evidence 

to connect Devers to the firearm seized at Benson Towers. 

Milton stated that after the incident, Devers drove Goynes to 

Lemon’s house and that Devers told Goynes that Devers would 

get rid of something for Goynes. It was known that Devers 

spent a lot of time with family, including Kenvaughn. The next 

day, Chae picked up Kenvaughn and Shydale and took them 

to their mother’s home. Chae saw them wipe down a firearm 

with a T-shirt. Chae then drove Kenvaughn and Shydale to 

Benson Towers. Later that evening, Kenvaughn was at Devers’ 

home when law enforcement executed the search warrant. The 

following morning, law enforcement received a search warrant for an apartment with a family connection to Kenvaughn 

and Shydale. Law enforcement seized a handgun wrapped in a 

T-shirt. Milton described the handgun as black, Chae described 

the handgun as chrome and black, and Hanson stated that the 

ammunition found at Devers’ home could be fired by the handgun found at Benson Towers.

[16] Devers contends that the circumstantial nature of the 

firearm evidence had minimal probative value and therefore 

prejudiced him. Circumstantial evidence is not inherently 

less probative than direct evidence. 32 Unlike the situation 

in Sellers, the temporal proximity from the shooting to the 

seizure of the firearm increased the probative value of the circumstantial evidence. 33 And, here, the evidence of the firearm 

was relevant to the crimes charged. We cannot say that the 

circumstantial evidence of the firearm was substantially outweighed by the danger of unfair prejudice. Accordingly, the 

32 See State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020).

33 See State v. Sellers, supra note 31.
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district court did not abuse its discretion in admitting evidence 

of the firearm.

[17] Regarding Devers’ second argument, assuming without deciding that admission of the statement about “multiple 

packages of marijuana” seized in the safe with the firearm 

was error, we conclude the error was harmless. 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 surely would have 

been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to 

the error. 34 In the entirety of the trial, the challenged testimony 

represented only a single isolated statement. Here, the guilty 

verdicts were surely unattributable to this sole reference. Any 

error in admitting that evidence was harmless.

3. Sufficiency of Evidence

(a) Standard of Review

[18] In reviewing a criminal conviction for a sufficiency 

of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 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. 35

(b) Discussion

(i) Intent to Commit Robbery

Devers argues that the jury could not have found him guilty 

of first degree felony murder, because there was insufficient 

34 State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

35 State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).
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evidence to support that Devers “‘intended that the crime be 

committed[,] or [Devers] knew that the other person intended 

to commit the crime[,] or [Devers] expected the other person 

to commit the crime.’” 36 He contends that Milton’s testimony 

was not credible because a security guard did not identify 

Devers as the driver of the vehicle and that video surveillance footage inside Reign Lounge “did not confirm many 

of Stockdale’s claims.” 37 This, however, merely invites us to 

pass on credibility or reweigh the evidence. We decline to 

do so.

The evidence adduced at trial showed Devers knew Goynes 

intended to commit robbery. Because the testimony showed 

Devers turned Goynes on to the “lick,” refused to return to 

Reign Lounge while Goynes was gone, implicitly understood 

why Goynes left the vehicle, and waited for Goynes to return, 

there was sufficient evidence for the jury to find Devers 

intended, knew, or expected Goynes to commit the robbery. 

Viewed in the light most favorable to the prosecution, there 

was sufficient evidence for any rational trier of fact to find 

Devers guilty beyond a reasonable doubt.

(ii) Intent to Use 

Firearm

Devers argues that the jury could not have found him 

guilty of use of a firearm to commit a felony. He argues that 

Milton’s “evidence that Devers was present in the vehicle 

outside Reign Lounge such that he had an opportunity to 

know that Goynes both intended to rob LeFlore and intended 

to use a firearm to do so” 38 was insufficient to support his 

conviction.

The record shows sufficient evidence that Devers knew 

Goynes intended to use a firearm to commit the robbery. 

36 Brief for apellant at 38.

37 Id. at 39.

38 Id.
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Stockdale testified that Devers said, “‘I just didn’t think 

my little cousin stupid ass would kill him. . . . I told him to 

shoot if he act up, but damn.’” Milton agreed that when she 

was in the vehicle with Devers and Goynes, it was readily 

apparent that Goynes was armed with a firearm, and she testified that he “had it out the whole time.” This evidence alone 

is sufficient.

[19] Based on Nebraska’s aiding and abetting statute, 39 the 

State argues an alternative theory that the reasoning in State v. 

McClain,

 40 which in turn relies upon State v. Mantich, 41 applies 

here. In Mantich, we explained that “one who intentionally 

aids and abets the commission of a crime may be responsible 

not only for the intended crime, if it is in fact committed, but 

also for other crimes which are committed as a natural and 

probable consequence of the intended criminal act.” 42 There, 

we determined that using a firearm was a natural and probable consequence of kidnapping, robbing, and terrorizing the 

victim. And as an aider or abettor of the criminal acts, the 

defendant could properly be convicted of using a firearm to 

commit a felony “even if the jury believed that [the defendant] 

was unarmed.” 43

The same reasoning applies here. The record shows that 

the State prosecuted Devers as an aider and abettor. Devers 

intended to rob LeFlore, Goynes shot and robbed LeFlore, 

Devers aided Goynes by driving the vehicle, and LeFlore died 

of his wounds. Use of the firearm in the commission of the 

murder was a natural and probable consequence of the intended 

act of robbery. Considered in the light most favorable to the 

prosecution, the evidence was sufficient for any rational trier 

of fact to find Devers guilty.

39 See Neb. Rev. Stat. § 28-206 (Reissue 2016).

40 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

41 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).

42 Id. at 327, 543 N.W.2d at 193.

43 Id. at 328, 543 N.W.2d at 193.
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4. Ineffective Assistance of Counsel

(a) Standard of Review

[20] 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. 44

(b) Legal Framework

[21,22] When a defendant’s trial counsel is different from 

his or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from 

the record. 45 Once raised, the appellate court will determine 

whether the record on appeal is sufficient to review the merits 

of the ineffective performance claims. 46

[23,24] In order to know whether the record is insufficient 

to address assertions on direct appeal that trial counsel was 

ineffective, appellate counsel must assign and argue deficiency 

with enough particularity (1) for an appellate court to make a 

determination of whether the claim can be decided upon the 

trial record and (2) for a district court later reviewing a petition for postconviction relief to be able to recognize whether 

the claim was brought before the appellate court. 47 When a 

claim of ineffective assistance of trial 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. 48

44 State v. Lierman, supra note 13.

45 Id.

46 Id.

47 Id.

48 Id.
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(c) Discussion

(i) Limiting Instruction

Devers argues that trial counsel was ineffective for failing to object to the allegedly deficient limiting instruction 

that misdescribed the evidence of controlled substances. He 

contends that at trial, the district court limited the evidence to 

“marijuana,” but that Hanson’s testimony included evidence of 

synthetic marijuana, methamphetamine, and packing materials. 

The claim is sufficiently alleged, and the record is sufficient to 

review it.

Regarding the admission of evidence of controlled substances, the record shows that the district court gave two limiting instructions. While the original instruction restricted the 

jury to consider only the evidence of “marijuana” to corroborate witness testimony, the final jury instruction encompassed 

evidence of all controlled substances. As we previously determined, the limiting instructions, taken as a whole, removed any 

prejudice regarding the additional controlled substances. We 

conclude that this argument is without merit.

(ii) Motion to Dismiss

Devers argues that trial counsel erred in failing to present 

evidence that he asserted his constitutional right to a speedy 

trial early and often in communications with his counsel. 

Devers further argues that counsel was ineffective for failing 

to file an interlocutory appeal from the denial of his motion to 

dismiss. We agree with the State that this claim is sufficiently 

alleged and that the record is sufficient to review it.

Devers’ first argument addresses only a purported failure 

to present evidence on his constitutional speedy trial claim. 

The State argues that counsel was not ineffective for failing to produce evidence to support Devers’ motion, because 

Devers did not argue to the district court that he asserted 

his constitutional right early and often in communications 

with counsel. 49 Even if we assume that the State’s argument 

49 See Johnston v. Mahally, 348 F. Supp. 3d 417 (E.D. Pa. 2018).
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is incorrect, Devers was not prejudiced. The district court 

analyzed Devers’ constitutional speedy trial claim and found 

no unreasonable delay or prejudice. We agree and find that 

Devers’ trial counsel’s actions did not prejudice Devers; thus, 

his claim lacks merit.

Devers’ second argument also fails. As the U.S. Supreme 

Court has stated, “application of the principles articulated 

in [Cohen v. Beneficial Loan Corp. 50] and [Abney v. United 

States 51] to [constitutional] speedy trial claims compels the 

conclusion that such claims are not appealable before trial.” 52

Because denial of a motion to dismiss based upon a constitutional speedy trial claim is not a final, appealable order, 

Devers’ argument lacks merit.

(iii) Corrections Officer Hall

Devers argues trial counsel was ineffective for failing to 

present testimony from “Corrections Officer Hall,” who would 

have testified that “upon learning that Stockdale would be 

moved into [Devers’] cell, Devers became irate due to his 

belief . . . Stockdale would use the opportunity to fabricate 

incriminating statements by Devers in an effort to obtain 

leniency,” 53 and that Corrections Officer Hall informed Devers 

he would have to lock Devers down because Devers was so 

upset about Stockdale’s being moved into his cell. The claim is 

sufficiently alleged, and the record is sufficient to review part 

of the claim.

Devers’ argument that Corrections Officer Hall would testify 

that Devers believed that Stockdale would fabricate incriminating evidence is without merit. First, Corrections Officer 

50 Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 

1528 (1949).

51 Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 

(1977).

52 United States v. MacDonald, 435 U.S. 850, 861, 98 S. Ct. 1547, 56 L. Ed. 

2d 18 (1978).

53 Brief for appellant at 46.
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Hall would not be able to testify to Devers’ personal beliefs, 

pursuant to Neb. Rev. Stat. § 27-603 (Reissue 2016). And any 

statements that Devers made to Corrections Officer Hall would 

be inadmissible hearsay, pursuant to Neb. Rev. Stat. § 27-801 

(Reissue 2016). Accordingly, the claim is without merit.

The record is insufficient to address the claims concerning observations that Corrections Officer Hall made when 

Devers received the news that Stockdale would be his cellmate 

and concerning any statements Corrections Officer Hall made 

to Devers.

(iv) Remaining Claims

The State concedes that the remaining claims of ineffective 

assistance of counsel, not addressed above, are sufficiently 

alleged, but the record is insufficient to review them. We need 

not address them further.

V. CONCLUSION

We conclude that the district court did not err in overruling 

Devers’ motions in limine and did not err in admitting evidence 

of controlled substances from Devers’ home and evidence of 

the firearm seized at Benson Towers. We also conclude that the 

admission of a sole reference to “multiple packages of marijuana” was, at most, harmless error. Viewing the evidence in 

the light most favorable to the State, we further conclude that 

the evidence at trial supported Devers’ convictions. Finally, 

we conclude that the assignments of ineffective assistance of 

counsel that we reach on direct appeal lack merit. Accordingly, 

we affirm Devers’ convictions and sentences.

Affirmed.

Cassel, J., concurring.

In numerous decisions, this court has determined that an 

allegation of ineffective assistance of trial counsel, asserted 

by new appellate counsel, was not stated with sufficient specificity where it failed to allege the name of the witness who 

would have testified and the specific content of the witness’ 
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proposed testimony. 1 This naturally followed from this court’s 

holding that an appellant must make specific allegations of the 

conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective assistance 

claim on direct appeal. 2 As this court stated, “[g]eneral allegations . . . are insufficient . . . .” 3

But this court has not insisted upon a specification of the 

name of a purported expert witness, where the allegation of 

ineffective assistance of trial counsel asserts a failure to adduce 

expert testimony for a particular opinion or conclusion. 4 And 

here, perhaps because of our case law, the State conceded that 

allegations of ineffective assistance for failing to “consult or 

call as a witness an expert in pharmacology who would have 

testified that, on [the date of the events,] Milton’s prescriptions affected her ability to both accurately form and recall 

memories” 5 and failing to “consult with, or call as a witness, 

an independent telecommunications expert because he or she 

would have testified that the cell phone evidence did not support the State’s theory as to Devers’ and Milton’s movements 

on [the dates of the events]” 6 were “sufficiently alleged” 7 or 

“sufficiently stated.” 8

1 See, e.g., State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State v. 

Marks, 286 Neb. 166, 835 N.W.2d 656 (2013); State v. McGhee, 280 Neb. 

558, 787 N.W.2d 700 (2010); State v. Davlin, 277 Neb. 972, 766 N.W.2d 

370 (2009).

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

3 Id. at 770, 848 N.W.2d at 578.

4 See, State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017) (failure to 

retain unnamed expert witness to refute State’s DNA evidence not deemed 

insufficiently specific); State v. Filholm, supra note 2 (failure to consult 

and present testimony of unnamed DNA expert witness not deemed 

insufficiently specific).

5 Brief for appellant at 51.

6 Id. at 52.

7 Brief for appellee at 32.

8 Id.
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One might wonder whether an assignment of error on direct 

appeal regarding an unnamed expert is sufficiently specific. 

In posing this question, I emphasize that I am not criticizing 

appellate counsel here—either for the degree of specificity of 

Devers’ assignment or for the State’s concession.

Several principles are settled: A criminal defendant has the 

right to the effective assistance of appellate counsel in his 

or her first appeal as of right. 9 There is no federal or state 

constitutional right to an attorney in state postconviction proceedings. 10 When a defendant’s trial counsel is different from 

his or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from 

the record. 11

These principles collectively teach that where appellate 

counsel is different from trial counsel, the state and federal 

Constitutions provide a defendant only one opportunity for 

the assistance of counsel in framing allegations of ineffective 

assistance of trial counsel.

Might one then expect that appellate counsel should craft 

such allegations at least in accordance with the standard used 

to measure deficient performance? To show deficient performance, a defendant must show that counsel’s performance did 

not equal that of a lawyer with ordinary training and skill in 

criminal law. 12 Should it then follow that such ordinary training and skill includes evaluating the need for expert testimony 

and determining whether such testimony can be secured? And 

9 See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d 

552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. 

Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 

2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 

341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 

2d 811 (1963).

10 State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).

11 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).

12 State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
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if there is an expert witness who would testify to a specific 

proposition, might it demand that appellate counsel locate and 

name the expert?

This could mean that more time may be required to prepare 

and submit a brief on direct appeal where appellate counsel is 

different from trial counsel. But is this not merely a necessary 

consequence of an important principle: The need for finality in the criminal process requires that a defendant bring all 

claims for relief at the first opportunity. 13

In an appropriate case, this court should consider whether 

allegations of trial counsel’s deficient performance regarding a potential expert witness’ testimony are sufficient without naming the expert. The matter was not raised in the case 

decided today. If it is raised in the future, it deserves this 

court’s attention.

13 State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).