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State of Nebraska, appellee, v.

Dominick L. Dubray, appel

___ N.W.2d ___

Filed October 10, 2014. No. S-12-1171.

1. Trial: Photographs. The admission of photographs of a gruesome nature rests 

largely with the discretion of the trial court, which must determine their relevancy 

and weigh their probative value against their prejudicial effect.

2. Trial: Photographs: Appeal and Error. An appellate court reviews a trial 

court’s admission of photographs of a victim’s body for abuse of discretion.

3. Homicide: Photographs. If the State lays proper foundation, photographs that 

illustrate or make clear a controverted issue in a homicide case are admissible, 

even if gruesome.

4. ____: ____. In a homicide prosecution, a court may admit into evidence photographs of a victim for identification, to show the condition of the body or the 

nature and extent of wounds and injuries to it, and to establish malice or intent.

5. 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.

6. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A 

party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring 

a mistrial due to the misconduct.

7. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant has not 

preserved a claim of prosecutorial misconduct for direct appeal, an appellate 

court will review the record only for plain error.

8. Appeal and Error. An appellate court may find plain error on appeal when an 

error unasserted or uncomplained of at trial, but plainly evident from the record, 

prejudicially affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the judicial process. 

Generally, an appellate court will find plain error only when a miscarriage of 

justice would otherwise occur.

9. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to conduct 

criminal trials in a manner that provides the accused with a fair and impartial trial.

10. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial 

misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant’s right to a 

fair trial.

11. Trial: Prosecuting Attorneys: Appeal and Error. When considering a claim 

of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct. If it concludes that a prosecutor’s act were 

misconduct, it next considers whether the misconduct prejudiced the defendant’s 

right to a fair trial.

12. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does not mislead and unduly influence the jury is not misconduct.
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13. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct prejudices 

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

resulting conviction violates due process.

14. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial 

depends largely on the context of the trial as a whole.

15. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a 

prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, an 

appellate court considers 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.

16. Trial: Prosecuting Attorneys: Juries. Prosecutors are not to inflame the jurors’ 

prejudices or excite their passions against the accused. This rule includes intentionally eliciting testimony from witnesses for prejudicial effect.

17. ____: ____: ____. Prosecutors should not make statements or elicit testimony 

intended to focus the jury’s attention on the qualities and personal attributes of 

the victim. These facts lack any relevance to the criminal prosecution and have 

the potential to evoke jurors’ sympathy and outrage against the defendant.

18. Trial: Prosecuting Attorneys: Evidence. A prosecutor commits misconduct 

when he or she persists in attempting to introduce evidence that the court has 

ruled inadmissible. This prohibition precludes an artful examination that refers 

directly to the inadmissible evidence.

19. Prosecuting Attorneys. A prosecutor’s attributing deceptive motives to a 

defense counsel personally or to defense lawyers generally constitutes 

misconduct.

20. Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, he or she is permitted to present a spirited 

summation that a defense theory is illogical or unsupported by the evidence and 

to highlight the relative believability of witnesses for the State and the defense. 

These types of comments are distinguishable from attacking a defense counsel’s 

personal character or stating a personal opinion about the character of a defendant 

or witness.

21. Trial: Prosecuting Attorneys: Juries. A distinction exists between arguing that 

a defense strategy is intended to distract jurors from what the evidence shows, 

which is not misconduct, and arguing that a defense counsel is deceitful, which 

is misconduct.

22. Postconviction: Effectiveness of Counsel: Appeal and Error. A defendant who 

is represented by different counsel in his or her direct appeal must raise any 

known or apparent claims of the trial counsel’s ineffective assistance, or the claim 

will be procedurally barred in a later postconviction proceeding.

23. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance 

was deficient and that this deficient performance actually prejudiced his or 

her defense.
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24. Criminal Law: Effectiveness of Counsel. A defense counsel’s performance was 

deficient if it did not equal that of a lawyer with ordinary training and skill in 

criminal law.

25. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To 

show prejudice from a trial counsel’s alleged deficient performance, a defendant 

must demonstrate a reasonable probability that but for his or her trial counsel’s 

deficient performance, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome. An appellate court focuses on whether a trial counsel’s deficient performance renders the result of the trial unreliable or fundamentally unfair.

26. Effectiveness of Counsel: Proof. The two components of the ineffective assistance test, deficient performance and prejudice, may be addressed in either order. 

If it is more appropriate to dispose of an ineffective assistance claim due to the 

lack of sufficient prejudice, a court will follow that course.

27. Postconviction: Effectiveness of Counsel: Appeal and Error. When an appellate court reviews a claim of ineffective assistance of counsel in a postconviction 

proceeding, it often, but not always, presents a mixed question of law and fact.

28. Effectiveness of Counsel: Appeal and Error. For “mixed question” ineffective 

assistance claims, an appellate court reviews the lower court’s factual findings 

for clear error but independently determines whether those facts show counsel’s 

performance was deficient and prejudiced the defendant.

29. ____: ____. In reviewing claims of ineffective assistance on direct appeal, an 

appellate court is deciding only questions of law: Are the undisputed facts contained within the record 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?

30. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and 

Error. If an alleged ineffective assistance claim rests solely upon the interpretation of a statute or constitutional requirement, which claims present pure questions of law, an appellate court can decide the issue on direct appeal. Otherwise, 

it addresses ineffective assistance claims on direct appeal only if the record is 

sufficient to review these questions without an evidentiary hearing.

31. Confessions: Police Officers and Sheriffs: Due Process. Coercive police activity is a necessary predicate to the finding that a confession is not voluntary within 

the meaning of the Due Process Clause of the 14th Amendment.

32. Confessions: Due Process: Case Overruled. Nebraska’s requirement that a 

defendant’s incriminating statements to private citizens must be voluntary to be 

admissible is incorrect under established due process precedents, overruling State 

v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985), and State v. Kula, 260 Neb. 

183, 616 N.W.2d 313 (2000).

33. Criminal Law: Confessions: Rules of Evidence. A defendant should challenge 

incriminating statements allegedly procured through a private citizen’s coercion 

or duress under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).

34. Effectiveness of Counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant who claims ineffective assistance 

of counsel is not prejudiced by an alleged error that deprives the defendant of the 

chance to have a court make an error in his or her favor.
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35. Criminal Law: Intoxication: Intent: Jury Instructions. Under Nebraska 

common law, intoxication is not a justification or excuse for a crime, but it 

may be considered to negate specific intent. To submit this defense to the jury, 

however, the defendant must not have become intoxicated to commit the crime 

and, because of the intoxication, must have been rendered wholly deprived 

of reason.

36. Jury Instructions: Appeal and Error. Failure to object to a jury instruction 

after it has been submitted to counsel for review precludes raising an objection 

on appeal absent plain error indicative of a probable miscarriage of justice.

37. Homicide: Words and Phrases. Voluntary manslaughter is an intentional killing 

committed under extenuating circumstances that mitigate, but do not justify or 

excuse, the killing.

38. Homicide: Evidence. For a defense of sudden quarrel, Nebraska law requires 

an objective standard for determining whether the evidence shows a sufficient 

provocation that would cause a loss of self-control.

39. Homicide: Intoxication: Intent. Intoxication is not relevant in determining the 

reasonableness of a defendant’s response to a claimed provocation. Because the 

defendant has intentionally killed another person, an objective reasonable person 

test is the appropriate means of determining whether the law should recognize the 

circumstances as warranting a reduction from murder to manslaughter.

40. Homicide. The concept of manslaughter is a concession to the frailty of human 

nature, but it was not intended to excuse a defendant’s subjective personality flaws.

41. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. 

In determining whether a defense counsel’s failure to object to prosecutorial 

misconduct rendered the trial unreliable or unfair, an appellate court considers 

whether the defendant’s right to a fair trial was prejudiced because of the prosecutorial misconduct.

Appeal from the District Court for Box Butte County: Travi

P. O’Gorman, Judge. Affirm

James R. Mowbray and Sarah P. Newell, of Nebraska 

Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

Connolly,

I. SUMMARY

The State charged Dominick L. Dubray with two counts 

of first degree murder for killing Catalina Chavez and Mike 
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Loutzenhiser, and two related counts of use of a deadly 

weapon to commit a felony. The bizarre, bloody scene 

revealed that the victims died from multiple stab wounds. 

Dubray’s defense centered on his claims that the evidence 

showed he had killed the victims in self-defense or upon a 

sudden quarrel. A jury found Dubray guilty of all four counts. 

The court sentenced him to terms of life imprisonment for 

each of the murder convictions and to terms of 30 to 40 

years’ imprisonment for each of the use of a deadly weapon 

convictions, with all terms to be served consecutively. This is 

Dubray’s direct appeal.

Dubray assigns trial errors related to an evidentiary ruling, a jury instruction, prosecutorial misconduct, and his trial 

counsel’s performance. We conclude that his claims are either 

without merit or do not constitute reversible error. We affirm.

II. BACKGROUND

These murders occurred on Saturday morning, February 

11, 2012. Dubray and Chavez had lived together for 2 to 3 

years in Alliance, Nebraska, with their child and Chavez’ 

older child from a previous relationship. Chavez’ 16-yearold half brother, Matthew Loutzenhiser (Matthew), had also 

been living at their house since June 2011. Loutzenhiser, who 

lived in Scottsbluff, Nebraska, was Chavez’ stepfather and 

Matthew’s father.

On Friday, February 10, 2012, Loutzenhiser arrived in 

Alliance for a visit. Dubray worked that day from 5 a.m. to 1 

p.m. Matthew was scheduled to work that night, and Chavez 

asked Dubray’s mother to watch her two children overnight 

while the adults went out. Dubray went to a club with Chavez 

and Loutzenhiser around 8 p.m. They stayed there drinking 

alcoholic beverages until 1 a.m. and then went to Dubray’s 

aunt’s home and continued drinking with four other people 

until about 6 a.m. Loutzenhiser walked with Dubray and 

Chavez back to their nearby house. A business surveillance 

camera captured them walking back to the house around 

6 a.m.

Matthew fell asleep around 1 a.m. in his bedroom, located 

off of the living room. He testified that he heard yelling 
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through his closed door before 6 a.m. but that he ignored the 

yelling because he thought the adults were intoxicated.

According to Dubray’s cousin, Carlos Reza, Dubray called 

Reza at 6:49 a.m. Dubray said, “‘I love you, Bro. Take care of 

my daughter.’” He said that he was going to kill himself and 

that he had two dead bodies in the house. Reza immediately 

dressed and drove to Dubray’s house, which was about 5 minutes away. En route, he called another cousin, Marco Dubray 

(Marco), who also drove to Dubray’s house.

When Reza entered the house, he immediately saw 

Loutzenhiser’s motionless body lying against the living room 

couch with a lot of blood under him. Reza began screaming 

for Dubray and walked into his bedroom. He found Dubray, 

covered in blood, lying on the floor by his bed. The television was knocked over, the mattress was sideways, and 

clothes were all over the room. Dubray did not move initially, 

but he got up in response to Reza’s yelling and walked into 

the kitchen.

When Reza asked what happened, Dubray began crying 

and shaking his head. He told Reza that Chavez was going to 

leave him. At some point, Dubray said, “‘I can’t believe what 

I have done.’” Dubray told Reza that he had tried to kill himself because he did not want to go to prison. He showed Reza 

a stab wound to the left of his heart where he had tried to kill 

himself. Reza could also see a cut on Dubray’s neck and blood 

dripping on the back of his neck. Dubray picked up a clean 

knife and told Reza that he was going to kill himself, but he 

put the knife down on the kitchen table.

Marco arrived 5 or 10 minutes after Reza. When Marco 

entered, he saw Loutzenhiser’s body in the living room and 

Dubray and Reza standing by the kitchen table. When Marco 

asked what happened, Dubray responded, “‘I don’t know. I 

snapped. And I just [want to kill] myself.’”

Marco and Reza were asking aloud what they should do, 

and Dubray responded, “‘I just want to die. I don’t want to 

go to prison.’” At this point, Reza said that he was going to 

call Lonnie Little Hoop, who was Dubray’s and Reza’s uncle. 

But Dubray told Reza not to call Little Hoop. He then told 

Marco and Reza to both go outside. They told Dubray that 
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they loved him and went outside, intending to let him kill 

himself. While Marco and Reza were outside, they decided 

to seek help. They both said they went next door to ask 

Dubray’s father for help, but he was apparently unavailable. 

Reza then called Little Hoop. While waiting for Little Hoop, 

Reza said he heard Dubray screaming inside and believed that 

the screaming was coming from Dubray’s bedroom.

Little Hoop said that he received Reza’s call about 7:05 

a.m. and that he lived 3 to 4 minutes away. When he got there, 

Little Hoop and Reza entered the house and Little Hoop called 

for Dubray. Dubray was lying on the floor by his bed again, 

but this time with a knife in his back. When Little Hoop called 

him, Dubray pushed his upper body up and leaned against the 

bed. Dubray told Little Hoop the same thing that he had said 

to Marco and Reza, i.e., that he did not want to live anymore 

and did not want to go to jail. When Dubray lay back down, 

Little Hoop could see a body under him. Little Hoop told 

Dubray not to move until he got help and told Reza to call 

an ambulance.

Reza saw two patrol cars close by and ran over to the officers 

to request an ambulance. One of the officers was State Patrol 

Trooper Craig Kumpf, and the other one was Officer Matthew 

Shannon with the Alliance Police Department. Shannon 

requested an ambulance, and then the two officers entered the 

house. Shannon said he saw wounds to Loutzenhiser’s neck 

and shoulder and could not detect signs of life. Kumpf said 

Loutzenhiser’s neck was nearly severed. The officers followed 

a trail of blood through the kitchen to the bedroom. Dubray 

was still lying on the floor with a knife in his back. Shannon 

moved closer and saw a smaller, motionless female under his 

body. After finding the three bodies, the officers discovered 

Matthew in the closed bedroom off the living room and placed 

him in a patrol car.

The ambulance arrived at 7:22 a.m. Loutzenhiser, Chavez, 

and Dubray were all initially pronounced dead at the scene; 

the supervising emergency medical technician could not 

detect Dubray’s pulse, and there were no signs of breathing or 

response to stimulation. The emergency medical personnel then 

left the house. But while taking photographs, Shannon saw 
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Dubray move and heard him moan when Shannon called his 

name. Shannon called back the emergency medical personnel, 

who pulled Dubray from the area between the bed and the wall. 

There was a knife on the floor, and a knife impaled in the right 

side of Dubray’s back. While readying Dubray for a move, the 

bedsheet moved and they found another knife. When they got 

outside, they put Dubray in a gurney, and Dubray then pulled 

the knife out of his back and dropped it. He was taken to the 

emergency room at the county hospital.

Because the evidence of Dubray’s injuries is relevant to his 

defenses and ineffective assistance claims, we recount that 

evidence in detail. A trauma surgeon diagramed Dubray’s 17 

stab wounds or lacerations. Dubray had nine lacerations on 

his neck. The surgeon considered three of the stab wounds to 

his body to be potentially life threatening. During exploratory 

surgery, however, the surgeon determined that only the stab 

wound near Dubray’s heart was life threatening. He considered the other wounds, including the neck lacerations, to be 

superficial, meaning that they might require stitches or similar 

care, but not surgery. The surgeon saw no blackening under 

Dubray’s eyes or behind his ears that would have indicated a 

skull fracture, and a CAT scan revealed no trauma to his head. 

After stabilizing Dubray, the surgeon sent him to a hospital in 

Denver, Colorado, for surgical treatment of his chest wound. 

He was sedated for this trip and accompanied by his sister. 

She testified that she and other family members saw him in the 

intensive care unit about noon the next day and that Dubray 

was sitting up and talking.

While the police were interviewing Reza, he learned that 

Dubray had been transported to the Denver hospital. Reza went 

to the hospital with others the next morning to see Dubray. He 

said Dubray had two black eyes and a crooked nose. Dubray’s 

aunt, sister, and mother gave similar testimony about his 

appearance. Reza was shown a photograph of Dubray that 

the prosecutor said was taken 2 days after Reza saw him. But 

Reza denied that the depiction reflected Dubray’s appearance 

when he saw Dubray because it did not show his “fat lips” 

or black eyes. Reza said that when he saw Dubray, Dubray 

was sedated, his hands were secured to the bed, and he would 
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come in and out of consciousness. During this visit, Dubray 

told Reza that he had “fucked up.”

The pathologist who performed the forensic autopsies of 

Chavez’ and Loutzenhiser’s bodies found 22 stab wounds or 

cuts to Loutzenhiser’s body: three in his neck, five in his chest, 

four in his upper extremities, and 10 in his posterior neck and 

upper back. The pathologist explained that the depth of some 

wounds, which were deeper than the length of the knife blade, 

indicated the force with which the knife had been thrust into 

Loutzenhiser’s body. The pathologist found 19 stab wounds or 

cuts to Chavez’ body: 10 wounds to her neck, one to her chest, 

one to her abdomen, one to her shoulder, numerous wounds to 

her upper back and posterior neck, and defensive wounds to 

her hands.

At trial, the court instructed the jury on the elements of 

first degree murder and the lesser-included offenses of second degree murder and manslaughter. In addition, the court 

instructed the jury that it must find that Dubray did not act 

in self-defense. The jury returned a verdict of guilty for both 

counts of first degree murder and both counts of use of a 

weapon to commit a felony.

III. ASSIGNMENTS OF ERROR

Dubray’s nine assignments of error fall into three categories, with some factual overlap: trial court error, prosecutorial 

misconduct, and ineffective assistance of counsel. Regarding 

the trial court’s actions, Dubray assigns that under Neb. Evid. 

R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), the court 

erred in admitting cumulative, misleading, and gruesome photographs, despite their prejudicial effect. Relatedly, he assigns 

that his trial counsel was ineffective to the extent that he failed 

to object to the court’s admission of the photographs.

Regarding the State’s actions, Dubray assigns prosecutorial 

misconduct in the prosecutor’s closing argument and questioning of witnesses. He also assigns that his trial counsel was ineffective in failing to object to this alleged misconduct.

Regarding his trial attorney’s actions, Dubray assigns that 

in addition to failing to preserve the above trial errors, his 

attorney was ineffective as follows:
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(1) failing to move to suppress Dubray’s involuntary 

statements;

(2) failing to request a jury instruction on intoxication or 

to challenge the constitutionality of Neb. Rev. Stat. § 29-122 

(Cum. Supp. 2012);

(3) failing to object to the court’s jury instruction defining 

sudden quarrel;

(4) failing to call Megan Reza to testify that Chavez kept 

one of the knives used in the murder in her bedroom for selfprotection; and

(5) failing to subpoena Jonathan Stoeckle, an emergency 

room nurse, to testify about Dubray’s condition at a Denver 

hospital after the murders.

IV. ANALYSIS

1. Trial Court Did Not Err in A

Autopsy Photogra

(a) Additional Facts

The two law enforcement officers who were first summoned 

to the house testified about the scene and their observations of 

the victims’ bodies. During one of the officer’s testimony, the 

court admitted into evidence two photographs of the victims’ 

bodies at the scene. A different police officer testified about 

being present during the autopsies of the victims’ bodies. She 

explained in simple terms the wounds depicted in the nine 

photographs that the State offered through her testimony. Over 

Dubray’s rule 403 objections, the court admitted the photographs and allowed the State to publish eight of them after the 

officer testified that they accurately represented what she had 

seen and photographed.

Later, the pathologist who performed the autopsies testified in more detail about the wounds depicted in five of 

these photographs, including their depth and trajectory. During 

the pathologist’s testimony, the State withdrew two of the 

photographs that the court had admitted during the officer’s 

testimony, but submitted 12 additional autopsy photographs. 

Dubray’s attorney did not object to the State’s offer of these 12 

photographs. The court stated that all the admitted photographs 

could go to the jury.
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(b) Standard of Review

[1,2] The admission of photographs of a gruesome nature 

rests largely with the discretion of the trial court, which 

must determine their relevancy and weigh their probative 

value against their prejudicial effect.1 We review the court’s 

admission of photographs of the victims’ bodies for abuse 

of discretion.2

(c) Analysis

Dubray contends that many of these photographs were 

cumulative to other evidence and duplicative of photographs 

of the victims’ wounds that were taken from only slightly different angles. He contends that the court erred in allowing 

the photographs to go to the jury through both the officer and 

pathologist, which allowed the State to enhance their prejudicial nature.

[3,4] If the State lays proper foundation, photographs that 

illustrate or make clear a controverted issue in a homicide case 

are admissible, even if gruesome.3 In a homicide prosecution, 

a court may admit into evidence photographs of a victim for 

identification, to show the condition of the body or the nature 

and extent of wounds and injuries to it, and to establish malice 

or intent.4

Here, the prosecutor stated that he offered the photographs 

to rebut Dubray’s claim of self-defense, to show his intent 

and malice, to show the positioning and trajectory of the 

wounds, and to show the position of the bodies as they were 

found at the scene. Dubray does not contend that the photographs were irrelevant for these purposes. And they were not 

inadmissible just because crime scene photographs and other 

testimony established that Dubray had stabbed the victims 

multiple times.

[5] The crime scene photographs showed the position of 

the victims’ bodies as the officers found them. But they 

1 State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

2 State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).

3 Id.

4 Smith, supra note 1.
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did not depict the victims’ wounds, which was the primary 

purpose for presenting the autopsy photographs. 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.5 The photographs clearly helped the jurors understand the pathologist’s testimony and were highly probative 

of how the victims died and Dubray’s intent and malice in 

killing them. Given the many times that Dubray stabbed the 

victims, it is not surprising that the State submitted multiple 

photographs of their wounds—gruesome crimes produce gruesome photographs.6

We agree that the prosecutor could have provided foundation 

for admitting nine of the photographs without having the police 

officer verify their authenticity in addition to the pathologist. 

But rule 403 does not require the State to have a separate purpose for every photograph, and it requires a court to prohibit 

cumulative evidence only if it “substantially” outweighs the 

probative value of the evidence. Because the court admitted 

the photographs for a proper purpose, we do not believe that 

additional photographs of the same wounds were unfairly 

prejudicial to Dubray. We conclude the court did not abuse its 

discretion in admitting the exhibits.

2. Prosecutorial Miscond

Dubray contends that the prosecutor asked prejudicial questions of witnesses and made prejudicial comments during his 

closing argument. He admits that his counsel did not object to 

the statements, but contends that they constituted plain error.

(a) Additional Facts

During the State’s case in chief, the prosecutor asked 

Matthew, Chavez’ half brother, about his high school activities 

and school plans. The prosecutor also elicited testimony from 

the two responding officers about Matthew’s shocked reaction 

upon seeing his father’s body.

5 Abdulkadir, supra note 2.

6 State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on 

other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
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During Dubray’s cross-examination of Reza, Reza stated 

that when he visited Dubray in the Denver hospital the day 

after the murders, Dubray had black eyes, “fat lips,” and a 

crooked nose. During the State’s redirect examination, the 

prosecutor presented a photograph of Dubray to Reza. The 

prosecutor asked whether Reza had any reason to dispute his 

representation that the photograph was taken 2 days after Reza 

visited Dubray. After the court sustained Dubray’s objection 

to the prosecutor’s improper testimony, the prosecutor tried to 

ask the question another way: “[I]f I represented to you that it 

was taken two days after you visited with him, can you explain 

to us why he doesn’t have bruising under his eye?” The court 

again sustained Dubray’s objection to this questioning. The 

prosecutor then asked Reza whether Dubray was intubated 

when Reza visited him and whether Reza knew that this procedure could sometimes cause damage to patients. When Dubray 

objected again, the prosecutor moved on to a different line 

of questioning.

During the State’s initial closing argument, the prosecutor 

remarked on the victims’ attributes and lost future plans:

Now, I don’t — never knew [Chavez], I never knew 

[Loutzenhiser]. These are two beautiful human beings. 

They had love in their heart, they had goals, they had 

aspirations, they had children, they had all of those things 

in life that people could want. Nothing was perfect but 

is it ever for any of us? And to have their lives taken 

from them so savagely, so brutally at 22 years old. And 

[Loutzenhiser is] never going to his boy’s ball games. 

And [Chavez] to never see her kids again. “Take care 

of my baby.” That’s what you are supposed to be doing. 

That’s what she’s supposed to be doing. They were killed 

for no reason. He took their lives and the evidence shows 

that he did so brutally with premeditation.

Find him guilty of two counts of first degree murder 

and use of a weapon. The law requires it. And justice 

demands it. Thank you.

During Dubray’s closing argument, his attorney argued that 

because Dubray was shirtless when he was stabbed, the evidence suggested that Chavez or Loutzenhiser had attacked 
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him with a knife while he was getting ready for bed. He also 

argued that Matthew would not still be alive if Dubray had 

planned the murders and that Matthew was still alive because 

he was not the one who had attacked Dubray. He suggested 

that three intoxicated people had simply got into a sudden 

quarrel and events had turned tragic.

During the State’s rebuttal argument, the prosecutor 

responded to Dubray’s argument by stating that Dubray had 

asked the jury to engage in speculation for which no evidence existed:

I wish [Loutzenhiser] was here to tell us what happened. I wish [Chavez] was here to get up on the stand 

and say this is what happened in this case, this is the truth.

. . . .

. . . I’m not going to speculate what would’ve happened to Matt[hew] if he would’ve came out earlier . . . 

apparently [Loutzenhiser] got together with [Chavez] and 

there’s this grand conspiracy for these two much smaller 

people to attack [Dubray.] But he won’t say . . . that 

[Chavez] tried to cut his throat or stab him. He won’t say 

that [Loutzenhiser] tried to do it. Do you want to know 

why? Because [his] theory won’t hold up. That’s why he’s 

doing that. . . . He’s throwing it on the walls to see what 

sticks. . . .

. . . .

[Defense counsel is] up here speculating and he’s walking on the graves of these two people. And he wants to 

do it in an aw-shucks sort of manner. Now, I don’t want 

to really talk badly about these two people . . . but they 

probably attacked my client and deserved to die. That’s 

what he’s saying. . . .

. . . .

. . . I’m surprised [the defense attorney] didn’t say that 

[Matthew] was one of the third conspirators. But maybe 

that would be pushing it too far.

(b) Standard of Review

[6-8] A party who fails to make a timely motion for mistrial 

based on prosecutorial misconduct waives the right to assert 
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on appeal that the court erred in not declaring a mistrial due 

to the misconduct.7 When a defendant has not preserved a 

claim of prosecutorial misconduct for direct appeal, we will 

review the record only for plain error.8 An appellate court 

may find plain error on appeal when an error unasserted or 

uncomplained of at trial, but plainly evident from the record, 

prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, 

and fairness of the judicial process.9 Generally, we will find 

plain error only when a miscarriage of justice would otherwise occur.10

(c) Analysis

[9,10] Prosecutors are charged with the duty to conduct 

criminal trials in a manner that provides the accused with a 

fair and impartial trial.11 Because prosecutors are held to a high 

standard for a wide range of duties, the term “prosecutorial 

misconduct” cannot be neatly defined. Generally, prosecutorial 

misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may 

undermine a defendant’s right to a fair trial.12

[11,12] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute 

misconduct.13 A prosecutor’s conduct that does not mislead 

and unduly influence the jury is not misconduct.14 But if we 

conclude that a prosecutor’s act were misconduct, we next 

7 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

8 See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

9 Id.

10 See id.

11 See id.

12 See, U.S. v. Santos-Rivera, 726 F.3d 17 (1st Cir. 2013); 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). See, generally, 

Bennett L. Gershman, Prosecutorial Misconduct (2d ed. 2013).

13 See Watt, supra note 8.

14 Id.
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consider whether the misconduct prejudiced the defendant’s 

right to a fair trial.15

[13-15] Prosecutorial misconduct prejudices a defendant’s 

right to a fair trial when the misconduct so infected the trial 

that the resulting conviction violates due process.16 Whether 

prosecutorial misconduct is prejudicial depends largely on 

the context of the trial as a whole.17 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.18

(i) Questions to and About 

Witness Matthew

Dubray argues that the prosecutor improperly asked Matthew 

about the sports he played in high school and whether he 

planned to go to homecoming that night. Dubray also argues 

that the prosecutor asked irrelevant and prejudicial questions 

of officers about Matthew’s shocked reaction to seeing his 

father’s body when he came out of his bedroom.

[16,17] Prosecutors are not to inflame the jurors’ prejudices or excite their passions against the accused.19 This rule 

includes intentionally eliciting testimony from witnesses for 

prejudicial effect.20 Prosecutors should not make statements 

or elicit testimony intended to focus the jury’s attention on 

the qualities and personal attributes of the victim. These 

facts lack any relevance to the criminal prosecution and have 

15 See id.

16 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

17 State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).

18 See Watt, supra note 8.

19 See id.

20 Iromuanya, supra note 16.
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the potential to evoke jurors’ sympathy and outrage against 

the defendant.21

But the prosecutor did not violate these rules by questioning Matthew about his high school activities. These questions are distinguishable from the comments that we considered improper in State v. Iromuanya.

22 There, the prosecutor 

remarked about the victims’ personal achievements and lost 

future plans during his opening statement. But here, the prosecutor’s questions about Matthew’s activities were obviously 

intended to put a young witness at ease on the witness stand—

not to evoke the jurors’ sympathy for Matthew as an indirect 

victim of these crimes. And we reject Dubray’s argument 

that the prosecutor’s closing argument affected the innocuous 

nature of these questions. Because the jury would not have 

been misled or improperly influenced by these questions, they 

were not misconduct.

Regarding the prosecutor’s questions to officers about 

Matthew’s shocked reaction to seeing his father’s body, we 

agree with the State that this testimony was relevant to eliminate Matthew as a suspect in the jurors’ minds. The jurors 

heard testimony that officers handcuffed Matthew, put him 

in a patrol car, and took him to the station for questioning. So the questions were relevant to show that although 

the officers detained Matthew for questioning, he was not a 

suspect and had nothing to do with the killings. They were 

not misconduct.

(ii) Questions to Reza

Dubray also contends that while questioning Reza about 

Dubray’s appearance at the hospital, the prosecutor committed 

misconduct by persisting in an action that the court had ruled 

against. He argues that the prosecutor’s repeated comments 

about the photograph of Dubray bolstered his description of 

it to the jurors and undermined Reza’a testimony. Because 

the court did not admit the photograph, Dubray contends the 

21 Id.

22 Id.
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jury had no means of determining the truth of the prosecutor’s statements.

[18] A prosecutor commits misconduct when he or she 

persists in attempting to introduce evidence that the court has 

ruled inadmissible.23 This prohibition precludes an artful examination that refers directly to the inadmissible evidence.24 It is 

true that the court likely would have admitted the photograph if 

the prosecutor had called a witness to lay foundation for it. But 

the prosecutor could not do this himself. And the protections 

against the use of “inadmissible evidence would be of little 

benefit if the prosecutor were allowed, under the guise of ‘artful cross-examination,’ to tell the jury the substance of inadmissible evidence.”25 So we agree that the prosecutor’s persistence in questioning Reza about the unadmitted photograph and 

his suggestion that evidence outside the record existed to refute 

Reza’s testimony was misconduct.

But we conclude that the misconduct did not deprive Dubray 

of a fair trial. We agree that the point of the prosecutor’s reference to the unadmitted photograph was to rebut Reza’s testimony about Dubray’s appearance the day after the murders. 

But this was a minor scene in a long play, and three other witnesses for Dubray and the trauma surgeon testified about his 

appearance soon after the murders. So the prosecutor’s comments would not have misled or influenced the jurors about 

Dubray’s appearance, particularly when the court sustained 

Dubray’s objections to the photograph and the prosecutor’s 

statements. We conclude that this conduct did not rise to the 

level of plain error.

(iii) Prosecutor’s Closing Argument

We turn to Dubray’s argument that the prosecutor’s closing 

argument was prejudicial because it was intended to appeal 

to the jurors’ sympathies and prejudices and to disparage his 

23 See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).

24 See U.S. v. Hall, 989 F.2d 711 (4th Cir. 1993). See, also, Annot., 90 

A.L.R.3d 646 (1979).

25 Hall, supra note 24, 989 F.2d at 716.
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defense counsel. He first argues that in the State’s initial summation, the prosecutor’s remarks about the victims’ qualities 

and personal attributes were intended to inflame the jury’s passions against Dubray. The State does not dispute that the argument was improper, but it points out that the court instructed 

the jurors that they must not let sympathy or passion influence 

their verdict.

We conclude that the argument constituted misconduct. 

As we have explained, a victim’s qualities and personal attributes are irrelevant to the facts that the State must prove 

in a criminal prosecution and have the potential to distort 

the jurors’ reasoned consideration of the evidence by evoking their sympathy for the victim and corresponding outrage 

toward the defendant.26 Inflaming those passions appears to 

have been the prosecutor’s intent, and we strongly disapprove 

of such tactics.

Dubray also contends that during the State’s rebuttal argument, the prosecutor improperly “demoniz[ed] the arguments 

of defense counsel.”27 He argues that although the prosecutor’s 

rebuttal argument was not as egregious as the rebuttal argument in State v. Barfield,

28 the effect was the same. The State 

contends that these statements are distinguishable because the 

prosecutor was responding to defense counsel’s blaming the 

victims. The State does not argue that the remarks were proper 

but urges that the jury would have been able to filter out 

these statements.

In Barfield, the prosecutor characterized the defendant as a 

monster and strongly insinuated that all defense lawyers are 

liars. We disapproved of the prosecutor’s personal expression 

of the defendant’s culpability and especially found his remarks 

about defense lawyers as being liars to be a serious violation 

of the prosecutor’s duty to ensure a fair trial. We agreed 

with the 10th Circuit’s statement about attributing deceptive 

26 Iromuanya, supra note 16.

27 Brief for appellant at 87.

28 Barfield, supra note 12.
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motives to a defense counsel personally or to defense lawyers generally:

“[C]omments by prosecutors to the effect that a defense 

attorney’s job is to mislead the jury in order to garner an 

acquittal for his client is not only distasteful but borders 

on being unethical. . . . Such comments only serve to 

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

consequently, the public at large.”29

[19] We concluded that such comments are misconduct. 

We noted that the prosecutor had made numerous improper 

remarks and that the defense had no opportunity to respond 

to the prosecutor’s remarks about defense attorneys because 

they were made during rebuttal. We further stated that the 

evidence was not overwhelming and that the credibility of 

witnesses was a key factor: “[T]he implication that defense 

counsel was a liar, and by extension was willing to suborn 

perjury, was highly prejudicial when viewed in that context.”30

We concluded that the remarks were plain error and required 

a new trial.

[20] But when a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, he or she is permitted to 

present a spirited summation that a defense theory is illogical 

or unsupported by the evidence and to highlight the relative 

believability of witnesses for the State and the defense. These 

types of comments are a major purpose of summation, and they 

are distinguishable from attacking a defense counsel’s personal 

character or stating a personal opinion about the character of a 

defendant or witness.31

[21] So a distinction exists between arguing that a defense 

strategy is intended to distract jurors from what the evidence shows, which is not misconduct, and arguing that a 

defense counsel is deceitful, which is misconduct. Most of 

29 Id. at 514, 723 N.W.2d at 314, quoting U.S. v. Linn, 31 F.3d 987 (10th Cir. 

1994).

30 Id. at 516, 723 N.W.2d at 315.

31 See, e.g., U.S. v. Rivas, 493 F.3d 131 (3d Cir. 2007); U.S. v. Lore, 430 F.3d 

190 (3d Cir. 2005); U.S. v. Hartmann, 958 F.2d 774 (7th Cir. 1992).
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the prosecutor’s statements fell into the former category and 

were intended to rebut the defense argument that the evidence 

showed Dubray had killed the victims in self-defense or upon 

a sudden quarrel. They were not “foul blow[s].”32

But the prosecutor crossed the line when he characterized 

defense counsel as “walking on the graves of these two people” 

and arguing that the victims “deserved to die.” The latter statement was not a fair characterization of the defense theory, 

and the former statement amounted to a personal opinion that 

defense counsel was defiling the victims through misleading 

and deceptive arguments. The same is true of the prosecutor’s statement that he was surprised Dubray’s counsel had 

not attempted to cast Matthew as a third conspirator. These 

statements do not amount to calling defense attorneys liars. 

But they were directed at Dubray’s counsel personally—not at 

his arguments. So they were the type of remarks that “‘serve 

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

consequently, the public at large.’”33 They have no place in a 

courtroom and constitute misconduct.

Nonetheless, the prosecutor has dodged a reversal this time. 

On this record, we cannot conclude that these improper arguments deprived Dubray of a fair trial. Contrary to Dubray’s 

argument, we do not agree that prosecutorial misconduct 

permeated this trial. Moreover, in addition to the court’s 

admonition not to let sympathy or passion influence the jury’s 

verdict, the court also instructed the jury that the attorneys’ 

statements were not evidence. In another case, these general 

admonitions might be insufficient to counter the same misconduct. But the State correctly argues that evidence against 

Dubray was strong and that the credibility of witnesses was 

not at issue. The most damning evidence of Dubray’s guilt 

32 State v. Beeder, 270 Neb. 799, 805, 707 N.W.2d 790, 795 (2006), 

disapproved on other grounds, McCulloch, supra note 12, quoting Berger 

v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).

33 Barfield, supra note 12, 272 Neb. at 514, 723 N.W.2d at 314, quoting 

Linn, supra note 29.
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was his own statements to witnesses who had no reason to lie 

about them. We conclude that viewing the trial as a whole, the 

improper arguments did not deprive Dubray of a fair trial. We 

find no plain error.

3. Ineffective Assist

of Couns

[22] Because Dubray is represented by different counsel in 

his direct appeal, he must raise any known or apparent claims 

of his trial counsel’s ineffective assistance, or the claim will be 

procedurally barred in a later postconviction proceeding.34

[23,24] To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

35 the defendant 

must show that counsel’s performance was deficient and 

that this deficient performance actually prejudiced his or 

her defense.36 Counsel’s performance was deficient if it did 

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

criminal law.37

[25] To show prejudice from a trial counsel’s alleged deficient performance, a defendant must demonstrate a reasonable 

probability that but for his or her trial counsel’s deficient performance, the result of the proceeding would have been different.38 A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.39 We focus on whether 

a trial counsel’s deficient performance renders the result of the 

trial unreliable or fundamentally unfair.40

[26] The two components of the ineffective assistance test, 

deficient performance and prejudice, may be addressed in 

34 See Watt, supra note 8.

35 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

36 State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).

37 Iromuanya, supra note 16.

38 See State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).

39 State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013).

40 See id.
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either order.41 If it is more appropriate to dispose of an ineffective assistance claim due to the lack of sufficient prejudice, we 

follow that course.42

(a) Standard of Review

[27,28] When we review a claim of ineffective assistance 

of counsel in a postconviction proceeding, it often, but not 

always,43 presents a mixed question of law and fact.44 For 

“mixed question” ineffective assistance claims, we review the 

lower court’s factual findings for clear error but independently 

determine whether those facts show counsel’s performance was 

deficient and prejudiced the defendant.45

[29,30] But in reviewing claims of ineffective assistance 

on direct appeal, we are deciding only questions of law: 

Are the undisputed facts contained within the record 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?46 If the alleged ineffective assistance claim 

rests solely on the interpretation of a statute or constitutional 

requirement, which claims present pure questions of law, we 

can decide the issue on direct appeal. Otherwise, we address 

ineffective assistance claims on direct appeal only if the 

record is sufficient to review these questions without an evidentiary hearing.47

One of Dubray’s ineffective assistance claims rests solely on 

the meaning of a constitutional requirement to exclude involuntary statements from evidence. We turn to that claim first.

41 See Fox, supra note 38.

42 See Morgan, supra note 36.

43 See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

44 See State v. Robinson, 287 Neb. 799, 844 N.W.2d 312 (2014).

45 See State v. Fester, 287 Neb. 40, 840 N.W.2d 543 (2013).

46 See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Accord, U.S. 

v. Henry, 472 F.3d 910 (D.C. Cir. 2007); U.S. v. Angel, 355 F.3d 462 (6th 

Cir. 2004); U.S. v. Bender, 290 F.3d 1279 (11th Cir. 2002).

47 See Morgan, supra note 36.
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(b) Dubray Was Not Prejudiced by His Counsel’s 

Failure to Seek Suppression of His 

Incriminating Statements

Relying on State v. Kula,

48 Dubray contends that his trial 

counsel should have moved to suppress Dubray’s allegedly 

involuntary statements to persons who were not law enforcement officers. He contends that under Kula, an accused’s statement to private citizens—like statements to law enforcement 

officers—must be voluntary to be admissible at trial. But the 

State argues that Dubray’s position is inconsistent with the 

U.S. Supreme Court’s holding on this issue and our adoption 

of that holding in other cases. We agree.

In Colorado v. Connelly,

49 the U.S. Supreme Court held 

that coercive police activity is a necessary predicate to a 

court’s finding that a confession is not voluntary under the 

Due Process Clause. There, the defendant, who suffered from 

chronic schizophrenia, walked into a police station and confessed to a murder committed several months earlier. A state 

psychiatrist opined that he had confessed to the murder while 

experiencing “‘command hallucinations’” from the “‘voice of 

God,’” raising the issue whether his confession was voluntary.50 The state appellate court affirmed the suppression of the 

confession. The U.S. Supreme Court reversed because there 

was no evidence that the police officers had exploited a mental 

weakness with coercive tactics:

Absent police conduct causally related to the confession, 

there is simply no basis for concluding that any state 

actor has deprived a criminal defendant of due process of 

law. . . .

. . . [W]hile mental condition is surely relevant to 

an individual’s susceptibility to police coercion, mere 

examination of the confessant’s state of mind can never 

conclude the due process inquiry.

48 State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).

49 Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 

(1986).

50 Id., 479 U.S. at 161.
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Our “involuntary confession” jurisprudence is entirely 

consistent with the settled law requiring some sort of 

“state action” to support a claim of violation of the Due 

Process Clause . . . .51

[31] The Court specifically held that “coercive police activity is a necessary predicate to the finding that a confession is 

not ‘voluntary’ within the meaning of the Due Process Clause 

of the Fourteenth Amendment.”52 We have stated this holding 

in several cases.53

But in 1985, a year before the U.S. Supreme Court decided 

Connelly, we decided State v. Bodtke.

54 In Bodtke, we agreed 

with other state courts that an accused’s incriminating statement to a private citizen must be voluntary to be admissible: 

“On questioned voluntariness, an accused’s statement, whether 

an admission or a confession, made to private citizens, as 

well as to law enforcement personnel, must be voluntary as 

determined by a court for admissibility and as a fact ascertained by the jury.”55 We reasoned that the State’s “[u]se 

of an accused’s involuntary statement, whether admission or 

confession, offends due process and fundamental fairness in a 

criminal prosecution, because one acting with coercion, duress, 

or improper inducement transports his volition to another who 

acts in response to external compulsion, not internal choice.”56

Later, in State v. Phelps,

57 we cited a criminal law treatise 

that called into question our holding in Bodtke in light of the 

51 Id., 479 U.S. at 164-65.

52 Id., 479 U.S. at 167.

53 See, e.g., State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011); State 

v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010); State v. Garner, 260 

Neb. 41, 614 N.W.2d 319 (2000); State v. Ray, 241 Neb. 551, 489 N.W.2d 

558 (1992), abrogated on other grounds, State v. Rogers, 277 Neb. 37, 760 

N.W.2d 35 (2009).

54 State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985).

55 Id. at 513, 363 N.W.2d at 923.

56 Id. at 510, 363 N.W.2d at 922.

57 See State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992), citing 1 Wayne 

R. LaFave & Jerold H. Israel, Criminal Procedure § 6.2 n.77.2 (Supp. 

1991).
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Connelly decision. But we concluded that it was unnecessary 

for us to resolve whether the Bodtke rule was still viable in 

Nebraska because the defendant’s statements to private citizens 

were voluntarily made.

In Kula,

58 on which Dubray relies, we had previously 

reversed the defendant’s convictions, because of prosecutorial 

misconduct, and remanded the cause for a new trial. At the 

defendant’s retrial, a fellow inmate testified about incriminating statements that the defendant had made in prison after 

he was convicted in the first trial. The defendant requested a 

hearing to determine whether his statements were voluntary, 

but the court never ruled on the issue. On appeal, he assigned 

that the court erred in denying his request for a hearing. He 

claimed that his incriminating statements resulted from the 

State’s improper influence, i.e., the stress, anxiety, and coercive 

environment that he allegedly experienced because prosecutorial misconduct had caused his wrongful conviction. Relying 

on Bodtke, we held that the trial court erred in failing to make 

a preliminary determination whether the defendant’s statements 

were voluntary before admitting the inmate’s testimony about 

the content of his statements.

As noted, however, in several cases, we have recognized 

that the Due Process Clause of the U.S. Constitution does not 

exclude an involuntary statement unless coercive police activity was involved in obtaining it. Even the “most outrageous 

behavior by a private party seeking to secure evidence against 

a defendant does not make that evidence inadmissible under 

the Due Process Clause”59:

We think the Constitution rightly leaves this sort of 

inquiry to be resolved by state laws governing the admission of evidence and erects no standard of its own in this 

area. A statement rendered by one in the condition of 

respondent might be proved to be quite unreliable, but 

this is a matter to be governed by the evidentiary laws 

of the forum . . . and not the Due Process Clause of the 

58 Kula, supra note 48.

59 Connelly, supra note 49, 479 U.S. at 166.
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Fourteenth Amendment. “The aim of the requirement of 

due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of 

evidence, whether true or false.”60

We recognize that incriminating statements obtained through 

a private citizen’s coercion or duress raise an obvious concern 

about their reliability.61 But to date, the Supreme Court has 

interpreted the Due Process Clause to exclude only involuntary 

statements improperly obtained through the coercive conduct 

of state actors—not “‘presumptively false evidence’”62 that 

was not obtained through the coercion of any state actor. 

Moreover, a statement allegedly obtained solely by private 

citizens through coercion or duress could be challenged under 

rule 40363 as inadmissible because the danger of prejudice outweighs any probative value.64 Even if a court did not exclude 

the statement, the existence of coercion or duress in obtaining 

it would clearly present a jury question whether the statement 

was reliable evidence of the fact at issue.

[32,33] Here, Dubray does not contend that he made his 

incriminating statements in response to a private citizen’s 

coercion or duress. Most of his statements were not even made 

in response to a question. But we conclude that Nebraska’s 

requirement that a defendant’s incriminating statements to private citizens must be voluntary to be admissible is incorrect 

under established due process precedents. We have held that 

the due process protections of the Nebraska Constitution are 

coextensive with the protections afforded by the Due Process 

Clause of the U.S. Constitution.65 And, as stated, we have cited 

the Connelly holding in many cases. We therefore overrule 

60 Id., 479 U.S. at 167 (citations omitted).

61 See Phelps, supra note 57.

62 See Connelly, supra note 49, 479 U.S. at 167.

63 See § 27-403.

64 Compare Boren v. Sable, 887 F.2d 1032 (10th Cir. 1989).

65 See, Keller v. City of Fremont, 280 Neb. 788, 790 N.W.2d 711 (2010); 

State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
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Bodtke66 and Kula67 to the extent that they hold due process 

precludes the admission of a defendant’s involuntary statement 

to a private citizen. A defendant should challenge incriminating 

statements allegedly procured through a private citizen’s coercion or duress under rule 403.

It is true that we had not overruled Bodtke and Kula when 

Dubray was tried, and we will assume for this analysis that 

his trial counsel was deficient in failing to request a preliminary hearing on the voluntariness of Dubray’s statements. 

Even if this assumption were true, however, Dubray cannot 

show prejudice under Strickland because he is not entitled to 

the benefit of an incorrect ruling on due process requirements. 

The U.S. Supreme Court addressed this issue in Lockhart 

v. Fretwell.

68

In Fretwell, the petitioner in a federal habeas corpus action 

had been convicted of capital murder in state court and sentenced to death by a jury. The prosecutor had argued that the 

evidence established two aggravating factors. The petitioner 

claimed that his trial counsel was ineffective for failing to 

raise an Eighth Circuit case, decided 8 months before his trial, 

that would have rendered the aggravators invalid. Three years 

after the petitioner’s trial, the U.S. Supreme Court decided a 

case that resulted in the Eighth Circuit’s overruling its case 

which had invalidated the aggravators.69 The federal district 

court recognized that after the judgment was affirmed on 

appeal, the Eighth Circuit had overruled the case supporting 

the petitioner’s claim.70 But because the law was in effect at 

his trial, the district court concluded that trial counsel was 

ineffective in failing to raise it. The court concluded that the 

66 Bodtke, supra note 54.

67 Kula, supra note 48.

68 Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180 

(1993).

69 See Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991), reversed, Fretwell, 

supra note 68.

70 See Fretwell v. Lockhart, 739 F. Supp. 1334 (E.D. Ark. 1990), reversed, 

Fretwell, supra note 68.
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prejudice was obvious because without a valid aggravator, 

the petitioner would have been sentenced to life in prison. 

The Eighth Circuit affirmed, reasoning that the petitioner was 

entitled to the benefit of a decision that was still in effect at 

the time of his sentencing.

The U.S. Supreme Court disagreed and reversed. The Court 

emphasized that the prejudice component of the Strickland test 

is not simply a question of whether the outcome would have 

been different:

[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the 

proceeding was fundamentally unfair or unreliable, is 

defective. To set aside a conviction or sentence solely 

because the outcome would have been different but for 

counsel’s error may grant the defendant a windfall to 

which the law does not entitle him.71

[34] The Court rejected the petitioner’s reliance on the 

rule that ineffective assistance claims are not judged from 

hindsight. It explained that this rule applies under the deficient performance component of Strickland, not the prejudice 

component. It concluded that under Strickland, a defendant 

is not prejudiced by an error that deprives the defendant “‘of 

the chance to have the state court make an error in his [or 

her] favor.’”72

The U.S. Supreme Court has clarified that Fretwell did not 

modify or supplant the Strickland test for ineffective assistance.73 Instead, in Williams v. Taylor,

74 the Court classified 

Fretwell as one of the unusual situations “in which it would 

be unjust to characterize the likelihood of a different outcome 

as legitimate ‘prejudice.’”75 “[G]iven the overriding interest 

in fundamental fairness, the likelihood of a different outcome 

71 Fretwell, supra note 68, 506 U.S. at 369-70.

72 Id., 506 U.S. at 371.

73 See Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 

(2012).

74 Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 

(2000).

75 Id., 529 U.S. at 391-92.
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attributable to an incorrect interpretation of the law should be 

regarded as a potential ‘windfall’ to the defendant rather than 

the legitimate ‘prejudice’ contemplated by . . . Strickland.”76

But Fretwell does “not justify a departure from a straightforward application of Strickland when the ineffectiveness of 

counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.”77

Dubray’s claim clearly falls within Fretwell’s windfall circumstance. The only distinction between Fretwell and the 

history here is that we had not previously overruled Bodtke

and Kula before deciding his ineffective assistance claims. 

But that distinction is immaterial. The point under Fretwell is 

that the relief Dubray requests rests upon an incorrect judicial 

interpretation of constitutional law. Connelly has been the final 

word on this issue since 1986, and Bodtke and Kula are both 

incorrect under Connelly. So under Fretwell, Dubray asks for 

a windfall to which he is not entitled—an incorrect state court 

ruling on due process requirements. Because he cannot establish Strickland prejudice, his ineffective assistance claim is 

without merit.

(c) Dubray Was Not Prejudiced by His Counsel’s 

Failure to Request an Intoxication Instruction or 

Challenge the Constitutionality of § 29-122

Dubray contends that his trial counsel was ineffective in 

failing to (1) ask the court to instruct the jury that voluntary 

intoxication can negate specific intent of the charged crimes 

and (2) challenge the constitutionality of § 29-122. Dubray 

argues that this court has long recognized a defendant’s voluntary intoxication as a defense if it would negate the intent 

element of a specific intent crime. He recognizes that in 2011, 

the Legislature enacted § 29-122,78 which, in most circumstances, eliminates voluntary intoxication as a defense and 

precludes its consideration in determining the existence of a 

mens rea requirement:

76 Id., 529 U.S. at 392.

77 Id., 529 U.S. at 393 (emphasis in original).

78 See 2011 Neb. Laws, L.B. 100 (effective Aug. 27, 2011).
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A person who is intoxicated is criminally responsible 

for his or her conduct. Intoxication is not a defense to 

any criminal offense and shall not be taken into consideration in determining the existence of a mental state 

that is an element of the criminal offense unless the 

defendant proves, by clear and convincing evidence, that 

he or she did not (1) know that it was an intoxicating 

substance when he or she ingested, inhaled, injected, 

or absorbed the substance causing the intoxication or 

(2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.

(Emphasis supplied.)

But Dubray contends that his counsel should have challenged § 29-122 because its application violated his right to 

due process. Dubray argues that the preclusion of an intoxication defense relieved the State of its burden to prove his 

mental state beyond a reasonable doubt and shifted the burden to him to prove that his crimes were not premeditated. 

He recognizes that in 1996, the U.S. Supreme Court upheld 

a similar statute in Montana v. Egelhoff.

79 But he contends 

that the decision was limited by Justice Ginsburg’s reasoning 

in her concurring opinion because without her concurrence, 

the opinion would have split equally between the plurality and the dissent. He cites to the U.S. Supreme Court’s 

rule that “[w]hen a fragmented Court decides a case and no 

single rationale explaining the result enjoys the assent of five 

Justices, ‘the holding of the Court may be viewed as that 

position taken by those Members who concurred in the judgments on the narrowest grounds . . . .’”80 Dubray contends 

that § 29-122 is unconstitutional under the reasoning of the 

concurring opinion in Egelhoff because it limits the admissibility of relevant evidence instead of redefining the elements 

of the crime.

79 Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 2d 361 

(1996).

80 See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 

260 (1977).
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We decline to address the constitutionality of § 29-122 here 

because it is unnecessary to deciding this appeal.81 Even under 

the common-law rule that intoxication can be a defense in limited circumstances, we conclude that Dubray was not entitled 

to an intoxication instruction as a matter of law.

[35] Under Nebraska common law, intoxication is not a 

justification or excuse for a crime, but it may be considered 

to negate specific intent.82 To submit this defense to the jury, 

however, the defendant must not have become intoxicated 

to commit the crime and, because of the intoxication, must 

have been rendered wholly deprived of reason.83 The excessive intoxication must support a conclusion that the defendant 

lacked the specific intent to commit the charged crime.84 The 

evidence did not support that finding here.

Contrary to Dubray’s argument, there is no evidence in 

the record to show that his blood alcohol concentration was 

at least .221 of a gram. During the State’s examination of 

the trauma surgeon at the emergency room, the following 

exchange occurred:

[Prosecutor:] What was [Dubray’s] blood alcohol level 

in the tox screen that you did?

[Surgeon:] I don’t recall the number off hand but it 

would be in the chart.

[Prosecutor:] If I represent to you that your chart says 

it was a .221, would you have any reason to dispute that?

[Surgeon:] I wouldn’t dispute it, no.

But the prosecutor’s unsworn factual assertion was not 

evidence, absent a showing that the parties stipulated to this 

fact. And the surgeon’s statement that he could not dispute 

the prosecutor’s representation did not magically transform it 

into evidence. Dubray also points to evidence of the victims’ 

blood alcohol concentrations. But the pathologist testified 

81 See State v. Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005).

82 State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).

83 See id., citing Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951).

84 See, State v. Bevins, 187 Neb. 785, 194 N.W.2d 181 (1972); State v. 

Brown, 174 Neb. 393, 118 N.W.2d 332 (1962).
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that the higher concentrations found in the victims’ vitreous 

eye fluid was not necessarily more accurate, and no evidence 

suggested that Dubray’s concentration would have been comparable to the victims’ concentrations.

More important, the evidence shows that Dubray was not 

wholly deprived of reason immediately before or after the 

murders. As explained, Dubray, Chavez, and Loutzenhiser 

walked back to Dubray’s house around 6 a.m. No witness 

testified that Dubray was behaving unreasonably at his aunt’s 

house at this time. By 6:49 a.m., Dubray had killed Chavez 

and Loutzenhiser and called Reza to take care of his child. 

By the time Reza arrived a few minutes later, Dubray had 

also attempted suicide for the first time. But his concern for 

his daughter and his conduct after the murders showed he 

was contemplating how to respond to his imminent arrest. He 

specifically told Marco and Reza that he intended to kill himself to avoid prison, and he insisted that they not call Little 

Hoop so that he could carry out this plan. He was clearly 

reasoning and anticipating the consequences of the acts he had 

just committed.

Because the record shows that Dubray’s consumption of 

alcohol did not wholly deprive him of reason, he would not 

have been entitled to an intoxication instruction even under 

our common-law rules. So he cannot show prejudice from his 

counsel’s failure to seek an intoxication instruction or to challenge the constitutionality of § 29-122.

(d) Dubray Was Not Prejudiced by His Counsel’s 

Failure to Object to Jury Instruction 

Defining Sudden Quarrel

[36] Dubray’s trial counsel did not object to instruction 

No. 4, which included a definition of sudden quarrel. Failure 

to object to a jury instruction after it has been submitted to 

counsel for review precludes raising an objection on appeal 

absent plain error indicative of a probable miscarriage of 

justice.85 But Dubray claims that his trial counsel provided 

85 Abdulkadir, supra note 2.
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ineffective assistance in failing to object to the italicized language in the following definition:

A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to 

lose normal self[-]control. It does not necessarily mean 

an exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require 

a physical struggle or other combative corporal contact 

between the defendant and the victim. It is not the provocation alone that reduces the grade of the crime, but, 

rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection 

and obscure the reason so that the elements necessary 

to constitute murder are absent. The question is whether 

there existed reasonable and adequate provocation to 

excite one’s passion and obscure and disturb one’s power 

of reasoning to the extent that one acted rashly and 

from passion, without due deliberation and reflection, 

rather than from judgment. The test is an objective one. 

Qualities peculiar to the defendant which render him 

or her particularly excitable, such as intoxication, are 

not considered.

This instruction is consistent with our recent definitions 

of a sudden quarrel.86 But Dubray contends that his intoxication was relevant to whether he was capable of reflection and 

reasoning. He further argues that the instruction undermined 

his trial counsel’s argument that his intoxication prevented 

him from forming the requisite intent to kill. We reject these 

arguments. We have already determined that Dubray was not 

entitled to an intoxication instruction. Moreover, his trial counsel’s intoxication argument was not relevant to a sudden quarrel defense.

[37,38] Voluntary manslaughter is an intentional killing 

committed under extenuating circumstances that mitigate, but 

do not justify or excuse, the killing.87 Even apart from the 

86 See, e.g., id.; State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).

87 See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
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language that Dubray challenges, our consistent references to 

a “reasonable person” in defining a sudden quarrel shows that 

we require an objective standard for determining whether the 

evidence shows a sufficient provocation that would cause a 

loss of self-control. The reasonable person test is a reference to 

a hypothetical ordinary person.88

[39,40] Other courts agree with us that intoxication is not 

relevant in determining the reasonableness of a defendant’s 

response to a claimed provocation.89 Because the defendant 

has intentionally killed another person, an objective reasonable 

person test is the appropriate means of determining whether 

the law should recognize the circumstances as warranting a 

reduction from murder to manslaughter. The concept of manslaughter is a concession to the frailty of human nature, but it 

was not intended to excuse a defendant’s subjective personality flaws.90 We conclude that Dubray’s trial counsel was not 

ineffective for failing to object to the court’s definition of sudden quarrel.

(e) Dubray Was Not Prejudiced by His Counsel’s 

Failure to Object to Every Photograph 

of the Victims’ Bodies

Dubray argues that to the extent his trial counsel failed to 

preserve the issue of the court’s admission of photographs 

of the victims’ bodies, he provided ineffective assistance. As 

discussed, however, Dubray’s counsel did object to the admission of photographs during the police officer’s testimony. And 

we have concluded that the court did not abuse its discretion 

in admitting additional and similar photographs and that the 

additional photographs did not unfairly prejudice Dubray. So 

Dubray cannot show that he was prejudiced by his trial court’s 

failure to object to the court’s rulings.

88 See Black’s Law Dictionary 1457 (10th ed. 2014).

89 See, e.g., People v. Manriquez, 37 Cal. 4th 547, 123 P.3d 614, 36 Cal. 

Rptr. 3d 340 (2005); Commonwealth v. Garabedian, 399 Mass. 304, 503 

N.E.2d 1290 (1987); Bland v. State, 4 P.3d 702 (Okla. Crim. App. 2000); 

Com. v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981).

90 See Smith, supra note 87.
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(f) Dubray Was Not Prejudiced by His 

Counsel’s Failure to Object to the 

Prosecutor’s Closing Argument 

and Questioning of Witnesses

[41] Dubray argues that his trial counsel’s performance 

was deficient to the extent that he failed to preserve Dubray’s 

claims of prosecutorial misconduct by failing to object to the 

conduct. But in determining whether a defense counsel’s failure to object to prosecutorial misconduct rendered the trial 

unreliable or unfair, we consider whether the defendant’s right 

to a fair trial was prejudiced because of the prosecutorial 

misconduct.91 We have determined that Dubray’s claims of 

prosecutorial misconduct are without merit or that he was not 

deprived of a fair trial because of the prosecutor’s misconduct. 

So Dubray cannot show prejudice from his trial counsel’s failure to object to the conduct.

(g) The Record is Insufficient to Evaluate 

Trial Counsel’s Failure to Call 

Megan Reza as a Witness

Dubray contends that his trial counsel should have called 

Megan Reza, who was one of Dubray’s cousins, as a witness. 

He argues that Megan Reza was also a friend of Chavez and 

would have testified that Chavez kept a knife hidden under her 

mattress for protection. He contends that her testimony would 

have helped to negate the premeditation charge and support 

his theory of self-defense or sudden quarrel. We agree with the 

State that the claim requires an evaluation of trial strategy, for 

which the record is insufficient. We decline to address it on 

direct appeal.

(h) Dubray Was Not Prejudiced by His Counsel’s 

Failure to Subpoena an Out-of-State Witness

During the trial, the court sustained the State’s objection to 

admitting a deposition of Stoeckle, an emergency room nurse 

at the Denver hospital where Dubray was treated. Stoeckle had 

described Dubray’s injuries in a report. The court excluded 

91 See Iromuanya, supra note 16.
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the deposition because Dubray had not shown that Stockle 

was unavailable.

Dubray contends that his trial counsel’s performance was 

deficient in failing to subpoena Stoeckle to testify about his 

injuries. He argues that his trial counsel could have subpoenaed Stoeckle under Neb. Rev. Stat. § 29-1908 (Reissue 

2008). Dubray contends he was prejudiced by his counsel’s 

misunderstanding of the law because Stoeckle could have 

provided an unbiased account of Dubray’s condition—as 

distinguished from the descriptions provided by family members. He argues Stoeckle’s testimony would have rebutted 

the State’s evidence that all his wounds were self-inflicted 

or illusory.

The State disagrees that Dubray could have subpoenaed 

Stoeckle under § 29-1908. It argues that Dubray cannot show 

a reasonable probability that the outcome would have been 

different even if Stoeckle had testified. Because we agree 

that Dubray cannot show prejudice from not having Stoeckle 

testify, we do not address whether his counsel’s performance 

was deficient.

No offer of proof was made at trial about the substance of 

Stoeckle’s statements. But Dubray’s description of Stoeckle’s 

potential testimony shows that Stoeckle’s absence from the 

trial is insufficient to undermine confidence in its outcome. As 

stated, Dubray’s family members testified about his appearance at the hospital. Moreover, the trauma surgeon at the 

Nebraska emergency room testified to all of Dubray’s injuries. 

So Dubray has not shown the necessity of having another nonfamily member testify to his injuries. We conclude that this 

claim is without merit.

V. CONCLUSION

We conclude that the court did not err in admitting the 

autopsy photographs. We conclude that Dubray’s claims of 

prosecutorial misconduct are without merit or that he was not 

prejudiced by the misconduct. Accordingly, Dubray cannot 

show prejudice from his trial counsel’s failure to object to 
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these alleged trial errors. We conclude that his trial counsel 

was not ineffective for failing to seek suppression of his statements to private citizens. We conclude that under the common 

law, he was not entitled to an intoxication defense. We therefore do not address his challenges to § 29-122. We conclude 

that his ineffective assistance claims either fail or cannot be 

addressed on direct appeal. We affirm.

Affirmed

Miller-Lerman, J., concurring in the resu

I concur in the result, but respectfully disagree with the 

breadth of the majority opinion regarding the interplay between 

voluntariness of admissions and due process, specifically, the 

failure of the majority opinion to analyze Dubray’s hospital 

statement made to a private citizen. I disagree with the majority’s apparent conclusion that Dubray’s hospital statement, 

arguably coerced by State action but made to a private citizen, 

is not subject to a due process challenge.

Dubray claims that counsel was ineffective for failing to 

challenge certain of his statements on due process grounds. 

The statements were made in two contexts: at Dubray’s home 

and when Dubray was in the hospital. The set of statements 

at the home were made to private citizens before the police 

arrived. I agree with the majority that there was no coercion 

by the State or private person and that hence, no due process 

hearing was required.

However, Dubray also made a statement to Carlos Reza after 

Dubray was in custody, when Dubray was sedated in the hospital and restrained to the bed with “little white straps.” Dubray 

claims the hospital statement was involuntary, but the majority 

does not explain how this statement fits within its holding. 

Where the coercive circumstances are created by the State or 

where there is a private citizen acting in concert with the State, 

or as a state agent, statements to a private citizen should be 

considered for due process review.

However, whether or not the hospital statement would be 

subject to a due process voluntariness challenge, I note that 

the statement would be cumulative of the prior statements 
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not subject to such a challenge. Therefore, Dubray could 

not show prejudice from counsel’s purported failure to challenge the hospital statement. Thus, I agree with the majority 

that Dubray has not shown ineffective assistance of counsel 

regarding his various admissions.

Wright, J., joins in this concurrence

State of Nebraska on behalf of Connor H., a minor 

appellee, v. Blake G., appellee, and Amanda

now known as Amanda G., thir

defendant and appell

In re Change of Name of Connor 

through his next friend, Amand

Amanda G., appellant, v. Blake G., appel

___ N.W.2d ___

Filed October 10, 2014. Nos. S-13-995, S-13-1000.

1. Minors: Names: Appeal and Error. An appellate court reviews a trial court’s 

decision concerning a requested change in the surname of a minor de novo on the 

record and reaches a conclusion independent of the findings of the trial court.

2. Minors: Names. The question of whether the name of a minor child should be 

changed is determined by what is in the best interests of the child.

3. Minors: Names: Proof. The party seeking the change in surname has the burden 

of proving that the change in surname is in the child’s best interests.

4. Minors: Names. Substantial welfare is related to best interests, because a change 

in surname is in a child’s best interests only when the substantial welfare of the 

child requires the name to be changed.

5. ____: ____. In Nebraska, there is no preference for a surname—paternal or 

maternal—in name change cases; rather, the child’s best interests is the sole 

consideration.

6. ____: ____. Nonexclusive factors to consider in determining whether a change 

of surname is in a child’s best interests are (1) misconduct by one of the child’s 

parents; (2) a parent’s failure to support the child; (3) parental failure to maintain 

contact with the child; (4) the length of time that a surname has been used for 

or by the child; (5) whether the child’s surname is different from the surname 

of the child’s custodial parent; (6) a child’s reasonable preference for one of the 

surnames; (7) the effect of the change of the child’s surname on the preservation 

and development of the child’s relationship with each parent; (8) the degree of 

community respect associated with the child’s present surname and the proposed 

surname; (9) the difficulties, harassment, or embarrassment that the child may 

experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a family unit.