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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. CLAUSEN

Cite as 307 Neb. 968

State of Nebraska, appellee, v. 

Timothy J. Clausen, appellant.

___ N.W.2d ___

Filed December 11, 2020. No. S-20-109.

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

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

2. Trial: Evidence: Appeal and Error. A trial court’s determination of the 

relevancy and admissibility of evidence must be upheld in the absence 

of an abuse of discretion.

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

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

4. Appeal and Error. Although an appellate court ordinarily considers 

only those errors assigned and discussed in the briefs, the appellate court 

may, at its option, notice plain error.

5. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

6. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

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

question of law.

8. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

Nebraska Supreme Court Online Library

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

12/18/2020 12:08 AM CST
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9. Self-Incrimination: Juries: Rules of Evidence. Neb. Rev. Stat. 

§ 27-513(2) (Reissue 2016) makes it clear that courts must avoid having witnesses claim privilege in the presence of the jury whenever 

practicable.

10. Self-Incrimination. A witness may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.

11. Criminal Law: Witnesses: Testimony. When a defendant’s witness 

testifies about a criminal action which is central to the defendant’s guilt, 

but then refuses to answer the State’s questions challenging the witness’ 

assertion, the testimony may be stricken.

12. Verdicts: Juries: Appeal and Error. Harmless error review ultimately 

looks to the basis on which the trier of fact actually rested its verdict; 

the inquiry is not whether in a trial that occurred without the error a 

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

actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

13. Trial: Evidence: Appeal and Error. An appellate court reviews the trial 

court’s conclusions with regard to evidentiary foundation and witness 

qualification for an abuse of discretion.

14. ____: ____: ____. The admission or exclusion of evidence is a matter 

left largely to the sound discretion of the trial court, whose ruling will 

be upheld absent an abuse of discretion.

15. Appeal and Error. Plain error may be found on appeal when an error 

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

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

of the judicial process.

16. Trial. When there are outbursts of emotion in the courtroom, it is within 

the sound discretion of the trial court to deal with them in such a manner 

as to best preserve the judicial atmosphere and ensure a fair and impartial trial for the defendant.

17. Witnesses: Testimony. Striking the testimony of a witness is a drastic 

remedy, which is not to be lightly done.

18. Courts. Nebraska courts, through their inherent judicial power, have the 

authority to do all things reasonably necessary for the proper administration of justice.

19. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction is warranted by the 
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evidence, and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction.

20. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and, if taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

21. ____: ____. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.

22. Criminal Law: Rules of Evidence. The accused does not have an 

unfettered right to offer testimony that is incompetent, privileged, or 

otherwise inadmissible under standard rules of evidence.

23. Constitutional Law: Criminal Law: Trial. The right to present a 

defense is not unqualified and is subject to countervailing public interests such as preventing perjury and investigating criminal conduct.

24. Trial: Words and Phrases: Appeal and Error. Structural errors are 

errors so affecting the framework within which the trial proceeds that 

they demand automatic reversal.

25. ____: ____: ____. Structural errors are distinguished from trial errors, 

which generally occur during the presentation of the case to the jury, and 

which may therefore be quantitatively assessed in the context of other 

evidence presented in order to determine whether they were harmless 

beyond a reasonable doubt.

26. Sentences. When imposing a sentence, a sentencing judge should customarily consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past criminal 

record or record of law-abiding conduct, and (6) motivation for the 

offense, as well as (7) the nature of the offense and (8) the amount of 

violence involved in the commission of the crime.

27. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

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

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that 

his or her counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense.

29. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.
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30. ____: ____. To show prejudice in a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding 

would have been different.

31. ____: ____. The two prongs of the ineffective assistance of counsel test—deficient performance and prejudice—may be addressed in 

either order.

32. Constitutional Law: Criminal Law: Witnesses: Self-Incrimination: 

Depositions. Where a witness becomes unavailable due to his assertion 

of Fifth Amendment privilege, such witness’ prior deposition testimony 

is admissible as substantive evidence, given that the deposition had been 

taken in compliance with the law and in the course of the same criminal 

proceeding, and that the opposing party had adequate opportunity in the 

witness’ deposition to examine the witness with similar, if not exact, 

interest and motive on matters relative to the case.

33. Witnesses: Testimony: Self-Incrimination: Depositions. If a witness 

refuses to answer questions that are so closely related to the subject 

of the case that the entire testimony of the witness should be stricken, 

opposing counsel has been deprived of an adequate opportunity to 

examine the witness during the deposition.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

and Papik, JJ.

Cassel, J.

I. INTRODUCTION

Timothy J. Clausen appeals from sentences imposed pursuant to jury convictions related to a prison escape. Clausen primarily argues that rulings—striking his testimony for repeated 

misconduct and his witness’ testimony for refusing crossexamination, and excluding other evidence—prevented him 

from presenting a duress defense. Because his own actions, his 
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STATE v. CLAUSEN

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witness’ choice, and the inadmissibility of his other evidence 

fundamentally crippled his defense, his claims lack merit. 

Finding no reversible error or abuse of discretion, we affirm.

II. BACKGROUND

For Clausen’s role in a 2016 prison escape from the Lincoln 

Correctional Center in Lincoln, Nebraska, he was charged with 

three felonies: escape, theft by unlawful taking, and operating 

a motor vehicle to avoid arrest. Clausen and Armon Dixon 

escaped the facility by hiding in a prison laundry truck with 

the assistance of another inmate, Brandon Williams. After the 

escape, a law enforcement officer discovered the inmates in a 

Lincoln parking lot. Before the officer could apprehend them, 

the inmates stole a vehicle and fled. The officer recognized 

Clausen as the person driving the vehicle. Law enforcement 

pursued the stolen vehicle, but called off the pursuit after it 

was deemed unsafe. After the pursuit ended, two people witnessed Clausen crash the stolen vehicle into a parked vehicle, 

from which stolen vehicle the inmates ran on foot. In the following days, Clausen and Dixon were both arrested.

After Clausen was arrested, law enforcement officers interviewed him three times to ascertain how he and Dixon escaped. 

During each interview, the officers read Clausen his Miranda

rights, which he waived. Clausen admitted to escaping the 

facility and described the events surrounding his escape. 

During these interviews, Clausen did not claim to have escaped 

under duress.

After being deemed competent to stand trial by two separate 

medical professionals, Clausen pled not guilty and proceeded 

to a jury trial. Clausen intended to argue that he had escaped 

only because of duress from Dixon and that it had been Dixon, 

not Clausen, who had taken and driven the stolen vehicle during their escape.

Before trial, the State moved to exclude the testimony of 

Clausen’s two witnesses: Dixon and Bentley Buckner, Clausen’s 

cellmate in prison. During a deposition, Dixon admitted 
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to threatening and coercing Clausen during the planning and 

commission of the escape and to driving the escape vehicle. 

At trial, outside the presence of the jury, Dixon repeated his 

deposition testimony. However, because the State would not 

give him immunity for his testimony, Dixon invoked his Fifth 

Amendment privilege and refused to testify about a matter 

the court deemed sufficiently related to Clausen’s defense—

namely, how the men had obtained a cell phone and drugs they 

used during their escape. Consequently, the court sustained 

the State’s motion to exclude Dixon from testifying, reasoning 

that Nebraska law discourages a court from allowing a witness 

to invoke his Fifth Amendment privilege in the presence of 

the jury. Clausen did not request the court to partially strike 

Dixon’s testimony related to the subjects on which he invoked 

privilege and to allow him to continue to testify regarding 

other matters.

The State also moved to exclude Buckner from testifying 

that Clausen told Buckner that Dixon was threatening him, 

Buckner saw Dixon possess a knife while near Clausen over 

2 months before their escape, and Buckner believed Clausen’s 

escape was the result of duress based on Dixon’s power and 

authority in the prison system. The court ultimately sustained 

the State’s motion, determining that Buckner’s testimony 

would be inadmissible because it was based on hearsay, was 

too remote in time to aid Clausen’s duress defense, and was 

based on speculation about Clausen’s state of mind.

At trial, Clausen took the stand in his own defense. He did 

not call any other witnesses. However, before Clausen took the 

stand, he had an outburst in front of the jury where he asked 

the court to “let the jury know . . . why my . . . witnesses was 

denied . . . and why . . . my witnesses . . . is not allowed to 

come into court . . . and testify. . . . Why can’t Armon Dixon 

come testify . . . like I want him to[?]” After the jury was 

excused, the court warned Clausen that if he had another outburst while testifying, he would be waiving his right to testify 

and his testimony would be stricken. On cross-examination, 
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Cite as 307 Neb. 968

Clausen again became upset that Dixon and Buckner were not 

allowed to testify. Despite the court’s earlier warnings, he had 

another outburst.

During a recess, the court informed Clausen that because he 

had refused to subject himself to a complete cross-examination, 

he had forfeited his right to testify. After the recess, the court 

informed the jury that because of Clausen’s conduct it was 

to disregard Clausen’s testimony in its entirety and his testimony was stricken from the record. However, Clausen was 

allowed to remain in the courtroom for closing arguments. 

Despite defense counsel’s objection, the court refused to give a 

no-inference instruction based on Clausen’s right not to testify 

because, the court reasoned, Clausen did testify and his lack 

of testimony on the record was the result of his conduct rather 

than an invocation of his Fifth Amendment privilege.

The jury convicted Clausen of all three charges. Following 

an enhancement hearing, the court found Clausen to be a 

habitual criminal and sentenced him to a combined consecutive term of 80 to 140 years’ imprisonment—40 to 60 years’ 

imprisonment for escape, 20 to 40 years’ imprisonment for 

theft by unlawful taking, and 20 to 40 years’ imprisonment 

for operating a motor vehicle to avoid arrest. Although neither 

the oral pronouncement nor the written sentencing judgment 

contains any reference to credit for time served, we have not 

been directed to any facts in the record showing that any credit 

was due.

Although Clausen initially failed to file a direct appeal, his 

right to appeal was reinstated by postconviction relief. Clausen 

then filed a timely appeal, which we moved to our docket. 1

III. ASSIGNMENTS OF ERROR

Clausen assigns 14 errors in his appeal, which he consolidates into 6 overarching arguments. Clausen assigns, consolidated, that the district court erred by (1) excluding the 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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testimonies of Dixon and Buckner; (2) striking Clausen’s entire 

testimony and instructing the jury to disregard it; (3) failing 

to give a no-inference jury instruction; (4) depriving Clausen 

of his right to present a defense, thereby violating his constitutional rights and creating structural error; and (5) imposing 

excessive sentences.

Clausen also assigns that he received ineffective assistance 

of counsel because his trial counsel failed to (1) object to 

nonrelevant questioning of Dixon, (2) disclose Buckner as a 

witness in a timely manner, (3) offer out-of-court testimony of 

Dixon, (4) ensure Clausen received a proper mental evaluation, 

(5) subpoena the police officer who conducted a photographic 

lineup, (6) offer Clausen’s complete interview with investigators, (7) object or seek corrective instructions regarding 

the State’s improper opening statement commentary, (8) sufficiently cross-examine Williams, and (9) preserve Clausen’s 

motions to suppress for appeal.

IV. STANDARD OF REVIEW

[1-3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. 2 A trial court’s determination of the relevancy and 

admissibility of evidence must be upheld in the absence of an 

abuse of discretion. 3 Balancing the probative value of evidence 

against the danger of unfair prejudice is within the discretion 

of the trial court. 4

[4] Although an appellate court ordinarily considers only 

those errors assigned and discussed in the briefs, the appellate 

court may, at its option, notice plain error. 5

2 State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

3 Id.

4 Id.

5 State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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[5] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision. 6

[6] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. 7

[7,8] Whether a claim of ineffective assistance of counsel 

may be determined on direct appeal is a question of law. 8 In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. 9

V. ANALYSIS

1. Exclusion of Defense 

Witness Testimony

Clausen first argues that the trial court erred in prohibiting 

Clausen from calling Dixon and Buckner as witnesses at trial. 

They were his key witnesses regarding duress. Clausen did not 

call any other witnesses to establish that defense.

Because judicial discretion was involved in these rulings, we 

review them for an abuse of discretion. We address each witness separately, because the court assigned different reasons for 

the respective rulings.

(a) Dixon

The State filed a motion in limine seeking to bar Dixon from 

testifying. In addressing the State’s motion, the court held a 

hearing outside the jury’s presence where the State questioned 

Dixon about his planned testimony.

6 State v. Paez, 302 Neb. 676, 925 N.W.2d 75 (2019).

7 State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).

8 See id.

9 State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
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At the hearing, Dixon stated that he would be willing to 

“testify about what happened, and what went down . . . I ain’t 

got no problem with doing that.” However, Dixon invoked 

privilege when asked how he obtained the phone and drugs 

that contributed to the escape. The State argued that allowing Dixon to testify on behalf of Clausen and to invoke 

privilege on cross-examination would violate Neb. Rev. Stat. 

§ 27-513(2) (Reissue 2016). Clausen countered that Dixon 

would only invoke privilege on collateral matters and that 

because he was critical to Clausen’s defense, Dixon should be 

allowed to testify.

The court ruled that Dixon would not be allowed to testify. 

The court explained that Dixon’s refusal to answer questions 

on cross-examination regarding events so closely related to 

the commission of the crime in this case would force the court 

to strike Dixon’s entire testimony, because allowing Dixon to 

testify only for his testimony to be stricken when he invoked 

privilege would violate § 27-513(2). Clausen argues the court 

erred in its ruling.

[9] Section 27-513(2) makes it clear that courts must avoid 

having witnesses claim privilege in the presence of the jury 

whenever practicable. 10 The statutory subsection states: “In 

jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege 

without the knowledge of the jury.” 11 The purpose of that 

subsection is to prevent the jury from drawing an unfavorable 

inference from a witness’ assertion of a privilege. 12

Section 27-513(2) does not bar a witness from ever invoking privilege in front of a jury. 13 However, “‘“[a]bsent extraordinary circumstances, trial courts should exercise their discretion to forbid parties from calling witnesses who, when called, 

10 See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

11 § 27-513(2).

12 Draper, supra note 10.

13 See id.
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will only invoke a privilege.”’” 14 Therefore, the trial court 

must determine whether the witness intends to refuse to testify 

and decide whether it would be prejudicial to the opposing 

party for the witness to be called in front of the jury. 15 At the 

same time, the trial court may also consider whether the failure 

to call the witness, despite the refusal to testify, would unfairly 

prejudice the party calling the witness. 16

[10] In making its prejudice determination, the trial court 

must also consider the extent to which a witness’ potential 

testimony would be excluded by the witness invoking privilege. 17 It is well established that a witness may not testify 

voluntarily about a subject and then invoke the privilege 

against self-incrimination when questioned about the details. 18

The privilege is waived for the matters to which the witness 

testifies, and “the scope of the ‘waiver is determined by the 

scope of relevant cross-examination.’” 19 Therefore, if the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for 

that of other parties, and discloses his criminal connections, 

he is not permitted to stop, but must go on and make a full 

disclosure; where incriminating facts have been voluntarily 

revealed, the privilege cannot be invoked to avoid disclosure 

of the details. 20

Because a witness cannot use the protections of the Fifth 

Amendment to distort the facts by selecting a stopping place 

14 Id. at 789, 857 N.W.2d at 344 (quoting State v. Robinson, 271 Neb. 698, 

715 N.W.2d 531 (2006)).

15 See Draper, supra note 10.

16 See id.

17 See id.

18 See Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 

2d 424 (1999).

19 Id., 526 U.S. at 321 (quoting Brown v. United States, 356 U.S. 148, 78 S. 

Ct. 622, 2 L. Ed. 2d 589 (1958)).

20 See Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344 

(1951).
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for his or her testimony, either the witness must invoke privilege at the outset of the questioning regarding an incriminating 

subject or the court will strike the distorted testimony. 21 While 

this court has never addressed the extent to which a court that 

has a witness who has invoked privilege must strike his or her 

testimony, many courts embrace the approach taken in United 

States v. Cardillo.

 22 There, the court explained:

[Not] every refusal to answer by a witness, claiming his 

constitutional right against self-incrimination, requires 

the striking of his testimony or a part thereof. There 

would appear to be at least three categories to be considered. The first would be one in which the answer would 

have been so closely related to the commission of the 

crime that the entire testimony of the witness should be 

stricken. The second would be a situation in which the 

subject matter of the testimony was connected solely with 

one phase of the case in which event a partial striking 

might suffice. The third would involve collateral matters 

or cumulative testimony concerning credibility which 

would not require a direction to strike and which could be 

handled (in a jury case) by the judge’s charge if questions 

as to the weight to be ascribed to such testimony arose. 

As to the first and second categories suggested, whether 

all or a part of the testimony should be stricken, must 

depend upon the discretion of the trial judge exercised in 

the light of the particular circumstances. Unsatisfactory 

as such a generality is for a trial judge who is required 

to give instantaneous rulings on close questions and 

who does not enjoy the luxury of reflective appellate 

deliberation, any set of specific dogmas would be even 

more unworkable. 23

21 See, e.g., Mitchell, supra note 18.

22 United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963).

23 Id. at 613.
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While the witness invoking privilege in Cardillo was testifying on behalf of the State, courts have applied Cardillo in the 

inverse when a witness is testifying on behalf of a defendant. 24

Important public policy protects even the prosecution’s right 

to fair trials and the pursuit of truth, so that a similar principle 

should govern whether the recalcitrant witness was offered by 

the prosecution or by the defendant. 25 A witness may not say 

enough to exonerate the defendant without implicating himself, 

and the prosecutor is entitled to closely examine a witness to 

expose to the fact finder the witness’ falsification. 26

[11] We adopt the Cardillo approach. When a defendant’s 

witness testifies about a criminal action which is central to the 

defendant’s guilt, but then refuses to answer the State’s questions challenging the witness’ assertion, the testimony may be 

stricken. 27 Therefore, a Nebraska court determining whether 

to exclude a witness pursuant to § 27-513 must consider the 

interrelatedness between the topic invoking the witness’ Fifth 

Amendment protections and his or her cumulative testimony. If 

a court must strike the witness’ entire testimony, then clearly 

the witness must be excluded pursuant to § 27-513.

Here, Dixon would have testified to the inner workings of 

the escape, which is central to this case. Dixon wished to testify about how he planned the entire escape and forced Clausen 

to escape with him. However, he refused to allow the State 

to cross-examine the validity of his assertion that he planned 

the escape.

During Dixon’s deposition, Dixon admitted to selling drugs 

to raise money to purchase the phone that was used to 

coordinate the escape. He testified: “I sold a lot of drugs, 

24 See U.S. v. Crews, 856 F.3d 91 (D.C. Cir. 2017).

25 Lawson v. Murray, 837 F.2d 653 (4th Cir. 1988).

26 See id.

27 See, U.S. v. Davis, 690 F.3d 912 (8th Cir. 2012), cert. granted and 

judgment vacated on other grounds 570 U.S. 913, 133 S. Ct. 2852, 186 L. 

Ed. 2d 903 (2013); U.S. v. McKneely, 69 F.3d 1067 (10th Cir. 1995).
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man. I had a lot of guards in my pocket. I had a lot of inmates 

that would do whatever I told them to do[.]” Once he purchased the phone, he “made some calls, set up some stuff” 

regarding the escape. Dixon refused to answer the State’s 

questions when asked for the names of the guards and inmates 

who smuggled in the phone and drugs. The State was entitled 

to ask these questions to discover other witnesses who could 

refute the validity of Dixon’s statements. During the hearing 

at trial, Dixon again refused to answer the State’s questions 

about the phone and drugs.

Dixon’s testimony falls into the first Cardillo category. 

Dixon’s selling drugs to purchase the phone and then using 

it to plan the escape were closely related to the commission 

of the crime at issue—the escape. While this court respects 

Dixon’s interest in not incriminating himself, Dixon’s decision 

to invoke privilege and refuse to answer how he obtained the 

phone and drugs frustrated the State’s cross-examination and 

denied him the opportunity to testify on Clausen’s behalf.

The court did not abuse its discretion in barring Dixon from 

testifying, because Dixon’s testimony did not warrant being 

only partially stricken. Dixon’s refusal to answer questions on 

cross-examination was not connected solely with one phase 

of the case. Dixon claimed to have planned the entire escape 

and forced Clausen to escape with him. Testimony regarding 

who planned the escape and took preparatory actions was key 

to Clausen’s duress defense, saturating all phases of this case. 

Dixon could not invoke privilege without subjecting his entire 

testimony to being stricken. Under these circumstances, we 

cannot say that the court’s decision to strike all of Dixon’s testimony was clearly untenable.

[12] Even if we assume that Dixon’s testimony would have 

been regarding a collateral matter, the court’s error would have 

been harmless. 28 Harmless error review ultimately looks to 

28 See United States v. Lord, 711 F.2d 887 (9th Cir. 1983). See, also, U.S. v. 

Negrete-Gonzales, 966 F.2d 1277 (9th Cir. 1992).
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the basis on which the trier of fact actually rested its verdict; 

the inquiry is not whether in a trial that occurred without the 

error a guilty verdict would surely have been rendered, but, 

rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. 29 The court’s 

potential error was harmless, because Clausen could not prove 

a duress defense.

For a prisoner to utilize a duress defense based on threat of 

physical harm by another prisoner, the prisoner must report 

immediately to the proper authorities when he attains a position of safety from the threat. 30 In order for Clausen to have 

a duress defense, Clausen would have needed to turn himself 

back into custody after he separated from Dixon during the 

escape. Clausen instead remained in hiding until law enforcement discovered him in a house and arrested him, invalidating 

his duress defense. To the extent Dixon would have testified 

that he was the one driving the vehicle, the State offered evidence refuting this assertion.

(b) Buckner

The State sought to exclude Buckner’s testimony because 

Clausen did not disclose Buckner as a witness in a timely 

manner. The court ruled instead to exclude Buckner because 

his testimony was (1) based on inadmissible hearsay, (2) too 

remote in time to be admissible evidence for Clausen’s duress 

defense, and (3) based on speculation. Clausen assigns that the 

trial court erred in this order.

[13,14] An appellate court reviews the trial court’s conclusions with regard to evidentiary foundation and witness 

qualification for an abuse of discretion. 31 The admission or 

exclusion of evidence is a matter left largely to the sound 

29 State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).

30 State v. Reed, 205 Neb. 45, 286 N.W.2d 111 (1979).

31 State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
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discretion of the trial court, whose ruling will be upheld absent 

an abuse of discretion. 32

Buckner would have testified that Clausen told him that 

Dixon was threatening him and saying that he would kill his 

loved ones if Clausen did not help him escape. This testimony 

is hearsay because it is a statement made out of court by 

Clausen offered to prove that Dixon was in fact threatening 

Clausen. 33 Buckner’s hearsay testimony was inadmissible.

Additionally, Buckner would have testified that he saw 

Dixon threaten Clausen with a knife more than 2 months 

before the escape. A prisoner claiming he escaped under fear 

of impending death or serious bodily injury at the hands of 

another prisoner must prove that the injury was immediately 

impending. 34 Buckner’s testimony would have been inadmissible because the witnessed threat was too remote from the 

time of escape.

Finally, Buckner’s belief that Clausen escaped as the result 

of duress based on Dixon’s power and authority in the prison 

system is speculation. 35 Therefore, Buckner’s testimony was 

inadmissible at trial. We see no abuse of discretion in the 

court’s exclusion of Buckner’s testimony.

2. Exclusion of Clausen’s Testimony

Clausen next argues that the court erred in striking his entire 

testimony and instructing the jury to disregard it. Clausen did 

not object to the court’s actions at trial, failing to preserve 

this issue for appeal. 36 However, Clausen argues that the court 

committed plain error by not finding Clausen in contempt 

before sanctioning Clausen for his actions at trial and that 

32 State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986).

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

34 See Reed, supra note 30.

35 See, generally, Neb. Rev. Stat. § 27-701 (Reissue 2016).

36 See State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
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the court should have imposed an alternative penalty instead 

of a complete strike of his testimony.

[15] Under most circumstances, we require a party to object 

to a perceived error by a trial court in order to preserve that 

issue for appeal. 37 Conversely, plain error may be found on 

appeal when an error is unasserted or uncomplained of at trial, 

but plainly evident from the record, prejudicially affects a 

litigant’s substantial right and, if uncorrected, would result in 

damage to the integrity, reputation, and fairness of the judicial process. 38

The U.S. Supreme Court in Illinois v. Allen 39 articulated 

three principles regarding courtroom decorum. It is essential to 

the proper administration of criminal justice that dignity, order, 

and decorum be the hallmarks of all court proceedings. 40 The 

flagrant disregard in the courtroom of elementary standards 

of proper conduct should not and cannot be tolerated. 41 Trial 

judges confronted with disruptive, contumacious, stubbornly 

defiant defendants must be given sufficient discretion to meet 

the circumstances of each case. 42

[16-18] The principles articulated in Allen are consistent 

with Nebraska law. When there are outbursts of emotion in 

the courtroom, it is within the sound discretion of the trial 

court to deal with them in such a manner as to best preserve 

the judicial atmosphere and ensure a fair and impartial trial 

for the defendant. 43 Striking the testimony of a witness is a 

drastic remedy, which is not to be lightly done. 44 However, 

37 See id.

38 Id.

39 Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

40 Id.

41 Id.

42 Id.

43 State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978).

44 Davis, supra note 27; Murray, supra note 25.
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Nebraska courts, through their inherent judicial power, have 

the authority to do all things reasonably necessary for the 

proper administration of justice. 45

Here, we see no plain error. The court warned Clausen that it 

would strike his testimony and instruct the jury to disregard it 

if he had another outburst. Clausen’s disruptive outburst was a 

flagrant disregard of the court’s repeated warnings and was an 

attempt to taint the mind of the jury. The court acted within its 

power to ensure a fair and impartial trial.

3. Jury Instruction

Clausen assigns that the trial court erred in not giving a 

no-inference jury instruction. Although not precise, a fair 

reading of the record shows the court understood Clausen 

to be requesting a pattern jury instruction. It states: “The 

defendant has an absolute right not to testify. The fact that the 

defendant did not testify must not be considered by you as an 

admission of guilt and must not influence your verdict in any 

way.” 46 The district court refused the instruction, explaining 

that Clausen “did testify and that his own conduct eviscerated that testimony.” Unlike the previous assignment of error, 

Clausen objected to the court’s ruling, preserving this issue 

for appeal.

[19-21] To establish reversible error from a court’s refusal 

to give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. 47 All the jury instructions must be read together, and, if taken as a whole, they 

correctly state the law, are not misleading, and adequately 

45 Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 

(2010), disapproved on other grounds, Hossaini v. Vaelizadeh, 283 Neb. 

369, 808 N.W.2d 867 (2012).

46 NJI2d Crim. 9.4. See Kreikemeier, supra note 45.

47 State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
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cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal. 48 A jury 

instruction which misstates the issues and has a tendency to 

confuse the jury is erroneous. 49

Here, we find that the jury was properly instructed. Clausen 

testified in front of the jury, and his testimony was stricken 

only because of his conduct. Under these circumstances, the 

pattern instruction would have incorrectly stated the events at 

trial and misled the jury. We agree with the trial court and find 

no error.

4. Right to Present Defense

Clausen argues that the court “stripped away” his entire 

defense because it barred Clausen from calling his two witnesses—Dixon and Buckner—and also struck his own testimony from the record. 50 Clausen claims the court’s actions 

denied him his right to present a complete defense as guaranteed by the U.S. Constitution and Rock v. Arkansas,

 51 violating 

his 14th Amendment due process rights and his 6th Amendment 

Confrontation Clause rights—which he characterized as structural error requiring automatic reversal. These claims will each 

be addressed in turn.

(a) Due Process and 

Confrontation Clause

[22,23] We have stated that whether rooted directly in 

the Due Process Clause of the 14th Amendment or in the 

Compulsory Process or Confrontation Clauses of the 6th 

Amendment, the federal Constitution guarantees criminal 

defendants a meaningful opportunity to present a complete 

defense. 52 However, the accused does not have an unfettered 

48 See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

49 Id.

50 Brief for appellant at 43.

51 Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987).

52 State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
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right to offer testimony that is incompetent, privileged, or 

otherwise inadmissible under standard rules of evidence. 53 The 

right to present a defense is not unqualified and is subject to 

countervailing public interests such as preventing perjury and 

investigating criminal conduct. 54

Clausen was entitled to present a complete defense to counter the State’s charges against him. However, Clausen did not 

have an unfettered right to offer inadmissible testimony or 

disregard the court’s instruction. Clausen’s inability to present 

witnesses that could provide admissible testimony pursuant to 

the Nebraska Evidence Rules and his disruptive outbursts, not 

the court, “stripped away” his defense. Clausen’s due process 

and confrontation rights were not violated.

(b) Structural Error

[24,25] Structural errors are errors so affecting the framework within which the trial proceeds that they demand automatic reversal. 55 They are distinguished from trial errors, which 

generally occur “‘during the presentation of the case to the 

jury, and which may therefore be quantitatively assessed in 

the context of other evidence presented in order to determine 

whether [they were] harmless beyond a reasonable doubt.’” 56

The U.S. Supreme Court limited structural errors to a few 

very specific categories—total deprivation of counsel, trial 

before a judge who is not impartial, unlawful exclusion of 

members of the defendant’s race from a grand jury, denial 

of the right to self-representation at trial, and denial of the 

right to a public trial. 57 The fact that the error in a case was 

53 Id.

54 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

55 State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).

56 Id. at 64, 815 N.W.2d at 905 (quoting Arizona v. Fulminante, 499 U.S. 

279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).

57 Abram, supra note 55. See Fulminante, supra note 56.
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a constitutional error does not in itself mean that it was structural error. 58

The assigned errors Clausen asserts fall in the category 

of trial errors rather than structural errors. The trial court’s 

determination to exclude Clausen’s witnesses and strike his 

testimony occurred during the presentation of the case to the 

jury. His claims do not fall within the limited set of aforementioned structural errors established by the U.S. Supreme Court. 

Clausen’s trial does not warrant an automatic reversal.

5. Excessive Sentences

Clausen also argues that the court abused its discretion 

by imposing excessive sentences. Clausen claims the court 

made no meaningful factual findings to justify the sentence or 

any substantive factors relating to his prior criminal history. 

Clausen does not address the court’s finding that he was a 

habitual criminal.

[26,27] As stated above, we review a sentence imposed 

within statutory limits for an abuse of discretion. 59 When 

imposing a sentence, a sentencing judge should customarily 

consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past 

criminal record or record of law-abiding conduct, and (6) 

motivation for the offense, as well as (7) the nature of the 

offense and (8) the amount of violence involved in the commission of the crime. 60 The appropriateness of a sentence is 

necessarily a subjective judgment and includes the sentencing 

judge’s observation of the defendant’s demeanor and attitude 

and all the facts and circumstances surrounding the defendant’s life. 61

58 See Abram, supra note 55.

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

60 Id.

61 Id.
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We have reviewed Clausen’s sentences and conclude that 

they were not excessive. The court determined Clausen was a 

habitual criminal and sentenced him on all three convictions 

pursuant to the habitual criminal statutory guidelines. 62 The 

court did not abuse its discretion.

6. Ineffective Assistance of Counsel

Finally, Clausen presents a plethora of ineffective assistance 

of counsel claims for this court to consider. Clausen’s counsel 

on direct appeal is different from his trial counsel. We conclude 

that the record is sufficient to address all of the assignments of 

error regarding ineffectiveness and that all lack merit.

[28-31] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

 63 the defendant must 

show that his or her counsel’s performance was deficient and 

that this deficient performance actually prejudiced the defendant’s defense. 64 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did 

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

criminal law. 65 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been different. 66 The two prongs of the ineffective assistance of counsel 

test—deficient performance and prejudice—may be addressed 

in either order. 67

(a) Questioning of Dixon

Clausen claims that his trial counsel did not object on relevancy when the State questioned Dixon regarding the escape 

62 See Neb. Rev. Stat. § 29-2221 (Reissue 2016).

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

(1984).

64 State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020).

65 State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).

66 Id.

67 See State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).
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preparation at a hearing. The State asked Dixon for the names 

of the individuals who provided him with the phone and 

drugs that aided in the escape. However, Clausen misstates 

the record. Clausen’s trial counsel repeatedly objected to the 

relevancy, and the court overruled the objections. Trial counsel 

was not ineffective on this issue.

(b) Untimely Disclosure 

of Buckner

Clausen moves on to claim his trial counsel was ineffective 

by failing to disclose Buckner as a witness in a timely manner. 

However, because the court did not err in excluding Buckner’s 

testimony on separate evidentiary grounds, Clausen did not 

suffer any prejudice from this untimely witness disclosure. 

This claim lacks merit.

(c) Dixon’s Deposition

[32] Clausen also claims that his trial counsel was ineffective by failing to introduce Dixon’s deposition at trial, because 

he was an unavailable witness. Where a witness becomes 

unavailable due to his assertion of Fifth Amendment privilege, 

such witness’ prior deposition testimony is admissible as substantive evidence, given that the deposition had been taken in 

compliance with the law and in the course of the same criminal 

proceeding, and that the opposing party had adequate opportunity in the witness’ deposition to examine the witness with 

similar, if not exact, interest and motive on matters relative to 

the case. 68 But a witness’ refusal to answer questions during 

cross-examination of a deposition may deprive the opposing 

counsel of an adequate opportunity to examine the witness during the deposition. 69

68 See State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997), disapproved on 

other grounds, State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). See, 

also, Neb. Rev. Stat. § 27-804(2)(a) (Reissue 2016).

69 See, e.g., State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996); Burke v. 

Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).
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[33] To determine whether opposing counsel has been 

deprived of the opportunity to examine a witness during crossexamination, Nebraska courts apply the Cardillo approach 

discussed earlier. 70 If a witness refuses to answer questions that 

are so closely related to the subject of the case that the entire 

testimony of the witness should be stricken, opposing counsel 

has been deprived of an adequate opportunity to examine the 

witness during the deposition. 71 The incomplete deposition 

cannot be admitted as substantive evidence at trial. 72

Dixon deprived the State of an adequate opportunity to 

cross-examine him. At his deposition, Dixon refused to answer 

questions regarding how he obtained the phone and drugs 

that aided in the escape. The State’s questioning was closely 

related to the commission of the escape. Dixon’s entire testimony would have been stricken in accordance with Cardillo if 

Clausen would have submitted Dixon’s deposition at trial, and 

therefore, the record shows that Clausen was not prejudiced by 

trial counsel’s conduct.

Even if Dixon’s deposition should have been allowed into 

evidence, the record shows that Clausen was not prejudiced by 

trial counsel’s conduct. As discussed earlier, Clausen could not 

prove a duress defense because he failed to surrender himself 

to authorities.

(d) Mental Evaluation 

of Clausen

Clausen next claims that his trial counsel was ineffective 

because trial counsel did not ensure that Clausen received a 

proper mental evaluation to determine whether he was competent to stand trial. By request of his trial counsel, Clausen 

received two evaluations from separate medical professionals—a forensic psychiatrist and a licensed psychologist. Both 

professionals concluded Clausen was feigning his mental 

70 See, e.g., Cardillo, supra note 22; Harman, supra note 69.

71 See, Cardillo, supra note 22; Harman, supra note 69.

72 See id.
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issues. Clausen argues that these evaluations were cursory and 

that he was never properly assessed.

This court concludes that the performance of Clausen’s trial 

counsel was not deficient. Trial counsel identified the potential competency issue and requested an evaluation. After the 

court deemed Clausen competent to stand trial, trial counsel 

reaffirmed his commitment to his client by requesting another 

mental examination.

Because both professionals independently reached the same 

conclusion, trial counsel exercised the judgment of a lawyer 

with ordinary training and skill in criminal law in not requesting further mental evaluations. Even if this court were to find 

that trial counsel’s performance was deficient, there is not a 

reasonable probability that an additional evaluation would have 

resulted in Clausen’s being found incompetent to stand trial. 

Clausen’s trial counsel was not ineffective on this issue.

(e) Failure to Subpoena 

Police Officer

Clausen also claims that trial counsel was ineffective 

because he failed to subpoena or compel the police officers 

who conducted a photographic lineup. Clausen argues his trial 

counsel’s actions resulted in the overruling of his motion to 

suppress evidence of the photographic lineup. In reality, the 

court sustained his motion at a hearing and no evidence of the 

photographic lineup was admitted into evidence. This claim 

has no merit.

(f) Failure to Offer 

Complete Interview

Clausen next claims his trial counsel should have presented 

the jury with Clausen’s entire recorded interviews with law 

enforcement after his arrest, arguing that it gave the jury an 

inaccurate view of Clausen’s role in the escape. The recordings contained information highly prejudicial to Clausen such 

as the offense Clausen was imprisoned for, his participation 

in various crimes, and his overall criminal history. The State 
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presented a redacted version to ensure the jury did not hear 

this highly prejudicial information. The record establishes that 

Clausen suffered no prejudice by the exclusion of this highly 

prejudicial information.

(g) Opening Statement

Clausen moves on to claim that his trial counsel was ineffective by failing to object to or ask the district court to take 

any corrective action for the State’s improper commentary in 

opening statements. The State mentioned in its opening statement that Clausen was found “in a bathroom with a firearm” 

when he was arrested. The parties agree that this statement 

was improper because it was in violation of a pretrial order by 

the court.

In State v. Iromuanya,

 73 we addressed a similar situation 

where the State made improper comments during opening 

statements. We reasoned that the State’s commentary was not 

prejudicial because (1) the trial court had orally instructed 

jurors before the trial that attorneys’ statements and arguments were not evidence, (2) the statements represented short 

moments in a long trial during which many other witnesses 

testified about the critical issues in the case, and (3) the trial 

court’s written instructions informed the jurors that they must 

not decide the case based on sympathy or prejudice. 74

We find Iromuanya instructive in this case. Here, the court 

reminded the jury that “opening statements by counsel are not 

evidence”; multiple witnesses testified during a long trial about 

critical issues of the case, which did not include the possession 

of a firearm; and the jury instructions reiterated that statements 

and arguments by counsel were not evidence. The State never 

offered evidence that Clausen possessed a firearm at the time 

of his arrest. In light of these circumstances, the record shows 

that Clausen suffered no prejudice.

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

74 See id. See, also, State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019) 

(discussing Iromuanya, supra note 73).
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(h) Cross-Examination of Williams

Clausen continues his ineffective assistance of counsel 

assignment by arguing that his trial counsel was ineffective 

in his cross-examination of Williams. Clausen claims that his 

counsel failed to impeach Williams’ credibility by (1) establishing Williams was a felon under Neb. Rev. Stat. § 27-609 

(Reissue 2016), (2) highlighting Williams’ motivation for testifying under his plea agreement, and (3) questioning Williams 

about a suicide attempt he made immediately after Clausen and 

Dixon escaped from prison.

Clausen misstates the record—his trial counsel did, in fact, 

impeach Williams for being a felon. Section 27-609(1) allows a 

party to admit evidence of a conviction resulting in an imprisonment in excess of 1 year for purposes of attacking the credibility of a witness. The statute goes on to state that “[e]vidence 

of a conviction . . . is not admissible if a period of more than 

ten years has elapsed since the date of such conviction or of the 

release of the witness from confinement, whichever is the later 

date.” 75 After the conviction is established, “‘the inquiry must 

end there, and it is improper to inquire into the nature of the 

crime, the details of the offense, or the time spent in prison as 

a result thereof.’” 76

Trial counsel asked Williams: “I know that you are in the 

penitentiary but tell me, have you had any felony convictions 

in the last ten years?” Williams ultimately responded: “No. Just 

what I have now.” Trial counsel utilized § 27-609 and attacked 

Williams’ credibility for being a felon. Trial counsel’s performance was not deficient.

Next, Williams testified in his direct examination that he was 

charged with two counts of escape because he helped Clausen 

and Dixon escape. Williams explained that in exchange for 

his testimony, the State dropped one of those counts. Trial 

75 § 27-609.

76 State v. Castillo-Zamora, 289 Neb. 382, 388, 855 N.W.2d 14, 22 (2014) 

(quoting State v. Johnson, 226 Neb. 618, 413 N.W.2d 897 (1987)).
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counsel need not ask redundant questions on information 

already established on direct examination. The jury was aware 

of Williams’ motivation to testify in this case, and therefore, 

Clausen suffered no prejudice.

Lastly, Clausen’s trial counsel did not provide ineffective 

assistance of counsel by not questioning Williams regarding 

his suicide attempt after Clausen and Dixon escaped from 

prison, because that evidence was inadmissible. Parties can 

only ask witnesses relevant questions that “make the existence 

of any fact that is of consequence to the determination of the 

action more probable or less probable than it would without 

the evidence.” 77 Williams’ suicide attempt had no bearing on 

whether it was more probable or less probable that Clausen 

escaped from prison, stole a vehicle, and operated the vehicle 

to escape arrest. Because this line of questioning would have 

been inadmissible, the record establishes that Clausen was 

not prejudiced.

(i) Preservation of 

Motions to Suppress

Clausen claims that his trial counsel was ineffective because 

his counsel failed to preserve his motions to suppress by 

objecting at trial to the introduction of the photographic lineup. 

However, as discussed earlier, Clausen misstates the record. 

Clausen’s motion to suppress evidence of the photographic 

lineup was sustained, and no evidence of a photographic lineup 

was presented at trial. This claim has no merit.

Furthermore, Clausen also claims that his trial counsel 

was ineffective because his counsel failed to preserve his 

motions to suppress by objecting at trial to the introduction 

of Clausen’s statements made to investigators after he was 

arrested. Clausen filed motions to suppress his statements 

made during his postarrest interview because investigators did 

not read him his Miranda rights until around 15 minutes into 

77 Neb. Rev. Stat. § 27-401 (Reissue 2016). See, also, Devers, supra note 2.
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a series of interviews. The court overruled Clausen’s motion 

to suppress evidence of the statements made to investigators 

and allowed redacted portions of the interview to be played 

at trial.

The record shows that Clausen was not prejudiced by his 

counsel’s failure to preserve his motion to suppress by objecting at trial. Law enforcement interviewed Clausen three times. 

In the first interview, State Patrol investigators did not read 

Clausen his Miranda rights for the first 15 minutes of the 

interview. However, the investigators did not elicit any incriminating information from Clausen until after investigators read 

him his Miranda rights. The pre-Miranda discussion focused 

on Clausen’s previous criminal history, his time in solitary 

confinement, and the potential effect of Clausen’s cooperating 

with the investigation. At the start of the final two interviews, 

investigators read Clausen his Miranda rights and he signed 

a Miranda rights waiver form before the interview began. 

As Clausen’s Miranda rights were not violated, no prejudice 

resulted from his trial counsel’s inaction.

(j) Failure to Request No-Inference 

Jury Instruction

Finally, Clausen argues, but fails to assign, that trial counsel 

was ineffective for not requesting a no-inference jury instruction. Although we decline to reach the merits of this claim 

because it was not assigned as error, the record shows that 

Clausen suffered no prejudice. As we discussed earlier, the 

court did not err in refusing the pattern jury instruction. 78

VI. CONCLUSION

Clausen fails to show that the trial court erred or abused its 

discretion in its rulings. The court correctly excluded Dixon’s 

and Buckner’s inadmissible testimonies. Clausen’s failure to 

follow the court’s instructions at trial led to his testimony 

being stricken and disregarded by the jury, thereby forfeiting 

78 See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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his right to a no-inference jury instruction. None of the errors 

that Clausen assigned qualified as structural errors, nor was he 

deprived of his right to present a defense. Clausen’s sentences 

were not excessive. Finally, his claims of ineffective assistance 

of trial counsel lack merit. We affirm the judgment of the district court.

Affirmed.

Freudenberg, J., not participating.

Miller-Lerman, J., concurring.

This was an imperfect trial. The testimonies of three defense 

witnesses were stricken in their entirety. These witnesses were 

the defendant Clausen, the coperpetrator Dixon, and an additional witness who would have supported Clausen’s theory of 

duress. Flawed though it was, I cannot say the trial suffered 

structural error warranting reversal. Accordingly, notwithstanding my remarks regarding the constitutional dimension of 

exclusion of testimony generally and that of Dixon in particular, I concur.

Jurisprudential Clarification.

It has been observed that “[s]triking the testimony of a 

witness is a drastic remedy. It is not to be lightly done. . . . 

Striking all of the testimony of the witness may be the only 

appropriate remedy when refusal to answer the questions of the 

cross-examiner frustrates the purpose of the process.” Lawson 

v. Murray, 837 F.2d 653, 656 (4th Cir. 1988). In the instant 

case, Clausen’s remarks did in fact frustrate the process and 

striking his testimony in its entirety made sense. However, not 

every refusal to cooperate on cross-examination warrants striking a witness’ testimony.

In United States v. Cardillo, 316 F.2d 606, 613 (2d Cir. 

1963), the Second Circuit recognized this measured approach, 

and I am in agreement with the majority opinion which 

adopts the three category framework of the Cardillo opinion. 

Cardillo stated:
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[Not] every refusal to answer by a witness, claiming his 

constitutional right against self-incrimination, requires the 

striking of his testimony or a part thereof. There would 

appear to be at least three categories to be considered. 

The first would be one in which the answer would have 

been so closely related to the commission of the crime 

that the entire testimony of the witness should be stricken. 

The second would be a situation in which the subject matter of the testimony was connected solely with one phase 

of the case in which event a partial striking might suffice. 

The third would involve collateral matters or cumulative 

testimony concerning credibility which would not require 

a direction to strike and which could be handled (in a jury 

case) by the judge’s charge if questions as to the weight 

to be ascribed to such testimony arose. As to the first 

and second categories suggested, whether all or a part of 

the testimony should be stricken, must depend upon the 

discretion of the trial judge exercised in the light of the 

particular circumstances.

316 F.2d at 613.

The witness who invoked the Fifth Amendment on crossexamination in Cardillo was a government witness, so the 

Cardillo framework needs to be applied with some caution 

where the witness who invokes the Fifth Amendment privilege 

on cross-examination, as in the instant case, has been called by 

the defendant. This is so, because different rights are at stake. 

An opinion from a case where a defense witness invoked the 

Fifth Amendment on cross-examination in which Chief Judge 

Garland and then-Judge Kavanaugh joined, makes this point, 

wherein it stated: “The potential prejudice to the government 

from preventing its cross examination of [a defense witness], 

unlike the prejudice to the defendants in Cardillo [seeking to 

cross-examine a government witness], has no constitutional 

dimension.” U.S. v. Crews, 856 F.3d 91, 99 (D.C. Cir. 2017).

Elsewhere, it has been observed:

Cardillo and cases like it do not address the tension 

inherent, when the witness is defendant’s, between the 
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prosecution’s need to cross-examine and the defendant’s 

right to call witnesses on her own behalf. The right to 

present witnesses “has long been recognized as essential 

to due process.” Chambers v. Mississippi, 410 U.S. 284, 

294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). The 

compulsory process clause of the Sixth Amendment also 

supports the same right. Taylor v. Illinois, 484 U.S. 400, 

409, 108 S.Ct. 646, 652, 98 L.Ed.2d 798 (1988).

Denham v. Deeds, 954 F.2d 1501, 1503-04 (9th Cir. 1992). 

A trial court must safeguard to the extent possible a criminal 

defendant’s right to present his or her story. Id.

It has been stated: “The key question is whether the defendant’s right to present witnesses can be protected without frustrating the government’s interest in effective cross-examination.” 

U.S. v. Negrete-Gonzales, 966 F.2d 1277, 1280 (9th Cir. 1992). 

Based on constitutional imperatives and the authority of Crews

and similar jurisprudence, to the extent the opinion of the 

court in this case suggests that the State’s or government’s 

right to examine a defense witness who has invoked the Fifth 

Amendment on cross-examination is the constitutional equivalent of the right at stake of the criminal defendant, I respectfully disagree.

Striking All or Partial Testimony of Dixon.

The thrust of the majority opinion is that Dixon’s refusal to 

identify who supplied the drugs and from whom he obtained 

the phone to set up the crimes as charged was testimony in 

the first Cardillo category, i.e., “so closely related to the commission of the crime that the entire testimony of the witness 

should be stricken.” United States v. Cardillo, 316 F.2d 606, 

613 (2d Cir. 1963). I respectfully disagree; instead, I believe 

the “subject matter of the testimony was connected solely with 

one phase of the case” involving steps in the preparation for 

the crimes which warranted a “partial strik[e].” Id.

The crimes charged were escape, theft of a vehicle by 

unlawful taking, and operating a vehicle to avoid arrest. At 

his deposition, Dixon stated he put a knife to Clausen’s neck 
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in the bathroom and told him he was going to help with the 

escape, whether he wanted to or not, and threatened the lives 

of Clausen and his family. Contrary to the opinion of the court, 

I believe Dixon offered details of how he planned the escape 

and the State’s interest in prosecuting Clausen was not frustrated by Dixon’s unwillingness to name names. When asked 

from whom he got the phone to set up the crimes, Dixon 

said he would not answer. Dixon said he paid for the phone. 

When asked how he paid for the phone, he said he had “a lot 

of guards in my pocket” from whom he obtained drugs with 

which to obtain the phone.

During his deposition and his appearance before the district 

court, Dixon described how he and Clausen escaped in a laundry truck, cut open the roof, and then stole a pickup, which 

Dixon drove during the pursuit by police. These details and 

admissions would have favored the State. And Dixon’s testimony, if it had been permitted, could have given Clausen some 

advantage in his attempt to raise doubt with the jury as to his 

guilt as to certain of the counts. In my view, exclusion of the 

entirety of Dixon’s proposed testimony, because of his refusal 

to name names in connection with the preparatory phase, 

diminished the integrity of the trial.

I am aware of cases where a witness denied that the defendant was the source of drugs, but on cross-examination refused 

to name the source, and the appellate court concluded the witness’ testimony was properly stricken. E.g., U.S. v. McKneely, 

69 F.3d 1067 (10th Cir. 1995). However, in McKneely, “the 

identity of the source was central to the issue of defendant’s 

guilt or innocence.” 69 F.3d at 1076. The instant case is more 

similar to U.S. v. Negrete-Gonzales, supra, where the appellate court concluded it was improper to strike the testimony 

of a witness who refused to identify her source of cocaine 

on cross-examination where neither defendant was charged 

with supplying cocaine. The instant case is not a drug case, 

and the identities of the source of the drugs and phone were 

not central. Accordingly, in my view, Dixon’s refusal to name 
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the source of the drugs and phone did not warrant striking the 

entirety of his testimony.

Having concluded that the refusal of defense witness Dixon 

to answer certain questions on cross-examination falls into the 

second Cardillo category, it is necessary for me to determine 

if partial striking was feasible. In U.S. v. Crews, 845 F.3d 91, 

101 (D.C. Cir. 2017), the appellate court was unable to ascertain whether the witness had asserted her Fifth Amendment 

privilege “only with respect to certain, limited questions,” and 

therefore, the trial court could not be faulted for excluding all 

her testimony. Here, however, Dixon was available to provide 

an abundance of information, not all of it favorable to Clausen, 

and his refusal was clearly limited to the identity of the sources 

of the drugs and phone. And although the district court suggested that Dixon’s refusal only to identify sources might be 

characterized as an assertion of his Fifth Amendment privilege, 

that suggestion is curious where he had already resolved his 

case arising from the escape. In my view, given the record, 

striking all of Dixon’s testimony on the basis that he asserted 

the Fifth Amendment was “drastic.” Lawson v. Murray, 837 

F.3d 653, 656 (4th Cir. 1988).

It has been observed that “[e]ven when the witness refuses 

to answer questions relevant to matters at issue, striking only 

portions of the testimony may be the more reasonable remedy 

. . . .” Id. In this case, in my view, a partial striking of Dixon’s 

testimony would have been the better course; however, I recognize that the district court was not asked to do so. Under 

similar circumstances, in Crews, the appellate court assumed 

that “the district court had viable alternatives, but [the defendant] did not suggest any at trial. The court did not plainly err 

by failing to consider them sua sponte.” 856 F.3d at 100-01. 

Similarly, on the record before us, not having been presented 

with the alternative of partially striking Dixon’s proposed testimony, I cannot find that the district court plainly erred when it 

chose to strike Dixon’s testimony in its entirety.

For the foregoing reasons, I concur.