State v. Meduna
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Decisions
818
of the Nebraska Court of Appeals
18 nebraska appellate reports
State of Nebraska, appellee, v.
Jason Meduna, appellant.
___N.W.2d___
Filed January 11, 2011. No. A-10-185.
1. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
2. ____: ____. In making the determination as to factual questions, an appellate
court does not reweigh the evidence or resolve conflicts in the evidence, but,
rather, recognizes the trial court as the finder of fact and takes into consideration
that it observed the witnesses.
3. Constitutional Law: Search and Seizure. To determine whether an individual
has an interest protected by the Fourth Amendment, one must determine whether
the individual has a legitimate or justifiable expectation of privacy in the
invaded place.
4. ____: ____. To determine whether an individual has a legitimate or justifiable
expectation of privacy in the invaded place, ordinarily, two inquiries are required:
First, the individual must have exhibited an actual, or subjective, expectation of
privacy, and second, the expectation must be one that society is prepared to recognize as reasonable.
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5. ____: ____. Open fields do not provide the setting for those intimate activities
that the Fourth Amendment is intended to shelter from government interference
or surveillance.
6. Police Officers and Sheriffs: Search and Seizure: Evidence. A warrantless
seizure is justified under the plain view doctrine if (1) a law enforcement officer
has a legal right to be in the place from which the object subject to the seizure
could be plainly viewed, (2) the seized object’s incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized
object itself.
7. Police Officers and Sheriffs: Search and Seizure: Probable Cause. For an
object’s incriminating nature to be immediately apparent, the officer must have
probable cause to associate the property with criminal activity.
8. Courts: Expert Witnesses. Under the framework of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1984),
and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001),
the burden to weed out unreliable expert testimony is placed directly on the
trial court.
9. ____: ____. Before admitting any expert opinion testimony, the trial court
must determine whether the expert’s knowledge, skill, experience, training, and
education qualify the witness as an expert. If the opinion involves scientific or
specialized knowledge, trial courts must also determine whether the reasoning or
methodology underlying the expert’s opinion is scientifically valid.
10. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.
11. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the
record de novo to determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony.
12. Courts: Expert Witnesses. A court performing a Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),
and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), inquiry
should not require absolute certainty. Instead, a trial court should admit expert
testimony if there are good grounds for the expert’s conclusion, even if there
could possibly be better grounds for some alternative conclusion.
13. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal
case, harmless error exists when there is some incorrect conduct by the trial court
which, on review of the entire record, did not materially influence the jury in
reaching a verdict adverse to a substantial right of the defendant.
14. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
15. Venue: Juror Qualifications: Presumptions. A court will not presume unconstitutional partiality because of media coverage unless the record shows a barrage of inflammatory publicity immediately prior to trial, amounting to a huge
wave of public passion or resulting in a trial atmosphere utterly corrupted by
press coverage.
Decisions
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16. Venue: Juror Qualifications. Under most circumstances, voir dire examination provides the best opportunity to determine whether a court should
change venue.
17. Expert Witnesses. The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to him
or her at or before the hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
18. Evidence: Words and Phrases. Cumulative evidence means evidence tending to
prove the same point of which other evidence has been offered.
19. Evidence: Proof. A document may be authenticated by testimony by one with
personal knowledge that it is what it is claimed to be, such as a person familiar
with its contents; a showing of specific authorship is not always necessary.
20. Criminal Law: Statutes: Sentences. Because all crimes in Nebraska are statutory in nature, so, too, are the sentences imposed upon the persons convicted of
such crimes.
21. Criminal Law: Sentences: Animals. Under Neb. Rev. Stat. § 28-1019 (Reissue
2008), if a person is convicted of a Class IV felony under Neb. Rev. Stat.
§ 28-1009 (Reissue 2008), the sentencing court shall order such person not to
own, possess, or reside with any animal for at least 5 and no more than 15 years
after the date of conviction.
22. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
assigning the error.
23. Constitutional Law: Courts: Jurisdiction. The Nebraska Court of Appeals has
jurisdiction to determine whether a constitutional question has been properly
raised, when necessary to a decision in the case before it.
24. 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.
25. ____: ____. In order to show prejudice as an element 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.
26. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective
assistance of counsel need not be dismissed merely because it is made on direct
appeal; the determining factor is whether the record is sufficient to adequately
review the question.
27. Effectiveness of Counsel: Appeal and Error. When the issue of ineffective
assistance of counsel has not been raised or ruled on at the trial court level and
the matter necessitates an evidentiary hearing, an appellate court will not address
the matter on direct appeal.
28. Effectiveness of Counsel: Proof. If it is more appropriate to dispose of an
ineffectiveness claim due to the lack of sufficient prejudice, that course should
be followed.
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29. Effectiveness of Counsel: Words and Phrases. Prejudice means that there is a
reasonable probability that but for counsel’s deficient performance, the result of
the proceeding would have been different.
Appeal from the District Court for Morrill County: Leo
Dobrovolny, Judge. Affirmed.
Lyle J. Koenig for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Sievers, Moore, and Cassel, Judges.
Sievers, Judge.
This appeal stems from a jury’s conviction of Jason Meduna
on 145 counts of cruel neglect of an animal pursuant to Neb.
Rev. Stat. § 28-1009(1) (Reissue 2008), a Class IV felony.
The charges arose after feral horses and burros acquired by
Meduna were discovered in extremely poor conditions at his
“3-Strikes Ranch Mustang Outpost” (3-Strikes Ranch) near
Alliance, Nebraska. Upon Meduna’s convictions, the district
court for Morrill County sentenced him to two consecutive
terms of 20 to 60 months’ imprisonment and ordered him not to
own, possess, or reside with any animal for a total of 30 years.
Meduna assigns error to the district court’s denial of several
of his motions, receipt of certain evidence, and imposition of
excessive sentences. He also alleges that he received ineffective
assistance of counsel at trial. Because we find that any claimed
error by the trial court was harmless, we affirm Meduna’s convictions. We should point out that we had earlier released an
opinion in this case on January 4, 2011, but that opinion was
incorrect with respect to its treatment of the claim that the sentences imposed were excessive. Therefore, that earlier opinion
is withdrawn and is of no force and effect, and this opinion
shall supersede and replace our earlier opinion.
FACTUAL BACKGROUND
Meduna was the owner of the now-defunct 3-Strikes Ranch,
formerly located in Morrill County. The ranch spanned approximately 1,900 acres and was a home to feral horses, i.e.,
“mustangs,” and burros acquired by Meduna for training and
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ventual sale. Meduna adopted several mustangs and burros
through the Bureau of Land Management (BLM) adoption
program and purchased approximately 213 additional mustangs from the BLM pursuant to its sale authority. In addition,
Meduna’s ranch took in mustangs and burros from rescue organizations and private individuals.
In April 2009, the Morrill County sheriff, John Edens,
received several complaints about the conditions on 3-Strikes
Ranch. As a result, on April 17, Edens executed an affidavit for
a warrant authorizing the inspection and care of the animals at
the ranch. According to the affidavit, Edens was informed by
a law enforcement officer with the BLM that four of the five
mustangs adopted by Meduna from the BLM had died and that
the fifth was removed due to health concerns. The affidavit
states that a veterinarian from Overton, Nebraska, examined
the removed mustang and opined that her poor health condition
was due to starvation. In addition, the affidavit recites that a
specialist with the BLM inspected other mustangs at the ranch
and reported that they needed five to six times the amount of
feed they were receiving and that the pastures were severely
overgrazed. The affidavit was accompanied by photographs of
the mustang removed from the ranch and the BLM “Adopter
Compliance Report” prepared by the specialist after a BLM
inspection team toured the ranch. The summary section of that
report states:
Based on my 20 years of experience working in wild
horse management for the BLM, it is my opinion that
3 Strikes Ranch is not providing appropriate or adequate
care for the horses and burros on the ranch. A significant
number of these animals are in an emaciated condition
and may not be able to be saved. The BLM needs to take
the necessary actions to address their [private maintenance
and care agreement] violations and prohibit the Medunas
from adopting or purchasing horses or burros from the
BLM in the future.
Finding cause to believe animals were being cruelly neglected
at 3-Strikes Ranch, a district court judge issued a warrant on
April 17. The warrant authorized entry on the ranch “to inspect
and care for the animals.”
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On April 18, 2009, Edens executed that warrant, and a warrant for Meduna’s arrest, and entered 3-Strikes Ranch together
with his deputy sheriffs, officers of the Nebraska State Patrol,
and a veterinarian from Alliance. At that time, Edens claimed
to have observed two dead mustangs and approximately 170
emaciated mustangs in the corrals. Necropsies were performed
on the two animals that had died within the previous 24 hours,
and symptoms of starvation and parasitic infestation were
found. Over the course of the next 9 days, Edens learned that
Meduna had relinquished all of his mustangs and burros to representatives of “Habitat for Horses” and “Lifesavers,” and that
the animals were moved to the Morrill County fairgrounds to
be watered, fed, and administered medical treatment.
Veterinarian David Hardin, director of the School of
Veterinary Medicine and Biomedical Sciences at the University
of Nebraska-Lincoln and associate dean at Iowa State University
College of Veterinary Medicine, traveled to the Morrill County
fairgrounds to help oversee the processing of the mustangs
and burros. At trial, Hardin explained the procedure that was
employed. He testified that after the animals were assigned
identifying numbers, they were run through a “chute” system, wherein blood was drawn and they were dewormed,
vaccinated, and then assigned a “Henneke” body condition
score—based on a system of assessing equine body condition
originally published in the Equine Veterinary Journal in 1983.
The Henneke system has been peer reviewed and is generally accepted within veterinary practices for equines. Henneke
scoring involves evaluating a horse’s neck, withers, shoulders,
loins, tail, head, and ribs, and is considered a good measure of
the equine’s energy intake versus its energy expenditure. After
such evaluation, a score of “1” (extremely emaciated) to “9”
(extremely obese) is assigned to the animal. Hardin explained
on direct examination:
[E]ssentially, you are looking at kind of body cover over
the horse, the optimum condition is considered a five, in
the middle . . . . [A] body condition score of three is considered that there is little or no body fat left on the animal
. . . . [I]f you go below a three, . . . they are actually
metabolized or are using up their muscle mass. . . .
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....
[At a score of one or two,] they will lose the muscle
mass. At some point in time they lose enough muscle
mass that they can’t stand up any more. . . . [T]he internal muscles like the heart muscle, the muscles that affect
the digestive tract would, also, be metabolized. And, so
lots of things can go awry and so getting those additional
stressors that come along, they are just not in a position
to handle.
....
. . . [T]hey will use muscle for energy. . . . And, then at
some point there is no muscle there and they would die.
Hardin explained that the Henneke assessments have been
found to be “very repeatable” and “adaptable” to various breeds
of horses under various management conditions. We note that
there are Henneke body scores of “1” or “2” in evidence for
110 mustangs and burros. Of those 110 animals, 15 were
assigned a score of “1” and the remaining 95 were assigned
a score of “2.” The prosecution for cruel neglect was based
on these 110 animals that were scored “1” or “2” (as well as
4 additional animals deemed seriously injured or ill without
Henneke scores); the remaining 35 counts were for horses and
burros that died or were euthanized on Meduna’s ranch, and
thus no Henneke scores were assigned to them.
On April 21, 2009, Edens executed an affidavit in support of
a search warrant with respect to 3-Strikes Ranch. The affidavit contains much of the same information used to secure the
prior warrant to inspect and care for the mustangs and burros,
as well as a description of certain property on the ranch to be
searched, including, inter alia, “[g]rass clippings.” With regard
to the grass clippings, the affidavit explains, “Affiant observed
that the pastures had been grazed to the point that the sand
was noticeably exposed. Affiant states that stocking rates for
the pastures can be determined by the grass species and condition.” On that same date, a Morrill County clerk magistrate
issued the search warrant, which authorized Edens, “with the
necessary and proper assistance,” to search all of the property
described in his supporting affidavit and further authorized the
“viewing, photographing and mapping of [3-Strikes Ranch]
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for location of fences, horse and burro carcasses and skeletal remains.”
After the issuance of this search warrant, Edens asked
a rangeland management specialist, David Cook, to accompany him to the ranch. Cook had been employed by the
U.S. Department of Agriculture (USDA) Natural Resources
Conservation Service for 21 years and was then serving in
the position of rangeland management specialist in Oshkosh,
Nebraska. At a deposition taken on August 24, 2009, Cook
testified that he was not acting within the scope of his USDA
employment when he visited 3-Strikes Ranch. Cook’s narrative
report of what occurred during the search is included in evidence. The report states, in pertinent part:
The original plan was to use a 1.92 square foot hoop to
clip standing plant material to estimate forage production for each site. This method was soon abandoned for
two reasons: 1. the growing season is just beginning and
very little growth has occurred and 2. there was little, if
any, previous year forage left standing on the ranch. The
method I chose was to visually estimate plant residue on
the soil surface and standing forage utilization levels, take
photographs, and record the GPS reading of each location. At each observation point, the clipping hoop was
thrown in the air and the observations made at the point
it landed.
In the conclusion section of his report, Cook explained that a
preliminary stocking rate—an estimation of the number of livestock the range at 3-Strikes Ranch could support for grazing
purposes—was calculated. That rate was based on the assumption that the range was in “good” condition, because such was
the condition of neighboring ranches and no previous range
study had been conducted on Meduna’s ranch to determine
its condition. Cook testified at trial that conditions of “poor,”
“fair,” “good,” and “excellent” are assigned to a range based
on the amount of forage available for grazing. Cook concluded
that if the animals on 3-Strikes Ranch were to graze year round
with no added hay, the stocking rate on the ranch would be
74 animal units, but less during dry years. And, if the animals
were to graze 8 months out of the year and were “hayed”
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4 months, the stocking rate would be 111 animal units. Cook
testified that the number of animal units would be greater if
the ranch was in “excellent” condition and less if the condition
was “poor” or “fair.” Meduna, however, kept in excess of 200
mustangs and burros on his ranch.
Cook’s report also recites that one animal unit is equal to
one 1,000-pound animal. Cook testified that although mustangs
weigh an average of 850 pounds, it is standard practice to use
the 1,000-pound animal unit, and that his calculation could
easily be converted by dividing the stocking rate figure by .85.
Such calculations aside, Cook stated, “[I]n my 20 years as a
Rangeland Management Specialist in the Nebraska Panhandle,
I have never seen a ranch overgrazed to the extent that the
3-Strikes Ranch is.”
PROCEDURAL BACKGROUND
On July 10, 2009, an information was filed by the State
alleging 149 counts of cruel neglect of an animal pursuant to § 28-1009(1), a Class IV felony, against Meduna. On
November 10, a hearing was held before the trial court on various motions, including Meduna’s motion to suppress evidence
obtained by Cook, his motion in limine to exclude Cook’s
expert testimony, and his motion for a supplemental juror questionnaire. The trial court denied each of those motions. A jury
trial was held on January 11, 2010, and, after hearing all of the
evidence, the jury found Meduna guilty on 145 counts of cruel
neglect of an animal, all Class IV felonies.
With regard to sentencing, the trial court divided the 145
convictions into two groups—one related to the 31 deceased
animals and the other to the 114 animals with malnourishment
and health problems. For each group, Meduna was sentenced
to a term of 20 to 60 months’ imprisonment and ordered not
to own, possess, or reside with any animal for a period of 15
years. The trial judge ordered that the two 20- to 60-month
terms would run consecutively and that each individual conviction within the group would run concurrently. As for the
portion of the sentence prohibiting owning, possessing, or
residing with any animal for 15 years, the court ordered that
the two 15-year periods would run consecutively, for a total of
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30 years. Meduna was also ordered to pay costs in the amount
of $3,813.64. He now appeals.
ASSIGNMENTS OF ERROR
Meduna alleges that the trial court erred in (1) denying his
motion to suppress evidence illegally seized by Cook, (2) denying his motion in limine to exclude testimony under Nebraska’s
expert testimony rule, (3) denying his motion for a supplemental juror questionnaire, (4) receiving evidence of the Henneke
body scores of the mustangs, and (5) imposing excessive
sentences. Finally, Meduna alleges that he received ineffective
assistance of counsel at trial.
STANDARD OF REVIEW
[1,2] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
State v. Anderson, 279 Neb. 631, 781 N.W.2d 55 (2010). In
making the determination as to factual questions, an appellate
court does not reweigh the evidence or resolve conflicts in the
evidence, but, rather, recognizes the trial court as the finder of
fact and takes into consideration that it observed the witnesses.
State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
ANALYSIS
Motion to Suppress.
Initially, Meduna alleges that the trial court erred in denying his motion to suppress evidence illegally seized by Cook,
the State’s rangeland management specialist. He argues that
although Cook’s duty was to seize grass clippings as specified
in the warrant, Cook decided to change course and attempted to
determine the amount of cover on the land and the amount of
utilization of the grasses. Meduna claims that this “data gathering” by Cook “far exceeded the scope of the warrant” and that,
consequently, Meduna’s right to be free from unreasonable
searches and seizures was violated. Brief for appellant at 8. We
disagree for a number of reasons.
[3,4] The U.S. Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
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and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. Accord Neb. Const. art. I, § 7. To determine whether an individual has an interest protected by the
Fourth Amendment, one must determine whether the individual
has a legitimate or justifiable expectation of privacy in the
invaded place. See State v. Smith, 279 Neb. 918, 782 N.W.2d
913 (2010). To determine whether an individual has a legitimate or justifiable expectation of privacy in the invaded place,
ordinarily, two inquiries are required: First, the individual must
have exhibited an actual, or subjective, expectation of privacy,
and second, the expectation must be one that society is prepared to recognize as reasonable. See id.
In the present case, Meduna does not contend that probable
cause was lacking for the issuance of the search warrant; thus,
he concedes that Cook had a legal right to be on his ranch. The
search warrant permitted “Morrill County Sheriff . . . Edens or
Any Peace Officer” to search 3-Strikes Ranch and seize certain
items, which items included “grass clippings.” However, as it
turned out, the range was in a very poor state, such that Cook
could not use this method to assess its condition and stocking
rate. Thus, he employed a method which did not result in a
seizure of anything, and which did not run afoul of the Fourth
Amendment’s limitations on searches.
As Cook explained in his report on the range condition
inventory at 3-Strikes Ranch, the original intention was to “clip
standing plant material to estimate forage production for each
site.” However, Cook was unable to do so because the grasses
on the range were extremely sparse. Forced to improvise under
the circumstances, Cook employed a different methodology.
Instead of clipping grass, Cook tossed a hoop onto the ground
at six different locations throughout Meduna’s ranch. He vis
ually estimated the plant levels within the hoop at each site,
took a “GPS reading” of his precise location, and photographed
each observation point.
Meduna asserts that Cook’s visual estimation “far exceeded
the scope of the warrant.” However, the affidavit in support
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of that warrant recites, as stated above, that “stocking rates
for the pastures can be determined by the grass species and
condition.” Thus, not only did Cook engage in less invasive
activity than the warrant authorized because he did not seize
any items from the ranch, his assessment as to the stocking
rate for the range was contemplated by the affidavit upon
which, Meduna does not dispute, probable cause for the search
was established.
[5] Moreover, under the open fields doctrine, Meduna had
no reasonable expectation of privacy on the range. Pursuant to
that well-settled legal principle, open fields do not provide the
setting for those intimate activities that the Fourth Amendment
is intended to shelter from government interference or surveillance. See State v. Ramaekers, 257 Neb. 391, 597 N.W.2d 608
(1999). Here, aside from the curtilage—that area so intimately
tied to the home that an individual reasonably may expect that
the area in question will be treated as the home itself—the
range at 3-Strikes Ranch is an open field and is thus not protected from government inspection. See id. There is uncontroverted testimony from Edens at the November 10, 2009, suppression hearing that none of the six sites observed by Cook
during his inventory of 3-Strikes Ranch are within the curtilage
of Meduna’s home.
[6,7] We additionally agree with the State that Cook’s observations were clearly admissible under the plain view doctrine.
A warrantless seizure is justified under the plain view doctrine
if (1) a law enforcement officer has a legal right to be in the
place from which the object subject to the seizure could be
plainly viewed, (2) the seized object’s incriminating nature is
immediately apparent, and (3) the officer has a lawful right of
access to the seized object itself. State v. Buckman, 259 Neb.
924, 613 N.W.2d 463 (2000). For an object’s incriminating
nature to be immediately apparent, the officer must have probable cause to associate the property with criminal activity. State
v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
Here, Cook indisputably had a legal right to be on Meduna’s
ranch, from which location the sparse ground cover was plainly
visible. The poor condition of the grasses on Meduna’s ranch
is clearly associated with criminal activity, i.e., neglect of the
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a
nimals, because that condition tends to show that the mustangs
and burros were not being provided with adequate sustenance.
Thus, Cook’s observations also fall within the purview of the
plain view doctrine. For these several reasons, there is no merit
to this assignment of error.
Motion in Limine to Exclude Cook’s Testimony.
Meduna next asserts that the trial court erred in denying his
motion in limine to exclude Cook’s expert testimony under the
framework of Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862
(2001). Meduna’s claim is essentially that the methodology
behind Cook’s estimation of the stocking rate on 3-Strikes
Ranch was inaccurate and unreliable and thus should have been
excluded. We find that the trial court did not abuse its discretion in admitting Cook’s expert testimony, but, even if it did,
such admission would amount to harmless error.
[8,9] Under the Daubert/Schafersman framework, the burden to weed out unreliable expert testimony is placed directly
on the trial court. State v. Casillas, 279 Neb. 820, 782 N.W.2d
882 (2010). Before admitting any expert opinion testimony,
the trial court must determine whether the expert’s knowledge,
skill, experience, training, and education qualify the witness
as an expert. Id. If the opinion involves scientific or specialized knowledge, trial courts must also determine whether the
reasoning or methodology underlying the expert’s opinion is
scientifically valid. Id. In order to properly conduct appellate
review, it is the duty of the trial court to adequately demonstrate by specific findings on the record that it has performed
its gatekeeping functions. Id.
[10,11] The standard for reviewing the admissibility of
expert testimony is abuse of discretion. Id. An abuse of discretion occurs when a trial court’s decision is based upon reasons
that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. Id. We
review the record de novo to determine whether a trial court
has abdicated its gatekeeping function when admitting expert
testimony. Id.
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In his motion in limine requesting a Daubert/Schafersman
hearing, Meduna alleged that the factual basis, data, and
method behind Cook’s range estimate (regarding the stocking
rate at 3-Strikes Ranch) were unreliable, essentially because
the sample of land was too small and the data was speculative in nature. A Daubert/Schafersman hearing was held on
November 10, 2009, and, after receiving argument from both
parties, the court took the matter under advisement. The trial
court overruled Meduna’s motion in limine in a December 14
journal entry. That journal entry recites Cook’s credentials—he
has a bachelor’s degree in agronomy with a “‘range management option,’” and he is a “‘rangeland management specialist’” who has been employed by the USDA Natural Resources
Conservation Service for 21 years. The court then explains
Cook’s methodology, which included visual observation of
six sites on Meduna’s ranch accessible by vehicle. The court
details that the individual sites were 1.92-square-foot circles
of ground within a hoop which Cook tossed into the air and
which landed randomly on the ground. Based on this observation method, Cook’s “preliminary stocking rate,” i.e., the
number of animals Meduna’s ranch could support for grazing purposes, was 74 to 111 animal units. Meduna concedes
that he maintained in excess of 200 mustangs and burros on
the ranch.
[12] The trial court’s journal entry recites:
[Cook] testified the method used was not the most accurate, but other methods were not possible either because
there was insufficient foliage to “clip” vegetation, or other
methods require multiple visits to the land over a period
of time, and Cook only had one visit. Cook testified the
method he used was “an accepted method”, which he
learned while attending the University of Nebraska.
Citing State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009), the
journal entry goes on to set forth the following propositions
of law:
A trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. This
gate-keeping function entails a preliminary assessment
whether the reasoning or methodology underlying the
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estimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.
In determining the admissibility of an expert’s testimony, a trial judge may consider several more specific factors that might bear on a judge’s gate-keeping
determination. These factors include whether a theory or
technique can [be] (and has been) tested; whether it has
been subjected to peer review and publication; whether,
in respect to a particular technique, there is a high known
or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory
or technique enjoys general acceptance within a relevant
scientific community. These factors are, however, neither
exclusive nor binding; different factors may prove more
significant in different cases, and additional factors may
prove relevant under particular circumstances.
A court performing a Daubert and Schafersman inquiry
should not require absolute certainty. Instead, a trial court
should admit expert testimony if there are good grounds
for the expert’s conclusion, even if there could possibly
be better grounds for some alternative conclusion.
The trial court found the reasoning and methodology underlying Cook’s testimony valid and properly applied to the
facts in issue. The court explained that the allegation against
Meduna was that he “‘intentionally, knowingly, or recklessly
abandon[ed] or cruelly neglect[ed] an animal resulting in serious injury or illness or death of the animal . . . .’” See
§ 28-1009(1). And, the court further explained that abandonment or neglect could be proved by showing that the appropriate stocking rate was exceeded on the rangeland where the animals were located. While Cook testified the method he used to
determine stocking rate was an “‘accepted’ method,” the court
acknowledged there was little evidence offered by either party
of whether the method used had been tested, whether it had
been subjected to peer review and publication, whether it had
a high rate of potential error, or whether there were standards
controlling the operation of the technique. However, because
those factors are “neither exclusive nor binding,” see State v.
Daly, supra, the court found that Cook’s opinion regarding
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stocking rates was admissible on the evidence submitted and
that “[i]ssues of size of sample, different weight of the animals,
and the number and location of samples affect the weight, but
not the admissibility, of the opinion.” We find no error or abuse
of discretion in the trial court’s analysis and ultimate admission
of this evidence.
[13,14] However, even if we were to conclude that the trial
court committed error by allowing Cook’s testimony with
regard to the estimated stocking rate on 3-Strikes Ranch, such
error was harmless because there was ample other evidence
to support Meduna’s convictions aside from Cook’s rangeland
assessment. In a jury trial of a criminal case, harmless error
exists when there is some incorrect conduct by the trial court
which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right
of the defendant. State v. Casillas, 279 Neb. 820, 782 N.W.2d
882 (2010). Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009).
In this case, even though the stocking rate testimony was
presented as scientific evidence, it was but a small part of
the State’s evidence leading to Meduna’s convictions—which
evidence Meduna implicitly concedes was sufficient, given
that he does not assign error on the basis that the evidence
was insufficient to sustain the convictions. The record contains
voluminous testimony from the State’s 19 witnesses, including
a great deal of evidence on the dismal condition of the range
and of the animals on 3-Strikes Ranch. For example, various
individuals—such as Steve Trent, who runs a privately funded
horse rescue facility and spent five nights at Meduna’s ranch
beginning April 9, 2010, and Steve Lattin, a Morrill County
deputy sheriff who flew over 3-Strikes Ranch on two different
occasions—testified that the pastures were in very poor condition with no vegetation for the animals to graze. Photographs
of Lattin’s “flyover” are in evidence and show a sandy, sparsely
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covered range. Trent also testified that the only food source
for the mustangs and burros during his five-night stay was
hay brought in from an outside source and that the mustangs
required 11⁄2 times the amount of feed provided by the hay. A
veterinarian from Overton examined a sickly mustang removed
from 3-Strikes Ranch on April 15. He testified that his medical
diagnosis of that mustang was chronic weight loss due to starvation. A veterinarian from Alliance testified that he examined
another mustang removed from Meduna’s ranch, and his diagnosis was malnourishment and parasitic infestation. Henneke
body scores, which we discuss in length below, were assigned
to the living animals, and those scores reflect dangerously low
veterinary health ratings. Photographs in evidence depict each
of the animals Meduna was convicted of cruelly neglecting
(other than the animals that were already dead), and from the
photographs, their emaciated and sickly appearance is obvious, to say nothing of the inferences a jury could draw from
the fact that there were numerous deceased mustangs found on
the ranch. The jury determined that 31 of those deaths were
attributable to Meduna, and Meduna testified that many of
those animals had been “euthanized” by him with a gunshot to
the head, and then dumped in a pile on the range for coyotes
to consume.
In sum, we find there is sufficient evidence in the record to
support Meduna’s convictions without the inclusion of Cook’s
expert testimony regarding the stocking rate on 3-Strikes
Ranch. Thus, even if the trial court erred in admitting Cook’s
rangeland estimation, any such error was harmless. As a result,
there is no merit to this claim.
Motion for Supplemental Juror Questionnaire.
Meduna’s next assertion is that his motion for a supplemental juror questionnaire should have been granted. In his brief,
Meduna points out that prior to trial, he moved for a change of
venue based on the “extensive pre-trial publicity the case garnered.” Brief for appellant at 11. He contends that the supplemental juror questionnaire “would have substantiated whether
the considerable publicity in this small community had compromised the ability of jurors to be impartial.” Id. However,
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because Meduna had ample opportunity to uncover juror bias
during voir dire, and there is no assignment of error that a
change of venue should have been granted, the supplemental
juror questionnaire was essentially superfluous.
The record reflects that a pretrial hearing was held on a
number of motions, including Meduna’s motions for a change
of venue and for a supplemental juror questionnaire. At that
hearing, Meduna’s trial counsel conceded, with regard to the
change of venue, that he was unable to meet his burden; however, he stated that he wanted to bring the issue to the court’s
attention because there had been “a lot of publicity” in this
case. Meduna’s trial counsel stated:
I do not know whether this will reach the point where I
will feel compelled during voir dire to ask for a change of
venue based on the answers we get . . . and I’d ask not to
address it today but perhaps to be able to address it at a
later date and probably wait through voir dire . . . .
Thus, the trial court “deferred” the motion and announced
that it would not be heard “unless the defense [brought] it
back up and ask[ed] it to be ruled on.” The record reflects that
Meduna never revisited or revived the motion for a change
of venue.
With respect to the supplemental juror questionnaire,
Meduna’s trial counsel argued at the pretrial hearing that such
questionnaire would maximize juror candor and increase efficiency in that it would eliminate repetitive questions during
voir dire. The State’s position, on the other hand, was that the
court’s standard questionnaire was sufficient and that using the
additional juror questionnaire would have the effect of placing
undue weight on Meduna’s voir dire questions. After reviewing the proposed supplemental questions, the court denied
Meduna’s motion, finding that the additional questionnaire was
unnecessary. The court reasoned that the supplemental questions appeared to be in large part matters that could be handled
orally with the jury panel. In addition, the court wanted to
avoid a situation where biased questions were inadvertently
selected for the questionnaire.
[15,16] We review the trial court’s denial of Meduna’s
motion for the use of the supplemental questionnaire for an
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abuse of discretion. We note that a court will not presume
unconstitutional partiality because of media coverage unless
the record shows a barrage of inflammatory publicity immediately prior to trial, amounting to a huge wave of public passion
or resulting in a trial atmosphere utterly corrupted by press
coverage. State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793
(2010). Under most circumstances, voir dire examination provides the best opportunity to determine whether a court should
change venue. Id.
Because Meduna was free to ask the jurors questions from
the proposed supplemental juror questionnaire during voir dire,
he had sufficient opportunity to uncover “whether the considerable publicity in this small community had compromised
the ability of jurors to be impartial.” Brief for appellant at 11.
Yet, after voir dire, Meduna was still unable to make a viable
argument for a change of venue, because his pretrial motion
was deferred and never again mentioned. It is evident the
supplemental juror questionnaire would not have affected the
outcome of this case in any way. We find that the trial court
did not abuse its discretion when it denied the motion for use
of a supplemental questionnaire. Accordingly, there is no merit
to this claim.
Henneke Body Score.
Next, Meduna assigns error “in receiving evidence of the
Henneke body score of the mustangs.” Id. The Henneke scores
were handwritten on a form designed to record a “Coggins” test
for infectious equine anemia, for which the animal had blood
drawn. Separate forms were used for each animal, and offered
and received in evidence as separate exhibits. Additionally,
there are two distinct photographs of each horse (head and
body shots) in evidence that correspond to the sheet containing
the Henneke scores. For ease of reference, we will refer to the
sheets with the Henneke scores as “Coggins reports” in order to
differentiate the pieces of paper received in evidence from the
actual Henneke scores assigned to each animal and recorded on
the Coggins reports. Meduna argues that the Coggins reports
on which the Henneke body scores were recorded “are hearsay
in its purest form,” because a veterinarian verbally called out
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the scores after examining each animal and a veterinary student
then recorded the score on a form. Id. at 12. The objections
made at trial were hearsay and foundation. The foundational
argument made in this appeal is that the Coggins reports were
not authenticated.
The State argues that the forms were admissible under the
exception to the hearsay rule for statements made for the
purpose of medical diagnosis or treatment. See Neb. Evid. R.
803(3), Neb. Rev. Stat. § 27-803(3) (Reissue 2008) (hearsay
exception for statements made to treating physician for diagnosis or treatment). It is clear that the exception extends to
statements made to medical personnel other than physicians.
See Vacanti v. Master Electronics Corp., 245 Neb. 586, 514
N.W.2d 319 (1994). In Vacanti, the court said that the heart of
§ 27-803(3) is statements made to the medical provider—but
mustangs cannot make the verbal statements the exception
intends to admit in evidence. Accordingly, we reject the notion
that the Henneke scores were properly received as an exception
to the hearsay rule under § 27-803(3).
The State also argues that the Coggins reports were admissible “for a non hearsay purpose; that is, to supply the basis for
the doctors’ opinions as to the condition of the horses.” Brief
for appellee at 17. We conclude that the issue is not really the
admissibility of the Henneke scores, but, rather, the admissibility of Hardin’s opinion that the Henneke body condition scores
of “1” and “2” meant that those horses or burros “were at risk
of death or prolonged impairment of health, or prolonged loss
or impairment of function of any bodily organ,” as Hardin testified. The Henneke scores of the animals from Meduna’s ranch
were a basis for the veterinarians’ expert opinions that the animals were in such condition that they were at risk of serious
bodily injury or death.
[17] The evidence shows that the Henneke scores were
“perceived by” or “made known to” the two veterinarians,
Hardin and Arden Wohlers, who testified as experts. And,
the evidence shows that the Henneke scores were “facts or
data” upon which they relied, and such were a type of fact
or data reasonably relied upon by experts, such as veterinarians, to assess the health of equines. Thus, we turn to Neb.
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Evid. R. 703, Neb. Rev. Stat. § 27-703 (Reissue 2008),
which provides:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible
in evidence.
Accordingly, while the Henneke scores were admitted over
objection, any error in doing so was harmless, given that under
the foregoing evidentiary rule, the veterinarians could, and
did, testify about such—even if the scores were not admissible
in evidence.
[18] Moreover, the veterinarians responsible for assigning
the body scores—Hardin and Wohlers—testified that they had
reviewed the photographs of each animal and compared such
to the score on the form, and, to a reasonable degree of medical certainty, determined that the forms in evidence truly and
accurately reflected the Henneke scores given to each animal
on the date it was examined by them. Thus, despite the fact
that the handwritten body scores found on the Coggins reports
may have been hearsay, they were nonetheless cumulative of
the testimony given by Hardin and Wohlers regarding the body
condition of the animals, and their admission at trial was therefore harmless. See, State v. Rieger, 260 Neb. 519, 618 N.W.2d
619 (2000) (where evidence is cumulative and other competent
evidence supports conviction, improper admission or exclusion of evidence is harmless beyond reasonable doubt); State
v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996) (cumulative evidence means evidence tending to prove same point of
which other evidence has been offered). In this case, the poor
state of the range, the horrible condition of the animals testified to by a number of witnesses, and simply the photographs
of each animal provided what can only be characterized as
overwhelming evidence to sustain the convictions. Thus, the
evidence of the Henneke body scores was cumulative, and of
no real prejudice to Meduna.
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[19] With respect to Meduna’s assertion that the forms lack
foundation because they were not authenticated, Hardin and
Wohlers testified that the forms were what they purported to
be—Coggins reports used to record identifying and healthrelated information about each of the animals examined at the
fairgrounds. The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question
is what its proponent claims. Neb. Evid. R. 901(1), Neb. Rev.
Stat. § 27-901(1) (Reissue 2008). A document may be authenticated by testimony by one with personal knowledge that it
is what it is claimed to be, such as a person familiar with its
contents; a showing of specific authorship is not always necessary. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
We find that the authentication requirement was satisfied by
the trial testimony of Hardin and Wohlers. For the foregoing reasons, there is no merit to this claim, and there was no
prejudicial error in the admission of the exhibits containing the
handwritten Henneke body scores for the mustangs.
Excessive Sentences.
Meduna next alleges that the trial court imposed excessive sentences. More specifically, Meduna takes issue with
the court’s order that he not own, possess, or reside with any
animal for a period of 30 years. Without citing any authority whatsoever, Meduna contends that “[s]uch a condition is
a form of custody that is an unconstitutional restraint upon
his liberty subsequent to the completion of his sentence and
is a violation of [his] right to be free from cruel and unusual
punishment under the U.S. Eighth and Fourteenth Amendments
and Nebraska Constitution.” Brief for appellant at 13-14. This
argument spans a sum total of 13 lines in Meduna’s brief. The
State briefly responds that Meduna’s argument is merely an
assertion that is not presented to this court “in a manner that
permits resolution of the issue, and it is therefore defaulted.”
Brief for appellee at 20, citing In re Interest of Hope L. et al.,
278 Neb. 869, 775 N.W.2d 384 (2009). We take the State’s
response to be simply that the claim of error is procedurally
barred—and we agree.
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[20] When considering sentences imposed by the trial court,
the law is clear that, absent an abuse of discretion by the trial
court in sentencing within statutory limits, this court will not
disturb the action of the trial court on appeal. See State v.
Segura, 265 Neb. 903, 660 N.W.2d 512 (2003). And, because
all crimes in Nebraska are statutory in nature, so, too, are the
sentences imposed upon the persons convicted of such crimes.
See State v. White, 256 Neb. 536, 590 N.W.2d 863 (1999).
The sentence restricting Meduna’s ownership of or residence
with animals is specifically authorized by the Legislature.
Under § 28-1009(1), a person who intentionally, knowingly,
or recklessly abandons or cruelly neglects an animal is guilty
of a Class I misdemeanor, unless the abandonment or cruel
neglect results in serious injury or illness or death of the
animal, in which case it is a Class IV felony. Here, Meduna
was convicted of 145 counts of cruel neglect of an animal
resulting in serious injury or illness or death, all Class IV
felonies. Meduna does not challenge the incarceration portion
of his sentences.
[21] Under Neb. Rev. Stat. § 28-1019 (Reissue 2008), if a
person is convicted of a Class IV felony under § 28-1009, as
Meduna was 145 times, the sentencing court shall order such
person not to own, possess, or reside with any animal for at
least 5 and no more than 15 years after the date of conviction.
At sentencing, the trial judge explained that Meduna’s 145
convictions would be broken down into two groups—one for
the deceased animals and another for those animals that were
seriously injured or ill. For each group, Meduna was sentenced
to a term of 20 to 60 months’ imprisonment and also ordered
not to own, possess, or reside with any animal for a period
of 15 years. The court ordered that each of the two 15-year
terms would run consecutively, for a total of 30 years. Thus,
Meduna’s sentences are statutorily authorized and not in excess
of the statutory limit.
[22,23] Although Meduna’s assignment of error is that his
sentences are excessive, his only argument is simply that the
portion of his sentences prohibiting him from owning, possessing, or residing with any animal for a total of 30 years
runs afoul of his constitutional right to be free from cruel and
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unusual punishment. This argument does not match his assignment of error because there is no assignment that § 28-1019
provides for an unconstitutional penalty. To be considered
by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party
assigning the error. Bellino v. McGrath North, 274 Neb. 130,
738 N.W.2d 434 (2007). Thus, we cannot consider the constitutional claim Meduna attempts to raise in his brief for this
reason. In addition to that deficiency, we note that while this
court cannot determine the constitutionality of a statute, we do
have jurisdiction to determine whether a constitutional question
has been properly raised, when necessary to a decision in the
case before us. See, State v. Johnson, 12 Neb. App. 247, 670
N.W.2d 802 (2003); Harvey v. Harvey, 6 Neb. App. 524, 575
N.W.2d 167 (1998). The Nebraska Supreme Court insists upon
strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev.
2008) before it will consider a constitutional challenge. See
Harvey v. Harvey, supra. Section 2-109(E) requires that a party
presenting a case involving the federal or state constitutionality
of a statute must file and serve a separate written notice thereof
with the Supreme Court Clerk at the time of filing such party’s
brief. This was not done, and thus, there is another deficiency
that also constitutes a procedural bar to Meduna’s claim of
unconstitutionality of the district court’s sentence imposed
under the authority of § 28-1019. Thus, for these reasons, we
do not consider the assignment of error of excessive sentences
any further because it is procedurally barred.
Ineffective Assistance of Counsel.
Because Meduna has new counsel for the present appeal,
his final assignment of error includes nine individual claims of
ineffective assistance by his trial counsel. In his brief, Meduna
asserts that “[f]or each claim asserted in this section, the record
is absent or incomplete.” Brief for appellant at 14. However,
he raises the issues to preserve them for postconviction review.
Meduna’s specific claims are that trial counsel failed to (1)
timely advise him of the particulars of an offer of plea agreement by the State; (2) seek a change of venue; (3) move to
suppress evidence derived from the illegal seizure of 16 of his
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mustangs removed from his property on April 22, 2009, without
his permission or consent and without a warrant authorizing the
seizure; (4) conduct a proper pretrial investigation; (5) present
exculpatory evidence known to the defense at trial; (6) obtain
exculpatory evidence after he was granted a motion to compel
discovery of the evidence; (7) call experts for the defense; (8)
cross-examine the witnesses effectively; and (9) subject the
State’s case to meaningful adversarial testing.
[24,25] 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. State v.
Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order. State v. McGhee, 280 Neb. 558,
787 N.W.2d 700 (2010). Counsel’s performance is deficient if
counsel did not perform at least as well as a criminal lawyer
with ordinary training and skill in the area. State v. Sandoval,
supra. In order to show prejudice as an element of ineffective assistance of counsel, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient perform
ance, the result of the proceeding would have been different.
See State v. McGhee, supra.
[26,27] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal; the
determining factor is whether the record is sufficient to adequately review the question. State v. Young, 279 Neb. 602, 780
N.W.2d 28 (2010). When the issue of ineffective assistance of
counsel has not been raised or ruled on at the trial court level
and the matter necessitates an evidentiary hearing, an appellate
court will not address the matter on direct appeal. See State v.
McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009). While
we find that the record is insufficient to address the majority of
Meduna’s claims of ineffective assistance of trial counsel, and
thus we decline to address them, there are two such claims that
can be disposed of presently.
First, there is no merit to Meduna’s claim that trial counsel was deficient for failing to move for a change of venue
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s
ubsequent to the pretrial hearing when the motion was initiated. In his brief, Meduna argues that trial counsel “could
have adduced copious evidence” of the pretrial publicity in
this case. Brief for appellant at 16. Meduna’s brief recites that
“[t]he jury was admonished at one point to ignore ‘demonstrators’ outside the court house.” Id. These allegations are simply
insufficient to overcome the high hurdle required for a change
of venue.
Juror exposure to information about a defendant’s prior
convictions or to news accounts of the crime with which he is
charged does not alone presumptively deprive the defendant of
due process. State v. Galindo, 278 Neb. 599, 744 N.W.2d 190
(2009) (massive publicity of five murders committed during
attempted bank robbery insufficient for change of venue). A
court will not presume unconstitutional partiality because of
media coverage unless the record shows a barrage of inflammatory publicity immediately prior to trial, amounting to a huge
wave of public passion or resulting in a trial atmosphere utterly
corrupted by press coverage. State v. Schroeder, 279 Neb. 199,
777 N.W.2d 793 (2010).
[28,29] There is no allegation that the community where
these crimes occurred and Meduna was tried was subjected to
a barrage of inflammatory publicity creating a wave of public
passion or a corrupted trial atmosphere. Meduna’s trial counsel
acknowledged at the pretrial hearing that he could not meet
the burden required for a change of venue, and the competency of counsel is presumed. See State v. Nielsen, 243 Neb.
202, 498 N.W.2d 527 (1993), disapproved on other grounds,
State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). The
fact that trial counsel never reasserted the motion shows that,
even after voir dire, he was unable to do so—and we again
presume that decision to be a competent decision. Defense
counsel is not ineffective for failing to raise an argument that
has no merit. See State v. Young, supra. In this case, the allegations on this point are plainly insufficient, and moreover,
given the overwhelming evidence against Meduna, there could
be no prejudice in any event. See State v. Long, 264 Neb. 85,
645 N.W.2d 553 (2002) (defendant must show that his or her
counsel’s performance was deficient and that this deficient
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p
erformance actually prejudiced his or her defense). If it is
more appropriate to dispose of an ineffectiveness claim due to
the lack of sufficient prejudice, that course should be followed.
Id. Prejudice means that there is a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have been different. See State v. Thomas, 262
Neb. 985, 637 N.W.2d 632 (2002). Thus, in this case, prejudice
means that but for the failure to file a motion for a change of
venue, Meduna would have been acquitted—a result that is
closer to impossible rather than probable, given the evidence
arrayed against Meduna.
Meduna also argues that his trial counsel was ineffective
for failing to subject the State’s case to meaningful adversarial
testing. He argues that “each action and inaction of trial counsel is questionable; viewed in their entirety, the actions and
inactions are inexcusable.” Brief for appellant at 30. In his
brief, Meduna cites to United States v. Cronic, 466 U.S. 648,
656-57, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), for the following proposition:
[T]he adversarial process protected by the Sixth
Amendment requires that the accused have “counsel acting in the role of an advocate.” . . . The right to the effective assistance of counsel is thus the right of the accused
to require the prosecution’s case to survive the crucible
of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense
counsel may have made demonstrable errors—the kind of
testing envisioned by the Sixth Amendment has occurred.
But if the process loses its character as a confrontation between adversaries, the constitutional guarantee
is violated.
Without further analysis or explanation, Meduna’s brief then
recites, “There simply was no adversarial testing at . . .
Meduna’s trial.” Brief for appellant at 31.
Having reviewed the trial record, we can say that such does
not support the claim that Meduna’s trial counsel entirely failed
to subject the prosecution’s case to meaningful adversarial testing. On the contrary, the record contains volumes of evidence
documenting the cross-examination by Meduna’s trial counsel
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of the State’s 19 witnesses. A “confrontation between adversaries” clearly occurred at trial. See Untied States v. Cronic,
supra. There is thus no merit to this claim.
CONCLUSION
Because we find that Meduna’s assigned errors are without
merit or were not prejudicial to him or are procedurally barred,
we affirm Meduna’s convictions and sentences.
Affirmed.
In
re I nterest of
State
of
and
Emily R., a child under 18 years of age.
Nebraska, appellee, v. Emily R., appellee,
Nebraska Department of Health and
Human Services, appellant.
___N.W.2d___
Filed January 11, 2011. No. A-10-374.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. ____: ____. Statutory language is to be given its plain and ordinary meaning,
and an appellate court will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
4. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Reversed and remanded for
further proceedings.
Sarah E. Sujith, Special Assistant Attorney General, of
Department of Health and Human Services, for appellant.
No appearance for appellees.
Inbody, Chief Judge, and Moore and Cassel, Judges.
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