State v. Sellers

Other courts have applied this reasoning to find a “limited”
or “selective” invocation of the right to remain silent—appli-
cable only to certain times or certain subjects.51 But any state-
ments made during the conversation after Schroeder wished to
end it were suppressed by the trial court.
The continuing questioning of Schroeder during and after52
his polygraph examinations was not in violation of Schroeder’s
right to remain silent. The trial court did not err in denying
Schroeder’s motion to suppress those statements.
CONCLUSION
The trial court did not err in denying Schroeder’s motions
to change venue, sever the charges, suppress, and instruct on
lesser-included offenses. We affirm.
A ffirmed.
51 See, e.g., Arnold v. Runnels, 421 F.3d 859 (9th Cir. 2005); State v. Adams,
supra note 37.
52 See Wyrick v. Fields, 459 U.S. 42, 103 S. Ct. 394, 74 L. Ed. 2d 214
(1982).
StAte of NebrASkA, Appellee , v.
terry J. SellerS, AppellANt.
777 N.W.2d 779
Filed January 15, 2010. 	No. S-08-434.
1. Trial: Appeal and Error. The responsibility for conducting a trial in an orderly
and proper manner for the purpose of ensuring a fair and impartial trial rests
with the trial court, and its rulings in this regard will be reviewed for an abuse
of discretion.
2. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
4. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
220 	279 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

5. 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.
6. Appeal and Error. Absent plain error, an issue not raised to the trial court will
not be considered by the Nebraska Supreme Court on appeal.
7. Trial: Motions for Mistrial: Waiver: Appeal and Error. When a party has
knowledge during trial of irregularity or misconduct, the party must timely
assert his or her right to a mistrial. One may not waive an error, gamble on a
favorable result, and, upon obtaining an unfavorable result, assert the previously
waived error.
8. Appeal and Error: Words and Phrases. plain error is error of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
9. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
10. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
11. Jury Instructions: Testimony: Appeal and Error. A defendant is entitled to a
cautionary instruction on the weight and credibility to be given to the testimony
of an alleged accomplice, and the failure to give such an instruction is revers-
ible error.
12. 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 mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
13. Jury Instructions. In construing an individual jury instruction, the instruction
should not be judged in artificial isolation but must be viewed in the context of
the overall charge to the jury considered as a whole.
14. Jury Instructions: Appeal and Error. Absent plain error indicative of a prob-
able miscarriage of justice, the failure to object to a jury instruction after it has
been submitted for review precludes raising an objection on appeal.
15. Rules of Evidence: Appeal and Error. When the Nebraska Evidence rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
16. Trial: Evidence: Appeal and Error. A trial court’s determination of the rele-
vancy and admissibility of evidence must be upheld in the absence of abuse
of discretion.
17. Evidence. Evidence which is not relevant is not admissible.
18. Evidence: Words and Phrases. relevant evidence is that which has any tend-
ency to make the existence of any fact that is of consequence to the determi-
nation of the action more probable or less probable than it would be without
the evidence.
19. Rules of Evidence. Under Neb. Evid. r. 403, Neb. rev. Stat. § 27-403
(reissue 2008), evidence may be excluded if its probative value is substantially
STATE v. SELLErS 	221
Cite as 279 Neb. 220

outweighed by the danger of unfair prejudice, confusion of the issues, or mislead-
ing the jury.
20. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
21. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s perform-
ance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
22. 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 defi-
cient and that this deficient performance actually prejudiced his or her defense.
23. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question.
Appeal from the District Court for Douglas County: peter
C. bAtAilloN, Judge. Affirmed.
Clarence E. Mock and Denise E. Frost, of Johnson & Mock,
for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
H eAviCAN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrArd, 	StepHAN,
mCC ormACk, and miller-lermAN, JJ.
gerrArd, J.
I. NATUrE OF CASE
Terry J. Sellers was convicted of two counts of first degree
murder, one count of attempted murder, and three counts of
use of a deadly weapon to commit a felony in connection
with those charges. Sellers appeals, arguing that the district
court failed to properly instruct the jury and that his coun-
sel was ineffective in failing to object to those jury instruc-
tions. Sellers also asserts that the court erred in refusing to
allow the admission of evidence seized during the arrest of
a State’s witness and in overruling his motion for mistrial
after alleged misconduct by a prosecution witness and her
222 	279 NEBrASkA rEpOrTS

attorney at trial. Finding no error, we affirm Sellers’ convic-
tions and sentences.
II. BACkGrOUND
Viewing the evidence in a light most favorable to the State,
as we must, the prosecution witnesses generally testified that
Sellers and Taiana Matheny engaged in a scheme whereby
Matheny would lure men to secluded locations so that she and
Sellers could rob and murder them. The State’s evidence indi-
cated that over the course of about 4 days in late February 2005,
Sellers and Matheny successfully robbed and shot to death two
men, kevin pierce and Victor Ford, and robbed and unsuccess-
fully attempted to murder another, DaWayne kearney.
Sellers and Matheny were arrested after their confrontation
with kearney went awry. Sellers was charged with two counts
of first degree murder for the deaths of pierce and Ford, one
count of attempted murder of kearney, and three counts of use
of a deadly weapon to commit a felony in connection with
those charges. Matheny testified against Sellers at trial pursu-
ant to a plea agreement, and her testimony was the foundation
of the State’s case against Sellers. Sellers, who also testified at
trial, denied Matheny’s accounts of the killings.
Sellers was convicted of all charges. He was sentenced to
life imprisonment for the murders of pierce and Ford, 40 to 50
years’ imprisonment for the attempted murder of kearney, 50
to 50 years’ imprisonment each for use of a weapon to commit
the pierce and Ford murders, and 40 to 50 years’ imprison-
ment for use of a weapon to commit the kearney felony. The
sentences were to be served consecutively. Sellers has appealed
through new counsel. Other facts relevant to the specific issues
raised on appeal will be set forth below as necessary.
III. ASSIGNMENTS OF ErrOr
Sellers assigns, renumbered and restated, that (1) the trial
court erred in denying Sellers’ motions for mistrial and for
a jury instruction, after prejudicial conduct by a prosecution
witness and her attorney during trial; (2) the trial court erred
in giving jury instruction No. 22; (3) the trial court erred in
giving jury instruction No. 24; (4) the trial court erred in
refusing to permit Sellers to adduce evidence of two handguns
STATE v. SELLErS 	223
Cite as 279 Neb. 220

seized from the residence where kearney was arrested; and
(5) Sellers received ineffective assistance of counsel at trial,
because his counsel failed to object to jury instructions Nos.
22 and 24.
IV. ANALYSIS
1. diStriCt C ourt did Not err iN overruliNg
motioN for miStriAl
Sellers first asserts the district court erred in failing to
grant him a mistrial, or a jury instruction, because of preju-
dicial acts and statements by Matheny and her counsel at
trial. Specifically, Sellers argues that his trial was tainted by
Matheny’s weeping and vomiting during her testimony and by
an attorney-client objection voiced by Matheny’s attorney from
the gallery.
(a) Standard of review
[1-3] The responsibility for conducting a trial in an orderly
and proper manner for the purpose of ensuring a fair and
impartial trial rests with the trial court, and its rulings in this
regard will be reviewed for an abuse of discretion.1 The deci-
sion whether to grant a motion for mistrial is within the discre-
tion of the trial court and will not be disturbed on appeal in
the absence of an abuse of discretion.2 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.3
(b) Matheny’s Conduct During Testimony
(i) Background
Matheny testified generally that the killing of pierce was
the end result of a sequence of events that began when she met
pierce at a gas station, flirted with him, and got his telephone
number. Later that night, Matheny, Sellers, and Sellers’ cousin,
Terrell Thorpe, went to an apartment complex where Matheny
1 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
2 State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
3 State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 (2006).
224 	279 NEBrASkA rEpOrTS

had arranged to meet pierce. While waiting for pierce to
arrive, Sellers asked Matheny if she was afraid of guns and she
replied no. Matheny also testified that while waiting for pierce
to arrive, Sellers stated that “somebody was going to die that
night.” When pierce arrived, Matheny exited her vehicle and
walked pierce around the building to where Sellers and Thorpe
were waiting. Sellers and Thorpe rushed pierce, put him on the
ground between the garage and a Dumpster, and went through
his pockets. Matheny testified that Sellers told her to go
through pierce’s pockets. But Matheny was unable to get into
the pockets, so she removed pierce’s pants and shoes. Sellers
knelt down next to pierce’s head and gave Matheny a glove.
Sellers placed a gun at the base of pierce’s head. Matheny tes-
tified that Sellers placed her hand, with the gun, at the base of
pierce’s head. She pulled the trigger.
During Matheny’s testimony about the killing of pierce,
Matheny cried a great deal and, unexpectedly, vomited into
a trash can. Shortly after Matheny vomited, the court took a
recess “so that [Matheny] can compose herself and get cleaned
up, and the jury has — is in their jury room.” At that point,
Sellers’ counsel made a motion for mistrial, outside the pres-
ence of the jury, arguing that Matheny’s conduct was “highly
prejudicial to [Sellers], and it was done in front of the jury.”
Sellers’ counsel pointed out that Matheny “[has] been weeping
out loud during most of her — the second part of the testi-
mony.” Sellers’ counsel noted that unlike Matheny’s testimony
at trial, in her previous statements to police, “nothing of this
nature, crying, carrying on, ever happened.” Sellers’ counsel
asserted that the jury was “quite distressed” by Matheny’s con-
duct. The court overruled the motion for mistrial.
Sellers then requested a jury instruction, before testimony
resumed, which would admonish the jury that it was to disre-
gard Matheny’s conduct and that no sympathy for witnesses
should enter into its deliberations. The court also overruled
that request, stating that the jury would be instructed during the
instruction phase that “sympathy or prejudice or bias shall not
be a part of [its] deliberations or consideration.” Sellers argued
that the end-of-trial instruction was insufficient, but the jury
was instructed as set forth above.
STATE v. SELLErS 	225
Cite as 279 Neb. 220

(ii) Analysis
[4] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial which is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a
fair trial.4 Egregiously prejudicial statements of counsel, the
improper admission of prejudicial evidence, and the introduc-
tion to the jury of incompetent matters provide examples of
events which may require the granting of a mistrial.5
[5] We have reviewed episodes of emotion during trial on
several occasions. In Wamsley v. State,6 we recognized that
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. In that case,
a rape prosecution, we held that the defendant was deprived of
a fair trial because of the cumulative effect of prejudicial acts
and statements at trial.
The prejudicial acts in Wamsley included emotional out-
bursts by the victim and her father and improper conduct
of a county attorney expressing his personal opinions in
argument to the jury. Some of the victim’s outbursts were
heard throughout the floor of the courthouse on which the
courtroom was located. And at one point during the victim’s
cross-examination, her father rose from the audience and
stated, “‘That’s enough,’” and then proceeded to the witness
stand and assisted the victim down from the stand.7 The trial
court took no action. The trial court later overruled a motion
for mistrial and did not admonish the jury to disregard the
outbursts. We held that the defendant in Wamsley was denied
a fair and impartial trial, noting that sympathy for the victim
and hostility toward the defendant could have been allevi-
ated by, among other things, rebukes to those who violated
4 State v. Mason, 271 Neb. 16, 709 N.W.2d 638 (2006).
5 Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005), citing State v.
Groves, 239 Neb. 660, 477 N.W.2d 789 (1991).
6 Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).
7 Id. at 205, 106 N.W.2d at 27.
226 	279 NEBrASkA rEpOrTS

established rules of conduct and admonishing the jury to
disregard such incidents and to return a dispassionate verdict
based solely on the evidence before it.
By contrast, in State v. Scott,8 we examined whether an
elderly witness’ tearful conduct prejudiced a criminal defend-
ant charged with shooting that witness and killing her husband.
In Scott, the witness stumbled while leaving the witness stand
and began to weep because of an injury to her leg. We affirmed
the trial court’s decision to overrule the defendant’s motion for
mistrial, noting that the witness had shown no emotion during
her testimony and that her weeping was the result of her stum-
bling and hurting her leg, not her testimony. Unlike Wamsley,
the Scott court admonished the jury not to consider the inci-
dent, because it had no bearing on the guilt or innocence of the
defendant. We concluded that refusing to declare a mistrial did
not warrant reversal.
Guided by these principles, we conclude that Matheny’s con-
duct was not ground for mistrial. In the present case, there is
nothing in the record indicating that Matheny’s weeping during
portions of her testimony or her sudden illness had any bearing
on the guilt or innocence of Sellers. While the trial court did
not admonish the jury immediately following the incidents of
emotion, the jury was instructed both before and after trial not
to let sympathy or prejudice influence its verdict. Although it
would have been advisable for the court to admonish the jury
after Matheny’s emotional testimony, its failure to immediately
do so was not so untenable or unreasonable so as to constitute
an abuse of discretion under these circumstances.
(c) Attorney-Client Objection
Sellers points to a second incident he claims tainted the
trial—an attorney-client objection by Matheny’s counsel voiced
from the gallery.
(i) Background
On cross-examination, Matheny was asked why she waived
her speedy trial rights. Matheny responded by invoking her
8 State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978).
STATE v. SELLErS 	227
Cite as 279 Neb. 220

attorney-client privilege. After Sellers’ counsel asked the judge
to compel Matheny to answer, Matheny’s attorney objected,
from the gallery, “Judge, I don’t believe he can.” Questioning
continued, and Matheny testified that she waived a speedy trial
on advice of counsel. Matheny’s counsel then stated, “[S]he’s
just testified about my advice to her which is privileged.”
Sellers’ counsel then moved to strike Matheny’s counsel’s
statements, because “[h]e’s not a party to this case.” The judge
overruled the motion to strike. After a brief sidebar, the judge
excused the jury and a hearing was held. After the hearing, the
court allowed Matheny to assert the privilege.
(ii) Analysis
[6,7] The record reveals that following the attorney-client
objection, Sellers’ counsel moved to strike Matheny’s counsel’s
statements but did not move for a mistrial. Absent plain error,
an issue not raised to the trial court will not be considered by
this court on appeal.9 Furthermore, when a party has knowl-
edge during trial of irregularity or misconduct, the party must
timely assert his or her right to a mistrial.10 One may not waive
an error, gamble on a favorable result, and, upon obtaining an
unfavorable result, assert the previously waived error.11 Here,
Sellers moved to strike Matheny’s counsel’s statements, but
he did not move for mistrial based upon those remarks. As a
result, he has waived any error that may have resulted from
those remarks.
Sellers also makes passing reference to other allegedly dis-
ruptive behavior during the trial, but did not assign error to any
of the court’s decisions in that regard, so we will not consider
other alleged disruptions. On the issues presented in Sellers’
brief, we conclude that the district court did not abuse its dis-
cretion in overruling Sellers’ motion and we find this assign-
ment of error to be meritless.
9 State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005).
10 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
11 Id.
228 	279 NEBrASkA rEpOrTS

2. diStriCt C ourt did N ot err iN giviNg
J ury iNStruCtioN N o . 22
Sellers next argues that the district court erred in giving jury
instruction No. 22.
(a) Background
Two informal jury instruction conferences were held off
the record, and one formal conference was conducted on
the record. Neither the State nor Sellers objected to the jury
instructions ultimately given to the jury. Jury instruction No.
22, regarding accomplice testimony, provided:
There has been testimony from Taiana Matheny, a
claimed accomplice of the Defendant. You should closely
examine her testimony for any possible motive she might
have to testify falsely. You should hesitate to convict the
Defendant if you decide that Taiana Matheny testified
falsely about an important matter and that there is no
other evidence to support her testimony.
[8] As a threshold matter, we note that because Sellers did
not object to instruction No. 22, or any jury instruction for that
matter, the issue on appeal is whether the instruction given
was so deficient as to constitute plain error, which we have
defined as error of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness
of the judicial process.12 Sellers waived his right to complain
regarding instruction No. 22, and, for the following reasons, we
conclude there was no plain error requiring reversal.
(b) Standard of review
[9,10] Whether jury instructions given by a trial court are
correct is a question of law.13 When 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.14
12 State v. Greer, 257 Neb. 208, 596 N.W.2d 296 (1999).
13 State v. Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009).
14 See Iromuanya, supra note 1.
STATE v. SELLErS 	229
Cite as 279 Neb. 220

(c) Analysis
[11] Sellers initially argues that the use of the term “claimed
accomplice” in instruction No. 22 created a sort of judicial
finding that Matheny was an accomplice to Sellers, and that
such a finding was prejudicial to Sellers. However, a defendant
is clearly entitled to a cautionary instruction on the weight and
credibility to be given to the testimony of an alleged accom-
plice, and the failure to give such an instruction is reversible
error.15 The comment to NJI2d Crim. 5.6 states that “NJI2d
Crim. 5.6 does not define ‘accomplice.’” The comment, how-
ever, appropriately makes clear that whenever a judge decides
that the evidence supports a conclusion that a witness is an
accomplice, then the cautionary instruction is appropriate and
should be given. This is because any alleged accomplice tes-
timony should be examined more closely by the trier of fact
for any possible motive that the accomplice might have to
testify falsely.
Contrary to Sellers’ assertion, instruction No. 22 does not
create a finding that Matheny was an accomplice to Sellers.
rather, instruction No. 22 provides in plain English that
Matheny was a “claimed accomplice”—nothing more, nothing
less. Instruction No. 22 does not create any type of presump-
tion or a judicial finding that Matheny was an accomplice to
Sellers; rather, it is a cautionary instruction, favorable to the
accused, regarding the weight and credibility to be given to the
testimony of a claimed accomplice.
Sellers also argues that instruction No. 22 is plainly errone-
ous because it deviated from the pattern instruction. In this
case, the district court modified the pattern instruction by
omitting the last sentence of NJI2d Crim. 5.6, which provides,
“In any event, you should convict the defendant only if the
evidence satisfies you beyond a reasonable doubt of (his, her)
guilt.” Sellers argues that instruction No. 22 is plainly errone-
ous because before a jury could “hesitate to convict” Sellers
using Matheny’s testimony, jurors had to find that Matheny
“testified falsely about an important matter and that there is no
other evidence to support her testimony.”
15 See State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001).
230 	279 NEBrASkA rEpOrTS

[12] However, 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 neces-
sitating reversal.16 Although it would have been preferable for
the district court to use the Nebraska jury instruction in its
entirety, we certainly cannot say that the failure to do so under
the circumstances of this case constituted such a plain error
that to leave it uncorrected would result in damage to the integ-
rity or fairness of this trial.
[13] In construing an individual jury instruction, the instruc-
tion should not be judged in artificial isolation but must be
viewed in the context of the overall charge to the jury con-
sidered as a whole.17 Here, in addition to jury instruction No.
22, instruction No. 21 instructed the jury members that they
were “the sole judges of the credibility of the witnesses and
the weight to be given to their testimony.” The jury was also
instructed that the State was required to prove each and every
element of the offense charged beyond a reasonable doubt and
that otherwise, the jury was to find Sellers not guilty. In sum,
jury instruction No. 22 did not misstate the law and when it is
read in conjunction with the other jury instructions, there exists
no instructional plain error requiring reversal.
3. diStriCt C ourt did Not err iN giviNg
Jury iNStruCtioN No. 24
Sellers next argues that the trial court erred in giving jury
instruction No. 24, which dealt with evidence gathered dur-
ing an arrest of kearney after he repeatedly failed to appear
for trial.
(a) Background
(i) Attempted Killing of Kearney
According to Matheny, the sequence of events that led to the
attempted murder of kearney and Sellers’ arrest began when,
at Sellers’ direction, Matheny introduced herself to kearney,
16 State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008).
17 See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
STATE v. SELLErS 	231
Cite as 279 Neb. 220

flirted with him, and exchanged telephone numbers with him.
According to Matheny, Sellers wanted to rob kearney because
he was a drug dealer and had money.
The following evening, Sellers and Matheny retrieved a
handgun from Thorpe and drove to an apartment complex.
Matheny arranged to have kearney meet her there. Matheny
testified that when kearney pulled into the apartment complex,
Sellers exited Matheny’s car and hid behind a tree. kearney
parked next to Matheny’s car. Matheny got into kearney’s car
and talked with him briefly. They exited kearney’s car, and
as they started walking toward the apartment building, Sellers
approached kearney and put the gun to his head.
kearney and Sellers started fighting, and kearney wrested
the gun away from Sellers. The gun fired twice during
the struggle. At some point in the fight, Sellers asked for
Matheny’s help, so Matheny dug her fingernails into kearney’s
eyes. Matheny and kearney testified that Sellers had a knife
and stabbed kearney repeatedly, until kearney stopped mov-
ing. kearney testified that eventually, he “played . . . dead.”
Lying face down, kearney could hear and feel Matheny and
Sellers going through his pockets and removing his rings. At
that time, someone yelled “about the cops,” so Matheny and
Sellers ran to Matheny’s vehicle and drove out of the park-
ing lot.
Sellers’ account of that night is different from that of
Matheny and kearney. Sellers testified that he and Matheny
went to the apartment complex to meet kearney to buy some
marijuana. Sellers testified that after he asked kearney for
some marijuana, “it got crazy.” According to Sellers, kearney
pulled out a gun and fired it. Sellers testified that he ran from
kearney but doubled back because he did not want to leave
Matheny alone with kearney. A fight ensued. Sellers grabbed
his pocketknife and started “swinging wildly.” Sellers and
kearney fell to the ground, and kearney “rolled on top” of
Sellers. Sellers testified that Matheny pulled kearney off and
that Sellers and Matheny then ran to the car.
When kearney was found by police, he was screaming,
“They tried to kill me. They tried to kill me.” kearney was
transported to the hospital by ambulance. A gun was found at
232 	279 NEBrASkA rEpOrTS

the scene within arm’s length of kearney. The Omaha police
Department crime laboratory determined that the bullets that
killed pierce and Ford had been fired from that gun. A short
time after Matheny and Sellers fled the scene, Omaha police
stopped Matheny’s car and arrested Matheny and Sellers.
Matheny’s coat appeared to have blood on it, and Sellers also
had bloodstains on his clothing. Sellers had a knife in his
pocket with what appeared to be blood on it, a small amount of
marijuana, and $217 in cash.
(ii) Arrest of Kearney
After numerous unsuccessful attempts to serve kearney with
a subpoena to testify in the instant trial, kearney was arrested
on capias at the home of Jeremiah Brodie. Brodie and a woman
named Stenette Sturdivant were also detained. During the
arrest and a subsequent search of Brodie’s residence, Omaha
police officers found handguns, ammunition, marijuana, and
cash. Brodie was charged with being a felon in possession of
a firearm and possession of marijuana with intent to deliver,
and Sturdivant was charged with possession of stolen firearms
and possession of marijuana with intent to deliver. kearney
was not charged with any offense. Omaha police officer Dave
Bianchi testified that kearney was not charged, because “I
didn’t believe we had any evidence against him,” explaining
that Sturdivant admitted the guns were hers and that there
was no evidence kearney was in possession of the guns or of
the marijuana.
The State filed a motion in limine to exclude evidence regard-
ing the marijuana, firearms, and failure to charge kearney with
any crime. The district court ruled that Sellers could question
kearney as to what benefit, if any, he may have received on a
plea agreement and why kearney was not arrested in regard to
the marijuana and cash. The court refused, however, to allow
the jury to hear evidence of the guns and ammunition found
during kearney’s arrest. And the court gave jury instruction
No. 24, which provided:
Evidence of marijuana and money located at [Brodie’s
residence in] Omaha, Nebraska, was received only for the
limited purpose of the credibility of DaWayne kearney
STATE v. SELLErS 	233
Cite as 279 Neb. 220

and for no other purpose. You may consider this evidence
only for the limited purpose and for no other.
(b) Analysis
[14] Sellers argues that the district court erred in giving
jury instruction No. 24. However, absent plain error indica-
tive of a probable miscarriage of justice, the failure to object
to a jury instruction after it has been submitted for review
precludes raising an objection on appeal.18 Because Sellers
did not object to instruction No. 24, and concedes as much,
the issue on appeal is whether the instruction given was so
deficient as to constitute plain error, which we have defined
as error of such a nature that to leave it uncorrected would
result in damage to the integrity, reputation, or fairness of the
judicial process.19
Sellers argues that instruction No. 24 negated the logi-
cal inference that kearney was a drug dealer, which was
relevant and consistent with Sellers’ testimony that he met
with kearney to buy marijuana, not to rob and kill him.
Instruction No. 24, Sellers contends, was plainly erroneous,
and it prejudiced Sellers’ ability to present a complete defense
to the charges of robbery and attempted first degree murder
of kearney.
Instruction No. 24, however, did not foreclose Sellers’ abil-
ity to argue that kearney was a drug dealer. Sellers was per-
mitted to question kearney as to the drugs and money found
at Brodie’s residence and about any agreement kearney made
with the State. The evidence regarding the drugs and money
found during kearney’s arrest was admissible for the purpose
of determining who was truthfully describing the events of
the evening of the altercation—Sellers or kearney. Moreover,
the court gave two jury instructions regarding self-defense.
Instruction No. 24 did not preclude the jury from considering
Sellers’ version of the confrontation with kearney. Under these
circumstances, it was not plain error to instruct the jury as the
trial court did.
18 Greer, supra note 12.
19 Id.
234 	279 NEBrASkA rEpOrTS

4. diStriCt C ourt did Not err iN exCludiNg
evideNCe of HANdguNS
In a related argument, Sellers contends that the district court
abused its discretion when it excluded evidence of the two
handguns found when kearney was arrested.
(a) Standard of review
[15,16] When the Nebraska Evidence rules commit the
evidentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for
an abuse of discretion.20 A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the
absence of abuse of discretion.21
(b) Analysis
As noted above, Sellers argues that the court should have
admitted evidence of the handguns found at the scene of
kearney’s arrest. Sellers argues that this evidence supported his
theory that kearney was the aggressor and not Sellers. Had the
jury been permitted to learn of the guns found when kearney
was arrested, Sellers argues, the jury could logically infer that
kearney was familiar with and possessed guns. Sellers also
contends that the presence of guns obtained at kearney’s arrest
is consistent with and would lend support to Sellers’ defense
that on the night of the altercation with kearney, kearney
brought a gun and fired it at Sellers.
[17-19] Evidence which is not relevant is not admissible.22
relevant evidence is that which has any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence.23 Under Neb. Evid. r. 403,24 however,
evidence may be excluded if its probative value is substantially
20 Japp v. Papio-Missouri River NRD, 273 Neb. 779, 733 N.W.2d 551
(2007).
21 See Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
22 Neb. rev. Stat. § 27-402 (reissue 2008).
23 Neb. rev. Stat. § 27-401 (reissue 2008).
24 Neb. rev. Stat. § 27-403 (reissue 2008).
STATE v. SELLErS 	235
Cite as 279 Neb. 220

outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.25
Here, we conclude that the minimal probative value of the
evidence of handguns at the time of arrest was outweighed by
the danger of unfair prejudice or confusion of the issues. There
was no proof linking kearney to the handguns found during his
arrest. In fact, Bianchi testified that kearney was not charged
in connection with the handguns found at the Brodie resi-
dence, because there was not “any evidence against [kearney].”
Bianchi stated:
The guns we had placed in [Brodie’s and Sturdivant’s]
hands. We could not place the guns in [kearney’s] pos-
session at all. One of the guns, where it was located,
unless he was up in the bedroom might not even known
[sic] about it. But even if he did know about it, that didn’t
mean he was possessing them. He didn’t live there.
Because there was no direct connection between kearney
and the handguns recovered during his arrest, we conclude that
there was little or no probative value to the handgun evidence,
and any minimal probative value would be outweighed by the
danger of unfair prejudice. The district court did not abuse its
discretion in excluding this evidence.
5. reCord iNSuffiCieNt to A ddreSS iNeffeCtive
ASSiStANCe of C ouNSel
Sellers next claims that he received ineffective assistance of
counsel when his trial counsel did not object to instructions
Nos. 22 and 24.
(a) Standard of review
[20,21] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.26 When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error.27 With regard to the questions of counsel’s
25 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
26 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
27 State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
236 	279 NEBrASkA rEpOrTS

performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington,28 an appel-
late court reviews such legal determinations independently of
the lower court’s decision.29
(b) Analysis
[22,23] To prevail on a claim of ineffective assistance of
counsel under Strickland,30 the defendant must show that coun-
sel’s performance was deficient and that this deficient perform-
ance actually prejudiced his or her defense.31 Claims of inef-
fective assistance of counsel raised for the first time on direct
appeal do not require dismissal ipso facto; the determining
factor is whether the record is sufficient to adequately review
the question.32
We conclude that the record is not sufficient to address
Sellers’ claim of ineffective assistance of counsel. Even
though we have found no plain error with reference to
instructions Nos. 22 and 24, Sellers has not had a full eviden-
tiary opportunity to present the alleged deficiencies of coun-
sel for failing to object to the instructions. Conversely, there
certainly could have been valid strategic reasons for Sellers’
trial counsel to withhold objections to one or both of instruc-
tions Nos. 22 and 24. Without the benefit of a more complete
record, we decline to evaluate Sellers’ claim of ineffective
assistance of counsel.
V. CONCLUSION
For the foregoing reasons, we find no merit to Sellers’
assignments of error and affirm the judgment of the dis-
trict court.
A ffirmed.
28 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
29 Moyer, supra note 27.
30 Strickland, supra note 28.
31 State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007).
32 Id.
STATE v. SELLErS 	237
Cite as 279 Neb. 220