State v. McCree

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. McCREE
Cite as 322 Neb. 326
State of Nebraska, appellee, v.
Kashuan M. McCree, appellant.
___ N.W.3d ___
Filed September 18, 2026. 	No. S-24-972.
1. Rules of Evidence: Appeal and Error. Where 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.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Evidence: Waiver: Appeal and Error. A party who fails to make a
timely objection to evidence waives the right on appeal to assert preju-
dicial error concerning the evidence received without objection.
4. Trial: Evidence: Appeal and Error. On appeal, the defendant may not
assert a different ground for his or her objection to the admission of
evidence than was offered to the trier of fact.
5. Appeal and Error. When determining whether an alleged error is so
prejudicial as to justify reversal, courts generally consider whether the
error, in light of the totality of the record, materially influenced the out-
come of the case.
6. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
7. Hearsay. By definition, an out-of-court statement is not hearsay if the
proponent offers it for a purpose other than proving the truth of the mat-
ter asserted.
8. ____. Statements are not hearsay if the proponent offers them to
show their impact on the listener, and the listener’s knowledge, belief,
response, or state of mind after hearing the statements is relevant to an
issue in the case.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:33 AM CDT

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. McCREE
Cite as 322 Neb. 326
9. Rules of Evidence: Hearsay: Words and Phrases. Hearsay included
within hearsay, or double hearsay, is not excluded under the hearsay
rule if each part of the combined statements conforms with an exception
to the hearsay rule provided in the Nebraska Evidence Rules.
10. Jury Instructions: Appeal and Error. When a party assigns as error
the failure to give an unrequested jury instruction, an appellate court
will review only for plain error.
11. Trial: Juries: Appeal and Error. The standard of review in a case
involving discharge of a juror is whether the trial court abused its
discretion.
12. Trial: Juries. A trial court has broad discretion to discharge a juror for
cause so long as the court has a legal or factual basis to believe that the
juror cannot serve as an impartial juror.
13. Trial: Juries: Evidence. If a court is informed of matters which might
reasonably constitute grounds for a challenge for cause of one or more
jurors, which grounds arose out of matters occurring after the jury was
sworn, it is the duty of the court to hear evidence and examine the
jurors and determine whether any juror might be subject to disqualifi-
cation for cause.
14. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
15. ____: ____. Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, the appellate court must determine
whether a sentencing court abused its discretion in considering and
applying the relevant factors, as well as any applicable legal principles
in determining the sentence to be imposed.
16. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
17. Constitutional Law: Minors: Sentences. A sentencing court may, con-
sistent with the Eighth Amendment, impose an actual life-without-parole
sentence on an individual under 18 years of age so long as the sentenc-
ing court retains discretion to impose a lesser penalty.
18. Effectiveness of Counsel: Appeal and Error. An appellate court
resolves claims of ineffective assistance of counsel on direct appeal
only where the record is sufficient to conclusively determine whether
trial counsel did or did not provide effective assistance and whether the

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. McCREE
Cite as 322 Neb. 326
defendant was or was not prejudiced by counsel’s alleged deficient per-
formance as matters of law.
19. ____: ____. Whether a claim of ineffective assistance of counsel may be
determined on direct appeal is a question of law.
20. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
21. Effectiveness of Counsel: Proof: Appeal and Error. When reviewing
an ineffective assistance of counsel claim on direct appeal, the ques-
tion is whether the record affirmatively shows that the defendant’s trial
counsel’s performance was deficient, and that the deficient performance
actually prejudiced the defendant’s defense.
22. Effectiveness of Counsel: Proof. A court may examine performance
and prejudice in any order and need not examine both prongs if a
defendant fails to demonstrate either.
23. ____: ____. To show deficient performance, the defendant must show
that counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law.
24. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different.
25. Proof: Words and Phrases. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
26. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
27. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
28. ____. A generalized and vague assignment of error that does not advise
an appellate court of the issue submitted for decision will not be
considered.
29. Effectiveness of Counsel: Records: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it
requires examination of facts not contained in the record.
30. Evidence. Cumulative evidence means evidence tending to prove the
same point to which other evidence has been offered.
31. Trial: Convictions: Evidence: Appeal and Error. Where the evidence
is cumulative and there is other competent evidence to support the con-
viction, the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt.

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STATE v. McCREE
Cite as 322 Neb. 326
32. Motions to Strike: Jury Instructions. When an objection to or motion
to strike improper evidence is sustained and the jury is instructed to
disregard it, such instruction is deemed sufficient to prevent prejudice.
33. Trial: Constitutional Law: Testimony. A defendant has a fundamental
constitutional right to testify.
34. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
35. Trial: Attorney and Client: Testimony: Waiver. The competence and
soundness of defense counsel’s tactical advice is crucial to whether
counsel has presented sufficient information to the defendant to permit a
meaningful voluntary waiver of the right to testify.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
Matthew O. Mellor, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, and
Sarah P. Newell for appellant.
Michael T. Hilgers, Attorney General, and P. Christian
Adamski for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Vaughn, J.
I. INTRODUCTION
Kashuan M. McCree was convicted by a jury of first degree
murder and use of a firearm to commit a felony. On direct
appeal, McCree challenges both his convictions and his sen-
tences. McCree assigns multiple errors by the district court and
multiple deficiencies of trial counsel, which he alleges rise to
the level of deprivation of his right to effective counsel. For
the following reasons, we affirm.
II. BACKGROUND
On the last day of March 2023, McCree attended a house
party to celebrate the birthday of his cousin K.W. As many as
70 to 100 people attended, drugs and alcohol were present,

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STATE v. McCREE
Cite as 322 Neb. 326
and many of the party attendees were intoxicated. There
was loud music and balloons that were popped. The party
concluded when party attendee Damien Brave suffered fatal
gunshot wounds.
At trial, multiple party attendees testified to the events that
led up to Brave’s death, including Brave’s friend K.R. K.R.
testified that McCree had approached Brave, asking if he had
marijuana, but Brave “shook his head no,” despite K.R.’s mari-
juana being in Brave’s backpack. According to K.R., McCree
walked away but returned 2 to 3 minutes later, pulled out a
tan-colored gun from his waistband, and pointed it at Brave’s
stomach and asked, “So if I shoot you and take your bag,
there’s not going to be anything in it?” Brave was calm, had
his hands “[o]n his side,” and did not respond. K.R. testified
she turned to talk to another individual and, as K.R. turned her
head back toward Brave, the gun fired. She observed Brave
holding his stomach, and she ran. K.R. testified that she heard
three gunshots total; that after he was shot, two men carried
Brave to K.R.’s car; and that she drove Brave to the hospital.
Brave died from three gunshot wounds, one to his torso and
two to his right leg.
The day after the shooting, McCree left for Michigan.
Investigator Jason Drager and Sgt. Mike Ripley traveled to
Michigan to interview McCree. During the interview, McCree
admitted to shooting Brave but told investigators that Brave
had approached him seeking marijuana and then, when McCree
would not give him any, Brave pulled out a gun. According to
McCree, he then rushed Brave, Brave fired a shot, and then
McCree shot Brave with a tan-colored gun.
Three 9-mm shell casings were recovered at the scene; all
three were fired from the same gun, but no gun was recovered.
A DNA analysis of a partial profile that was obtained from a
combined swabbing of all three casings revealed that McCree
was one of two DNA contributors.
Following the jury’s verdicts of guilty on both counts,
McCree was sentenced to consecutive terms of imprisonment

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STATE v. McCREE
Cite as 322 Neb. 326
of not less than 70 years nor more than McCree’s life on
count I, first degree murder, a Class IA felony, and not less
than 15 years nor more than 20 years on count II, use of a fire-
arm to commit a felony, a Class IC felony. McCree received
credit for 587 days served. McCree appeals and was appointed
different counsel for the appeal.
III. ASSIGNMENTS OF ERROR
Of McCree’s 15 assigned errors, all of which have been
restated and renumbered, 5 assign errors of the district court
and the remaining 10 assign errors of ineffective assistance
of counsel.
McCree assigns district court errors regarding the admission
of evidence, jury procedure, and sentencing. The admission
of evidence assignments assert error in the court’s (1) admit-
ting evidence of McCree’s purported propensity for violence,
(2) overruling hearsay objections to statements made to law
enforcement that were admitted for investigatory purposes,
and (3) admitting evidence of McCree’s desire to obtain a
“teardrop tattoo.”
McCree’s jury procedure and sentencing assignments assert
that the district court (1) failed to meaningfully inquire of
juror No. 8 when she requested access to therapy after viewing
Brave’s autopsy photographs and (2) failed to consider the mit-
igating factors in Neb. Rev. Stat. § 28-105.02 (Reissue 2016)
during sentencing, including the results of the comprehensive
mental health evaluation.
McCree’s remaining 10 assignments of error assert ineffec-
tive assistance of counsel. His first two ineffective assistance
of counsel claims allege trial counsel performed deficiently by
failing to (1) object to propensity evidence, place propensity
evidence in context through cross-examination, and request
a limiting instruction and (2) effectively impeach and cross-
examine witnesses.
McCree’s next three assignments of error assert trial coun-
sel was ineffective for failing to (1) review discovery with

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STATE v. McCREE
Cite as 322 Neb. 326
McCree, (2) adequately discuss plea negotiations and poten-
tial trial outcomes with McCree, and (3) request an analysis
from “Dr. Matt Huss” as to the mitigation factors provided by
§ 28-105.02 and Miller v. Alabama, 567 U.S. 460, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012).
McCree’s final five assignments of error assert that trial
counsel performed deficiently by failing to (1) object to
teardrop tattoo evidence under Neb. Rev. Stat. § 27-403
(Reissue 2016) and request a limiting instruction, (2) request
a limiting instruction for statements made to law enforcement
received “‘for investigative purposes’” and not objecting to
their receipt under § 27-403, (3) object to testimony about
McCree’s credibility and the lack of credibility of other favor-
able witnesses, (4) object to the State’s improper bolstering of
each lay witness, and (5) adequately advise McCree whether
he should testify.
IV. STANDARD OF REVIEW
We set forth the applicable standards of review in the rel-
evant sections of the analysis below.
V. ANALYSIS
1. District Court Errors Regarding
Admission of Evidence
McCree assigns three errors of the district court regarding
the admission of evidence. We first set forth the standard of
review applicable to all three errors.
(a) Standard of Review
[1] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse

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STATE v. McCREE
Cite as 322 Neb. 326
of discretion. Id. A trial court has the discretion to determine
the relevancy and admissibility of evidence, and such determi-
nations will not be disturbed on appeal unless they constitute
an abuse of that discretion. State v. Price, 320 Neb. 1, 26
N.W.3d 70 (2025).
[2] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Corral, 318 Neb. 940, 20 N.W.3d 372
(2025).
(b) Admission of Evidence of
Propensity for Violence
McCree assigns the district court erred by admitting evi-
dence of his purported propensity for violence under Neb. Rev.
Stat. § 27-404 (Cum. Supp. 2024) because the State denied its
intention to introduce such evidence during pretrial motions,
McCree did not open the door, and the proper procedure for
admitting such evidence was not followed. Specifically, it
appears that McCree challenges the admission of messages
between K.W.’s cell phone and “Menace Da Yung OG” on
March 31, 2023; a message to a recipient named “POPS”
on March 29, 2023; messages to a recipient named “BM” between
March 8, 2023, and March 25, 2023; numerous photographs
and videos of McCree’s holding guns and marijuana; messages
between the iCloud accounts “menacemccree@icloud.com” and
“kemariondad@icloud.com”; and the testimony of Investigator
Chris Fields related to these items.
(i) Additional Background
Prior to trial, McCree filed a motion for disclosure of
the State’s intention to use § 27-404 evidence, which was
sustained; at the hearing, the State made no disclosures. At
trial, the messages, videos, and photographs McCree argues
represented improper character evidence under § 27-404
were admitted as exhibit 63 and were published to the jury.
McCree objected to the admission of exhibit 63, but only

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STATE v. McCREE
Cite as 322 Neb. 326
on hearsay and confrontation grounds. Thereafter, during
Investigator Fields’ testimony, the State sought to elicit tes-
timony about specific messages contained in exhibit 63, and
several objections were made. Only those arguably constitut-
ing § 27-404 objections and those required for context will
be specifically discussed.
a. Messages Between menacemccree@icloud.com
and kemariondad@icloud.com
Investigator Fields testified, over a relevance objection,
that an outgoing message from “menacemccree@icloud.com”
stated, “Yeah. Like I wasn’t, auntie was, because I was try-
ing to be cool of on my dead homie. Now I want to smoke
a person.” Investigator Fields then testified, over a “rel-
evance, 404” objection, that another outgoing message from
“menacemccree@icloud.com” stated, “But it ain’t no beef
but I still want to smoke him.” He testified another outgoing
message from “menacemccree@icloud.com” stated, “I was fit-
ting to smoke him big bro and I can’t stop thinking about this
[expletive] on my baby. I upped. I was fitting to send them
there bro.” Over a relevance objection, he testified an incom-
ing message from “kemariondad@icloud.com” stated, “Don’t
act on it bro.” During his interview, McCree told law enforce-
ment that his nickname is “Menace.”
The actual February 14, 2023, messages, which are substan-
tially similar to Investigator Fields’ testimony, are contained
within exhibit 63. Exhibit 63 also contains additional messages
that were omitted during Investigator Fields’ testimony and
provide additional context.
b. Message to “POPS” on March 29, 2023
When the State sought to elicit testimony from Investigator
Fields about specific messages “ending in 9783 pops” that
were contained in exhibit 63, McCree objected on relevance
and foundation. The State, in an effort to defeat McCree’s
objections, argued, “[I]t shows a propensity for violence. Even
the night of [the incident, McCree] is making statements of

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STATE v. McCREE
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wanting to use his anger, shoot a [expletive], or things like that.
It all goes to his state of mind.” After hearing the State’s argu-
ment, McCree responded that it was “improper character evi-
dence.” The district court overruled the objection and informed
trial counsel that if he wanted “to reference this objection on
any other messages coming up,” he could, to which trial coun-
sel responded, “I’ll just reference 603.” Investigator Fields then
testified that a message dated March 29, 2023, stated, “Make
sure you tell that [expletive] stay away from me cuz I’ll get
blick that.” Exhibit 63 shows the March 29, 2023, message
as being sent by “menacemccree@icloud.com” to a recipient
named “POPS” whose phone number ended in “9783” and as
stating, “[M]ake shur yu tell dat [expletive] stay away from me
kuhz ill getblike dat.”
c. Messages to “BM”
Investigator 	Fields 	testified, 	over 	objections 	of 	“foun-
dation, 	relevance, 	[and] 	603” 	that 	a 	message 	from
menacemccree@icloud.com 	to 	a 	recipient 	named 	“BM,”
whose phone number ended in “2691,” was sent on March 8,
2023, and stated, “Do you like my new pole.” He then testi-
fied that a second message from menacemccree@icloud.com
to the same recipient stated, “[Expletive] talks about shooting,
you know I got blicks.” Exhibit 63 contains the messages sent
to “BM,” which are substantially similar to what was testified
to by Investigator Fields and shows that the second message
was sent on March 25.
McCree does not point to any other objections made at
trial asserting that exhibit 63 or Investigator Fields’ testimony
regarding exhibit 63 was improper character evidence, and
McCree does not point to any request to strike exhibit 63
as improper character evidence under § 27-404. Although
McCree’s appellate brief appears to make other arguments as
to why he believes this evidence is not admissible, these fall
outside of the scope of his assignment of error and will not
be considered.

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STATE v. McCREE
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(ii) Resolution
[3,4] A party who fails to make a timely objection to evi-
dence waives the right on appeal to assert prejudicial error
concerning the evidence received without objection. State
v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). On appeal,
the defendant may not assert a different ground for his or her
objection to the admission of evidence than was offered to
the trier of fact. Id. A defendant must make an objection at
trial to the offer of evidence of other crimes, wrongs, or acts,
which was the subject of a hearing before the court, in order
to preserve an alleged error in its admission during trial. See
State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024), modified
on denial of rehearing 317 Neb. 917, 12 N.W.3d 787, disap-
proved on other grounds, State v. Rupp, 320 Neb. 502, 28
N.W.3d 74 (2025).
McCree fails to point to anywhere in the record showing
he objected to the admission of any of the complained-of
evidence on the basis of nondisclosure at pretrial motions
or improper process. At the time of McCree’s § 27-404
objections, exhibit 63 had already been offered and received.
Although McCree objected to exhibit 63 on grounds other than
§ 27-404, this did not properly preserve for appeal his argu-
ment that exhibit 63 constituted inadmissible character evi-
dence under § 27-404, that it was not disclosed pretrial, or that
the process was improper. See Harris, supra. Likewise, the
pretrial motion itself did not serve to preserve any § 27-404
objection not raised at trial. See Rush, supra. However, that
does not conclude our analysis.
We must also address whether the testimony of Investigator
Fields was admitted in error and whether the testimony was
prejudicial to McCree. This is necessary because “[e]rror may
not be predicated upon a ruling which admits or excludes evi-
dence unless a substantial right of the party is affected . . . .”
See Neb. Rev. Stat. § 27-103 (Reissue 2016).
[5] Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle a

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criminal defendant to the reversal of an adverse trial result.
State v. Torres Aquino, 318 Neb. 771, 19 N.W.3d 222 (2025).
An error in admitting or excluding evidence in a criminal trial,
whether of constitutional magnitude or otherwise, is prejudi-
cial unless it can be said that the error was harmless beyond
a reasonable doubt. Id. When determining whether an alleged
error is so prejudicial as to justify reversal, courts generally
consider whether the error, in light of the totality of the record,
materially influenced the outcome of the case. Id.
Any of the testimony of Investigator Fields that was not
objected to on § 27-404 grounds was not preserved for
appeal. The testimony of Investigator Fields that was arguably
objected to on § 27-404 grounds, as discussed above, was not
materially different than the evidence contained in exhibit
63, which was already in evidence. Accordingly, the district
court’s admission of Investigator Fields’ undisclosed testi-
mony, without proper procedure and over McCree’s § 27-404
objections, was harmless beyond a reasonable doubt. The trial
court’s ruling, even if found to be in error, did not materially
influence the outcome of the case, in light of the totality of
the record.
(c) Admission of Statements to Law Enforcement
for Investigatory Purposes
McCree assigns the district court erred by overruling his
hearsay 	objections 	to 	numerous 	statements 	made 	to 	law
enforcement that were admitted for investigatory purposes.
McCree also argues that a limiting instruction should have
been given to the jury.
(i) Additional Background
At trial, the following testimony was elicited, over hear-
say objections. Sergeant Ripley testified that he received an
anonymous call through dispatch that the caller “belie[ved]
that [McCree] was fleeing to Michigan.” Sergeant Ripley
also testified that McCree’s mother arrived at the crime scene
and told Sergeant Ripley that “she had heard there was a

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shooting at the house and she was concerned for her son’s
safety because he had been on runaway status for about three
or three and a half months.” Sergeant Ripley also testified
that a concerned citizen who had “no firsthand knowledge . . .
indicated to [him] that through social media she was hearing
that [McCree] was the person responsible for the shooting
up on North 27th.” The State also elicited testimony from
Investigator Drager that interviews with party attendees and
phone line tips were also “identifying [McCree].”
(ii) Resolution
[6] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted. State v. Mabior,
314 Neb. 932, 994 N.W.2d 65 (2023). Hearsay is not admis-
sible unless otherwise provided for in the Nebraska Evidence
Rules or elsewhere. Id.
[7,8] Some statements can be determined not to be hear-
say based solely on the definition of “hearsay.” For example,
by definition, an out-of-court statement is not hearsay if the
proponent offers it for a purpose other than proving the truth
of the matter asserted. Id. Thus, statements are not hearsay to
the extent that they are offered for context and coherence of
other admissible statements, and not for the truth or the truth
of the matter asserted. Id. This court applied this principle in
State v. Corral, 318 Neb. 940, 20 N.W.3d 372 (2025), when it
found that statements made to law enforcement to explain the
steps taken in an investigation of a defendant, rather than to
prove the truth of the matter asserted, are generally admissible
as nonhearsay provided the probative value of the evidence’s
nonhearsay purpose is not substantially outweighed by the
danger of unfair prejudice.
Similarly, statements are not hearsay if the proponent offers
them to show their impact on the listener, and the listener’s
knowledge, belief, response, or state of mind after hearing the
statements is relevant to an issue in the case. Mabior, supra.

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STATE v. McCREE
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[9] Hearsay included within hearsay, or double hearsay, is
not excluded under the hearsay rule if each part of the com-
bined statements conforms with an exception to the hearsay
rule provided in these rules. Corral, supra.
The record establishes that the district court did not err in
admitting the testimony regarding the interviews and phone line
tips that identified McCree, the concerned citizen’s statements,
the anonymous caller’s statements, or McCree’s mother’s
statements because these statements were not offered to prove
that McCree was responsible for shooting Brave. Instead, they
were offered to explain why the investigation progressed the
way it did and why law enforcement identified McCree as a
suspect. Thus, the district court did not err in admitting the
statements for this nonhearsay purpose.
[10] As to the absence of a limiting instruction, “[w]hen a
party assigns as error the failure to give an unrequested jury
instruction, an appellate court will review only for plain error.”
State v. Hinrichsen, 292 Neb. 611, 638, 877 N.W.2d 211, 229
(2016). McCree did not request a limiting instruction but now
assigns error to the district court’s failure to give one. Thus,
this court reviews the failure to give a limiting instruction for
plain error only and finds none.
(d) Admission of Evidence of Desire
for Teardrop Tattoo
McCree assigns that the district court erred by admitting
evidence of his desire to obtain a teardrop tattoo because
the State laid inadequate foundation to reliably establish the
tattoo’s meaning and the foundation laid invited the jury to
speculate that McCree had gang ties, which was inadmissible
under Neb. Rev. Stat. §§ 27-401 (Reissue 2016) and §§ 27-403
and 27-404.
(i) Additional Background
Exhibit 63 contains the following April 2, 2023, messages
between McCree’s phone and a number marked “POPS”:
[McCree:] [W]ho yk do tattoo[o]s[?]

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[McCree:] [I] need a teardrop on me[.]
[“POPS”:] No you don’t[.]
[McCree:] [Y]es i do imma get one[.]
[“POPS”:] Real men don’t show off we invisible[.]
[“POPS”:] Tear drop only put you in a bad category[.]
Investigator Fields testified regarding the messages and, over
a foundation objection, stated that “[b]asically, gang mem-
bers, if they have taken a life, they get a teardrop tattoo to
signify how many people they’ve killed” and agreed the
meaning is “pretty common knowledge,” to his understanding.
McCree objected again on foundation and opinion, which were
ultimately sustained. The State then elicited testimony from
Investigator Fields that he taught the motorcycle gang portion
of new investigator training, was familiar with other types of
gang activities, and had listened to other investigators’ discus-
sions about “facial teardrop tattoos.” He was then asked again
what his understanding was as to what a teardrop facial tattoo
meant, and McCree objected on foundation. The trial court
overruled the objection, and Investigator Fields testified that
“[i]t’s a tattoo that somebody gets on their face when they’ve
taken somebody’s life.”
The State later elicited testimony highlighting another mes-
sage sent from McCree’s phone. The April 2, 2023, message,
contained within exhibit 63, states “deez [expletive] wanna tat
a yeardrop on me,” which Investigator Fields read as “Dee’s
want a tat a teardrop on me.” McCree did not lodge a specific
objection at the inception of this testimony.
On cross-examination, Investigator Fields admitted that he
did not know why McCree would have wanted to get a tear-
drop tattoo.
(ii) Resolution
McCree argues that highlighting and admitting, over con-
frontation and hearsay objections, the messages in exhibit
63 that McCree sent about wanting a teardrop tattoo, with-
out sufficient foundation, allowed the jury to speculate that

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he had gang ties, which was inadmissible under §§ 27-401,
27-403, and 27-404. McCree also argues that the State’s
introduction of evidence tying McCree’s interest in a teardrop
tattoo to gang violence invited the jury to speculate not only
that McCree had gang ties, but that those gang ties motivated
the conflict with Brave and that there was no evidence this
was the case. McCree further argues that allowing the State
to compound the prejudicial effect of its “‘drugs, firearms,
and violence’ theme” with the specter of gang involvement
constitutes reversible error. Brief for appellant at 21.
McCree did not object to exhibit 63 or the testimony of
Investigator Fields regarding the teardrop tattoo on the grounds
of §§ 27-401, 27-403, and 27-404; thus, this argument has not
been preserved and therefore will not be considered. See State
v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
As to McCree’s hearsay and Confrontation Clause objec-
tions, the messages attributable to McCree were his own
statements offered against him, falling into the nonhearsay
category of statements of a party opponent. See Neb. Rev.
Stat. § 27-801(4)(b)(i) (Cum. Supp. 2024). For this same rea-
son, their admission does not raise hearsay or Confrontation
Clause concerns. See State v. Vaughn, 314 Neb. 167, 190, 989
N.W.2d 378, 397 (2023) (“‘statement that is not hearsay raises
no Confrontation Clause concerns’”).
The statements within the messages authored by “POPS”
do not violate hearsay rules or the Confrontation Clause,
as they served only to assist the jury in understanding and
assessing the messages from McCree; they were not offered
to prove the truth of the matter asserted. See State v. Mabior,
314 Neb. 932, 965, 994 N.W.2d 65, 92-93 (2023) (“statements
are not hearsay to the extent that they are offered for context
and coherence of other admissible statements, and not for the
‘“truth or the truth of the matter asserted”’”).
No other objections were made to the admission of exhibit
63, which contained the messages. Thus, the messages them-
selves 	are 	not 	inadmissible 	on 	confrontation 	or 	hearsay

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grounds, and any error, if one exists, can only be based on
Investigator Fields’ explanation concerning the meaning of the
teardrop tattoo over McCree’s foundation objection.
McCree argues that the State laid inadequate foundation
for Investigator Fields’ testimony and that the foundation laid
invited the jury to speculate that McCree had gang ties. We do
not believe McCree has shown any error with respect to this
assignment. As for foundation, Investigator Fields explained
the basis for his knowledge as to the significance of a tear-
drop tattoo. We also disagree with McCree’s suggestion that
the foundation laid invited the jury to speculate that McCree
had gang ties. To the contrary, Investigator Fields merely
explained that he learned about teardrop tattoos and their sig-
nificance through teaching and participating in law enforce-
ment education regarding gang activities.
Furthermore, even if McCree could show that the district
court erred, any error would be harmless. Despite giving
a different account of the facts leading up to the shooting,
McCree admitted during his interview that he shot Brave.
Additionally, much of the testimony from the party attend-
ees at trial corroborated the State’s theory that McCree shot
Brave after a dispute over Brave not wanting to give McCree
his backpack or the contents thereof. Because the jury was
instructed that they could find McCree guilty of first degree
murder under felony murder, the State was required only to
prove beyond a reasonable doubt that McCree killed Brave
on or about March 31, 2023, in Lancaster County, Nebraska,
and that McCree did so while in the commission of a rob-
bery or did so in an attempt to commit a robbery. See State
v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024). Under this
theory, an intent to kill, premeditation, and malice were not
necessary. See id. Furthermore, Investigator Fields admitted
that he did not know why McCree would have wanted to get
a teardrop tattoo.
For 	these 	reasons, 	we 	conclude 	that 	the 	admission 	of
Investigator 	Fields’ 	testimony 	over 	McCree’s 	foundation

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objection did not, in light of the totality of the record, materi-
ally influence the outcome of the case and that therefore, any
error was harmless. See State v. Torres Aquino, 318 Neb. 771,
19 N.W.3d 222 (2025).
2. District Court Errors Regarding Jury
Procedure and Sentencing
McCree assigns the district court erred with respect to jury
procedure and sentencing.
(a) Failure to Question Juror No. 8
McCree assigns that the district court erred by failing to
“meaningfully inquire of” juror No. 8 when she requested
access to therapy after viewing Brave’s autopsy photographs.
(i) Standard of Review
[11] The retention or rejection of a juror is a matter of
discretion for the trial court. State v. Huff, 298 Neb. 522, 905
N.W.2d 59 (2017). Thus, the standard of review in a case
involving discharge of a juror is whether the trial court abused
its discretion. Id.
(ii) Additional Background
On November 1, 2024, the district court informed counsel
that juror No. 8 approached the bailiff outside the presence
of the other jurors and reported that “[a]fter viewing evidence
yesterday that was presented with photographs of [Brave’s]
body at the hospital, stated [she] became emotional and stated
that she had panic attacks last night and asked if there were
services available for once the trial is over to process through
those things.”
Upon learning of juror No. 8’s inquiry, the parties pro-
posed different courses of action be taken. McCree’s trial
counsel requested juror No. 8 be individually “questioned
about their ability to follow the instructions, decide the case
based on the evidence, and the evidence alone, and set aside
any of the feelings of the trauma or — the trauma they’re

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feeling, to be able to set that aside, base their decision on
the evidence alone” to determine whether juror No. 8 could
go forward. The State objected, stating that juror No. 8 gave
no indication this impacted her ability to “do the trial,” but,
rather, that it was “emotional” for her and she wondered if
there were “additional services.” The State further argued that
questioning juror No. 8 would be akin to asking her to reach
a conclusion or to “kind of” deliberate before the conclusion
of the trial.
The trial court overruled the request to have juror No. 8
questioned, explaining that the juror did not say she could not
be fair or impartial or that her decision was being swayed one
way or the other, the comments were not made in the presence
of other jurors, and she did not ask to do anything during the
trial or to be excused as a juror. The trial court further stated
that it believed that questioning juror No. 8 would start to
encroach into the deliberation process.
(iii) Resolution
McCree argues that, while juror No. 8’s emotionality did
not equate to misconduct, questioning juror No. 8 was neces-
sary to determine whether her emotionality was triggered by a
prejudicial event and that such an inquiry would have allowed
the district court to determine whether a curative instruction
reminding the jury that its decision needed to be based solely
on evidence and not on emotion, bias, or prejudice was nec-
essary. At oral argument, McCree’s counsel argued that the
failure to question juror No. 8 constituted structural error.
[12,13] A trial court has broad discretion to discharge a
juror for cause so long as the court has a legal or factual
basis to believe that the juror cannot serve as an impartial
juror. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
When an allegation of misconduct is made, and is supported
by a showing which tends to prove that serious misconduct
occurred, the trial court should conduct an evidentiary hear-
ing to determine whether the alleged misconduct actually

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occurred. State v. McDonald, 230 Neb. 85, 430 N.W.2d 282
(1988). If so, “‘the trial court must then determine whether it
was prejudicial to the extent the defendant was denied a fair
trial.’” Id. at 95, 430 N.W.2d at 289. A juror might testify as
to whether extraneous prejudicial information was improp-
erly brought to the jury’s attention, but no evidence may be
received as to the effect of any statement upon a juror’s mind,
its influence one way or another, or the mental processes of a
juror in connection therewith. McDonald, supra.
[I]f the court is informed “of matters which might rea-
sonably constitute grounds for a challenge for cause of
one or more jurors, which grounds arose out of mat-
ters occurring after the jury was sworn, it is the duty of
the court to hear evidence and examine the jurors and
determine whether any juror might be subject to dis-
qualification for cause. A failure to inquire under such
circumstances constitutes such fundamental unfairness as
to jeopardize the constitutional guaranty of the right to
trial by an impartial jury.”
State v. Huff, 298 Neb. 522, 532, 905 N.W.2d 59, 68 (2017)
(quoting State v. Myers, 190 Neb. 466, 209 N.W.2d 345
(1973)).
Despite the district court’s becoming aware of juror No.
8’s emotional response to the photographs and inquiry about
services available after trial regarding the same, the district
court was not obligated to inquire further. The district court
had no information that there existed a legal or factual basis
to believe that juror No. 8 could not serve as an impartial
juror, there were no allegations of misconduct, and the district
court was not informed of any matters which might reasonably
constitute grounds for a challenge for cause. Additionally, jury
instruction No. 1 stated, in part, that a juror “must not allow
sympathy or prejudice to influence your verdict.” Absent evi-
dence to the contrary, it is presumed that a jury followed the
instructions given in arriving at its verdict. State v. Barnes,
317 Neb. 517, 10 N.W.3d 716 (2024).

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For the above reasons, this court finds no abuse of discretion
by the district court in its decision not to further inquire into
the statements made by juror No. 8.
(b) Failure to Consider Mitigating Factors
in § 28-105.02 at Sentencing
McCree argues the district court failed to consider the
mitigating factors in § 28-105.02, including the results of the
comprehensive mental health evaluation under § 28-105.02(2)
(f), when it sentenced him to consecutive terms of imprison-
ment of not less than 70 years nor more than McCree’s life for
first degree murder and not less than 15 years nor more than
20 years for use of a firearm to commit a felony. This court
interprets McCree’s assignment as arguing that the district
court abused its discretion by failing to adequately consider the
factors in § 28-105.02, which resulted in excessive sentences
and was in violation of Miller v. Alabama, 567 U.S. 460, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012), thus constituting cruel
and unusual punishment. We disagree.
(i) Standard of Review
[14] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Hagens, 320 Neb. 65, 26 N.W.3d 174
(2025).
(ii) Resolution
[15] The sentences imposed by the district court for each
conviction were within the respective statutory limits. See
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2024). See, also,
§ 28-105.02. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its
discretion in considering and applying the relevant factors,
as well as any applicable legal principles in determining the
sentence to be imposed. State v. Rejai, 320 Neb. 599, 29
N.W.3d 225 (2026).

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[16] When imposing a sentence, the sentencing court is to
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the com-
mission of the crime. State v. Flores, 321 Neb. 284, 34 N.W.3d
106 (2026).
McCree was convicted of a Class IA felony for the offense
of first degree murder, and he was under the age of 18
when he committed that offense. Thus, the district court was
also obligated to consider the mitigating factors listed in
§ 28-105.02(2). One of the factors contained in § 28-105.02(2)
is “[t]he outcome of a comprehensive mental health evalua-
tion of the convicted person conducted by an adolescent men-
tal health professional . . . .” McCree argues that the district
court should have inquired as to the status of the evaluation
when one was not presented at sentencing because the court
had authorized a comprehensive mental health evaluation at
the time of the guilty verdicts and Matthew Huss, Ph.D., had
been retained.
The record refutes McCree’s assertion that the district court
failed to consider the appropriate sentencing factors and that
his sentences were excessive. At sentencing, the district court
specifically mentioned having considered the statutory fac-
tors, including the mitigating factors found in § 28-105.02,
as well as “the case at Miller [v.] Alabama, and other cases
along those lines.” (Emphasis supplied.) Had McCree submit-
ted the outcome of a comprehensive mental health evaluation,
the district court would have been required to consider it.
However, because § 28-105.02 provides that a “convicted per-
son may submit mitigating factors to the court, including, but
not limited to: . . . (f) The outcome of a comprehensive mental
health evaluation,” McCree’s failure to submit one does not
impose an obligation upon the district court to inquire as to
the same. (Emphasis supplied.)

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[17] Additionally, McCree’s sentences are not contrary to
Miller, even if they do, as McCree argues, amount to a de
facto life sentence because since Miller, this court has recog-
nized that a sentencing court may, consistent with the Eighth
Amendment, impose an actual life-without-parole sentence
on an individual under 18 years of age so long as the sen-
tencing court retains discretion to impose a lesser penalty.
See Flores, supra. Application of § 28-105.02, which pro-
vides for “a maximum sentence of not greater than life
imprisonment and a minimum sentence of not less than forty
years’ imprisonment” and contains a list of mitigating factors
for a sentencing court to consider, satisfies this requirement.
Thus, the district court did not abuse its discretion in sen-
tencing McCree.
3. Ineffective Assistance of Counsel Claims
McCree claims that he received ineffective assistance of
counsel in multiple respects. We first set forth the standard of
review and certain legal principles that govern such claims on
direct appeal.
(a) Standard of Review
[18-20] An appellate court resolves claims of ineffec-
tive assistance of counsel on direct appeal only where the
record is sufficient to conclusively determine whether trial
counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by coun-
sel’s alleged deficient performance as matters of law. State
v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025). An inef-
fective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing. Id.
Whether a claim of ineffective assistance of counsel may
be determined on direct appeal is a question of law. Id. An
appellate court reviews questions of law independently of
the lower court’s conclusion. State v. Ramos, 319 Neb. 511,
23 N.W.3d 640 (2025).

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(b) Legal Principles
[21,22] When reviewing an ineffective assistance of coun-
sel claim on direct appeal, the question is whether the record
affirmatively shows that the defendant’s trial counsel’s per-
formance was deficient, and that the deficient performance
actually prejudiced the defendant’s defense. Kruger, supra. A
court may examine performance and prejudice in any order
and need not examine both prongs if a defendant fails to dem-
onstrate either. Id.
[23-25] To show deficient performance, the defendant must
show that counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. Id. To
show prejudice, the defendant must demonstrate a reasonable
probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. Id. A rea-
sonable probability is a probability sufficient to undermine
confidence in the outcome. Id. In determining whether there
is a reasonable probability that any deficient performance of
trial counsel would have resulted in a different outcome in
the proceeding, an appellate court may properly consider the
strength of the admissible evidence relating to the contro-
verted issues in the case. Id.
[26] When reviewing claims of alleged ineffective assistance
of counsel, trial counsel is afforded due deference to formulate
trial strategy and tactics. Id. There is a strong presumption
that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions. Id. Ultimately, the
Constitution guarantees criminal defendants only a fair trial
and a competent attorney. Id.
(c) Claims Assigned
McCree asserts 10 instances of ineffective assistance. Two
of McCree’s claims lack specificity, and the record is not suf-
ficient to address three of his claims. The record is sufficient to
address the remaining five claims, but they lack merit.

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(i) Claims Lacking Specificity
[27] An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014). Claims of ineffec-
tive assistance of counsel are no exception. See id. On direct
appeal, claims of ineffective assistance of counsel must be both
specifically assigned and specifically argued in the appellant’s
brief. See id.
[28] An appellate court is not required to look to the remain-
der of the brief to supplement a lack of specificity in an assign-
ment of error. See State v. Garcia, 315 Neb. 74, 994 N.W.2d
610 (2023). A generalized and vague assignment of error that
does not advise an appellate court of the issue submitted for
decision will not be considered. Filholm, supra. Similarly, an
argument that does little more than to restate an assignment
of error does not support the assignment, and an appellate
court will not address it. Id. Two of McCree’s claims lack the
required specificity.
a. Failures Regarding Propensity Evidence
McCree assigns that trial counsel failed “to object to evi-
dence about McCree’s purported propensity towards violence
under . . . §§ 27-404 and 27-403, failing to place these com-
ments in context through cross-examination, and failing to
request a limiting instruction as to ‘state of mind.’”
McCree’s assignment, which requires this court to look
to the remainder of his brief to determine which evidence
McCree alleges constitutes propensity evidence, does not pro-
vide the required specificity and will not be considered. See
Garcia, supra.
b. Failure to Impeach and Cross-Examine
McCree assigns that his trial counsel “performed deficiently
in failing to effectively impeach and cross-examine witnesses.
This violated McCree’s right to effective assistance of counsel
and a fair trial under the state and federal constitutions.”

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Similar to McCree’s first ineffective assistance of counsel
claim regarding propensity evidence, McCree’s assignment
lacks the necessary specificity because it does not specify
which of the many witnesses McCree is referring to, and, thus,
it will not be considered.
(ii) Record Insufficient to Resolve Claims
[29] The record on appeal is sufficient if it establishes either
that trial counsel’s performance was not deficient, that the
appellant will not be able to establish prejudice as a matter of
law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy. State v. Kruger, 320 Neb.
361, 27 N.W.3d 398 (2025). Conversely, an ineffective assis-
tance of counsel claim will not be addressed on direct appeal
if it requires examination of facts not contained in the record.
Id. We are unable to address three of McCree’s claims due to
an insufficient record.
a. Failure to Review Discovery With McCree
McCree assigns that trial counsel failed to review discovery
with him so he could make an informed decision about the plea
offer, decide whether to testify, and assist with trial strategy
decisions. As mentioned above, on direct appeal, an appellate
court only addresses claims of ineffective assistance of counsel
that can be conclusively determined from the record. Id.
The record here does not establish what discovery existed,
what discovery was reviewed with McCree, or any insight into
trial counsel’s strategy. From our review of the record, we can-
not conclusively determine whether trial counsel’s performance
in review of discovery with McCree did or did not constitute
ineffective assistance of counsel. The record is, therefore, not
sufficient to resolve this claim on direct appeal.
b. Failure to Discuss Plea Negotiations
and Trial Outcomes
McCree assigns trial counsel failed to adequately discuss
plea negotiations and potential trial outcomes with him and

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that this violated his right to effective assistance of coun-
sel and a fair trial under the state and federal constitutions.
McCree concedes he was informed of the plea offer but asserts
he was unable to make an informed decision because he did
not have access to discovery and was not informed he could
make a counteroffer.
We cannot conclusively determine from the record whether
trial counsel adequately discussed plea negotiations and poten-
tial trial outcomes or whether a competent attorney would have
necessarily engaged in additional discussions. The record is,
therefore, not sufficient to review this claim on direct appeal,
and we decline to consider it at this time. See id.
c. Failure to Request Mitigation
Factor Analysis
McCree assigns that trial counsel was deficient for failing
to request an analysis from Huss as to the mitigation factors
provided by § 28-105.02 and Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). More specifically,
McCree asserts Huss, if asked, could have produced a report
identifying at least three mitigating factors. We agree with
McCree and the State that the record is not sufficient to review
this claim on direct appeal, and, thus, we decline to consider it
at this time. See Kruger, supra.
(iii) Claims Lacking Merit
The record is sufficient to address McCree’s remaining five
claims, but they lack merit.
a. Failure to Object to Teardrop
Tattoo Evidence
McCree assigns that trial counsel failed to object to the
teardrop tattoo evidence under § 27-403 and failed to request a
limiting instruction.
McCree argues that to the extent trial counsel is determined
to have failed to object on § 27-403 grounds to the admission
of the teardrop tattoo evidence in the assignment discussed

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above, his trial counsel was deficient and that trial counsel was
deficient for failing to request a limiting instruction. The State
argues that McCree’s trial counsel was not ineffective because
the evidence was admissible and that McCree’s assignment is
not specific because it does not specify what limiting instruc-
tion should have been requested.
McCree’s assertion that trial counsel was deficient for fail-
ing to request a limiting instruction does not specify which
type of instruction McCree alleges should have been given.
Thus, it does not meet the specifically assigned requirement, as
it fails to advise this court of the issue submitted for decision
and will not be considered. See State v. Filholm, 287 Neb. 763,
848 N.W.2d 571 (2014). However, McCree’s assigned failure
to object under § 27-403 must be considered.
As stated above, when reviewing ineffective assistance of
counsel claims on direct appeal, a court may examine per-
formance and prejudice in any order and need not examine
both prongs if a defendant fails to demonstrate either. See
State v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025). Here,
given McCree’s admission that he shot Brave, the fact that
much of the testimony at trial corroborated the State’s theory
that McCree had been attempting to rob Brave, the State’s
inclusion of felony murder, and Investigator Fields’ admis-
sion that he did not know why McCree would have wanted
to get a teardrop tattoo, even if trial counsel’s performance
was deficient, McCree is unable to demonstrate a reasonable
probability that, but for trial counsel’s deficient performance,
the result of the proceeding would have been different. See id.
In light of the totality of the record, we find McCree was not
prejudiced by trial counsel’s failure to object to the teardrop
tattoo evidence under § 27-403.
b. Failure to Object to and Request
Limiting Instruction for Evidence
Admitted for Investigatory Purposes
McCree assigns that trial counsel failed to request a limit-
ing instruction that statements to law enforcement received

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“‘for investigative purposes’” should not be considered for the
truth of the matter asserted or McCree’s propensity to commit
the alleged crimes and for not objecting to their receipt under
§ 27-403. The complained-of statements appear to be those
discussed above regarding McCree’s assignment alleging the
district court erred in admitting statements to law enforcement
for “investigatory purposes.”
The State argues McCree’s trial counsel was not ineffective
because the evidence that McCree went to Michigan and that
McCree was being identified as a suspect was cumulative, and
it argues that McCree’s “runaway status” had no relevance to
guilt. We agree.
[30,31] Cumulative evidence means evidence tending to
prove the same point to which other evidence has been
offered. State v. Sawyer, 319 Neb. 435, 22 N.W.3d 650
(2025). Where the evidence is cumulative and there is other
competent evidence to support the conviction, the improper
admission or exclusion of evidence is harmless beyond a rea-
sonable doubt. Id.
The testimony regarding the anonymous call informing law
enforcement that McCree “fle[d]” to Michigan is cumula-
tive to the messages between McCree and “POPS,” as well
as McCree’s interview statements. Additionally, the testimony
that interviews, social media, and phone line tips had identified
McCree is cumulative of his own admission to shooting Brave.
Thus, any deficient performance from trial counsel in not
objecting to the admission or not requesting a limiting instruc-
tion did not prejudice McCree. See id. (even if trial counsel
performed deficiently in not objecting to witness’ testimony,
defendant was not prejudiced because witness’ testimony was
cumulative of other evidence).
As to the testimony that McCree’s mother informed law
enforcement he was on “runaway status,” this statement did
not implicate him in the alleged crimes, and there is not a rea-
sonable probability that its absence or the addition of a limit-
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a different outcome in these proceedings. See Kruger, supra.
Thus, any deficient performance in trial counsel’s failure to
object to its admission or to not request a limiting instruction
did not prejudice McCree.
c. Failure to Object to Credibility Evidence
McCree assigns that trial counsel performed deficiently
by failing to object to testimony elicited by the State about
McCree’s credibility and the lack of credibility of other
favorable witnesses. In support of his assignment, McCree
describes Investigator Drager’s testimony as “urg[ing]” that
K.W.; her boyfriend, N.M.; and L.S., an associate of McCree
and a party attendee, were “untruthful” and that Jordan
O’Connor, a party attendee, was “‘impartial’” and truthful
from the start. Brief for appellant at 29. K.W., N.M., and L.S.
did not testify at trial. Because McCree’s assignment does not
assign error to trial counsel’s failure to object to testimony
that spoke favorably to O’Connor’s credibility, we do not
address that argument.
i. Additional Background
McCree cites to a section of Investigator Drager’s trial
testimony that spans approximately 3 pages but does not
provide any additional specificity on exactly what statements
should have been objected to. After our review of the cited
testimony, it appears the following testimony of Investigator
Drager on the State’s redirect is likely the testimony com-
plained of as error:
Q. Why didn’t you follow up with the witnesses you
already interviewed after you interviewed [McCree]?
A. They had already given their statements. [McCree]
specifically 	mentioned 	[K.W.] We 	had 	her 	statement
where she said she didn’t see anything.
[McCree’s trial counsel:] Objection, hearsay.
THE COURT: Overruled.
[Investigator Drager:] We interviewed [N.M.] [N.M.]
told us he didn’t know who [McCree] was. We interviewed

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[L.S.] twice already to that point. And [L.S.], ultimately,
was found to not have told the truth.
[McCree’s trial counsel:] Objection, same objection.
THE COURT: Overruled.
BY [the State:]
Q. Sorry, what was your answer?
A. We ultimately found she had lied in her interview to
begin with. She accompanied [McCree] to Detroit and we
interviewed her after the trip and she, again, didn’t make
any mention of it, so.
Q. Why didn’t you re-interview, for instance, Jordan
O’Connor?
A. Well, he already gave us his statement. And — he
already gave his statement. He was aware of who [McCree]
was and as an impartial witness, for the most part. We
had no reason to believe he wasn’t telling the truth to
begin with.
Q. 	So 	it’s 	not 	common 	to 	keep 	doing 	follow-up
interviews when a witness has given a statement; is that
correct?
A. Correct.
Q. Did you find [McCree] to be credible in his interview
with law enforcement?
A. No.
[McCree’s 	trial 	counsel:] 	Objection, 	speculation,
foundation.
[The State:] I can lay some foundation, Your Honor.
THE COURT: I’ll sustain that. The jury will disregard
that statement.
BY [the State:]
Q. Investigator Drager, how long have you been a
certified law enforcement officer?
[Investigator Drager:] Over 11 years.
Q. How many suspects have you interviewed as part of
your duties as a law enforcement officer?
A. Thousands.

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Q. And as part of your duties of interviewing witnesses,
can you tell when a witness is being truthful with you
at times?
A. I believe so, yes.
Q. In your interview with [McCree], he gave, initially,
a story that was completely false?
A. Yes. For nearly an hour he denied being the person
responsible.
Q. And when confronted with the text message that
he sent . . . , he continued to be — he continued to deny
involvement, correct?
A. Yes. He admitted to sending the message, but again
denied being the person responsible.
Q. And then he gave a second story to law enforcement?
A. Correct.
Q. Did any other witnesses give a second story to law
enforcement?
A. Did any other witnesses give [a] second story? No.
ii. Resolution
McCree cites State v. Welch, 241 Neb. 699, 490 N.W.2d
216 (1992), in support of his argument that trial counsel per-
formed deficiently by failing to object to testimony elicited
by the State about McCree’s credibility and the lack of cred-
ibility of other favorable witnesses. In Welch, an investiga-
tor was permitted to testify, over an objection, that he was
trained in interrogation techniques, which allowed him to
detect deception through verbal and nonverbal communica-
tions during an interview. The investigator then testified to
changes in the defendant’s demeanor during certain lines
of questioning and opined that based on his experience and
training, those behaviors tended to indicate deception. See
id. This court found the admission of this testimony to be in
error and found that the error could not be said to be harm-
less because the defendant’s credibility was central to the
issue in the case. See id.

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McCree argues that this case is similar to Welch because,
here, McCree’s credibility was central to evaluating the “‘he
said/she said’” nature of the evidence and that it was error to
allow investigators to discuss witness credibility in a way that
signaled to the jury they believed the State’s witnesses were
telling the truth while McCree and his friends were lying.
Brief for appellant at 30.
We discuss the testimony related to McCree separate from
that of K.W., N.M., and L.S.
a) Credibility of McCree
[32] As to the testimony regarding McCree’s truthfulness,
Investigator Drager’s statement that he did not find McCree
credible was stricken after McCree’s trial counsel’s objection,
and the jury was instructed to disregard the statement. Thus,
trial counsel did not fail to object, and there was no preju-
dice. See State v. Jones, 232 Neb. 576, 579, 441 N.W.2d 605,
607 (1989) (“[o]rdinarily, however, when an objection to or
motion to strike improper evidence is sustained and the jury is
instructed to disregard it, such instruction is deemed sufficient
to prevent prejudice”).
As to Investigator Drager’s later testimony that McCree
initially supplied a false story to law enforcement denying
involvement in Brave’s death, McCree could not have been
prejudiced by that statement. The story was false, as McCree
admitted in a later interview that he shot Brave.
b) Testimony Regarding K.W., N.M., and L.S.
Neither can McCree demonstrate ineffective assistance
in trial counsel’s failure to object to Investigator Drager’s
testimony regarding K.W., N.M., and L.S. As to those wit-
nesses, Investigator Drager testified only that L.S. was
found to be untruthful. That testimony, however, was in
response to a question about why L.S. was not interviewed
a second time. And, as noted above, L.S. did not tes-
tify at trial. McCree has not shown that the testimony regard-

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ing L.S. was inadmissible or, even if it was, how it could
have prejudiced McCree.
d. Failure to Object to Improper Bolstering
McCree assigns that trial counsel performed deficiently by
failing to object to the State’s improper bolstering of each lay
witness. The State argues that these lines of questioning were
asked due to the age of the witnesses and that even if the ques-
tioning was in error, McCree was not prejudiced.
i. Additional Background
At trial, based on the testimony cited by McCree, the State
asked many of its witnesses if they understood the need to tell
the truth, whether they understood the difference between the
truth and a lie, and whether they would tell the truth to the best
of their ability. At least one other witness was asked similar
questions. They answered all of these questions in the affirma-
tive. At the time of trial, some, but not all, of these witnesses
were minors.
ii. Resolution
Neb. Rev. Stat. § 27-608(1)(b) (Reissue 2016) provides
that “evidence of truthful character is admissible only after
the character of the witness for truthfulness has been attacked
by opinion or reputation evidence or otherwise.” Even as to
children, this court has stated that best practice dictates child
competency hearings should “take place outside the presence
of the jury. However, the failure of the trial court to do so
is not necessarily reversible error. Instead, an appellate court
must consider whether the defendant was prejudiced by the
trial court’s actions.” State v. Fleming, 280 Neb. 967, 977, 792
N.W.2d 147, 156 (2010).
The lines of questioning, laid out above, which McCree
asserts constituted improper bolstering, took place in the pres-
ence of the jury and with both minor and adult witnesses.
However, because this court may examine performance and
prejudice in any order and need not examine both prongs if

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a defendant fails to demonstrate either, we will first consider
whether McCree was prejudiced by trial counsel’s failure to
object. See State v. Kruger, 320 Neb. 361, 27 N.W.3d 398
(2025).
As we have stated, to show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different. State v. Garcia, 315 Neb. 74, 994 N.W.2d 610
(2023). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
As previously stated above, absent evidence to the con-
trary, it is presumed that a jury followed the instructions
given in arriving at its verdict. See State v. Barnes, 317 Neb.
517, 10 N.W.3d 716 (2024). Here, the jurors were instructed
in jury instruction No. 18, in part, that they were “the sole
judges of the credibility of the witnesses and the weight to
be given to their testimony.” Additionally, pursuant to Neb.
Rev. Stat. § 27-603 (Reissue 2016), before testifying, every
witness was required to declare that he or she would testify
truthfully by oath or affirmation. Thus, prior to testifying,
each witness was instructed to raise their right hand and
asked by the district court, “Do you solemnly swear or affirm
that the testimony you’re about to give will be the whole
truth and nothing but the truth?” Each witness responded in
the affirmative.
Given the jury instruction, and the presumption resulting
therefrom, as well as the similarities between the oath required
by § 27-603 and the questions alleged to be improper bolster-
ing, we cannot conclude that the lines of questioning, or trial
counsel’s failure to object thereto, prejudiced McCree.
e. Failure to Advise Regarding Testifying
McCree assigns that trial counsel failed to adequately advise
him whether he should testify. He alleges that trial counsel was
deficient because, had counsel given him reasonable advice, he
would not have waived his right to testify.

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i. Background on Right to Testify
[33-35] A defendant has a fundamental constitutional right
to testify. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d
404 (2011). The right to testify is personal to the defendant
and cannot be waived by defense counsel’s acting alone. Id.
Instead, defense counsel bears the primary responsibility for
advising a defendant of his or her right to testify or not to tes-
tify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make. Id. In discuss-
ing this responsibility, the U.S. Court of Appeals for the 11th
Circuit has explained the important role counsel’s advice plays
in securing a defendant’s right to testify or not:
This advice is crucial because there can be no effective
waiver of a fundamental constitutional right unless there is
an “intentional relinquishment or abandonment of a known
right or privilege.” . . . Moreover, if counsel believes that
it would be unwise for the defendant to testify, counsel
may, and indeed should, advise the client in the strongest
possible terms not to testify. The defendant can then make
the choice of whether to take the stand with the advice of
competent counsel.
U.S. v. Teague, 953 F.2d 1525, 1533 (11th Cir. 1992) (emphasis
in original). The competence and soundness of defense coun-
sel’s tactical advice is crucial to whether counsel has presented
sufficient information to the defendant to permit a meaningful
voluntary waiver of the right to testify. Iromuanya, supra.
Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance in two instances:
(1) if the defendant shows that counsel interfered with his or
her freedom to decide to testify or (2) if counsel’s tactical
advice to waive the right was unreasonable. Id.
ii. Resolution
Here, the record shows that at the close of the State’s
evidence, McCree waived his right to testify on the record.
Because the record shows trial counsel did not interfere with

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McCree’s decision not to testify, the only issue is whether
trial counsel’s advice was unreasonable and prevented McCree
from meaningfully waiving his right to testify.
McCree argues that, if trial counsel would have fully
disclosed digital evidence, McCree would have had a sig-
nificantly different impression of the State’s case. He alleges
that his testimony would have clarified for the jury that
he had no need to rob Brave because McCree had his own
“more substantial” marijuana stash. Brief for appellant at 34.
McCree argues that, while he did make statements to this
effect in a recorded jail call, discussed in detail below and
which were placed into evidence, his tone was “flippant”
and “easily misconstrued” in light of the inconsistent state-
ments he made to investigators. Id. McCree alleges his testi-
mony would have reconciled inconsistencies and provided a
more balanced perspective on the circumstances surrounding
the conflict with Brave (i.e., the number of people present
during the conflict, how the conflict originated, et cetera).
McCree alleges that this testimony would have been invalu-
able given the “‘he said/she said’” nature of the conflict, id.
at 30, and that his testimony would have helped the jury see
him more accurately as “a scared, stupid kid than a remorse-
less thug,” id. at 34.
At trial, McCree’s jail call audio and the video evidence
of McCree’s interview with law enforcement were received
into evidence and published to the jury. During the jail call
audio, McCree was asked, “Don’t tell me that [expletive] was
really over a bag of weed,” to which McCree responded, “Man
come on, man, look, I got all this money and all this weed.
Why the [expletive] do I want an ounce from this [expletive]
bro?” Additionally, during his interview with law enforcement,
McCree gave his account of the events leading up to the shoot-
ing of Brave, which included his statement that he did not
know how many people attended the party.
We conclude that because the record shows that the jury
heard McCree’s explanation from the jail call audio of his

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having his own marijuana and heard his statement of the
events from his interview with law enforcement, McCree
was not prejudiced by any failure of trial counsel to reason-
ably advise him regarding his right to testify. See Iromuanya,
supra. Thus, his assignment of error fails.
VI. CONCLUSION
For each of the foregoing reasons, the judgment of the dis-
trict court is affirmed.
Affirmed.