State v. Huston

STATE v. HUSTON 	11
Cite as 285 Neb. 11
State of NebraSka, appellee, v.
DallaS l. HuStoN, appellaNt.
824 N.W.2d 724
Filed January 11, 2013. 	No. S-11-539.
1. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
2. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact, and, in particular, determi-
nations regarding whether counsel was deficient and whether the defendant was
prejudiced are questions of law.
3. Pretrial Procedure: Evidence. A motion to redact that seeks the exclusion of
prejudicial evidence through redaction essentially functions as a motion in limine,
even if it is not labeled as such.
4. Pretrial Procedure: Evidence: Juries. A motion asking for the exclusion of evi-
dence in a particular manner, such as redaction, functions as a motion in limine
so long as it requests that certain evidence be withheld from the jury due to its
prejudicial nature.
5. Pretrial Procedure: Evidence: Appeal and Error. When a motion to redact
evidence is overruled, the movant must object at trial when the specific evidence
which was sought to be excluded by the motion is offered in order to preserve
error for appeal.
6. Rules of Evidence: Appeal and Error. Neb. Evid. R. 103(1)(a), Neb. Rev. Stat.
§ 27-103(1)(a) (Reissue 2008), states that error can be based on a ruling that
admits evidence only if the specific ground of objection is apparent either from a
timely objection or from the context.
7. Trial: Evidence. Even if there are inadmissible parts within an exhibit, an objec-
tion to an exhibit as a whole is properly overruled where a part of the exhibit
is admissible.
8. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance
was deficient and that this deficient performance actually prejudiced his or
her defense.
9. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.
10. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate
trial strategy and tactics.
11. 	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.
Appeal from the District Court for Lancaster County: JoHN
a. C olborN, Judge. Affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

12 	285 NEBRASKA REPORTS
James R. Mowbray and Jeffery A. Pickens, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
H eaviCaN, C.J., WrigHt, C oNNolly, StepHaN, MCC orMaCk,
M iller-lerMaN, and CaSSel, JJ.
CaSSel, J.
I. INTRODUCTION
Nearly 2 months before Dallas L. Huston’s jury trial for
second degree murder, the district court ruled on Huston’s
motion to redact video recordings of his police interviews—
excluding portions but allowing the remainder. On appeal from
Huston’s later conviction and sentence, we conclude that trial
counsel did not preserve any objection to the admission of the
remaining portions of the recordings at trial by merely stat-
ing, “No further objection . . . .” Huston also argues, through
different counsel on direct appeal, that the failure to object
constituted ineffective assistance of counsel. Because we find
the record to be insufficient to adequately address the question
of trial counsel’s effectiveness, we do not reach this issue on
direct appeal.
II. BACKGROUND
Huston and Ryan Johnson were living together as a couple
in a nonsexual relationship when Huston allegedly found
Johnson in their bedroom with plastic wrap wrapped around
his face at around 11:15 a.m. on September 16, 2009. Huston
called the 911 emergency dispatch service at 11:28 a.m.
Paramedics performed lifesaving measures but were unable to
revive Johnson.
Given that Johnson had previously attempted suicide, the
police initially investigated his death as a suicide. As part of
this investigation, they interviewed Huston numerous times.
Due to the number and length of these interviews, we provide
only a brief overview, focusing on pertinent sections as neces-
sary later in the opinion.
The police first interviewed Huston on the day of Johnson’s
death, mainly asking him questions related to (1) the possible

STATE v. HUSTON 	13
Cite as 285 Neb. 11
reasons for Johnson’s apparent suicide and (2) the events lead-
ing to Johnson’s death. Huston admitted that he was alone in
the house with Johnson that morning, but stated that he had
gotten up around 9 a.m. and spent the morning in the living
room, while Johnson slept. According to Huston, he decided to
check on Johnson at approximately 11:15 a.m. because Johnson
had vomited earlier that morning. Huston claimed that he then
found Johnson lying on the bed with plastic wrap covering his
face and no perceptible pulse.
The police again interviewed Huston on September 29,
2009. It was during this interview that Huston’s multiple
personalities first emerged. Huston later admitted at trial that
he made up these different personalities as part of a “social
experiment” and that he controlled them completely. As such,
we refer to these personalities solely to provide context for
Huston’s statements.
Shortly before the September 29, 2009, interview, the police
received a report that Huston had told his friend, Nicholas
Berghuis, that the personality “Vincent” helped Johnson to
commit suicide. When confronted with this report during the
interview, Huston admitted that he had trouble with multiple
personalities, that one of his personalities was called Vincent,
and that Johnson had asked for help in committing suicide in
the past, but Huston denied any involvement with Johnson’s
death. Huston allowed the police officers to speak with the
personality “Que,” who explained that when Huston made
those statements to Berghuis, he was describing a nightmare
he had been having since Johnson’s death. The personality
“Que” also directed the officers to a video on Huston’s com-
puter of “Que” pretending to kill Johnson by putting a pillow
over his face.
Because Huston had told Berghuis and another friend,
Christopher Wilson, that one of his personalities had been
involved in Johnson’s death, Berghuis and Wilson arranged
with the police to set up video surveillance in Wilson’s house,
where Huston often spent time. Huston’s conversations with
Berghuis and Wilson on October 6 and 7, 2009, were recorded.
During 	these 	conversations, 	Huston’s 	various 	personalities
admitted that “Vincent” assisted in Johnson’s death at Johnson’s

14 	285 NEBRASKA REPORTS
request. Specifically, the personality “Vincent” admitted to (1)
wrapping the plastic wrap around Johnson’s face, during which
time Johnson yelled, “Get it off”; (2) holding a pillow over
Johnson’s face when Johnson broke through the plastic wrap
while trying to breathe; and (3) listening to Johnson’s last
heartbeats “with enjoyment.”
Following the video surveillance on October 7, 2009, the
police brought in Huston for questioning. Over the course
of the interview, Huston went from vehemently denying any
involvement in Johnson’s death to admitting that the events
he described were not a dream and that he physically aided in
Johnson’s death, albeit through the personality “Vincent.”
Huston tried to retract these statements in his next interview
with the police on the evening of October 8, 2009. He denied
any involvement in Johnson’s death and claimed that he had
been “badgered” into making a confession during the previ-
ous interview. By the conclusion of the interview on October
8, however, Huston again admitted that he participated in
Johnson’s death by wrapping plastic wrap around Johnson’s
head and holding a pillow over his face.
In an interview on October 10, 2009, Huston revealed that
Johnson had asked for his help in committing suicide. Huston
maintained that he “helped [Johnson] commit suicide” and that
he did not “murder him.”
Huston was ultimately arrested and charged with second
degree murder. He pled not guilty, and his case went to jury
trial in January 2011.
Prior to trial, Huston filed a motion requesting the district
court to redact the video recordings of his police interviews.
The State agreed with some of the proposed redactions, and
the court ruled on the proposed redactions to which the par-
ties did not agree. Some of Huston’s proposed redactions were
sustained, but others were not. After receiving the court’s
rulings, the State edited the video recordings to reflect the
redactions that had been agreed to by the State or ordered
by the court. These video recordings were admitted into
evidence at Huston’s subsequent trial and were published to
the jury. When asked whether there were any objections to
the admission of these video recordings, Huston’s counsel

STATE v. HUSTON 	15
Cite as 285 Neb. 11
responded by stating that he had either no objection or no
“further” objection.
The testimony at trial included both the video recordings of
Huston’s police interviews—including the proposed redactions
that were not sustained—and testimony from the police offi-
cers who had conducted those interviews. Of this plethora of
evidence, we mention only the nine specific portions that have
been identified by Huston on appeal. These segments include
evidence relating to (1) Huston’s “homosexual encounter”1
with Wilson, (2) speculation that Huston is a serial killer and
Huston’s future dangerousness, and (3) the opinions of police
officers that Huston’s actions constituted murder as opposed to
assisted suicide.
First, in the video recording of Huston’s interview with
the police on the day of Johnson’s death, Huston described
his “homosexual encounter” with Wilson. Huston’s conver-
sation with the police officer conducting the interview went
as follows:
[Huston:] Okay, to be completely honest, me and
[Wilson] were together once. Only once. Um, it’s how it
came out to [Johnson] that we might have been interested
in each other, but [Wilson] decided he didn’t want to
do that.
[Police officer:] Okay, and was this early in your rela-
tionship with [Johnson]? Or—
[Huston:] [Interrupting.] Oh, no, no. . . . [Wilson] is
only been back around—. See, [Wilson] has only been
back in the picture as a friend of ours for like a month. .
. . I believe in being upfront. Yes, one time and only one
time me and [Wilson] were together and we—. Well, we
went to bed together, and—
[Police officer:] [Interrupting.] How long ago was that?
. . . .
[Huston:] . . . Three weeks ago.
[Police officer:] So, it is pretty recent, then.
[Huston:] Yep. . . . You probably don’t want to
hear this, but me and [Johnson] had kind of a unique
1 Brief for appellant at 34.

16 	285 NEBRASKA REPORTS
relationship. . . . I know it’s kind of a weird situation to
be in [be]cause in the 4 years of our relationship, there
was never anything sexual. Um, and we allowed our-
selves . . . an “open relationship.” We allowed ourselves
what he’d call “[expletive] buddies.” . . . That one and
only one time that me and [Wilson] ended up . . . was
kind of a “heat of the moment,” you know, “spur of the
moment” type thing. . . . We ended up in bed together.
We kissed. We, we made out. But it never went anywhere
further than that.
While this was the only evidence of the “homosexual encoun-
ter” with Wilson, Huston’s physical attraction to Wilson was
referenced in several of the other video recordings received
into evidence at trial. In every case, the evidence related to
Wilson was received into evidence without objection from
Huston’s trial counsel.
Second, in the video recording of Huston’s October 10, 2009,
interview with the police, Huston and Sgt. Gregory Sorensen
of the Lincoln Police Department discussed serial killers, the
possibility that Huston was a serial killer, and Huston’s future
dangerousness. The dialog went as follows:
[Huston:] . . . This is what I meant, though, when I’ve
told everybody that I want to get help. I never thought
this could happen, and now that this has happened, I am
so scared that I’m capable of doing it again.
[Sorensen:] Yeah, I think that that’s probably really
true.
[Huston:] And that scares me to death because, like I
said, I have never thought of myself as a violent person,
and now I don’t know what to think of myself.
[Sorensen:] Well, especially when you consider that
you have urges to kill the people that you’re attracted to.
[Huston:] And I’ve done everything that I could for the
last, you know . . . . You know, the earliest memories of
this I have are, say, 9, 10 years old. So 18 years I have
fought myself.
[Sorensen:] But most serial killers do the same thing at
some point in time.

STATE v. HUSTON 	17
Cite as 285 Neb. 11
[Huston:] Oh, wow.
[Sorensen:] At some point in time, they crossed that
line. I mean, when you talk about—
[Huston:] [Interrupting.] I’ve asked myself that.
[Sorensen:] Whether you’re a serial killer?
[Huston:] Uh-hum [yes]. I’ve asked myself that . . . .
You’ve asked me if I have been suicidal in the past.
[Sorensen:] Yeah.
[Huston:] To be completely honest, I lied to you.
Because of this, I have been. I have thought about killing
myself so I wouldn’t hurt anyone.
Later in the same interview, Huston stated, “I am so scared
now that this could happen again.”
Although not raised by Huston on appeal, at other times dur-
ing the video recordings of his interviews with the police, he
expressed a fear that he might commit homicide again. All of
this evidence of Huston’s future dangerousness was received
into evidence at trial without objection.
Finally, the video recordings of Huston’s police interviews
referenced the opinion of the police that Huston committed
murder as opposed to assisted suicide. On appeal, Huston
identified four segments in which this opinion was expressed.
Two of these segments were from Huston’s interview with
the police on October 7, 2009. During this interview, Huston
engaged in the following dialog with Sorensen:
[Sorensen:] . . . [Y]ou or Vincent were the person or
persons that killed [Johnson]. And maybe at the time, it
started out as a suicide, but it didn’t end that way. It just
didn’t end that way.
[Huston:] See, I don’t believe that.
[Sorensen:] You don’t believe that it didn’t end in a
homicide?
. . . .
[Huston:] No, I don’t.
. . . .
[Huston:] They asked me that. They asked me that. Did
he fight? Did he—

18 	285 NEBRASKA REPORTS
[Sorensen:] [Interrupting.] He doesn’t have to fight.
[All] he had to do was break the seal. [All] he had to
do was try to breathe, and . . . that was his intent to stay
alive—he tried to breathe.
Later in the same interview, Sorensen stated: “[W]hen you put
the pillow over his face, you’re killing him. He’s not killing
himself. You’re killing him.”
Huston identified two more similar comments made by
Sorensen in the video recordings, the first during the inter-
view with Huston on October 8, 2009, and the second dur-
ing the October 10 interview. On October 8, Sorensen said
the following:
You made a pact to commit suicide. When he started to
breathe, you put the pillow over the face, which was a
continuation of the act. But, say I have a gun in my hand,
and say that I want to commit suicide. And so I put it
to my head, but before I pull the trigger, I put the gun
down. That stops me from committing suicide. Think of
this: [Johnson] didn’t get a chance. [Johnson] didn’t get a
chance to make that decision. You made it for him, with
the pillow. . . . You know I’m right. He didn’t get that
chance. He did not get a chance.
On October 10, Sorensen and Huston engaged in the fol-
lowing dialog after Huston asserted that he “didn’t murder
[Johnson]”:
[Sorensen:] But I don’t know how else you can describe
it, [Huston]. . . . This isn’t assisting a suicide. This, this
is just not assisting a suicide. . . . I don’t know if you can
understand this, but if [Johnson] looks at me right now
and he says, “I can’t take it anymore. You got to kill me,”
and I pull a gun out and I shoot him dead—
[Huston:] [Interrupting.] You’ve tried to say that before
and I do understand what you mean.
[Sorensen:] [Johnson’s] just asked me to kill him and
I don’t have that right to do that. He can ask me all he
wants, but I don’t have the right to do it. And this isn’t
any different . . . . I know that you think that it is, but
it’s not.

STATE v. HUSTON 	19
Cite as 285 Neb. 11
The video recordings, including all of the aforementioned evi-
dence that the police believed Huston committed murder, were
received at trial and published to the jury without objection by
Huston’s counsel.
The various police officers present for Huston’s interviews
also testified at trial. Both Sorensen and Sgt. Kenneth Koziol,
also of the Lincoln Police Department, testified before the
jury, and each stated that, in his opinion, Huston committed
murder. While on the stand, Sorensen explained that he called
the Lancaster County Attorney during the investigation of
Johnson’s death “because at that point we no longer had any
type of assisting a suicide . . . . So I wanted to inform the
county attorney that this was a murder case.” And when asked
why the police were “a little bit more confrontational” when
questioning Huston on October 7, 2009, Koziol explained that
by that time they were “pretty confident that it [was] a homi-
cide. We [felt] that . . . Huston caused . . . Johnson’s death . .
. .” Huston’s counsel made no objection to these statements
at trial.
Although not identified by Huston on appeal, there were
numerous other instances during trial when similar opinion
evidence was received into evidence. In none of these instances
did Huston’s counsel object.
At the conclusion of Huston’s trial, the jury returned a ver-
dict of guilty. Huston was sentenced to 50 years’ to life impris-
onment. He timely appeals.
III. ASSIGNMENTS OF ERROR
Huston alleges, reordered and restated, that the district
court erred in admitting evidence (1) of Huston’s “homo-
sexual encounter” with Wilson; (2) of the discussion relat-
ing to serial killers, speculation that Huston is a serial killer,
and Huston’s future dangerousness; and (3) of the opinions
of police officers that Huston’s actions constituted murder
as opposed to assisted suicide. Huston also claims that his
trial counsel was ineffective in failing to object to this and
other evidence.

20 	285 NEBRASKA REPORTS
IV. STANDARD OF REVIEW
[1] An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.2
[2] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact, and, in par-
ticular, determinations regarding whether counsel was defi-
cient and whether the defendant was prejudiced are questions
of law.3
V. ANALYSIS
1. error iN aDMiSSioN
of eviDeNCe
Huston argues that the district court erred in admitting
into evidence specific portions of the video recordings of the
police interviews on September 16, 2009, marked as exhibit
38; October 7, marked as exhibit 81; and October 10, marked
as exhibit 95. The segments to which Huston objects on
appeal were previously identified in the background section of
this opinion.
Before trial, Huston had filed a motion to redact segments of
the video recordings that he argued were prejudicial, irrelevant,
or otherwise inadmissible. Huston’s motion was sustained in
regard to certain proposed redactions and overruled in regard
to others. Amongst the proposed redactions overruled by the
court were the segments now at issue on appeal. As a result,
the video recordings marked as exhibits 38, 81, and 95 still
included these segments when they were received into evi-
dence at trial and published to the jury.
When the State offered exhibits 38, 81, and 95 into evidence
at trial, the district court specifically asked Huston whether he
had any objections. In all three instances, Huston responded
that he had “[n]o further objection . . . .” He now argues that
these responses were sufficient to preserve for appeal any error
that resulted from admitting these exhibits into evidence.
Before we can consider whether Huston’s responses at trial
were adequate to preserve any potential errors for appeal, we
2 State v. Diaz, 283 Neb. 414, 808 N.W.2d 891 (2012).
3 Id.

STATE v. HUSTON 	21
Cite as 285 Neb. 11
must first determine whether he was required, despite the filing
of a pretrial motion to redact, to raise his objections to those
segments when the video recordings were introduced at trial.
If he was required to object, then we must consider whether
his responses were sufficient. And if they were not, it would
naturally follow that his failure to adequately object relieved
the trial court of its obligation to rule upon the admissibility of
such evidence and also precludes us from considering the issue
on appeal.
(a) Necessity of Renewed
Objection at Trial
A motion to redact has received little attention in our case
law and has never been the subject of any thorough discussion.4
We take this opportunity to clarify that a motion to redact is a
more specific form of a motion in limine and that, as such, the
movant must object when the particular evidence which was
sought to be excluded by the motion is offered during trial to
preserve error for appeal.
The first recorded appearance of a motion in limine in a
case before this court was in State v. Tomrdle.5 In that case,
we broadly defined a motion in limine as “a procedural step
to prevent prejudicial evidence from reaching the jury.”6 This
definition does not limit the motion in limine to any particular
form. It is simply defined by its purpose of withholding preju-
dicial evidence from the jury, which can occur in many ways
depending on the type of evidence sought to be excluded. As
one commentary has noted:
Regardless of the formalities involved, any request for an
evidentiary ruling that is made in advance of trial, that
seeks an order to exclude or regulate the production of
4 See, State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State
v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003); State v. Palu, No.
A-06-1166, 2007 WL 2770624 (Neb. App. Sept. 25, 2007) (not designated
for permanent publication); State v. Guerrant, No. A-02-453, 2003
WL 1962919 (Neb. App. Apr. 29, 2003) (not designated for permanent
publication).
5 State v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983).
6 Id. at 585, 335 N.W.2d at 283.

22 	285 NEBRASKA REPORTS
potentially inflammatory evidence before the jury, and
that seeks relief on the ground that the suggestive or
uncontrolled revelation of that evidence to the jury may
unfairly prejudice the determination of the case may be
regarded as a motion in limine.7
In the case of evidence that is part of a larger, indivisible
piece of evidence, such as a document or recording, redac-
tion may be the most effective way of excluding prejudicial
evidence from the jury. Indeed, when only certain portions of
a document or recording should be excluded as prejudicial,
logistics require redaction of the prejudicial portions prior to
trial. In such a case, redaction becomes the means of enforcing
the motion in limine.
[3,4] Because a motion in limine may be enforced through
redaction, a motion to redact that seeks the exclusion of preju-
dicial evidence through redaction essentially functions as a
motion in limine, even if it is not labeled as such. In the fed-
eral courts, a motion requesting the redaction of exhibits so as
to exclude prejudicial matter is considered a motion in limine
and is often referred to as a “motion in limine to redact.”8
Accordingly, we hold that a motion asking for the exclusion of
evidence in a particular manner, such as redaction, functions as
7 20 Am. Jur. Trials 441, § 7 at 455 (1973).
8 See, e.g., U.S. v. Gayekpar, 678 F.3d 629 (8th Cir. 2012), cert. denied
___ U.S. ___, 133 S. Ct. 375, 184 L. Ed. 2d 221; Walls v. Buss, 658 F.3d
1274 (11th Cir. 2011), cert. denied, Walls v. Tucker, ___ U.S. ___, 132
S. Ct. 2121, 182 L. Ed. 2d 872 (2012); U.S. v. Laurienti, 611 F.3d 530
(9th Cir. 2010), cert. denied 562 U.S. 1161, 131 S. Ct. 969, 178 L. Ed.
2d 797 (2011); Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008); U.S.
v. Jones, 371 F.3d 363 (7th Cir. 2004); Klungvedt v. Unum Group, No.
2:12-cv-00651-JWS, 2012 WL 5363002 (D. Ariz. Oct. 31, 2012); U.S. v.
Matthews, No. 1:11-cr-00227-JAW, 2012 WL 4343741 (D. Me. Sept. 21,
2012); U.S. v. Daniels, No. 3:11-CR-4 JD, 2012 WL 243607 (N.D. Ind.
Jan. 25, 2012); U.S. v. Carriles, 832 F. Supp. 2d 699 (W.D. Tex. 2010);
U.S. v. Scott, No. 06-20185, 2011 WL 4905522 (E.D. Mich. Oct. 14, 2011)
(unpublished opinion); Kopp v. U.S., Nos. 10-CV-871A, 00-CR-189A,
2011 WL 3171557 (W.D.N.Y. July 27, 2011) (unpublished opinion); Miller
v. Phelps, No. 08-178-GMS, 2011 WL 2708413 (D. Del. July 12, 2011)
(unpublished opinion); Avington v. Greyhound Lines, Inc., No. 05-5343
(JAP), 2008 WL 5500768 (D.N.J. Apr. 3, 2008) (unpublished opinion).

STATE v. HUSTON 	23
Cite as 285 Neb. 11
a motion in limine so long as it requests that certain evidence
be withheld from the jury due to its prejudicial nature.
In the instant case, Huston’s motion to redact sought the
redaction of the video recordings because he thought certain
statements made during the interviews were prejudicial and
irrelevant. He argued that the police officers’ opinions that he
committed murder were “biased opinion[s]” that were “not
otherwise relevant,” that the conversation about his dangerous-
ness was “overly prejudicial,” and that the statements about
his homosexual relationship with Wilson could elicit “preju-
dicial stereotypes.” Because the motion to redact sought a rul-
ing by the court prior to trial that certain evidence should be
excluded because it was prejudicial, it was a form of motion in
limine subject to the rules and procedures usually applicable to
such motions.
[5] When a motion in limine to exclude evidence is over-
ruled, the movant must object when the particular evidence
which was sought to be excluded by the motion is offered
during trial to preserve error for appeal.9 Accordingly, when
a motion to redact evidence is overruled, the movant must
object at trial when the specific evidence which was sought to
be excluded by the motion is offered in order to preserve error
for appeal.
Requiring a renewed objection in the case of a motion
in limine, including a motion to redact, is consistent with
the well-established jurisprudential principles of “fairness in
administration,” discovery of truth, and just determination.10
Objections assist the court to make correct and fair decisions
on evidentiary matters by alerting the court “‘to the proper
course of action’”11 on evidentiary matters and “direct[ing] the
court’s attention to questioned admissibility of particular evi-
dence so that the court may intelligently, quickly, and correctly
rule on the reception or exclusion of evidence.”12
9 Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610
(2005).
10 Neb. Evid. R. 102, Neb. Rev. Stat. § 27-102 (Reissue 2008).
11 Proposed Nebraska Rules of Evidence, rule 103, comment at 14 (1973).
12 State v. Coleman, 239 Neb. 800, 812, 478 N.W.2d 349, 357 (1992).

24 	285 NEBRASKA REPORTS
In addition to facilitating the truthful and just determina-
tion of evidentiary issues in trial proceedings, the procedure of
renewing an objection following a motion in limine, including
a motion to redact, also provides important procedural safe-
guards against reversible error, because “the timely raising of
claims and objections” often results in the court’s being able to
“correct or avoid the mistake so that it cannot possibly affect
the ultimate outcome.”13 This is particularly important when
considering the admissibility of potentially prejudicial evi-
dence such as would be raised in a motion in limine or motion
to redact, as a renewed objection provides the court with a final
opportunity to (1) determine the potential for prejudice within
the context of other evidence at trial14 and (2) exclude unduly
prejudicial evidence before it is revealed to the jury if the court
determines that it is indeed prejudicial.
We note at this juncture that a renewed objection may not
always be required under Fed. R. Evid. 103. This federal rule
was revised in 2000 to eliminate the need for a renewed objec-
tion “[o]nce the court makes a definitive ruling on the record
. . . either at or before trial . . . .” Significantly, Nebraska has
not adopted this amendment. Neb. Evid. R. 103, Neb. Rev.
Stat. § 27-103(1)(a) (Reissue 2008), which was identical to
federal rule 103 prior to the 2000 federal revision, requires an
objection in the case of all rulings admitting evidence in order
for error to be predicated upon such ruling on appeal, even
when the court previously considered the admissibility of evi-
dence during in limine proceedings.15
In conclusion, we hold that Huston’s motion to redact is a
form of a motion in limine because it seeks the exclusion of
prejudicial evidence in a pretrial proceeding, and accordingly,
we review it as such.
13 Puckett v. United States, 556 U.S. 129, 134, 129 S. Ct. 1423, 173 L. Ed.
2d 266 (2009).
14 See U.S. v. Graves, 5 F.3d 1546, 1552 (5th Cir. 1993) (noting that
“rationale for requiring either a renewed objection, or an offer of proof, is
to allow the trial judge to reconsider his in limine ruling with the benefit
of having been witness to the unfolding events at trial”).
15 See, e.g., State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

STATE v. HUSTON 	25
Cite as 285 Neb. 11
(b) Adequacy of Huston’s Response
Having determined that Huston was required to renew his
objection to the relevant statements at trial despite having
previously objected to these same statements in his motion
in limine, we now turn to the question whether Huston’s
responses at trial that he had “[n]o further objection . . .” were
sufficient to preserve these issues for appeal.
Huston argues that he did preserve these issues for appeal
because the context of his responses “indicates that counsel
meant no objection other than the specific objection found in
Huston’s ‘Proposed Redactions’ . . . and in [the transcript of the
video] and [the court’s rulings on the proposed redactions].”16
In so arguing, Huston relies upon § 27-103(1)(a), which pro-
vides that an objection must state “the specific ground of
objection, if a specific ground was not apparent from the con-
text,” and argues that his previous motion to redact was part
of the context that should have been considered when the court
was ruling on exhibits 38, 81, and 95.
Nebraska courts have occasionally waived the requirement
to make an objection at trial and considered an issue on appeal
when a party’s objection was obvious from previous proceed-
ings before the lower court. In State v. Mowell,17 we held
that the defendant had preserved an issue for appeal because
“the prior hearing should have made the specific ground of
the objections apparent to both the State and the trial court.”
In that case, however, the prior hearing to which we referred
took place earlier that same day. During that prior hearing,
the defendant had made a record as to the foundations for his
objections so as to obviate the need to explain his objections
in the presence of the jury during trial. When the defendant
in Mowell objected at trial, he stated that he was objecting
“‘on the basis of the objections that I made previously’” and
“‘for the reasons previously stated.’”18 The Nebraska Court
of Appeals also considered a similar situation in State v.
16 Brief for appellant at 36 (citations omitted).
17 State v. Mowell, 267 Neb. 83, 99, 672 N.W.2d 389, 402 (2003).
18 Id. at 98, 672 N.W.2d at 401.

26 	285 NEBRASKA REPORTS
Gardner,19 where the defendant took issue with the trial court’s
exclusion of evidence. In that case, the Court of Appeals
determined that “[the defendant’s] pretrial argument in favor
of the excluded testimony constituted sufficient notice of the
substance of the evidence sought to be offered to preserve error
on appeal.”20 As in Mowell, the defendant’s “pretrial argument”
in Gardner occurred on the same day that the evidence was
offered at trial.
The situation surrounding Huston’s responses at trial is
distinguishable from the facts in Mowell and Gardner for two
reasons. These differences are such that the context of Huston’s
responses at trial did not encompass the motion to redact or
transform his responses into proper objections sufficient to
preserve error for appeal.
First, Huston’s motion to redact was too far removed in
time from the offering of exhibits 38, 81, and 95 at trial to
be viewed as “context” to Huston’s responses. In Mowell and
Gardner, the court heard the defendants’ objections to the
evidence on the same day as the admission of that evidence
at trial. Huston’s objections in the motion to redact were
before the court almost 2 months prior to admission of the
relevant video recordings at trial. Huston’s motion to redact
was filed on December 3, 2010. Exhibits 38, 81, and 95 were
offered into evidence on January 25, January 31, and February
2, 2011, respectively. Given the length of time between the
motion to redact and the admission of the exhibits at trial, we
do not find that it was apparent from the context of Huston’s
responses that he intended to stand on the objections made in
his motion to redact. If Huston intended to do so, he should
have made that connection to the pretrial proceedings unques-
tionably apparent, as did the defendant in Mowell. Given that
Huston did not do so, we do not interpret his responses to the
State’s offer of exhibits 38, 81, and 95 as incorporating the
objections raised in the motion to redact.
19 State v. Gardner, 1 Neb. App. 450, 498 N.W.2d 605 (1993).
20 Id. at 455-56, 498 N.W.2d at 609.

STATE v. HUSTON 	27
Cite as 285 Neb. 11
[6] Second, even if we accept Huston’s explanation that
he was incorporating the objections previously made in his
motion to redact, the grounds of his objections to the specific
evidence mentioned on appeal still are not apparent. Section
27-103(1)(a) states that error can be based on a ruling that
admits evidence only if the “specific ground of objection” is
apparent either from a timely objection or from the context.
In the case before us, the grounds for Huston’s objections dur-
ing trial to exhibits 38, 81, and 95 were not obvious from the
pretrial proceedings. The motion to redact included numerous
proposed redactions, and many of those proposed redactions
were not sustained by the district court. Huston now assigns
error to the admission of only a few of the statements that
were overruled in his motion to redact. As a result, even if the
court was aware that he was relying on his previous motion,
it would have had no way of knowing to which statements he
maintained an objection.
In previous cases, when defendants have made references to
previous motions without specifically identifying the grounds
for objection at trial, this court has ruled that their objec-
tions were not sufficient. For example, we have stated that a
“general objection based on the ‘motion in limine’ [did] not
identify which of the many previously filed motions provided
the purported basis for [the] objection” and advised that a
defendant must “[t]ell the court the reason why the evidence
is inadmissible.”21 This court also has noted that after a pre-
trial order which overrules a defendant’s motion to suppress
his statement, the defendant must object at trial to the receipt
of the statement in order to preserve the question for review
on appeal because this “obviates the necessity of the trial
court’s guessing whether defendant wants his statement before
the jury and removes the possibility of defendant’s second-
guessing the admissibility of the evidence after an unfavor-
able result.”22
21 State v. Harris, 263 Neb. 331, 341, 640 N.W.2d 24, 34-35 (2002).
22 State v. Pointer, 224 Neb. 892, 895, 402 N.W.2d 268, 271 (1987).

28 	285 NEBRASKA REPORTS
[7] The district court in the instant case was forced to
engage in a similar guessing game because Huston failed to
tell the court why exhibits 38, 81, and 95 were inadmissible.
The presence of the word “further” was not sufficient by itself
to transform the statement “[n]o further objection . . .” into
a specific and timely objection. We also note that Huston’s
statements failed to specify that he was objecting to particular
segments of the video recordings and not to the exhibits as a
whole. Failing to make this distinction can affect whether an
exhibit is admissible.23 Even if there are inadmissible parts
within an exhibit, “an objection to an exhibit as a whole is
properly overruled where a part of the exhibit is admissible.”24
Therefore, because Huston’s statements failed to specify the
grounds for his objection and that he was objecting to only spe-
cific portions of the exhibits, these responses at trial were not
sufficient to constitute a valid objection based upon Huston’s
previous motion to redact.
In conclusion, we hold that the grounds for any alleged
objections made by Huston in response to the offers of exhibits
38, 81, and 95 were not apparent from the context and that the
alleged objections were consequently not valid under § 27-103.
Because Huston did not object to exhibits 38, 81, and 95—or
any allegedly inadmissible statements contained therein—when
they were offered into evidence at trial, any evidentiary error
that resulted from admitting these exhibits into evidence was
not preserved for appeal.
2. iNeffeCtive aSSiStaNCe
of C ouNSel
Anticipating our conclusion that Huston did not preserve
for appeal any error relating to the admission of exhibits 38,
81, and 95 into evidence, he argues that his trial counsel was
ineffective for failing to preserve these errors for appeal.
Huston specifically argues that his trial counsel was ineffec-
tive for failing to object to the pieces of evidence that were
23 See State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
24 Id. at 743, 566 N.W.2d at 748 (emphasis supplied).

STATE v. HUSTON 	29
Cite as 285 Neb. 11
identified in the background section of this opinion and that
relate to (1) Huston’s “homosexual encounter” with Wilson,
(2) speculation that Huston is a serial killer and Huston’s
future dangerousness, and (3) the opinions of police offi-
cers that Huston’s actions constituted murder as opposed to
assisted suicide.
[8,9] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,25 the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.26 A claim
of ineffective assistance of counsel need not be dismissed
merely because it is made on direct appeal. The determining
factor is whether the record is sufficient to adequately review
the question.27 In the instant case, the record is insufficient to
consider Huston’s claims of ineffective assistance of counsel
on direct appeal.
Huston’s ineffective assistance of counsel claims all relate
to his trial counsel’s failure to object to certain evidence from
the video recordings and from trial testimony. The majority
of this evidence was included in Huston’s pretrial motion to
redact and was later received into evidence at trial without any
objection from Huston’s counsel. But at least two pieces of
evidence underlying Huston’s ineffective assistance of coun-
sel claims were not included in the pretrial motion to redact.
Neither did his counsel object to the evidence at trial. Huston
thus claims that his counsel was ineffective either for failing to
object in any way to certain evidence or for failing to renew at
trial the objection to evidence previously raised in the motion
to redact.
Contrary to Huston’s repeated assertions that his coun-
sel’s failure to object “was not the result of a plausible trial
strategy,”28 we must consider trial strategy when reviewing
25 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
26 State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).
27 State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
28 See brief for appellant at 38, 43, 46, and 50.

30 	285 NEBRASKA REPORTS
these failures to object. The decision whether or not to object
has long been held to be part of trial strategy.29 In another
case involving video recording of a defendant’s police inter-
view, this court held that the decision not to object could
be explained by a desire not to highlight the objectionable
testimony following an unsuccessful attempt to have that evi-
dence excluded.30 Such an analysis requires an examination of
trial strategy.
[10,11] When reviewing claims of alleged ineffective assist-
ance of counsel, “[t]rial counsel is afforded due deference to
formulate trial strategy and tactics.”31 There is a strong pre-
sumption that counsel acted reasonably, and an appellate court
will not second-guess reasonable strategic decisions.32 Because
of this deference, the question whether the failure to object was
part of counsel’s trial strategy is essential to a resolution of
Huston’s ineffective assistance of counsel claims.
There is no evidence in the record that would allow us to
determine whether Huston’s trial counsel consciously chose
as part of a trial strategy not to object to the evidence identi-
fied on appeal. Therefore, because the record is insufficient to
adequately review Huston’s claims of ineffective assistance of
counsel, we do not reach these claims on direct appeal.
VI. CONCLUSION
The party who opposes statements identified in a motion
in limine, including a motion to redact, must renew his or her
objections when those statements are offered into evidence at
trial in order to preserve issues for appeal. Therefore, because
the response “[n]o further objection . . .” did not present a valid
objection, we conclude that Huston did not preserve for appeal
any evidentiary error that resulted from admitting the state-
ments he had previously moved to redact. We also conclude
29 See, e.g., State v. Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986); State
v. Newman, 5 Neb. App. 291, 559 N.W.2d 764 (1997), overruled on other
grounds, State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).
30 See State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009).
31 State v. Timmens, 282 Neb. 787, 796, 805 N.W.2d 704, 712 (2011).
32 State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).

STATE v. HUSTON 	31
Cite as 285 Neb. 11
that the record is insufficient to adequately address on direct
appeal whether trial counsel’s failure to object denied Huston
the effective assistance of counsel. Accordingly, we affirm the
judgment of the district court.
affirMeD.