State v. Munoz

Summary

The Nebraska Supreme Court affirmed Lucio P. Munoz’s convictions for first degree murder and use of a deadly weapon to commit a felony. The court rejected claims of plain error based on alleged prosecutorial misconduct and a witness’s assertion of the Fifth Amendment privilege in the jury’s presence. It also rejected ineffective-assistance claims concerning trial counsel’s failure to object to the prosecutor’s opening statement, the privilege assertion, and blood-spatter evidence.

Holdings

1. An alleged error must be both specifically assigned and specifically argued, and an ineffective-assistance assignment on direct appeal must specifically allege deficient performance. The court therefore declined to consider additional ineffective-assistance matters that were argued but not assigned as error.
2. The prosecutor's statements that the murder weapon and blood-stained clothing were not found did not constitute prosecutorial misconduct and therefore did not amount to plain error.
3. The record did not establish plain error when Brady invoked his Fifth Amendment privilege in the jury's presence and was then granted immunity and required to testify.
4. Counsel was not ineffective for failing to object because the prosecutor's opening statement did not constitute misconduct and an objection would have had no valid basis.
5. Counsel was not ineffective because Munoz could not establish prejudice from the failure to require that Brady invoke the privilege outside the jury's presence.
6. Counsel was not ineffective for failing to object to the blood-spatter evidence as irrelevant because the evidence met Nebraska's low threshold for relevance.
7. Counsel was not ineffective for failing to object under Neb. Evid. R. 403 because the blood-spatter evidence was not shown to have probative value substantially outweighed by unfair prejudice.

Questions Presented

1. Whether the prosecutor's opening statement concerning the missing murder weapon and clothing constituted prosecutorial misconduct and plain error.
2. Whether the trial court committed plain error by permitting a witness to invoke the Fifth Amendment privilege in the jury's presence.
3. Whether trial counsel was ineffective for failing to object to the prosecutor's opening statement.
4. Whether trial counsel was ineffective for failing to demand compliance with Neb. Evid. R. 513(2) concerning the witness's privilege invocation.
5. Whether trial counsel was ineffective for failing to challenge blood-spatter evidence as irrelevant and unfairly prejudicial.
6. Whether additional ineffective-assistance claims not specifically assigned as error could be considered on direct appeal.

Disposition

affirmed