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State v. Van11/12/2004
of the previous day and J.G.C.'s progress as a "slave." Marshall testified that during this conversation, Van stated that if J.G.C. did not work out, they would have to kill him. Marshall testified that Van appeared to be disappointed when he made this statement. When the State asked Marshall the reason for Van's apparent disappointment, he responded, " had told me that what his goal was is to eventually get seven slaves and it was-." At that point, Van's counsel immediately objected and moved for a mistrial on the basis that Marshall had testified regarding Van's behavior with others in violation of the court's finding at the rule 404 hearing. The district court denied the motion but instructed the jury to disregard Marshall's response.
On appeal, Van contends that Marshall's statement was so prejudicial that it could not be cured by the instruction to disregard and that the district court therefore erred in not granting a mistrial. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. State v. Shipps, supra; State v. Myers, 258 Neb. 272, 603 N.W.2d 390 (1999). Marshall's brief remark did not include specifics about Van's prior sexual conduct with other individuals, and we conclude that it does not rise to the level of prejudice that would require a mistrial. The instruction to disregard was sufficient to minimize any prejudice caused by the remark, and the district court did not err in denying Van's motion for mistrial.
4. Assistance of Counsel
(a) Assignment of Error
In his fifth assignment of error, Van assigns, restated, that his trial counsel was ineffective, thereby depriving him of his Sixth Amendment right to assistance of counsel.
(b) Standard of Review
[13,14] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003); State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003). Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004). When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.
(c) Disposition
Van alleges that his trial counsel was ineffective in agreeing to redact specific details in the e-mail messages received in evidence at trial, in failing to file a bill of particulars or a motion to quash the assault charges in the information, in failing to request a change of venue, and in failing to challenge discrimination in the selection of the jury. Van concedes in his brief that these claimed deficiencies are "not apparent on the record." Brief for appellant at 30.
Based upon our determination, discussed above, that the information was legally sufficient, we conclude that there is no merit to Van's claim that his trial counsel was ineffective in failing to file a bill of particulars or motion to quash. We agree that the present record provides an insufficient basis for resolution of Van's other claims regarding the assistance provided by his trial counsel. Accordingly, w
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