An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under § 27-404, or under the inextricably intertwined exception to the rule. State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017).V. ANALYSIS
In so doing, we observed that while the district court found that the evidence of the prior assault was admissible under rule 404(2), we did not need to consider that ruling, because the "assault evidence was inextricably intertwined and not 404 evidence."We based that conclusion on the fact that the assault was "part of the factual setting" of the subsequent murder, and the record supported the district court's conclusion that "evidence of the assault was necessary to present a coherent picture of the murder."State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
We review for abuse of discretion a trial court's evidentiary rulings on relevance, whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the sufficiency of a party's foundation for admitting evidence. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). We also review for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under rule 404(2), or under the inextricably intertwined exception to the rule.
Whether a knowing and voluntary waiver has been made is determined by looking to the totality of the circumstances. See, State v. Hernandez , 299 Neb. 896, 911 N.W.2d 524 (2018) ; State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017).Id.
Miranda warnings are a prerequisite to interrogation and fundamental with respect to the Fifth Amendment privilege. State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017). As applied to state governments through the incorporation of the 14th Amendment to the U.S. Constitution, the 5th Amendment protects against compelled self-incrimination.
An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably intertwined exception to the rule. See State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on relevance, whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the sufficiency of a party's foundation for admitting evidence.
Neb. Rev. Stat. § 27-901 (Reissue 2016) requires authentication or identification of evidence sufficient to support a finding that a matter is what the proponent claims as a condition precedent for admission. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). Authentication or identification under § 27-901, is not a high hurdle.
The inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error. State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017). The admission of Gratz’ testimony that other officers told him that Howell frequented the area of the pertinent residence on North 27th Street was harmless because there was other, admissible, evidence which demonstrated that Howell was frequently in the area of that residence in the months leading up to September 24, 2016.
Montejo, 556 U.S. at 795, 129 S.Ct. 2079. Pursuant to the U.S. Supreme Court’s dictates in Montejo, supra, even though an attorney had been appointed, Morrissey had the right to request that Lamberson consent to an interview so long as Lamberson was advised of his Miranda rights and waived them. Lamberson’s claims to the contrary are without merit, and his claim of ineffectiveness of counsel on this basis must fail. Defense counsel is not ineffective for failing to raise an argument that has no merit. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). Lamberson also claims that his statements and admissions should have been challenged as being obtained in violation of his Miranda rights, his rights under the Fifth and Sixth Amendments to the U.S. Constitution, and his rights under article I, §§ 3 and 12, of the Nebraska Constitution. The record on appeal is likewise sufficient for us to review this claim.
An appellate court reviews for abuse of discretion a trial court’s evidentiary rulings on the admissibility of a defendant’s other crimes or bad acts under rule 404(2), or under the inextricably intertwined exception to the rule. See State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.