Postconviction: Evidence: Appeal and Error. In an evidentiary
hearwarrantlessng on a motion for postconviction relief, the
trial judge, as the trier of fact, resolves conflicts in the
evidence and questions of fact. An appellate court upholds
the trial court's findings unless they are clearly
erroneous. In contrast, an appellate court independently
resolves questions of law.
Effectiveness of Counsel: Appeal and Error. With regard to
the questions of counsel's performance or prejudice to
the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such
legal determinations independently of the lower court's
Effectiveness of Counsel: Proof: Appeal and Error. 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 his
or her counsel's performance was deficient and that this
deficient performance actually prejudiced the defendant's
Effectiveness of Counsel: Proof: Words and Phrases: Appeal
and Error. To show prejudice under the prejudice component of
the Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, the petitioner must
demonstrate a reasonable probability that but for his or her
counsel's deficient performance, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.
Records: Appeal and Error. The party appealing has the
responsibility of including within the bill of exceptions
matters from the record which the party believes are material
to the issues presented for review.
Neb. 493] 6. ___: ___.A bill of exceptions is the only
vehicle for bringing evidence before the Supreme Court;
evidence which is not made part of the bill of exceptions may
not be considered.
Trial: Prosecuting Attorneys: Words and Phrases. Generally,
prosecutorial misconduct encompasses conduct that violates
legal or ethical standards for various contexts because the
conduct will or may undermine a defendant's right to a
Evidence: Appeal and Error. An appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder's province for
Stipulations: Pleas: Evidence. A stipulation entered by a
defendant can be tantamount to a guilty plea. But this is
true only when the defendant stipulates either to his or her
guilt or to the sufficiency of the evidence.
Effectiveness of Counsel: Proof: Words and Phrases. 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. A
reasonable probability does not require that it be more
likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the
Effectiveness of Counsel. The effectiveness of counsel is not
to be judged by hindsight. 12. Effectiveness of Counsel:
Time: Appeal and Error. Claims of ineffective assistance of
counsel raised on direct appeal by the same counsel who
represented the defendant at trial are premature and will not
be addressed on direct appeal.
Effectiveness of Counsel: Appeal and Error. When analyzing a
claim of ineffective assistance of appellate counsel, courts
usually begin by determining whether appellate counsel
actually prejudiced the defendant. That is, courts begin by
assessing the strength of the claim appellate counsel failed
from the District Court for Lancaster County: Steven D.
D. Barber, of Barber & Barber, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Neb. 494] Wright, Miller-Lerman, Cassel, and Kelch, JJ., and
Moore. Chief Judge.
Saylor (Lena) was found dead in her home on April 27, 1984.
The State charged James M. Saylor (Saylor), Lena's
grandson, with first degree murder, based upon evidence that
Saylor had hired Michael Sapp to kill Lena. After a
stipulated bench trial, the district court for Lancaster
County found Saylor guilty of second degree murder and
sentenced him to life in prison. This court affirmed on
direct appeal. See State v. Saylor, 223 Neb. 694,
392 N.W.2d 789 (1986). Now, 30 years later, Saylor appeals
the district court's 2015 order that denied his motion
for postconviction relief, following a limited evidentiary
hearing. We reject Saylor's claims of, inter alia,
ineffective assistance of counsel, prosecutorial misconduct,
and prejudicial conduct by the trial judge, and we affirm.
in 1984, the State charged Saylor with first degree murder.
The original information is not in the record for this
appeal. At that time, hiring the killing of another person
was an aggravating factor supporting the death penalty. Neb.
Rev. Stat. § 29-2523(1)(c) (Reissue 1979) (repealed 2015
Neb. Laws, L.B. 268, § 35).
had arrested Saylor in April 1984, immediately after he made
tape-recorded statements about Lena's death to his
friends David Timm and Jeffrey Menard. On July 12, 1984,
Saylor filed a motion to dismiss, which was denied. On
December 7, Saylor filed a motion to suppress the tape
recordings. On February 6, 1985, the district court conducted
a hearing on that motion. Patrick Healey and Susan Jacobs
represented Saylor. Michael Heavican, the county attorney at
that time, had declared a conflict because he anticipated
[294 Neb. 495] that he may be called as a witness, and Terry
Dougherty was appointed special prosecutor for the case.
the motion to suppress was still under advisement. Dougherty
proposed that the parties resolve the matter by agreement,
and the parties negotiated. Ultimately, the parties agreed to
a stipulated trial to allow Saylor to contest the district
court's ruling on his motion to suppress. We recount
additional details regarding the parties' negotiations in
the analysis section below. On April 2, 1984, the district
court denied the motion to suppress.
April 5, 1985, Saylor waived his right to a jury trial. The
district court confirmed that Saylor did so freely,
voluntarily, and knowingly. Next, Dougherty summarized the
parties' agreement for the record, which summary we quote
in the analysis portion of this opinion. Saylor's counsel
acknowledged that Dougherty had correctly described the
agreement, and neither Saylor nor his counsel contradicted
Bench Trial and Direct Appeal
10, 1985, the State amended the charge to second degree
murder. The district court advised Saylor that he had the
right to be served with the amended copy of the information
and to wait 24 hours before appearing for arraignment, and
Saylor waived those rights. The district court proceeded with
the arraignment, and Saylor pled not guilty to the amended
charge. The district court then conducted the stipulated
bench trial. We summarize those proceedings in part here and
provide additional relevant details in other portions of this
20-page written stipulation, signed by Dougherty, Healey, and
Saylor, set forth evidence that Saylor had hired Sapp to kill
Lena. In that document, the parties stipulated that all items
of evidence discussed and offered had an adequate chain of
custody. Along with the written stipulation, the parties
submitted other evidence by stipulation, including the tape
[294 Neb. 496] recordings of the conversation between Saylor,
Timm, and Menard in April 1984. Saylor's counsel renewed
his motion to suppress, which the district court again
argued to the district court that the matter was submitted
with stipulated facts, but that this left "to the court
the question of whether the stipulated matter proves
[Saylor's] guilt and if so, what offense."
20, 1985, the district court found Saylor guilty of second
degree murder. Saylor filed a motion for new trial. On August
7, the district court overruled Saylor's motion for new
trial and sentenced him to life in prison.
direct appeal to this court, Saylor claimed that the district
court erred in overruling his motion to suppress the recorded
conversation. State v. Saylor, 223 Neb. 694, 392
N.W.2d 789 (1986). Healey and Jacobs represented Saylor on
appeal. This court described the recordings as including
"incriminating" and "inculpatory"
statements in which Saylor "indicated that he had hired
someone to kill his grandmother." See id. at
697, 392 N.W.2d at 792. We affirmed.
August 22, 2012, Saylor filed a pro se motion for
postconviction relief; his new counsel filed a lengthy
amended motion for postconviction relief on February 7, 2013.
district court granted an evidentiary hearing, but limited
its scope to ineffective assistance of trial and appellate
counsel, prosecutorial misconduct, and prejudicial conduct of
the trial judge. Saylor's remaining claims were not
permitted to proceed to the evidentiary hearing. The district
court specifically noted that Saylor had addressed the ruling
on the motion to suppress on direct appeal and could not
prior to November 20, 2014, Saylor gave notice of his intent
to call an attorney to give expert testimony at the
evidentiary hearing regarding whether Saylor's trial
counsel's performance was deficient and whether Saylor
was prejudiced by such alleged deficiencies. The State
responded [294 Neb. 497] with a motion to preclude the
attorney's testimony. After reviewing the attorney's
proposed testimony, the district court precluded it, finding
that it would not have assisted the trier of fact in
understanding the evidence or determining a factual issue.
district court conducted the evidentiary hearing on December
1 through 4, 2014, and January 6, February 17, and March 11,
offered the clerk's transcript from the stipulated bench
trial, which the district court received. The record contains
a photocopy of the front page of the clerk's transcript,
with a notation that the original would be furnished by the