Postconviction: Evidence: Appeal and Error. In an evidentiary
hearing 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. An appellate court independently resolves
questions of law.
Effectiveness of Counsel: Appeal and Error. A claim that
defense counsel provided ineffective assistance presents a
mixed question of law and fact. When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear 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 decision.
Right to Counsel: Effectiveness of Counsel. The right to
counsel has been interpreted to include the right to
Effectiveness of Counsel: Proof: Appeal and Error. Under the
standard established by the U.S. Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), claims of ineffective assistance
of counsel by criminal defendants are evaluated using a
two-prong analysis: first, whether counsel's performance
was deficient and, second, whether the deficient performance
was of such a serious nature so as to deprive the defendant
of a fair trial.
Effectiveness of Counsel: Proof. To show that the performance
of a prisoner's counsel was deficient, it must be shown
that counsel's performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
Neb. 831] 7. ___: ___. To establish the prejudice element of
the Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, a defendant must
show that the counsel's deficient performance was of such
gravity to render the result of the trial unreliable or the
proceeding fundamentally unfair.
Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and
Error. When reviewing claims of alleged ineffective
assistance of counsel, an appellate court affords trial
counsel due deference to formulate trial strategy and
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
Trial: Effectiveness of Counsel: Witnesses. The decision to
call, or not to call, a particular witness, made by counsel
as a matter of trial strategy, even if that choice proves
unproductive, will not, without more, sustain a finding of
ineffectiveness of counsel.
Effectiveness of Counsel. Under the Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), framework for ineffective assistance of counsel
claims, a court may address the two elements, deficient
performance and prejudice, in either order.
Effectiveness of Counsel: Proof. To prove the prejudice
element of an ineffective assistance of counsel claim, a
prisoner must prove that his or her counsel's deficient
performance was of such gravity to render the result of the
trial unreliable or the proceeding fundamentally unfair, by
establishing that but for the deficient performance of
counsel, there is a "reasonable probability" that
the outcome of the case would have been different.
Postconviction: Constitutional Law: Prosecuting Attorneys:
Effectiveness of Counsel. A claim of prosecutorial misconduct
may be considered on postconviction only to the extent it
constitutes a constitutional violation under the U.S. or
Evidence: Prosecuting Attorneys: Due Process. The
nondisclosure by the prosecution of material evidence
favorable to the defendant and requested by the defendant
violates the Due Process Clause, irrespective of the good
faith or bad faith of the prosecution.
Postconviction: Appeal and Error. A motion for postconviction
relief is not a substitute for an appeal.
___: ___. A motion for postconviction relief cannot be used
to secure review of issues which were known to the defendant
and could have been litigated on direct appeal; such issues
are procedurally barred.
Postconviction: Prosecuting Attorneys: Appeal and Error.
Whether a claim of prosecutorial misconduct could have been
litigated on direct [295 Neb. 832] appeal and is thus
procedurally barred from being litigated on postconviction
depends on the nature of the claim.
___: ___: ___. Where the claim of prosecutorial misconduct is
such that a determination of the merits is possible based on
the record on direct appeal, such as statements made in a
prosecutor's closing argument, it is procedurally barred
from being litigated on postconviction.
Postconviction: Appeal and Error. Where an evidentiary
hearing is necessary to decide the merits of the claim, the
failure to raise the issue on direct appeal does not preclude
it from being litigated on postconviction.
from the District Court for Hall County: James D. Livingston,
Judge, Retired. Affirmed.
E. Corey III, of Shamberg, Wolf, McDermott & Depue, for
Douglas J. Peterson, Attorney General, and James D. Smith for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
E. Torres, Jr., was convicted by jury of two counts of first
degree murder, one count of robbery, three counts of use of a
deadly weapon to commit a felony, and one count of
unauthorized use of a financial transaction device. Torres
was sentenced to death on each murder conviction, 50 to 50
years' imprisonment on each of the robbery and use
convictions, and 20 months' to 5 years' imprisonment
for the unauthorized use of a financial transaction device
conviction. His convictions were affirmed by this court on
direct appeal. Torres filed a petition for postconviction
relief in the district court for Hall County. After an
evidentiary hearing, the district court denied Torres'
petition. Torres appeals this denial. We affirm.
Neb. 833] II. BACKGROUND
Torres' Relationship With Other Characters
was involved in drug trafficking in Grand Island. Nebraska.
Through his drug activities, Torres knew a man known as Billy
Packer, who was also involved in drug trafficking. It was
through Packer that Torres met Jose Cross, Gina Padilla, and
Hall allowed Donohue to live in Hall's house in a room on
the second floor. Hall also allowed Padilla to live in his
house in exchange for cleaning the house and caring for his
cats. Padilla was dating Cross, who eventually moved in to
Hall's house with Padilla. Cross, who also sold drugs,
used Hall's house as a base for his drug trafficking.
Kidnapping and Robbery of Packer
February 2007, Torres and Packer were hanging out with a
group of people in a trailer. After Torres got into an
argument with someone, he and Packer left in Packer's
car. Once inside the car, Torres pulled out a gun, pointed it
at Packer, and told him to drive to Cross' house.
arrival, Torres and Packer went inside. Torres was holding
the gun inside his coat and pulled it back out once they were
inside. Torres, Packer, and Cross went upstairs, where
Padilla was present. Torres gave Cross some duct tape and
told him to tie up Packer, which he did. Torres said that
Packer was supposed to have obtained an ounce of
methamphetamine for someone in Texas. Torres said that once
Packer got the methamphetamine, Torres would take it to
Texas. Torres forced Packer to make a number of cell phone
calls in order to obtain the methamphetamine. While he was
holding Packer, Torres took approximately $800 from
Packer's wallet. He told Cross and Padilla to go purchase
food with Packer's bank card, which they did.
and Padilla convinced Torres to let Packer go, because Packer
had to travel to Kansas for a court date and could get [295
Neb. 834] the methamphetamine when he returned. Torres kept
Packer's cell phone and other items from Packer's
was charged with kidnapping, robbery, and two counts of use
of a weapon to commit a felony for the kidnapping and robbery
of Packer. He was convicted by a jury and sentenced by the
court to 25 to 40 years' imprisonment on both the
kidnapping and associated weapons convictions and 20 to 30
years' imprisonment on both the robbery and associated
weapons convictions, all to be served consecutively.
direct appeal in 2008, he alleged only that his sentences
were excessive. Torres filed a supplemental pro se brief,
alleging that his trial counsel was ineffective. On September
17, 2008, in case No. A-08-131, the Nebraska Court of Appeals
summarily affirmed his convictions, but concluded that the
record was not sufficient to address Torres' claims of
ineffective assistance of counsel on direct appeal.
his kidnapping and robbery convictions were affirmed, Torres
petitioned for postconviction relief. He alleged, among other
things, that his counsel was ineffective for failing to call
certain witnesses that he believed would have refuted the
testimony that he kidnapped Packer. The district court held
an evidentiary hearing and denied Torres' postconviction
petition, which denial the Court of Appeals
Murders of Hall and Donohue
March 1, 2007-less than a month after Torres kidnapped
Packer-Torres asked Cross if he could stay in Hall's
house because he had no other place to stay. Cross was
reluctant, but Donohue agreed to let Torres stay in his room.
Early the next morning, Cross and Padilla left on a trip to
Texas. They did not tell Torres they were going to Texas,
because they knew he wanted to go to Texas and also knew that
he had a gun. Cross and Padilla's departure left Torres
in the house with Hall and Donohue.
Neb. 835] On March 5, 2007, the bodies of Hall and Donohue
were found in Hall's house by police after Padilla
requested that police conduct a welfare check on the two.
Hall's body was found on the first floor of the house,
bound by an extension cord in an armchair and gagged with a
bathrobe belt. He had three contact gunshot wounds to his
head from a small-caliber weapon. His cause of death was
determined to be asphyxiation by gagging, suffocation,
physical restraint, and multiple deeply penetrating gunshot
body was found upstairs. His cause of death was three gunshot
wounds to his head and chest. The shots were fired at close
range and were contact or near-contact shots.
DNA was found on the bathrobe belt used to gag Hall, and he
could not be excluded from the DNA sample on the cord used to
bind Hall. His DNA was also found on cigarette butts in
bank card was used by Torres early in the morning on March 3,
2007. Torres left for Texas in Hall's car, arriving in
Houston, Texas, on March 8. Hall's car was later found
near where Torres was staying in Texas. It had been burned.
Houston law enforcement apprehended Torres on March 26.
Torres had Packer's cell phone in his possession when he
2009, Torres was tried and convicted of two counts of first
degree murder for the murders of Hall and Donohue, one count
of robbery, three counts of use of a deadly weapon to commit
a felony, and one count of unauthorized use of a financial
transaction device for the use of Hall's bank card.
Torres was found guilty by a jury; he waived his right to a
jury determination of the aggravating factors at the
sentencing phase, choosing to be sentenced by a panel of
three judges. The panel found all four of the aggravating
factors that were alleged with regard to the murder of Hall
and three of the four factors with regard to the murder of
Donohue. Torres was sentenced to death on each murder
conviction, 50 to 50 years' [295 Neb. 836] imprisonment
on each of the robbery and use convictions, and 20
months' to 5 years' imprisonment for the unauthorized
use of a financial transaction device conviction.
Torres' murder trial, the district court admitted
evidence about his kidnapping and robbery of Packer,
including a part of the bill of exceptions from his
kidnapping and robbery trial in which he had been convicted.
The district court held that this evidence was admissible
under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), "for purposes of motive, intent, plan,
knowledge, opportunity, and identity."
direct appeal of his murder convictions, Torres argued that
the district court improperly admitted the evidence of his
kidnapping and robbery of Packer under rule
404(2). This court concluded that the district
court erred in admitting this evidence to show Torres'
intent or opportunity to commit the murders. But we concluded
that it was admissible to show his motive. We concluded that
the improper admission of this evidence to show intent or
opportunity was harmless error and affirmed his convictions
Postconviction Petition and Hearing
2013, Torres filed a motion for postconviction relief. The
court granted his motion to appoint counsel. Torres was
allowed to amend his petition and submit a second amended
petition for postconviction relief.
petition alleged that his trial counsel was ineffective by
"fail[ing] to . . . adequately address the [rule] 404
evidence regarding the alleged kidnapping and robbery of . .
. Packer, including the failure to present evidence regarding
testimony of [three potential witnesses] and a failure to
adequately raise [295 Neb. 837] issues regarding phone
records of . . . Packer's telephone.'' Torres
claimed that trial counsel was ineffective by "fail[ing]
to adequately raise the issues regarding destruction of
evidence, contamination of evidence and the State's
failure to produce evidence, " including the handling of
crime scene evidence. He alleged counsel was ineffective in
failing to call an expert witness to testify about the
possible evidence contamination and DNA testing and the
release of the crime scene premises (Hall's house) to
Hall's family and its subsequent destruction. He claimed