Postconviction: Constitutional Law: Appeal and
Error. In appeals from postconviction proceedings,
an appellate court reviews de novo a determination that the
defendant failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief.
Effectiveness of Counsel: Appeal and Error.
When a claim of ineffective assistance of counsel presents a
mixed question of law and fact, an appellate court reviews
the lower court's factual findings for clear error but
independently determines whether those facts show
counsel's performance was deficient and prejudiced the
Postconviction: Constitutional Law: Proof. A
defendant seeking relief under the Nebraska Postconviction
Act must show that his or her conviction was obtained in
violation of his or her constitutional rights.
Postconviction: Constitutional Law: Judgments:
Proof. An evidentiary hearing on a motion for
postconviction relief is required on an appropriate motion
containing factual allegations which, if proved, constitute
an infringement of the movant's rights under the Nebraska
or federal Constitution, causing the judgment against the
defendant to be void or voidable.
Postconviction: Effectiveness of Counsel: Proof:
Appeal and Error. When a district court denies
postconviction relief without conducting an evidentiary
hearing, an appellate court must determine whether the
petitioner has alleged facts that would support a claim of
ineffective assistance of counsel and, if so, whether the
files and records affirmatively show that he or she is
entitled to no relief.
Postconviction: Effectiveness of Counsel:
Proof. If the petitioner has not alleged facts which
would support a claim of ineffective assistance of counsel or
if the files and records affirmatively show he or she is
entitled to no relief, then no evidentiary hearing is
Neb. 492] 7. Constitutional Law:
Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the
fundamental constitutional right to a fair trial.
Effectiveness of Counsel: Proof: Words and Phrases:
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 defense. To show
prejudice under the prejudice component of the
Strickland test, the defendant 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 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 outcome.
Trial: Effectiveness of Counsel: Prosecuting
Attorneys: Appeal and Error. In determining whether
defense counsel was ineffective in failing to object to
prosecutorial misconduct, an appellate court must first
determine whether the petitioner has alleged any action or
remarks that constituted prosecutorial misconduct.
Trial: Prosecuting Attorneys: Juries. A
prosecutor's conduct that does not mislead and unduly
influence the jury does not constitute misconduct.
Criminal Law: Directed Verdict. In a
criminal case, the court can direct a verdict only when (1)
there is a complete failure of evidence to establish an
essential element of the crime charged or (2) evidence is so
doubtful in character and lacking in probative value that a
finding of guilt based on such evidence cannot be sustained.
Criminal Law: Directed Verdict: Appeal and
Error. In an appellate court's consideration of
a criminal defendant's motion for a directed verdict, the
State is entitled to have all its relevant evidence accepted
as true, every controverted fact resolved in its favor, and
every beneficial inference reasonably deducible from the
Directed Verdict. If there is any evidence
which will sustain a finding for the party against whom a
motion for directed verdict is made, the case may not be
decided as a matter of law, and a verdict may not be
Trial: Prosecuting Attorneys. In assessing
allegations of prosecutorial misconduct in closing arguments,
a court first determines whether the prosecutor's remarks
were improper. It is then necessary to determine the extent
to which the improper remarks had a prejudicial effect on the
defendant's right to a fair trial.
Neb. 493] 15. Trial: Prosecuting
Attorneys: Evidence. A prosecutor must base his or
her argument on the evidence introduced at trial rather than
on matters not in evidence.
Trial: Prosecuting Attorneys. A prosecutor
is entitled to draw inferences from the evidence in
presenting his or her case, and such inferences generally do
not amount to prosecutorial misconduct.
Trial: Constitutional Law: Testimony. A
defendant has a fundamental constitutional right to testify.
Trial: Attorney and Client: Testimony:
Waiver. The right to testify is personal to the
defendant and cannot be waived by defense counsel's
___: ___: ___: ___. A trial court does not have a duty to
advise the defendant of his or her right to testify or to
ensure that the defendant waived this right on the record.
Instead, defense counsel bears the primary responsibility for
advising a defendant of his or her right to testify or not to
testify, of the strategic implications of each choice, and
that the choice is ultimately for the defendant to make.
Trial: Attorney and Client: Effectiveness of Counsel:
Testimony: Waiver. Defense counsel's advice to
waive the right to testify can present a valid claim of
ineffective assistance in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to
decide to testify or (2) if counsel's tactical advice to
waive the right was unreasonable.
Postconviction: Constitutional Law: Proof.
In a postconviction proceeding, an evidentiary hearing is not
required (1) when the motion does not contain factual
allegations which, if proved, constitute an infringement of
the movant's constitutional rights; (2) when the motion
alleges only conclusions of fact or law; or (3) when the
records and files affirmatively show that the defendant is
entitled to no relief.
Effectiveness of Counsel: Appeal and Error.
When analyzing a claim of ineffective assistance of appellate
counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that
actually prejudiced the defendant.
___: ___. Counsel's failure to raise an issue on appeal
could be ineffective assistance only if there is a reasonable
probability that inclusion of the issue would have changed
the result of the appeal.
Constitutional Law: Speedy Trial.
Determining whether a defendant's constitutional right to
a speedy trial has been violated requires a balancing test in
which the courts must approach each case on an ad hoc basis.
This balancing test involves four factors: (1) length of
delay, (2) the reason for the delay, (3) the defendant's
assertion of the right, and (4) prejudice to the defendant.
Neb. 494] 25. Postconviction: Appeal and
Error. A party cannot raise an issue in a
postconviction motion if he or she could have raised that
same issue on direct appeal.
from the District Court for Cheyenne County: Derek C. Weimer,
A. Johnson, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Craig A. Johnson's appeal from the district court's
order denying him postconviction relief without an
evidentiary hearing. We affirm.
spring of 2011, Johnson began dating April Smith. During
their relationship, Johnson exhibited signs of jealousy about
April's relationship with her former husband Edward
Smith. In November, Johnson told a coworker that he would
kill April if she ever left him, and on December 10, he told
his supervisor that if he ever caught April and Edward
together, he would "beat the shit out of both of
that same day, April's nephew, Robert Gray, his wife, and
their children visited April and Johnson at her duplex. Gray
testified that Johnson was drinking beer that night and was
unusually quiet. Both Gray and his wife testified that
Johnson was upset that Edward had repaired April's van
and that other men had been flirting with April. Gray's
wife also testified that Johnson's demeanor was angry,
that the interactions between Johnson and April were tense,
and that they had begun to argue before the Grays left that
evening. April's neighbors reported hearing loud voices
and arguing in the early morning hours of December 11, 2011.
One of the [298 Neb. 495] neighbors stated that she heard
"a couple of thuds" as well. On December 12, April
did not report to work and did not respond to Gray's
attempts to contact her. Two law enforcement officers went to
April's duplex and found April dead. April's body was
lying face down in the living room, and her feet and hands
were bound. They observed ligature abrasions on her neck, a
wound on her hand and face, and a gaping wound on her
abdomen. The pathologist who performed April's autopsy
concluded that pinpoint hemorrhages found on April's
mouth could have been caused by strangulation or suffocation.
The ligature abrasion on her neck indicated strangulation. A
forensic scientist found a fingerprint on a trash bag that
matched one of Johnson's fingerprints. DNA testing on
blood found on the trash bag produced DNA profiles that
matched April's profile. An investigator testified that
an imprint left on the trash bag appeared to be of a human
face. Investigators also found two knives in the sink, one of
which had an 8-inch blade with blood on it that matched
April's DNA. The duplex showed signs of a struggle, and
blood was splattered throughout. The pathologist opined that
her death was a homicide caused by the stab wound to her
abdomen and suffocation, with a contributing cause of
multiple drug toxicity.
December 15, 2011, Johnson was arrested in Michigan while
driving April's van. When Nebraska investigators searched
the van, they found Johnson's T-shirt and athletic shoes
with dark stains that they believed to be blood. The stains
on both the T-shirt and the shoes tested positive for blood,
and the DNA profile extracted from these stains matched
jury trial in which Johnson did not testify, he was convicted
of first degree murder, use of a deadly weapon to commit a
felony, and possession of a deadly weapon by a prohibited
person. The court sentenced him to prison terms of,
respectively, life, 40 to 50 years, and 10 to 20 years, with
all terms to be served consecutively.
Neb. 496] On direct appeal, Johnson claimed that the court
erred by admitting cumulative, gruesome autopsy photographs
that depicted the same injuries, thus allowing the prosecutor
to inflame the jurors' passions. We rejected this claim,
because Johnson did not assign and argue it. We also rejected
his claim that the court erred by denying his Batson
challenge based on an irrational and pretextual
justification. In doing so, we held that the record
supported the prosecutor's concerns about the juror's
knowledge of the case. Lastly, we determined that the court
did err by admitting testimony and exhibits that
Johnson's DNA profile contained certain alleles that
matched alleles found in a mixed blood sample, because such
evidence lacked sufficient probative value. However, we
concluded that the error was harmless beyond a reasonable
Johnson's verified motion for postconviction relief, he
alleged multiple instances of ineffective assistance of
counsel. Because Johnson was represented by the same lawyers
at the time of his trial and on direct appeal, this
postconviction proceeding was his first opportunity to assert
claims of ineffective assistance of counsel. Johnson alleged
that his trial counsel was ineffective in failing to file a
motion for absolute discharge on the basis of speedy trial,
failing to object to the prosecutor's comments in voir
dire, failing to properly examine various witnesses at trial,
failing to argue after moving for a directed verdict, failing
to object to the state's closing argument, failing to
sever count III from the other charges, and failing to allow
Johnson to testify at trial.
district court, without holding an evidentiary hearing,
denied Johnson's motion, finding that Johnson had failed
to allege sufficient facts to demonstrate a violation of his
constitutional rights and that the record and files