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.
Jury Instructions: Appeal and Error. Whether
jury instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Postconviction. Postconviction relief is a
very narrow category of relief.
Postconviction: Constitutional Law: Proof.
In order to be entitled to an evidentiary hearing, a prisoner
must allege facts in the motion for postconviction relief
that, if proved, would constitute a violation of his or her
rights under the U.S. or Nebraska Constitution.
Postconviction. A prisoner is not entitled
to an evidentiary hearing on a motion for postconviction
relief on the basis of claims that present only conclusory
statements of law or fact.
In the absence of alleged facts that would render the
judgment void or voidable, the proper course is to dismiss
the motion for postconviction relief for failure to state a
Postconviction: Effectiveness of Counsel:
Proof: Appeal and Error. To establish a
right to postconviction relief because of counsel's
ineffective assistance, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that
counsel's performance was deficient; that is,
counsel's performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Next, the
defendant must show that counsel's deficient performance
prejudiced the defense in his or her case.
Neb. 884] 8. Effectiveness of
Counsel: Proof. To establish the prejudice prong of
a claim of ineffective assistance of counsel, the defendant
must demonstrate a reasonable probability that but for
counsel's deficient performance, the result of the
proceeding would have been different.
Effectiveness of Counsel: Presumptions. In
determining whether trial counsel's performance was
deficient, courts give counsel's acts a strong
presumption of reasonableness.
Effectiveness of Counsel: Appeal and Error.
An appellate court will not judge an ineffectiveness of
counsel claim in hindsight; appellate courts must assess
trial counsel's performance from counsel's
perspective when counsel provided the assistance.
___: ___. When reviewing claims of ineffective assistance, an
appellate court will not second-guess trial counsel's
reasonable strategic decisions.
Right to Counsel: Plea Bargains. The
plea-bargaining process presents a critical stage of a
criminal prosecution to which the right to counsel applies.
Effectiveness of Counsel: Plea Bargains. As
a general rule, defense counsel has the duty to communicate
to the defendant all formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable
to the defendant.
Verdicts: Juries: Jury Instructions:
Presumptions. Absent evidence to the contrary, it is
presumed that a jury followed the instructions given in
arriving at its verdict.
Jury Instructions: Appeal and Error. In an
appeal based on a claim of an erroneous jury instruction, the
appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant.
___: ___. All the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by
the pleadings and the evidence, there is no prejudicial error
Criminal Law: Motions for Mistrial. A motion
for mistrial is properly granted in a criminal case where an
event occurs during the course of trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a
Motions for Mistrial: Proof: Appeal and
Error. A defendant must prove that an alleged error
actually prejudiced him or her, rather than creating only the
possibility of prejudice, in order for a motion for mistrial
to be properly granted.
Effectiveness of Counsel: Appeal and Error.
When a claim of ineffective assistance of appellate counsel
is based on the failure to raise [300 Neb. 885] a claim on
appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate
court will look at whether trial counsel was ineffective
under the two-part test for ineffectiveness established in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); if trial counsel was not
ineffective, then the defendant was not prejudiced by
appellate counsel's failure to raise the issue.
___: ___. Much like claims of ineffective assistance of trial
counsel, a defendant claiming ineffective assistance of
appellate counsel must show that but for appellate
counsel's failure to raise the claim, there is a
reasonable probability that the outcome would have been
Witnesses: Impeachment. Generally, the
credibility of a witness may be attacked by any party,
including the party who called the witness.
___: ___. A party may not use a prior inconsistent statement
of a witness under the guise of impeachment for the primary
purpose of placing before the jury substantive evidence which
is not otherwise admissible.
from the District Court for Douglas County: Peter C.
Bataillon, Judge. Affirmed.
D. Foster, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Strong,
D. Foster appeals from the denial of postconviction relief
without an evidentiary hearing. Foster asserts that he was
prejudiced by ineffective assistance of counsel at trial and
on direct appeal. We affirm the judgment below.
appeal follows our decision on Foster's direct appeal in
State v. Foster,  which affirmed Foster's jury trial
convictions on one count of first degree murder, four counts
[300 Neb. 886] of assault in the second degree, and five
counts of use of a deadly weapon to commit a felony. Foster
and his codefendant, Darrin D. Smith, were charged with the
same crimes. The two cases were jointly tried, and the jury
found Smith and Foster guilty on all counts. The court
sentenced both Smith and Foster to life imprisonment, plus
consecutive sentences totaling 96 to 150 years.
Victor Henderson and Corey Henderson were members of the
"Pleasantview" or "PMC" gang in Omaha,
Nebraska, and Smith was a member of a rival gang referred to
as "40th Avenue." Victor and Corey were federally
indicted, and they agreed to plead guilty and testify for the
government in exchange for leniency. They were released from
federal prison in 2007, and they were considered
"snitches" within the gang community.
October 2008, Smith saw Victor and Corey at a party and made
a derogatory remark toward Corey regarding being a
"snitch." Later that month, Smith saw Victor and
Corey at an American Legion hall in Omaha (the Legion), which
was considered a bar for the "Pleasantview" gang.
When Corey walked outside, he saw a group of men had
surrounded Victor, including Smith, "Don Don"
Swift, and a boy of about 14 years of age, who each had a
gun. "Don Don" was arguing with Victor. Smith made
another statement to the effect of "we don't mess
with your kind," which Corey understood to be a comment
about Victor and Corey being "snitches."
November 9, 2008, while Victor and Corey were at the Legion,
Smith and Foster entered the bar wearing hooded sweatshirts.
Corey testified that Smith gave him a "hateful look or a
stare." Smith and Foster were in the Legion for
approximately 10 minutes, but before they left, they looked
and nodded toward Victor and Corey. Around closing time,
Smith and Foster returned and confronted Victor and Corey in
the parking lot. Victor was fatally shot in the neck, and
Corey and three others were wounded.
Neb. 887] Smith and Foster were arrested and charged for the
shootings. The evidence was in conflict as to whether Smith
or Foster was the shooter. For example, there was evidence
that Smith wore a black hooded sweatshirt and that Foster
wore a gray hooded sweatshirt when they were first at the
Legion, but had switched shirts before they confronted Victor
and Corey in the parking lot. Witnesses testified the shooter
was wearing black clothes with a hood pulled over his face.
At least two witnesses implicated Foster as the shooter,
another witness claimed Smith was the shooter, and there was
evidence that the shooter was neither Foster nor Smith but
was yet a third individual, including "Don Don" or
a person named "Views."
State's theory of prosecution at trial was that Foster
was the shooter and that Smith aided and abetted Foster in
the commission of the shootings. The State called several
witnesses to establish that Smith was seen with a gun and
that he handed Foster the gun just prior to the shootings.
a 2-week jury trial, Smith and Foster were convicted on all
counts. Both parties appealed, and this court issued separate
opinions affirming their convictions and
opinion on direct appeal in Foster addressed
Foster's assignments that the district court erred by
failing to sever Foster's trial from Smith's, which
was the main focus of the appeal, and allowing the jury to
separate without Foster's intelligent waiver of his right
court rejected Foster's claim that he was prejudiced by
the joint trial, reasoning that based upon the evidence, the
jury could have convicted both Smith and Foster, just one of
them, or neither of them. Furthermore, we determined that a
joint trial was appropriate, because the charges against
Smith [300 Neb. 888] and Foster stemmed from the same series
of acts and would be proved by similar evidence.
rejected Foster's second assignment of error, because the
trial court specifically asked Foster whether he sought jury
sequestration and he replied that he did not, which satisfied
the requirement for a voluntary, knowing, and intelligent
waiver of the right to sequester.
to the instant appeal, Foster then filed a motion for
postconviction relief, with the assistance of court-appointed
counsel. Foster's motion raised claims of trial court
error, prosecutorial misconduct, ineffective assistance of
trial counsel, and ineffective assistance of appellate
district court found that Foster's claims of trial court
error and prosecutorial misconduct could have been raised on
direct appeal and therefore were procedurally barred. The
court found Foster's ineffective assistance of counsel
claims were not procedurally barred, because he was
represented by the same counsel at trial and on direct
appeal. The court then addressed the allegations supporting
Foster's ineffective assistance of counsel claims and
found that they were not specific enough to merit a hearing
and that Foster had not pointed to any facts which showed he
appeal, Foster proceeds as a self-represented litigant and
reasserts his ineffective assistance of counsel claims, and
he argues the court erred in failing to grant him an
ASSIGNMENTS OF ERROR
assigns, restated and reordered, that the district court
erred in (1) failing to find trial counsel deficiency
violated article I, § 11, of the Nebraska Constitution
and the Sixth Amendment to the U.S. Constitution; (2) failing
to grant Foster postconviction relief; (3) failing to find
Foster was prejudiced by performance of trial counsel; (4)
failing to find Foster was prejudiced by performance of
appellate counsel; and (5) denying Foster an evidentiary
Neb. 889] III. STANDARD OF REVIEW
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
jury instructions are correct is a question of law. which an
appellate court resolves independently of the lower
the Nebraska Postconviction Act,  a prisoner in custody may
file a petition for relief on the grounds that there was a
denial or infringement of the prisoner's constitutional
rights that would render the judgment void or voidable. This
category of relief is "very narrow."
29-3001(2) entitles a prisoner to an evidentiary hearing on
the claim, unless "the motion and the files and records
of the case show to the satisfaction of the court that the
prisoner is entitled to no relief." In order to be
entitled to an evidentiary hearing, a prisoner must allege
facts in the motion for postconviction relief that, if
proved, would constitute a violation of his or her rights
under the U.S. or Nebraska Constitution. A prisoner is not
entitled to an evidentiary hearing on the basis of claims
that present only conclusory statements of law or
fact. In the absence of alleged ...