Postconviction: Judgments: Appeal and Error.
Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law which is reviewed
independently of the lower court's ruling.
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.
Postconviction: Constitutional Law: Judgments. Under
the Nebraska Postconviction Act, a prisoner in custody may
file a petition for relief on the ground that there was a
denial or infringement of the prisoner's constitutional
rights that would render the judgment void or voidable.
Postconviction. In the absence of alleged facts that
would render the judgment void or voidable, the proper course
is to dismiss a motion for postconviction relief for failure
to state a claim.
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 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 [301 Neb. 866] on direct appeal, it is
procedurally barred from being litigated on postconviction.
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.
Effectiveness of Counsel: Proof. To show prejudice
on 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.
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro,
L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
R. Tyler appeals from the district court's denial of
postconviction relief without an evidentiary hearing. Tyler
asserts claims of prosecutorial misconduct and ineffective
assistance of trial and appellate counsel. For the reasons
set forth herein, we affirm.
appeal follows our decision in State v. Tyler,
which affirmed Tyler's jury trial convictions and
sentences therefrom, including one count of premeditated
first degree murder, a Class IA felony for which Tyler
received a sentence of life imprisonment, and one count of
use of a firearm to commit a [301 Neb. 867] felony, a Class
IC felony for which Tyler received a sentence of 20 to 30
years imprisonment. The trial court ordered the sentences to
September 3, 2012, Delayno Wright was shot and killed outside
Halo Ultra Lounge (Halo) in Omaha, Nebraska. Prior to the
shooting, Wright, his girlfriend Brittany Ashline, and his
cousin LaRoy Rivers were walking through the parking lot
toward Wright's vehicle when two men walked past them.
One of the men grabbed or brushed against Ashline, which led
to Ashline and Wright's confronting the men. Rivers
thought he recognized one of the men who was wearing a brown,
striped shirt and saw that man break away from the group.
Rivers saw a dome light turn on in a vehicle in the parking
lot, heard the voice of the man he thought he recognized
yelling, '"What's up now?'" and heard
gunshots. Rivers could not see the shooter, but Ashline said
she saw a man run to a tan or gold sport utility vehicle or
Jeep and leave the scene after the shots were fired. Wright
indicated he had been shot, was driven to a hospital, and was
subsequently pronounced dead due to a gunshot wound to his
Rivers spoke to investigators, he informed them that he
thought he recognized the man wearing the brown, striped
shirt as a person he played basketball with in high school.
Rivers explained that he thought the man's first name was
Avery, but that he was unsure of his last name. While on a
detective's computer, Rivers accessed a social media
page, viewed Tyler's profile picture, and identified him
as the individual in the brown, striped shirt.
the investigation of the shooting, investigators obtained a
photograph of Tyler from a wedding he attended the day before
the shooting in which he was wearing a brown, striped shirt.
Investigators also obtained security footage showing a sport
utility vehicle leaving the scene near the time of the
shooting at a high rate of speed. It was subsequently
discovered Tyler's girlfriend owned a silver Jeep
Commander. At the [301 Neb. 868] scene of the shooting,
investigators found eight shell casings. A crime laboratory
technician reported that the casings were all fired from the
same gun and that there are about 20 guns capable of firing
them, including an "FN Five-seveN" pistol. It was
discovered Tyler had purchased an FN Five-seveN pistol
approximately 2½ months prior to the shooting.
obtained and executed four search warrants for Tyler's
car and for his grandparents', mother's, and
girlfriend's residences. During the searches,
investigators discovered a cell phone from Tyler's car, a
gunlock bearing the "FN" logo from his
grandparents' residence, and a letter from his
mother's residence. Tyler signed a consent form that
allowed investigators to download and search the contents of
the cell phone. On the cell phone, investigators discovered
another picture of the September 2, 2012, wedding in which
Tyler was wearing a brown, striped shirt; a deleted text
message from September 2 that read, "What's it like
and where is halo?"; and call records and location
upon this information, Tyler was arrested and charged for the
trial was held in June 2014. At trial, the court heard
testimony from 24 witnesses for the State and 5 for the
defense. Among the State's witnesses were Ronald King and
Jelani Johnson. Tyler's assignments of error in the
current appeal concern King's and Johnson's
testimony; therefore, a summary of their testimony and the
State's arguments concerning their testimony is provided
in relevant part below.
testified he met Tyler and Johnson playing basketball for
Bellevue University in Nebraska from 2008 to 2010. After
those 2 years, King moved back to his hometown in Illinois.
September 2012, King returned to Nebraska for the wedding of
a former teammate and stayed with Johnson who was also
attending the wedding. King testified that Tyler attended
[301 Neb. 869] the wedding and was wearing a brown, striped
shirt. King testified that he left the wedding to go to Halo
with Tyler in the vehicle Tyler was driving, a
"light-colored Jeep." King explained that once they
got to Halo, they parked in the parking lot and were walking
on a sidewalk leading into the club when they passed two men
and a woman. King testified that he brushed against the woman
as she was walking by and that the woman and one of the men
confronted them about the contact. King explained that Tyler
and the man who confronted them got into a heated exchange
and that the other man and King had to separate the two. King
testified that Tyler left at some point and that when King
walked back toward Tyler's Jeep, he saw Tyler walking
from the Jeep toward the location where the confrontation
happened with something in his hand. King testified he saw
Tyler fire three to five gunshots in the direction where King
had last seen the group of three people. After firing the
shots, King testified that Tyler returned to the vehicle and
Tyler drove them to a second bar. King then texted another
friend for a ride and parted ways with Tyler. King testified
that he returned to Illinois on his scheduled return flight.
Later, King was arrested in Illinois for an unrelated matter
and held for a Nebraska warrant. King obtained a lawyer when
Omaha Police Department detectives began to question him
about the shooting. Eventually, he was given immunity. King
explained the terms of the immunity by describing that he
gave a formal interview to the police and that if called to
testify, he would "have to say the exact same
cross-examination, King was asked by Tyler's counsel to
look at a letter leading to the following exchange:
Q. Do you recognize [the letter]?
Q. Is it something that you authored, you wrote it?
A. I don't believe that I wrote it. I probably was
speaking and somebody else wrote it.
[301 Neb. 870] Q. Okay. What were the circumstances of you
making those statements and giving that information?
A. You know, just follow-up on my reactions and how I felt
about the situation.
Q. Okay. Was it before you spoke to the cops or after you
spoke to the cops?
Q. And who - you say you don't think you typed it.
someone else did?
A. My attorney, possibly.
Q. Well, what do you mean "possibly?''
A. I don't remember who wrote it.
Q. Okay. But it's your words?
Q. And you say this was done after the police spoke to you in
letter was not offered into evidence, and King provided no
other testimony concerning the letter outside of this
exchange. However, Tyler attached a letter to his motion for
postconviction relief and alleged the document was the letter
his counsel questioned King about at trial. Tyler alleges his
trial counsel was informed by the State during an
off-the-record recess that the letter discussed was actually
written by Johnson. Neither the State nor Tyler's trial
counsel disclosed to the jury that Johnson had authored the
testified he has known Tyler since childhood. Johnson played
basketball at Bellevue University with Tyler and King and
asserted that he is friends with both men.
September 2, 2012, King and Johnson attended a wedding where
they saw Tyler. King and Tyler left the wedding reception
without Johnson, and Johnson did not see King again until the
next day. The next morning, Johnson [301 Neb. 871] had a
conversation with King about what had occurred the night
before. Tyler showed up uninvited ...