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State v. Tyler

Supreme Court of Nebraska

October 19, 2018

State of Nebraska, appellee,
v.
Avery R. Tyler, appellant.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. Postconviction: Appeal and Error. A motion for postconviction relief is not a substitute for an appeal.

         6. ___: ___. 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.

         7. 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.

         8. ___: ___: ___. 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.

         9. 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.

         10. 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.

          Appeal 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 for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          Funke, J.

         Avery 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.

         I. BACKGROUND

         This appeal follows our decision in State v. Tyler, [1] 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 run consecutively.

         1. Facts

         On 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 torso.

         When 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.

         During 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.

         Investigators 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 information.

         Based upon this information, Tyler was arrested and charged for the shooting.

         2. Trial

         A jury 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.

         (a) King's Testimony

         King 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.

         In 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 thing.''

         During 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]?
A. Yes.
Q. Is it something that you authored, you wrote it?
A. Yes.
Q. When?
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?
A. After.
Q. And who - you say you don't think you typed it. someone else did?
A. Yes.
Q. Who?
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?
A. Yes.
Q. And you say this was done after the police spoke to you in Illinois?
A. Correct.

         The 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 letter.

         (b) Johnson's Testimony

         Johnson 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.

         On 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 ...


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