State v. Glass , 298 Neb. 598 ( 2018 )

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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. GLASS
Cite as 298 Neb. 598
State of Nebraska, appellee, v.
Greg A. Glass, appellant.
___ N.W.2d ___
Filed January 5, 2018. No. S-16-861.
1. Judgments: Appeal and Error. When reviewing a question of law,
an appellate court reaches a conclusion independent of the lower
court’s ruling.
2. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary 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. In contrast, an appellate court independently resolves
questions of law.
3. Effectiveness of Counsel: Appeal and 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.
4. Due Process: Convictions: Proof. The Due Process Clause protects
the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he or
she is charged.
5. Homicide: Intent: Lesser-Included Offenses. Both second degree mur-
der and voluntary manslaughter involve intentional killing and are dif-
ferentiated by the presence or absence of the sudden quarrel provocation
involved in manslaughter. If the sudden quarrel provocation exists, it
lessens the degree of the homicide from murder to manslaughter.
6. Criminal Law: Statutes: Convictions: Time: Appeal and Error. A
new rule applies to criminal cases still pending on direct review, because
they are not final. As to convictions that are already final, however, the
rule applies only in limited circumstances.
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7. Constitutional Law: Criminal Law: Statutes: Sentences: Time. New
substantive rules of constitutional law for criminal cases generally
apply retroactively. Substantive rules include rules forbidding criminal
punishment of certain primary conduct and rules prohibiting a certain
category of punishment for a class of defendants because of their status
or offense. Constitutional substantive rules alter the range of conduct or
the class of persons that the law punishes.
8. Criminal Law: Statutes: Convictions: Time. Substantive rules apply
retroactively, because they carry a significant risk that a defendant
stands convicted of an act that the law does not make criminal or faces
a punishment that the law cannot impose upon him or her.
9. Constitutional Law: Criminal Law: Statutes: Convictions: Time.
New constitutional rules of criminal procedure generally do not apply
retroactively. Most procedural rules regulate only the manner of deter-
mining the defendant’s culpability. They do not produce a class of per-
sons convicted of conduct the law does not make criminal, but merely
raise the possibility that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.
10. Criminal Law: Courts: Time. Courts give retroactive effect to only
a small set of “watershed rules of criminal procedure” implicating the
fundamental fairness and accuracy of the criminal proceeding.
11. Habeas Corpus: Courts: States: Jury Instructions: Due Process. A
federal court may grant habeas relief on the basis of a faulty state law
jury instruction only if the erroneous instruction so infected the entire
trial that the resulting conviction violates due process.
12. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise a
claim on appeal of ineffective assistance of trial counsel (a layered claim
of ineffective assistance of counsel), an appellate court will look first
at whether trial counsel was ineffective under the test 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.
13. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
14. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To prevail on a claim of ineffective assistance of counsel,
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, a defendant must demonstrate
a reasonable probability that but for his or her counsel’s deficient
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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 confi-
dence in the outcome.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
In 1999, following a jury trial, Greg A. Glass was con-
victed of second degree murder and use of a firearm to
commit a felony. Glass appeals the August 25 and 30, 2016,
orders of the district court for Douglas County, in which the
court denied his amended and supplemental motions for post-
conviction relief after holding an evidentiary hearing. The
evidence received at the hearing pertained to Glass’ claims
relating to jury instructions at his trial and to his allegations
that he had received ineffective assistance of trial and appel-
late counsel. Glass appeals, repeating his claim that the jury
instructions given in his case denied him due process and did
not comply with this court’s holdings in State v. Smith, 282
Neb. 720, 806 N.W.2d 383 (2011) (State v. Ronald Smith),
which he contends applies retroactively to his case on collat-
eral review. He also claims that the district court erred when it
rejected his ineffective assistance of counsel claims. We find
no error and affirm.
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STATE v. GLASS
Cite as 298 Neb. 598
II. STATEMENT OF FACTS
1. Background
In 1999, Glass was convicted of second degree murder
and use of a firearm to commit a felony. The charges arose
from the July 1998 shooting death of Glass’ former employer,
Adolph Fentress, Sr. Fentress was shot in the head while work-
ing at an automobile detailing shop, Downtown Auto Sales
(Downtown Auto), which he co-owned. The facts for which
we find support in the record are set forth in the memorandum
opinion of the Nebraska Court of Appeals rejecting Glass’
arguments on direct appeal. See State v. Glass, No. A-99-919,
2000 WL 944020 (Neb. App. July 11, 2000) (not designated
for permanent publication).
At trial, Glass testified in his own defense. According to his
testimony, he worked for Downtown Auto earlier in the year
but had quit. Glass claimed Fentress owed him money, and
he had tried to collect it on several occasions. According to
Glass, at one point when he tried to collect his money, Fentress
threatened him with a tire iron and told him to stay away from
Downtown Auto.
Glass testified that on July 2, 1998, he had come to
Downtown Auto again to collect his money, because Fentress
had agreed to meet him. Glass testified that he brought a gun
to protect himself because of the previous threatening encoun-
ters with Fentress. After they met, Glass and Fentress began
arguing, and then Glass believed Fentress picked up a weapon.
Glass testified that he retreated to the door area of the office
and that Fentress came at him. According to Glass, he raised
his gun and shot Fentress in self-defense. He testified that he
then panicked and drove off in a red BMW from the lot.
Several eyewitnesses testified for the prosecution, including
Downtown Auto employee Deon Marion. Marion testified that
on the day of Fentress’ death, he was working in the parking lot
outside and noticed a person whom he later identified as Glass
standing near the Downtown Auto building. Marion witnessed
Glass call out to Fentress. Marion observed an expression from
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Fentress that communicated that something was wrong. Marion
went into the office and called the police. The sound of a gun-
shot was picked up in the recording of that telephone call.
Another eyewitness was Adolph Fentress, Jr. (Adolph), the
teenage son of Fentress. Adolph testified that he observed
an argument between Fentress and Glass. Adolph said that
Fentress appeared to have something behind his back and over-
heard Glass say, “drop it.” Adolph observed something under
Glass’ shirt, and saw Glass move toward the office, followed
by Fentress. Adolph testified that Glass pulled out a gun and
shot Fentress. He next observed Glass go through Fentress’
pockets, remove a wallet and keys, and drive away in a red
BMW that their shop had serviced. Glass was later found in the
red BMW. When police arrived and processed the scene, they
found Fentress’ deceased body on the floor of the shop and
found a tire iron next to his body.
The jury found Glass guilty of second degree murder and
use of a firearm to commit a felony, and not guilty of theft by
unlawful taking.
2. Postconviction Proceedings
Glass filed a pro se motion for postconviction relief on
August 23, 2012. Among the claims set forth in the motion was
a claim that trial counsel provided ineffective assistance when
counsel failed to object to the “malice” definition in the jury
instructions. The district court appointed counsel for Glass’
postconviction proceeding. Glass then amended the motion for
postconviction relief and claimed he was denied due process
based on jury instructions which did not require the jury to
consider manslaughter, that is, whether the killing was inten-
tional, but provoked by a sudden quarrel, before convicting
Glass of second degree murder. Glass also alleged ineffective-
ness of trial and appellate counsel.
Glass argued that the instruction given in his case did not
comply with our holdings in State v. Ronald Smith and State
v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013). He claimed
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ineffective assistance of trial counsel in three respects: fail-
ing to call witnesses who would have testified to the victim’s
violent and aggressive character; failing to relay a plea offer in
advance of trial; and failing to obtain an expert ballistics wit-
ness who could have testified about the range of the gunshot,
the path of the gunshot, or any other matters that may have
aided Glass in his self-defense claim. Finally, Glass claimed
that his separate appellate counsel, who was different from
his trial counsel, was ineffective on direct appeal for failing to
allege the foregoing claims against trial counsel.
A hearing was conducted, at which the court received evi-
dence, including testimony from Glass and exhibits including
depositions of trial and appellate counsel. In an August 25,
2016, order, the court overruled Glass’ amended motion for
postconviction relief. With regard to the claim regarding jury
instructions on second degree murder and manslaughter, the
court reasoned that the claim was procedurally barred because
Glass failed to raise it on direct appeal. Alternatively, the court
rejected the claim because the rule stated in State v. Ronald
Smith, upon which Glass relied, was not a new constitutional
rule that required retroactive application, but was a new crimi-
nal rule which would not be retroactively applied to cases
that were final and which were not pending on direct appeal
when State v. Ronald Smith was decided. The district court
also concluded that the “step instruction” under which the jury
first considered second degree murder before considering man-
slaughter to which Glass now objects was settled law at the
time of the 1999 trial.
With regard to each of Glass’ ineffective assistance of coun-
sel claims, the court determined that there was no prejudicial
error by trial counsel for failing to call a witness familiar
with Fentress’ aggressive character, failing to call an expert to
address ballistic and autopsy findings, and failing to relay a
plea offer. With regard to the failure to call a witness familiar
with Fentress’ character, the court noted that two witnesses
testified about the behavior of Glass and Fentress prior to
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the shooting and that the additional witness was not involved
in the incident giving rise to the case and would not have
changed the jury’s perception of events. With regard to the
decision not to call a forensic expert to reexamine the findings
of the State’s expert regarding the gunshot wound, weapon
used, autopsy report, and other forensic results, the court noted
that Glass’ only argument for why it might be necessary was
because the entrance wound was somewhat irregular. Glass did
not demonstrate how a different interpretation of the evidence
would affect the outcome of the case. With regard to the claim
that trial counsel failed to communicate a plea offer, the court
found that the evidence refuted the suggestion that a plea deal
was offered by the State.
Because the court found no prejudicial error by trial counsel
in connection with any of the claims, it found no prejudicial
error when Glass’ appellate attorney did not raise the same
issues on direct appeal.
In an August 30, 2016, order, the district court also overruled
a supplemental pro se postconviction motion filed by Glass.
This supplemental motion alleged that the jury was incorrectly
instructed at trial on second degree murder and manslaughter.
The district court rejected this claim.
This appeal followed.
III. ASSIGNMENTS OF ERROR
Glass claims that the district court erred when it rejected his
postconviction allegations that his due process rights to a fair
trial and impartial jury were violated by the jury instructions
given at his 1999 trial and that he was prejudiced by the defi-
cient performance of his trial and appellate counsel regarding
his convictions for second degree murder and use of a firearm
to commit a felony.
IV. STANDARDS OF REVIEW
[1] When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s ruling.
State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
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[2] 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. In
contrast, an appellate court independently resolves questions of
law. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d
706 (2017).
[3] 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. See State v. Alarcon-Chavez, supra.
V. ANALYSIS
1. Summary of A nalysis
of Jury I nstructions
Glass filed amended and supplemental motions for post-
conviction relief alleging a constitutional violation under Neb.
Rev. Stat. § 29-3001 et seq. (Reissue 2016). Our analysis of the
validity of Glass’ claim is framed by whether he was deprived
of a constitutional right. As we explain below, we conclude
that Glass’ constitutional rights were not abridged in connec-
tion with the jury instructions of which he complains.
Glass offers several rationales for relief which we consider,
in turn, in our analysis and ultimately find unpersuasive. His
several theories rest on his assertion that our decision in State
v. Ronald Smith applies to his case and affords relief. Because
we conclude that constitutional principles do not require that
State v. Ronald Smith be applied retroactively on collateral
review, that plain error did not occur, and that Glass did not
suffer a constitutional violation and was not deprived of due
process, we reject Glass’ claim related to the jury instructions
that were used at his trial.
[4] Glass contends that under the U.S. Supreme Court’s
retroactivity test applicable to cases on collateral review, State
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v. Ronald Smith should be applied retroactively, because it
announced a new substantive rule of constitutional law which
violated his rights. See Teague v. Lane, 489 U.S. 288, 109 S.
Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and
Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159
L. Ed. 2d 442 (2004). Because it was not a new substantive
constitutional rule, we reject this argument. Relying on cases
such as State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013),
Glass next contends that the jury instruction at his trial con-
stituted plain error requiring reversal. Because the cases on
which Glass relies were on direct appeal at the time of our
consideration, they are inapplicable to Glass’ postconviction
case on collateral review. Ultimately, Glass claims that he suf-
fered a constitutional violation by use of the jury instruction
that was given at his trial and that as such, it violated due
process. We recognize that “the Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” See In re Winship, 397 U.S.
358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Glass was
convicted by sufficient proof of second degree murder upon a
proper jury instruction regarding second degree murder. The
instruction regarding sudden quarrel manslaughter, albeit now
deemed faulty, did not deprive Glass of due process in connec-
tion with the charge for second degree murder of which he was
convicted. See id.
2. State v. Ronald Smith
In his postconviction motion, Glass claimed that he was
denied his constitutional rights because the jury at his 1999
trial was given improper jury instructions regarding the man-
ner it should consider second degree murder and sudden quar-
rel manslaughter and also because the elements of sudden
quarrel manslaughter were inaccurate. Under the jury instruc-
tions given in this case, if the jury found proof of second
degree murder beyond a reasonable doubt, the jury was not
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required to consider whether the killing was the result of sud-
den quarrel manslaughter. Glass does not challenge the content
of the jury instruction regarding second degree murder in and
of itself. However, he argues that the step instruction given in
his case did not comply with our holdings in State v. Ronald
Smith and State v. Trice, supra.
[5] Under our holdings in State v. Ronald Smith, both
second degree murder and voluntary manslaughter involve
intentional killing and are differentiated by the presence or
absence of the sudden quarrel provocation involved in man-
slaughter. If the sudden quarrel provocation exists, it lessens
the degree of the homicide from murder to manslaughter.
Following State v. Ronald Smith, where there is evidence that
(1) a killing occurred intentionally without premeditation and
(2) the defend­ant was acting under the provocation of a sudden
quarrel, a rational jury could convict a defendant of sudden
quarrel manslaughter and a jury should be given the option of
convicting of either second degree murder or sudden quarrel
manslaughter depending upon its resolution of the fact issue
regarding provocation. See, also, State v. Smith, 284 Neb. 636,
822 N.W.2d 401 (2012). Thus, a step instruction which directed
the jury to convict the defendant of second degree murder if it
found an intentional killing, but did not allow the jury to also
consider whether the killing was provoked by a sudden quarrel,
was an incorrect statement of the law.
3. Teague/Schriro
R etroactivity Test
In its decisions in Teague v. Lane, 489 U.S. 288, 109 S.
Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion), and
Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L.
Ed. 2d 442 (2004), as well as other cases, the U.S. Supreme
Court set forth a test for determining when a new rule of con-
stitutional law will be applied to cases on collateral review.
See, also, Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct.
718, 193 L. Ed. 2d 599 (2016). We have adopted the Teague/
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Schriro retroactivity test. See State v. Mantich, 287 Neb. 320,
842 N.W.2d 716 (2014). The threshold question in this appeal,
as asserted by Glass, is whether the new rule pronounced in
State v. Ronald Smith applies to Glass on collateral review. If
the rule were applicable on collateral review, and assuming
evidence of sudden quarrel manslaughter existed, we would
reverse his convictions and remand the cause for a new trial.
Because Glass’ convictions were final before State v. Ronald
Smith was decided, he is entitled to relief in this postconvic-
tion case if the rule announced in State v. Ronald Smith applies
retroactively on collateral review.
[6-8] When a decision of this court results in a “new rule,”
that rule applies to criminal cases still pending on direct
review, because they are not final. State v. Mantich, supra.
See Schriro v. Summerlin, supra. As to convictions that are
already final, however, the rule applies only in limited cir-
cumstances. Id. New substantive rules of constitutional law for
criminal cases generally apply retroactively. Substantive rules
include “‘rules forbidding criminal punishment of certain pri-
mary conduct’” and “‘rules prohibiting a certain category of
punishment for a class of defendants because of their status
or offense.’” Montgomery v. Louisiana, 136 S. Ct. at 728.
Constitutional substantive rules “‘alter[] the range of conduct
or the class of persons that the law punishes.’” Montgomery
v. Louisiana, 136 S. Ct. at 732. Such rules apply retroac-
tively, because they “‘necessarily carry a significant risk that
a defendant stands convicted of “an act that the law does not
make criminal”’” or faces a punishment that the law cannot
impose upon him or her. State v. Mantich, 287 Neb. at 330,
842 N.W.2d at 724.
[9,10] New constitutional rules of criminal procedure, on the
other hand, generally do not apply retroactively. Montgomery
v. Louisiana, supra. Most procedural rules “regulate only the
manner of determining the defendant’s culpability.” Schriro v.
Summerlin, 542 U.S. at 353 (emphasis in original). They do
not produce a class of persons convicted of conduct the law
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does not make criminal, but merely raise the possibility that
someone convicted with use of the invalidated procedure might
have been acquitted otherwise. Schriro v. Summerlin, supra.
“Because of this more speculative connection to innocence, we
give retroactive effect to only a small set of ‘“watershed rules
of criminal procedure” implicating the fundamental fairness
and accuracy of the criminal proceeding.’” 542 U.S. at 352.
Accord Montgomery v. Louisiana, supra. This class of rules is
extremely narrow. Schriro v. Sumerlin, supra.
4. New Rule in State
v. Ronald Smith
Although State v. Ronald Smith announced a new man-
slaughter rule which we applied on direct review, see State v.
Trice, 286 Neb. 183, 835 N.W.2d 667 (2013), it did not recog-
nize a new constitutional rule, see State v. Smith, 284 Neb. 636,
822 N.W.2d 401 (2012), or a new constitutional claim for pur-
poses of timeliness as understood in Nebraska’s postconviction
statutes. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860
(2016). As discussed above, a new rule applies retroactively
on collateral review only if it is (1) a constitutional substantive
rule or (2) a watershed rule of criminal procedure. Glass does
not argue that the rule in State v. Ronald Smith implicates a
watershed rule of criminal procedure, and we agree. Thus, we
turn to his argument that the rule applies retroactively because
it is a substantive constitutional rule. As explained below, we
reject this argument.
In State v. Ronald Smith, we clarified both that sudden
quarrel manslaughter is an intentional crime and that a step
jury instruction requiring a jury to acquit the defendant of
second degree murder before considering sudden quarrel man-
slaughter is improper. In Harrison, we concluded that State v.
Ronald Smith did not recognize a new constitutional claim and
therefore did not toll the 1-year statute of limitations under
§ 29-3001(4)(d) for timely filing a postconviction motion.
We explained that State v. Ronald Smith was based upon our
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interpretation of the criminal statute that defines manslaugh-
ter, Neb. Rev. Stat. § 28-305 (Reissue 2016), not on a newly
recognized constitutional right.
We conclude that the holding in State v. Ronald Smith that it
is improper for a jury to consider second degree murder with-
out simultaneously considering sudden quarrel manslaughter
is a change to the acceptable method for the jury to deliberate
and is a procedural rule change “regulat[ing] only the man-
ner of determining the defendant’s culpability.” See Schriro v.
Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d
442 (2004).
State v. Ronald Smith also interpreted the language of the
manslaughter statute to clarify the intent requirement for sud-
den quarrel manslaughter and dispel the confusion between
the statutory crimes of second degree murder and sudden
quarrel manslaughter. See § 28-305(1). We believe that non-
retroactivity of the State v. Ronald Smith rule poses no danger
to Glass of a wrongful conviction for second degree murder.
In the instant case, the jury found Glass guilty of second
degree murder. The record shows that a rational jury could
find each element of second degree murder beyond a reason-
able doubt.
5. Due Process
Glass contends that the holdings in State v. Ronald Smith
show that he suffered a constitutional violation, thereby depriv-
ing him of due process. We do not agree.
When Glass was tried in 1999, the criminal law in Nebraska
regarding second degree murder had been clarified in State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and malice
was not an element of second degree murder, the absence of
provocation was not an element of second degree murder, and
a conviction for manslaughter did not require proof of intent.
[11] In another postconviction case which concerned a 2004
homicide, State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404
(2011), we reasoned that a comparable step instruction for
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second degree murder and manslaughter did not relieve the
State of its burden to prove the elements of second degree
murder and did not violate due process. Subsequently, the U.S.
Court of Appeals for the Eighth Circuit rejected the defend­
ant’s federal habeas petition complaining that our rejection
of his postconviction claims denied him due process rights.
Iromuanya v. Frakes, 866 F.3d 872 (8th Cir. 2017). The Eighth
Circuit stated that our rejection of the defendant’s claims relat-
ing to his jury instructions “was not contrary to, nor an unrea-
sonable application of, [Nebraska] Supreme Court precedent.”
Id. at 879. The Eighth Circuit offered the following quote
regarding due process: “A federal court may grant habeas
relief on the basis of a faulty state law jury instruction only if
the erroneous instruction ‘so infected the entire trial that the
resulting conviction violates due process.’” Id. at 881 (quoting
Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d
385 (1991)). The Eighth Circuit added that complaints about
the retroactivity of State v. Ronald Smith are “not a federal due
process problem,” Iromuanya v. Frakes, 866 F.3d at 881, thus
leaving the issue for our resolution.
Applicable U.S. Supreme Court precedent for due process
requires the State to prove beyond a reasonable doubt every
fact necessary to constitute the crime with which a defendant
is charged. See In re Winship, 397 U.S. 358, 90 S. Ct. 1068,
25 L. Ed. 2d 368 (1970). At Glass’ trial, as we have noted, the
State was required to prove beyond a reasonable doubt each
of the elements of the crime of which Glass stands convicted,
second degree murder. The suggestion by Glass that the jury
might have convicted him of sudden quarrel manslaughter
does not defeat the validity of his second degree murder
conviction on collateral review where the conviction was sup-
ported by sufficient evidence. We conclude that notwithstand-
ing our holdings in State v. Ronald Smith, given the sufficient
evidence of the commission of second degree murder, Glass’
due process right to trial by an impartial jury was not offended
by the step jury instruction requiring the jury to first acquit
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Glass of second degree murder before considering sudden
quarrel manslaughter, or by defining manslaughter as an unin-
tentional crime.
6. Ineffective Assistance
of Counsel
[12] Glass was represented by different counsel at trial and
on appeal. Glass sought postconviction relief for the alleged
ineffective assistance provided by his trial counsel and appel-
late counsel. When a claim of ineffective assistance of appel-
late counsel is based on the failure to raise a claim on appeal
of ineffective assistance of trial counsel (“a ‘layered’ claim of
ineffective assistance of counsel”), an appellate court will look
first at whether trial counsel was ineffective under the test in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). State v. Dubray, 294 Neb. 937, 953, 885
N.W.2d 540, 554 (2016). If trial counsel was not ineffective,
then the defendant was not prejudiced by appellate counsel’s
failure to raise the issue. State v. Dubray, supra.
[13,14] Before considering Glass’ specific claims for post-
conviction relief, we review the applicable general standards.
The Nebraska Postconviction Act, § 29-3001 et seq., provides
that postconviction relief is available to a prisoner in custody
under sentence who seeks to be released on the ground that
there was a denial or infringement of his or her constitutional
rights such that the judgment was void or voidable. State
v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016). A proper
ineffective assistance of counsel claim alleges a violation of
the fundamental constitutional right to a fair trial. State v.
Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). To prevail on a
claim of ineffective assistance of counsel under Strickland v.
Washington, supra, the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. State
v. Vela, supra. To show prejudice under the prejudice compo-
nent of the Strickland test, the defendant must demonstrate
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a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. State v. Vela, supra. A reasonable probability
does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
confidence in the outcome. Id.
Following our independent review, we conclude that the
district court did not err when it rejected Glass’ ineffective
­assistance of counsel claims after an evidentiary hearing.
(a) Trial Counsel’s Failure to Call
a Witness to Testify to the
Victim’s Violent Character
Glass alleged that trial counsel was ineffective because he
failed to call a potential witness who would have testified that
Fentress generally had a reputation for being violent. In his
testimony, Glass’ trial counsel denied that Glass told him about
“any witnesses whatsoever” who would have testified about
Fentress’ tendency for violence.
The record shows that the additional witness now proposed
by Glass was not involved in the incident giving rise to the
case and, we believe, even if relevant, would not have changed
the jury’s perception of events. As the district court noted in
its order, two witnesses testified at trial about the behavior
of Glass and Fentress prior to the shooting. Even if admitted,
the proposed additional witness testimony would have been
cumulative and Glass was not prejudiced by trial counsel’s
alleged failure to call the potential witness. See State v. Grant,
293 Neb. 163, 876 N.W.2d 639 (2016). We find no prejudi-
cial error.
(b) Trial Counsel’s Decision Not
to Retain an Expert to Address
Ballistic and Autopsy Findings
Glass alleged that trial counsel was ineffective by failing
to retain and call an expert to address ballistic and autopsy
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findings at trial. Glass’ trial counsel testified that he never
considered retaining an independent expert, because he saw no
reason to do so; he was comfortable with the autopsy findings,
and based on his experience, he knew that the conclusions
about the lack of stippling and its correlation to the distance
between the shooter and the victim was accurate and consistent
with the evidence.
With regard to the decision not to call a forensic expert to
reexamine the findings of the State’s expert regarding the gun-
shot wound, weapon used, autopsy report, and other forensic
results, the district court in its order noted that Glass’ only
argument for why such evidence might be necessary was
because the entrance wound was somewhat irregular. Glass did
not present evidence or a specific explanation of how a dif-
ferent interpretation of the evidence would have affected the
outcome of the case. Trial counsel was not deficient in failing
to engage a ballistics expert.
(c) Trial Counsel Not
Relaying Plea Offer
Glass alleged that his trial counsel was deficient and that he
was prejudiced because counsel failed to look into and relay a
plea offer by the State. At the hearing on his amended motion,
Glass testified that he asked his trial counsel to look into a
potential plea deal. Approximately 9 years after his trial, Glass
claims that his family told him that the State had “supposedly”
extended a plea offer of manslaughter. At the evidentiary hear-
ing, Glass’ trial counsel testified that there was never a plea
offer from the State, that the State was adamant about taking
the case to trial, and that if the State would have allowed Glass
to plead to manslaughter, counsel would have relayed it to
Glass and definitely advised him to accept the deal. The district
court found trial counsel’s testimony credible and determined
that there was no deficient performance by trial counsel for not
relaying a plea offer, because Glass did not show the existence
of a plea offer by the State, other than by an unsubstantiated
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rumor. The district court’s findings are not clearly erroneous,
and they support the district court’s rejection of this claim.
State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706
(2017). The district court did not err.
(d) Ineffectiveness of Appellate
Counsel Claims
Glass also alleged ineffectiveness of appellate counsel for
failing to raise the above issues on direct appeal. Because
the court found no prejudicial error by trial counsel in con-
nection with any of the claims, it found no prejudicial error
when Glass’ appellate attorney did not raise the same issues
on direct appeal. State v. Dubray, 294 Neb. 937, 885 N.W.2d
540 (2016).
Direct appeal counsel testified that he did not recall Glass’
asking him to raise claims of ineffective assistance of trial
counsel based on Glass’ present allegations. This testimony
is also supported by a letter to appellate counsel regarding
claims for ineffective assistance of trial counsel in which Glass
made no mention of the three ineffective assistance of counsel
claims Glass is currently raising.
As noted above, trial counsel was not deficient and appel-
late counsel was not ineffective when he did not raise the
claims Glass now asserts without success. Accordingly, we
conclude that the district court did not err when it concluded
that Glass’ allegations regarding appellate counsel’s perform­
ance were without merit, and we therefore affirm the orders
denying postconviction relief.
VI. CONCLUSION
As explained above, we conclude that the holdings in State
v. Ronald Smith do not apply to Glass retroactively on col-
lateral review. The State was required to prove each element
of the crime of second degree murder of which Glass stands
convicted, and because the evidence was sufficient, Glass’
convictions did not offend his due process rights. Further, we
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have reviewed Glass’ claims of ineffectiveness of trial and
appellate counsel and agree with the district court that they are
without merit. Accordingly, we conclude that the district court
did not err when it denied Glass’ amended and supplemental
motions for postconviction relief.
A ffirmed.
Wright, J., not participating in the decision.