State v. Johnson ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/26/2018 09:13 AM CST
- 491 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
State of Nebraska, appellee, v.
Craig A. Johnson, appellant.
___ N.W.2d ___
Filed December 22, 2017. No. S-17-069.
1. 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 dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective 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 defendant.
3. Postconviction: Constitutional Law: Proof. A defendant seeking relief
under the Nebraska Postconviction Act must show that his or her con-
viction was obtained in violation of his or her constitutional rights.
4. Postconviction: Constitutional Law: Judgments: Proof. An eviden-
tiary 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.
5. 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 affirma-
tively show that he or she is entitled to no relief.
6. 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 necessary.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
7. 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.
8. 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 perform­
ance was deficient and that this deficient performance actually preju-
diced the defendant’s defense. To show prejudice under the prejudice
component of the Strickland test, the defendant must demonstrate a rea-
sonable probability that but for his or her counsel’s deficient perform­
ance, the result of the proceeding would have been different. A reason-
able 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.
9. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
Error. In determining whether defense counsel was ineffective in fail-
ing to object to prosecutorial misconduct, an appellate court must first
determine whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
10. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that
does not mislead and unduly influence the jury does not constitute
misconduct.
11. 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.
12. 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 evidence.
13. Directed Verdict. If there is any evidence which will sustain a find-
ing 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 directed.
14. 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.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
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.
16. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
ences from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.
17. Trial: Constitutional Law: Testimony. A defendant has a fundamental
constitutional right to testify.
18. Trial: Attorney and Client: Testimony: Waiver. The right to testify
is personal to the defendant and cannot be waived by defense counsel’s
acting alone.
19. ____: ____: ____: ____. 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 pri-
mary 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.
20. 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.
21. Postconviction: Constitutional Law: Proof. In a postconviction pro-
ceeding, 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.
22. 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.
23. ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal.
24. Constitutional Law: Speedy Trial. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires a balanc-
ing 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.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
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.
Appeal from the District Court for Cheyenne County: Derek
C. Weimer, Judge. Affirmed.
Craig A. Johnson, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
This is Craig A. Johnson’s appeal from the district court’s
order denying him postconviction relief without an evidentiary
hearing. We affirm.
I. BACKGROUND
In the 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 them.”
Later 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
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STATE v. JOHNSON
Cite as 298 Neb. 491
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 enforce-
ment 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 abra-
sions on her neck, a wound on her hand and face, and a gap-
ing 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 stran-
gulation. A forensic scientist found a fingerprint on a trash
bag that matched one of Johnson’s fingerprints. DNA test-
ing 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 abdo-
men and suffocation, with a contributing cause of multiple
drug toxicity.
On 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
April’s profile.
After a 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.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
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.1 We also rejected his
claim that the court erred by denying his Batson challenge
based on an irrational and pretextual justification.2 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 doubt.
In Johnson’s verified motion for postconviction relief, he
alleged multiple instances of ineffective assistance of coun-
sel. 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 inef-
fective 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 exam-
ine various witnesses at trial, failing to argue after moving for
a directed verdict, failing to object to the state’s closing argu-
ment, failing to sever count III from the other charges, and
failing to allow Johnson to testify at trial.
The 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 constitu-
tional rights and that the record and files affirmatively showed
that he was entitled to no relief. Johnson timely appealed.
1
See State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
2
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
II. ASSIGNMENTS OF ERROR
Johnson assigns, restated, that the district court erred in
overruling his motion for postconviction relief by (1) deny-
ing his claim of ineffective assistance of counsel during voir
dire, (2) denying his claim of ineffective assistance of counsel
on the motion for directed verdict, (3) denying his claim of
ineffective assistance of counsel during closing arguments, (4)
denying his claim of ineffective assistance of counsel concern-
ing his constitutional right to testify, (5) denying his claim
of ineffective assistance of counsel on direct appeal, and (6)
denying his claim of a violation of his constitutional right to a
speedy trial.
III. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively show that the defendant is entitled to no relief.3
[2] Likewise, when a claim of ineffective assistance of coun-
sel presents a mixed question of law and fact, we review the
lower court’s factual findings for clear error but independently
determine whether those facts show counsel’s performance was
deficient and prejudiced the defendant.4
IV. ANALYSIS
In its ruling on Johnson’s motion for postconviction relief,
the district court determined that its records and files, as well
as the bill of exceptions and transcript prepared for Johnson’s
direct appeal, provided a sufficient record to consider each of
Johnson’s claims. In doing so, the court ruled that he was not
entitled to relief on his motion and was not entitled to an evi-
dentiary hearing.
3
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
4
See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
[3-6] A defendant seeking relief under the Nebraska
Postconviction Act5 must show that his or her conviction was
obtained in violation of his or her constitutional rights.6 An
evidentiary hearing on a motion for postconviction relief is
required on an appropriate motion containing factual alle-
gations 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.7 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.8 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 necessary.9
1. Ineffective Assistance
of Counsel
[7,8] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to
a fair trial.10 To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,11 the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
5
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).
6
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
7
Id.
8
Id.
9
Id.
10
Vela, supra note 3.
11
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
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STATE v. JOHNSON
Cite as 298 Neb. 491
defendant’s defense.12 To show prejudice under the preju-
dice 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.13 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.14
(a) Voir Dire
Concerning the statements made by the prosecutor during
voir dire, the court determined that the statements complained
of by Johnson were not objectionable, and therefore, counsel
was not ineffective for failing to object, and that Johnson
failed to show how he was prejudiced by counsel’s perform­
ance. Those statements include the prosecutor’s telling the
prospective jurors that there would be no evidence of a shoot-
ing or “gun play,” that the matter was not a death penalty
case, that the evidence and testimony was “not pretty,” and
that Johnson had “an obligation to put [the State’s] evidence
to the test.”
[9,10] In determining whether defense counsel was inef-
fective 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.15 A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.16
The first statement raised by Johnson—that there would be
no evidence of a shooting or “gun play”—was not improper.
12
Vela, supra note 3.
13
Id.
14
Id.
15
See State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
16
Id.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. JOHNSON
Cite as 298 Neb. 491
The evidence clearly showed that a gun was not found during
the investigation, and there was no evidence that April was
shot. The prosecutor brought up this issue during voir dire to
address what he believed were inaccurate media reports about
the case and to explain why the jurors must set aside anything
that they may have heard about the case or what they may have
seen about the case outside of the courtroom.
It was not improper for the prosecutor to inform the jurors
of their obligations so long as it was consistent with the law.
Later, at the end of the trial, the court also instructed the jury
that certain things were not evidence from which it could find
the facts, including “[a]nything you may have seen or heard
about this case outside the courtroom.” As a result, the pros-
ecutor’s comment about “gun play” was not improper.
The second statement raised by Johnson—that the State was
not seeking the death penalty—was an important detail to share
with the prospective jurors. If the State had been seeking the
death penalty, the jury would have been tasked with determin-
ing whether alleged aggravating circumstances existed. As a
result, it was proper to inform the jury of what their responsi-
bilities entailed. So to address the fact that the State was not
seeking the death penalty was not improper.
The third statement raised by Johnson—that the evidence
and testimony was “not pretty”—was not improper. The crime
scene and autopsy photographs depicted the violent end to
April’s life, and the testimony of the pathologist detailed
the injuries April sustained. This type of evidence would be
disturbing to most jurors, and it was important for both the
State and Johnson to know whether prospective jurors would
be able to cope with seeing such evidence and maintain their
impartiality. As a result, to phrase it as “not pretty” was
not improper.
In regard to the last statement raised by Johnson, that the
defendant had an obligation to put the State’s evidence to
the test, Johnson has taken this comment out of context. The
entirety of the prosecutor’s statement was as follows:
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STATE v. JOHNSON
Cite as 298 Neb. 491
The judge has a role to administer sentence. He has a role
to rule on objections. He has a role to conduct the court
accordingly and as the judge told you we are optimistic
that we can try this case as quickly as possible. And I
read about 21 names of potential witnesses, we have a
[b]unch of exhibits, a [b]unch of photographs, a lot of
videos, some physical evidence to put before you and
then there are 21 witnesses and we are going to try to
speed through them as quickly as possible but we also
have an obligation, we have an obligation to meet our
burden of proof and the defendant has an obligation to
put our evidence to the test and that sometimes is not an
exact science. There is no normal in a murder case or any
jury trial. Most of the state’s witnesses in this case are
coming from long distances away, some from Michigan,
some from Iowa, there are a few local but most of them
are from Scotts Bluff or f[a]rther. There could be traf-
fic problems, there could be days [we] would run out of
witnesses because we went to[o] fast and we ended [at]
3:00, there may be days that we go a bit later maybe an
hour later because we have to fit the witness [in], I think
it is all of our goals to have this case to you no later than
Monday, perhaps Tuesday of next week. Is it possible
that you go Wednesday, maybe and maybe deliberations
go on into Wednesday, could be longer could be much
shorter. Is there anybody aside from those th[at] indicated
earlier to the judge that is going to be so distracted about
the [length] that this trial, the fact that their kids are not
getting picked up or having to rearrange plans that they
are not going to be able to focus on the evidence and just
think about rushing justice?
The prosecutor made the statement while explaining the
number of witnesses intended to call and the amount of evi-
dence he intended to present. The prosecutor was determining
whether any of the prospective jurors would have difficulty
with the length of the trial. The comment was not repeated
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STATE v. JOHNSON
Cite as 298 Neb. 491
in the prosecutor’s comments regarding the State’s burden to
prove Johnson guilty beyond a reasonable doubt. The com-
ment was also not included in the prosecutor’s comments about
Johnson’s presumption of innocence.
Though we do not condone the use of the term “obliga-
tion,” the same did not impose upon Johnson a compulsion
to put the State’s evidence to the test. Further, the trial court
instructed the jury at the end of the trial that “[i]n criminal
prosecutions, the burden of proof never shifts from the State
to the Defendant.” A phrase used no less than five times
throughout the instructions. In addition, the jury was instructed
that “[s]tatements, arguments, and questions of the attorneys
representing both the State and [Johnson]” were not evidence.
As a result, given the specific and limited context in which the
phrase “obligation to put [the State’s] evidence to the test” was
used, it was not improper.
(b) Motion for Directed Verdict
In regard to the claim that upon moving for a directed
verdict, counsel failed to argue in support of the motion, the
district court noted that sufficient evidence had been offered
to support the charges and that therefore, argument would
have been fruitless. As a result, the district court found that
Johnson was not prejudiced by counsel’s failure to make such
an argument.
[11-13] 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.17
In our 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
17
State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
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STATE v. JOHNSON
Cite as 298 Neb. 491
from the evidence.18 If there is any evidence which will sustain
a finding for the party against whom a motion for directed ver-
dict is made, the case may not be decided as a matter of law,
and a verdict may not be directed.19
Johnson alleges that since his DNA and fingerprints were
not found on the knife recovered in April’s home, the court
should have granted a directed verdict on counts II and III.
However, sufficient evidence was introduced to support the
jury’s finding that Johnson committed the murder, including
witnesses who had heard Johnson state that he would harm
April if she ever left him, witnesses who saw Johnson and
April arguing on the evening before the murder, a witness who
heard thuds from April’s home on the night she was killed, the
pathologist’s testimony that indicated the cause of April’s death
was a stab wound or suffocation, April’s DNA that was found
on the knife, Johnson’s fingerprints that were found on a trash
bag used to suffocate or strangle April, Johnson who was found
driving April’s van in Michigan after the murder, and Johnson
who had April’s blood on his clothing and his shoes after
the murder. Therefore, the court did not err in overruling the
motion for directed verdict and any argument in support of the
motion would have been without value. As a result, Johnson’s
trial counsel could not be ineffective in failing to argue in sup-
port of the motion for directed verdict.
Because we find that none of the prosecutor’s statements
were improper, trial counsel’s performance was not deficient
when he failed to object to those statements. In addition, even
if the prosecutor’s comments constituted misconduct, Johnson
is unable to demonstrate a reasonable probability that but for
his counsel’s deficient performance, the result of the proceed-
ing would have been different, based upon the overwhelming
evidence of guilt.
18
State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991), reversed on other
grounds sub nom. Morley v. Stenberg, 828 F. Supp. 1413 (1993).
19
See State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016).
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(c) Closing Argument
In regard to counsel’s failure to object to the State’s clos-
ing argument, Johnson contends that the argument was highly
prejudicial to him and inflamed the jury. The district court
ruled that counsel was not ineffective, because the State’s clos-
ing argument was proper and was supported by the evidence.
The prosecutor’s comment specifically complained of by
Johnson is as follows:
There is a tactic at play here, it’s not a surprise, let’s
blame [April], let’s blame the police. Why do we do that
to get the focus off of [Johnson]. To get the focus off of
what did he do and the evidence against him. The other
thing — the other tactic at work here is look at this piece
of evidence, [defense counsel] got up here and he told
you, you know, look at that — look at those few spots
on the wall. One has April’s one has [Johnson’s], doesn’t
mean nothing. Really does that mean proof beyond a
reasonable doubt? Again, that is the temptation I asked
you not to fall into, to look at a piece of information
in isolation, to look at a piece of evidence in isolation
and again, you know, blame the police, blame [April],
get the focus off of [Johnson]. We want you to forget
that his fingerprint is on this trash bag. We want you
to forget that underneath the bag that is associated with
him and the killing of April [are] these hats. Were the
hats involved, I don’t know. They are in the trashcan
and if there is a connection between those hats we
know that one piece of evidence is certainly tied to
. . . Johnson.
[14] 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.20
20
State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
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Cite as 298 Neb. 491
[15,16] A prosecutor must base his or her argument on the
evidence introduced at trial rather than on matters not in evi-
dence.21 However, a prosecutor is entitled to draw inferences
from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.22
In State v. Dubray,23 we stated:
[W]hen a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is permit-
ted to present a spirited summation that a defense theory
is illogical or unsupported by the evidence and to high-
light the relative believability of witnesses for the State
and the defense. These types of comments are a major
purpose of summation, and they are distinguishable from
attacking a defense counsel’s personal character or stat-
ing a personal opinion about the character of a defendant
or witness.
Here, the record includes evidence of blood splatters on a
wall which matched both April’s and Johnson’s blood; evi-
dence of Johnson’s fingerprint on the trash bag; and evidence
of two hats found in the garbage bag. As a result, the prosecu-
tor correctly stated the facts. In addition, the jury was properly
instructed that the “attorneys may draw legitimate deductions
and inferences from the evidence.” The prosecutor’s com-
ments did not amount to prosecutorial misconduct, because
the inferences were based upon the evidence introduced at
trial and because the jury was properly instructed in the use of
these inferences.
Further, the prosecutor’s comments were not an attack on
the defense counsel’s character, but merely an argument that
defense counsel was attempting to divert the juror’s attention
from the relevant evidence. As a result, there was no pros-
ecutorial misconduct, and therefore, Johnson’s trial counsel
21
State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
22
See Nolan, supra note 20. See, also, Dubray, supra note 4.
23
Dubray, supra note 4, 289 Neb. at 227, 854 N.W.2d at 604-05.
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could not be ineffective in failing to object to the State’s clos-
ing argument.
(d) Failure to Testify
Concerning Johnson’s right to testify, the district court ruled
that Johnson merely provided generalizations and factual con-
clusions that he would have testified that he did not commit
the murder and that he would have provided a reason why he
was found in Michigan. As a result, the court found no demon-
stration of prejudice.
[17-19] A defendant has a fundamental constitutional right
to testify.24 The right to testify is personal to the defendant and
cannot be waived by defense counsel’s acting alone.25 But 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.’”26
[20] Defense counsel’s advice to waive the right to tes-
tify 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.27
[21] However, if a postconviction motion alleges only con-
clusions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief,
the court is not required to grant an evidentiary hearing.28 Thus,
in a postconviction proceeding, an evidentiary hearing is not
24
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
25
Id.
26
Id. at 810-11, 806 N.W.2d at 421.
27
Iromuanya, supra note 24.
28
See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
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required (1) when the motion does not contain factual allega-
tions which, if proved, constitute an infringement of the mov-
ant’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.29
In assessing postconviction claims of ineffective assistance
of counsel for failure to call a particular witness, we have
upheld the dismissal without an evidentiary hearing where the
motion did not include specific allegations regarding the testi-
mony which the witness would have given if called.30
Johnson’s motion merely alleges that if he were allowed to
testify, he “would have refuted the allegations against him”
and he “wanted to explain to the jury why he traveled to
Michigan.” These reasons are mere conclusions of fact and
are not sufficiently detailed to constitute factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights. Further, Johnson’s allegations are insuf-
ficient to show a reasonable probability that the outcome
would have been different but for the failure to call him as
a witness.
(e) Autopsy Photographs
Johnson alleges that trial counsel was ineffective on direct
appeal for assigning as an error the admission of cumulative,
gruesome autopsy photographs that depicted the same injuries,
but arguing that the district court erred in admitting crime
scene photographs, not autopsy photographs.
On direct appeal, we held that Johnson had not assigned
that the court erred in admitting cumulative crime scene pho-
tographs, and he had not argued his assignment that the
court erred in admitting gruesome autopsy photographs. So
we did not address whether the court erred in admitting
any photographs.
29
Id.
30
Dubray, supra note 4.
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Johnson contends generally that the autopsy photographs
admitted during the direct examination of the pathologist who
performed the autopsy were cumulative and gruesome and, as
a result, were more prejudicial than probative.
[22,23] 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.31 That is, courts begin by assessing
the strength of the claim appellate counsel failed to raise.32
Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of
the appeal.33
We have reviewed the autopsy photographs admitted into
evidence and conclude that they were necessary to understand
the pathologist’s medical testimony regarding the severity
of April’s injuries and to establish the cause and manner of
April’s death. April suffered multiple stabs wounds and had
numerous abrasions and ligature marks. The cause of her
death included both a stab wound and/or strangulation or suf-
focation. As such, the records and files in this case show that
Johnson was not entitled to relief on the ground that defense
counsel failed to object to the admission of the photographs
during the trial. Therefore, defense counsel was not ineffective
for failing to preserve the issue on direct appeal.
2. Constitutional R ight
to Speedy Trial
In regard to Johnson’s claim that his constitutional right to a
speedy trial was violated, the court ruled that because he failed
to raise it on direct appeal, it was procedurally barred.
31
State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
32
Id.
33
Id.
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[24] Under U.S. Const. amend. VI and Neb. Const. art. I,
§ 11, a defendant has the right to a 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.34 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) preju-
dice to the defendant.35
[25] However, a party cannot raise an issue in a postcon-
viction motion if he or she could have raised that same issue
on direct appeal.36 Whether Johnson’s constitutional right to
a speedy trial was violated could have been raised in his
direct appeal and was not. As a result, the claim is procedur-
ally barred.
V. CONCLUSION
For the reasons set forth above, we conclude that Johnson
was not entitled to an evidentiary hearing on his claims of inef-
fective assistance of counsel. We therefore affirm the district
court’s order.
A ffirmed.
Wright, J., not participating in the decision.
34
Betancourt-Garcia, supra note 17.
35
Id.
36
See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).