State v. Huston ( 2015 )

- 708 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
State of Nebraska, appellee, v.
Dallas L. Huston, appellant.
___ N.W.2d ___
Filed August 28, 2015. No. S-14-752.
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
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.
2. Appeal and Error. To be considered by an appellate court, an appellant
must both assign and specifically argue any alleged error.
3. Effectiveness of Counsel. A pro se party is held to the same standards
as one who is represented by counsel.
4. Postconviction: Constitutional Law: Proof. The Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008
& Cum. Supp. 2014), 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 constitutional
rights such that the judgment was void or voidable. Thus, in a motion
for postconviction relief, the defendant must allege facts which, if
proved, constitute a denial or violation of his or her rights under the
U.S. or Nebraska Constitution, causing the judgment against the defend­
ant to be void or voidable.
5. ____: ____: ____. A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains factual
allegations which, if proved, constitute an infringement of the defend­
ant’s rights under the Nebraska or federal Constitution.
6. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions 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.
- 709 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
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: 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 performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
9. ____: ____: ____. To show prejudice under the prejudice component of
the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984) test, the defendant must demonstrate a reasonable prob-
ability that but for his or her counsel’s deficient performance, the result
of the proceeding would have been different.
10. Proof: Words and Phrases. 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 suf-
ficient to undermine confidence in the outcome.
11. Effectiveness of Counsel. A court may address the two prongs of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, deficient performance and prejudice, in either order.
12. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
of ineffective assistance of appellate counsel which could not have been
raised on direct appeal may be raised on postconviction review.
13. 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. That is, courts begin by assessing
the strength of the claim appellate counsel failed to raise.
14. ____: ____. 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.
15. ____: ____. When a case presents layered ineffectiveness claims, an
appellate court determines the prejudice prong of appellate counsel’s
performance by focusing on whether trial counsel was ineffective under
the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), test. If trial counsel was not ineffective, then the defend­
ant suffered no prejudice when appellate counsel failed to bring an inef-
fective assistance of trial counsel claim.
16. Trial: Attorneys at Law. The decision whether or not to object has long
been held to be part of trial strategy.
- 710 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
17. Effectiveness of Counsel: Trial. When reviewing claims of alleged
ineffective assistance of counsel, trial counsel is afforded due deference
to formulate trial strategy and tactics.
18. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Dallas L. Huston, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Dallas L. Huston was convicted by a jury of second degree
murder and sentenced to 50 years’ to life imprisonment.
We affirmed his conviction and sentence on direct appeal.
See State v. Huston, 285 Neb. 11, 824 N.W.2d 724 (2013)
(Huston I). On January 17, 2014, Huston filed a pro se motion
for postconviction relief in the district court for Lancaster
County, claiming ineffective assistance of trial and appellate
counsel. On June 9, the State filed its response and motion
to deny an evidentiary hearing. On July 28, the district court
filed an order which denied Huston’s motion for postconvic-
tion relief without an evidentiary hearing. Huston appeals. We
determine that the district court erred when it denied Huston
an evidentiary hearing on his claim that his trial counsel was
ineffective for failing to object to the admission of exhibits 38,
81, and 95, and we reverse the decision of the district court
on this point and remand the cause for an evidentiary hearing
on this single claim. In all other respects, the decision of the
district court is affirmed.
- 711 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
STATEMENT OF FACTS
After a jury trial, Huston was convicted of second degree
murder and sentenced to imprisonment for 50 years to life.
We affirmed his conviction and sentence on direct appeal. See
Huston I. A full recitation of the facts can be found in our
opinion of the direct appeal in Huston I, and we quote pertinent
portions below.
Huston and Ryan Johnson were “living together as a cou-
ple in a nonsexual relationship,” when in September 2009,
Huston allegedly found Johnson in their bedroom with plastic
wrap wrapped around his face. Huston I, 285 Neb. at 12, 824
N.W.2d at 728. Huston called the 911 emergency dispatch
service. Paramedics performed lifesaving measures, but they
were unable to revive Johnson. As part of the investigation of
Johnson’s death, law enforcement interviewed Huston numer-
ous times. During the interviews, Huston took varying posi-
tions about his involvement in Johnson’s death. Also during
the interviews, Huston’s multiple personalities emerged, one
of whom was called Vincent. Huston later admitted at trial that
“he made up these different personalities as part of a ‘social
experiment’ and that he controlled them completely.” Id. at 13,
824 N.W.2d at 728.
Huston had told his friends, Nicholas Berghuis and
Christopher Wilson, that one of his “personalities” had been
involved in Johnson’s death. Berghuis and Wilson arranged
with the police to set up video surveillance in Wilson’s
house, and Huston’s conversations with Berghuis and Wilson
on October 6 and 7, 2009, were recorded. In Huston I,
we stated:
During these conversations, Huston’s various person-
alities admitted that “Vincent” assisted in Johnson’s
death at Johnson’s request. Specifically, the person-
ality “Vincent” admitted to (1) wrapping the plastic
wrap around Johnson’s face, during which time Johnson
yelled, “Get it off”; (2) holding a pillow over Johnson’s
face when Johnson broke through the plastic wrap while
- 712 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
trying to breathe; and (3) listening to Johnson’s last
heartbeats “with enjoyment.”
285 Neb. at 13-14, 824 N.W.2d at 728.
We repeat Huston I at length wherein we quoted from the
trial testimony and stated:
Prior to trial, Huston filed a motion requesting the
district court to redact the video recordings of his police
interviews. The State agreed with some of the proposed
redactions, and the court ruled on the proposed redac-
tions to which the parties did not agree. Some of Huston’s
proposed redactions were sustained, but others were not.
After receiving the court’s rulings, the State edited the
video recordings to reflect the redactions that had been
agreed to by the State or ordered by the court. These
video recordings were admitted into evidence at Huston’s
subsequent trial and were published to the jury. When
asked whether there were any objections to the admission
of these video recordings, Huston’s counsel responded
by stating that he had either no objection or no “fur-
ther” objection.
The testimony at trial included both the video record-
ings of Huston’s police interviews—including the pro-
posed redactions that were not sustained—and testimony
from the police officers who had conducted those inter-
views. Of this plethora of evidence, we mention only the
nine specific portions that have been identified by Huston
on appeal. These segments include evidence relating to
(1) Huston’s “homosexual encounter” with Wilson, (2)
speculation that Huston is a serial killer and Huston’s
future dangerousness, and (3) the opinions of police offi-
cers that Huston’s actions constituted murder as opposed
to assisted suicide.
First, in the video recording of Huston’s interview with
the police on the day of Johnson’s death, Huston described
his “homosexual encounter” with Wilson. Huston’s con-
versation with the police officer conducting the interview
went as follows:
- 713 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
“[Huston:] Okay, to be completely honest, me and
[Wilson] were together once. Only once. Um, it’s how it
came out to [Johnson] that we might have been interested
in each other, but [Wilson] decided he didn’t want to
do that.
“[Police officer:] Okay, and was this early in your rela-
tionship with [Johnson]? Or—
“[Huston:] [Interrupting.] Oh, no, no. . . . [Wilson] is
only been back around—. See, [Wilson] has only been
back in the picture as a friend of ours for like a month. .
. . I believe in being upfront. Yes, one time and only one
time me and [Wilson] were together and we—. Well, we
went to bed together, and—
“[Police officer:] [Interrupting.] How long ago was
that?
....
“[Huston:] . . . Three weeks ago.
“[Police officer.] So, it is pretty recent, then.
“[Huston:] Yep. . . . You probably don’t want to hear
this, but me and [Johnson] had kind of a unique relation-
ship. . . . I know it’s kind of a weird situation to be in
[be]cause in the 4 years of our relationship, there was
never anything sexual. Um, and we allowed ourselves
. . . an ‘open relationship.’ We allowed ourselves what
he’d call ‘[expletive] buddies.’ . . . That one and only
one time that me and [Wilson] ended up . . . was kind of
a ‘heat of the moment,’ you know, ‘spur of the moment’
type thing. . . . We ended up in bed together. We kissed.
We, we made out. But it never went anywhere further
than that.”
While this was the only evidence of the “homosexual
encounter” with Wilson, Huston’s physical attraction to
Wilson was referenced in several of the other video
recordings received into evidence at trial. In every case,
the evidence related to Wilson was received into evidence
without objection from Huston’s trial counsel.
- 714 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Second, in the video recording of Huston’s October 10,
2009, interview with the police, Huston and Sgt. Gregory
Sorensen of the Lincoln Police Department discussed
serial killers, the possibility that Huston was a serial
killer, and Huston’s future dangerousness. The dialog
went as follows:
“[Huston:] . . . This is what I meant, though, when I’ve
told everybody that I want to get help. I never thought
this could happen, and now that this has happened, I am
so scared that I’m capable of doing it again.
“[Sorensen:] Yeah, I think that that’s probably really
true.
“[Huston:] And that scares me to death because, like I
said, I have never thought of myself as a violent person,
and now I don’t know what to think of myself.
“[Sorensen:] Well, especially when you consider that
you have urges to kill the people that you’re attracted to.
“[Huston:] And I’ve done everything that I could for
the last, you know . . . . You know, the earliest memories
of this I have are, say, 9, 10 years old. So 18 years I have
fought myself.
“[Sorensen:] But most serial killers do the same thing
at some point in time.
“[Huston:] Oh, wow.
“[Sorensen:] At some point in time, they crossed that
line. I mean, when you talk about—
“[Huston:] [Interrupting.] I’ve asked myself that.
“[Sorensen:] Whether you’re a serial killer?
“[Huston:] Uh-hum [yes]. I’ve asked myself that . . . .
You’ve asked me if I have been suicidal in the past.
“[Sorensen:] Yeah.
“[Huston:] To be completely honest, I lied to you.
Because of this, I have been. I have thought about kill-
ing myself so I wouldn’t hurt anyone.” Later in the same
interview, Huston stated, “I am so scared now that this
could happen again.”
- 715 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Although not raised by Huston on appeal, at other
times during the video recordings of his interviews with
the police, he expressed a fear that he might commit
homicide again. All of this evidence of Huston’s future
dangerousness was received into evidence at trial with-
out objection.
Finally, the video recordings of Huston’s police inter-
views referenced the opinion of the police that Huston
committed murder as opposed to assisted suicide. On
appeal, Huston identified four segments in which this
opinion was expressed. Two of these segments were from
Huston’s interview with the police on October 7, 2009.
During this interview, Huston engaged in the following
dialog with Sorensen:
“[Sorensen:] . . . [Y]ou or Vincent were the person or
persons that killed [Johnson]. And maybe at the time, it
started out as a suicide, but it didn’t end that way. It just
didn’t end that way.
“[Huston:] See, I don’t believe that.
“[Sorensen:] You don’t believe that it didn’t end in
a homicide?
....
“[Huston:] No, I don’t.
....
“[Huston:] They asked me that. They asked me that.
Did he fight? Did he—
“[Sorensen:] [Interrupting.] He doesn’t have to fight.
[All] he had to do was break the seal. [All] he had to
do was try to breathe, and . . . that was his intent to stay
alive—he tried to breathe.” Later in the same interview,
Sorensen stated: “[W]hen you put the pillow over his
face, you’re killing him. He’s not killing himself. You’re
killing him.”
Huston identified two more similar comments made
by Sorensen in the video recordings, the first during
the interview with Huston on October 8, 2009, and the
- 716 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
second during the October 10 interview. On October 8,
Sorensen said the following:
“You made a pact to commit suicide. When he started
to breathe, you put the pillow over the face, which was
a continuation of the act. But, say I have a gun in my
hand, and say that I want to commit suicide. And so I
put it to my head, but before I pull the trigger, I put the
gun down. That stops me from committing suicide. Think
of this: [Johnson] didn’t get a chance. [Johnson] didn’t
get a chance to make that decision. You made it for him,
with the pillow. . . . You know I’m right. He didn’t get
that chance. He did not get a chance.” On October 10,
Sorensen and Huston engaged in the following dialog
after Huston asserted that he “didn’t murder [Johnson]”:
“[Sorensen:] But I don’t know how else you can
describe it, [Huston]. . . . This isn’t assisting a suicide.
This, this is just not assisting a suicide. . . . I don’t know
if you can understand this, but if [Johnson] looks at me
right now and he says, ‘I can’t take it anymore. You got
to kill me,’ and I pull a gun out and I shoot him dead—
“[Huston:] [Interrupting.] You’ve tried to say that
before and I do understand what you mean.
“[Sorensen:] [Johnson’s] just asked me to kill him and
I don’t have that right to do that. He can ask me all he
wants, but I don’t have the right to do it. And this isn’t
any different . . . . I know that you think that it is, but
it’s not.” The video recordings, including all of the afore-
mentioned evidence that the police believed Huston com-
mitted murder, were received at trial and published to the
jury without objection by Huston’s counsel.
The various police officers present for Huston’s inter-
views also testified at trial. Both Sorensen and Sgt.
Kenneth Koziol, also of the Lincoln Police Department,
testified before the jury, and each stated that, in his
opinion, Huston committed murder. While on the stand,
Sorensen explained that he called the Lancaster County
Attorney during the investigation of Johnson’s death
- 717 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
“because at that point we no longer had any type of
assisting a suicide . . . . So I wanted to inform the county
attorney that this was a murder case.” And when asked
why the police were “a little bit more confrontational”
when questioning Huston on October 7, 2009, Koziol
explained that by that time they were “pretty confident
that it [was] a homicide. We [felt] that . . . Huston caused
. . . Johnson’s death . . . .” Huston’s counsel made no
objection to these statements at trial.
Although not identified by Huston on appeal, there
were numerous other instances during trial when similar
opinion evidence was received into evidence. In none of
these instances did Huston’s counsel object.
285 Neb. at 14-19, 824 N.W.2d at 729-32.
Huston had different counsel for his direct appeal than he
had had as trial counsel. In his direct appeal, Huston assigned
that the district court erred when it admitted evidence “(1) of
Huston’s ‘homosexual encounter’ with Wilson; (2) of the dis-
cussion relating to serial killers, speculation that Huston is a
serial killer, and Huston’s future dangerousness; and (3) of the
opinions of police officers that Huston’s actions constituted
murder as opposed to assisted suicide.” Id. at 19, 824 N.W.2d
at 732.
Huston’s argument on direct appeal related to certain state-
ments in video recordings of the police interviews, marked
as exhibits 38 (September 16, 2009), 81 (October 7), and 95
(October 10), that the district court did not order redacted.
These exhibits contain the material that form the basis, in
part, of Huston’s motion for postconviction relief currently
under consideration.
In Huston I, we noted that when the State offered exhibits
38, 81, and 95 at trial, the district court specifically asked
Huston whether he had any objections, and Huston’s coun-
sel responded that he had “‘[n]o further objection . . . .’”
285 Neb. at 20, 824 N.W.2d at 732. Huston contended these
responses were sufficient to preserve for appeal any error that
- 718 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
resulted from admitting these video exhibits into evidence.
We determined that, despite the filing of his pretrial motion to
redact, Huston was required to object at trial to those portions
of the interviews the district court refused to order redacted
and that trial counsel’s responses of “no further objection”
were not sufficient to preserve the issue for appeal. We
concluded that “[b]ecause Huston did not object to exhibits
38, 81, and 95—or any allegedly inadmissible statements
contained therein—when they were offered into evidence at
trial, any evidentiary error that resulted from admitting these
exhibits into evidence was not preserved for appeal.” Id. at
28, 824 N.W.2d at 737.
In Huston I, we went on to state that “[a]nticipating our
conclusion that Huston did not preserve for appeal any error
relating to the admission of exhibits 38, 81, and 95 into evi-
dence, he argues that his trial counsel was ineffective for fail-
ing to preserve these errors for appeal.” 285 Neb. at 28, 824
N.W.2d at 737. We determined that the record was insufficient
to adequately address on direct appeal whether trial counsel’s
failure to object denied Huston the effective assistance of
counsel. In particular, we stated:
There is no evidence in the record that would allow us
to determine whether Huston’s trial counsel consciously
chose as part of a trial strategy not to object to the evi-
dence identified on appeal. Therefore, because the record
is insufficient to adequately review Huston’s claims of
ineffective assistance of counsel, we do not reach these
claims on direct appeal.
Id. at 30, 824 N.W.2d at 738-39. Accordingly, we affirmed
Huston’s conviction and sentence.
On January 17, 2014, Huston filed a pro se verified motion
for postconviction relief alleging 16 claims of reversible error,
including numerous claims of ineffective assistance of trial
counsel and ineffective assistance of appellate counsel. It is
the denial of this postconviction motion without an evidentiary
hearing which forms the basis of the instant appeal. Huston’s
- 719 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
first four allegations were claims of ineffective assistance
of trial counsel for failing to preserve issues for appeal by
failing to object to exhibits 38, 81, and 95, which included
statements regarding Huston’s “homosexual encounter” with
Wilson, Sorensen’s speculation that Huston is a serial killer,
and Sorensen’s opinion that Huston committed murder rather
than assisted suicide. Huston alleged that he was prejudiced
because had his trial counsel made the proper objections, the
evidence would not have been admitted into evidence and he
would not have been convicted, or we would have considered
his claims on direct appeal, leading to a reversal.
Huston next alleged that his trial counsel was ineffective for
failing to object to the admission of the video recording of his
conversations with Berghuis and Wilson, who were working
with law enforcement, because, according to Huston, Berghuis
lied to Huston about going to the police. Huston contends
that Sorensen testified that confidential informants, such as
Berghuis, cannot lie about their involvement with the police
if asked. Huston alleged that he was prejudiced because of his
trial counsel’s failure to object to the admission of this video
recording. Huston claimed that his appellate counsel was inef-
fective for failing to raise the admissibility of the video record-
ing as an issue on direct appeal.
Huston next alleged that his trial counsel was ineffective for
failing to challenge the credibility of Berghuis, who provided
several conflicting statements. Huston contends that had his
trial counsel challenged the credibility of Berghuis, “inadmis-
sible and irrelevant testimony of said witness would have been
excluded as unduly prejudicial.” Huston further alleged that
if trial counsel had made the proper objection, then we would
have considered errors on direct appeal. Huston further claimed
that his appellate counsel was ineffective for failing to raise
this issue on direct appeal.
Huston next alleged that his trial counsel was ineffective
for committing “willful misconduct” and that he was preju-
diced by his trial counsel’s willful misconduct. Huston further
- 720 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
claims that his appellate counsel was ineffective for failing
to raise the issue of trial counsel’s willful misconduct on
direct appeal.
Huston next alleged that his trial counsel was ineffective
for failing to raise at trial, “through cross examination, or
otherwise,” that there were at least two eyewitnesses who con-
tradicted Berghuis’ statements who were never spoken to and
that there were other witnesses identified after Huston’s arrest.
Huston contended he was prejudiced because had trial counsel
made inquiry and properly objected, we would have considered
his claims on direct appeal and the outcome on appeal would
have been different. Huston further claimed that his appel-
late counsel was ineffective for failing to raise this issue on
direct appeal.
Huston alleged his trial counsel was ineffective for failing
to object at trial regarding the lack of evidence of murder.
Huston asserted that he was prejudiced because had trial
counsel made the proper argument, we would have considered
his claims on direct appeal and the outcome on appeal would
have been different. Huston further claimed that his appel-
late counsel was ineffective for failing to raise this issue on
direct appeal.
Finally, Huston alleged that his appellate counsel was inef-
fective for failing to raise on direct appeal that the district court
committed prejudicial error when it instructed the jury that
“this is not a death penalty case.” Huston alleged that he was
prejudiced because had appellate counsel raised this issue, we
would have considered it on direct appeal and the outcome on
appeal would have been different.
On June 9, 2014, the State filed its response and motion
to deny an evidentiary hearing on Huston’s motion for post-
conviction relief. On July 28, the district court filed an order
in which it denied Huston’s motion for postconviction relief
without holding an evidentiary hearing. In its order, the dis-
trict court determined variously that Huston’s allegations were
- 721 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
refuted by the record or were too conclusory to demonstrate a
violation of Huston’s constitutional rights.
Huston appeals.
ASSIGNMENT OF ERROR
Huston assigns, restated, that the district court erred when it
denied his motion for postconviction relief without holding an
evidentiary hearing on his claims of ineffective assistance of
trial and appellate counsel.
STANDARD OF REVIEW
[1] 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. State v. Cook,
290 Neb. 381, 860 N.W.2d 408 (2015).
ANALYSIS
Huston generally claims that the district court erred when it
denied his claims of ineffective assistance of counsel without
conducting an evidentiary hearing. As an initial matter, we
note that although Huston alleged numerous claims of ineffec-
tive assistance of counsel and error by the court in his post-
conviction motion, he argues only four claims in his appellate
brief. Huston argues that he received ineffective assistance of
counsel when (1) counsel failed to object at trial to the admis-
sion of exhibits 38, 81, and 95, which were video record-
ings regarding Huston’s “homosexual encounter” with Wilson,
Sorensen’s statements speculating that Huston is a serial killer,
and Sorensen’s opinion that Huston committed murder; (2)
counsel failed to object at trial to video recordings of Huston’s
conversations with Berghuis and Wilson; (3) counsel failed to
challenge the credibility of Berghuis; and (4) counsel failed to
object and argue that there was insufficient evidence to con-
vict Huston of murder.
- 722 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
[2,3] To be considered by an appellate court, an appellant
must both assign and specifically argue any alleged error.
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
Although we acknowledge that Huston filed his brief pro
se, a pro se party is held to the same standards as one who
is represented by counsel. State v. Sellers, 290 Neb. 18,
858 N.W.2d 577 (2015). Accordingly, our consideration of
Huston’s motion for postconviction relief is limited to those
claims for relief which Huston has both assigned as error and
argued on appeal.
Relevant Law Regarding Postconviction
Relief and Ineffective Assistance
of Counsel.
We begin by reviewing general propositions relating to post-
conviction relief and ineffective assistance of counsel claims
before applying those propositions to the claims alleged and
argued by Huston in this appeal.
[4] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), 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 constitutional rights
such that the judgment was void or voidable. State v. Sanders,
289 Neb. 335, 855 N.W.2d 350 (2014). Thus, in a motion for
postconviction relief, the defendant must allege facts which,
if proved, constitute a denial or violation of his or her rights
under the U.S. or Nebraska Constitution, causing the judgment
against the defendant to be void or voidable. Id.
[5,6] A court must grant an evidentiary hearing to resolve the
claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution. State v. Thorpe, supra. If a postconviction motion
alleges only conclusions of fact or law, or if the records and
files in the case affirmatively show that the defendant is
- 723 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
entitled to no relief, the court is not required to grant an evi-
dentiary hearing. Id.
[7-11] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to a
fair trial. Id. 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 performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. State v. Dragon, 287 Neb. 519, 843 N.W.2d 618
(2014). To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Thorpe, supra. A reasonable probability does
not require that it be more likely than not that the deficient per-
formance altered the outcome of the case; rather, the defendant
must show a probability sufficient to undermine confidence in
the outcome. State v. Armstrong, 290 Neb. 991, 863 N.W.2d
449 (2015). A court may address the two prongs of this test,
deficient performance and prejudice, in either order. State v.
Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
[12-15] A claim of ineffective assistance of appellate coun-
sel which could not have been raised on direct appeal may be
raised on postconviction review. Id. 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 defend­
ant. Id. That is, courts begin by assessing the strength of the
claim appellate counsel failed to raise. Id. Counsel’s failure
to raise an issue on appeal could be ineffective assistance
only if there is a reasonable probability that inclusion of the
issue would have changed the result of the appeal. Id. When
a case presents layered ineffectiveness claims, we determine
the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the
- 724 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Strickland test. Id. If trial counsel was not ineffective, then
the defendant suffered no prejudice when appellate coun-
sel failed to bring an ineffective assistance of trial counsel
claim. Id.
Huston’s Claim That Trial Counsel Was
Ineffective for Failing to Object
to Exhibits 38, 81, and 95.
Huston alleges that he received ineffective assistance of
counsel when his trial counsel failed to object at trial to exhib-
its 38, 81, and 95, which were video recordings of statements
regarding Huston’s “homosexual encounter” with Wilson; of
Sorensen’s speculation that Huston is a serial killer; and of
Sorensen’s opinion that Huston committed murder. We have
recited at length above the nature of the evidence at trial, and
Huston argues generally that the receipt of exhibits 38, 81,
and 95, in the context of this matter, denied him a fair trial.
Huston contends that because his trial counsel failed to object
to exhibits 38, 81, and 95, his trial counsel failed to preserve
for appeal any error relating to the admission of these exhibits.
Huston alleges that he was prejudiced by trial counsel’s failure
to object to these exhibits, because consideration of the issues
surrounding the admissibility of exhibits 38, 81, and 95 on
appeal would have changed the result of the appeal. Huston’s
allegations of prejudice are sufficient.
We note that in its appellate brief, the State conceded that
“[i]f this court determines that Huston made sufficient allega-
tions of prejudice, then the State submits that the decision of
the district court on these claims [surrounding exhibits 38,
81, and 95] needs to be reversed and the case remanded for
an evidentiary hearing on these claims.” Brief for appellee at
10. We determine that the district court erred when it failed
to grant Huston an evidentiary hearing on trial counsel’s
failure to object to this evidence in the video recordings. For
completeness, we note that effectiveness of appellate coun-
sel is not implicated in connection with this claim, because
- 725 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
appellate counsel did in fact raise trial counsel’s alleged inef-
fectiveness in this regard. See Huston I.
[16-18] On direct appeal, Huston claimed, inter alia, that his
trial counsel was ineffective for failing to object to exhibits
38, 81, and 95 and that therefore, his trial counsel was inef-
fective for failing to preserve for appeal any error relating to
the admission of these exhibits. In reviewing these failures to
object, we recognized that the decision whether or not to object
has long been held to be part of trial strategy. Huston I, citing
State v. Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986), and
State v. Newman, 5 Neb. Ct. App. 291, 559 N.W.2d 764 (1997),
overruled on other grounds, State v. Becerra, 253 Neb. 653,
573 N.W.2d 397 (1998). We further recognized that when
reviewing claims of alleged ineffective assistance of counsel,
trial counsel is afforded due deference to formulate trial strat-
egy and tactics. Huston I. See, also, State v. Watt, 285 Neb.
647, 832 N.W.2d 459 (2013). There is a strong presumption
that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions. Id. See, also, State
v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).
Given this deference, we stated in Huston I that the question
of whether trial counsel’s failure to object to exhibits 38, 81,
and 95 was part of counsel’s trial strategy was essential to the
resolution of this ineffective assistance of trial counsel claim.
We then stated that there was “no evidence in the record that
would allow us to determine whether Huston’s trial counsel
consciously chose as part of a trial strategy not to object to the
evidence identified on appeal.” Huston I, 285 Neb. at 30, 824
N.W.2d at 738. Thus, “because the record [was] insufficient to
adequately review Huston’s claims of ineffective assistance of
counsel,” we could not reach those claims regarding failure to
object to exhibits 38, 81, and 95 on direct appeal. Id. at 30, 824
N.W.2d at 739.
In State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012),
we were presented with a procedural situation similar to the
instant case. In Seberger, the defendant claimed on direct
- 726 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
appeal that his trial counsel was ineffective for failing to
properly advise him of his right to testify in his own behalf.
We declined to address the issue on direct appeal, because
we determined that the record was insufficient to analyze the
claim. See State v. Seberger, 279 Neb. 576, 779 N.W.2d 362
(2010). Subsequently, the district court denied the defendant’s
motion for postconviction relief encompassing the advice
regarding the right-to-testify issue without holding an evi-
dentiary hearing. In the defendant’s appeal from the denial of
postconviction relief, we determined that because there was
no evidentiary hearing, the record was still insufficient to ana-
lyze the defendant’s claim of ineffective assistance of counsel.
Therefore, we concluded that the district court erred when it
failed to grant the defendant an evidentiary hearing on that
issue, and we reversed the decision of the district court on this
point and remanded the cause for an evidentiary hearing on
this allegation.
Similarly, in the present case, after we noted in Huston I that
we lacked a sufficient record regarding trial counsel’s strategy
on direct appeal, the district court denied Huston an eviden-
tiary hearing which would have further developed the record
with respect to trial counsel’s strategy. Thus, there is still no
record before us which would permit us to determine whether
Huston’s trial counsel’s failure to object to exhibits 38, 81, and
95 was a strategic decision.
Because it is settled that trial counsel failed to object to the
admission of exhibits 38, 81, and 95, as was required to pre-
serve a challenge, and based on our determination that Huston
has made sufficient allegations in his postconviction motion
of prejudice regarding this issue, the record is still in need of
development regarding trial counsel’s strategy. Thus, we deter-
mine that the district court erred when it failed to grant Huston
an evidentiary hearing on this issue, and we reverse the dis-
trict court’s ruling denying this claim without an evidentiary
hearing and remand the cause for an evidentiary hearing on
this point.
- 727 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Huston’s Claim That Trial Counsel Was
Ineffective for Failing to Object to
Video Recordings of Conversations
of Huston, Berghuis, and Wilson.
Huston alleges that he received ineffective assistance of
counsel when his trial counsel failed to object to the video
recordings of conversations Huston had with Berghuis and
Wilson, both of whom were working with law enforcement.
In support of his contention, Huston characterizes the record
as providing that Berghuis lied to Huston about working with
the police and that Sorensen testified that confidential inform­
ants, such as Berghuis, cannot lie about their involvement with
police. Because the record refutes Huston’s claim, no eviden-
tiary hearing was required and the district court did not err
when it so ruled.
When asked what Berghuis and Wilson could and could not
do as confidential informants, Sorensen testified:
[Berghuis and Wilson] weren’t allowed to say or do any-
thing that myself as a police officer wasn’t allowed to
do. They couldn’t make any promises to . . . Huston that
he wouldn’t be prosecuted if he made any statements to
them. I instructed them that basically they were acting in
our behalf, and because they were acting in our behalf
anything they said to . . . Huston was like I was saying
it to . . . Huston. So we cautioned them about things that
they could and couldn’t say.
The premise of Huston’s argument is belied by the record.
Furthermore, the allegations surrounding this claim do not
demonstrate a violation of Huston’s constitutional rights.
Following our examination, we determine that Huston’s allega-
tions of trial counsel’s purported deficiency are not supported
by the record and that appellate counsel was not deficient for
not claiming error on appeal.
Therefore, the district court did not err when it denied relief
without an evidentiary hearing on Huston’s claim that trial
counsel was deficient for failing to object to recordings of
- 728 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Huston, Berghuis, and Wilson, on the basis alleged in Huston’s
postconviction motion. We affirm this portion of the district
court’s order.
Huston’s Claim That Trial Counsel Was
Ineffective for Failing to Challenge
Berghuis’ Credibility.
Huston alleges that his trial counsel was ineffective for
failing “to impeach, or otherwise challenge the credibility”
of Berghuis. In his motion for postconviction relief, Huston
alleged that his trial counsel should have challenged Berghuis’
credibility, because “over trial preparation, and at trial . . .
Berghuis gave several conflicting statements for the record.”
The district court correctly rejected this claim.
The records and files in this case refute Huston’s allega-
tion. The record shows that Huston’s counsel cross-examined
Berghuis at trial and that Huston’s trial counsel challenged the
credibility of Berghuis’ direct testimony. The record shows
that Huston was not prejudiced by trial counsel’s conduct, and
appellate counsel was not deficient for not claiming error on
appeal. The district court did not err when it denied postcon-
viction relief on this claim without an evidentiary hearing, and
we affirm this portion of the district court’s order.
Huston’s Claim That Trial Counsel Was
Ineffective for Failing to Object
to Lack of Evidence.
Huston alleges that the evidence at trial did not show
Johnson was murdered and that there was a lack of physical
evidence that showed that Huston murdered Johnson. Huston
contends that his trial counsel was ineffective for failing to
object to this lack of evidence. The district court correctly
rejected this claim.
The records and files in this case refute Huston’s allega-
tions. The record shows that after the State rested its case,
Huston’s trial counsel made a motion to dismiss and argued
that the State had failed to make a prima facie case that
- 729 -
Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. HUSTON
Cite as 291 Neb. 708
Huston was responsible for Johnson’s death. At the close of
all the evidence, Huston’s trial counsel renewed his motion
based on “insufficient evidence being adduced in this matter.”
Trial counsel did not fail to bring the issue of the sufficiency
of evidence to the trial court’s attention.
With respect to physical evidence, the record shows that
Huston’s trial counsel cross-examined Sorensen regarding the
lack of physical evidence connecting Huston to Johnson’s
death. In addition, trial counsel argued in closing that there was
a lack of physical evidence that Johnson had been murdered.
Thus, the matter was developed by trial counsel and brought to
the attention of the jury for its consideration.
Given the foregoing, we determine that the records and
files in this case affirmatively show Huston was entitled to
no relief on this claim and that appellate counsel was not
deficient for not claiming error on appeal. The district court
did not err when it denied relief on this claim without an
evidentiary hearing, and we affirm this portion of the district
court’s order.
CONCLUSION
The district court erred when it denied Huston relief with-
out an evidentiary hearing on his claim that his trial counsel
was ineffective for failing to object to the admission of exhib-
its 38, 81, and 95. We reverse the decision of the district court
on this point and remand the cause for an evidentiary hearing
on this single claim. In all other respects, the decision of the
district court is affirmed.
A ffirmed in part, and in part reversed and
remanded for further proceedings.
Stephan, J., not participating.