State v. Stricklin ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/23/2021 08:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. STRICKLIN
Cite as 310 Neb. 478State of Nebraska, appellee, v.
Derrick U. Stricklin, appellant.
___ N.W.2d ___
Filed December 3, 2021. No. S-20-681.
1. 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.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law and
fact. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear
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.
3. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
4. Postconviction: Sentences: Appeal and Error. The Nebraska
Postconviction Act is intended to provide relief in those cases where
a miscarriage of justice may have occurred; it is not intended to be a
procedure to secure a routine review for any defendant dissatisfied with
his or her sentence.
5. Postconviction: Constitutional Law: Proof. A court must grant an evi-
dentiary hearing to resolve the claims in a postconviction motion when
the motion contains factual allegations which, if proved, constitute an
infringement of the defend­ant’s rights under the Nebraska or federal
Constitution.
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STATE v. STRICKLIN
Cite as 310 Neb. 4786. Effectiveness of Counsel: Proof. 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.
7. ____: ____. To show that counsel’s performance was deficient under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law in
the area.
8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal
and Error. 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 probabil-
ity that but for his or her counsel’s deficient 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 prob-
ability sufficient to undermine confidence in the outcome.
9. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel
claim, deficient performance and prejudice can be addressed in either
order. If it is more appropriate to dispose of an ineffectiveness claim due
to the lack of sufficient prejudice, that course should be followed.
10. Criminal Law: Evidence: Proof. To establish an alibi defense, a
defend­ant must show (1) he or she was at a place other than where the
crime was committed and (2) he or she was at such other place for such
a length of time that it was impossible to have been at the place where
and when the crime was committed.
11. Postconviction: Evidence: Witnesses. In an evidentiary hearing for
postconviction relief, the postconviction trial judge, as the trier of fact,
resolves conflicts in evidence and questions of fact, including witness
credibility and the weight to be given a witness’ testimony.
12. Evidence: Appeal and Error. Where competent evidence supports the
district court’s findings, the appellate court will not substitute its factual
findings for those of the district court.
13. Effectiveness of Counsel: Proof. Trial counsel’s failure to investigate
various aspects of the case is not ineffective assistance of counsel,
absent prejudice and a specific showing what the investigation would
have revealed, what exculpatory evidence would have been discov-
ered, or how such an investigation would have changed the outcome of
the trial.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. STRICKLIN
Cite as 310 Neb. 478Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
Steinke and Otte, District Judges.
Funke, J.
INTRODUCTION
Derrick U. Stricklin appeals from the denial of postconvic-
tion relief following an evidentiary hearing. Stricklin asserts
his trial counsel was ineffective in failing to present an alibi
defense and in failing to investigate and present evidence of
other suspects. Stricklin also asserts the district court erred in
denying his request to depose expert witnesses. We disagree
with Stricklin’s arguments and therefore affirm the order of the
district court.
BACKGROUND
In 2013, in a joint trial, a jury convicted codefendants,
Stricklin and Terrell E. Newman, on two counts of first degree
murder, three counts of use of a deadly weapon to commit a
felony, attempted intentional manslaughter, and possession of
a deadly weapon by a prohibited person. The district court for
Douglas County sentenced both men to life imprisonment for
each murder conviction; 15 to 25 years’ imprisonment for each
use of a deadly weapon to commit a felony conviction; 20
months’ to 5 years’ imprisonment for the attempted manslaugh-
ter conviction; and 15 to 25 years’ imprisonment for the pos-
session of a deadly weapon conviction. All sentences were to
run consecutively. This court affirmed Stricklin’s convictions
and sentences on direct appeal. 1
1
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
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STATE v. STRICKLIN
Cite as 310 Neb. 478Stricklin timely moved for postconviction relief, asserting
several claims, which the district court denied without conduct-
ing an evidentiary hearing. Stricklin appealed directly to this
court. 2 We affirmed the dismissal of the majority of Stricklin’s
claims, but remanded the matter back to the district court for an
evidentiary hearing on two of the claims. The matter remanded
to the district court included Stricklin’s claims that trial counsel
failed to file a notice of alibi and present evidence of his alibi
defense and failed to investigate other potential suspects. 3
The facts adduced at trial are fully set forth in our opinion
affirming Stricklin’s convictions and sentences. 4 Summarized,
on December 2, 2012, Carlos Morales and Bernardo Noriega
were shot and killed in a drug transaction at an automobile
body shop in Omaha, Nebraska. The State alleged that Stricklin
and Newman committed the crimes together. Newman’s cell
phone records showed that Newman was in communication
with Morales and Stricklin on the day of the shootings and that
Newman’s cell phone was in the area of the murder scene dur-
ing the relevant timeframe. 5
The State’s primary witness at trial, Jose Herrera-Gutierrez,
claimed he was present during the shootings. Based upon
information provided by Herrera-Gutierrez, officers compiled
photographic lineups containing photographs of Stricklin and
Newman. Herrera-Gutierrez identified Stricklin and Newman
as the shooters; he testified that he recognized both men from
three or four prior visits to the body shop, although he had
never learned their names.
Herrera-Gutierrez testified that following a drug trans­
action, he witnessed Stricklin and Newman draw firearms. 6
2
Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).
3
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
4
Id.; Stricklin, supra note 1; State v. Newman, 300 Neb. 770, 916 N.W.2d
393 (2018); State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
5
Id.
6
Stricklin, supra note 1.
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STATE v. STRICKLIN
Cite as 310 Neb. 478According to Herrera-Gutierrez, Newman instructed Morales to
tell Herrera-Gutierrez and Noriega to lie down. Newman tied
Herrera-Gutierrez’ wrists. Herrera-Gutierrez stated that plastic
was wrapped around his face and that he could breathe but was
unable to see. He claimed that he heard the two or three gun-
shots that killed Morales and Noriega, that someone untied his
wrists and took the plastic off his head, and that Stricklin and
Newman left the scene without shooting him.
Despite testimony from various witnesses regarding the
timeline of events, the evidence did not establish a precise
time for the shootings. Morales’ fiance discovered the bodies
at 2:15 p.m. The police broadcast about the shootings went out
at 2:34 p.m.
The State’s theory was that Stricklin and Newman commit-
ted the crimes together, at approximately 12:30 p.m. Newman’s
cell phone records showed multiple contacts with Stricklin
on December 2, 2012, right before and after the relevant
period. The State adduced evidence showing that Newman
and Stricklin called each other seven times between approxi-
mately 9:27 and 11:13 a.m. Newman received six calls from
11:42 a.m. to 12:36 p.m., at which time Newman’s phone
used a cell tower located in the immediate vicinity of the body
shop. 7 After his 11:13 a.m. call with Newman, Stricklin did not
make or receive a call until 12:34 p.m., when he received a call
which went to voicemail. Stricklin did not send or receive any
text messages during this period of inactivity. Stricklin made
his next call at 2:15 p.m., which was to Newman.
Stricklin’s motion for postconviction relief contained the
following relevant allegations: Under his first claim, he alleged
that he was in downtown Omaha with his “stepson” Hashim C.
on the day of the shootings from approximately 9:30 a.m.
until noon. Stricklin alleged that they ate at a restaurant, pur-
chased gas, and each got a haircut at a barbershop. He alleged
they later drove to his grandmother’s house. He alleged that
7
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STATE v. STRICKLIN
Cite as 310 Neb. 478during his drive, he made a phone call to a friend at 12:34 p.m.
The call registered at a cell tower approximately 5 miles from
the crime scene. He stated he received text messages during
the drive.
Stricklin stated that he and Hashim arrived at his grand-
mother’s house around 12:40 p.m. and that around 20 to 25
people were present, including his brother Daryel Stricklin. He
stated Antoineya Richard (Antoineya), his girlfriend at the time
and Hashim’s mother, arrived at his grandmother’s home and
picked up Hashim around 2 or 3 p.m. Stricklin stated he made
his trial counsel aware his alibi was supported by the barber,
Hashim, Antoineya, and Daryel.
Under the second claim of his postconviction motion,
Stricklin alleged his counsel was ineffective for failing to
investigate as possible suspects Marcus Jefferson, Stricklin’s
half brother, and a man named “James Moore.” Stricklin
alleged Jefferson stated to him that Moore committed the mur-
ders due to a dispute involving money and “bad drugs.”
Prior to the evidentiary hearing on the two claims ordered
by this court, Stricklin filed a successive postconviction motion
which alleged the State advanced a false prosecution theory
by claiming to the jury that the cell phone location data rep-
resented the location of Stricklin or his phone rather than the
location of a cell tower. The State moved to dismiss the succes-
sive motion for postconviction relief as time barred.
Stricklin also filed a motion to depose nine witnesses prior
to the pending evidentiary hearing. The State objected to
Stricklin’s request to depose two of the witnesses, an agent
with the Federal Bureau of Investigation and a representative
from a cell phone provider, arguing the request went beyond
Stricklin’s first postconviction motion and the scope of our
remand. The district court granted Stricklin’s motion as to
seven of the witnesses and took the State’s objection regard-
ing the remaining two witnesses under advisement. The court
gave Stricklin leave to file a brief explaining how the two cell
phone expert witnesses were relevant to the issues on remand.
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STATE v. STRICKLIN
Cite as 310 Neb. 478Thereafter, the court held a hearing on Stricklin’s motion and
issued an order denying the request. The court agreed with
the State that Stricklin’s proposed use of the testimony went
beyond his alibi claim. The court found “Stricklin’s cell phone
records are in evidence and he can present and rely upon
them at his evidentiary hearing without depositions of these
witnesses.” In the same order, the court dismissed Stricklin’s
successive postconviction motion which is not at issue in
this appeal.
At the evidentiary hearing, the district court received deposi-
tions from Stricklin, Daryel, Antoineya, Hashim, and Stricklin’s
trial counsel.
In his deposition, Stricklin testified that on December 2,
2012, he went with Hashim to the barbershop for their 9 a.m.
appointment. The barber was running late, so Stricklin and
Hashim went to a restaurant and a gas station and returned
for their haircuts around 10 a.m. Stricklin stated that he and
Hashim got their hair cut by the same barber every week
and that their haircuts would take approximately 2 hours.
Stricklin testified that he left the barbershop between noon
and 12:30 p.m. and that he placed a call to a friend and briefly
stopped at the friend’s house while on the way to his grand-
mother’s house.
Stricklin further testified that he made counsel aware of his
alibi defense early in the process and that the alibi defense
was the “number one” trial strategy. He stated that counsel
did not inform him he would not present the alibi at trial and
that Daryel, Antoineya, and Hashim were present and ready to
testify. When asked about his discussions with counsel regard-
ing trial strategy, Stricklin testified, “We had, like, a lockdown
defense, and he didn’t do any of it. He didn’t — he didn’t
cross-examine the witnesses or anything. He just sat there, like,
he didn’t know what was going on.”
Antoineya testified that she was in a dating relationship with
Stricklin from 2010 to 2014 and that he lived in her home.
She thought that Stricklin and Hashim went to the barbershop
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STATE v. STRICKLIN
Cite as 310 Neb. 478at 11 a.m. and that Hashim returned home around 2 p.m. She
spoke with Stricklin’s counsel before trial on multiple occa-
sions, and counsel knew she and Hashim were alibi witnesses,
but she was never contacted to testify.
Daryel testified he was present at the family gathering at his
grandmother’s house. He recalled that he started eating around
noon and that around 10 people were present. Daryel testi-
fied Stricklin arrived at his grandmother’s between 12:30 and
1 p.m. Daryel recalled the time of Stricklin’s arrival because
he had to leave to go to a movie around the same time. He did
not remember if anyone was with Stricklin when he arrived.
He spoke with Stricklin’s counsel before trial and provided
this information.
Hashim was 10 years old in December 2012 and 17 years
old at the time of his deposition. Hashim testified Stricklin
is basically his stepfather and they had a good relationship.
Hashim testified he and Stricklin went for a haircut together
every week. He thought it would take about an hour for both
him and Stricklin to get a haircut. He stated that he did not do
anything else with Stricklin on the day in question other than
get food and return home. His mother mentioned to him he
might be a witness at Stricklin’s trial, but he never spoke with
Stricklin’s counsel.
Stricklin’s trial counsel testified via deposition. Counsel
stated that he had not reviewed the case file for years. Counsel
acknowledged that at one point he had planned to put forward
an alibi defense but that during the pretrial process, his view of
the alibi defense changed. He testified he had “vague memories
of potentially not going forward with an alibi as trial strategy.”
Counsel testified he believed the alibi contained a “pitfall,” and
he recalled sharing his concerns with Stricklin.
Counsel conceded he had not filed a notice of alibi defense
in order to present the defense at trial, 8 claiming there was
“a conscious decision that we were moving forward without
8
See Neb. Rev. Stat. § 29-1927 (Reissue 2016).
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STATE v. STRICKLIN
Cite as 310 Neb. 478an alibi.” Counsel stated that he discussed the alibi with Daryel
and Antoineya and that he decided to not interview Hashim,
because he was unclear as to Stricklin’s relationship with
Hashim. Counsel did not interview the barber, stating he was
concerned the barber feared Newman and, if forced to testify,
might have testified in a way that would harm Stricklin’s
defense. Counsel thought he made a few attempts to speak to
the barber, but stated that the barber retained an attorney and
that he did not remember if he spoke with the barber’s attor-
ney. Counsel stated his decision not to pursue the alibi was
strategic, because all the alibi witnesses were personally close
with Stricklin and had a motive to support him. Further, coun-
sel stated he was aware of Stricklin’s claim of other potential
suspects, because Stricklin had discussed it with him, but that
he chose not to pursue them as a defense.
In its order discussing and weighing the evidence, the court
found counsel’s “concerns about the viability of Stricklin’s
alibi appear to be reasonable in light of the evidence presented
at trial and the evidence in the current record.” The court found
that Stricklin did not establish a clear timeline for his alibi and
that when all of the timeline evidence was considered, there
were gaps in the evidence which failed to refute the State’s
theory that Stricklin and Newman committed the murders at
approximately 12:30 p.m. The court found the gaps showed
that counsel’s “concerns about a ‘pitfall’ in the alibi were
reasonable.”
Additionally, the court found Stricklin failed to prove any
prejudice, because even if counsel had presented the alibi
defense, the defense was so weak that the result of the trial
would not have been any different. The court discussed and
weighed the deposition testimony and concluded the evidence
showed Stricklin had no alibi between approximately 11 a.m.
and 12:34 p.m. The court found Stricklin’s phone records
placed him in the downtown Omaha area between 9:19 and
10:45 a.m. The court credited Stricklin’s testimony that he
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STATE v. STRICKLIN
Cite as 310 Neb. 478and Hashim arrived at the barber for their haircuts at around
10 a.m. Noting that Stricklin and Hashim had short hair and
weekly haircuts, the court credited Hashim’s testimony that
their haircuts would have been finished within approximately
1 hour. The court found that Stricklin’s alibi defense left a gap
that “corresponds to the time of the murders.” The court found
that “[c]ompounding the damage [of the gap] to Stricklin’s
alibi defense, his cell phone’s communications immediately
before this gap are with a cell phone number attributed to
Newman at trial.” The court found “the evidence that Stricklin
has supplied does not establish that [he] was at a place other
than the crime scene for ‘such a length of time that it was
impossible for him to have been at the place where and when
the crime was committed.’” 9
Although the court had denied Stricklin leave to depose two
cell phone record experts, the court considered Stricklin’s offer
of proof regarding the expert testimony. The court found even
if the court had allowed the depositions and received the evi-
dence, the analysis would not change, because Stricklin’s cell
phone records did not fill the gaps in his alibi and therefore did
not support his alibi defense.
Lastly, the district court rejected Stricklin’s claim that his
trial counsel was ineffective in failing to investigate and pre­
sent evidence of alternative suspects. The court found Stricklin
had presented no exculpatory evidence on this issue and no
evidence other than hearsay implicating Jefferson and Moore.
ASSIGNMENTS OF ERROR
Stricklin assigns the district court erred in denying his inef-
fective assistance of counsel claim, when counsel failed to
present an alibi defense and failed to investigate and present
evidence of other possible suspects. Further, Stricklin assigns
the court erred in denying his request to depose cell phone
record experts.
9
See State v. Moreno, 228 Neb. 210, 422 N.W.2d 56 (1988).
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STATE v. STRICKLIN
Cite as 310 Neb. 478STANDARD OF REVIEW
[1] 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. 10
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 11 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 12 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, 13 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 14
ANALYSIS
[3-5] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations that render the judgment void or voidable. 15 The
Nebraska Postconviction Act is intended to provide relief in
those cases where a miscarriage of justice may have occurred;
it is not intended to be a procedure to secure a routine review
for any defendant dissatisfied with his or her sentence. 16 A
court must grant an evidentiary hearing to resolve the claims
in a postconviction motion when the motion contains fac-
tual allegations which, if proved, constitute an infringement
10
State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).
11
See id.
12Id.
13Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
14
Beehn, supra note 10.
15
Id.
16Id.- 489 -
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STATE v. STRICKLIN
Cite as 310 Neb. 478of the defend­ant’s rights under the Nebraska or federal
Constitution. 17
[6-8] Stricklin had the same counsel at trial and on direct
appeal. To prevail on a claim of ineffective assistance of coun-
sel under Strickland, 18 the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. 19 To
show that counsel’s performance was deficient, the defend­
ant must show counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in
the area. 20 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
performance, the result of the proceeding would have been
different. 21 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 prob-
ability sufficient to undermine confidence in the outcome. 22
“The likelihood of a different result must be substantial, not
just conceivable.” 23
[9] “‘[A] court need not determine whether counsel’s perform­
ance was deficient before examining the prejudice ­suffered
by the defendant as a result of the alleged deficiencies.’” 24
17
Stricklin, supra note 3.
18
Strickland, supra note 13.
19
Stricklin, supra note 3.
20
Id.
21
Id.
22
Id.
23
Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624(2011).
24
State v. Hawthorne, 230 Neb. 343, 347, 431 N.W.2d 630, 633 (1988),
quoting Strickland, supra note 13. Accord, State v. Moss, 240 Neb. 21,
480 N.W.2d 198 (1992); State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885(1989).
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STATE v. STRICKLIN
Cite as 310 Neb. 478Deficient performance and prejudice can be addressed in either
order. If it is more appropriate to dispose of an ineffective-
ness claim due to the lack of sufficient prejudice, that course
should be followed. 25
Alibi Defense
Stricklin argues counsel was ineffective in failing to present
his alibi defense. Stricklin claims he had frequent discussions
with counsel regarding plans to present an alibi at trial, that
counsel did not inform him he would not present the alibi, and
that counsel’s actions had foreclosed the possibility of an alibi
due to the failure to file a notice of alibi. Stricklin contends
that the importance of the alibi defense was clear from the
beginning to the end, and there is no evidence counsel aban-
doned the alibi based on trial strategy, other than counsel’s
vague recollections. Stricklin argues counsel admitted he did
not interview Hashim or the barber and did not hire anyone to
investigate the alibi.
For the analytical purposes of resolving Stricklin’s appeal,
the court will assume Stricklin has established counsel’s failure
to present his alibi defense constituted deficient performance.
However, in light of the court’s ultimate holding on Stricklin’s
ineffective assistance of counsel claim, the court need not
decide the question of deficient performance. Ultimately, we
conclude Stricklin has failed to prove he was prejudiced by
counsel’s performance.
As a rule, a “violation of the Sixth Amendment right to
effective representation is not ‘complete’ until the defendant
is prejudiced.” 26 Prejudice means “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
25
State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013); State v. Nesbitt,
264 Neb. 612, 650 N.W.2d 766 (2002); State v. Soukharith, 260 Neb. 478,
618 N.W.2d 409 (2000).
26
United States v. Gonzalez-Lopez, 548 U.S. 140, 147, 126 S. Ct. 2557, 165
L. Ed. 2d 409 (2006).
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Cite as 310 Neb. 478proceeding would have been different.” 27 “The benchmark for
judging any claim of ineffectiveness must be whether coun-
sel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” 28 Assuming Stricklin has established
deficient performance, Stricklin must also show there is a rea-
sonable probability that but for counsel’s failure to present his
alibi defense, the result of his trial would have been different.
Therefore, we turn to consider the merits of Stricklin’s alibi
defense, had it been presented to the jury.
[10] As noted by the trial court, Nebraska precedent indi-
cates that a defendant asserting an alibi defense bears a heavy
evidentiary burden. To establish an alibi defense, a defendant
must show (1) he or she was at a place other than where the
crime was committed and (2) he or she was at such other place
for such a length of time that it was impossible to have been at
the place where and when the crime was committed. 29
Stricklin claims he could not have been present during the
shootings, according to the State’s theory that the shootings
occurred around 12:30 p.m., because he proved through wit-
ness testimony and cell phone record evidence that he was
located at least 5 miles away from the scene of the crime at
12:34 p.m. However, as we discuss, the evidence does not sup-
port Stricklin’s alibi, especially at the critical time.
[11,12] The district court explained there was nothing
accounting for Stricklin’s presence between approximately
11 a.m. and 12:30 p.m. Stricklin complains the district
court accepted his testimony that the haircuts commenced at
27
Strickland, supra note 13, 466 U.S. at 694.
28
Id., 466 U.S. at 686.
29
NJI2d Crim. 8.1, comment, citing Moreno, supra note 9; State v. El-Tabech,
225 Neb. 395, 405 N.W.2d 585 (1987); State v. Sutton, 220 Neb. 128, 368
N.W.2d 492 (1985); Mays v. State, 72 Neb. 723, 101 N.W. 979 (1904);
Peyton v. State, 54 Neb. 188, 74 N.W. 597 (1898). See, State v. Jacobs,
226 Neb. 184, 410 N.W.2d 468 (1987); State v. Veatch, 16 Neb. App. 50,
740 N.W.2d 817 (2007).
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Cite as 310 Neb. 47810 a.m., but not his testimony that the haircuts were not fin-
ished until around noon. However, in an evidentiary hearing
for postconviction relief, the postconviction trial judge, as the
trier of fact, resolves conflicts in evidence and questions of
fact, including witness credibility and the weight to be given
a witness’ testimony. 30 Where competent evidence supports the
district court’s findings, the appellate court will not substitute
its factual findings for those of the district court. 31
The trial court further explained that the phone records
undermined the credibility of Stricklin’s alibi and showed that
Stricklin and Newman were in contact with one another based
on their numerous phone communications on the date of the
shootings. At trial, the State called a records custodian with a
cell phone provider who testified that Stricklin’s phone records
showed there was a call between Stricklin and Newman at
11:13 a.m., and then no phone activity on Stricklin’s phone
until 12:34 p.m. The court found this to be evidence of “a
gap that corresponds to the time of the murders.” Further, the
phone records disprove Stricklin’s testimony that he placed
a call at 12:34 p.m. and received text messages during his
drive to his grandmother’s, because the phone records show
that Stricklin received a call at 12:34 p.m., which went to
voicemail, and that he did not receive text messages during
this time. Even recognizing the fact that Stricklin’s phone was
located approximately 5 miles away from the crime scene at
12:34 p.m., such evidence does not establish that Stricklin was
unable to be present at the body shop with Newman when the
shootings occurred. 32
The record does not support Stricklin’s claim that he was at
another place for such a length of time that it was impossible
for him to have committed the murders. We agree with the
district court that in light of the incriminating phone records
30
State v. Russell, 308 Neb. 499, 954 N.W.2d 920 (2021).
31
Id.
32See, e.g., State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
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Cite as 310 Neb. 478and an eyewitness identification, Stricklin failed to show a
reasonable probability that presentation of his alibi defense at
trial would have changed the outcome. Stricklin has failed to
establish he was prejudiced by counsel’s decisions. As such,
Stricklin’s claim that his counsel was ineffective for failing to
present an alibi defense is without merit.
Other Suspects
[13] Stricklin contends counsel was ineffective in failing to
investigate and present evidence of other suspects. However,
Stricklin’s asserted theory regarding other suspects is not based
on any evidence in our record, other than speculation based on
hearsay. Stricklin attempted to refer to police reports contained
in the presentence investigation report. However, the district
court did not receive those materials into evidence and did not
consider them. Thus, there is no evidence to support a reason-
able probability of a different outcome had counsel presented
evidence of other suspects. Trial counsel’s failure to investi-
gate various aspects of the case is not ineffective assistance
of counsel, absent prejudice and a specific showing what the
investigation would have revealed, what exculpatory evidence
would have been discovered, or how such an investigation
would have changed the outcome of the trial. 33 This assignment
of error is without merit.
Deposition of Cell Phone Experts
Stricklin argues the court erred in not granting him leave
to depose two cell phone experts. Stricklin contends that the
experts would have interpreted the cell phone records in a man-
ner corroborating his alibi. The State argues the court correctly
found Stricklin’s request to be outside this court’s mandate
upon remand.
As noted, following remand for an evidentiary hearing
on two of Stricklin’s postconviction claims, Stricklin moved
33
See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).
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Cite as 310 Neb. 478to depose nine additional witnesses. The State objected to
Stricklin’s request to depose two cell phone record expert wit-
nesses, and the court sustained the objection. In doing so, the
court found that challenging the use of Newman’s cell phone
records was beyond the scope of the alibi claim raised in
Stricklin’s first motion for postconviction relief. Additionally,
the court noted that Stricklin’s cell phone records were received
into evidence at trial and could be relied upon to support his
claims on remand without the additional depositions of expert
witnesses.
The construction of a mandate issued by an appellate court
presents a question of law, on which an appellate court is obli-
gated to reach a conclusion independent of the determination
reached by the court below. 34 A district court has an unqualified
duty to follow the mandate issued by an appellate court and
must enter judgment in conformity with the opinion and judg-
ment of the appellate court. 35
Stricklin has not argued the district court erred in interpret-
ing this court’s mandate, and we find no error by the district
court in that regard. Nor has Stricklin explained how his
request was within the scope of the mandate.
To the extent any of the proposed expert testimony would
have been relevant to Stricklin’s alibi defense and thus within
the scope of our mandate, we review the court’s denial of a dis-
covery request for an abuse of discretion. 36 Here, the court con-
sidered Stricklin’s offer of proof regarding the expert testimony
for purposes of evaluating his alibi defense and concluded that
even if it had allowed the depositions and received the evi-
dence, the result would have been the same. The court found
Stricklin’s phone records undermined, rather than supported,
his alibi defense, because the phone records established a gap
that corresponded with the time of the murders and showed
34
State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).
35
State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
36
See Jackson, supra note 32.
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Cite as 310 Neb. 478Stricklin’s contacts with Newman right before and after the
murders. We find no abuse of discretion by the district court.
This assignment of error is without merit.
CONCLUSION
The order of the district court dismissing Stricklin’s motion
for postconviction relief is affirmed.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.