State v. Newman ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/31/2021 01:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463State of Nebraska, appellee, v.
Terrell E. Newman, appellant.
___ N.W.2d ___
Filed December 3, 2021. No. S-20-680.
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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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 4636. 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. A court may examine the two prongs
of the ineffective assistance of counsel test, deficient performance and
prejudice, in any order and need not examine both prongs if a defendant
fails to demonstrate either.
10. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
11. Trial: Effectiveness of Counsel: Appeal and Error. A reasonable stra-
tegic decision to present particular evidence, or not to present particular
evidence, will not, without more, sustain a finding of ineffective assist­
ance of counsel. Strategic decisions made by trial counsel will not be
second-guessed so long as those decisions are reasonable.
12. Attorneys at Law: Effectiveness of Counsel. An attorney must at a
minimum interview potential witnesses and make an independent inves-
tigation of the facts and circumstances in the case.
13. 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.
14. Postconviction: Evidence: Witnesses. In an evidentiary hearing for
postconviction relief, the postconviction trial judge, as the trier of
- 465 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463fact, resolves conflicts in evidence and questions of fact, including wit-
ness credibility and the weight to be given a witness’ testimony.
15. 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.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Jason E. Troia and Stuart J. Dornan, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., 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.
Terrell E. Newman appeals from the denial of postconvic-
tion relief following an evidentiary hearing. Newman contends
that his trial counsel was ineffective in failing to investigate
and present an alibi defense and that the trial court should have
allowed live testimony at the evidentiary hearing. We disagree
and therefore affirm the order of the district court.
BACKGROUND
In 2013, in a joint trial, a jury convicted codefendants
Newman and Derrick U. Stricklin 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 man-
slaughter conviction; and 15 to 25 years’ imprisonment for
the possession of a deadly weapon conviction. All sentences
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463were to run consecutively. This court affirmed Newman’s con-
victions and sentences on direct appeal. 1
Newman timely moved for postconviction relief, which the
district court denied without conducting an evidentiary hear-
ing. Newman appealed. This court affirmed in part, and in part
reversed and remanded for an evidentiary hearing on the sole
issue of whether Newman’s trial counsel was ineffective for
failing to investigate and present an alibi defense. 2
Prior to the evidentiary hearing, Newman filed a motion for
live testimony with the district court, which was denied. The
district court then held the evidentiary hearing and, based upon
deposition testimony, the trial record, and an affidavit, found
no merit to Newman’s ineffective assistance of counsel claim.
Newman appealed directly to this court. 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 Newman and
Stricklin committed the crimes together. Newman’s cell phone
records showed that he 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 during the rel-
evant 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 Newman and
Stricklin. Herrera-Gutierrez identified Newman and Stricklin
as the shooters; he testified that he recognized both men
1
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
2
State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
3
Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).
4
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
5
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463from 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 Newman and Stricklin draw firearms. 6
According 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 Newman and
Stricklin 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 Newman and Stricklin 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 received
six calls from 11:42 a.m. to 12:36 p.m. and that Newman’s
phone used a cell tower located in the immediate vicinity of
the body shop. 7
After this court affirmed Newman’s convictions and sen-
tences, Newman moved for postconviction relief, alleging
four witnesses would have established an alibi defense had
trial counsel interviewed the witnesses himself rather than his
investigator. Newman alleged that, if called, Kevin Riley and
Janet Mariscal would have testified that at or near the time
of the shootings Newman was either at a restaurant he owned
or on a supply run to a grocery store. Newman alleged two
6
Stricklin, supra note 4.
7
Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463unnamed employees of the grocery store would have confirmed
his presence at the store at or near the time of the shootings.
In denying Newman’s motion, the district court found that
Newman’s timeframe allegations were vague and that over-
whelming evidence established Newman’s guilt.
On appeal, this court concluded that Newman’s alleged alibi
defense merited an evidentiary hearing. In considering whether
there was overwhelming evidence of Newman’s guilt, we found
that we could not “overlook the fact that the alibi evidence
Newman alleges his attorney should have investigated could,
if proved, have contradicted the eyewitness identification” and
concluded that “depending on the evidence actually presented
and found credible, there may be a reasonable probability that
if such evidence had been presented at trial, the result of the
proceeding could have been different.” 8
Upon remand, at the evidentiary hearing, the district court
received deposition testimony from Newman, Newman’s trial
counsel, Riley, Mariscal, Jessica Rosa, and Frances Mullen.
Newman testified that he owned a restaurant and that he
and his fiance, Mariscal, arrived there on December 2, 2012,
at 9 or 9:30 a.m. Newman stated he was at the restaurant all
day, except for a supply run to the grocery store at 12:20 or
12:30 p.m. Newman stated he purchased wood chips, lighter
fluid, and bread. He stated that when he paid for the items, he
had a conversation with his cashier, Mullen, about his restau-
rant. He stated he separately purchased apples and perhaps a
sandwich from the customer service line. Newman estimated
his entire supply run lasted 20 or 25 minutes, placing him back
at the restaurant by approximately 1 p.m. Newman stated that
he remained at the restaurant until 5:30 or 6 p.m. and that he
provided this information to his counsel shortly after counsel
was appointed.
Mariscal testified she was in a dating relationship with
Newman. She remembered December 2, 2012, because it
8
Newman, supra note 2, 300 Neb. at 781, 916 N.W.2d at 406.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463was the day after her daughter’s birthday. Mariscal remem-
bered arriving at the restaurant with her daughter and Newman
at around 10 or 10:30 a.m. She recalled that Newman went on
a supply run around 11 or 11:30 a.m. and that he returned with
bread and possibly lighter fluid. She stated that she was not
always with Newman while at the restaurant and that he would
use the grill located outside of the restaurant.
Riley, who worked at the restaurant, testified he and Newman
arrived there at 7 a.m. to begin smoking turkeys. Riley stated
Newman was at the restaurant all day, except for about 15
minutes around 10 or 10:30 a.m., when Newman went to the
grocery store to get feather bones and charcoal.
In their depositions, Rosa and Mullen confirmed that they
worked at the grocery store, but could not confirm whether
Newman shopped there on December 2, 2012.
Newman’s trial counsel testified in his deposition that on
January 22, 2013, he was appointed to represent Newman.
Counsel acknowledged that Newman made him aware of his
alibi defense early on and that Riley and Mariscal could con-
firm he was either at the restaurant or at the grocery store.
In preparing a defense, on April 18, 2013, counsel hired a
private investigator to investigate Newman’s alibi defense, as
well as Herrera-Gutierrez’ version of events. The investigator
was a retired Omaha police officer with 20 years’ experience,
including working as an investigator in the homicide unit. In
forming Newman’s defense strategy, counsel planned to rely
on the experience of his investigator. Counsel stated that his
investigator’s experience working in the homicide unit would
aid him in determining whether Herrera-Gutierrez’ description
of the shootings was credible.
Counsel attempted to obtain receipts from either the grocery
store or Newman’s restaurant, but Newman did not provide
any. The investigator contacted the grocery store manager and
learned that sales records were kept for only 10 days and that
surveillance video was kept for only 40 days.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463The investigator interviewed Riley and Mariscal. He
assessed Mariscal’s account as rehearsed and found Riley
had only general knowledge of the restaurant’s operations,
but no direct knowledge of December 2, 2012, the date of the
shootings. Counsel did not personally meet with Newman’s
alibi witnesses. Based on the investigator’s assessment, counsel
determined that as a matter of strategy, Newman’s best defense
was to refute the testimony of Herrera-Gutierrez on cross-
examination. Based on counsel’s experience, he concluded that
Newman’s cell phone records undermined the credibility of his
alibi defense and that presenting a weak alibi defense to the
jury could harm Newman’s case and cause the jury to believe
he was guilty.
After the evidentiary hearing, the court issued a written order
dismissing Newman’s motion, finding no merit to his ineffec-
tive assistance of counsel claim. The court found Newman
failed to establish his counsel’s performance was deficient
and failed to establish he suffered any prejudice. Based on the
deposition testimony of counsel, and the investigator’s affida-
vit, the court found counsel had reasonably investigated the
alibi defense. The court found there was no way for counsel to
obtain the surveillance video from the grocery store, because it
had already been deleted by the time Newman was arrested and
counsel was appointed. The court found merit to counsel’s tes-
timony that he viewed the alibi defense to be weak and harmful
to Newman’s case.
The court found Newman’s evidence in support of his
motion lacked credibility. The court found gaps and conflicts
in the timeline testimony of Riley and Mariscal. The court
noted that contrary to Newman’s allegations, Rosa and Mullen
were unable to corroborate his presence at the grocery store.
The court considered the strength of Newman’s alibi defense in
light of the other evidence of his guilt, such as the eyewitness
identification and cell phone records, and concluded “there is
not a reasonable probability that the outcome of the trial would
have been different if trial counsel had called Mariscal, Riley,
Mullen, and Rosa to present an alibi defense.”
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463ASSIGNMENTS OF ERROR
Newman assigns that the district court erred in (1) denying
postconviction relief and (2) denying live witness testimony at
the evidentiary hearing.
STANDARD 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. 9
[2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 10 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 11 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, 12 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 13
ANALYSIS
Newman contends his trial counsel’s performance was defi-
cient when he failed to investigate and present an alibi defense.
Newman argues his trial counsel delegated assessment of his
alibi defense to a private investigator and that counsel’s deci-
sion to not pursue the alibi defense based on the investigator’s
assessments was not competent and resulted in Newman’s con-
viction at trial.
[3-5] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional
9
State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).
10
See id.
11Id.
12Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
13
Beehn, supra note 9.
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Nebraska Supreme Court Advance Sheets
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STATE v. NEWMAN
Cite as 310 Neb. 463violations that render the judgment void or voidable. 14 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. 15
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. 16
[6-9] To prevail on a claim of ineffective assistance of coun-
sel under Strickland, 17 the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. 18 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. 19 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. 20 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. 21
“The likelihood of a different result must be substantial, not
14
Id.
15Id.
16Newman, supra note 2.
17
Strickland, supra note 12.
18
Newman, supra note 2.
19
Id.
20
Id.
21
Id.
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Nebraska Supreme Court Advance Sheets
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STATE v. NEWMAN
Cite as 310 Neb. 463just conceivable.” 22 A court may examine performance and
prejudice in any order and need not examine both prongs if a
defendant fails to demonstrate either. 23
Witness Interviews
[10,11] A defense attorney has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. 24 A reasonable strategic
decision to present particular evidence, or not to present par-
ticular evidence, will not, without more, sustain a finding of
ineffective assistance of counsel. 25 Strategic decisions made by
trial counsel will not be second-guessed so long as those deci-
sions are reasonable. 26
The decision to interview witnesses must be evaluated in
light of whatever trial strategy reasonably competent counsel
devised in the context of the particular case. 27 Counsel need
not interview every possible witness to have performed profi­
ciently. 28 In every case, trial lawyers could have done some-
thing more or something different. 29 The issue is only what is
constitutionally compelled. 30
[12] An attorney must at a minimum interview poten-
tial witnesses and make an independent investigation of the
22
Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624(2011).
23
See Strickland, supra note 12.
24
Newman, supra note 2.
25
Id.
26
Id. See State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020).
27
See, Janosky v. St. Amand, 594 F.3d 39 (1st Cir. 2010); Lema v. U.S., 987
F.2d 48 (1st Cir. 1993); U.S. v. Caramadre, 957 F. Supp. 2d 160 (D.R.I.
2013).
28
Caramadre, supra note 27.
29
Chandler v. U.S., 218 F.3d 1305 (11th Cir. 2000).
30
Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. NEWMAN
Cite as 310 Neb. 463facts and circumstances in the case. 31 The results of certain
interviews or investigation may indicate that further pursuit
likely will be a waste of time. 32 “[S]trategic choices made after
less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limi-
tations on investigation.” 33 Counsel’s obligation is to conduct a
reasonable inquiry into all plausible defenses. 34
In the instant matter, Newman’s trial counsel relied on
an experienced investigator to interview Riley and Mariscal.
Those interviews did not generate information substantially
different than the witness depositions offered at the evidentiary
hearing. Additionally, the investigator’s conclusion that Riley’s
testimony and Mariscal’s testimony was not sufficiently cred-
ible to support an alibi defense is consistent with the district
court’s conclusion on the same issue. Newman’s trial counsel
showed reasonable professional judgment in hiring an investi-
gator to evaluate the alibi and in relying on that investigator’s
determination that Newman’s alibi could have been refuted and
harmful to his defense. As such, we conclude that the district
court was correct in determining that trial counsel’s perform­
ance was not deficient for not personally interviewing Riley
and Mariscal.
Presentation of Alibi Defense
[13] Nebraska precedent indicates 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
31
See, Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994); U.S. v. Gavin, 77 F.
Supp. 3d 525 (S.D. Miss. 2014).
32
Id.
33Strickland, supra note 12, 466 U.S. at 690-91.
34
See Strickland, supra note 12.
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STATE v. NEWMAN
Cite as 310 Neb. 463was impossible to have been at the place where and when the
crime was committed. 35
This court instructed the district court to, on remand, conduct
an evidentiary hearing and evaluate the merits of Newman’s
postconviction claim “depending on the evidence actually pre-
sented and found credible.” After holding that evidentiary hear-
ing, the district court determined that the evidence presented
by Newman lacked credibility and dismissed his claim. The
district court reviewed the witness testimony regarding the
timeline of events, and it concluded that “Newman has failed
to credibly provide the evidence he outlined in his motion.”
The court found that neither Rosa nor Mullen was able to
confirm that Newman was at the grocery store on December
2, 2012. The court also found that Riley and Mariscal did not
provide “clear and consistent accounts to provide a credible
alibi defense.” We agree.
[14,15] In an evidentiary hearing for postconviction relief,
the postconviction trial judge, as the trier of fact, resolves con-
flicts in evidence and questions of fact, including witness cred-
ibility and the weight to be given a witness’ testimony. 36 Where
competent evidence supports the district court’s findings, the
appellate court will not substitute its factual findings for those
of the district court. 37
Based upon the evidentiary record, we are persuaded the
district court did not err in finding counsel’s decision not to
call the alibi witnesses to have been a strategic choice made
after investigation, and thus, it did not amount to ineffective
35
NJI2d Crim. 8.1, comment, citing State v. Moreno, 228 Neb. 210, 422
N.W.2d 56 (1988); 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).
36
State v. Russell, 308 Neb. 499, 954 N.W.2d 920 (2021).
37
Id.- 476 -
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STATE v. NEWMAN
Cite as 310 Neb. 463assistance. 38 Newman’s own alibi evidence indicates that it
was possible for the jury to find that he had committed the
murder on December 2, 2012, when he was not present at the
restaurant. The State claimed that Newman and Stricklin com-
mitted the shootings at approximately 12:30 p.m. Newman
claimed to be at the grocery store at that time, but Newman
did not support his claim with any evidence. Mariscal recalled
that Newman went to the store at 11 or 11:30 a.m., whereas
Riley stated that Newman went to the store at 10 or 10:30 a.m.
Newman’s claim was not supported by any receipts or any
testimony of store employees. Additionally, Newman’s phone
records and a witness place Newman at the murder scene at the
relevant time period. There exists competent evidence in the
record which supports the district court’s decision.
Newman has failed to affirmatively establish the require-
ments of Strickland. 39 Newman’s contention that his counsel
was deficient for failing to present an alibi defense is with-
out merit.
Live Testimony
Lastly, Newman argues, without supporting authority or
citation to the record, that the district court erred in not receiv-
ing the alibi testimony through live witnesses rather than via
deposition. Newman’s argument suggests he was somehow
prevented from establishing a credible defense because the
court had to weigh his deposition evidence against the live
trial testimony of Herrera-Gutierrez. However, Newman failed
to articulate any argument as to why the court’s analysis
was legally improper or how presenting the alibi evidence
through live testimony would have made a difference given
the strength of the evidence. Appellants are required to point
38
See, e.g., U.S. v. Dyess, 730 F.3d 354 (4th Cir. 2013); Dixon v. Warden,
Southern OH Correctional Facility, 940 F. Supp. 2d 614 (S.D. Ohio 2013);
Ortiz v. Barkley, 558 F. Supp. 2d 444 (S.D.N.Y. 2008).
39
See, Strickland, supra note 12. See, also, Gavin, supra note 31.
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STATE v. NEWMAN
Cite as 310 Neb. 463out the factual and legal bases that support their assignments
of error. 40
The procedures a district court uses in evaluating a post-
conviction action are reviewed for an abuse of discretion. 41 An
abuse of discretion occurs when a trial court bases its decision
upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence. 42
But the district court’s discretion must comport with the spe-
cific procedural rules mandated by Neb. Rev. Stat. § 29-3001
(Reissue 2016). 43
Section 29-3001(3) explicitly authorizes the court to receive
“[t]estimony of the prisoner or other witnesses . . . by deposi-
tion.” Additionally, the weight to be accorded to testimony
given by deposition, as compared to that given orally in court,
must depend, not upon its form, but upon all the circumstances
affecting its credibility. 44 As discussed, there is evidence in the
record which supports the court’s credibility findings regarding
the deposition testimony of the alibi witnesses. The court did
not err in denying Newman’s request for live witnesses at the
evidentiary hearing.
Newman’s appeal is without merit.
CONCLUSION
The order of the district court dismissing Newman’s motion
for postconviction relief is affirmed.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.
40
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
41
See State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
42
Id.
43Id.
44Russell, supra note 36.