State v. Foster , 300 Neb. 883 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. FOSTER
Cite as 300 Neb. 883
State of Nebraska, appellee, v.
Jeremy D. Foster, appellant.
___ N.W.2d ___
Filed August 24, 2018. No. S-17-707.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Postconviction. Postconviction relief is a very narrow category of relief.
4. Postconviction: Constitutional Law: Proof. In order to be entitled to
an evidentiary hearing, a prisoner must allege facts in the motion for
postconviction relief that, if proved, would constitute a violation of his
or her rights under the U.S. or Nebraska Constitution.
5. Postconviction. A prisoner is not entitled to an evidentiary hearing on a
motion for postconviction relief on the basis of claims that present only
conclusory statements of law or fact.
6. ____. In the absence of alleged facts that would render the judgment
void or voidable, the proper course is to dismiss the motion for postcon-
viction relief for failure to state a claim.
7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
To establish a right to postconviction relief because of counsel’s inef-
fective assistance, the defendant has the burden, in accordance with
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), to show that counsel’s performance was deficient; that
is, counsel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in his or
her case.
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8. Effectiveness of Counsel: Proof. To establish the prejudice prong of a
claim of ineffective assistance of counsel, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient perform­
ance, the result of the proceeding would have been different.
9. Effectiveness of Counsel: Presumptions. In determining whether trial
counsel’s performance was deficient, courts give counsel’s acts a strong
presumption of reasonableness.
10. Effectiveness of Counsel: Appeal and Error. An appellate court will
not judge an ineffectiveness of counsel claim in hindsight; appellate
courts must assess trial counsel’s performance from counsel’s perspec-
tive when counsel provided the assistance.
11. ____: ____. When reviewing claims of ineffective assistance, an appel-
late court will not second-guess trial counsel’s reasonable strategic
decisions.
12. Right to Counsel: Plea Bargains. The plea-bargaining process presents
a critical stage of a criminal prosecution to which the right to coun-
sel applies.
13. Effectiveness of Counsel: Plea Bargains. As a general rule, defense
counsel has the duty to communicate to the defendant all formal offers
from the prosecution to accept a plea on terms and conditions that may
be favorable to the defendant.
14. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
to the contrary, it is presumed that a jury followed the instructions given
in arriving at its verdict.
15. Jury Instructions: Appeal and Error. In an appeal based on a claim
of an erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
16. ____: ____. All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
17. Criminal Law: Motions for Mistrial. A motion for mistrial is properly
granted in a criminal case where an event occurs during the course of
trial that is of such a nature that its damaging effect cannot be removed
by proper admonition or instruction to the jury and thus prevents a
fair trial.
18. Motions for Mistrial: Proof: Appeal and Error. A defendant must
prove that an alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice, in order for a motion for mis-
trial to be properly granted.
19. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
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STATE v. FOSTER
Cite as 300 Neb. 883
a claim on appeal of ineffective assistance of trial counsel (a layered
claim of ineffective assistance of counsel), an appellate court will look
at whether trial counsel was ineffective under the two-part test for inef-
fectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective,
then the defendant was not prejudiced by appellate counsel’s failure to
raise the issue.
20. ____: ____. Much like claims of ineffective assistance of trial counsel,
a defendant claiming ineffective assistance of appellate counsel must
show that but for appellate counsel’s failure to raise the claim, there is a
reasonable probability that the outcome would have been different.
21. Witnesses: Impeachment. Generally, the credibility of a witness may
be attacked by any party, including the party who called the witness.
22. ____: ____. A party may not use a prior inconsistent statement of a
witness under the guise of impeachment for the primary purpose of
placing before the jury substantive evidence which is not otherwise
admissible.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Jeremy D. Foster, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Strong,
District Judge.
Funke, J.
Jeremy D. Foster appeals from the denial of postconviction
relief without an evidentiary hearing. Foster asserts that he was
prejudiced by ineffective assistance of counsel at trial and on
direct appeal. We affirm the judgment below.
I. BACKGROUND
This appeal follows our decision on Foster’s direct appeal
in State v. Foster,1 which affirmed Foster’s jury trial con-
victions on one count of first degree murder, four counts
1
State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
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of assault in the second degree, and five counts of use of a
deadly weapon to commit a felony. Foster and his codefend­
ant, Darrin D. Smith, were charged with the same crimes. The
two cases were jointly tried, and the jury found Smith and
Foster guilty on all counts. The court sentenced both Smith
and Foster to life imprisonment, plus consecutive sentences
totaling 96 to 150 years.
1. Factual Background
Brothers Victor Henderson and Corey Henderson were
members of the “Pleasantview” or “PMC” gang in Omaha,
Nebraska, and Smith was a member of a rival gang referred to
as “40th Avenue.” Victor and Corey were federally indicted,
and they agreed to plead guilty and testify for the government
in exchange for leniency. They were released from federal
prison in 2007, and they were considered “snitches” within the
gang community.
In October 2008, Smith saw Victor and Corey at a party
and made a derogatory remark toward Corey regarding being a
“snitch.” Later that month, Smith saw Victor and Corey at an
American Legion hall in Omaha (the Legion), which was con-
sidered a bar for the “Pleasantview” gang. When Corey walked
outside, he saw a group of men had surrounded Victor, includ-
ing Smith, “Don Don” Swift, and a boy of about 14 years of
age, who each had a gun. “Don Don” was arguing with Victor.
Smith made another statement to the effect of “we don’t mess
with your kind,” which Corey understood to be a comment
about Victor and Corey being “snitches.”
On November 9, 2008, while Victor and Corey were at
the Legion, Smith and Foster entered the bar wearing hooded
sweatshirts. Corey testified that Smith gave him a “hateful look
or a stare.” Smith and Foster were in the Legion for approxi-
mately 10 minutes, but before they left, they looked and nod-
ded toward Victor and Corey. Around closing time, Smith and
Foster returned and confronted Victor and Corey in the parking
lot. Victor was fatally shot in the neck, and Corey and three
others were wounded.
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STATE v. FOSTER
Cite as 300 Neb. 883
Smith and Foster were arrested and charged for the shoot-
ings. The evidence was in conflict as to whether Smith or
Foster was the shooter. For example, there was evidence that
Smith wore a black hooded sweatshirt and that Foster wore
a gray hooded sweatshirt when they were first at the Legion,
but had switched shirts before they confronted Victor and
Corey in the parking lot. Witnesses testified the shooter was
wearing black clothes with a hood pulled over his face. At
least two witnesses implicated Foster as the shooter, another
witness claimed Smith was the shooter, and there was evi-
dence that the shooter was neither Foster nor Smith but was
yet a third individual, including “Don Don” or a person
named “Views.”
The State’s theory of prosecution at trial was that Foster
was the shooter and that Smith aided and abetted Foster in
the commission of the shootings. The State called several wit-
nesses to establish that Smith was seen with a gun and that he
handed Foster the gun just prior to the shootings.
Following a 2-week jury trial, Smith and Foster were con-
victed on all counts. Both parties appealed, and this court issued
separate opinions affirming their convictions and sentences.2
2. Procedural Background
Our opinion on direct appeal in Foster 3 addressed Foster’s
assignments that the district court erred by failing to sever
Foster’s trial from Smith’s, which was the main focus of the
appeal, and allowing the jury to separate without Foster’s intel-
ligent waiver of his right to sequester.
This court rejected Foster’s claim that he was prejudiced
by the joint trial, reasoning that based upon the evidence, the
jury could have convicted both Smith and Foster, just one of
them, or neither of them. Furthermore, we determined that a
joint trial was appropriate, because the charges against Smith
2
See, State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013); Foster, supra
note 1.
3
Foster, supra note 1.
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and Foster stemmed from the same series of acts and would be
proved by similar evidence.
We also rejected Foster’s second assignment of error,
because the trial court specifically asked Foster whether he
sought jury sequestration and he replied that he did not, which
satisfied the requirement for a voluntary, knowing, and intel-
ligent waiver of the right to sequester.
Relevant to the instant appeal, Foster then filed a motion for
postconviction relief, with the assistance of court-appointed
counsel. Foster’s motion raised claims of trial court error, pros-
ecutorial misconduct, ineffective assistance of trial counsel,
and ineffective assistance of appellate counsel.
The district court found that Foster’s claims of trial court
error and prosecutorial misconduct could have been raised
on direct appeal and therefore were procedurally barred. The
court found Foster’s ineffective assistance of counsel claims
were not procedurally barred, because he was represented by
the same counsel at trial and on direct appeal. The court then
addressed the allegations supporting Foster’s ineffective assist­
ance of counsel claims and found that they were not specific
enough to merit a hearing and that Foster had not pointed to
any facts which showed he was prejudiced.
In this appeal, Foster proceeds as a self-represented litigant
and reasserts his ineffective assistance of counsel claims, and
he argues the court erred in failing to grant him an eviden-
tiary hearing.
II. ASSIGNMENTS OF ERROR
Foster assigns, restated and reordered, that the district court
erred in (1) failing to find trial counsel deficiency violated
article I, § 11, of the Nebraska Constitution and the Sixth
Amendment to the U.S. Constitution; (2) failing to grant Foster
postconviction relief; (3) failing to find Foster was prejudiced
by performance of trial counsel; (4) failing to find Foster was
prejudiced by performance of appellate counsel; and (5) deny-
ing Foster an evidentiary hearing.
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III. 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.4
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.5
IV. ANALYSIS
[3] Under the Nebraska Postconviction Act,6 a prisoner in
custody may file a petition for relief on the grounds that there
was a denial or infringement of the prisoner’s constitutional
rights that would render the judgment void or voidable. This
category of relief is “very narrow.”7
[4-6] Section 29-3001(2) entitles a prisoner to an eviden-
tiary hearing on the claim, unless “the motion and the files
and records of the case show to the satisfaction of the court
that the prisoner is entitled to no relief.” In order to be entitled
to an evidentiary hearing, a prisoner must allege facts in the
motion for postconviction relief that, if proved, would consti-
tute a violation of his or her rights under the U.S. or Nebraska
Constitution.8 A prisoner is not entitled to an evidentiary hear-
ing on the basis of claims that present only conclusory state-
ments of law or fact.9 In the absence of alleged facts that would
render the judgment void or voidable, the proper course is to
dismiss the motion for postconviction relief for failure to state
a claim.10
4
State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
5
State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
6
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
7
State v. Haynes, 299 Neb. 249, 260, 908 N.W.2d 40, 51 (2018).
8
State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
9
Id.
10
See State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
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STATE v. FOSTER
Cite as 300 Neb. 883
All of Foster’s allegations in this appeal are grounded in
claims of ineffective assistance of counsel. The district court
correctly noted that because Foster was represented at trial
and on direct appeal by the same counsel, his first opportunity
to assert ineffective assistance of counsel claims was in his
motion for postconviction relief.11
[7,8] To establish a right to postconviction relief because of
counsel’s ineffective assistance, the defendant has the burden,
in accordance with Strickland v. Washington,12 to show that
counsel’s performance was deficient; that is, counsel’s per­
formance did not equal that of a lawyer with ordinary training
and skill in criminal law.13 Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case.14 To show prejudice, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different.15 A court may address the two prongs of this test,
deficient performance and prejudice, in either order.16
In his brief, Foster raised four arguments: (1) The district
court abused its discretion in failing to find trial counsel was
deficient and prejudicial, (2) the district court erred in failing
to grant postconviction relief, (3) the district court erred when
it failed to find that trial and appellate counsel were prejudi-
cially ineffective, and (4) the district court abused its discre-
tion in denying Foster an evidentiary hearing under § 29-3001.
However, based on the contents of Foster’s appellate brief
and his motion before the trial court, these arguments can be
narrowed to the following: (1) Trial counsel’s performance
11
See State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
12
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
13
Schwaderer, supra note 5.
14
Id.
15
Id.
16
Id.
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was deficient, and counsel’s deficient performance prejudiced
the defense in the case; (2) appellate counsel’s performance
was deficient, and counsel’s deficient performance prejudiced
Foster in the appeal; and (3) the district court erred in denying
Foster an evidentiary hearing.
We discuss each of the reframed arguments in turn and
explain why the district court did not err in denying Foster an
evidentiary hearing. Our discussion of Foster’s several argu-
ments includes a common theme that these postconviction
allegations are lacking and, even accepting them as true, fail to
establish that his rights were violated.
1. Ineffective Assistance
of Trial Counsel
Foster alleged several claims of ineffective assistance of
trial counsel. Specifically, he claimed that counsel was inef-
fective for (a) failing to investigate, interview, and/or call to
testify specific witnesses; (b) failing to communicate Foster’s
acceptance of the State’s plea offer before the expiration of
the offer; (c) failing to provide identifying characteristics
of other potential shooters; (d) failing to provide alterna-
tive theories for the murder; (e) failing to object to com-
ments made by the State; (f) failing to object when the
court gave the jury a limiting instruction regarding impeach-
ment evidence during Foster’s cross-examination and fail-
ing to request a limiting instruction for each time the State
impeached a witness with prior inconsistent statements; (g)
failing to properly preserve error and argument when counsel
failed to object to evidence and testimony that would have
been potentially inadmissible in a separate trial pursuant to
Foster’s overruled motion to sever; (h) failing to object when
the State improperly impeached its own witnesses; (i) fail-
ing to object to jury instruction No. 9, which failed to con-
form to the language of NJI2d Crim. 1.2 and 9.2, or propose
an appropriate jury instruction which appropriately defined
Foster’s presumption of innocence; (j) failing to request or
ensure that the court gave a “mere presence” instruction to
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the jury; and (k) failing to move for a mistrial regarding any
of these errors.
[9-11] In determining whether trial counsel’s performance
was deficient, courts give counsel’s acts a strong presump-
tion of reasonableness.17 An appellate court will not judge an
ineffectiveness of counsel claim in hindsight.18 We must assess
trial counsel’s performance from counsel’s perspective when
counsel provided the assistance.19 When reviewing claims of
ineffective assistance, we will not second-guess trial counsel’s
reasonable strategic decisions.20
(a) Failure to Call Witnesses
In assessing postconviction claims that trial counsel was
ineffective in failing to call a particular witness, we have
upheld dismissal without an evidentiary hearing where the
motion did not include specific allegations regarding the tes-
timony which the witness would have given if called.21 The
record in this matter shows the State called 24 witnesses.
Foster did not testify or call any witnesses; he built his case
through cross-examination of the State’s witnesses.
Foster alleged that his trial counsel was deficient for failing
to interview or call potential witnesses. It appears that Foster’s
trial counsel made the strategic choice to focus on the State’s
witnesses and to not call any witnesses.
In his motion to the trial court, Foster named five specific
individuals that he believes should have been interviewed or
called to testify and gave a brief comment about each indi-
vidual. He alleges the following witnesses would have sup-
ported his defense: Kayiona Smith was present with Smith
17
See, State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018); State v.
Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014).
18
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
19
Id.
20
Id.
21
State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State v. Davlin,
277 Neb. 972, 766 N.W.2d 370 (2009).
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prior to the shootings, but did not make any incriminating
statements against Foster; Terrance Ammons, whose telephone
number was wrongly attributed to Foster at the time of the
incident; Brittany Lawson was Foster’s girlfriend and was with
him prior to the incident; Michelle Baker is Foster’s mother
and was present with him prior to the incident; and Tony
Mays is Foster’s stepfather and was present with him prior to
the shootings.
Our case law is clear that in a motion for postconviction
relief, a defendant is required to specifically allege what the
testimony of potential witnesses would have been if they had
been called at trial in order to avoid dismissal without an evi-
dentiary hearing.22 Absent specific allegations, a motion for
postconviction relief effectively becomes a discovery motion
to determine whether evidence favorable to a defendant’s posi-
tion actually exists.23 Foster’s vague descriptions of witness
testimony do not merit an evidentiary hearing, because they
fail to allege facts that, if proved, would constitute a violation
of his rights.
The jury heard from a number of eyewitnesses who pro-
vided their individual accounts of the shootings. Foster did not
explain how the testimony of the witnesses identified in his
motion would have affected the evidence that was already pre-
sented at trial. Foster failed to show a reasonable probability
that the outcome of trial would have been different had trial
counsel interviewed or called these witnesses to testify. This
claim of deficiency by trial counsel is without merit.
(b) Failure to Communicate
Acceptance of Plea Offer
Foster alleged that his trial counsel failed to communicate
his acceptance of the State’s plea offer before the offer expired
and that Foster would have received the benefits of “the plea
offer” but for his counsel’s error. The trial court determined
22
See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
23
See id.
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that Foster’s allegation did not merit a hearing, because he
failed to allege any details about the plea offer.
[12,13] The plea-bargaining process presents a critical stage
of a criminal prosecution to which the right to counsel applies.24
As a general rule, defense counsel has the duty to communi-
cate to the defendant all formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable
to the defendant.25 However, as the trial court determined,
because Foster did not allege the terms of the plea offer and its
benefits as compared to the outcome at trial, his allegations are
insufficient to merit a hearing. This claim of deficiency by trial
counsel is without merit.
(c) Failing to Provide Identifying
Characteristics of Other
Potential Shooters
Foster alleged that trial counsel failed to offer any identify-
ing characteristics of “other” shooters. It is true that several
witnesses provided the jury a physical description of Foster,
including several witnesses who testified that they saw Smith
enter the Legion with a man matching Foster’s description
(light skin, braids, and walked with a limp).
However, Foster was not the only potential shooter described
to the jury. There was evidence that “Don Don” and “Views”
could have been the shooter. Corey described “Don Don” as 5
feet 7 inches tall with a “brush cut,” darker skin, and a missing
eye, and as “real distinctive ’cause he can’t see out that eye.”
He described “Views” as 6 feet 1 inch or 6 feet 2 inches tall
with “medium length dreads” and “teeth [with] silver chrome
caps.” Thus, the record disproves Foster’s claim that the jury
was not made aware of the “identifying characteristics” of
other potential shooters. This claim is without merit.
24
Alfredson, supra note 17.
25
Id.
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(d) Failure to Provide
Alternative Theories
Foster alleged that trial counsel failed to present alterna-
tive theories for the motivation behind the shootings. Foster’s
motion includes a suggestion that Smith could have acted
alone because he disapproved of any relationship between his
family members and the victims.
As this court concluded on direct appeal, “[b]ased on the
evidence at trial, the jury could conclude that Foster committed
the shootings alone, that Smith committed the shootings alone,
that Smith and Foster committed the shootings together, or that
neither Foster nor Smith committed the shootings.”26 Foster’s
claim does not establish any prejudice, because the jury was
presented with these alternate theories. The jury weighed these
competing conclusions based on the evidence and determined
that Smith and Foster committed the shootings together. This
claim is without merit.
(e) Failure to Object to
State’s Comments
Foster alleged that trial counsel failed to object to question-
ing by the State, as well as comments made during closing
argument, which Foster suggests gave the jury the impres-
sion that the burden of proof had shifted to Foster to prove
his innocence.
[14] Contrary to Foster’s claims, the trial court instructed
the jury that “[t]he burden of proof is always on the State to
prove beyond a reasonable doubt all of the material elements
of the crime charged, and this burden never shifts.” The trial
court also instructed the jury that “[s]tatements, arguments, and
questions of the lawyers . . .” are not evidence. We found on
direct appeal that Foster had failed to establish the existence
of an unreliable verdict.27 Foster’s postconviction allegations
are too vague and conclusory to change this result. Absent
26
Foster, supra note 1, 286 Neb. at 844, 839 N.W.2d at 800.
27
See Foster, supra note 1.
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evidence to the contrary, it is presumed that a jury followed the
instructions given in arriving at its verdict.28 These claims are
without merit.
(f) Failure to Object to or Request
Limiting Instruction
Foster alleged that trial counsel failed to object every time
the court gave the jury a limiting instruction regarding impeach-
ment evidence during his cross-examinations. He also alleged
that trial counsel failed to request a limiting instruction for
each time the State impeached a witness with a prior inconsist­
ent statement. Foster alleged that this “inherently prejudiced”
his case.
Foster’s claims are conclusory and unavailing. He did
not identify the grounds on which trial counsel should have
objected, why asserting numerous objections while questioning
a witness would have been beneficial to his case, or what the
court’s ruling would have been had counsel objected. He also
did not specify the testimony he is referring to. His allegations
are therefore not sufficient to show how trial counsel’s treat-
ment of the court’s limiting instruction would have changed the
outcome of the trial. Foster did not make sufficient allegations
of deficient performance or prejudice for these claims.
(g) Failure to Preserve Error
Foster alleged that trial counsel failed to preserve error when
he “failed to object to evidence and testimony that would have
been potentially inadmissible in a separate trial.” Although
Foster did not specify which evidence trial counsel failed
to object to, and did not allege how such objections would
have changed the outcome of the trial, Foster appears to have
­reasserted his argument from direct appeal that he was preju-
diced by having his case jointly tried with Smith’s.
This court determined in Foster’s previous appeal that a
joint trial was appropriate because the charges against Smith
28
Cotton, supra note 17.
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and Foster stemmed from the same series of acts and would
be proved by similar evidence. We found that many of Smith’s
statements were offered to prove his state of mind rather than
the truth of the matter asserted, and therefore would have
been admissible against Foster in a separate trial. Although
we determined that Smith’s testimony from a prior case about
the fact that “gang members do carry guns and they do shoot
them” would have been inadmissible in a separate trial, we
determined that Smith’s testimony was not prejudicial, because
his statements were cumulative of other witness testimony.
Given that this issue was preserved and determined on direct
appeal, there is no indication of deficient performance by trial
counsel. This claim is without merit.
(h) Failure to Object to Impeaching
State’s Own Witness
Foster alleged that trial counsel failed to object when the
State improperly impeached its own witnesses. Foster did not
specify at what point during the trial this occurred. However,
he may be referring to the testimony of Martini Swift, Smith’s
cousin.
The record shows the State conducted witness preparation
with Martini leading up to trial. Martini was subpoenaed for
trial, but failed to appear and was taken into custody. When
she testified, she did not remain consistent with her prior state-
ments to police. Martini began her testimony stating that she
did “not really” remember the night of the shootings. She then
stated she witnessed Smith come into the Legion that night
and offered a courtroom identification of Smith. Martini then
denied being concerned about why Smith was at the bar that
night, and stated she did not know how long he stayed at the
bar. She denied seeing someone else enter the bar with Smith.
The State then impeached Martini with her statement to police
that she observed Smith walk into the Legion with a “light-
skinned boy with braids who was wearing a gray hoodie.”
Contrary to Foster’s allegation, the record shows Foster’s trial
counsel did object on improper impeachment grounds and was
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granted a continuing objection throughout Martini’s testimony.
The trial court overruled the objection, finding that Martini was
a hostile witness under Neb. Rev. Stat. § 27-611 (Reissue 2016)
and that the testimony was permissible as long as the ques-
tions were confined to Martini’s prior statements in a police
report, rather than Martini’s conversations with the prosecutor.
The record thus disproves Foster’s claim that his trial coun-
sel was deficient for failing to raise an objection. This claim
of ineffective assistance of trial counsel is without merit.
(i) Jury Instruction No. 9
Foster contends that his counsel was ineffective for failing to
object to jury instruction No. 9, which stated: “The Defendant
is presumed to be innocent. This presumption of innocence is
evidence in favor of the Defendant and continues throughout
the trial, until he shall have been proved guilty beyond a rea-
sonable doubt.”
Foster asserts that the final clause of the instruction created
an inevitability that the jury “shall” find him guilty, contrary
to the presumption of innocence. Foster alleges the instruction
failed to conform to NJI2d Crim. 9.2, which states, in relevant
part: “The defendant has pleaded not guilty. [The defendant]
is presumed to be innocent. That means you must find [the
defendant] not guilty unless and until you decide that the state
has proved [the defendant] guilty beyond a reasonable doubt.”
(Emphasis supplied.)
The trial court overruled Foster’s objection raised in his
postconviction motion to instruction No. 9 and stated the lan-
guage was proper and not prejudicial under State v. Henry.29
[15,16] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.30 All the jury
instructions must be read together, and if, taken as a whole,
29
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
30
State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
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they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.31
We conclude that the court did not err in giving instruc-
tion No. 9. It is not error for a trial court to refuse to give a
defendant’s requested instruction where the substance of the
requested instruction was covered in the instructions given.32
Here, the substance of NJI2d Crim. 9.2 regarding a criminal
defendants’ presumption of innocence was covered in instruc-
tion No. 9. In State v. Duncan,33 we approved of the district
court’s use of a preliminary and final jury instruction identical
to the instruction used in this case and found such presumption-
of-innocence instruction was an accurate statement of the law.
Furthermore, in Henry,34 we found that a criminal defendant’s
challenge to a jury instruction fashioned from NJI2d Crim. 9.2
was meritless. Henry is instructive here, because, even though
the instruction in Henry included the phrase “‘unless and
until,’” the challenge was limited to the words “‘and until,’”35
similar to Foster’s claim in this case. In considering the propri-
ety of the instruction given, we applied well-established princi-
ples of law regarding jury instructions and found the instruction
correctly stated the law regarding the presumption of inno-
cence, adequately covered the issue, and was not misleading.
Our precedent on this issue of law is controlling. Foster’s alle-
gations regarding jury instruction No. 9 lack merit.
(j) “Mere Presence” Instruction
Foster alleged that trial counsel failed to request a “mere
presence” jury instruction. Foster cannot claim his counsel was
deficient by failing to request a “mere presence” instruction,
31
Id.
32
State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001); State v. Hernandez,
242 Neb. 78, 493 N.W.2d 181 (1992).
33
State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
34
Henry, supra note 29.
35
Id. at 853, 875 N.W.2d at 391.
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because the State’s theory of the case was that Foster was the
shooter and that Smith aided and abetted Foster. The jury was
presented with evidence that Foster was directly involved in
the shootings, and not “merely present.” Therefore, even if the
instruction had been requested, the “mere presence” instruction
would not likely have been given, because the evidence did
not support the giving of the instruction. This claim is with-
out merit.
(k) Request of Mistrial
[17,18] Foster contends that trial counsel’s failure to seek
a mistrial for any of the deficiencies just addressed was itself
deficient and prejudicial. A motion for mistrial is properly
granted in a criminal case where an event occurs during the
course of trial that is of such a nature that its damaging effect
cannot be removed by proper admonition or instruction to the
jury and thus prevents a fair trial.36 A defendant must prove
that an alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice, in order for a motion
for mistrial to be properly granted.37
We found no error warranting a mistrial and no deficien-
cies in the performance of trial counsel in failing to seek a
mistrial. As a result, we reject the claim that counsel was defi-
cient in failing to request a mistrial. Having discussed each of
Foster’s postconviction claims with respect to the performance
of trial counsel, we determine that Foster’s first argument
fails to allege a meritorious postconviction claim and that the
trial court did not err in declining to grant Foster an eviden-
tiary hearing.
2. Ineffective Assistance
of A ppellate Counsel
Foster contends that his appellate counsel was ineffective for
failing to raise on direct appeal (a) that the trial court overruled
36
McCurry, supra note 30.
37
Id.
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his motion to sever; (b) that the trial court erred when it gave
a limiting instruction each time Foster impeached a witness
with prior inconsistent statements, but failed to give the same
limiting instruction whenever the State impeached a witness
with prior inconsistent statements; (c) that the trial court erred
by allowing the State to impeach its own witness; (d) that the
trial court erred by allowing the State to improperly shift the
burden of proof to Foster when the State examined witnesses
about Foster’s lack of testing the physical evidence and when
the State made improper comments suggesting Foster failed to
bring forth sufficient evidence to prove his innocence during
closing arguments; (e) that the trial court improperly instructed
the jury on instruction No. 9; and (f) that the trial court did not
instruct the jury on “mere presence.”
[19,20] When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on appeal of
ineffective assistance of trial counsel (a layered claim of inef-
fective assistance of counsel), an appellate court will look at
whether trial counsel was ineffective under the Strickland 38
test.39 If trial counsel was not ineffective, then the defendant
was not prejudiced by appellate counsel’s failure to raise the
issue.40 Much like claims of ineffective assistance of trial coun-
sel, the defendant must show that but for counsel’s failure to
raise the claim, there is a reasonable probability that the out-
come would have been different.41
(a) Failure to Sever
In regard to the trial court’s failure to sever Foster’s case
from Smith’s, that issue was raised by appellate counsel on
direct appeal and we found that the trial court did not err in
failing to sever the trials. This claim is without merit.
38
Strickland, supra note 12.
39
State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
40
Id.
41
Id.
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(b) Limiting Instruction
Foster claims that the trial court gave a limiting instruc-
tion each and every time he impeached a witness with prior
inconsistent statements, but failed to give the same limiting
instruction whenever the State impeached a witness with prior
inconsistent statements. Having already determined above that
Foster failed to show that his trial counsel’s performance was
deficient with respect to this issue, appellate counsel’s failure
to raise the issue on appeal was also not deficient. This claim
is without merit.
(c) Impeaching State’s
Own Witnesses
Foster alleged ineffective assistance of appellate counsel
for failing to raise on direct appeal that the trial court erred by
allowing the State to impeach its own witnesses. Again, Foster
did not sufficiently plead this claim. He did not identify the
witness’ testimony that the trial court should have excluded,
and therefore his allegations are insufficient to show ineffec-
tive assistance of appellate counsel for failing to include this
issue on direct appeal. As discussed above, however, Foster is
likely referring to the testimony of Martini.
Martini denied that anyone entered the bar with Smith, and
the State impeached Martini with her prior statement that she
observed Smith enter the bar with “a light-skinned boy with
braids who was wearing a gray hoodie.” Although Foster’s
trial counsel objected to the State’s impeachment methods at
trial, Foster’s appellate counsel did not assign as error on direct
appeal the trial court’s decision to overrule the objection.
[21,22] Generally, the credibility of a witness may be
attacked by any party, including the party who called the
witness.42 However, “‘a party may not use a prior inconsist­
ent statement of a witness under the guise of impeachment
for the primary purpose of placing before the jury substantive
42
Neb. Rev. Stat. § 27-607 (Reissue 2016); State v. Dominguez, 290 Neb.
477, 860 N.W.2d 732 (2015).
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evidence which is not otherwise admissible.’”43 In State v.
Dominguez,44 we articulated that the scope of § 27-607 is lim-
ited where a party knows or should know that its witness will
not testify consistent with the witness’ prior statement and uti-
lizes impeachment as “‘“mere subterfuge.”’”
Martini initially established facts relevant to the prosecution
without any reference to her prior statement. She placed Smith
at the bar on the night of the shootings and identified Smith
in court. When Martini failed to admit that Foster was with
Smith at the Legion, this created a credibility issue concern-
ing Martini’s memory. The State then impeached Martini with
her prior statement that Smith walked into the Legion with a
person who matched the description of Foster. The prosecutor
stated in her offer of proof, that “when I called her today, I had
information that I believed based upon what she had expressed
to me before, she would testify to today and she’s not doing
so. So the State did not call her with the intention of impeach-
ing her.”
Foster’s postconviction allegations fail to establish that the
State knew Martini would provide inconsistent testimony, that
the State called Martini for the primary purpose of placing her
prior statement before the jury, or that Martini’s prior statement
was otherwise inadmissible. Rather, the evidence suggests the
prosecution called Martini because she saw Smith and Foster
at the Legion on the night of the shootings. The evidence was
not prejudicial, because it was cumulative of other testimony
that Smith was with Foster at the Legion prior to the shootings.
This claim is without merit.
(d) Prosecutorial Misconduct
Foster alleged ineffective assistance of appellate counsel for
failing to raise on direct appeal that the trial court erred “by
43
Dominguez, supra note 42, 290 Neb. at 490, 860 N.W.2d at 745, quoting
State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993) (emphasis supplied).
44
Id. at 491, 860 N.W.2d at 746, quoting 4 Michael H. Graham, Handbook
of Federal Evidence § 607:3 (7th ed. 2012).
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allowing the State to improperly shift the burden of proof” to
Foster on two instances: (1) when the State examined witnesses
about Foster’s lack of testing the physical evidence and (2)
when the State made “improper comments suggesting [Foster]
failed to bring forth sufficient evidence to prove his innocence”
during closing arguments. Foster did not sufficiently allege this
claim. Foster did not identify the witnesses and their testimony
or the improper comments that the trial court should have
excluded or corrected, and therefore, his allegations are insuf-
ficient to show ineffective assistance of appellate counsel for
failing to include these issues on direct appeal.
There is not a reasonable probability that inclusion of this
issue would have changed the result of the appeal. As dis-
cussed above, the trial court instructed the jury that the burden
was on the State to prove Foster guilty beyond a reasonable
doubt, and that “[s]tatements, arguments, and questions of the
lawyers . . .” are not evidence. There is no indication that the
jury did not follow these instructions. Foster’s claims are with-
out merit.
(e) Jury Instruction No. 9
Foster alleged ineffective assistance of appellate counsel for
failing to raise on direct appeal that jury instruction No. 9 was
improper. We discussed the merits of this issue above. Foster
cannot show a reasonable probability that inclusion of this
issue on direct appeal would have changed the result of that
appeal. This claim is without merit.
(f) Jury Instruction on
“Mere Presence”
Foster alleged ineffective assistance of appellate counsel
for failing to raise on direct appeal that the trial court failed
to instruct the jury on “mere presence.” We discussed the
merits of this issue above. Foster cannot show a reasonable
probability that inclusion of this issue on direct appeal would
have changed the result of that appeal. This claim is with-
out merit.
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(g) Denial of Evidentiary Hearing
Foster’s final argument is that the court abused its discre-
tion in denying an evidentiary hearing under § 29-3001 and
that his postconviction counsel failed to object to the court’s
denial of an evidentiary hearing. Additionally, Foster alleges
that he was in the wrong place at the time, that there was no
physical proof that he was the one who committed the crime,
and that his trial counsel failed to call witnesses to show what
actually occurred.
As has been demonstrated above, our inquiry is focused on
whether Foster has made a sufficient showing under Strickland
that his counsel’s performance was deficient and that he suf-
fered prejudice as a result.
Assuming that postconviction counsel failed to object to the
court’s denial of an evidentiary hearing, there is no indication
that the counsel’s failure to lodge the objection had any impact
on the case. After the district court entered the order dismissing
the matter, Foster filed his own motion for reconsideration and
had an opportunity to raise his claims and have them reviewed
by the district court. As a result, Foster cannot show prejudice
by his counsel’s failure to object to the dismissal.
In regard to Foster’s claim that there was no physical proof
he was the one who committed the crime and that he was in
the wrong place at the wrong time, these claims lack the speci-
ficity required to meet his burden and establish meritorious
entitlement to a hearing under § 29-3001. We therefore affirm
the denial of an evidentiary hearing on Foster’s motion for
postconviction relief.
V. CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying Foster’s motion for postconviction relief with-
out an evidentiary hearing.
A ffirmed.
Heavican, C.J., not participating.