State v. Custer , 298 Neb. 279 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. CUSTER
Cite as 298 Neb. 279
State of Nebraska, appellee, v.
Jason William Custer, appellant.
___ N.W.2d ___
Filed December 1, 2017. No. S-16-1196.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Proof: Appeal and Error. A defendant requesting
postconviction relief must establish the basis for such relief, and the
findings of the district court will not be disturbed unless they are
clearly erroneous.
3. Postconviction: Constitutional Law. Postconviction relief is available
to a prisoner in custody under sentence who seeks to be released on the
ground that there was a denial or infringement of his or her constitu-
tional rights such that the judgment was void or voidable.
4. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
5. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), the defendant must show that his or her counsel’s per­
formance was deficient and that this deficient performance actually
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STATE v. CUSTER
Cite as 298 Neb. 279
prejudiced the defendant’s defense. To show prejudice under the preju-
dice component of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s deficient per-
formance, the result of the proceeding would have been different. A rea-
sonable probability does not require that it be more likely than not that
the deficient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine confidence in
the outcome.
7. Rules of the Supreme Court: Trial: Attorneys at Law. The Nebraska
Rules of Professional Conduct set forth that a lawyer shall not, in trial,
state a personal opinion as to the credibility of a witness or the guilt or
innocence of an accused.
8. Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on
reasonably drawn inferences from the evidence, the prosecutor is per-
mitted to present a spirited summation that a defense theory is illogical
or unsupported by the evidence and to highlight the relative believability
of witnesses for the State and the defense.
9. ____: ____. In cases where a prosecutor comments on the theory of
defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor
crosses the line into misconduct only if the prosecutor’s comments are
expressions of the prosecutor’s personal beliefs rather than a summation
of the evidence.
10. Trial: Prosecuting Attorneys: Appeal and Error. In assessing whether
a prosecutor’s statements were misconduct, an appellate court looks
at the entire context of the language used to determine whether the
prosecutor was expressing a personal opinion or merely submitting to
the jury a conclusion that the prosecutor is arguing can be drawn from
the evidence.
11. Postconviction: Appeal and Error. An appellate court will not consider
as an assignment of error a question not presented to the district court
for disposition through a defendant’s motion for postconviction relief.
12. Postconviction: Right to Counsel. There is no federal or state constitu-
tional right to an attorney in state postconviction proceedings.
13. ____: ____. Under the Nebraska Postconviction Act, it is within the
discretion of the trial court as to whether counsel shall be appointed to
represent the defendant.
14. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. Where the assigned errors in the postconviction petition before
the district court are either procedurally barred or without merit, estab-
lishing that the postconviction action contained no justiciable issue of
law or fact, it is not an abuse of discretion to fail to appoint appellate
counsel for an indigent defendant.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE v. CUSTER
Cite as 298 Neb. 279
Appeal from the District Court for Cheyenne County: Derek
C. Weimer, Judge. Affirmed.
Jason William Custer, pro se.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
Jason William Custer appeals from the district court’s
denial, without an evidentiary hearing, of his motion for post-
conviction relief. Custer proceeds pro se in his postconviction
motion. We affirm.
II. BACKGROUND
The facts of this case can be found in this court’s opinion
on direct appeal, State v. Custer.1 The following facts from the
direct appeal opinion are pertinent to our decision on Custer’s
postconviction motion.
On or around October 20, 2012, [Adam] McCormick
came to the apartment where Custer and [Billy] Fields
were staying to collect the money [that Custer owed
McCormick]. After Custer told McCormick he would
pay him from his next check, Fields, who was upset
that McCormick had come to confront Custer, told
McCormick that he would pay McCormick by the end of
the week. In the following days, McCormick exchanged
threatening text messages and telephone calls with Custer
and Fields.
On or about October 26, 2012, . . . McCormick con-
fronted [Custer and Fields], demanding his money. Fields
testified that when McCormick approached them, it
1
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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Cite as 298 Neb. 279
looked like McCormick was reaching into his pocket
for something, and that Fields thought it was a knife
that he knew McCormick carried. Custer and Fields told
McCormick they could not repay the $150 at that time,
but in order to calm McCormick, Fields paid him $40 for
another debt he owed. . . .
A few days later, on November 1, 2012, McCormick
sent Fields text messages threatening physical violence if
the debt was not repaid soon. The text messages prompted
Custer to arrange with McCormick to meet in a park for
a fight. Custer and Fields went to the park at the arranged
time. McCormick did not show up, but he continued to
exchange confrontational text messages and telephone
calls with Custer and Fields.
....
The next night, November 2, 2012, [McCormick was
at a gathering at Syrus Leal’s house]. . . . Throughout the
evening, [Fields’ girlfriend] updated Custer and Fields
through text messages and telephone calls regarding
McCormick’s activities and whereabouts. Around 11:20
p.m., Custer responded . . . with a text message stating
that he and Fields were coming over to handle matters
with McCormick.
. . . Around 11:35 p.m., Custer asked McCormick [via
text] whether they could “FINISH THIS RIGHT NOW
ONE ON ONE.” McCormick responded in the affirma-
tive . . . .
Shortly after midnight on November 3, 2012, [Custer
learned that] McCormick was leaving the gathering at
Leal’s house. Custer borrowed Fields’ truck to drive to
Leal’s house. . . . Thereafter, an incident ensued in which
Custer shot McCormick twice.2
Following the shooting, Custer was charged with first
degree murder, a Class IA felony; use of a firearm to commit
2
Id. at 92-94, 871 N.W.2d at 250-52.
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a felony, a Class IC felony; and possession of a firearm by a
prohibited person, a Class ID felony. On January 31, 2014, the
jury found Custer guilty on all three counts. The court sen-
tenced Custer to life imprisonment for first degree murder, to
20 to 50 years’ imprisonment for use of a firearm to commit a
felony, and to 10 to 20 years’ imprisonment for being a felon
in possession of a firearm. The court ordered that the sen-
tences be served consecutively. Custer appealed his convic-
tions and sentences. This court affirmed Custer’s convictions
and affirmed his sentences as modified.3
On May 10, 2016, Custer filed a motion for postconvic-
tion relief, a motion for permission to proceed in forma pau-
peris, and a motion for appointment of counsel. The State
filed a motion to dismiss Custer’s motion for postconvic-
tion relief without conducting an evidentiary hearing, and
on November 22, 2016, the district court overruled Custer’s
motion for postconviction relief without an evidentiary hear-
ing. Custer appeals.
III. ASSIGNMENTS OF ERROR
Custer assigns, restated, that the district court erred in
denying his motion for postconviction relief, because counsel
was ineffective when counsel (1) “illicited testimony from
Dr. Peter Schilke on information that was not in evidence
[and] information that he was not the originating expert on”;
(2) “insisted that a key state witness was testifying falsely to
information supported by the record and critical to [Custer’s]
self-defense defense”; (3) cross-examined a patrol officer; (4)
“failed to call rebuttal witness, a fellow law partner, Kelly
Breen, to the stand”; (5) “failed to object at critical junctures
throughout the entirety of the trial”; and (6) failed to ensure
that “the court provided proper jury instructions, or a proper
verdict form to all jurors, and omitted critical instruction on
self-defense, assault, terroristic threats and other omissions.”
3
See State v. Custer, supra note 1.
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Custer also assigns that the district court erred in denying his
motion for appointment of counsel.
IV. STANDARD OF REVIEW
[1,2] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief.4
A defendant requesting postconviction relief must establish the
basis for such relief, and the findings of the district court will
not be disturbed unless they are clearly erroneous.5
V. ANALYSIS
On appeal, Custer argues that his trial counsel was inef-
fective in various particulars and that the district court erred
in denying his motion for postconviction relief without a
hearing.
[3-5] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.6
Thus, in a motion for postconviction relief, the defendant must
allege facts which, if proved, constitute a denial or violation
of his or her rights under the U.S. or Nebraska Constitution,
causing the judgment against the defendant to be void or
voidable.7 If a postconviction motion alleges only conclusions
of fact or law, or if the records and files in the case affirma-
tively show that the defendant is entitled to no relief, the court
is not required to grant an evidentiary hearing.8
4
State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017).
5
State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).
6
Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).
7
State v. Starks, supra note 5.
8
State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
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1. Ineffective Assistance
of Counsel
[6] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,9 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense.10 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.11 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.12
(a) Testimony From
Dr. Peter Schilke
Custer argues that the district court erred in denying an
evidentiary hearing on the ground that counsel rendered inef-
fective assistance when cross-examining Dr. Peter Schilke.
Schilke was a witness for the State and a pathologist. Schilke
performed McCormick’s autopsy, during which he obtained
fluids for a toxicology panel. Those samples were sent to a
toxicologist for testing.
Custer takes issue with the following question posed by
counsel during cross-examination of Schilke:
Q. . . . [I]n [the toxicologist’s] findings, he said that
blood levels of 200 ng to 600 ng had been reported
in methamphetamine abusers who exhibited violent and
irrational behavior. Now I realize [McCormick’s] level
9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
10
State v. Watson, supra note 4.
11
Id.
12
Id.
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wasn’t as high as 200 to 600 but what I guess I am asking
you is it, in your experience that methamphetamine users
can exhibit violent and irrational behavior?
A. Sure, that has been reported.
Custer argues that counsel erred in drawing the jury’s attention
to the fact that the level of methamphetamine in McCormick’s
system was lower than levels that had reportedly caused “vio-
lent and irrational behavior.”
Custer relied on a theory of self-defense at trial. The testi-
mony elicited by counsel demonstrated that McCormick had
levels of methamphetamine in his system. Schilke’s testimony
supported the conclusion that levels did not have to be as
high as “200 ng to 600 ng” in order to cause “methamphet-
amine users [to] exhibit violent and irrational behavior.” That
McCormick could have been violent and irrational despite
the relatively low level of methamphetamine in his system
was entirely consistent with, and helpful to, Custer’s claim of
self-defense.
We agree with the district court that counsel’s performance
was not deficient and therefore find no merit to this assignment
of error.
(b) Cross-Examination
of Billy Fields
Custer argues that counsel was ineffective in advising him
to discredit Billy Fields’ testimony, which Custer claims ulti-
mately led Custer to change Custer’s testimony.
Custer testified that a few days before the shooting,
McCormick came to an apartment in which Custer was staying
and demanded that Custer repay the money that McCormick
had loaned him. Custer testified that during this exchange,
neither he nor McCormick threatened each other with a knife.
At trial, however, Fields testified on cross-examination that
while Fields did not see anything, Custer told him after the
exchange that “he had pulled a knife on [McCormick] and that
[McCormick] had pulled one back.” On cross-examination,
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Cite as 298 Neb. 279
Fields initially claimed that he had explained this account in
his deposition, but when pressed by Custer’s counsel, Fields
was unable to find this testimony in the transcript of that
deposition. Counsel then asked Fields: “[I]t’s safe to say the
first time you ever said that was yesterday in court, correct?”
Fields agreed. But on redirect, the State presented Fields with
his deposition and requested that he read certain lines the
State had identified in which Fields had stated that Custer
and McCormick pulled knives on each other. In addition,
Custer’s testimony at trial of the same incident contradicted
Fields’ testimony.
Assuming that counsel was ineffective in his attempt to
attack Fields’ credibility, Custer has not shown that he was
prejudiced. The incident in which McCormick allegedly pulled
a knife on Custer occurred several days before the shooting
and did not provide a basis for the jury to find, as Custer
contends, that Custer feared for his life at the time of the
shooting. Indeed, evidence at trial showed that Custer and
McCormick had exchanged threats the night of the shooting,
at which point Custer drove over to Syrus Leal’s house, where
he knew McCormick was, to confront McCormick. Therefore,
even if counsel was deficient in this line of questioning,
Custer has not shown that he was prejudiced by counsel’s per-
formance. There is no merit to Custer’s assertion that counsel
was ineffective.
(c) Cross-Examination of
Officer James Bush
Custer argues that counsel was ineffective for failing to
“highlight” critical facts on the cross-examination of Officer
James Bush about the collection of guns and drug parapherna-
lia found at Leal’s house.13 Custer contends that “[c]ritical to
[his] self-defense claim was a general knowledge as to [Leal’s]
being an armed ex-felon” and that counsel “squandered an
13
Brief for appellant at 18.
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opportunity to show the seriousness of the envir[on]ment at
[Leal’s] house.” Custer also argues that Leal could have given
McCormick a weapon at the time of the incident which resulted
in McCormick’s death.
Bush, the State’s witness, was a patrol officer for the city of
Sidney, Nebraska. Bush testified that exhibits 86 through 90
contained photographs of the firearms and drug paraphernalia
found in Leal’s house. Bush further testified that “the firearms
were located in the southwest bedroom closet.” In addition,
Fields also testified that there were at least four weapons at
Leal’s house. Custer testified in his defense, but did not men-
tion in his testimony any concern he had about the weapons in
Leal’s house at the time of the shooting.
We find Custer’s allegation to be without merit. Custer’s
motion does not explain what he believes counsel should have
done to further emphasize this evidence. As such, Custer has
failed to allege sufficient facts to support his allegation. We
further note that because Bush and other witnesses testified
about the weaponry found at Leal’s house, the jury was aware
of that fact.
Assuming that Custer has made sufficient allegations to pre-
serve his claim of ineffective assistance of counsel as to this
issue, we still find no prejudice in counsel’s handling of this
issue. There is no merit to this assignment of error.
(d) Failure to Call
Breen as Witness
Custer contends that his counsel was ineffective for failing to
call Breen, a lawyer from the Commission on Public Advocacy
who was first appointed as Custer’s counsel, because Breen
“had been told the entire version of . . . Custer’s side of the
incidents leading up to the shooting death of . . . McCormick,
within only a few days of the shooting” in order “to confirm
the version of events as told by [Custer] at trial.”14 Custer
14
Id. at 19.
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argues that Breen could have testified that Custer “maintained
from the beginning that he acted in self-defense” and that
Custer “testified differently at the behest of” counsel due to
“improper legal advice.”15
Fields testified on direct examination that Custer had told
him shortly after the shooting that McCormick “had come
running at [Custer] with something in his hand,” so Custer
shot at him. Fields testified again on direct examination that
Custer told him that McCormick “had rushed [Custer] and that
[McCormick] had something in his hand.”
Custer has not identified how Breen’s testimony of Custer’s
account following the shooting and immediately prior to trial
would have differed from the account that Custer relayed to
Fields shortly after the shooting and prior to trial. Custer has
only alleged that Breen would “underscore” that Custer “testi-
fied [at trial] differently at the behest of his unethical lawyer
. . . whom [sic] gave him improper legal advice.”16 Custer has
not alleged what Breen would testify to in support of Custer’s
claim that he changed his testimony due to counsel’s “improper
legal advice.” Custer alleged only mere conclusions of law
and has not alleged sufficient facts to support his allegation of
ineffective assistance of counsel. There is no merit to Custer’s
arguments on appeal.
(e) Failure to Object
Custer argues that counsel was ineffective for failing to
object to (1) a statement made by the prosecutor in closing
argument that Custer could “accurately testify in relation to
the evidence . . . because he had had 15 months to review the
evidence, discovery, and hear all the testimony given in the
case”;17 (2) an analogy made by the prosecutor in closing state-
ments; (3) “badgering the witness about someone else yelling
15
Id. at 20.
16
Id.
17
Id. at 22.
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during the shooting”;18 (4) an inquiry made by the State into
Custer’s criminal history during direct examination of Fields;
and (5) testimony from Fields that Custer was not scared of
McCormick. The district court held that counsel’s failure to
object in each of these instances was not deficient and that
Custer had not shown he was prejudiced.
First, Custer contends that the prosecutor’s statements in
closing arguments were improper when the prosecutor stated
that Custer could “accurately testify in relation to the evidence
. . . because he had had 15 months to review the evidence.”19
We have already addressed this allegation in our opinion in
Custer’s direct appeal.20 We held that
the State’s comments [made during closing arguments
referencing the prosecutor’s statements] regarding the
amount of time [Custer] had to prepare his testimony for
trial and the State’s comments highlighting [Custer’s]
failure to report the shooting and McCormick’s alleged
aggressive actions to the police . . . were not improper
and did not constitute prosecutorial misconduct.21
We will not revisit the matter here.22 There is no merit to
this assertion.
Custer next contends that counsel was ineffective for fail-
ing to object to the prosecutor’s closing argument when the
prosecutor relied on an analogy that Custer’s account of the
circumstances surrounding the shooting were a “lie” and a
“fantasy,” much like the story about Santa Claus that he told
his son at Christmas. In order for his son to believe in Santa
Claus, the prosecutor explained, his son would have to “ignore
the evidence.” The prosecutor then stated that Custer’s account
18
Id. at 24.
19
See id. at 22.
20
State v. Custer, supra note 1.
21
Id. at 107, 871 N.W.2d at 259.
22
See Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004).
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“doesn’t comport with reality. He is asking you to ignore the
evidence. It does not fit common sense.” Custer contends that
the analogy was “religiously infused,” thus “playing to the pas-
sions and prejudices of the jury.”
[7-10] The Nebraska Rules of Professional Conduct set forth
that a lawyer shall not, in trial, “state a personal opinion as to
the . . . credibility of a witness . . . or the guilt or innocence
of an accused.”23 But we have explained that “when a pros-
ecutor’s comments rest on reasonably drawn inferences from
the evidence, the prosecutor is permitted to present a spirited
summation that a defense theory is illogical or unsupported by
the evidence and to highlight the relative believability of wit-
nesses for the State and the defense.”24 Thus, in cases where a
prosecutor comments on the theory of defense, the defendant’s
veracity, or the defendant’s guilt, the prosecutor crosses the
line into misconduct only if the prosecutor’s comments are
expressions of the prosecutor’s personal beliefs rather than a
summation of the evidence.25 In assessing whether a prosecu-
tor’s statements were misconduct, we “look[] at the entire con-
text of the language used to determine whether the prosecutor
was expressing a personal opinion or merely submitting to the
jury a conclusion that the prosecutor is arguing can be drawn
from the evidence.”26
Custer mischaracterizes the prosecutor’s analogy. The pros-
ecutor’s statements were not “religiously infused.” Instead,
looking at the entire context of the language, the statement
to which Custer takes issue established an inference that the
jury would have to “ignore the evidence” to believe Custer’s
account. Thus, the prosecutor was arguing that a conclusion
could be drawn from the evidence that Custer lied in his
23
Neb. Ct. R. of Prof. Cond. § 3-503.4(e).
24
State v. Gonzales, 294 Neb. 627, 645, 884 N.W.2d 102, 117 (2016).
25
State v. Gonzales, supra note 24.
26
Id. at 647, 884 N.W.2d at 118.
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testimony. Because the prosecutor’s analogy was not an expres-
sion of a personal opinion in support of religion, or an effort
to inflame the jurors’ prejudices or excite their passions against
the accused, we find no error in the prosecutor’s comments.
[11] Custer next argues that counsel was ineffective for
failing to object to questioning about “someone else yell-
ing during the shooting, which wasn’t in evidence.”27 Custer
argued this assertion in his brief, but did not allege this in his
motion for postconviction relief. An appellate court will not
consider as an assignment of error a question not presented to
the district court for disposition through a defendant’s motion
for postconviction relief.28 Therefore, we do not consider
this allegation.
Custer also contends that counsel was ineffective for failing
to object to questions during the direct examination of Fields
about Custer’s prior criminal record and status as a felon.
Custer contends that counsel should have invoked Neb. Rev.
Stat. § 27-609 (Reissue 2016), which deals with the impeach-
ment by evidence of a conviction for a crime. Custer takes
issue with the following question counsel directed at Fields
on direct examination: “Q: [Custer] also is a felon, is that cor-
rect? [Fields]: Yes.” While not cited by Custer, counsel then
proceeded to ask:
Q: And where has he done some time? State or —
[Fields]: State jail.
Q: State and county jail?
A: Yeah.
....
Q: Okay, and in fairness to him, I mean there is nothing
similar to these charges?
A: No.
Q: It was theft or those types of things?
A: That stuff, yes.
27
Brief for appellant at 24.
28
State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
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Section 27-609(1) provides for the impeachment of a wit-
ness on cross-examination when the witness has committed
a felony or a crime of dishonesty.29 After the conviction is
established, “‘the inquiry must end there, and it is improper to
inquire into the nature of the crime, the details of the offense,
or the time spent in prison as a result thereof.’”30
Counsel’s conduct was not deficient. Having reviewed the
record, it is apparent that the purpose of this line of question-
ing was to emphasize that Custer’s prior criminal record was
nonviolent. Given that Custer was charged in this case with
first degree murder, it was not deficient for counsel to empha-
size that while Custer might have a criminal record, the prior
charges for which he was convicted were not violent crimes.
And even if counsel was deficient in questioning Fields
about Custer’s prior criminal record and status as a felon,
Custer’s claim fails for lack of prejudice. On direct exami-
nation, Custer also testified that he had been convicted of a
felony and listed the felonies on his criminal record. There is
no merit to this allegation of ineffective assistance of counsel.
In addition, Custer contends that counsel was ineffective
for failing to object to an answer made by Fields, which
Custer contends was hearsay. Custer takes issue with the fol-
lowing inquiry in the State’s direct examination of Fields:
“Q: How about, to your knowledge did [Custer] ever indicate
that he was scared of [McCormick] to you? [Fields]: No.
Q: He didn’t indicate that [to] you? A: No.” Custer claims that
counsel should have objected to Fields’ answer as hearsay,
because Fields “is unqualified to know the thoughts and fears
of [Custer].”31
Custer mischaracterizes the above line of inquiry. The State
asked whether Custer had indicated to Fields that he was
29
See State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014).
30
Id. at 388, 855 N.W.2d at 22, quoting State v. Johnson, 226 Neb. 618, 413
N.W.2d 897 (1987).
31
Brief for appellant at 25.
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scared of McCormick. A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding
that he has personal knowledge of the matter.32 The question
concerns whether Custer had indicated anything to Fields. This
is a fact within Fields’ personal knowledge of the matter and,
as such, was admissible.33 Counsel was not deficient for failing
to object.
There is no merit to this assignment of error.
(f) Jury Instructions
Custer argues that counsel was ineffective for (1) failing to
submit a proper jury instruction on self-defense in accordance
with State v. Miller34 and NJI2d Crim. 7.3; (2) failing to pro-
vide a “self-defense option on jury verdict form, and only 1
jury verdict form was sent to the jury room, which prevented
multiple jurors from seeing the jury form and understanding it
completely”;35 (3) failing to identify manslaughter as voluntary
manslaughter in jury instructions Nos. 4 and 5; (4) using the
wrong definition of “premeditation” in jury instruction No. 7;
(5) failing to include jury instruction No. 10, “Self Defense
(Deadly Force),” as part of jury instruction No. 3, “Reasonable
Doubt”; and (6) failing to object to jury instruction No. 14,
because it “is confusing.”36
We find that the jury was instructed on Custer’s claim of
self-defense. Jury instruction No. 4 states, under the elements
of first degree murder, “[t]hat the Defendant did not do so in
self-defense.” Similarly, this phrase is also listed under the ele-
ments of second degree murder and manslaughter.
The language of jury instruction No. 10 comes directly from
NJI2d Crim. 7.3. Custer contends that the language is improper
32
Neb. Rev. Stat. § 27-602 (Reissue 2016).
33
See id.
34
State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).
35
Brief for appellant at 26.
36
Id. at 29.
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in light of State v. Miller.37 But Custer fails to allege how the
instruction should have read in order for it to be “proper.”
Therefore, we find that the above jury instruction properly
instructed the jury on self-defense.
Second, we find that “a self-defense option” was clearly
explained in the jury instructions. As we stated, jury instruc-
tion No. 10 defines self-defense under the circumstances of
this case. Jury instruction No. 4 further states that the jury
must find Custer not guilty of count I if “you find the State has
failed to prove beyond a reasonable doubt any one or more of
the elements.” Because “[t]hat the Defendant did not do so in
self-defense” was one of the elements of first degree murder,
second degree murder, and manslaughter, it necessarily follows
that if the jury found the State had not proved that element, the
jury would have to find Custer not guilty of both counts I and
II. Therefore, the jury instructions provided adequate explana-
tion and opportunity for the jury to find that Custer acted in
self-defense.
We do not consider the remainder of Custer’s allegations on
appeal, because they were not alleged in his motion for post-
conviction relief.
There is no merit to this assignment of error.
2. A ppointment of Counsel
Finally, Custer contends that the district court erred in deny-
ing him appointment of counsel because the “instant action” is
a “‘critical stage of a criminal prosecution.’”38
[12-14] There is no federal or state constitutional right to
an attorney in state postconviction proceedings.39 Under the
Nebraska Postconviction Act, it is within the discretion of
the trial court as to whether counsel shall be appointed to
37
State v. Miller, supra note 34.
38
Brief for appellant at 10.
39
State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
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represent the defendant.40 Where the assigned errors in the
postconviction petition before the district court are either
procedurally barred or without merit, establishing that the
postconviction action contained no justiciable issue of law or
fact, it is not an abuse of discretion to fail to appoint appellate
counsel for an indigent defendant.41 Because Custer’s postcon-
viction motion presents no justiciable issues, the district court
did not err in not appointing Custer postconviction counsel.
VI. CONCLUSION
We conclude the district court did not err when it determined
that Custer’s motion for postconviction relief did not allege
facts which constituted a denial of his constitutional rights and
accordingly denied Custer’s motion. The judgment of the dis-
trict court is affirmed.
A ffirmed.
Wright, J., not participating in the decision.
40
Id.
41
State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).