State v. Ellis ( 2022 )

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07/15/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ELLIS
Cite as 311 Neb. 862State of Nebraska, appellee,
v. Roy L. Ellis, appellant.
___ N.W.2d ___
Filed June 24, 2022. No. S-21-595.
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. 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.
5. ____: ____. 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.
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STATE v. ELLIS
Cite as 311 Neb. 8626. 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.
7. 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.
Appeal from the District Court for Douglas County:
Gregory M. Schatz, Judge. Affirmed.
James J. Regan for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Senior Assistant Attorney General, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
Doyle and Dobrovolny, District Judges.
Papik, J.
Roy L. Ellis, who has been sentenced to death for first
degree murder, appeals the order that denied him postconvic-
tion relief following an evidentiary hearing. He claims that his
trial attorneys were ineffective in challenging the admissibility
and weight of DNA evidence presented at his jury trial. His
arguments focus on the probability statistic provided with that
evidence. Unpersuaded, we affirm.
BACKGROUND
Trial and Sentence.
In 2005, 12-year-old Amber Harris disappeared after exit-
ing her schoolbus. Harris’ bookbag was later found in a
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. ELLIS
Cite as 311 Neb. 862trash bin behind a boarding house where Ellis had lived before
Harris’ disappearance. Among other objects linked to Harris,
the bookbag contained Harris’ jeans, which had Harris’ blood
on them. DNA in a shape resembling a handprint was later
detected on the jeans, in a mixture from which Ellis could not
be excluded as a contributor. Months after Harris disappeared,
her decomposed and partially clothed body was discovered in
a secluded area. Harris had died from blunt force trauma to
the head. In the months before the DNA evidence and Harris’
body were found, Ellis had made a variety of incriminat-
ing statements to several individuals. Ellis was charged with
first degree murder on theories of both premeditated murder
and felony murder, for which the predicate felony was sex-
ual assault.
Ellis was represented by appointed counsel, William Patrick
Dunn and Jerry M. Hug. Prior to trial, Dunn filed a motion
in limine in an attempt to exclude the DNA evidence gleaned
from Harris’ jeans. The motion generally challenged the theory
of PCR-STR DNA testing that was applied in this case, based
on the framework in Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001), and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed. 2d 469 (1993). At a hearing on the motion, the State,
which had the burden of proof, presented the testimony of two
DNA experts who were involved in processing and analyzing
the DNA sample in Ellis’ case, Kaye Shepard and Dr. James
Wisecarver. Defense counsel’s cross-examination addressed
whether the DNA laboratory was properly accredited and
whether accepted procedures were properly followed. Defense
counsel did not present any evidence. The district court over-
ruled the motion in limine.
The DNA evidence was presented at Ellis’ jury trial over
his general foundational objection. We recounted that evi-
dence in our opinion on direct appeal:
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Cite as 311 Neb. 862The State’s witness, . . . Wisecarver, explained gener-
ally that the testing process used in this case involved
looking at 16 different genetic markers scattered through-
out the genome at different loci. One of those is a sex
marker that identifies the gender of the contributor; the
other 15 are used to compare to known reference samples
(in this case, for [Harris] and Ellis) to see if they are the
same or different.
The DNA found on [Harris’] jeans was a mixture
of DNA from at least two people, one of whom was
male. Wisecarver explained that it was not possible to
separate the mixture into a major and minor contributor at
each locus. Instead, he said, the presence of the mixture
was taken into account when calculating the likelihood
that any other person would have any combination of
the genetic markers that had been identified. Wisecarver
explained that the purpose of the statistical calculations
was to determine the likelihood that “we’re going to find
somebody, anybody, that could have any of these mark-
ers in any combination.” In other words, Wisecarver said,
when testing a mixture, “[w]e make no inferences as to
who matches up with whom in there. We just want to say
in all the populations how many people would we have to
screen in order to find somebody, anybody, that would fit
in here in any combination of those.”
Given that [Harris’] genetic profile was known,
Wisecarver testified that only 1 in 2.3 billion people
would be expected to “plug in” as the other contributor
to the mixture. And despite those odds, Ellis could not be
excluded as a contributor to the mixture.
On cross-examination, Wisecarver was asked about
what happened when two samples had common
alleles—in other words, when the two possible contrib­
utors to the mixture were genetically identical at a tested
locus. Wisecarver conceded that when such a common
genetic marker was found at a locus, in this case, it
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STATE v. ELLIS
Cite as 311 Neb. 862was not possible to tell who had contributed the allele.
But, Wisecarver said, it was still scientifically appro-
priate to consider such a locus when making statistical
calculations.
State v. Ellis, 281 Neb. 571, 585, 799 N.W.2d 267, 284-85
(2011).
On redirect, Wisecarver further explained the “uniqueness or
rareness” of the probability statistic linking Ellis to the crime:
[T]he population of the planet Earth is known to be
approximately 6.6 billion people. So based on that, the
odds that — the likelihood we would find — if we look
at the population of the planet Earth, we would maybe
find two other people in addition to [Harris] and . . . Ellis
who could have contributed to this mixture based on our
known frequencies.
Ellis’ counsel did not object.
Shepard also testified for the State. She explained on cross-
examination by Ellis’ counsel that the statistical analysis gar-
nered from DNA testing was a tool for attorneys and jurors to
determine how important the results were. She acknowledged
that her laboratory had generated statistics that were “bigger”
than the 1 in 2.3 billion generated in this case. When Ellis’
counsel posited to her that it was “not a staggering number . . .
given the work you do,” Shepard replied, “It’s a pretty large
number to me.”
In addition to the DNA evidence, the State presented evi-
dence of the incriminating statements Ellis made while incar-
cerated on unrelated charges and before the DNA evidence
and Harris’ body were discovered. He repeatedly asked for-
mer neighbors about any activity at the boarding house, but
after Harris’ possessions were found, these inquiries stopped,
though Ellis’ communication with the neighbors did not. A
corrections officer reported that Ellis asked him for infor-
mation about Harris’ case and books on forensics and DNA
examination and that Ellis asked questions about finger­
print identification, decomposition of buried bodies, and
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STATE v. ELLIS
Cite as 311 Neb. 862contamination of blood and semen left outside. Ellis asked
another corrections officer how long semen would last inside
a dead body in a rural forested area and asked the corrections
officer to do internet research on the subject. Ellis posed
similar questions about semen and decomposition to other
inmates. An inmate heard Ellis say that he had previously
taken women to the area where Harris’ body was ultimately
found and sexually assaulted them, hitting them on the head
if they did not comply. Ellis told another inmate that he had
sexually molested underage girls, some of them in the same
area. The same inmate said that Ellis expressed an unusual
interest in Harris’ case and cut out newspaper articles about
it. Ellis told yet another inmate that he had sexually assaulted
and strangled a young girl. When one inmate remarked that
it was “crazy what happened to that Amber Harris girl,” Ellis
said, “that’s why I got to get out and cover my tracks.” Two
inmates said Ellis admitted to sexually assaulting Harris and
striking her in the head; according to one of those inmates,
Ellis said he hit Harris in the head with a hammer.
The State also presented other circumstantial evidence and
evidence that Ellis had sexually assaulted his former step-
daughters when they were between 12 and 15 years old.
The jury found Ellis guilty of first degree murder, and he
was sentenced to death.
Direct Appeal.
Represented by the same counsel, Ellis appealed his convic-
tion and sentence, and we affirmed. See State v. Ellis, supra.Relevant here, we concluded that the district court did not err
in admitting the DNA evidence over Ellis’ motion in limine:
Ellis does not contend that the State’s witnesses were
not qualified to testify, or that their basic reasoning and
methodology was not reliable. Rather, Ellis contends that
under our Daubert/Schafersman framework, that method-
ology was not properly applied in this case. . . .
Ellis’ appellate argument is focused on the use of
common alleles in the State’s statistical analysis. Ellis
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STATE v. ELLIS
Cite as 311 Neb. 862contends that the “overriding issue” with that method is
that “where there is uncertainty as to the contributor, as
long as the suspect is ‘fully represented’ . . . then that
location counts against the suspect in calculating the
possibility of exclusion.” This, according to Ellis, “is
fundamentally unduly prejudicial and should not have
been allowed.”
Ellis cites no authority that is specifically relevant
to the issue he raises, nor is it clear that he raised that
issue in the trial court. It was not addressed in his
pretrial motion, which was addressed generally at the
theory of PCR-STR DNA testing that was applied in
this case. Nor did he raise it at trial beyond a general
foundational objection, which is insufficient to preserve
a Daubert/Schafersman issue. . . . Ellis’ pretrial motion
should have identified what is believed to be lacking
with respect to the validity and reliability of the evidence
and any challenge to the relevance of the evidence to the
issues of the case. But the issue now raised by Ellis was
not identified then.
Furthermore, Ellis’ argument rests upon a misunder-
standing of the way in which the DNA statistics were cal-
culated. As Wisecarver explained, the purpose of examin-
ing each locus is to determine two things: (1) whether the
contributor of the reference sample can be excluded as
a contributor and (2) how commonly one might expect
the profile that is generated to occur randomly in the
population. In other words, the initial question was not
whether the alleles that were found at each locus iden-
tified Ellis as the contributor; instead, it was whether
the testing excluded Ellis as a possible contributor. And
obviously, an allele that could be found in both Ellis’ and
[Harris’] genetic profile would not exclude Ellis as a pos-
sible contributor.
On the second step, the fact that the DNA sample was
a mixture clearly affected the calculation of how many
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STATE v. ELLIS
Cite as 311 Neb. 862people might be expected to have genetic profiles consist­
ent with the sample, which is presumably why the prob-
abilities found in this case are relatively modest compared
to others. While 1 in 2.3 billion people might seem like a
daunting figure, other cases involving single-contributor
or major-contributor samples have produced probabilities
of 1 in several quintillion. But that goes to the weight of
the evidence, not its admissibility—in fact, Ellis explored
that issue on cross-examination of one of the State’s
experts. The district court did not abuse its discretion in
concluding that the DNA evidence was admissible, and
we find no merit to Ellis’ assignment of error.
State v. Ellis, 281 Neb. 571, 586-88, 799 N.W.2d 267, 285-86
(2011) (emphasis omitted).
We also determined that the trial court had abused its
discretion in admitting prior bad acts evidence that Ellis
had sexually abused his former stepdaughters, but given the
strength of the State’s other evidence, including the DNA evi-
dence, we concluded that the erroneously admitted evidence
was harmless:
We recognize that the admission of other acts evidence,
by its nature, is usually prejudicial to the defendant. But
this is the rare instance in which it was not. For one
thing, [one witness] testified, without objection, that Ellis
admitted molesting young girls and impregnating his
stepdaughter. And more fundamentally, Ellis was ines-
capably tied to [Harris’] killing through DNA evidence
that . . . was admissible and persuasive, and physical
evidence that proved to be consistent with Ellis’ careless
statements that had already been reported to investiga-
tors. There was no innocent explanation for how Ellis’
DNA came to be on [Harris’] bloody clothing. Nor is
there any innocent explanation for how several witnesses
came forward with information before [Harris’] body or
Ellis’ DNA on her clothing had been discovered link-
ing Ellis to the killing—some of whom even accurately
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STATE v. ELLIS
Cite as 311 Neb. 862described [Harris’] cause of death and the possible loca-
tion of her body. This evidence can only be explained by
the conclusion that Ellis was the killer.
Given Ellis’ statements, the physical evidence, and the
other circumstantial evidence, we have no doubt that any
reasonable trier of fact would have found Ellis guilty of
the charge against him. In particular, no reasonable trier
of fact could overlook the testimony of [three witnesses],
each of whom was interviewed several weeks before
Ellis’ DNA was identified on [Harris’] clothing and at
least a month before [Harris’] body was found . . . . Each
witness found Ellis’ interest in the case suspicious, and
they all described details of the case that they had no way
of knowing unless they heard them from the person who
killed [Harris].
Id. at 581-82, 799 N.W.2d at 282-83 (emphasis omitted).
Postconviction Motions and
Evidentiary Hearing.
In 2011, Ellis filed a timely pro se motion for postconvic-
tion relief, which was subsequently amended by Ellis and later
by new counsel. Among other things, the motions alleged that
Ellis’ trial counsel had been ineffective in challenging the
State’s DNA evidence. The district court allowed Ellis an evi-
dentiary hearing on the issue. At the hearing, the district court
received the deposition testimony of Ellis’ former counsel,
Dunn and Hug.
Dunn testified that the probability statistics admitted at trial
were available at the time of the pretrial motion in limine.
Dunn stated that he had “seen much higher numbers” than
the probability statistics in Ellis’ case. Dunn recalled he did
not raise the common allele argument in his pretrial motion to
exclude DNA evidence because the statistical calculations took
common alleles into account. Dunn retained a DNA expert,
Dr. Ron Ostrefski, after the hearing on the motion in limine
but prior to trial. Ostrefski did not conduct his own testing
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STATE v. ELLIS
Cite as 311 Neb. 862and analysis, but examined the State’s DNA evidence and
did not express any concerns about the statistical probabili-
ties it proffered. For this reason, Dunn explained that he did
not call Ostrefski to testify at trial as a defense DNA expert.
Asked whether there was a strategic purpose to making a gen-
eral foundational objection at trial that did not preserve the
admissibility issues raised before trial, Dunn testified that he
did not view the point he was trying to make about the DNA
evidence to be of “great evidentiary moment or any eviden-
tiary moment.” Dunn testified that using cross-examination at
trial to address the effect of common alleles on the ability to
generate a statistical probability was the best approach for the
defense at the time, as was advancing the same theory in the
context of admissibility on direct appeal.
Hug testified that Dunn took the lead on challenging the
State’s DNA evidence. Hug stated that if Ostrefski had disputed
the State’s probability statistics, they would have pursued the
matter. But Hug recalled that he and Dunn had not come up
with any realistic way to keep the DNA evidence from being
admitted at trial. Thus, it was their strategy to try to minimize
the importance of the evidence at trial, that is, its weight.
Order Denying Postconviction Relief.
The district court denied postconviction relief. It identified
ineffective assistance claims pertaining to (1) the admissibility
of the State’s DNA evidence and (2) counsel’s failure to retain
a defense expert to testify about the weakness of the statistical
analysis proffered by the State’s expert.
Regarding admissibility of the State’s DNA evidence, the
district court found that trial counsel’s performance through-
out the proceedings was not ineffective. It observed that
Ellis’ counsel had extensively cross-examined the State’s DNA
experts at the hearing on the motion in limine and that
Ostrefski, who defense counsel retained afterward, generally
agreed with the accuracy of the DNA testing results. The
district court further reasoned that defense counsel conducted
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STATE v. ELLIS
Cite as 311 Neb. 862an extensive cross-examination that elicited Wisecarver’s tes-
timony that when a common genetic marker was found at a
locus, it was not possible to tell who had contributed the allele,
but that it was still scientifically appropriate to consider that
locus when making statistical calculations. The district court
concluded that on appeal, “Ellis was not prejudiced by coun-
sel’s failure to preserve the issue of his trial attorneys’ failure
to challenge the admissibility of the DNA evidence for appel-
late review because the DNA evidence was determined to be
admissible on direct appeal.”
The district court also found that Ellis had failed to show
deficient performance and prejudice when defense counsel did
not retain a DNA expert to assist in challenging the State’s
DNA evidence at the hearing on the motion in limine or pre­
sent expert testimony challenging the State’s statistical analy-
sis. It stated that Ellis had not identified an expert who would
have assisted defense counsel and offered no evidence as to
what that expert’s testimony would be. And the district court
noted that Ostrefski had conceded that the State’s statistical
data was sound.
Ellis now appeals.
ASSIGNMENTS OF ERROR
Ellis assigns, consolidated and restated, that the district
court erred in not granting him postconviction relief based on
his allegation that trial counsel was ineffective in challenging
the State’s DNA evidence.
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.
State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021).
[2] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact. Id. When
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Cite as 311 Neb. 862reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. Id. 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. State v. Newman, supra.ANALYSIS
[3] Ellis challenges the order that denied his request for
postconviction relief. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial consti-
tutional violations that render the judgment void or voidable.
Id. In this case, Ellis alleges one such constitutional violation,
ineffective assistance of counsel. See id. We understand his
arguments to center on the probability statistic generated from
the State’s DNA evidence that implicated him in Harris’ death,
which we described as “relatively modest” compared to the
probabilities in other cited cases. See State v. Ellis, 281 Neb.
571, 587, 799 N.W.2d 267, 286 (2011), citing State v. Edwards,
278 Neb. 55, 767 N.W.2d 784 (2009), State v. Archie, 273 Neb.
612, 733 N.W.2d 513 (2007), State v. Tolliver, 268 Neb. 920,
689 N.W.2d 567 (2004), and State v. Fernando-Granados, 268
Neb. 290, 682 N.W.2d 266 (2004). As we read Ellis’ brief, he
asserts that his trial counsel rendered ineffective assistance in
not addressing the impact of this “relatively modest” prob-
ability statistic on the admissibility of the DNA evidence and,
once it was admitted, on its probative value. See id. We are
not convinced that Ellis is entitled to postconviction relief on
either basis.
[4-7] The principles that govern here are well-established.
To prevail on a claim of ineffective assistance of counsel
under the two-pronged test in Strickland, the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
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Cite as 311 Neb. 862defendant’s defense. See State v. Newman, supra. To show that
counsel’s performance was deficient, the defendant must show
counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law in the area. Id. To show
prejudice under the prejudice component of the Strickland test,
the defendant must demonstrate a reasonable probability that
but for his or her counsel’s deficient perform­ance, the result
of the proceeding would have been different. State v. Newman,
supra. 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. Id.“‘The likelihood of a different result must be substantial, not
just conceivable.’” State v. Newman, 310 Neb. 463, 472-73,
966 N.W.2d 860, 869 (2021), quoting Harrington v. Richter,
562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). A court
may examine performance and prejudice in any order and need
not examine both prongs if a defendant fails to demonstrate
either. State v. Newman, supra.We begin by considering whether trial counsel rendered
ineffective assistance with respect to the admissibility of the
State’s DNA evidence. Ellis contends that his counsel should
have opposed the admission of this evidence by addressing it
in the pretrial motion and in a corresponding objection at trial
based on the probability statistic’s relative weight. Ellis also
suggests that his counsel should have retained an expert to
guide the defense in dealing with the impact of the probability
statistic on admissibility. To argue that he was prejudiced by
his trial attorneys’ performance in this regard, Ellis places great
emphasis on the role of the DNA evidence in this court’s harm-
less error analysis on direct appeal.
We conclude that trial counsel did not perform deficiently
when it did not challenge the admission of the DNA evidence
based on the relative strength of the probability statistic.
When reviewing claims of alleged ineffective assistance of
counsel, strategic decisions made by trial counsel will not
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See State v. Newman, supra. See, also, Harrington v. Richter,
supra (defense counsel entitled to formulate strategy that
was reasonable at time and to balance limited resources with
effective trial tactics and strategies). At the time the motion
in limine was filed, Ellis’ trial counsel was aware of the
1-in-2.3-billion probability statistic, a statistic that the expert
retained by the defense later accepted. Ellis’ trial counsel
testified that, unable to find a realistic way to keep the DNA
evidence from being admitted, the best approach was to mini-
mize the impact of this evidence at trial by casting doubt on
the use of common alleles to conduct the statistical analysis
that generated the probability statistic.
We believe this admissibility strategy was reasonable, espe-
cially considering our holdings that DNA evidence will not be
withheld from the jury simply because the probability statistics
it provides are relatively low. See State v. Bauldwin, 283 Neb.
678, 811 N.W.2d 267 (2012). See, also, State v. Tucker, 301
Neb. 856, 920 N.W.2d 680 (2018). To the contrary, we have
found jurors capable of assigning appropriate weight to “the
statistical analysis that accompanies DNA evidence,” even
when the odds of a coincidental match are much greater than
the odds expressed by the 1-in-2.3-billion probability statistic
in this case. State v. Bauldwin, 283 Neb. at 703, 811 N.W.2d
at 288 (rejecting claim that jury would treat probability of 1
in 500,000 same as 1 in septillion). See, also, State v. Tucker,
supra. (1-in-1,842 chance of coincidental match did not render
Y-STR DNA evidence unreliable so as to justify withholding it
from jury). Given our prior decisions, we cannot say that trial
counsel performed below the level of a lawyer with ordinary
training and skill in this area of criminal law. Accordingly,
Ellis has not satisfied the performance prong required to prove
ineffective assistance of counsel in addressing the admissibility
of DNA evidence.
Likewise, we conclude that once the probability sta-
tistic was admitted at trial, Ellis’ trial attorneys were not
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Cite as 311 Neb. 862ineffective in their response. Ellis claims that his trial coun-
sel should have retained an expert who could have guided
the trial strategy and explained the weakness of the State’s
statistical analysis to the jury. Absent a defense expert, Ellis
contends, his trial counsel should have simply pointed out
that the statistical probability that Ellis was a contributor to
the sample from Harris’ jeans was “tens of thousands of times
weaker than the DNA evidence typically admitted in criminal
proceedings.” Brief for appellant at 11. He further submits that
his trial counsel performed deficiently in allowing Wisecarver
to “equate the statistical probability to the number of people on
[E]arth.” Brief for appellant at 9. Ellis essentially argues that
his trial counsel should have done more to put the probability
statistic into proper perspective for the jury.
Again, rather than showing Ellis’ trial attorneys’ perform­
ance to be deficient, we find the evidence demonstrates it was
a product of reasonable trial strategy. Attorneys in the position
of Ellis’ trial counsel could reasonably conclude that drawing
additional attention to the probability statistic would not be
to Ellis’ advantage. After all, the odds that a random person
other than Ellis was the contributor, “relatively modest” as
they were, nonetheless served as “persuasive” evidence sup-
porting the verdict. State v. Ellis, 281 Neb. 571, 581, 587,
799 N.W.2d 267, 282, 286 (2011). This was illustrated when
trial counsel pursued the issue to some degree with Shepard,
who explained that the jurors could weigh the probative value
of the probability statistic and indicated that the probabil-
ity statistic pointing to Ellis was, from her perspective, “a
pretty large number.” Not only did additional focus on the
DNA probability statistic pose a downside risk to Ellis’ case,
we discern little that could have been gained by comparing
the probability statistic in this case to other cases as Ellis
contends his counsel should have done. It is not apparent to
us why the jury would be moved by an argument that DNA
evidence in unrelated cases showed more likely matches
with the defendants in those cases. Given these factors, we
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efforts on diminishing the weight of the DNA evidence in the
jury’s eyes by questioning the common alleles upon which
it was based.
Ellis does not explain how a defense expert could have
improved upon this strategy or framed the probability statis-
tic to Ellis’ advantage, nor did he present any evidence on
this point at the evidentiary hearing. Without specifying what
such expert testimony would have been or who would have
provided it, Ellis cannot establish that his trial attorneys were
deficient for not retaining an expert to guide his defense or
to testify.
Finally, although we find that Ellis has not succeeded in
showing that his trial counsel performed deficiently in their
treatment of the probability statistic admitted at trial, we also
note that he cannot prove prejudice as to this point. Ellis does
not explain—and, again, it is not apparent to us—why the jury
would have discounted DNA evidence in this case just because
there were probability statistics in other cases demonstrating
a lesser likelihood of random matches with the defendants in
those cases. And despite being “relatively modest” compared
to some cases, the probability statistic here strongly suggested
that Ellis’ DNA was likely on Harris’ jeans. See State v. Ellis,
281 Neb. at 587, 799 N.W.2d at 286. Considering this with the
other circumstantial evidence that Ellis killed Harris, much of
which we recounted above, we find there is not a substantial
likelihood that the outcome would have been different had
the probability statistic’s relative strength been more overtly
pointed out to the jury.
CONCLUSION
Finding no merit to the errors alleged by Ellis, we affirm the
order that denied him postconviction relief.
Affirmed.
Heavican, C.J., and Freudenberg, J., not participating.