State v. Newman , 300 Neb. 770 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
10/05/2018 08:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. NEWMAN
Cite as 300 Neb. 770
State of Nebraska, appellee, v.
Terrell E. Newman, appellant.
___ N.W.2d ___
Filed August 17, 2018. No. S-17-842.
1. Appeal and Error. The purpose of an appellant’s reply brief is to
respond to the arguments the appellee has advanced against the errors
assigned in the appellant’s initial brief.
2. ____. An assignment of error raised for the first time in a reply brief is
untimely and will not be considered by an appellate court.
3. 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.
4. Postconviction: Constitutional Law: Judgments. 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 constitutional rights such that the judgment was void or voidable.
5. 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.
6. ____: ____: ____. A trial court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
7. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in a case affirmatively
show the defendant is entitled to no relief, the court is not required to
grant an evidentiary hearing.
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STATE v. NEWMAN
Cite as 300 Neb. 770
8. ____: ____. In a postconviction proceeding, an evidentiary hearing is
not required (1) when the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s consti-
tutional rights; (2) when the motion alleges only conclusions of fact
or law; or (3) when the records and files affirmatively show that the
defend­ant is entitled to no relief.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. A
motion for postconviction relief asserting ineffective assistance of trial
counsel is procedurally barred when (1) the defendant was represented
by a different attorney on direct appeal than at trial, (2) an ineffective
assistance of trial counsel claim was not brought on direct appeal, and
(3) the alleged deficiencies in trial counsel’s performance were known
to the defendant or apparent from the record.
10. ____: ____: ____. Claims of ineffective assistance of appellate counsel
may be raised for the first time on postconviction review.
11. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise
a claim on direct appeal of ineffective assistance of trial counsel, an
appellate court will first look at whether trial counsel was ineffective
under the test 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.
12. 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 per­
formance actually prejudiced the defendant’s defense.
13. ____: ____. 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.
14. 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.
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STATE v. NEWMAN
Cite as 300 Neb. 770
15. Effectiveness of Counsel: Proof. The two prongs of the ineffective
assistance of counsel test under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient performance and
prejudice, may be addressed in either order.
16. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
17. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic deci-
sion to present particular evidence, or not to present particular evidence,
will not, without more, sustain a finding of ineffective assistance of
counsel. Strategic decisions made by trial counsel will not be second-
guessed so long as those decisions are reasonable.
18. Rules of Evidence. Neb. Rev. Stat. § 27-901(1) (Reissue 2016) does not
impose a high hurdle for authentication or identification.
19. Rules of Evidence: Proof. A proponent of evidence is not required to
conclusively prove the genuineness of the evidence or to rule out all
probabilities inconsistent with authenticity. Rather, if the proponent’s
showing is sufficient to support a finding that the evidence is what it
purports to be, the proponent has satisfied the requirements of Neb. Rev.
Stat. § 27-901(1) (Reissue 2016).
20. Sentences. If there is a discrepancy between the oral pronouncement
of a valid sentence and the later written order, the oral pronouncement
controls calculation of the prison term.
21. Rules of Evidence: Juries: Testimony: Affidavits. Neb. Rev. Stat.
§ 27-606(2) (Reissue 2016) prohibits a juror from testifying as to any
matter or statement occurring during the course of the jury’s delibera-
tions. Thus, a juror’s affidavit may not be used to impeach a verdict on
the basis of jury motives, methods, misunderstanding, thought proc­
esses, or discussions during deliberations.
22. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s post-
conviction claims that his or her defense counsel was ineffective in fail-
ing to investigate possible defenses are too speculative to warrant relief
if the petitioner fails to allege what exculpatory evidence the investiga-
tion would have procured and how it would have affected the outcome
of the case.
23. Postconviction: Constitutional Law. A claim of actual innocence may
be a sufficient allegation of a constitutional violation under the Nebraska
Postconviction Act.
24. Postconviction: Evidence. The essence of a claim of actual innocence
is that the State’s continued incarceration of such a petitioner without an
opportunity to present newly discovered evidence is a denial of proce-
dural or substantive due process.
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STATE v. NEWMAN
Cite as 300 Neb. 770
25. Postconviction: Evidence: Presumptions: Proof. The threshold to
entitle a prisoner to an evidentiary hearing on a postconviction claim of
actual innocence is extraordinarily high. Such a petitioner must make a
strong demonstration of actual innocence, because after a fair trial and
conviction, the presumption of innocence vanishes.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Stuart J. Dornan and Jason E. Troia, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
H all, District Judge.
Stacy, J.
A jury found Terrell E. Newman guilty of two counts of
first degree murder, three counts of use of a deadly weapon to
commit a felony, attempted intentional manslaughter, and pos-
session of a deadly weapon by a prohibited person.1 He was
sentenced to life imprisonment for the murders and to addi-
tional terms of years for the other offenses, the sentences to
run consecutively. We affirmed his convictions and sentences
on direct appeal.2
Newman then moved for postconviction relief, raising
claims of ineffective assistance of counsel and a claim of actual
innocence. The district court denied relief without conducting
an evidentiary hearing. Newman filed this timely appeal. We
affirm in part, and in part reverse and remand for an eviden-
tiary hearing.
1
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
2
Id.
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300 Nebraska R eports
STATE v. NEWMAN
Cite as 300 Neb. 770
I. FACTS
Newman’s trial was consolidated with codefendant Derrick
U. Stricklin. The underlying facts are fully set forth in our
opinion affirming Stricklin’s convictions and sentences.3
Summarized, Newman’s convictions arose from the shoot-
ing deaths of Carlos Morales and Bernardo Noriega during
a drug transaction at an automobile body shop owned by
Morales. Jose Herrera-Gutierrez was also present during the
drug transaction and the shootings, and he was the State’s
primary witness at trial. Herrera-Gutierrez identified Newman
and Stricklin as the shooters and testified that he recognized
both men from prior visits to Morales’ shop. He had seen
Stricklin approximately four times at the shop, and he had seen
Newman approximately three times at the shop.
The State’s theory of the case was that Newman and
Stricklin committed the crimes together. Newman’s cell phone
records showed that Newman was in communication with both
Morales and Stricklin on the day of the shootings, and also
showed that Newman’s cell phone was in the area of the mur-
der scene during the relevant timeframe.4
A jury found Newman guilty of all the charges. He was sen-
tenced to consecutive sentences of life imprisonment for each
murder conviction, 15 to 25 years’ imprisonment for each use
of a deadly weapon conviction, 20 months’ to 5 years’ impris-
onment for the attempted manslaughter conviction, and 15 to
25 years’ imprisonment for the possession of a deadly weapon
conviction.5 The district court denied his motion for new trial,
and he filed a direct appeal.
On direct appeal, Newman was represented by different coun-
sel. Appellate counsel raised numerous assignments of error
challenging Newman’s identification by Herrera-Gutierrez, the
sufficiency of the evidence, the admission of certain evidence,
3
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
4
Id.
5
Newman, supra note 1.
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STATE v. NEWMAN
Cite as 300 Neb. 770
the exclusion of other evidence, limitations imposed on the
cross-examination of Herrera-Gutierrez, the overruling of a
motion for new trial based on juror misconduct, and the over-
ruling of a motion to withdraw his rest.
Newman’s appellate counsel also alleged trial counsel had
been ineffective in failing to (1) introduce certain testimony
at the hearing on the motion for new trial, (2) object to cer-
tain jury instructions, and (3) adequately investigate an alibi
defense. In the direct appeal, we concluded the files and
records affirmatively showed the jury instruction claim lacked
merit and we found the record was insufficient to address the
other two allegations of ineffective assistance of trial counsel.6
After we affirmed his convictions and sentences, Newman
filed the instant motion for postconviction relief. He alleges
his appellate counsel was ineffective in (1) failing to obtain
a complete record prior to Newman’s direct appeal and (2)
failing to raise on direct appeal claims that his trial counsel
was ineffective for (a) failing to investigate certain witnesses,
including alibi witnesses; (b) failing to object to certain jury
instructions; (c) failing to present evidence of third-party guilt
via a motion in limine; (d) failing to object to the authentica-
tion of cell phone records; (e) failing to object to the truth-in-
sentencing advisement; (f) failing to present certain evidence
at the motion for new trial; and (g) failing to hire a crime
scene investigator. Newman also alleges in his postconviction
motion, and argues in his brief, that he is actually innocent
of the crimes. The district court denied the postconviction
motion without conducting an evidentiary hearing. Newman
filed this appeal.
II. ASSIGNMENTS OF ERROR
Newman assigns the district court erred in (1) denying him
an evidentiary hearing on his motion for postconviction relief,
(2) finding he did not meet the threshold for actual innocence,
and (3) denying his motion for postconviction relief.
6
Id.
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STATE v. NEWMAN
Cite as 300 Neb. 770
Newman also attempts to raise additional assignments of
error in his reply brief, including that he was denied an oppor-
tunity to amend his postconviction motion and that additional
jury instructions were flawed. The State filed an objection,
arguing Newman could not raise new assignments of error in
his reply brief. We agree.
[1,2] The purpose of an appellant’s reply brief is to respond
to the arguments the appellee has advanced against the errors
assigned in the appellant’s initial brief.7 An assignment of
error raised for the first time in a reply brief is untimely and
will not be considered by the court.8 We therefore limit our
analysis to the assignments made and argued in Newman’s
original appellate brief. We note for the sake of completeness
that Stricklin properly raised nearly identical assignments of
error in his appeal from the district court’s denial of his motion
for postconviction relief, and we found those assignments
lacked merit.9
III. STANDARD OF REVIEW
[3] 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 affirma-
tively show that the defendant is entitled to no relief.10
IV. ANALYSIS
1. General Propositions
Governing Postconviction
[4,5] 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 constitutional
7
Rodriguez v. Surgical Assoc., 298 Neb. 573, 905 N.W.2d 247 (2018).
8
See id.
9
See State v. Stricklin, post p. 794, ___ N.W.2d ___ (2018).
10
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017); State v. Watson, 295
Neb. 802, 891 N.W.2d 322 (2017).
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Cite as 300 Neb. 770
rights such that the judgment was void or voidable.11 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.12
[6-8] A trial court must grant an evidentiary hearing to
resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the Nebraska
or federal Constitution.13 If a postconviction motion alleges
only conclusions of fact or law, or if the records and files in a
case affirmatively show the defendant is entitled to no relief,
the court is not required to grant an evidentiary hearing.14
Thus, in a postconviction proceeding, an evidentiary hearing
is not required (1) when the motion does not contain factual
allegations which, if proved, constitute an infringement of the
movant’s constitutional rights; (2) when the motion alleges
only conclusions of fact or law; or (3) when the records
and files affirmatively show that the defendant is entitled to
no relief.15
[9] Here, Newman alleges he received ineffective assist­
ance of counsel. A motion for postconviction relief asserting
ineffective assistance of trial counsel is procedurally barred
when (1) the defendant was represented by a different attor-
ney on direct appeal than at trial, (2) an ineffective assistance
of trial counsel claim was not brought on direct appeal, and
(3) the alleged deficiencies in trial counsel’s performance
were known to the defendant or apparent from the record.16
Newman was represented by different counsel on direct appeal
11
Vela, supra note 10.
12
Id.
13
Id.
14
Id.
15
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
16
State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
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than at trial. He therefore cannot raise on postconviction any
claims of ineffective assistance of trial counsel that were not
preserved on direct appeal, as those claims would be procedur-
ally barred.17
[10,11] However, claims of ineffective assistance of appel-
late counsel may be raised for the first time on postconviction
review.18 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, an appellate court will
first look at whether trial counsel was ineffective under the test
in Strickland v. Washington.19 If trial counsel was not ineffec-
tive, then the defendant was not prejudiced by appellate coun-
sel’s failure to raise the issue.20
[12-14] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,21 the defendant must
show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense.22 To show that counsel’s performance
was deficient, 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.23 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.24 A reasonable probability does
not require that it be more likely than not that the deficient
17
See id.
18
State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). See State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).
20
See Glass, supra note 19.
21
Strickland, supra note 19.
22
Vela, supra note 10.
23
See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).
24
Vela, supra note 10.
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performance altered the outcome of the case; rather, the defend­
ant must show a probability sufficient to undermine confidence
in the outcome.25
[15] The two prongs of the ineffective assistance of counsel
test under Strickland, deficient performance and prejudice, may
be addressed in either order.26 We examine Newman’s allega-
tions under this standard.
2. Failure to Investigate
[16,17] A defense attorney has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.27 A reasonable strategic
decision to present particular evidence, or not to present par-
ticular evidence, will not, without more, sustain a finding of
ineffective assistance of counsel.28 Strategic decisions made by
trial counsel will not be second-guessed so long as those deci-
sions are reasonable.29
(a) Alibi Defense
Newman’s motion for postconviction relief alleges his appel-
late counsel was ineffective for failing to raise on direct appeal
that his trial counsel was ineffective for failing to preserve
and submit his alibi defense. But the record shows appellate
counsel did raise this claim on direct appeal, and we found the
record was insufficient to address it.30 Thus, Newman’s allega-
tion that appellate counsel was ineffective for failing to raise
the issue is without merit.
However, Newman’s postconviction motion also alleges his
trial counsel was ineffective for failing to preserve and submit
25
Id.
26
Haynes, supra note 23.
27
State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
28
Id.
29
Id.
30
Newman, supra note 1.
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his alibi defense. Because he raised this claim in his direct
appeal and we found the record was insufficient to consider or
rule on that claim, it is not procedurally barred.31 We therefore
consider whether Newman has alleged facts sufficient to war-
rant an evidentiary hearing on this claim.
Newman’s postconviction motion alleges his trial counsel
failed to “independently interview, depose, or subpoena” four
witnesses whom he alleges would have established an alibi
defense. Newman alleges that Kevin Riley and Janet Mariscal
would have testified Newman “was either at Clayton’s BBQ
restaurant or on a run to Chubb[] Foods to purchase supplies at
or near the time of the shooting.” Newman further alleges that
two unnamed “Employees of Chubb[] Foods,” one working at
the customer service counter and the other at the cash register,
would have “confirmed Newman’s presence at Chubb[] Foods
at or near the time of the shooting.”
The district court denied an evidentiary hearing on this
claim. It reasoned that because the allegations were vague as
to time, they did not “definitively state that [Newman] was not
at the murder scene and merely suggest [Newman] may have
been at these other places at some point in the day.” Moreover,
the court found no prejudice could have resulted from coun-
sel’s failure to develop this evidence given the overwhelming
evidence of Newman’s guilt provided by Herrera-Gutierrez’
eyewitness testimony and cell phone records placing Newman
in the area at or near the time of the murders.
It is true Newman has not alleged a specific time he claims
he was at the restaurant or the grocery store. But in his brief,
Newman argues he used the general phrase “at or near the
time of the shooting” in his postconviction motion, because
there was uncertainty at trial about the exact time of the mur-
ders.32 He argues the allegations in his motion are sufficient
to show both deficient performance and prejudice, because
they show trial counsel failed to present testimony from four
31
See State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007).
32
Brief for appellant at 10.
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witnesses who would have testified Newman was somewhere
else at the time of the murders. The State, in its response,
generally agrees with the district court’s conclusion that even
if trial counsel was deficient in this regard, there could be no
prejudice to Newman in light of the overwhelming evidence
of his guilt adduced at trial. Our de novo review persuades
us otherwise.
While we agree the eyewitness identification and corroborat-
ing cell phone records, in the context of the evidence admitted
at trial, provided overwhelming evidence of guilt, we can-
not overlook the fact that the alibi evidence Newman alleges
his attorney should have investigated could, if proved, have
contradicted the eyewitness identification. Newman alleges,
summarized, that four witnesses would have testified he was
at a specific location other than the crime scene at or near the
time of the murders. This testimony could have contradicted
Herrera-Gutierrez’ eyewitness testimony and, depending on the
location of the restaurant and the grocery store, may also have
affected the weight of the cell phone record evidence. Thus,
depending on the evidence actually presented and found credi-
ble, there may be a reasonable probability that if such evidence
had been presented at trial, the result of the proceeding could
have been different.
In Newman’s direct appeal, we found the record was insuf-
ficient to evaluate the substance of this particular claim of inef-
fective assistance. He presents the same claim on postconvic-
tion, and because the record is still insufficient to analyze the
claim, Newman is entitled to an evidentiary hearing.33
(b) Other Witnesses
Newman also alleges his appellate counsel was ineffective
for failing to assign as error that trial counsel was ineffective
33
See, State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015) (district court
erred in failing to grant evidentiary hearing on ineffective assistance claim
where claim was raised on direct appeal but record was insufficient to
analyze claim, and same claim was raised on postconviction); State v.
Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012) (same).
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for failing to “independently interview, depose, or subpoena”
other potential witnesses “despite Newman’s request.”
Newman alleges two of these witnesses would have testified
that unnamed “Mexicans” or “Latino’s” killed Noriega and
Morales; one would have testified to hearing gunshots near the
crime scene around 1:15 p.m. on the day of the shootings; one
would have testified she observed two men standing in a park-
ing lot near the crime scene around 1 p.m. on the day of the
shootings; one would have testified she was afraid of Herrera-
Gutierrez and did not think his story “add[ed] up”; two would
have testified to observing Herrera-Gutierrez “acting crazy” on
the day of the shootings; and one would testify she thought the
murders involved drugs.
The district court addressed all of these allegations col-
lectively and concluded Newman had failed to allege how
deposing or subpoenaing any of these witnesses would have
produced a different outcome at trial. We agree that Newman’s
allegations regarding these other witnesses did not show a
reasonable likelihood that, absent the alleged deficiency, the
outcome at trial would have been different.
In Strickland, the U.S. Supreme Court addressed how a
court should approach the prejudice prong of an ineffective
assistance of counsel claim:
In making [the prejudice] determination, a court hear-
ing an ineffectiveness claim must consider the totality
of the evidence before the judge or jury. Some of the
factual findings will have been unaffected by the errors,
and factual findings that were affected will have been
affected in different ways. Some errors will have had
a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect. Moreover,
a verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors
than one with overwhelming record support. Taking the
unaffected findings as a given, and taking due account
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of the effect of the errors on the remaining findings,
a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the deci-
sion reached would reasonably likely have been different
absent the errors.34
Considering the alleged testimony of these eight potential
witnesses in the context of all the evidence adduced at trial,
we conclude the alleged testimony would not have altered the
evidentiary picture and would, at best, have had an isolated
or trivial effect on the jury’s findings. We find no error in
the district court’s denial of this claim without an eviden-
tiary hearing.
In sum, we conclude Newman is entitled to an eviden-
tiary hearing on his claim relating to his alibi defense, but
is not entitled to an evidentiary hearing on any of his other
claims of failure to interview, depose, or subpoena potential
witnesses.
(c) Cross-Examination
Newman also alleges his appellate counsel was ineffective
for failing to raise, on direct appeal, that trial counsel failed to
adequately investigate existing files and prepare for the trial
testimony of Nelson Martinez-Reyes. This witness testified at
trial that he saw a man matching Herrera-Gutierrez’ descrip-
tion near the murder location at approximately 11 a.m. on the
day of the shootings, but he did not know the race of the male.
Newman alleges Herrera-Gutierrez is Hispanic, and claims his
trial counsel failed to cross-examine Martinez-Reyes about a
prior statement in which he reported seeing a white male near
the scene of the crime. We conclude this allegation of failure to
cross-examine a witness on a minor credibility issue is not suf-
ficient to demonstrate either deficient performance or resulting
prejudice. Newman was not entitled to an evidentiary hearing
on this claim.
34
Strickland, supra note 19, 466 U.S. at 695-96.
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3. Jury Instructions
Newman alleges his appellate counsel was ineffective for
failing to assert, on direct appeal, that trial counsel was inef-
fective for not objecting to “flawed” jury instructions Nos. 5, 6,
11, 12, and 18. Newman’s motion specifically alleges instruc-
tions Nos. 5, 11, and 12 were “flawed” because they did not
conform to the pattern Nebraska Jury Instructions.
The district court found the claim that trial counsel was
ineffective for failing to object to instructions Nos. 5, 11,
and 12 had been raised on direct appeal and rejected by this
court. It reasoned the factual allegations as to the other jury
instructions failed to specifically allege deficient performance
and prejudice. Our de novo review leads us to the same
conclusion.
Newman’s brief to this court generally concedes that the
argument he presents as to instructions Nos. 5, 11, and 12 was
resolved on direct appeal. His brief also generally concedes
that his postconviction motion did not include sufficient alle-
gations as to instructions Nos. 6 and 18. The district court did
not err in denying postconviction relief without an evidentiary
hearing on this issue.
4. Confidential Informant
Newman alleges his appellate counsel was ineffective for
failing to raise, on direct appeal, that trial counsel was inef-
fective for not doing more to secure the admission of testi-
mony regarding an out-of-court statement made by a con-
fidential informant. The confidential informant’s statement
related to the possible involvement of a man known as “Sip”
in the crimes.
Admissibility of the testimony regarding the confidential
informant’s statement was addressed in the direct appeal of
Newman’s codefendant Stricklin. Before trial, both Newman
and Stricklin filed motions in limine seeking a ruling on the
admissibility of testimony from a detective about statements a
confidential informant made to the detective. The statements
made to the detective were essentially that one of the murder
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victims, Morales, had attempted to buy two firearms from the
informant, telling the informant that he was “having problems
with two black males” and that Morales told the informant one
of the males was nicknamed “‘Sip.’”35 The detective showed
the informant photographs of Newman and Stricklin, and the
informant did not identify either as “Sip.”
The State objected to this evidence, arguing it contained
two levels of hearsay—Morales’ statements to the informant
and the informant’s statements to the detective. The district
court excluded the evidence on that basis, and we affirmed
on appeal.
Newman’s motion for postconviction relief generally
alleges that if trial counsel had done more, the statements
from the confidential informant would have been admitted.
But Newman’s motion does not identify any actions that
would have removed the hearsay issues we addressed on
direct appeal, and thus, we agree with the district court that
these allegations are insufficient to show ineffective assistance
of counsel. The district court properly found Newman is not
entitled to an evidentiary hearing on this claim.
5. Cell Phone Authentication
Evidence at trial showed a cell phone or phones associated
with Newman were used to contact Stricklin and Morales
on the date of the murders, and evidence showed Newman
received six calls between 11:42 a.m. and 12:36 p.m. using
a cell tower in the immediate vicinity of Morales’ shop.
Newman alleges his appellate counsel was ineffective for
failing to assign, on direct appeal, that trial counsel was inef-
fective for failing to require the State to “authenticate” who
was actually using the cell phones associated with his name.
His postconviction motion alleges that if trial counsel had
objected on authentication grounds, the State would have been
unable to prove he was actually using the cell phones, and the
35
Stricklin, supra note 3, 290 Neb. at 553, 861 N.W.2d at 382.
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substantial cell phone evidence linking him to the murders
would have been inadmissible.
The district court found this allegation was without merit,
reasoning that such an objection would not have been success-
ful. We agree.
[18,19] According to Neb. Rev. Stat. § 27-901(1) (Reissue
2016), “[t]he requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims.” Section 27-901 does not impose
a high hurdle for authentication or identification.36 Indeed, a
proponent of evidence is not required to conclusively prove
the genuineness of the evidence or to rule out all probabili-
ties inconsistent with authenticity.37 Rather, if the proponent’s
showing is sufficient to support a finding that the evidence is
what it purports to be, the proponent has satisfied the require-
ments of § 27-901.38
The files and records affirmatively show authentication was
established. Newman’s former girlfriend testified at trial that
she bought him a cell phone with a certain number and also
called him at a different cell phone number. Law enforcement
obtained the cell phone records associated with those two num-
bers, and the cell phone associated with the second number
was found on Newman at the time of his arrest. This cell phone
evidence was properly admitted at trial.39
The files and records affirmatively show that if Newman’s
counsel had objected on the ground the State had not “authen-
ticated” who was actually using the cell phones, such an objec-
tion would not have been successful. Newman’s counsel did
not perform deficiently in this regard, and the district court
36
State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).
37
Id.
38
Id.
39
See Stricklin, supra note 3.
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correctly denied postconviction relief on this claim without an
evidentiary hearing.
6. Truth-in-Sentencing
A dvisement
Newman alleges his appellate counsel was ineffective for
failing to assign as error, on direct appeal, that trial counsel
was ineffective for failing to object to the truth-in-sentencing
advisement given by the trial court. His postconviction motion
alleges the truth-in-sentencing advisement, delivered in open
court, informed him he would be given credit for time served
of 405 days, but the written sentencing order gave him credit
for only 403 days. He argues the 2-day difference in the sen-
tences imposed is prejudicial.
[20] The district court found Newman’s claim lacked merit,
because he suffered no prejudice. It reasoned that in Nebraska,
if there is a discrepancy between the oral pronouncement of a
valid sentence and the later written order, the oral pronounce-
ment controls calculation of the prison term.40
Our de novo review of the record confirms this rule was
applied in Newman’s case. The commitment order entered
after Newman’s sentencing awarded him credit for 405 days
served. Thus, the files and records thus affirmatively show
that Newman has suffered no prejudice, and the district
court properly denied Newman an evidentiary hearing on
this claim.
7. Motion for New Trial
Newman’s postconviction motion includes several allega-
tions that his appellate counsel was ineffective for failing to
raise, on direct appeal, the ineffective assistance of trial counsel
related to the motion for new trial based on juror misconduct.
His brief to this court argues only two of those allegations.
40
See State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
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We thus limit our review to those errors both assigned and
argued to this court.41
Before addressing these claims, we note that in our opinion
on Newman’s direct appeal, we found the record was insuf-
ficient to address Newman’s claim that his trial counsel was
ineffective for failing to timely offer an affidavit of a nonjuror
during the hearing on Newman’s motion for new trial. Newman
did not include such an allegation in his postconviction motion.
Instead, he alleges his appellate counsel was ineffective for
failing to raise other instances of ineffective assistance related
to the hearing on his motion for new trial. To understand his
claims, we briefly summarize the basis for Newman’s motion
for new trial.
Newman alleged he was entitled to a new trial because one
of the jurors had communicated with the juror’s brother, a
nonjuror, after the first day of deliberations and before a ver-
dict had been reached. A hearing was held on the motion for
new trial, and the juror testified that he telephoned his brother
and learned that their father was acquainted with Newman
and Stricklin. But the juror testified he did not know either of
them personally.
Newman’s postconviction motion alleges his appellate coun-
sel was ineffective for failing to raise, on direct appeal, that his
trial counsel was ineffective for (1) failing to object to certain
remarks by counsel and (2) conceding that portions of the
juror’s affidavit were inadmissible.
(a) Failure to Object
Newman’s postconviction motion alleges his trial counsel
should have objected when an attorney appointed to represent
the juror accused of misconduct made substantive representa-
tions to the trial court instead of eliciting such information
41
See State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018) (alleged error
must be both specifically assigned and specifically argued to be considered
by appellate court).
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from the juror in question. Newman alleges his appellate
counsel was ineffective for failing to assign, on direct appeal,
that his trial counsel was deficient in failing to object to the
remarks of the juror’s attorney.
At the hearing on the motion for new trial, the parties dis-
puted the admissibility of the juror’s affidavit. Portions of that
affidavit averred that during trial, the juror
realized that I recognized people in the audience who
were familiar to me, then subsequently realized that I
knew both [Newman and Stricklin] and my family has
family relationships with them. In fact, at some point
I learned that . . . Newman had an altercation with my
father . . . and injured [my father’s] shoulder[.]
During the hearing, the juror’s attorney told the court the
juror had not actually learned of the altercation between
Newman and the juror’s father until after the verdicts were
returned. The court then asked the juror’s attorney whether the
juror recalled knowing Newman and Stricklin prior to return-
ing the verdicts, and the attorney responded, “No.”
Newman alleges that due to his counsel’s deficient perform­
ance in not objecting to this colloquy, the juror’s attorney was
permitted to testify on behalf of his client and Newman was
deprived of the opportunity to cross-examine the juror. The
files and records affirmatively refute this claim.
The records shows that contrary to the allegations made in
Newman’s motion for postconviction relief, Newman’s trial
counsel did object to counsel’s remarks, arguing the juror’s
attorney should not be permitted to testify for his client. The
court agreed. Then both Newman and Stricklin were permitted
to call the juror as a witness and ask questions about the timing
and substance of the telephone conversation the juror had with
his brother.
Because the files and records affirmatively refute Newman’s
claim that his counsel failed to object to the complained-of
statements by the juror’s attorney, and also refute any claim
that he was denied an opportunity to question the juror directly,
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the postconviction court did not err in denying an evidentiary
hearing on this issue.
(b) Concession at Hearing
Newman also alleges his appellate counsel was ineffec-
tive for failing to raise, on direct appeal, that his trial counsel
was ineffective during the motion for new trial, because he
improperly conceded that a portion of the juror’s affidavit was
inadmissible.
The relevant portion of the affidavit averred, “During the
deliberations, the other jurors persuaded me to change my
vote to guilty primarily because [Newman and Stricklin] did
not testify and attempt to clear their names.” Newman alleges
his trial counsel was ineffective, because even though counsel
drafted the juror’s affidavit after interviewing the juror, coun-
sel “conceded and became submissive during the hearing on
the motion for new trial” and admitted that this paragraph of
the affidavit was not admissible under Nebraska law. The State
argues that trial counsel was not ineffective, because that por-
tion of the affidavit was plainly inadmissible under Nebraska
law and was properly stricken by the trial court.
Neb. Rev. Stat. § 27-606(2) (Reissue 2016) provides:
Upon inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occur-
ring during the course of the jury’s deliberations or to the
effect of anything upon his or any other juror’s mind or
emotions as influencing him to assent to or dissent from
the verdict or indictment or concerning his mental proc­
esses in connection therewith, except that a juror may tes-
tify on the question whether extraneous prejudicial infor-
mation was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to
bear upon any juror. Nor may his affidavit or evidence of
any statement by him indicating an effect of this kind be
received for these purposes.
[21] Section 27-606(2) prohibits a juror from testifying as
to any matter or statement occurring during the course of the
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jury’s deliberations. Thus, a juror’s affidavit may not be used
to impeach a verdict on the basis of jury motives, methods,
misunderstanding, thought processes, or discussions during
deliberations.42 Because the record shows counsel did not per-
form deficiently in conceding this point, the district court did
not err in denying postconviction relief without an evidentiary
hearing on this claim.
8. Crime Scene Investigator
Newman alleges appellate counsel was ineffective in fail-
ing to raise, on direct appeal, that trial counsel was ineffective
in failing to hire a crime scene investigator. He alleges vari-
ous items at the crime scene were inconsistent with Herrera-
Gutierrez’ testimony and that counsel should have hired an
investigator to rebut these inconsistencies.
Specifically, Newman alleges only one set of footprints
“‘with evidentiary value’” was found at the scene, but Herrera-
Gutierrez testified five people went in to the shop where the
murders occurred and only three came out. He alleges Herrera-
Gutierrez testified the victims were tied up and shot “‘real
fast,’” but blood splatter at the scene was on the ceiling and
the outside landing. He alleges Herrera-Gutierrez testified that
the victims were shot as they lay face down, but a shell casing
was found underneath one of their bodies.
Newman’s postconviction motion concedes that trial counsel
cross-examined the State’s witnesses on this evidence, and the
record confirms that Newman’s counsel presented evidence
regarding each of these issues either on direct examination or
through cross-examination at trial. But Newman alleges trial
counsel should also have hired a “crime scene investigator or
specialist” who “would and could have rebutted” this evidence.
Newman’s motion presents no allegations regarding what such
an investigator or specialist would have testified to if called, or
how such testimony would have rebutted the state’s evidence
or affected the outcome of the case.
42
See State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
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[22] A petitioner’s postconviction claims that his or her
defense counsel was ineffective in failing to investigate pos-
sible defenses are too speculative to warrant relief if the peti-
tioner fails to allege what exculpatory evidence the investiga-
tion would have procured and how it would have affected the
outcome of the case.43 The district court correctly concluded
that Newman’s conclusory allegations about the failure to
hire a crime scene investigator did not warrant an eviden-
tiary hearing.44
9. Failure to Obtain
Complete R ecord
Newman’s postconviction motion alleges appellate counsel
was ineffective for failing to obtain the complete record prior
to the direct appeal. He alleges the missing portion of the
record was a supplemental jury instruction not included in the
final instructions sent to the jury.
Newman’s motion does not allege how his lack of access
to that instruction affected his appeal or what assignment of
error was not raised on appeal due to the lack of access to that
record. The district court thus correctly found Newman did not
plead sufficient facts to necessitate an evidentiary hearing on
this claim.
10. Actual Innocence
Newman’s postconviction motion alleges he was actually
innocent of the crimes. He supports this allegation by ref-
erencing all of his alleged claims of ineffective assistance
of counsel, in addition to other unassigned errors during
trial. In his brief to this court, Newman contends the errors
of appellate counsel in failing to raise such issues on direct
appeal “taken as a whole establish that [he] was actually
innocent.”45 The trial court found Newman’s allegations of
43
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
44
See id.
45
Brief for appellant at 20.
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actual innocence were insufficient to show a constitutional
violation. We agree.
[23-25] In State v. Dubray,46 we explained:
A claim of actual innocence may be a sufficient alle-
gation of a constitutional violation under the Nebraska
Postconviction Act. The essence of a claim of actual
innocence is that the State’s continued incarceration of
such a petitioner without an opportunity to present newly
discovered evidence is a denial of procedural or substan-
tive due process. The threshold to entitle a prisoner to
an evidentiary hearing on such a postconviction claim is
“‘extraordinarily high.’” Such a petitioner must make a
strong demonstration of actual innocence because after
a fair trial and conviction, the presumption of inno-
cence vanishes.
Newman has not met his extraordinarily high threshold of
alleging facts sufficient to show he is actually innocent of the
crimes. The district court did not err in denying an evidentiary
hearing on this claim.
V. CONCLUSION
For the foregoing reasons, we conclude the district court
erred in denying Newman an evidentiary hearing on his
claim that trial counsel was ineffective for failing to inves-
tigate and present alibi evidence from Riley, Mariscal, and
two employees of Chubb Foods, and we reverse the court’s
decision in part and remand the matter for an evidentiary
hearing limited to that claim. In all other respects, we affirm
the district court’s denial of postconviction relief without an
evidentiary hearing.
A ffirmed in part, and in part reversed
and remanded with directions.
Heavican, C.J., not participating.
46
Dubray, supra note 18, 294 Neb. at 947-48, 885 N.W.2d at 551, quoting
State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). Accord Herrera v.
Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993).