State v. Allen , 301 Neb. 560 ( 2018 )

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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. ALLEN
Cite as 301 Neb. 560
State of Nebraska, appellee, v.
K evin A llen, appellant.
___ N.W.2d ___
Filed November 16, 2018. No. S-17-771.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. 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.
3. 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.
4. Postconviction. Postconviction relief is a very narrow category of
relief.
5. Postconviction: Proof. 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
6. ____: ____. In the absence of alleged facts that would render a judgment
void or voidable, the proper course is to overrule a motion for postcon-
viction relief without an evidentiary hearing.
7. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were or could have
been litigated on direct appeal.
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8. ____: ____. Plain error cannot be asserted in a postconviction proceed-
ing to raise claims of error by the trial court.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. Although
a motion for postconviction relief cannot be used to secure review of
issues which were or could have been litigated on direct appeal, when a
defendant was represented both at trial and on direct appeal by the same
lawyer, the defendant’s first opportunity to assert ineffective assistance
of counsel is in a motion for postconviction relief.
10. ____: ____: ____. To establish a right to postconviction relief because
of counsel’s ineffective assistance, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law, and then the defendant
must show that counsel’s deficient performance prejudiced the defense
in his or her case.
11. Effectiveness of Counsel: Proof. To establish the prejudice prong of
a claim of ineffective assistance of counsel, the defendant must dem-
onstrate a reasonable probability that but for counsel’s deficient per­
formance, the result of the proceeding would have been different.
12. Trial: Polygraph Tests. The results of polygraph examinations are not
admissible into evidence.
13. Postconviction. An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or law without
supporting facts.
Appeal from the District Court for Douglas County: W.
M ark Ashford, Judge. Affirmed.
Kevin Allen, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Funke, J.
Kevin Allen appeals from the denial of postconviction relief
without an evidentiary hearing. Allen asserts that he was
denied a fair trial, that he was prejudiced by ineffective assist­
ance of counsel at trial and on direct appeal, and that he was
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STATE v. ALLEN
Cite as 301 Neb. 560
entitled to a hearing based on newly discovered evidence. We
determine that Allen’s postconviction motion fails to state a
claim for relief. Thus, we affirm the district court’s denial of
postconviction relief without an evidentiary hearing.
BACKGROUND
This appeal follows our decision on Allen’s direct appeal in
State v. Allen,1 which affirmed Allen’s jury trial convictions of
first degree murder and use of a firearm to commit a felony
in the shooting of an Omaha, Nebraska, police officer, James
B. “Jimmy” Wilson, Jr. The district court for Douglas County
sentenced Allen to life imprisonment on the murder conviction
and 18 to 20 years’ imprisonment on the use of a firearm to
commit a felony conviction, to be served consecutively. We
determined that all of Allen’s assigned errors on direct appeal
were without merit. As we will discuss, Allen’s motion for
postconviction relief raises many of the same issues addressed
on direct appeal.
Shooting
On August 20, 1995, at 8 p.m., Wilson radioed for a license
plate check on a brown Chevrolet van and was informed that
the plate was expired and was assigned to a blue Mazda.
Wilson radioed that he would stop the van and began to radio
the location of the stop but never completed his communi-
cation. Police officers in the area reported hearing multiple
gunshots. Officers responded to an “officer needs assistance”
call and discovered Wilson’s police cruiser at 40th and Blondo
Streets. The cruiser had been hit by 11 rounds of gunfire.
Wilson was shot four times; three times in the head. He was
found deceased with his seatbelt still on and the radio micro-
phone still in his hand.
At the time, Allen was a member of the “South Family
Bloods” gang and had the street nickname “Dumb.” On August
1
State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997), disapproved in part,
State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
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20, 1995, members of the gang, including Allen, were driving
around Omaha in a brown and tan Chevrolet van. Allen was
driving the van earlier in the afternoon and stopped at a con-
venience store to purchase gasoline. Dion Harris later replaced
Allen as the driver and drove for the remainder of the day.
Harris drove to his mother’s house, and Tavias Minor went
inside and returned with a bag containing a rifle with a banana-
shaped ammunition clip. The group then headed to North
Omaha and stopped for gas at another convenience store at
approximately 7:35 p.m. When they left the store, Harris was
sitting in the driver’s seat, Ronney Perry was sitting in the pas-
senger’s seat, Minor was seated behind the driver, and Allen
was seated in the back next to the sliding door.
Shortly thereafter, Wilson activated his police cruiser’s over-
head lights and pulled over the van. Three eyewitnesses—
LaKeisha Lucas, LaTasha Lucas, and Stephanie Bean—told
police that they saw one gunman exit the van through the
sliding door and shoot Wilson. The murder weapon was never
recovered, but police determined that the weapon that killed
Wilson was a semiautomatic rifle. Witnesses provided incon-
sistent renditions of the facts during the postshooting inves-
tigation, which we summarize below as relevant to Allen’s
postconviction appeal.
Postshooting Chronology
Police tracked the van to a housing community in South
Omaha and conducted door-to-door interviews and searches.
Otis Simmons, Perry, Harris, Minor, and the owner of the van
were contacted by the police and taken to the police station for
additional questioning. Simmons initially stated that he was
at the movies at the time of the shooting, but then stated that
he, Perry, Harris, Minor, Allen, and Quincy Hughes all par-
ticipated in the shooting and that Allen was the shooter. Perry
stated that Simmons, Harris, and Minor were at the scene, that
Hughes and Allen jumped out of the van, and that Allen was
the shooter.
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Police executed a search warrant on Hughes’ home and
arrested Hughes and seized some rap lyrics he had writ-
ten. Hughes provided a detailed alibi. Eyewitnesses Bean,
LaKeisha Lucas, and Tyran McCleton identified Hughes out
of a lineup as the shooter. LaTasha Lucas stated that Hughes
closely resembled the shooter. Simmons and Perry changed
their stories and claimed that Hughes was the shooter, not
Allen. Prosecutors outlined this evidence at a preliminary hear-
ing to establish probable cause that Hughes was the shooter.
Two months later, Simmons and Perry both recanted their
statements that Hughes was the shooter after being given poly-
graph examinations. The results indicated that Simmons and
Perry were deceptive when they denied that Hughes was the
shooter. Simmons went back to his original statement that he
was at the movies. Perry reverted to his earlier statement that
Allen was the shooter. The State reopened the investigation and
conducted further interviews of alibi witnesses. In exchange for
time served, Minor agreed to testify that Allen shot Wilson and
that Simmons and Hughes were not at the scene. Minor sat for
a deposition conducted by Allen’s counsel.
Trial
The State dismissed charges against Hughes without preju-
dice and filed charges against Allen. At trial, Perry testified
that Allen was the shooter. The following exchange occurred
during direct examination of Perry:
“Q. Okay. And after [Harris] pulled over, did anybody
say anything?
“A. [Perry]: [Allen] said he ain’t going back to jail.
“Q. Okay. What happened then?
“A. He got out and started shooting.
“Q. Who did?
“A. Kevin.
“Q. Kevin Allen?
“A. Yeah.
“. . . .
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“Q. Okay. So Kevin Allen, or Dumb, got out. Did he
have a gun with him when he got out of the van?
“A. Yep.
“Q. What gun?
“A. The rifle.
“Q. Okay. And what door did he get out of . . . ?
“A. Sliding door.”2
The State supported its theory that Allen was the shooter by
offering Minor’s deposition testimony. Security photographs
were offered to show that Allen purchased gasoline at the first
convenience store. The police laboratory identified nine latent
fingerprints from Allen around the driver’s seat and near the
rear passenger seat next to the sliding door. No fingerprints
from Hughes were found in the van.
Allen’s theory of defense was that he was innocent and that
Hughes was the shooter. The defense focused on the incon-
sistent accounts given by Simmons and Perry, the fact that
the State initially charged Hughes, and the fact that Bean and
McCleton testified that Hughes was the shooter. In rebuttal, the
State provided testimony in support of Hughes’ alibi. After the
close of evidence, and following arguments and deliberations,
the jury convicted Allen on both counts.
Direct A ppeal
On direct appeal, Allen assigned, restated, that the district
court erred in (1) refusing to instruct the jury that it could not
speculate as to what potential alibi witnesses for Simmons
and Hughes, who were identified but not called, might have
said had they testified; (2) refusing to instruct the jury that the
charges against Hughes had been dismissed without prejudice
and that the State could have refiled charges against Hughes;
(3) allowing the State to read into evidence Minor’s deposition
testimony after he asserted his Fifth Amendment rights part
way through his live testimony; (4) excluding from evidence
2
Id. at 191, 560 N.W.2d at 835.
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four of the five offered exhibits that contained rap lyrics writ-
ten by Hughes and refusing Allen’s requested jury instruction
that a felon (Hughes) in possession of a gun with a barrel
less than 18 inches in length is guilty of a Class IV felony;
(5) prohibiting inquiry into the fact that Simmons and Perry
failed polygraph examinations when they denied Hughes was
the shooter; (6) excluding from evidence the information filed
against Hughes and the State’s position at the preliminary
hearing that Hughes shot Wilson; (7) denying Allen’s motions
that would have allowed for African-American jurors to be
selected; (8) applying the rule that minorities can be preemp-
torially challenged as long as a race-neutral reason for the
challenge can be articulated; and (9) permitting the preemptory
challenge of juror No. 43, an African-American.
We found no merit to any of Allen’s assigned errors. We
found no merit to Allen’s first assignment of error, because,
contrary to Allen’s assertion, the court instructed the jury to
not speculate as to what the testimony of witnesses who were
not called would have been. We found no merit to Allen’s
second assignment of error, because even though the State did
not believe that Hughes shot Wilson after reexamining Hughes’
alibi, the State never suggested to the jury that charges against
Hughes could not be refiled, and Allen was free to argue that
the charges against Hughes could be refiled if additional evi-
dence pointed to Hughes.
Regarding Allen’s third assignment of error, we found that
Minor’s out-of-court deposition testimony was admissible
without violating the Confrontation Clause, because the tes-
timony was properly admitted under Neb. Evid. R. 804(2)(a),
Neb. Rev. Stat. § 27-804(2)(a) (Reissue 1995), a firmly rooted
hearsay exception. As an issue of first impression, we con-
cluded that rule 804(2)(a) controlled over Neb. Rev. Stat.
§ 29-1917(4) (Reissue 1995) regarding the use of a deposi-
tion when the deponent is unavailable as a witness at trial.
We found that the requirements of rule 804(2)(a) were met,
because Minor’s deposition was taken by Allen’s counsel
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in compliance with Nebraska law and in the course of the
same criminal proceeding in which it was offered and because
Allen’s counsel had an opportunity to develop Minor’s tes-
timony with a similar interest or motive on matters related
to Allen’s defense. For example, Allen’s counsel questioned
Minor, knowing that Minor would testify that Allen was
the shooter and that Minor would provide this testimony
based on an agreement he made with the State. We there-
fore agreed with the district court’s conclusion that Minor’s
deposition testimony was reliable and admissible under rule
804(2)(a).
We found no merit to Allen’s fourth assignment of error,
because the court did admit an exhibit that contained rap lyrics
written by Hughes and excluded four other exhibits containing
Hughes’ lyrics as cumulative of evidence already admitted.
The exhibit admitted by the court provided:
“[Gates Of Hell.] My life has been hell in and out of
jail so all I got is a fuck it mentality and kill tha devil
when he comes for me Im gona have to hold court in the
street G, Ill be dam if I go back to a cell . . . .”3
We also concluded that the court did not err in rejecting
Allen’s proposed instruction stating that a felon who possesses
a firearm with a barrel less than 18 inches commits a felony
offense. There was testimony at trial that a handgun was in the
van on the night of the shooting, and the parties stipulated that
Hughes had a prior felony conviction. Allen argued the court
should have given the proposed instruction in order to allow
him to demonstrate that Hughes had a motive to shoot Wilson.
We determined that Allen was not prejudiced by the court’s
refusal to give the requested instruction, because the instruc-
tion was irrelevant to the charges against Allen and, even
without the instruction, Allen had an opportunity to introduce
evidence and argue to the jury that Hughes had a motive to
shoot Wilson.
3
Id. at 202, 560 N.W.2d at 841.
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STATE v. ALLEN
Cite as 301 Neb. 560
Allen’s fifth assignment of error was without merit, because
the court properly concluded that evidence concerning a poly-
graph examination is inadmissible under Nebraska law. We
found no merit to Allen’s sixth assignment of error, because
the court did not err in excluding from evidence the State’s
position at the preliminary hearing that Hughes was the
shooter, the information filed against Hughes, and Hughes’
docket sheet. We found the proffered evidence was not rel-
evant, because the State’s decision to charge Hughes was not
probative as to whether Allen shot Wilson. Rather, the rel-
evant evidence was the witness testimony regarding the facts
and events surrounding the shooting. Moreover, the State had
admitted throughout trial that it made a mistake in charging
Hughes. Therefore, the excluded evidence was cumulative to
evidence before the jury.
We found no merit to Allen’s seventh and eighth assign-
ments of error, because Allen’s position was contrary to settled
law regarding jury selection proceedings. Lastly, we found no
merit to Allen’s ninth assignment of error, because the State
provided a race-neutral reason for excusing juror No. 43.4
Postconviction
In the fall of 2007, the clerk of the district court for Douglas
County docketed a verified motion for postconviction relief
filed by Allen, pro se. For reasons not provided in this record,
the court did not rule upon Allen’s pro se motion, a delay
which troubles this court. The court later appointed counsel
to represent Allen on his postconviction motion in district
court. Through counsel, Allen filed an amended motion for
postconviction relief on July 1, 2016. Allen’s amended motion
asserted five causes of action: (1) denial of the right to a fair
trial; (2) ineffective assistance of trial counsel; (3) ineffec-
tive assistance of appellate counsel; (4) prosecutorial miscon-
duct; and (5) newly discovered evidence. The State moved to
4
See Allen, supra note 1.
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dismiss Allen’s amended motion, and the court granted the
State’s motion.
The court found Allen’s first and fourth causes of action
were procedurally barred, because Allen’s arguments about
the fairness of trial and prosecutorial misconduct could have
been brought on direct appeal. The court found Allen’s second
cause of action was not procedurally barred, because Allen
had the same counsel at trial and on direct appeal and this
was Allen’s first opportunity to raise ineffective assistance
of counsel claims. The court, however, determined that Allen
had not pointed to any defective actions taken by counsel. The
court, for the same reasons, determined Allen’s cause of action
for ineffective assistance of appellate counsel was without
merit and stated that inclusion of Allen’s postconviction argu-
ments on direct appeal would not have changed the result of
the appeal.
The court found no merit to Allen’s fifth cause of action
regarding the discovery of new evidence. The court found the
proper course would have been to file a motion for new trial
under Neb. Rev. Stat. § 29-2101(5) (Reissue 2016) rather than
to pursue postconviction relief. The court found Allen was not
entitled to an evidentiary hearing.
Allen appealed and proceeds as a self-represented litigant.
On appeal, he contends the court erred in failing to grant him
an evidentiary hearing.
ASSIGNMENTS OF ERROR
Allen assigns, condensed and restated, that the district court
erred in (1) prohibiting Allen from cross-examining Minor and
failing to strike Minor’s trial testimony after Minor invoked
his Fifth Amendment rights and permitting Minor’s deposi-
tion to be read into evidence, in contravention of Allen’s
Sixth Amendment right to confront his accuser; (2) failing to
grant Allen postconviction relief based on ineffective assist­
ance of trial counsel; (3) failing to grant Allen postconviction
relief based on ineffective assistance of appellate counsel;
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and (4) failing to grant Allen an evidentiary hearing based on
newly discovered evidence.
STANDARD OF REVIEW
[1] 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.5
ANALYSIS
[2-6] 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 constitu-
tional rights such that the judgment was void or voidable.6 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
Relief under the Nebraska Postconviction Act 8 is a very nar-
row category of relief.9 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 defend­
ant is entitled to no relief.10 In a few previous postconviction
appeals, we have stated that in the absence of alleged facts
that would render the judgment void or voidable, the proper
5
State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).
6
State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
7
Id.
8
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
9
Foster, supra note 5.
10
Newman, supra note 6.
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course is to dismiss the motion for postconviction relief for
failure to state a claim.11 This articulation is couched in terms
of a rule of civil pleading,12 and it originated prior to our
opinion in State v. Robertson.13 In Robertson, we clarified that
postconviction proceedings are not governed by the Nebraska
Court Rules of Pleading in Civil Cases.14 Thus, we take this
opportunity to disapprove of the former articulation. A more
precise formulation is that in the absence of alleged facts that
would render the judgment void or voidable, the proper course
is to overrule the motion for postconviction relief without an
evidentiary hearing.
Fair Trial Challenge
Procedurally Barred
Allen asserts that the district court erred in failing to grant
an evidentiary hearing based on allegations that the district
court committed prejudicial error during Allen’s trial. Allen
argues that the court erred in permitting Minor to invoke his
Fifth Amendment rights against self-incrimination midway
through his testimony. Allen also asserts that the court erred
in failing to strike Minor’s in-court testimony and permit-
ting the State to read portions of Minor’s deposition into
evidence.
[7,8] We conclude that the district court properly found
these allegations were procedurally barred, because they could
have been and actually were raised and addressed on direct
appeal. Postconviction relief is available only to remedy preju-
dicial constitutional violations.15 A motion for postconviction
relief cannot be used to secure review of issues which were
11
See, Foster, supra note 5; State v. Haynes, 299 Neb. 249, 908 N.W.2d 40
(2018); State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
12
See Neb. Ct. R. Pldg. § 6-1112(b)(6).
13
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
14
Id.
15
State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017).
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or could have been litigated on direct appeal.16 Allen asserts
that we should consider his arguments that the trial court erred
under a plain error analysis. Plain error cannot be asserted in a
postconviction proceeding to raise claims of error by the trial
court.17 We therefore affirm the denial of postconviction relief
as to Allen’s first assignment of error.
Trial Counsel Was
Not Ineffective
[9] Although a motion for postconviction relief cannot be
used to secure review of issues which were or could have been
litigated on direct appeal, when a defendant was represented
both at trial and on direct appeal by the same lawyer, the
defendant’s first opportunity to assert ineffective assist­ance of
counsel is in a motion for postconviction relief.18 Allen’s inef-
fective assistance of trial counsel claim is properly before us.
[10,11] To establish a right to postconviction relief based
on a claim of ineffective assistance of counsel, the defendant
has the burden, in accordance with Strickland v. Washington,19
to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law, and then the
defend­ ant must show that counsel’s deficient performance
prejudiced the defense in his or her case.20 To establish the
prejudice prong of a claim of ineffective assistance of coun-
sel, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different.21 A court may address
16
Id.
17
State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).
18
Id.
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
20
See Foster, supra note 5.
21
Id.
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the two prongs of this test, deficient performance and preju-
dice, in either order.22
Allen asserts that his trial counsel was ineffective in fail-
ing to call certain witnesses at trial to support his defense
that he was innocent. The postconviction motion before the
district court referred to trial counsel’s alleged failure to
investigate, interview, or call nine different witnesses; Allen’s
brief on appeal contends that three witnesses should have been
called to testify: Clarence Burns, Clyde Smith, and Richard
Circo.
Allen alleges that had Burns been called as a witness, he
would have testified that the individual who shot Wilson
matched the description of Hughes. However, the jury was
already provided with testimony from multiple witnesses that
Hughes was the shooter. Allen does not explain how the
testimony of Burns would have changed the jury’s decision,
given that the jury was already presented with evidence sup-
porting Allen’s theory of the case. Allen’s postconviction
motion before the district court asserted that Burns’ testimony
would have bolstered a description of the shooter provided
by McCleton. However, there is no reason why McCleton’s
testimony was critical to the jury’s decision. While McCleton
stated that Hughes was the shooter, he admitted that he
never saw the individual who shot the gun, and only heard
the gunshots.
Allen contends that had Smith been called to testify, he
would have said that when the van stopped, he saw Minor
and two other individuals who he was unable to identify
exit the van. In addition, Smith was unable to identify Allen
out of a lineup. Like the testimony which Burns allegedly
would have provided, Smith’s testimony would not have
been critical and would not have proved whether Allen was
or was not the shooter at the scene of the murder at 40th and
Blondo Streets.
22
Id.
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Allen claims that his counsel should have offered the testi-
mony of Circo, a polygraph examiner with the Omaha Police
Department who conducted polygraph tests on Simmons and
Perry. Circo stated in his deposition that when Simmons and
Perry denied that Hughes was the shooter, they were not truth-
ful. However, this evidence would have been inadmissible
under Nebraska law.
[12] We have consistently held that the results of polygraph
examinations are not admissible into evidence in this state.23
We have stated that “the scientific principle involved in the use
of such polygraph has not yet gone beyond the experimental
and reached the demonstrable stage, and that it has not yet
received general scientific acceptance,”24 and we have gener-
ally affirmed the exclusion of polygraph evidence. We have
more recently stated that “[t]here is no consensus that poly-
graph evidence is reliable, and a fundamental principle of the
justice system is that the jury is the lie detector, determining
the weight and credibility of witness testimony.”25
We have specifically prohibited the admission of the results
of polygraph examinations in evidence, and we have disap-
proved of any reference to polygraph tests.26 Although the
results of a polygraph test are not admissible in evidence, the
“mere mention of the word ‘polygraph,’ absent more, does not
constitute prejudicial error.”27 But we have held that a mere
reference to a polygraph examination is improper where the
23
See, Allen, supra note 1; State v. Walker, 242 Neb. 99, 493 N.W.2d 329
(1992); State v. Steinmark, 195 Neb. 545, 239 N.W.2d 495 (1976).
24
Boeche v. State, 151 Neb. 368, 377, 37 N.W.2d 593, 597 (1949). See
Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957).
25
State v. Castaneda, 287 Neb. 289, 303, 842 N.W.2d 740, 752 (2014),
citing United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed.
2d 413 (1998).
26
See State v. Temple, 192 Neb. 442, 222 N.W.2d 356 (1974).
27
State v. Anderson and Hochstein, 207 Neb. 51, 67, 296 N.W.2d 440, 451
(1980). See State v. Beach, 215 Neb. 213, 337 N.W.2d 772 (1983).
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credibility of a witness is impacted.28 Our decisions in this
area have recognized that it is the jury’s responsibility to
determine the credibility of witnesses and that polygraph evi-
dence interferes with this process.
Circo’s alleged testimony would have been introduced for
the purpose of undermining the credibility of witnesses based
on his reading of their polygraph examinations. This evi-
dence would have interfered with the jury’s role to determine
the credibility of Simmons and Perry and would not have
been admissible.
Because the alleged testimony of Burns and Smith would
not have affected the outcome of the case, and because
Circo’s testimony would have been prohibited, Allen’s claim
that trial counsel was ineffective for declining to call these
witnesses is without merit.
Allen asserts that he was prejudiced by trial counsel’s fail-
ure to object to the admission of an assault rifle with a banana-
shaped ammunition clip into evidence. Similarly, Allen asserts
that a certain witness should not have been permitted to testify
that police found a black gun in her apartment, but that the
witness did not know how the gun got there. The issue before
the jury was not whether guns were involved in the murder or
whether a shooting had occurred, but whether the State proved
that Allen shot Wilson beyond a reasonable doubt. As there
was no dispute that someone exited the van and shot Wilson,
there is no reason why the probative value of evidence of fire-
arms would have been substantially outweighed by the danger
of unfair prejudice.29 Therefore, Allen has not shown that an
objection would have led to the exclusion of the evidence.
Counsel is not ineffective for failing to make an objection that
has no merit.30
28
See, Castaneda, supra note 25; State v. Riley, 281 Neb. 394, 796 N.W.2d
371 (2011).
29
See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).
30
See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
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We therefore affirm the denial of postconviction relief as to
Allen’s second assignment of error.
A ppellate Counsel Was
Not Ineffective
Allen’s motion for postconviction relief alleged that his
appellate counsel was ineffective by failing to assign that the
district court erred in permitting Minor to invoke his Fifth
Amendment rights against self-incrimination midway through
his testimony, failing to strike Minor’s in-court testimony,
and permitting the State to read portions of Minor’s deposi-
tion into evidence. In addition, Allen contended that appellate
counsel was ineffective for failing to raise claims of prosecuto-
rial misconduct.
When a claim of ineffective assistance of appellate counsel
is based on the failure to raise a claim on appeal of ineffec-
tive assistance of trial counsel (a layered claim of ineffective
assistance of counsel), an appellate court will look at whether
trial counsel was ineffective under the Strickland 31 test.32 If
trial counsel was not ineffective, then the defendant was not
prejudiced by appellate counsel’s failure to raise the issue.33
Much like claims of ineffective assistance of trial counsel, the
defendant must show that but for counsel’s failure to raise the
claim, there is a reasonable probability that the outcome would
have been different.34
However, in Allen’s brief, he merely argues that his defense
“was highly prejudiced by appella[te] counsel[’s] lack of con-
cern or interest in effectively challenging . . . constitutional
concerns on direct appeal.”35 He fails to discuss how appel-
late counsel lacked concern or lacked interest. In addition, he
31
Strickland, supra note 19.
32
Foster, supra note 5.
33
Id.
34
Id.
35
Brief for appellant at 30.
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fails to discuss any of the contentions raised in his motion for
postconviction relief. As we have said many times, an alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered by
an appellate court.36 Because Allen’s brief fails to argue the
assigned error, we decline to address it. We therefore affirm the
denial of postconviction relief as to Allen’s third assignment
of error.
Newly Discovered Evidence
Claim Without Merit
[13] Allen asserts that he should have been granted an
evidentiary hearing based on the claim that newly discov-
ered evidence suggests that law enforcement officials might
have tampered with forensic evidence involved in his case.
Allen’s claim concerns David Kofoed, the former supervisor
of the Crime Scene Investigation Division for the Douglas
County, Nebraska, sheriff’s office. Kofoed testified in Allen’s
trial about diagramming the crime scene at 40th and Blondo
Streets. Allen asserts, quite generically, that based on Kofoed’s
involvement in the investigation, any forensic evidence in the
case, such as fingerprints and ballistics information, has been
rendered unreliable. An evidentiary hearing is not required
when a motion for postconviction relief alleges only conclu-
sions of fact or law without supporting facts.37
Kofoed’s testimony showed that he did not play a major
role in the evidence which led the jury to convict Allen.
Kofoed was responsible for measuring the distance between
items of physical evidence at the crime scene that were located
and marked, mostly shell casings. He did not indicate that
he collected any evidence, and he did not mention Allen in
his testimony. He merely provided a description of the scene
and laid foundation for the admission of a photograph of the
36
State v. Lotter, ante p. 125, 917 N.W.2d 850 (2018).
37
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
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police cruiser. We agree with the district court that “[s]imply
alleging Kofoed’s involvement under these circumstances does
not warrant an evidentiary hearing . . . .”38
Similarly, Allen’s motion and brief discuss a 2012 bur-
glary case in which a crime laboratory technician and her
colleagues misidentified a fingerprint. Allen claims, in light
of this new information, the evidence of fingerprint analysis
used in Allen’s trial was unreliable and inadmissible. Here,
Allen’s broad and generalized allegations do not include any
factual support to suggest that his fingerprints were misidenti-
fied. In addition, Allen has failed to demonstrate that had the
jury been prohibited from considering the fact that nine latent
fingerprints of Allen’s were found in the van, the jury would
not have still convicted him based on eyewitness testimony.
We determine Allen’s request for an evidentiary hearing based
on newly discovered evidence is without merit. We therefore
affirm the denial of postconviction relief as to Allen’s fourth
assignment of error.
CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court denying Allen’s motion for postconviction relief
without an evidentiary hearing.
A ffirmed.
Freudenberg, J., not participating.
38
See id.