State v. Howard , 29 Neb. Ct. App. 860 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
05/18/2021 08:09 AM CDT
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STATE v. HOWARD
Cite as 29 Neb. App. 860State of Nebraska, appellee, v.
John J. Howard, appellant.
___ N.W.2d ___
Filed May 18, 2021. No. A-20-446.
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: Proof. Under the postconviction statutes, a court is not
obligated to hold an evidentiary hearing if the files and records of the
case affirmatively show that the prisoner is entitled to no relief.
3. Postconviction. The district court has discretion to adopt reasonable
procedures for determining what the motion and the files and records
show, and whether the defendant has raised any substantial issues, before
granting a full evidentiary hearing on a postconviction motion.
4. Postconviction: Appeal and Error. An appellate court examines the
procedures used by the district court to determine whether to grant an
evidentiary hearing for abuse of discretion, which exists only when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying a just result in matters
submitted for disposition.
5. Postconviction: Effectiveness of Counsel: Claims: Appeal and
Error. When an appellate court finds, on direct appeal, that the record
is not sufficient to resolve a claim of ineffective assistance, it should
not be misunderstood as a finding that the claim will necessarily
require an evidentiary hearing if raised in a motion for postconviction
relief, because that determination is governed by an entirely differ-
ent standard.
6. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
and Error. Just because an appellate court finds the record on direct
appeal is insufficient to resolve a claim of ineffective assistance, it
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STATE v. HOWARD
Cite as 29 Neb. App. 860does not mean that a postconviction court will necessarily be pre-
cluded from later finding the existing record affirmatively refutes the
same claim.
7. 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.
8. 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.
9. ____: ____: ____. 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.
10. 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.
11. ____: ____. 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.
12. Postconviction: Effectiveness of Counsel: Proof. In order to establish
a right to postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden first 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 in
the area.
13. Effectiveness of Counsel: Proof. To establish the prejudice prong of a
claim of ineffective assistance of counsel, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient perform­
ance, the result of the proceeding would have been different. A reason-
able probability does not require that it be more likely than not that
the deficient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine confidence in
the outcome.
14. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
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STATE v. HOWARD
Cite as 29 Neb. App. 860Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Kenneth Jacobs, of Jacobs Alexander Law, L.L.C., for
appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Moore, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
John J. Howard appeals the order of the district court for
Douglas County which denied his verified motion for postcon-
viction relief without holding an evidentiary hearing. He chal-
lenges the procedure the court followed prior to ruling on his
motion and the decision to deny him an evidentiary hearing.
We affirm.
BACKGROUND
Howard was charged with first degree sexual assault, sexual
assault of a child, and first degree sexual assault of a child. The
charges were based on allegations made by two of his daugh-
ters, M.H. and S.H., ages 22 and 16 respectively at the time of
trial. Both daughters claimed that when they were around the
ages of 4 or 5, Howard would digitally penetrate them when
giving them baths. S.H. also described incidents, prior to the
time she was in third grade, where Howard would force her to
perform oral sex on him and would touch her vagina or force
her to touch his penis.
The matter proceeded to a jury trial, and after the close of
evidence and deliberations, the jury found Howard guilty of all
three charges. He was sentenced to a total of 77 to 113 years’
imprisonment.
Howard appealed to this court. We affirmed his convictions
and sentences on direct appeal but found that the record was
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Cite as 29 Neb. App. 860insufficient to address several of his ineffective assistance
of counsel claims. See State v. Howard, 26 Neb. App. 628,
921 N.W.2d 869 (2018). The Nebraska Supreme Court denied
Howard’s petition for further review, and the mandate issued in
March 2019.
On February 27, 2020, Howard filed a verified motion for
postconviction relief, which asserted several claims of ineffec-
tive assistance of counsel. Specifically, he claimed that his trial
counsel was ineffective in failing to timely move for a mistrial
during his ex-wife’s testimony, failing to cross-examine M.H.
as to whether she immediately reported to her mother inap-
propriate touching by her grandfather, failing to call Dr. Kirk
Newring as an expert witness at trial, and failing to properly
investigate and present evidence in 16 enumerated respects. He
additionally alleged that his appellate counsel was ineffective
in failing to assign as error on direct appeal his trial counsel’s
failure to object during the testimony of two of the State’s wit-
nesses, a forensic interviewer and S.H.’s counselor.
The district court directed the State to respond to the motion,
but it did not do so. In a subsequent written order, the court
denied postconviction relief without holding an evidentiary
hearing. Howard appeals.
ASSIGNMENTS OF ERROR
Howard assigns that the district court erred in (1) failing to
hold a “records” hearing or identify the files and records upon
which it relied and (2) denying his motion for postconviction
relief without an evidentiary hearing.
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. State v.
Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
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STATE v. HOWARD
Cite as 29 Neb. App. 860ANALYSIS
Failure to Hold Records Hearing.
Howard first challenges the procedure the district court fol-
lowed in this case, asserting that the district court abused its
discretion in failing to hold a records hearing. We disagree.
[2-4] Under the postconviction statutes, a court is not obli-
gated to hold an evidentiary hearing if the files and records of
the case affirmatively show that the prisoner is entitled to no
relief. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). And
the district court has discretion to adopt reasonable procedures
for determining what the motion and the files and records show,
and whether the defendant has raised any substantial issues,
before granting a full evidentiary hearing. Id. We examine these
procedures for abuse of discretion, which exists only when the
reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition. Id.Howard relies upon State v. Glover, 276 Neb. 622, 756
N.W.2d 157 (2008), to support his argument in the present
case. In Glover, the defendant filed a motion for postconvic-
tion relief alleging ineffective assistance of counsel. The State
filed a motion asking the court to deny relief without conduct-
ing an evidentiary hearing. The trial court held a hearing on
the State’s motion at which it received into evidence a copy
of trial counsel’s deposition which had been taken after the
postconviction motion was filed. The court then relied on the
deposition to conclude that the files and records affirmatively
showed the defendant was not entitled to relief.
On appeal, the Supreme Court noted that trial courts have
discretion to adopt reasonable procedures for determining what
files and records it should review before granting a full eviden-
tiary hearing and observed that in general, it has allowed courts
to (1) order the State to respond to a prisoner’s postconviction
motion or to show cause why an evidentiary hearing should
not be held, (2) allow the State to file a motion to deny an
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Cite as 29 Neb. App. 860evidentiary hearing, and (3) hold a records hearing for receiv-
ing into evidence the relevant files and records that the court
may need to review in considering whether to grant or deny
an evidentiary hearing. Id. The Supreme Court also cited its
prior holdings that if a court does not receive into evidence the
relevant case records and files at a records hearing, the court
should certify and include in the transcript the files and records
it considered in denying relief. Id.The Supreme Court pointed out that in previous cases, the
files and records that the district court received at the records
hearings were limited to the prisoner’s trial files and records.
Id. Thus, the “files and records of the case,” as the term is used
in Neb. Rev. Stat. § 29-3001(2) (Reissue 2016), upon which
a postconviction court should rely in denying an evidentiary
hearing, are the files and records existing before the postcon-
viction motion is filed. State v. Glover, supra. The Supreme
Court therefore disapproved of the procedure used by the dis-
trict court.
We do not find that State v. Glover, supra, mandates that a
trial court hold a records hearing before ruling on a postconvic-
tion motion. The issue in Glover was if a trial court does hold a
records hearing, whether it could receive new evidence at that
hearing. And the Supreme Court determined that it could not,
reasoning that “receiving new evidence at a records hearing
would create chaos,” because either the State or the prisoner
could be unprepared to respond to new evidence, and that
unpreparedness could result in unnecessary due process chal-
lenges from prisoners. State v. Glover, 276 Neb. at 629, 756
N.W.2d at 163. Nor does Glover require a trial court to elect
one of the three procedural options the Supreme Court has
approved in the past. Rather, it reinforces that a trial court is
allowed discretion to adopt its own reasonable procedures for
determining what files and records it should review, so long
as that discretion comports with the specific procedural rules
mandated by § 29-3001. The question in the present case is
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Cite as 29 Neb. App. 860whether the district court’s procedure was reasonable or consti-
tuted an abuse of discretion.
In State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011), the
trial court denied an evidentiary hearing on a postconviction
motion because it found that the defendant had asked for con-
tinuances, which tolled the time in which the State had to com-
mence the trial. Because of this tolling, the court concluded
that the State had not violated the defendant’s right to a speedy
trial and denied postconviction relief without an evidentiary
hearing. On appeal, however, the Supreme Court observed that
the files and records of the case did not show when the court
granted the continuances or for how long the matters were
continued. In other words, the files and records of the case did
not show that the defendant actually moved for continuances
and thus did not show that the State did not violate his speedy
trial right. Accordingly, because the records did not affirma-
tively show that the defendant was not entitled to relief, the
Supreme Court held that the trial court should have certified
and included in the transcript any files or records, including
any documents related to the supposed continuances, that it
considered in denying an evidentiary hearing.
The reason for this requirement is “obvious.” Id. at 665,
807 N.W.2d at 107. When a trial court denies an evidentiary
hearing based upon documents it does not certify and include
in the transcript, it effectively denies the movant a meaningful
appeal, leaving the appellate court with only the option of tak-
ing the trial court’s word for the matter, which it will not do.
See id.
Thereafter, in State v. Torres, 300 Neb. 694, 915 N.W.2d
596 (2018), the defendant argued that the trial court violated
State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008), because
it did not hold a records hearing or otherwise identify the
files and records on which it relied in denying postconviction
relief without an evidentiary hearing. The Supreme Court in
Torres observed that the trial court’s order made express find-
ings regarding the history of the defendant’s case and based
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Cite as 29 Neb. App. 860those findings on its review of the files and records in the case.
The court’s order also made specific findings regarding various
dates relevant to its conclusion that the motion was barred by
the 1-year statute of limitations.
The Supreme Court in Torres found that it was plainly
evident from the trial court’s order which files and records it
relied upon, and all such records existed before the motion was
filed and were contained in the transcript. It therefore found no
merit to the defendant’s assignment of error, determining that
there was no need to remand the matter for a formal records
hearing under Glover.
Considering the rationale from the above-cited authority,
we find no abuse of discretion in the procedure the district
court followed in the present case. Unlike in State v. Glover,
supra, the files and records upon which the district court
relied existed before Howard filed his motion for postconvic-
tion relief and were available to and considered by this court
on direct appeal. Contrary to State v. Lee, 282 Neb. 652, 807
N.W.2d 96 (2011), the files and records the district court cited
are part of the record before us, so we are able to conduct a
meaningful review of the court’s decision. And as in State v.
Torres, supra, it is plainly evident from the district court’s
order what files and records it considered. The court cited to
various parts of the bill of exceptions and to the motion itself
in reaching its decision. We therefore conclude that the district
court’s procedure did not unfairly deprive Howard of a sub-
stantial right or deny a just result.
[5] We recognize, as Howard points out, that we determined
on direct appeal that the record was insufficient to address his
ineffective assistance of counsel claims. The Supreme Court,
however, recently emphasized two important points about a
conclusion that the record on direct appeal is insufficient to
resolve certain claims. See State v. Stelly, 304 Neb. 33, 932
N.W.2d 857 (2019). First, when an appellate court finds, on
direct appeal, that the record is not sufficient to resolve a claim
of ineffective assistance, it should not be misunderstood as
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Cite as 29 Neb. App. 860a finding that the claim will necessarily require an evidentiary
hearing if raised in a motion for postconviction relief, because
that determination is governed by an entirely different stan-
dard. Id.[6] Second, just because an appellate court finds the record
on direct appeal is insufficient to resolve a claim of ineffec-
tive assistance, it does not mean that a postconviction court
will necessarily be precluded from later finding the existing
record affirmatively refutes the same claim. Id. Several factors
make this so. Sometimes, critical portions of the existing trial
record are not included in the appellate record, but are later
available to the postconviction court. Id. Additionally, because
a defendant on direct appeal is not required to make specific
allegations of prejudice, the appellate court often has an incom-
plete understanding of how a defendant claims to have been
prejudiced by certain deficient conduct. Id. Consequently, a
finding on direct appeal that the existing record is insufficient
to determine a claim of deficient conduct does not speak to
whether the existing record will be sufficient to affirmatively
refute prejudice once the claim is alleged on postconviction.
Id. Based on the foregoing, we conclude that the record is suf-
ficient to identify the files and records the district court consid-
ered, which are included in our record, and we are able to con-
duct a meaningful review of the court’s decision. Accordingly,
the district court did not abuse its discretion in the procedure
it followed.
Failure to Hold Evidentiary Hearing.
[7,8] Howard claims that the district court erred in deny-
ing his motion for postconviction relief without an evidentiary
hearing. Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018). In
a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his
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Cite as 29 Neb. App. 860or her rights under the U.S. or Nebraska Constitution, caus-
ing the judgment against the defendant to be void or voidable.
State v. Stricklin, supra.[9-11] 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. State v. Stricklin, supra. If a postconvic-
tion 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 evi-
dentiary hearing. Id. 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. Id.[12,13] All of the claims Howard raised in his motion for
postconviction relief allege ineffective assistance of counsel.
In order to establish a right to postconviction relief based on
a claim of ineffective assistance of counsel, the defendant
has the burden first 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 in
the area. State v. Henderson, 301 Neb. 633, 920 N.W.2d 246(2018). Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case. Id. To
establish the prejudice prong of a claim of ineffective assist­
ance of counsel, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. Id. A rea-
sonable probability does not require that it be more likely than
not that the deficient performance altered the outcome of the
case; rather, the defendant must show a probability sufficient
to undermine confidence in the outcome. Id.- 870 -
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Cite as 29 Neb. App. 860Howard asserts several claims regarding his trial counsel.
He first alleges that his trial counsel was ineffective in failing
to timely move for a mistrial during his ex-wife’s testimony. As
we outlined on direct appeal, at some point after S.H. disclosed
the sexual abuse, she alleged that during one particular incident,
Howard made her wear a “sports bra” belonging to her mother,
who by the time of trial was Howard’s ­ex-wife. During a depo-
sition of Howard’s ex-wife, she apparently denied owning any
sports bras. At trial, however, during cross-­examination, she
testified that she did own a sports bra. She admitted that during
her deposition she had denied owning one, but said that she
subsequently discovered that she did, in fact, have one. During
redirect, she said that she raised the issue with the county attor-
ney before trial because she realized that she had not given an
honest answer in her deposition.
Howard did not object when his ex-wife was testifying
regarding the sports bra issue, nor did he immediately move
for a mistrial. After her testimony concluded, the State called
one additional witness to testify before it rested. Howard then
began presenting his defense by calling his first witness to tes-
tify. After that witness’ testimony concluded, Howard moved
for a mistrial based on his ex-wife’s testimony. He claimed
that the State should have disclosed the inaccuracy of her
deposition testimony prior to trial. The district court denied the
motion for mistrial.
Howard argued to the district court and on direct appeal that
the State’s failure to disclose the change in his ex-wife’s tes-
timony violated his rights under Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), such that the court
would have granted a mistrial had counsel moved timely. In
Brady, the U.S. Supreme Court held that the prosecution has a
duty to disclose all favorable evidence to a criminal defendant
prior to trial. Favorable evidence includes both exculpatory and
impeachment evidence. See, United States v. Bagley, 473 U.S.
667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Clifton,
296 Neb. 135, 892 N.W.2d 112 (2017). Where the prosecution
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Cite as 29 Neb. App. 860delays disclosure of evidence, but the evidence is nonetheless
disclosed during trial, however, Brady is not violated. State v.
Clifton, supra.In the present case, the change in Howard’s ex-wife’s testi-
mony was revealed at trial. Therefore, to the extent her admis-
sion that she owned a sports bra could be classified as exculpa-
tory evidence, the State’s failure to disclose it prior to trial does
not violate Brady v. Maryland, supra.[14] We also note that when trial counsel did move for
a mistrial, albeit untimely, the basis for his motion was a
Brady violation, but the district court overruled the motion.
Accordingly, even if trial counsel had timely moved for a
mistrial, the motion would not have been successful because
there was no Brady violation in this regard. As a matter of
law, counsel cannot be ineffective for failing to raise a merit-
less argument. State v. Williams, 295 Neb. 575, 889 N.W.2d 99(2017). Therefore, Howard was not prejudiced by the failure of
trial counsel to timely move for a mistrial during his ex-wife’s
testimony. As such, Howard was not entitled to an evidentiary
hearing on this claim.
Howard additionally asserts that he should have received an
evidentiary hearing on his claim that trial counsel was inef-
fective in failing to cross-examine M.H. as to whether she
immediately reported to her mother inappropriate touching by
her grandfather. Howard notes that M.H. testified at trial that
she never told her mother that Howard sexually assaulted her
because she had a strained relationship with her mother, but
Howard claims that M.H.’s mother testified at a pretrial depo-
sition that M.H. did report to her an incident of inappropriate
touching by M.H.’s grandfather. Thus, Howard argues that he
was prejudiced by trial counsel’s failure to cross-examine M.H.
on this issue because it left M.H.’s credibility “unchallenged.”
Brief for appellant at 17.
Contrary to this argument, the record establishes that trial
counsel thoroughly cross-examined M.H. and challenged her
credibility on various issues. As the district court observed,
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Cite as 29 Neb. App. 860the cross-examination of M.H. spans 35 pages in the bill of
exceptions, and trial counsel questioned M.H. consistent with
the defense theory that M.H. and S.H. fabricated the allega-
tions. Trial counsel questioned M.H. about talking to the police
detective, the child advocacy center, her counselor, her aunt,
and S.H.; her desire at the time she disclosed the abuse that her
mother divorce Howard; her close relationship with S.H. at that
time and whether she was able to “manipulate” S.H.; discuss-
ing the abuse with S.H. before talking to the police detective;
and her failure to disclose inappropriate touching by Howard in
the bathtub until after she learned that S.H. had disclosed simi-
lar abuse. He additionally attempted to impeach M.H.’s trial
testimony at several points using both her deposition testimony
and her interviews with the police detective.
Accordingly, we conclude that Howard cannot establish
prejudice from the failure of trial counsel to question M.H.
regarding an additional matter that could have potentially
impacted her credibility. To prove prejudice, the defendant
must demonstrate a reasonable probability that but for coun-
sel’s deficient performance, the result of the proceeding would
have been different. State v. Henderson, 301 Neb. 633, 920
N.W.2d 246 (2018). A reasonable probability is a probability
sufficient to undermine confidence in the outcome. See id. Trial
counsel thoroughly challenged M.H.’s credibility on cross-
examination, and we cannot find that failing to question her on
one additional issue is sufficient to undermine confidence in
the outcome of trial. See State v. Newman, 300 Neb. 770, 916
N.W.2d 393 (2018) (defendant’s allegation of failure to cross-
examine witness on minor credibility issue is not sufficient to
demonstrate either deficient performance or resulting preju-
dice). See, also, State v. Dubray, 294 Neb. 937, 885 N.W.2d
540 (2016) (when record shows State’s witnesses were thor-
oughly cross-examined consistent with defense ­theory, there
was meaningful adversarial testing of prosecution’s case). The
district court therefore did not err in denying an evidentiary
hearing on this claim.
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Cite as 29 Neb. App. 860Howard next contends that he was entitled to an evidentiary
hearing on his claim that trial counsel was ineffective in failing
to call Newring as a witness at trial. According to Howard, he
hired Newring to evaluate the case and testify in his defense.
Newring’s name was included on Howard’s witness list filed
with the district court prior to trial. The State filed a motion in
limine to exclude Newring’s testimony, and the district court
reserved ruling on the motion. Newring was not called to tes-
tify at trial.
In his motion for postconviction relief, Howard asserted that
Newring reviewed materials pertinent to the case and was pre-
pared to testify that there were several potential “biasing fac-
tors” present in the statements made by M.H. and S.H. Howard
alleged that these “‘biasing factors,’ in general, tend to nega-
tively impact the reliability of [the] statements and testimony
by M.H. and S.H. (and anyone else claiming to be a victim
of sexual abuse).” He argues that Newring’s testimony would
have assisted the jury in evaluating the nature of the statements
M.H. and S.H. gave and how they were obtained through cer-
tain interviewing methods.
The State asserts that even if trial counsel had called Newring
as a witness at trial, his testimony in this regard would have
been inadmissible, citing State v. Doan, 1 Neb. App. 484, 498
N.W.2d 804 (1993). In Doan, this court held that in a prosecu-
tion for sexual assault of a child, an expert witness may not
give testimony which directly or indirectly expresses an opin-
ion that the child is believable, that the child is credible, or that
the witness’ account has been validated.
In reaching this conclusion, we cited a decision of the
Vermont Supreme Court where it found objectionable the tes-
timony of an expert witness that sufferers of post-traumatic
stress disorder generally do not fabricate claims of sexual
abuse and that the complainant suffered from post-traumatic
stress disorder. See State v. Catsam, 148 Vt. 366, 534 A.2d 184(1987). The Vermont court explained that this testimony
left one clear and unmistakable inference to be drawn:
the complainant would not fabricate this allegation. The
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Cite as 29 Neb. App. 860fact that the expert does not testify directly to the ultimate
conclusion does not ameliorate the difficulty with the
opinion on credibility. Other courts have concluded, as
do we, that expert testimony that child victims of sexual
abuse generally tend not to fabricate incidents of abuse is
the equivalent of a direct comment on the credibility of
the testifying complainant.
Id. at 370, 534 A.2d at 187-88.
We addressed a similar issue in State v. Craven, 18 Neb.
App. 633, 790 N.W.2d 225 (2010), where the defendant alleged
on appeal that the testimony of his expert witness should have
been admitted in order for the witness to testify as to the
reliability of the child victim’s interview at a child advocacy
center. Specifically, the witness would have opined that the
­reliability of the interview of the victim was uncertain. On
appeal, we characterized the defendant’s argument that such
testimony would have assisted the jury in understanding the
good and bad portions of the interview with the victim as
“essentially an attempt to assist the jury in determining the
weight of that evidence and the credibility of [the victim].” Id.
at 650, 790 N.W.2d at 238. We therefore found that the testi-
mony was inadmissible and that the trial court had not abused
its discretion in excluding it.
Likewise, here, Howard alleges that Newring’s testimony
would have assisted the jury in evaluating the nature of the
statements of M.H. and S.H. or, in other words, it would
have assisted the jury in assessing the credibility of the vic-
tims. According to Howard, Newring would have testified
that “biasing factors” tend to negatively impact the reliability
of statements and testimony and that there were “biasing fac-
tors” present in the interviews of M.H. and S.H. As in State v.
Catsam, supra, there is only one inference that could be drawn
from such testimony, and that is that the statements of M.H.
and S.H. were unreliable. This testimony is not admissible.
Therefore, trial counsel was not ineffective in failing to call
Newring as a witness at trial in order to elicit such testimony;
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Cite as 29 Neb. App. 860thus, Howard was not entitled to an evidentiary hearing on
this claim.
In addition to testimony related to “biasing factors,”
Howard’s postconviction motion asserted that Newring was
also prepared to offer testimony on the differences between
adults and adolescents regarding brain development and sus-
ceptibility to peer pressure as well as cognitive dissonance,
particularly as it relates to allegations of abuse. He does not
argue this issue in his brief on appeal, however, and we there-
fore do not address it. See State v. Filholm, 287 Neb. 763, 848
N.W.2d 571 (2014) (alleged error must be both specifically
assigned and specifically argued in brief of party asserting
error to be considered by appellate court).
In his final claim regarding trial counsel, Howard alleged
that his counsel failed to properly investigate and present evi-
dence favorable to his defense. He lists 16 different ways in
which he alleged trial counsel’s performance in this respect
was deficient and asserts that he was prejudiced because had
trial counsel elicited the 16 pieces of evidence he enumer-
ates, there is a reasonable probability that the outcome of trial
would have been different because this evidence supported the
defense theory that M.H. and S.H. falsified the allegations.
We have reviewed each of these claims and agree with the
district court that these allegations did not necessitate an evi-
dentiary hearing. Although Howard states that the evidence
not presented would have supported his theory that M.H.
and S.H. fabricated their allegations for a number of reasons,
including because they wanted Howard out of the family, the
record indicates that defense counsel presented similar evi-
dence at trial. For example, Howard asserts that counsel was
ineffective for failing to present testimony from his ex-wife
that she never witnessed any sexual abuse; however, M.H.
testified that her mother denied knowing about the abuse.
Likewise, he claims that S.H.’s counselor should have been
cross-examined about her “prepping” of S.H. for trial; how-
ever, S.H. testified that her counselor prepared her to testify.
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Cite as 29 Neb. App. 860Additionally, Howard takes issue with counsel failing to cross-
examine M.H. regarding specific “blog” posts she wrote, but
counsel did cross-examine her about several other postings.
Our review of the trial record does not support a finding that
Howard could show prejudice as a result of the proposed evi-
dence not being offered.
In addition to asserting claims of ineffective assistance of
trial counsel, Howard alleges that his appellate counsel per-
formed deficiently in failing to assign two errors on direct
appeal. When a claim of ineffective assistance of appellate
counsel is based on the failure to raise a claim on appeal of
ineffective assistance of trial counsel (a layered claim of inef-
fective assistance of counsel), an appellate court will look at
whether trial counsel was ineffective under the Strickland test.
State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). See
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 fail-
ure to raise the issue. State v. Allen, supra. 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 dif-
ferent. Id.Howard first asserts that appellate counsel was ineffective
in failing to assign as error trial counsel’s failure to object
during the testimony of the State’s expert witness, a forensic
interviewer. He claims that her testimony regarding the terms
“active disclosure” and “nonactive disclosure” constituted
improper expert testimony in violation of State v. Doan, 1 Neb.
App. 484, 498 N.W.2d 804 (1993), because she improperly
vouched for S.H.’s credibility, expressed an opinion that she
was believable, and validated her allegations. We disagree.
This witness was a forensic interviewer at a child advocacy
center in Omaha, Nebraska, who interviewed S.H. on two
occasions. She explained that she was trained to interview chil-
dren and help them describe their experiences and observations
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Cite as 29 Neb. App. 860in a neutral way. She discussed her experience in interviewing
children and the differences in the way children respond, in
that some are ready to talk about things that have happened
and some are not. She explained that when a child is ready and
willing to talk, that kind of disclosure is referred to as “active
disclosure.” More specifically, active disclosure means the
child has come to the advocacy center because he or she has
already disclosed the abuse to someone, so the child is ready to
talk about it and wants to tell what happened.
To the contrary, nonactive disclosure occurs when the child
is at the advocacy center because someone else has identified
the child as a victim or the child has been acting out and the
interviewer is trying to identify the reason for and source of
the child’s behaviors. With a nonactive disclosure, the child has
not told anyone anything, is very closed off, and is unwilling
to talk about any uncomfortable topics. Over time, a child who
began in a stage of nonactive disclosure can progress to a stage
of active disclosure.
The interviewer explained that during her first interview
with S.H., S.H. was closed off and reluctant to talk. Thus, she
characterized S.H. as being in the nonactive stage of disclosure
at that time. The second time she interviewed S.H., S.H.’s
demeanor was “completely different” in that she was much
more open, talkative, and responsive to questions. Therefore,
according to the interviewer, S.H. was in the active stage of
disclosure during her second interview.
As discussed above, State v. Doan, supra, prohibits an
expert witness from offering testimony that directly or indi-
rectly expresses an opinion that the child is believable, that
the child is credible, or that the witness’ account has been
validated. Here, the interviewer did not opine on the reliability
of the information a witness provided during active or nonac-
tive disclosure; rather, the distinction between the two stages
is whether the child is open, responsive, and willing to provide
any information. The reliability of the information provided is
of no consequence. Thus, the interviewer’s testimony regard-
ing S.H., specifically, described only her demeanor during
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Cite as 29 Neb. App. 860the interviews as to whether she was open to offering infor-
mation and responding to questions. This testimony does not
violate State v. Doan, supra, because it offers no opinion or
validation as to the reliability of the information the child has
provided.
Moreover, S.H. offered similar testimony regarding the two
forensic interviews she underwent. She acknowledged that dur-
ing her first interview she was “really scared,” uncomfortable,
and “freaking out” because she was not prepared to answer
questions, explaining that she had never previously described
the abuse or shared any details of it “out loud.” S.H. testified
that she was not comfortable providing detailed information
during her first interview. S.H. explained that during her sec-
ond interview, however, she felt more prepared and had spoken
about the abuse out loud by that time, so she disclosed more
details during that interview. In other words, she was in the
stage of nonactive disclosure during the first interview and
active disclosure during the second interview.
Furthermore, the fact that S.H. provided little information
during her first interview and offered greater detail during her
second was not a surprise to the jury and was developed through
other witnesses in addition to the forensic interviewer and S.H.
These facts support the defense theory that as S.H. talked to
more people, including M.H., her aunts, the police detective,
and her counselor, she offered additional details about the
abuse that she had never previously disclosed.
Given the foregoing, we conclude that the interviewer’s tes-
timony was not inadmissible. Thus, trial counsel was not inef-
fective in failing to object to it, and as such, appellate counsel
was not ineffective in failing to assign this issue as error on
direct appeal. The district court therefore properly denied an
evidentiary hearing as to this claim.
Finally, Howard alleges that his appellate counsel was inef-
fective in failing to assign as error his trial counsel’s failure to
object when the State elicited testimony from S.H.’s counselor
describing the details of the abuse S.H. conveyed to her dur-
ing counseling sessions. Howard argues that the testimony
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Cite as 29 Neb. App. 860constitutes prior consistent statements and was inadmissible
because the statements were made after the time the initial
allegations were disclosed. We conclude that even if the coun-
selor’s testimony in this regard was inadmissible as a prior
consistent statement, Howard cannot show he was prejudiced
by trial counsel’s failure to object because such testimony sup-
ported the defense theme at trial.
Defense counsel called S.H.’s counselor to testify as a wit-
ness. He questioned her regarding her sessions with S.H. and
referenced notes she took during the sessions. He elicited tes-
timony from the counselor that she indicated in her notes that
S.H. raised “new memories” during a later session; that S.H.
talked with M.H. prior to raising the allegations of oral sex,
which she had never previously disclosed; that the counselor
had helped S.H. prepare to testify and worked with her on
“telling a good story;” and that she held joint counseling ses-
sions with S.H. and M.H. despite the prosecutor asking her not
to do so. Likewise, during cross-examination of the counselor,
the State questioned her on the details she included in her
notes of the information S.H. provided to her during counsel-
ing, which described the progression of S.H.’s allegations from
inappropriate touching in the bathtub to numerous instances of
oral sex.
Trial counsel made the defense theme clear during opening
statements and closing arguments. During his opening state-
ment, he explained that from the defense’s perspective, “This
case . . . is about the evolution of a story, about how someone
can start believing their own lie.” Trial counsel outlined that
during the case, the jury would hear from S.H.’s counselor
“about working with her to remember anything, about prepar-
ing her and building her up to testify during the course of this
case.” Trial counsel described that the jury would hear that
M.H. made the first allegation to her aunt and then talked to
her aunt, mother, and S.H. In addition, trial counsel explained
that the evidence would show that M.H. told S.H. about a
dream she had involving Howard forcing her to perform oral
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Cite as 29 Neb. App. 860sex, and just a few days later, S.H. came forward and alleged
that the same thing happened to her in the same way that
M.H. described. Trial counsel further informed the jury that it
would hear from an expert witness that memories can be cre-
ated based upon postevent information, even if those memories
are false.
During closing arguments, trial counsel reiterated the defense
theme regarding the evolution of a story and how someone can
start believing their own lie. He argued that M.H.’s and S.H.’s
stories evolved over time and referenced S.H.’s counselor to
show that the information S.H. provided to her, as detailed in
the counselor’s notes, had changed, which he argued indicated
that M.H. and S.H. were “building up the story.” Trial counsel
asserted that the counseling notes indicated S.H. said she did,
in fact, discuss things with M.H. and that S.H.’s story was
continuing to develop into late 2015 and early 2016. At one
point during his closing argument, he referenced a particular
counseling session note, and stated, “We keep getting into these
particular sessions and that’s because they’re important.”
Based on our review of the record, we conclude that the
testimony of S.H.’s counselor, and the details of her session
notes in particular, were pertinent and relevant to the defense
strategy of attempting to show the progression of the victims’
allegations in order to demonstrate that they were falsified. As
such, trial counsel was not ineffective in eliciting specific tes-
timony from the counselor or failing to object to her testimony
on these topics during cross-examination; thus, appellate coun-
sel was not ineffective in failing to raise this issue on appeal.
The district court therefore did not err in denying an eviden-
tiary hearing on this claim.
CONCLUSION
Having concluded that the district court did not err in deny-
ing Howard’s motion for postconviction relief without an evi-
dentiary hearing, we affirm the court’s order.
Affirmed.