State v. Saylor , 294 Neb. 492 ( 2016 )

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www.nebraska.gov/apps-courts-epub/
08/19/2016 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. SAYLOR
Cite as 294 Neb. 492
State of Nebraska, appellee, v.
James M. Saylor, appellant.
___ N.W.2d ___
Filed August 19, 2016. No. S-15-329.
1. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
ing on a motion for postconviction relief, the trial judge, as the trier of
fact, resolves conflicts in the evidence and questions of fact. An appel-
late court upholds the trial court’s findings unless they are clearly erro-
neous. In contrast, an appellate court independently resolves questions
of law.
2. Effectiveness of Counsel: Appeal and Error. With regard to the
questions of counsel’s performance or prejudice to the defendant as
part of the two-pronged test articulated in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the lower
court’s decision.
3. Effectiveness of Counsel: Proof: Appeal and Error. To prevail
on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
4. 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 petitioner 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 is a
probability sufficient to undermine confidence in the outcome.
5. Records: Appeal and Error. The party appealing has the responsibil-
ity of including within the bill of exceptions matters from the record
which the party believes are material to the issues presented for review.
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6. ____: ____. A bill of exceptions is the only vehicle for bringing evi-
dence before the Supreme Court; evidence which is not made part of the
bill of exceptions may not be considered.
7. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
ecutorial misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial.
8. Evidence: Appeal and Error. An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, evaluate
explanations, or reweigh the evidence presented, which are within a fact
finder’s province for disposition.
9. Stipulations: Pleas: Evidence. A stipulation entered by a defendant
can be tantamount to a guilty plea. But this is true only when the
defendant stipulates either to his or her guilt or to the sufficiency of
the evidence.
10. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for 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 probability sufficient to
undermine confidence in the outcome.
11. Effectiveness of Counsel. The effectiveness of counsel is not to be
judged by hindsight.
12. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffec-
tive assistance of counsel raised on direct appeal by the same counsel
who represented the defendant at trial are premature and will not be
addressed on direct appeal.
13. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the defend­
ant. That is, courts begin by assessing the strength of the claim appellate
counsel failed to raise.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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Wright, Miller-Lerman, Cassel, and K elch, JJ., and Moore,
Chief Judge.
K elch, J.
INTRODUCTION
Lena Saylor (Lena) was found dead in her home on April
27, 1984. The State charged James M. Saylor (Saylor), Lena’s
grandson, with first degree murder, based upon evidence that
Saylor had hired Michael Sapp to kill Lena. After a stipu-
lated bench trial, the district court for Lancaster County found
Saylor guilty of second degree murder and sentenced him to
life in prison. This court affirmed on direct appeal. See State
v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). Now, 30
years later, Saylor appeals the district court’s 2015 order that
denied his motion for postconviction relief, following a limited
evidentiary hearing. We reject Saylor’s claims of, inter alia,
ineffective assistance of counsel, prosecutorial misconduct, and
prejudicial conduct by the trial judge, and we affirm.
BACKGROUND
Pretrial Proceedings
Sometime in 1984, the State charged Saylor with first degree
murder. The original information is not in the record for this
appeal. At that time, hiring the killing of another person was an
aggravating factor supporting the death penalty. Neb. Rev. Stat.
§ 29-2523(1)(c) (Reissue 1979) (repealed 2015 Neb. Laws,
L.B. 268, § 35).
Police had arrested Saylor in April 1984, immediately after
he made tape-recorded statements about Lena’s death to his
friends David Timm and Jeffrey Menard. On July 12, 1984,
Saylor filed a motion to dismiss, which was denied. On
December 7, Saylor filed a motion to suppress the tape record-
ings. On February 6, 1985, the district court conducted a
hearing on that motion. Patrick Healey and Susan Jacobs
represented Saylor. Michael Heavican, the county attorney
at that time, had declared a conflict because he anticipated
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that he may be called as a witness, and Terry Dougherty was
appointed special prosecutor for the case.
While the motion to suppress was still under advisement,
Dougherty proposed that the parties resolve the matter by
agreement, and the parties negotiated. Ultimately, the parties
agreed to a stipulated trial to allow Saylor to contest the dis-
trict court’s ruling on his motion to suppress. We recount addi-
tional details regarding the parties’ negotiations in the analysis
section below. On April 2, 1984, the district court denied the
motion to suppress.
On April 5, 1985, Saylor waived his right to a jury trial.
The district court confirmed that Saylor did so freely, volun-
tarily, and knowingly. Next, Dougherty summarized the par-
ties’ agreement for the record, which summary we quote in
the analysis portion of this opinion. Saylor’s counsel acknowl-
edged that Dougherty had correctly described the agreement,
and neither Saylor nor his counsel contradicted it.
Stipulated Bench Trial
and Direct A ppeal
On May 10, 1985, the State amended the charge to second
degree murder. The district court advised Saylor that he had
the right to be served with the amended copy of the infor-
mation and to wait 24 hours before appearing for arraign-
ment, and Saylor waived those rights. The district court pro-
ceeded with the arraignment, and Saylor pled not guilty to
the amended charge. The district court then conducted the
stipulated bench trial. We summarize those proceedings in part
here and provide additional relevant details in other portions
of this opinion.
The 20-page written stipulation, signed by Dougherty,
Healey, and Saylor, set forth evidence that Saylor had hired
Sapp to kill Lena. In that document, the parties stipulated that
all items of evidence discussed and offered had an adequate
chain of custody. Along with the written stipulation, the par-
ties submitted other evidence by stipulation, including the tape
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STATE v. SAYLOR
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recordings of the conversation between Saylor, Timm, and
Menard in April 1984. Saylor’s counsel renewed his motion to
suppress, which the district court again overruled.
Healey argued to the district court that the matter was sub-
mitted with stipulated facts, but that this left “to the court the
question of whether the stipulated matter proves [Saylor’s]
guilt and if so, what offense.”
On May 20, 1985, the district court found Saylor guilty of
second degree murder. Saylor filed a motion for new trial. On
August 7, the district court overruled Saylor’s motion for new
trial and sentenced him to life in prison.
On direct appeal to this court, Saylor claimed that the district
court erred in overruling his motion to suppress the recorded
conversation. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789
(1986). Healey and Jacobs represented Saylor on appeal. This
court described the recordings as including “incriminating” and
“inculpatory” statements in which Saylor “indicated that he
had hired someone to kill his grandmother.” See id. at 697, 392
N.W.2d at 792. We affirmed.
Postconviction Proceedings
On August 22, 2012, Saylor filed a pro se motion for post-
conviction relief; his new counsel filed a lengthy amended
motion for postconviction relief on February 7, 2013.
The district court granted an evidentiary hearing, but limited
its scope to ineffective assistance of trial and appellate counsel,
prosecutorial misconduct, and prejudicial conduct of the trial
judge. Saylor’s remaining claims were not permitted to proceed
to the evidentiary hearing. The district court specifically noted
that Saylor had addressed the ruling on the motion to suppress
on direct appeal and could not relitigate it.
Sometime prior to November 20, 2014, Saylor gave notice
of his intent to call an attorney to give expert testimony
at the evidentiary hearing regarding whether Saylor’s trial
counsel’s performance was deficient and whether Saylor was
prejudiced by such alleged deficiencies. The State responded
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with a motion to preclude the attorney’s testimony. After
reviewing the attorney’s proposed testimony, the district
court precluded it, finding that it would not have assisted the
trier of fact in understanding the evidence or determining a
factual issue.
The district court conducted the evidentiary hearing on
December 1 through 4, 2014, and January 6, February 17, and
March 11, 2015.
Saylor offered the clerk’s transcript from the stipulated
bench trial, which the district court received. The record con-
tains a photocopy of the front page of the clerk’s transcript,
with a notation that the original would be furnished by the
reporter upon request. The remainder of the clerk’s transcript
is not in the record.
Saylor testified that immediately before he entered his jury
waiver, Healey had advised him that the stipulated trial format
was the best way to resolve the matter because Saylor could
try the case and “not be found guilty of anything more than
second degree and would not receive the death sentence.”
Saylor said he understood that Healey would be able to include
facts in the stipulation that challenged the State’s case. Saylor
denied that either of his attorneys informed him that he could
withdraw his jury waiver if the parties could not agree on
the stipulation.
According to Saylor, between the jury waiver and the stipu-
lated trial, his counsel did not discuss the contents of the stipu-
lation with him. Saylor further testified that he did not see any
written version of the stipulation until immediately before the
stipulated bench trial and that he had less than 10 minutes to
review it. Saylor denied understanding the stipulation because
it was “very, very complicated.”
Dougherty testified that he waited to amend the charge until
after Saylor had waived the jury trial because he did not want
Saylor to receive the benefit of the bargain until after the par-
ties had agreed on the stipulated facts and submitted them to
the district court. Dougherty testified that had the parties not
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reached such agreement, he would have joined in Saylor’s
request to withdraw his jury waiver.
Healey, who acted as lead defense counsel, had died before
the postconviction proceedings. Cocounsel Jacobs testified that
defense counsel would have requested a jury trial if Saylor had
requested it at any time after waiving the jury trial and before
the verdict. She denied that Saylor ever told her he did not
want to enter into the stipulation. She admitted that she did
not recall many things about Saylor’s case, but she testified
that if he had indicated that he did not want to enter into the
stipulation, she thought she would remember, because “[t]hat’s
critical.” Jacobs testified that had she believed the stipula-
tion contained a material misrepresentation, she would have
informed the district court, but that she did not. Jacobs did not
recall requesting any discovery documents from the prosecu-
tion that Saylor’s counsel did not receive.
Jacobs testified that the possibility of the death penalty
in Saylor’s case “always loomed large” and that Saylor’s
recorded statements to Timm and Menard would be very
persuasive evidence of Saylor’s guilt in the event of a trial
and would likely have been admitted. Saylor admitted that
he expressed concern about the death penalty to Healey and
Jacobs and that he agreed to the stipulated trial to avoid the
death penalty. Dougherty testified that had Saylor gone to trial,
he would have sought the death penalty, but that he was willing
to forgo the possibility in exchange for Saylor’s agreement to
the stipulated trial.
The record contains timesheet evidence that Dougherty had
contact with the county attorney’s office through short tele-
phone conferences throughout the case. In his 1984 deposi-
tion, Gary Lacey, the chief deputy county attorney, testified
that he consulted with Dougherty on moving Saylor and Sapp,
witnesses for their cases, and the death qualification issue.
Lacey testified that Heavican and Dougherty met with the
director of the parole board about an inmate who wanted work
release in exchange for information he had received from
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Sapp. Dougherty testified that he communicated with Lacey
and Heavican, in part, because he did not have the authority to
make a binding deal with the inmate. Dougherty denied having
ex parte communications with the district court, and he denied
that Heavican was actively involved in directing him in the
prosecution of the case.
At the time of the postconviction proceedings, the tape
recordings of Saylor’s conversation with Timm and Menard
were inaudible, and the district court did not admit their ver-
batim transcript due to authentication issues. However, the dis-
trict court received a synopsis of the tape recordings contained
in the deposition of Jim Peschong, who was one of the detec-
tives involved in the case. According to Peschong’s synopsis,
Saylor admitted to hiring someone to kill Lena. Peschong
documented that Saylor told Timm and Menard that the person
hired was someone they knew.
The stipulation had stated that Dr. Reena Roy, an expert in
forensic serology, tested a pillow obtained from the scene and
detected a substance that could have come from Lena’s saliva
on the pillow. According to the stipulation, Roy received
the pillow from the property room custodian of the Lincoln
Police Department. At the postconviction hearing, Dougherty
acknowledged that the property room custodian had given the
pillow to a third person who then gave it to Roy. Dougherty
testified that rather than recount the entire chain of custody,
he phrased the stipulation to show that the pillow “got from
the custodian in the property room to the person who tested
it and there was a chain of custody and this is the pillow.”
He denied attempting to mislead the district court in this
regard or with any facts in the stipulation and testified that he
had drafted the stipulation in good faith, believing the facts
were accurate.
The stipulation had included evidence attributed to Dr.
David Kutsch, who performed an autopsy on Lena on the
morning of her death. According to the stipulation, it was
Kutsch’s opinion that injuries to Lena’s face could have been
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caused by someone placing a hand or other object over Lena’s
face to smother her. Kutsch opined that Lena died at approxi-
mately 5 a.m.
The stipulation had stated that based on Kutsch’s examina-
tion of the scene, the autopsy, and the information supplied by
police, Kutsch would testify at trial within a reasonable degree
of medical certainty that (1) the injuries occurred approxi-
mately at the time of Lena’s death, (2) respiratory arrest caused
Lena’s death, and (3) although Lena could have died of natural
causes, smothering most likely caused respiratory arrest.
The stipulation had noted that Kutsch also testified in a
deposition on October 9, 1984, that it was “indeterminate as to
whether her demise was from natural causes or from smother-
ing,” but that he rendered that opinion before he knew the defi-
nition of “‘reasonable degree of medical certainty.’”
At the postconviction hearing, Saylor presented the tes-
timony of two forensic pathologists. Upon a review of the
records in the case, they opined that Lena’s death was con­
sistent with chronic obstructive pulmonary disease and that
she died of natural causes. One pathologist opined that neither
smothering nor lung disease could be ruled out, but that based
on the autopsy alone, lung disease was the more probable
cause of death. The other pathologist agreed with Kutsch’s
1984 deposition opinion, cited in the stipulation, that it was
“indeterminate as to whether [Lena’s] demise was from natu-
ral causes or from smothering.” Saylor presented additional
evidence attempting to call into question Kutsch’s qualifica-
tions, conclusions, and handling of the evidence in Saylor’s
case. To further support the theory that Lena, age 83, was in
poor health and died of natural causes, Saylor presented evi-
dence from the scene of the crime, the autopsy, and Lena’s
medical history.
The district court also received evidence that on May 19,
1984, Saylor attempted to solicit the murders of Timm and
Menard via a letter to his brother, in an effort to prevent the use
of their recorded conversation with Saylor.
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Motion to R eopen
On December 17, 2014, Saylor filed a pro se “Verified
Motion to Reopen Case and Present Additional Evidence,”
which Saylor’s counsel later adopted. Saylor sought to pre­
sent exculpatory medical evidence of a scab and ecchymosis,
or bruising, near Lena’s right eye, which Kutsch opined were
incurred several hours to a day before Lena’s death. Saylor
further asserted that “incomplete, untrue, or outright false” evi-
dence in the stipulation was not brought to the district court’s
attention at the postconviction hearing. Saylor’s motion chal-
lenged the same evidence and made similar claims as he had at
the postconviction hearing.
On January 8, 2015, the district court overruled Saylor’s
“Verified Motion to Reopen Case and Present Additional
Evidence.”
District Court’s Order Denying
Postconviction R elief
On March 17, 2015, the district court entered a detailed
order denying Saylor’s motion for postconviction relief. The
district court rejected Saylor’s claims that he had received
ineffective assistance of trial and appellate counsel. Further,
it found no prosecutorial misconduct and no improper con-
duct by the trial court. The district court found that even if
Saylor had established improper or deficient conduct by any
of the participants involved in his case, he did not prove any
resulting prejudice. It stated, “[Saylor] has not presented
objective evidence showing a reasonable probability that he
would have insisted on going to trial or that the result would
have been different absent the claimed failings of his trial
counsel, the prosecutor and the trial judge.” The district court
observed that “significant facts” overwhelmed evidence of
prejudice, namely that Saylor had admitted to hiring someone
to kill Lena, that Sapp would likely testify against Saylor,
and that evidence that Saylor attempted to solicit the mur-
ders of Timm and Menard may well have been admissible at
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trial under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 1985).
ASSIGNMENTS OF ERROR
Saylor assigns, condensed and restated, that the district court
erred in (1) determining that Saylor was not prejudiced; (2)
precluding expert testimony by an attorney; (3) considering in
its prejudice analysis: (a) Saylor’s taped admissions, (b) a let-
ter to Saylor’s brother, and (c) possible testimony by Sapp; (4)
determining the benefits secured to Saylor by the agreement;
(5) making erroneous findings regarding medical evidence;
(6) finding that Saylor’s right to a speedy trial had not been
violated; (7) finding that Saylor had failed to prove prosecuto-
rial misconduct; (8) finding Saylor was not coerced in agreeing
to the stipulation; (9) finding that the trial court did not err in
failing to advise Saylor of his right to confrontation; and (10)
denying Saylor’s motion to reopen.
Saylor further assigns that the district court erred in (11)
failing to find that Saylor had received ineffective assistance
of trial and appellate counsel in that counsel either made the
following errors at trial or failed to raise them on appeal: (a)
failed to seek withdrawal of Saylor’s jury waiver, (b) pre-
maturely allowed Saylor’s jury waiver, (c) failed to include
exculpatory medical evidence regarding Lena in the stipula-
tion, (d) failed to object to portions of the stipulation and to
insist on evidentiary rulings, (e) failed to investigate Kutsch’s
change in testimony, (f) failed to consult an independent
medical expert, (g) failed to require production of medical
evidence, (h) failed to inquire as to the consequences of taking
or not taking prescribed medications, (i) failed to interview or
depose stipulation witnesses, (j) failed to invoke Saylor’s right
to a speedy trial, and (k) failed to raise ineffectiveness issues
on appeal.
STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
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conflicts in the evidence and questions of fact. An appel-
late court upholds the trial court’s findings unless they are
clearly erroneous. In contrast, an appellate court indepen-
dently resolves questions of law. See State v. Poe, 292 Neb.
60, 870 N.W.2d 779 (2015).
[2] With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
reviews such legal determinations independently of the lower
court’s decision. State v. Branch, 290 Neb. 523, 860 N.W.2d
712 (2015).
ANALYSIS
Ineffective Assistance
of Counsel
[3,4] Saylor assigns that the district court erred in failing
to find that he received ineffective assistance of counsel. To
prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, supra, the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880
(2015). To show prejudice under the prejudice component of
the Strickland test, the petitioner must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Thorpe, supra. A reasonable probability is
a probability sufficient to undermine confidence in the out-
come. Id.
The majority of Saylor’s assignments of error relate to his
premise that he received no benefit when the State reduced his
charge from first degree murder to second degree murder and
that a stipulated trial meant he would be able to contest every
factual issue. However, the record shows that this argument is
not well founded.
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Initially, Dougherty sent a letter to Healey advising that
the State would reduce the charge of first degree murder to
second degree murder and that Saylor would plead guilty to
second degree murder but also testify against his codefendant,
Sapp. Ultimately, this initial offer morphed into the agreement
whereby the parties would compromise on a stipulated trial to
allow Saylor to contest the district court’s ruling on his motion
to suppress. In fact, in a letter to Healey dated May 7, 1985,
Dougherty advised:
Enclosed is a revised proposed stipulation for use in
. . . Saylor’s trial to the court. In getting your client’s
approval for this stipulation, please ask him to keep a
couple of things in mind.
My intention in having a stipulated trial was in effect
to allow your client to plead guilty without giving up
his right to appeal the Judge’s ruling on the motion to
suppress. I certainly did not intend to lower the charge
from first to second degree murder with the idea of
agreeing to a stipulation with facts that would not result
in a finding of guilty on the reduced felony. The stipula-
tion should be thought of as the equivalent of a factual
basis which would be recited by a prosecutor to sup-
port a guilty plea by a defendant. Although I remain
available for discussion of some minor changes, if the
basic format of the revised document is not agreeable
to your client, we should consider petitioning the court
to set aside his jury waiver, and proceed to trial on first
degree murder.
Dougherty outlined the agreement to the trial court on April
5, 1985, at the hearing wherein Saylor waived his right to a
jury trial:
DOUGHERTY: Well, I think perhaps we should make
a record on the fact that this waiver of [the] jury is in
response to an agreement which the State has made with
. . . Saylor and his counsel that we will file an Amended
Information alleging the crime of murder in the second
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degree. That the counsel for the State and the counsel
for . . . Saylor will submit a stipulated set of facts to
the court. In essence, what we will do, we will have a
stipulated trial so that in the event at the conclusion of
that stipulated trial, . . . Saylor is found guilty, he can
preserve his rights to appeal and question the court’s rul-
ing on the motion to suppress.
I guess that is in the nature of some type of promise
that he has received as a result, that has been induced to
waive his right to jury trial.
Saylor’s counsel showed approval for this statement of the
agreement.
Saylor argues that, because the prosecutor did not agree to a
contested stipulated trial, he “exploited” Saylor’s counsel into
accepting “false testimony and other incriminating evidence.”
Brief for appellant at 81.
First, Saylor apparently bases this argument on a position
that he did not have to agree to any conditions in order for the
State to reduce the charge. In other words, he contends that
the State was locked into the charge of second degree murder
and that therefore, Saylor would still have the opportunity to
participate in a contested trial on that charge. Dougherty’s let-
ter reflects otherwise. If Saylor wanted the benefit of avoiding
the first degree murder charge, then he had to agree to suf-
ficient facts to support a conviction for second degree mur-
der. Naturally, such facts would be incriminating. Moreover,
Dougherty’s letter also allowed Saylor the option of withdraw-
ing his waiver and proceeding to trial on the charge of first
degree murder. Clearly, the parties attempted to compromise
in order to achieve the mutually beneficial resolution of a seri-
ous criminal matter. Notably, Saylor does not argue that trial
counsel was ineffective in getting the charge reduced from first
degree murder to second degree murder. Nor does he explain
how his counsel could have forced the State to reduce the
charge to second degree murder and still agree to a contested
stipulated trial.
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Second, Saylor contends that his counsel were forced into
allowing Dougherty to set forth false evidence in the stipula-
tion. Again, this overlooks the benefit of the reduced charge.
But even ignoring that fact, Saylor has not shown there was
false evidence presented in 1985 nor that this allegedly false
evidence has the significance that Saylor attributes to it.
For example, Saylor points to the fact that Dougherty did
not include each person in the chain of custody of the pillow
tested by Roy. However, Dougherty expressly denied attempt-
ing to mislead the district court and testified that he deliber-
ately phrased the stipulation to show that the pillow went from
the property room to the intended recipient without including
the entire chain of custody. Instead, the parties stipulated that
all items of evidence discussed and offered had an adequate
chain of custody. There is no support for Saylor’s contention
that the portion of the stipulation pertaining to the pillow was
somehow false or deceptive.
Additionally, Saylor claims that the stipulation attributed
false testimony to Kutsch, the pathologist. As the district
court noted, the stipulation set forth that Kutsch’s deposition
opinion differed from the opinion relied upon by the stipu-
lated facts.
Saylor’s brief is replete with examples such as these, but
they do not reflect falsified evidence. Rather, they involve
issues of fact and credibility, which were the province of the
district court to resolve. See State v. Lee, 290 Neb. 601, 861
N.W.2d 393 (2015) (conflicts in evidence, credibility of wit-
nesses, explanations, and weight of evidence presented are
within fact finder’s province for disposition). As such, Saylor’s
contentions in this regard do not support his claims of prosecu-
torial misconduct or ineffective assistance of counsel.
Turning again to the benefit of the reduced charge, the
record does not support Saylor’s assertion that his counsel
was forced into accepting the stipulation. Instead, the evidence
shows that Saylor’s counsel carried out a calculated strategy
by agreeing to it. Rather than contest every issue, the record
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reflects that Healey preserved the ruling on the motion to sup-
press for appeal and at the same time ensured that Saylor did
not face the death penalty, which, based on the record and
the timing of Saylor’s trial, was a realistic possibility. See
§ 29-2523(1)(c). See, also, State v. Reeves, 216 Neb. 206,
344 N.W.2d 433 (1984); State v. Moore, 210 Neb. 457, 316
N.W.2d 33 (1982); State v. Peery, 199 Neb. 656, 261 N.W.2d
95 (1977); State v. Simants, 197 Neb. 549, 250 N.W.2d 881
(1977), disapproved on other grounds, State v. Reeves, 234
Neb. 711, 453 N.W.2d 359 (1990); State v. Rust, 197 Neb.
528, 250 N.W.2d 867 (1977). Thus, contrary to Saylor’s
assigned error, the district court did not err in determining that
extinguishing the possibility of the death penalty was a major
benefit of the agreement.
Even with a stipulated trial, Healey still was able to con-
test the evidence on Saylor’s behalf. For example, Healey
argued to the court, at trial, that the matter was submitted with
stipulated facts but that this left “to the court the question of
whether the stipulated matter proves [Saylor’s] guilt and if
so, what offense.” Healey further showed his strategy in the
following exchange after Dougherty offered the stipulation,
exhibit 8 of the 1985 trial:
HEALEY: Your Honor, I indicated that I had no objec-
tion to the reception of Exhibit 8 and that is true. I
would just note in an abundance of caution that Exhibit
8, however, does contain with it some objections to
some of the material offered by the State as reflected
therein and I do not waive those objections and will
speak to those.
THE COURT: Perhaps I should ask . . . Saylor
whether he has read and is familiar with Exhibit 8, the
stipulation?
[Saylor]: Yes, sir, Your Honor, I have.
THE COURT: And you have signed that stipulation?
[Saylor]: I did sign it, Your Honor. I agree with the
admissibility of most of the things there. However,
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obviously not on the things considered in the motion to
suppress . . . .
THE COURT: But you agree with the stipulation and
you have signed the stipulation?
[Saylor]: Yes, sir.
THE COURT: As I said, Exhibit 8 is received.
. . . DOUGHERTY: At this time, I would offer what has
been marked as Exhibit No. 6 [the recordings of Saylor’s
conversation with Timm and Menard] as the stipulation
Exhibit 8 reflects.
. . . HEALEY: We have no foundational objections
but we do, as reflected by Exhibit 8 and for the record,
do at this time renew the motion to suppress previously
filed and briefed and argued to the court in relation to
Exhibit 6. We at this time, as the Exhibit 8 states, object
to the introduction of the recording for the reason stated
in that motion to suppress filing 19, but which will be
marked as an exhibit in this proceeding for each and
every reason set forth in the exhibit.
We further contend and allege and object that those
tapes and the conversations reflected therein were not in
fact or in law, voluntary but were the product of unlaw-
ful and unconstitutional deprivation of [Saylor] in the
respect previously argued and briefed and as stated in
Exhibit No. 6.
We have the further agreement as Exhibit 8 states that
the evidentiary record which was made on the motions
to suppress that evidentiary record having been made I
believe on February 6, 1985, shall be incorporated by
reference in these proceedings and shall be considered to
be the basis for the ruling of the court upon the motion to
suppress renewal and the objections that [Saylor] is mak-
ing at this time.
We would ask that the court affirmatively direct that
the evidence presented at that motion to suppress hearing
be considered to be before the court at this proceeding
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for the purpose of the ruling on the Exhibit No. 6, in
relation to [Saylor’s] objection and motion to suppress,
on the grounds stated.
The record shows that Saylor’s counsel acted strategically
and not only preserved the issues in regard to the motion
to suppress, but also contested other evidence. Contrary to
Saylor’s contention, we find that his counsel performed effec-
tively in this respect.
Saylor also cites United States v. Cronic, 466 U.S. 648, 104
S. Ct. 2039, 80 L. Ed. 2d 657 (1984), for the proposition that
prejudice will be presumed where counsel fails to subject the
prosecution’s case to meaningful testing. Cronic further states:
“‘The very premise of our adversary system of criminal jus-
tice is that partisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted
and the innocent go free.’” 466 U.S. at 655, quoting Herring
v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593
(1975). Saylor alleges, “Omitting exculpatory evidence, espe-
cially as to whether Lena[’s] death was natural, was presump-
tively prejudicial.” Brief for appellant at 28. Saylor’s author-
ity does not fit the situation at hand, where a stipulated trial
was conducted. Again, trial counsel’s strategy to focus on the
motion to suppress and avoid the death penalty does not auto-
matically equate to “fail[ing] to subject the prosecution’s case
to meaningful adversarial testing.” United States v. Cronic,
466 U.S. at 659.
Saylor claims that he received ineffective assistance of
counsel in several other ways: (a) failing to seek withdrawal
of his jury waiver, (b) prematurely allowing Saylor’s jury
waiver, (c) failing to include exculpatory medical evidence
regarding the victim in the trial stipulation, (d) failing to
object to portions of the stipulation and to insist on eviden-
tiary rulings, (e) failing to investigate the change in Kutsch’s
testimony, (f) failing to consult an independent medical expert,
(g) failing to require production of medical evidence, (h) fail-
ing to inquire as to the consequences of taking or not taking
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prescribed medications, and (i) failing to interview or depose
stipulation witnesses. However, these contentions either rely
on the assumption that the parties participated in a contested
trial or imply that a stipulated trial was not a prudent strategy.
We have concluded that Saylor’s counsel was not ineffective
by agreeing to a stipulated trial in an attempt to reduce the
first degree murder charge, avoid the possibility of the death
penalty, and preserve Saylor’s motions for appeal. Therefore,
we decline to consider the foregoing contentions because
they depend on a contested trial format that did not occur and
because the stipulated trial that did occur did not result from
ineffective assistance of counsel.
R ight to Speedy Trial
Saylor contends that the district court erred in rejecting his
claims that his right to speedy trial was violated and that trial
counsel was ineffective for not raising that issue. Neb. Rev.
Stat. § 29-1207 (Cum. Supp. 2014), then as now, requires
discharge of a defendant whose case has not been tried within
6 months after the filing of the information. Therefore, to
determine whether trial counsel should have raised the issue,
we must review the record. The bill of exceptions reflects
that although Saylor offered and the district court received the
clerk’s transcript from the original trial, only a photocopy of
the front page is before us. Otherwise, the clerk’s transcript is
not part of the record.
[5,6] The party appealing has the responsibility of includ-
ing within the bill of exceptions matters from the record
which the party believes are material to the issues presented
for review. Neb. Rev. Stat. § 25-1140 (Reissue 2008); State
v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001); State v.
Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991); State v.
Schaneman, 235 Neb. 655, 456 N.W.2d 764 (1990); State
v. Isikoff, 223 Neb. 679, 392 N.W.2d 783 (1986). A bill of
exceptions is the only vehicle for bringing evidence before the
Supreme Court; evidence which is not made part of the bill of
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exceptions may not be considered. State v. Manchester, 213
Neb. 670, 331 N.W.2d 776 (1983); State v. Gingrich, 211 Neb.
786, 320 N.W.2d 445 (1982). Without the benefit of a proper
record, we will not consider this alleged error.
Prosecutorial Misconduct
[7] Saylor claims that the district court erred in finding no
prosecutorial misconduct. Generally, prosecutorial misconduct
encompasses conduct that violates legal or ethical standards
for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial. State v. Nolan, 292
Neb. 118, 870 N.W.2d 806 (2015).
Saylor contends that he “proved” Dougherty misrepre-
sented Kutsch’s testimony. Brief for appellant at 47. The stip-
ulation acknowledged Kutch’s 1984 deposition opinion that
Lena’s cause of death was respiratory arrest but that it was
indeterminate as to whether such respiratory arrest resulted
from natural causes or from smothering. But the stipulation
states that at the time of the stipulation, dated May 10, 1985,
Kutsch had the opinion that “[a]lthough [Lena] could have
died of natural causes, the cause of her respiratory arrest
was most probably smothering.” This last statement was
supported by a letter from Kutsch to Dougherty dated May
6, 1985.
Saylor argues this was false testimony, because in Kutsch’s
deposition in 2014, he stated that he could not say that the
cause of death was “most probably smothering.” However,
Kutsch further testified that he could not recall the letter in
1985, because 30 years had passed. The district court found it
should give more weight to Kutsch’s statements in 1985 than
to his testimony 30 years later.
Saylor contends that Dougherty failed to turn over all dis-
covery. However, the record establishes otherwise. Jacobs did
not recall having the impression that she had requested evi-
dence she did not receive. Saylor failed to supply evidence that
the requested discovery was not provided.
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Saylor also claims the Lancaster County Attorney’s office had
continued contact with Dougherty after that office had recused
itself. His argument is based upon timesheets from Dougherty
and testimony by Lacey. However, Dougherty advised that he
contacted the Lancaster County Attorney’s office with ques-
tions about the death penalty issues and in regard to potential
witnesses. And Lacey confirmed that the county attorney’s
office had contact with Dougherty concerning moving Saylor
and Sapp, witnesses for their cases, and the death qualifica-
tion issue. The district court concluded that normal contact had
occurred and that Saylor had not proved this claim.
[8] Like many of his other arguments, Saylor bases his alle-
gations concerning prosecutorial misconduct on determinations
of credibility. However, as we have already observed, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s prov-
ince for disposition. State v. Lee, 290 Neb. 601, 861 N.W.2d
393 (2015).
Additionally, Saylor asserts and assigns that the prosecu-
tor committed misconduct by coercing him into accepting the
stipulation. We have thoroughly examined this issue above, and
we reject Saylor’s assertion.
Based on the record before us, we conclude that the district
court was not clearly erroneous in finding no prosecutorial
misconduct.
Stipulated Bench Trial
[9] Saylor assigns that the district court failed to inquire
regarding his right to confrontation before proceeding with the
stipulated trial, which he argues was tantamount to a guilty
plea. As pointed out by the district court, we settled this issue
in State v. Howard, 282 Neb. 352, 371-72, 803 N.W.2d 450,
467-68 (2011):
A stipulation entered by a defendant can be tantamount
to a guilty plea. But this is true only when the defendant
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stipulates either to his or her guilt or to the sufficiency of
the evidence. [The defendant] did not do so. Instead, he
merely stipulated to the admission of certain evidence,
and then the district court determined whether that evi-
dence was sufficient to convict him of the crime charged.
Simply stipulating to the admission of evidence is not
tantamount to a guilty plea. Moreover, it is clear from the
record that [the defendant] preserved all of the defenses
and arguments he raised in his motion to suppress. Where
the defendant has presented or preserved a defense, such
as the suppression of evidence, a stipulated bench trial is
not tantamount to a guilty plea.
(Citations omitted.)
In the instant matter, Saylor did not enter a plea of guilty
or no contest. Instead, he preserved his defense for appeal
and affirmatively agreed to the stipulated facts. In addition,
as discussed, he had the opportunity to proceed to trial on
the first degree murder charge if he disagreed with the stipu-
lation. The district court’s findings on this issue were not
clearly erroneous.
Prejudice
[10] Saylor contends that the district court erred in finding
that he had not shown how he was prejudiced by the per­
formance of his trial counsel. To show prejudice, the defend­
ant must demonstrate a reasonable probability that but for
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 per­
formance altered the outcome of the case; rather, the defendant
must show a probability sufficient to undermine confidence in
the outcome. State v. Armstrong, 290 Neb. 991, 863 N.W.2d
449 (2015). As previously discussed, Saylor is now second-
guessing a strategy to which he agreed to in 1985 in order
to avoid the possibility of the death penalty. Saylor agreed to
the waiver of jury trial and, at a later hearing, agreed to the
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stipulated facts on the record and even advised the district
court as to what facts he contested. What Saylor has shown
is that 30 years later, he and new counsel would have taken
a different approach. Saylor cannot show prejudice as to the
stipulated trial, because his alternative was a trial on the first
degree murder charge. No such trial occurred, therefore, at
best, he speculates he would have been found not guilty on a
charge of first degree murder.
Accordingly, we find no merit to any of Saylor’s assigned
errors pertaining to prejudice.
Expert Attorney Testimony
[11] Saylor contends that the district court erred in denying
his request that an expert attorney testify at the postconviction
hearing regarding allegedly deficient performance by counsel.
We reject this contention. As we have concluded, the record
shows that Saylor’s counsel was not ineffective. Moreover,
while Saylor’s present counsel and/or his expert counsel would
have chosen a different strategy, i.e., go to trial on a first
degree murder charge, they use hindsight to evaluate the
approach of Saylor’s attorneys. The effectiveness of counsel,
however, is not to be judged by hindsight. State v. Bartlett, 210
Neb. 886, 317 N.W.2d 102 (1982); State v. Bartlett, 199 Neb.
471, 259 N.W.2d 917 (1977); State v. Phillips, 186 Neb. 547,
184 N.W.2d 639 (1971).
Ineffective Assistance of
A ppellate Counsel
[12,13] Saylor assigns that his appellate counsel, who were
the same as his trial counsel, provided ineffective assistance
by failing to raise claims of ineffectiveness of trial counsel on
appeal. However, claims of ineffective assistance of counsel
raised on direct appeal by the same counsel who represented
the defendant at trial are premature and will not be addressed
on direct appeal. State v. Dunster, 278 Neb. 268, 769 N.W.2d
401 (2009). Moreover, when analyzing a claim of ineffective
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assistance of appellate counsel, courts usually begin by deter-
mining whether appellate counsel actually prejudiced the
defendant. That is, courts begin by assessing the strength of
the claim appellate counsel failed to raise. State v. Nolan,
292 Neb. 118, 870 N.W.2d 806 (2015). We have already con-
cluded that Saylor did not receive ineffective assistance of
trial counsel as he alleges. Therefore, we find no merit to this
assigned error.
Motion to R eopen
Postconviction Hearing
Saylor assigns that the district court erred in overruling the
pro se “Verified Motion to Reopen Case and Present Additional
Evidence” he filed after the close of evidence. The motion
simply set forth additional evidence to challenge the evidence
at the stipulated trial. Again, the parties participated in a stipu-
lated trial and not a contested trial. Accordingly, the district
court did not err in denying the motion to reopen, because the
additional evidence amounted to a repetition of his postconvic-
tion claims.
CONCLUSION
For the reasons set forth above, we hold that the district
court did not err in denying Saylor’s motion for postconvic-
tion relief.
A ffirmed.
Heavican, C.J., and Connolly and Stacy, JJ., not participating.