State v. Torres , 295 Neb. 830 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/17/2017 09:09 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. TORRES
Cite as 295 Neb. 830
State of Nebraska, appellee, v.
M arco E. Torres, Jr., appellant.
___ N.W.2d ___
Filed February 17, 2017. No. S-16-269.
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
appellate court upholds the trial court’s findings unless they are clearly
erroneous. An appellate court independently resolves questions of law.
2. Effectiveness of Counsel: Appeal and Error. A claim that defense
counsel provided ineffective assistance presents a mixed question of law
and fact. When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error.
3. ____: ____. 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 inde-
pendently of the lower court’s decision.
4. Right to Counsel: Effectiveness of Counsel. The right to counsel has
been interpreted to include the right to effective counsel.
5. Effectiveness of Counsel: Proof: Appeal and Error. Under the stan-
dard established by the U.S. Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), claims of inef-
fective assistance of counsel by criminal defendants are evaluated using
a two-prong analysis: first, whether counsel’s performance was deficient
and, second, whether the deficient performance was of such a serious
nature so as to deprive the defendant of a fair trial.
6. Effectiveness of Counsel: Proof. To show that the performance of a
prisoner’s counsel was deficient, it must be shown that counsel’s per­
formance did not equal that of a lawyer with ordinary training and skill
in criminal law.
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STATE v. TORRES
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7. ____: ____. To establish the prejudice element of the Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
test, a defendant must show that the counsel’s deficient performance was
of such gravity to render the result of the trial unreliable or the proceed-
ing fundamentally unfair.
8. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of alleged ineffective assistance of counsel, an
appellate court affords trial counsel due deference to formulate trial
strategy and tactics.
9. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
10. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not
to call, a particular witness, made by counsel as a matter of trial strategy,
even if that choice proves unproductive, will not, without more, sustain
a finding of ineffectiveness of counsel.
11. Effectiveness of Counsel. Under the Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), framework for ineffec-
tive assistance of counsel claims, a court may address the two elements,
deficient performance and prejudice, in either order.
12. Effectiveness of Counsel: Proof. To prove the prejudice element of an
ineffective assistance of counsel claim, a prisoner must prove that his
or her counsel’s deficient performance was of such gravity to render
the result of the trial unreliable or the proceeding fundamentally unfair,
by establishing that but for the deficient performance of counsel, there
is a “reasonable probability” that the outcome of the case would have
been different.
13. Postconviction: Constitutional Law: Prosecuting Attorneys:
Effectiveness of Counsel. A claim of prosecutorial misconduct may be
considered on postconviction only to the extent it constitutes a constitu-
tional violation under the U.S. or Nebraska Constitutions.
14. Evidence: Prosecuting Attorneys: Due Process. The nondisclosure
by the prosecution of material evidence favorable to the defendant and
requested by the defendant violates the Due Process Clause, irrespective
of the good faith or bad faith of the prosecution.
15. Postconviction: Appeal and Error. A motion for postconviction relief
is not a substitute for an appeal.
16. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues which were known to the defendant and could have
been litigated on direct appeal; such issues are procedurally barred.
17. Postconviction: Prosecuting Attorneys: Appeal and Error. Whether
a claim of prosecutorial misconduct could have been litigated on direct
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STATE v. TORRES
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appeal and is thus procedurally barred from being litigated on postcon-
viction depends on the nature of the claim.
18. ____: ____: ____. Where the claim of prosecutorial misconduct is such
that a determination of the merits is possible based on the record on
direct appeal, such as statements made in a prosecutor’s closing argu-
ment, it is procedurally barred from being litigated on postconviction.
19. Postconviction: Appeal and Error. Where an evidentiary hearing is
necessary to decide the merits of the claim, the failure to raise the
issue on direct appeal does not preclude it from being litigated on
postconviction.
Appeal from the District Court for Hall County: James D.
Livingston, Judge, Retired. Affirmed.
Alfred E. Corey III, of Shamberg, Wolf, McDermott &
Depue, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
Marco E. Torres, Jr., was convicted by jury of two counts
of first degree murder, one count of robbery, three counts of
use of a deadly weapon to commit a felony, and one count of
unauthorized use of a financial transaction device. Torres was
sentenced to death on each murder conviction, 50 to 50 years’
imprisonment on each of the robbery and use convictions, and
20 months’ to 5 years’ imprisonment for the unauthorized use
of a financial transaction device conviction. His convictions
were affirmed by this court on direct appeal.1 Torres filed a
petition for postconviction relief in the district court for Hall
County. After an evidentiary hearing, the district court denied
Torres’ petition. Torres appeals this denial. We affirm.
1
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
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STATE v. TORRES
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II. BACKGROUND
1. Torres’ R elationship With
Other Characters
Torres was involved in drug trafficking in Grand Island,
Nebraska. Through his drug activities, Torres knew a man
known as Billy Packer, who was also involved in drug traffick-
ing. It was through Packer that Torres met Jose Cross, Gina
Padilla, and Timothy Donohue.
Edward Hall allowed Donohue to live in Hall’s house in a
room on the second floor. Hall also allowed Padilla to live in
his house in exchange for cleaning the house and caring for
his cats. Padilla was dating Cross, who eventually moved in
to Hall’s house with Padilla. Cross, who also sold drugs, used
Hall’s house as a base for his drug trafficking.
2. K idnapping and Robbery
of Packer
In February 2007, Torres and Packer were hanging out with
a group of people in a trailer. After Torres got into an argument
with someone, he and Packer left in Packer’s car. Once inside
the car, Torres pulled out a gun, pointed it at Packer, and told
him to drive to Cross’ house.
Upon arrival, Torres and Packer went inside. Torres was
holding the gun inside his coat and pulled it back out once they
were inside. Torres, Packer, and Cross went upstairs, where
Padilla was present. Torres gave Cross some duct tape and told
him to tie up Packer, which he did. Torres said that Packer
was supposed to have obtained an ounce of methamphetamine
for someone in Texas. Torres said that once Packer got the
methamphetamine, Torres would take it to Texas. Torres forced
Packer to make a number of cell phone calls in order to obtain
the methamphetamine. While he was holding Packer, Torres
took approximately $800 from Packer’s wallet. He told Cross
and Padilla to go purchase food with Packer’s bank card, which
they did.
Cross and Padilla convinced Torres to let Packer go, because
Packer had to travel to Kansas for a court date and could get
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STATE v. TORRES
Cite as 295 Neb. 830
the methamphetamine when he returned. Torres kept Packer’s
cell phone and other items from Packer’s wallet.
Torres was charged with kidnapping, robbery, and two
counts of use of a weapon to commit a felony for the kidnap-
ping and robbery of Packer. He was convicted by a jury and
sentenced by the court to 25 to 40 years’ imprisonment on both
the kidnapping and associated weapons convictions and 20 to
30 years’ imprisonment on both the robbery and associated
weapons convictions, all to be served consecutively.
On his direct appeal in 2008, he alleged only that his sen-
tences were excessive. Torres filed a supplemental pro se brief,
alleging that his trial counsel was ineffective. On September
17, 2008, in case No. A-08-131, the Nebraska Court of Appeals
summarily affirmed his convictions, but concluded that the
record was not sufficient to address Torres’ claims of ineffec-
tive assistance of counsel on direct appeal.
After his kidnapping and robbery convictions were affirmed,
Torres petitioned for postconviction relief. He alleged, among
other things, that his counsel was ineffective for failing to
call certain witnesses that he believed would have refuted the
testimony that he kidnapped Packer. The district court held an
evidentiary hearing and denied Torres’ postconviction petition,
which denial the Court of Appeals affirmed.2
3. Murders of H all and Donohue
On March 1, 2007—less than a month after Torres kid-
napped Packer—Torres asked Cross if he could stay in Hall’s
house because he had no other place to stay. Cross was reluc-
tant, but Donohue agreed to let Torres stay in his room. Early
the next morning, Cross and Padilla left on a trip to Texas.
They did not tell Torres they were going to Texas, because they
knew he wanted to go to Texas and also knew that he had a
gun. Cross and Padilla’s departure left Torres in the house with
Hall and Donohue.
2
See State v. Torres, No. A-11-1051, 2012 WL 5395345 (Neb. App. Nov. 6,
2012) (selected for posting to court website).
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On March 5, 2007, the bodies of Hall and Donohue were
found in Hall’s house by police after Padilla requested that
police conduct a welfare check on the two. Hall’s body was
found on the first floor of the house, bound by an extension
cord in an armchair and gagged with a bathrobe belt. He had
three contact gunshot wounds to his head from a small-caliber
weapon. His cause of death was determined to be asphyxiation
by gagging, suffocation, physical restraint, and multiple deeply
penetrating gunshot wounds.
Donohue’s body was found upstairs. His cause of death was
three gunshot wounds to his head and chest. The shots were
fired at close range and were contact or near-contact shots.
Torres’ DNA was found on the bathrobe belt used to gag
Hall, and he could not be excluded from the DNA sample on
the cord used to bind Hall. His DNA was also found on ciga-
rette butts in Donohue’s room.
Hall’s bank card was used by Torres early in the morning
on March 3, 2007. Torres left for Texas in Hall’s car, arriv-
ing in Houston, Texas, on March 8. Hall’s car was later found
near where Torres was staying in Texas. It had been burned.
Houston law enforcement apprehended Torres on March 26.
Torres had Packer’s cell phone in his possession when he
was arrested.
4. Murder Trial
In 2009, Torres was tried and convicted of two counts of
first degree murder for the murders of Hall and Donohue,
one count of robbery, three counts of use of a deadly weapon
to commit a felony, and one count of unauthorized use of a
financial transaction device for the use of Hall’s bank card.
Torres was found guilty by a jury; he waived his right to a
jury determination of the aggravating factors at the sentencing
phase, choosing to be sentenced by a panel of three judges.
The panel found all four of the aggravating factors that were
alleged with regard to the murder of Hall and three of the
four factors with regard to the murder of Donohue. Torres was
sentenced to death on each murder conviction, 50 to 50 years’
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STATE v. TORRES
Cite as 295 Neb. 830
imprisonment on each of the robbery and use convictions, and
20 months’ to 5 years’ imprisonment for the unauthorized use
of a financial transaction device conviction.
At Torres’ murder trial, the district court admitted evidence
about his kidnapping and robbery of Packer, including a part
of the bill of exceptions from his kidnapping and robbery trial
in which he had been convicted. The district court held that
this evidence was admissible under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 2008), “for purposes of motive,
intent, plan, knowledge, opportunity, and identity.”3
5. Direct A ppeal
On direct appeal of his murder convictions, Torres argued
that the district court improperly admitted the evidence of his
kidnapping and robbery of Packer under rule 404(2).4 This
court concluded that the district court erred in admitting this
evidence to show Torres’ intent or opportunity to commit the
murders. But we concluded that it was admissible to show
his motive. We concluded that the improper admission of this
evidence to show intent or opportunity was harmless error and
affirmed his convictions and sentences.5
6. Postconviction Petition
and H earing
In 2013, Torres filed a motion for postconviction relief.
The court granted his motion to appoint counsel. Torres was
allowed to amend his petition and submit a second amended
petition for postconviction relief.
His petition alleged that his trial counsel was ineffective by
“fail[ing] to . . . adequately address the [rule] 404 evidence
regarding the alleged kidnapping and robbery of . . . Packer,
including the failure to present evidence regarding testimony
of [three potential witnesses] and a failure to adequately raise
3
See State v. Torres, supra note 1, 283 Neb. at 155, 812 N.W.2d at 230.
4
State v. Torres, supra note 1.
5
Id.
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issues regarding phone records of . . . Packer’s telephone.”
Torres claimed that trial counsel was ineffective by “fail[ing]
to adequately raise the issues regarding destruction of evi-
dence, contamination of evidence and the State’s failure to
produce evidence,” including the handling of crime scene
evidence. He alleged counsel was ineffective in failing to
call an expert witness to testify about the possible evidence
contamination and DNA testing and the release of the crime
scene premises (Hall’s house) to Hall’s family and its subse-
quent destruction. He claimed counsel failed to obtain sign-in
sheets and surveillance video from the Salvation Army, failed
to argue State v. Glazebrook6 to oppose the use of the rule
404 evidence, and failed to hire a mitigation expert for the
sentencing phase.
Torres alleged that the State had withheld evidence and
had engaged in prosecutorial misconduct by failing to obtain
and preserve the surveillance video from the Salvation Army,
releasing the crime scene to Hall’s family and allowing it to
be destroyed, and “[a]ttempt[ing] to extort a guilty plea by
threats of charging and prosecuting [Torres’] mother.”
The district court held an evidentiary hearing. The evidence
presented at the hearing included the depositions of Torres’
attorneys, the Hall County Attorney, an expert witness, and
others. Also presented were police reports, cell phone records,
the bill of exceptions from the murder trial, and various
other documents.
The district court denied Torres’ petition for postconviction
relief. Torres appealed.
III. ASSIGNMENTS OF ERROR
Torres claims that the district court erred by determining
that his trial counsel was not ineffective and that the State did
not commit prosecutorial misconduct.
6
State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
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STATE v. TORRES
Cite as 295 Neb. 830
IV. STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postconviction
relief, the trial judge, as the trier of fact, resolves conflicts in
the evidence and questions of fact. An appellate court upholds
the trial court’s findings unless they are clearly erroneous. In
contrast, an appellate court independently resolves questions
of law.7
[2,3] A claim that defense counsel provided ineffective
assist­ance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error.8 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,9 an appel-
late court reviews such legal determinations independently of
the lower court’s decision.10
V. ANALYSIS
Nebraska’s postconviction act allows a prisoner to petition
a court to vacate or set aside his or her conviction “on the
ground that there was a denial or infringement of the rights
of the prisoner as to render the judgment void or voidable
under the Constitution of this state or the Constitution of the
United States.”11
1. Ineffective Assistance
of Trial Counsel
[4,5] The Sixth Amendment to the U.S. Constitution pro-
vides that “[i]n all criminal prosecutions, the accused shall
7
State v. Hessler, ante p. 70, 886 N.W.2d 280 (2016).
8
State v. Harris, 294 Neb. 766, 884 N.W.2d 710 (2016).
9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
10
State v. Hessler, supra note 7; State v. Harris, supra note 8.
11
Neb. Rev. Stat. § 29-3001(1) (Reissue 2016). See, also, State v. Dubray,
294 Neb. 937, 885 N.W.2d 540 (2016).
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enjoy the right . . . to have the Assistance of Counsel for his
defen[s]e.” The right to counsel has been interpreted to include
the right to effective counsel.12 Under the standard established
by the U.S. Supreme Court in Strickland v. Washington, claims
of ineffective assistance of counsel by criminal defendants are
evaluated using a two-prong analysis: first, whether counsel’s
performance was deficient and, second, whether the deficient
performance was of such a serious nature so as to deprive
the defendant of a fair trial.13 A court may address the two
elements of this test, deficient performance and prejudice, in
either order.14
[6,7] To show that the performance of a prisoner’s counsel
was deficient, it must be shown that “‘counsel’s performance
did not equal that of a lawyer with ordinary training and skill
in criminal law . . . .’”15 To establish the prejudice element of
the Strickland v. Washington test, a defendant must show that
the counsel’s deficient performance was of such gravity to
“‘render[] the result of the trial unreliable or the proceeding
fundamentally unfair.’”16 This prejudice is shown by establish-
ing that but for the deficient performance of counsel, there is a
“‘reasonable probability’” that the outcome of the case would
have been different.17
[8-10] When reviewing claims of alleged ineffective assist­
ance of counsel, an appellate court affords trial counsel due
deference to formulate trial strategy and tactics.18 There is
a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic
12
Strickland v. Washington, supra note 9. See State v. Dubray, supra note 11.
13
Id.
14
State v. Dubray, supra note 11.
15
Id. at 950, 885 N.W.2d at 553.
16
Id.
17
Id.
18
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
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­decisions.19 The decision to call, or not to call, a particular
witness, made by counsel as a matter of trial strategy, even if
that choice proves unproductive, will not, without more, sus-
tain a finding of ineffectiveness of counsel.20
(a) Failure to Call Witnesses: Rule 404(2)
Evidence of Torres’ Kidnapping
and Robbery of Packer
Torres claims that his counsel was ineffective by not pre-
senting the testimony of three potential witnesses to refute the
evidence of his kidnapping and robbery of Packer, which was
admitted under rule 404(2).
Torres’ trial counsel explained that the decision not to focus
on the kidnapping of Packer was a matter of trial strategy. He
explained that “the less talked about the . . . Packer episode,
the better. Because my opinion was that the evidence was
clear-cut [that] the kidnapping occurred from just too many
witnesses.” The trial strategy was to focus on the crimes that
Torres was charged with, rather than the kidnapping, which
was admissible only as rule 404 evidence. Torres’ trial coun-
sel explained that he did not want to shift the focus onto the
timeline of who had Packer’s cell phone at what time. Torres’
counsel was also concerned about what testimony might come
out on the witness stand if these witnesses were to testify. He
did not believe that it was a good trial strategy to call wit-
nesses that may end up bolstering the testimony about the
kidnapping and robbery.
The decision not to call these witnesses was a reason-
able trial strategy by Torres’ trial counsel. As his coun-
sel explained, the evidence for the kidnapping was strong.
Calling additional witnesses would have run the risk of bol-
stering the evidence of the kidnapping and robbery. This
19
State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). See, also, State v.
Parnell, supra note 18.
20
State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014).
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strategy was not unreasonable. The performance of Torres’
trial counsel was not deficient, and therefore, this claim of
ineffective assistance of counsel was correctly rejected by the
district court.
In Torres’ postconviction motion following his kidnapping
and robbery convictions, he raised his trial counsel’s failure
to call those same three witnesses, among several others, to
testify. On appeal from the denial of postconviction relief, the
Court of Appeals concluded that his trial counsel was not inef-
fective for not calling these witnesses. If Torres’ trial counsel
was not ineffective for failing to call these witnesses to refute
the kidnapping and robbery allegation in his kidnapping and
robbery trial, then it follows a fortiori21 that his counsel was
not ineffective in his murder trial by not presenting these wit-
nesses, because the kidnapping was used only as rule 404 evi-
dence to show motive.
Finally, Torres argues that his counsel should have intro-
duced statements of Hall through the testimony of two indi-
viduals who had spoken with Hall. This claim was not raised
in Torres’ second amended petition. An appellate court will not
consider an issue on appeal that was not presented to the trial
court in the pleadings.22 This claim regarding the testimony of
those witnesses concerning statements made by Hall was not
presented to the district court in his petition for postconviction
relief, and we will not consider it here.
(b) Failure to Argue About Withheld
or Destroyed Evidence
Torres argues that his trial counsel was ineffective by failing
to sufficiently raise the issues of contamination, destruction,
21
See Black’s Law Dictionary 72 (10th ed. 2014) (“[b]y even greater force
of logic; even more so it follows”).
22
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d
906 (2016); Coral Prod. Corp. v. Central Resources, 273 Neb. 379,
730 N.W.2d 357 (2007); Central Nebraska Public Power and Irrigation
District v. Walston, 140 Neb. 190, 299 N.W. 609 (1941).
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and failure to produce evidence. He argues that his counsel
failed to sufficiently question the handling of the evidence
by the police. He concedes that his trial counsel did raise
issues relating to the handling of evidence at the crime scene,
but “believes that his counsel should have done more.”23
He argues that his counsel should have called Dr. Robert
Pyatt as an expert witness to “focus on the contamination of
the evidence.”24
Torres’ trial counsel testified that he and cocounsel discussed
the pros and cons of having Pyatt testify regarding the collec-
tion of DNA evidence. They ultimately decided there was not
enough of a difference in opinion between Pyatt and the State’s
expert witness to justify calling Pyatt to testify.
Torres’ trial counsel raised the issues of the collection of
crime scene evidence and possible contamination on cross-
examination of the State’s expert witness. Considering the
fact that the problems with the collection of evidence were
raised by Torres’ counsel on cross-examination, we are unable
to conclude that counsel was ineffective in not calling Pyatt
to testify. Pyatt’s testimony would have been cumulative.
The decision not to call Pyatt to testify was a reasonable
trial strategy. His counsel’s performance was not deficient in
this regard.
Torres also claims that his counsel was ineffective by fail-
ing to raise the issue of “destruction of evidence.” Specifically,
he raises the fact that shortly after the murders, the crime
scene (Hall’s house) was released to Hall’s estate, which gave
the Grand Island Fire Department permission to burn it for
training purposes. Torres says that his counsel’s failure to go
into the house and investigate the crime scene before it was
released and burned constituted ineffective assistance of coun-
sel because it inhibited his ability to prove that methamphet-
amine was being manufactured in the house.
23
Brief for appellant at 14.
24
Id.
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Torres’ counsel testified that although he was given the
opportunity, he chose not to go into the house, because of
his concern for his own health and because he believed the
photographic and physical evidence taken from the scene was
sufficient. This was not an unreasonable decision by Torres’
counsel, and it did not constitute deficient performance.
Moreover, it would not have made a difference in the out-
come of the case if there were evidence in the residence to
show that methamphetamine was being manufactured there.
The evidence at trial showed that Cross was using the res-
idence as a base for his drug trafficking. The distinction
between whether methamphetamine was being manufactured
or merely sold out of the house was immaterial to whether
Torres murdered Hall and Donohue.
Torres also claims that his counsel was ineffective in fail-
ing to obtain sign-in sheets and surveillance video from the
Salvation Army. Torres claims the sign-in sheets and video
would have shown that Hall was alive and would have contra-
dicted the State’s theory of the time of Hall’s death. He claims
that not having these sign-in sheets and video rendered him
“unable to effectively present a defense.”25
As to the sign-in sheets, Torres’ attorney did obtain the
original sheets and sent them to a document examiner to ana-
lyze the signatures. The examiner could not determine with
certainty whether the signature “Ed” on the relevant date was
that of Hall.
As to the surveillance video, Torres states that “[t]he video
has been unable to be located and would have been important
to compare the time of death with Torres’ argument that he did
not commit the crime.”26 This claim overlaps with his claim
that the State committed prosecutorial misconduct by failing
to produce the video. It is not clear whether Torres is blaming
his attorneys or the prosecution for the unavailability of the
25
Id. at 15.
26
Id.
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video. He has not articulated exactly what his counsel did that
made this video unable to be located or how this constituted
deficient performance on counsel’s part. Torres has failed to
prove this claim of ineffective assistance of counsel.
(c) Failure to Use
Mitigation Specialist
Torres claims that his counsel was ineffective for failing to
hire a mitigation specialist to present evidence to the three-
judge panel. In the district court hearing, Torres offered an
excerpt from the American Bar Association’s Guidelines for
the Appointment and Performance of Defense Counsel in
Death Penalty Cases27 and also the Supplementary Guidelines
for the Mitigation Function of Defense Teams in Death
Penalty Cases.28 Guideline 4.1 states that in a death penalty
case, “[t]he defense team should consist of no fewer than
two [qualified] attorneys . . . an investigator, and a mitigation
specialist.”29
[11] Under the Strickland v. Washington framework for inef-
fective assistance of counsel claims, a court may address the
two elements, deficient performance and prejudice, in either
order.30 We conclude that Torres failed to prove that he suf-
fered any prejudice as a result of his counsel’s failure to hire a
mitigation specialist.
[12] To prove the prejudice element of his ineffective assist­
ance of counsel claim, a prisoner must prove that his or her
counsel’s deficient performance was of such gravity to “‘ren-
der[] the result of the trial unreliable or the proceeding fun-
damentally unfair,’” by establishing that but for the deficient
27
ABA Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003).
28
Supplementary Guidelines for the Mitigation Function of Defense Teams
in Death Penalty Cases, 36 Hofstra L. Rev. 677 (2008).
29
ABA Guidelines, supra note 27 at 952.
30
See State v. Dubray, supra note 11.
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performance of counsel, there is a “‘reasonable probability’”
that the outcome of the case would have been different.31
Torres has not met this burden.
Torres does not explain just what a mitigation specialist
would have discovered that his attorneys did not and how that
would have made a difference in his sentencing. He argues that
“he was prejudiced in his attorneys’ failure to present a com-
plete picture of him to the three judge panel.”32
We have rejected similar claims of ineffective assistance
of counsel where prisoners fail to show how a different or
more thorough investigation of mitigating evidence would have
made a difference in sentencing. In State v. Hessler,33 we said:
Other than his alleged mental incompetence, [the
defendant] presented no evidence of mitigating circum-
stances that counsel should have discovered and presented
at his sentencing. We therefore conclude that the district
court did not err when it rejected [the defendant’s] claim
that trial counsel was ineffective for failing to discover
and present mitigating evidence at sentencing.
In State v. Palmer,34 we said that “[w]hile [the defendant]
asserts that the failure of his counsel to undertake these inves-
tigations is ineffective assistance of counsel, [the defendant]
does not argue how any of these actions by counsel would have
made a difference in [his] sentencing.”
In this case, the district court concluded that Torres suf-
fered no prejudice, because the mitigating evidence “would
barely have altered the sentence profile presented to the deci-
sion maker.”
We note that Torres did request that the district court appoint
a mitigation specialist to assist him in this postconviction
31
Id. at 950, 885 N.W.2d at 553.
32
Brief for appellant at 20.
33
State v. Hessler, supra note 7, ante at 85, 886 N.W.2d at 292.
34
State v. Palmer, 257 Neb. 702, 721, 600 N.W.2d 756, 772 (1999).
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case, which the court denied. But Torres has not raised this
denial in his assignments of error.
Because Torres has failed to show a reasonable probability
that the result of the sentencing would have been different
had his counsel retained a mitigation specialist, he suffered
no prejudice and cannot prevail on this claim of ineffective
assist­ance of counsel.
Torres argues, however, that we should presume prejudice
in this case. Under State v. Trotter,35 “under certain specified
circumstances, prejudice to the accused is to be presumed,”
namely “(1) where the accused is completely denied counsel
at a critical stage of the proceedings, (2) where counsel fails
to subject the prosecution’s case to meaningful adversarial
testing, and (3) where the surrounding circumstances may
justify a presumption of ineffectiveness without inquiry into
counsel’s actual performance at trial.” Torres argues that the
third category of presumed prejudice, based on “the surround-
ing circumstances,” applies in this case where his counsel
failed to retain a mitigation specialist.36 We decline to adopt a
presumption of prejudice based on counsel’s failure to obtain
a mitigation specialist in the sentencing phase of this capi-
tal case.
2. Prosecutorial Misconduct
Torres alleges that the State engaged in prosecutorial mis-
conduct by failing to obtain and preserve the sign-in sheets
and surveillance video from the Salvation Army, by releas-
ing the crime scene to Hall’s family and allowing it to be
destroyed, by tampering with Packer’s cell phone records, and
by attempting to “extort” a plea deal from him with threats of
prosecuting his mother. We find these allegations to be with-
out merit.
35
State v. Trotter, 259 Neb. 212, 218, 609 N.W.2d 33, 38 (2000).
36
Brief for appellant at 19.
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[13] Nebraska’s postconviction act allows a prisoner to peti-
tion for postconviction relief “on the ground that there was
such a denial or infringement of the rights of the prisoner as
to render the judgment void or voidable under the Constitution
of this state or the Constitution of the United States.”37 Thus,
a claim of prosecutorial misconduct may be considered on
postconviction only to the extent it constitutes a constitutional
violation under the U.S. or Nebraska Constitutions.38
[14] Under Brady v. Maryland,39 the nondisclosure by the
prosecution of material evidence favorable to the defendant and
requested by the defendant violates the Due Process Clause,
irrespective of the good faith or bad faith of the prosecution.40
The Due Process Clause also requires the State to preserve
potentially exculpatory evidence on behalf of a defendant in
some circumstances.41 Failure to preserve “‘“material exculpa-
tory”’” evidence violates the Due Process Clause, regardless
of the good or bad faith of the State, while failure to preserve
“‘“potentially useful”’” evidence does not violate the Due
Process Clause unless done in bad faith.42
[15-19] A motion for postconviction relief is not a substi-
tute for an appeal.43 Therefore, a motion for postconviction
relief cannot be used to secure review of issues which were
known to the defendant and could have been litigated on direct
appeal; such issues are procedurally barred.44 Whether a claim
37
§ 29-3001(1).
38
See id.
39
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
40
See State v. Parnell, supra note 18.
41
State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011) (citing California
v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)).
42
Id. at 785, 807 N.W.2d at 784 (citing Arizona v. Youngblood, 488 U.S. 51,
109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)).
43
State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
44
See id.
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of prosecutorial misconduct could have been litigated on direct
appeal and is thus procedurally barred from being litigated on
postconviction depends on the nature of the claim.45 Where the
claim of prosecutorial misconduct is such that a determination
of the merits is possible based on the record on direct appeal,
such as statements made in a prosecutor’s closing argument,46
it is procedurally barred from being litigated on postconvic-
tion.47 But where an evidentiary hearing is necessary to decide
the merits of the claim, the failure to raise the issue on direct
appeal does not preclude it from being litigated on postcon-
viction.48 Because Torres’ claims of prosecutorial misconduct
could not have been decided based on the record on direct
appeal, they are not procedurally barred, even though they
were not raised on direct appeal.
(a) Failure to Produce Evidence:
Salvation Army Sign-in Sheets
and Surveillance Video
Torres claims that the State committed prosecutorial mis-
conduct by failing to produce a surveillance video from the
Salvation Army that he claims would have shown Hall had
eaten there, proving that he was alive and contradicting the
State’s timeline for when the murders occurred.
The county attorney testified in his deposition that he did
not personally watch the video. The other attorneys in his
office in charge of reviewing the evidence did not report see-
ing Hall in the video. Torres’ first attorney testified that he
thought he saw the Salvation Army video, but could not recall
for sure. Torres’ subsequent counsel did not recall anything
about the video.
45
See, generally, State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
46
E.g., State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
47
State v. Harris, supra note 45.
48
See id.
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The district court concluded that “there has been nothing
presented to show that evidence existed that was probative
concerning a security video from the Salvation Army and
review shows Torres’[] counsel explored both of these avenues
as possible evidence but it was not present.” We conclude
that Torres has failed to prove this claim of prosecutorial
misconduct. He has not shown that the prosecution failed to
turn over the video, nor has he shown that the video would
be exculpatory.
Additionally, Torres claims that the State committed prosecu-
torial misconduct by failing to turn over the original Salvation
Army sign-in sheets. This claim is without merit, because
Torres’ own counsel testified in his deposition that he received
copies of the sheets and, when requested, the original sign-
in sheets.
(b) Destruction of Evidence:
Hall’s House and Packer’s
Cell Phone Records
Torres claims that the State committed prosecutorial mis-
conduct by releasing the crime scene to Hall’s family, after
which it was burned in a fire department training exercise. He
argues that “[b]y failing to allow the evidence to be preserved,
Torres was unable to investigate and then argue that metham-
phetamine was being manufactured at . . . Hall’s residence and
[that] this evidence was material to his defense.”49
First, there is no question about a failure to produce evi-
dence: Torres’ counsel was given the opportunity to inspect
the house. More importantly, the State was not required to
preserve Hall’s house after it obtained extensive physical
and photographic evidence from the scene. Aside from the
practical difficulties of preserving Hall’s house for an indefi-
nite period of time for Torres’ evidentiary use, the State had
no responsibility to preserve the house, because it was not
49
Brief for appellant at 23.
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“‘“material exculpatory,”’” and was, at most, “‘“potentially
useful.”’”50 As discussed above, the evidence at trial showed
that Cross was using the residence as a base for his drug traf-
ficking. The distinction between whether methamphetamine
was being manufactured or merely sold out of the house is
immaterial to whether Torres murdered Hall and Donohue.
Absent a showing of bad faith—which Torres has not shown—
the State has no burden to preserve evidence that is merely
potentially useful.51
Torres claims the State “committed misconduct in [its] pro-
duction of . . . Packer’s phone records.”52 Specifically, he
alleges that “various phone calls were admitted at trial that
were supposed to be from . . . Packer’s phone but included
calls from others as well as included phone records he never
received” and that “the State failed to preserve the texts on
. . . Packer’s phone.”53 He also claims that the State did not
disclose all of the cell phone records based on his claim that
the records provided to him differed from those provided to his
attorney and that those originally provided to him “did not con-
tain any marks at the top of the documents,” but those provided
later did have a fax header on them.54
Torres has failed to prove that the prosecution altered or
deleted any calls on Packer’s cell phone records. The only evi-
dence that the State’s records were incorrect was Torres’ own
claim that “he had written down a list of . . . Packer’s texts
from his phone,”55 which conflicted with the State’s records.
Nor has Torres proved that the State engaged in prosecutorial
misconduct based on the presence or absence of a fax header
50
See State v. Nelson, supra note 41, 282 Neb. at 785, 807 N.W.2d at 784.
51
See id.
52
Brief for appellant at 23.
53
Id.
54
Id. at 24.
55
Id. at 23.
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on the cell phone records provided to him. Torres has failed to
prove this claim.
(c) Attempt to “Extort” Plea
Torres alleges that the State engaged in prosecutorial mis-
conduct by “[a]ttempts to extort a guilty plea by threats of
charging and prosecuting [Torres’] mother.” The district court
correctly concluded that this allegation was frivolous. Torres
did not accept any plea offer. This claim is wholly with-
out merit.
VI. CONCLUSION
Torres has failed to show that his trial counsel was ineffec-
tive or that the State engaged in prosecutorial misconduct. We
affirm the district court’s denial of Torres’ motion for postcon-
viction relief.
A ffirmed.