State v. Taylor ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/24/2018 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. TAYLOR
Cite as 300 Neb. 629
State of Nebraska, appellee, v.
Trevelle J. Taylor, appellant.
___ N.W.2d ___
Filed July 27, 2018. No. S-17-1034.
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: Right to Counsel: Appeal and Error. An appellate
court reviews the failure of the district court to provide court-appointed
counsel in a postconviction proceeding for an abuse of discretion.
3. 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.
4. 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.
5. ____: ____: ____. A 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 defend­
ant’s rights under the Nebraska or federal Constitution.
6. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
7. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
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8. Effectiveness of Counsel: Proof: Words and Phrases: 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 perform­
ance was deficient and that this deficient performance actually preju-
diced the defendant’s defense. To show prejudice under the prejudice
component of the Strickland test, the defendant must demonstrate a rea-
sonable probability that but for his or her 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.
9. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
ineffective assistance of counsel test under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed
in either order, and the entire ineffectiveness analysis should be viewed
with a strong presumption that counsel’s actions were reasonable.
10. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
11. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
Error. Determining whether defense counsel was ineffective in failing
to object to prosecutorial misconduct requires an appellate court to first
determine whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
12. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that
does not mislead and unduly influence the jury does not constitute
misconduct.
13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
ences from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.
14. Postconviction: Right to Counsel. Under the Nebraska Postconviction
Act, it is within the discretion of the trial court as to whether counsel
shall be appointed to represent the defendant.
15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. Where the assigned errors in the postconviction petition before
the district court are either procedurally barred or without merit, thus
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STATE v. TAYLOR
Cite as 300 Neb. 629
establishing that the postconviction proceeding contained no justiciable
issue of law or fact, it is not an abuse of discretion to fail to appoint
appellate counsel for an indigent defendant.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed.
Trevelle J. Taylor, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Miller-Lerman, J.
NATURE OF CASE
Trevelle J. Taylor was convicted of first degree murder and
use of a deadly weapon to commit a felony. In this postconvic-
tion action, he claimed that he received ineffective assistance
of counsel. In a written order, the district court for Douglas
County overruled Taylor’s postconviction motion without an
evidentiary hearing and without appointing counsel. Taylor
appeals. We affirm the district court’s order.
STATEMENT OF FACTS
Taylor was originally convicted of first degree murder and
use of a weapon to commit a felony in 2010, but his convic-
tions were reversed on direct appeal because of an erroneous
jury instruction. See State v. Taylor, 282 Neb. 297, 803 N.W.2d
746 (2011) (Taylor I). After a new trial on remand, Taylor was
again convicted of both charges. We affirmed the convictions
on appeal; we also affirmed the sentence of imprisonment for
10 to 10 years for use of a weapon to commit a felony, but
because Taylor was under 18 years of age at the time of the
offense, we vacated the sentence of life imprisonment for first
degree murder and remanded the cause for resentencing as to
that conviction. See State v. Taylor, 287 Neb. 386, 842 N.W.2d
771 (2014) (Taylor II). Taylor was resentenced on February 5,
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2016, to imprisonment for 40 to 40 years for first degree mur-
der, with the sentence to run consecutively to his sentence for
use of a weapon to commit a felony.
Taylor was charged and convicted of fatally shooting Justin
Gaines outside Gaines’ residence on September 19, 2009. The
facts related to the charges in this case are set forth in greater
detail in Taylor I and Taylor II, but certain facts are set forth
in the analysis below as they pertain to Taylor’s postconvic-
tion claims.
On March 30, 2016, Taylor filed a pro se motion for post-
conviction relief. He set forth three claims of ineffective assist­
ance of trial counsel. He claimed that counsel was ineffective
for (1) failing to object to the admission of evidence obtained
from an allegedly unconstitutional detention and arrest, (2)
failing to object to allegedly inadmissible hearsay testimony
regarding the general location in which a gun tied to the
shooting was found, and (3) failing to object to and move for
a mistrial based on the prosecutor’s allegedly improper clos-
ing arguments. He also claimed that the cumulative effect of
these alleged errors denied him effective assistance of counsel.
Taylor requested an evidentiary hearing, appointment of post-
conviction counsel, and relief including reversal of his convic-
tions and vacation of his sentences.
In a written order filed August 31, 2017, the district court
rejected each of Taylor’s claims. The specific allegations of
the claims and the court’s disposition of each is set forth in the
analysis below. The court overruled Taylor’s motion for post-
conviction relief, denied his request for an evidentiary hearing,
and denied his request for appointment of counsel.
Taylor appeals.
ASSIGNMENTS OF ERROR
Taylor claims that the district court erred when it found
each of his claims to be without merit and overruled his
motion for postconviction relief without an evidentiary hear-
ing. He also claims the district court erred when it refused to
appoint postconviction counsel.
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STATE v. TAYLOR
Cite as 300 Neb. 629
STANDARDS 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.
Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
[2] We review the failure of the district court to provide
court-appointed counsel in a postconviction proceeding for an
abuse of discretion. State v. Haynes, 299 Neb. 249, 908 N.W.2d
40 (2018).
ANALYSIS
Postconviction Standards.
[3,4] Because Taylor appeals from the denial of postcon-
viction relief, we begin by reviewing standards related to
postconviction cases. 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. State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
Thus, in a motion for postconviction relief, the defendant must
allege facts which, if proved, constitute a denial or violation
of his or her rights under the U.S. or Nebraska Constitution,
causing the judgment against the defendant to be void or void-
able. Id.
[5,6] A 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. Id. If a postconviction motion alleges
only conclusions of fact or law, or if the records and files in
the case affirmatively show that the defendant is entitled to no
relief, the court is not required to grant an evidentiary hear-
ing. Id.
Taylor’s claims for postconviction relief assert that he
received ineffective assistance of counsel. Because Taylor was
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represented both at trial and on direct appeal by the same
lawyer or lawyers from the same office, this motion for post-
conviction relief was his first opportunity to assert ineffective
assistance of counsel. See State v. Haynes, supra.
[7-9] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to
a fair trial. State v. Vela, supra. To prevail on a claim of inef-
fective 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 perform­
ance was deficient and that this deficient performance actu-
ally prejudiced the defendant’s defense. State v. Vela, supra.
To show prejudice under the prejudice component of the
Strickland test, the defendant 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. Id. 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. Id. The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should
be viewed with a strong presumption that counsel’s actions
were reasonable. State v. Cotton, 299 Neb. 650, 910 N.W.2d
102 (2018).
With these principles in mind, we turn to Taylor’s specific
claims of ineffective assistance of counsel.
Claim I: Suppression of Evidence.
Taylor’s first claim was that counsel was ineffective for fail-
ing to object to the admission of evidence obtained from an
allegedly unconstitutional detention and arrest. Taylor noted
that prior to his first trial, counsel had filed a motion to sup-
press evidence obtained as a result of his detention and arrest,
which he alleged were made without reasonable suspicion or
probable cause. Taylor’s motion was successful in part. The
court determined that statements made by Taylor should be
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suppressed because he was interrogated before he was read his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966). The court also determined
that a DNA sample should be suppressed because Taylor was
coerced into giving the sample. However, the court denied the
remainder of the motion to suppress because it found that the
detention and arrest were not unconstitutional.
The facts related to Taylor’s detention and arrest were
generally as follows: A witness saw two men shooting into a
vehicle in which the victim, Gaines, was seated. The witness
described one of the shooters as wearing a brown shirt. Police
officers who arrived on the scene of the shooting broadcast
a description of a white vehicle that was believed to have
been connected with the suspects. Officer Joel Strominger
heard the broadcast and was in the vicinity of the shooting
when he saw a vehicle that matched the description in the
broadcast. Strominger observed a man standing near the pas-
senger side of the vehicle who appeared to have exited the
vehicle. The man was holding something brown in his hand.
When the vehicle and the man departed in opposite direc-
tions, Strominger followed the vehicle. He radioed a descrip-
tion of the man and the direction the man was heading to
other officers.
Officer Jarvis Duncan heard Strominger’s description and
was traveling in the direction that Strominger had said the man
was going. Duncan saw a man, Taylor, who fit the description
given by Strominger. When Duncan and his partner pulled their
cruiser up next to Taylor, Taylor started running. Duncan and
his partner chased after Taylor and ordered him to stop, but he
kept running. They caught up to Taylor at the front door of a
house. Before the officers apprehended Taylor, they saw him
throw something behind a tree in the front yard of the house.
Duncan later found a brown shirt by the tree. At trial, a wit-
ness to the shooting identified the brown shirt found under the
tree as the shirt worn by one of the shooters. Duncan and his
partner handcuffed Taylor and placed him inside their cruiser.
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The officers took Taylor to Strominger, who was nearby.
Strominger identified Taylor as the man he had seen earlier
beside the vehicle.
Taylor claimed in his postconviction motion that trial coun-
sel failed to properly object at trial to the admission of evi-
dence that was obtained as a result of his arrest and, thus,
failed to preserve for appeal the issue of the constitutionality of
his arrest. He asserted that counsel either did not object to such
evidence or that counsel’s objection was inadequate because
counsel objected on bases other than the constitutionality of
his detention and arrest. Taylor’s allegations in support of this
claim focused on the brown shirt, which was received into
evidence, and testimony by witnesses who identified one of the
shooters as wearing a brown shirt.
The postconviction district court rejected Taylor’s first post-
conviction claim. The district court reasoned in part that the
trial court had reviewed Duncan’s actions in stopping and
arresting Taylor and had “ruled Officer Duncan’s actions to
be legal” and that therefore, the stop and arrest were not
unconstitutional.
[10] We have reviewed the trial court’s ruling on Taylor’s
motion to suppress. We determine that even if trial counsel
had challenged the constitutionality of the detention and arrest
on appeal, the ruling would have been affirmed. In review-
ing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court
applies a two-part standard of review. Regarding historical
facts, an appellate court reviews the trial court’s findings for
clear error, but whether those facts trigger or violate Fourth
Amendment protection is a question of law that an appellate
court reviews independently of the trial court’s determina-
tion. State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).
Based on the evidence presented by the State at the hearing on
Taylor’s motion to suppress, we agree with the district court’s
conclusion that the detention and arrest of Taylor did not vio-
late the Fourth Amendment. Therefore, no evidence obtained
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as a result of Taylor’s arrest or detention should have been
suppressed based on an illegal search or seizure.
Because the trial court’s ruling on the motion to suppress
was correct, we conclude that Taylor has not shown preju-
dice resulting from trial counsel’s failure to object at trial
to evidence obtained as a result of his detention and arrest.
Even if such objection had been made, it would properly have
been overruled, and even if the issue had been preserved and
raised on appeal, it would not have resulted in a reversal of
Taylor’s conviction. See State v. Schwaderer, 296 Neb. 932,
898 N.W.2d 318 (2017) (counsel not ineffective for failing to
renew motion to suppress at trial when motion raised meritless
argument). We therefore conclude that the district court did not
err when it rejected Taylor’s first postconviction claim without
an evidentiary hearing.
Claim II: Hearsay Regarding
Location of Gun.
Taylor’s second claim was that counsel was ineffective for
failing to object to allegedly inadmissible hearsay testimony
regarding the general location in which a gun tied to the shoot-
ing was found. In Taylor II, Taylor claimed that the trial court
erred when it overruled his objection based on hearsay to tes-
timony regarding the specific location in which the gun was
found. We rejected the claim in Taylor II, in part because it was
cumulative of prior testimony, to which Taylor did not object,
regarding the general location in which the gun was found. In
this postconviction claim, Taylor asserts counsel was ineffec-
tive for failing to object to the testimony regarding the general
location. In effect, the claim is that trial counsel was deficient
when he failed to object sooner.
Joseph Copeland was a witness called by the State. Copeland
lived near where the shooting occurred, and he testified that at
the time of the shooting, just after he heard gunfire, he saw a
man running down his street. Copeland further testified that
approximately 2 months after the shooting, he called police to
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his residence because his son and a neighbor boy had found
a gun “in the trees” when they were looking for an airplane
they had lost when they “were playing down at the school.”
Copeland testified that his son had brought the gun to him and
that his son had shown him where he found the gun.
When the State asked Copeland to indicate on a map the
location where his son had said he had found the gun, Taylor’s
counsel objected based on hearsay and the court sustained the
objection. The State then asked Copeland whether he “physi-
cally went to that location,” and Copeland responded, “Yes.”
The State again asked Copeland to identify the location on the
map, and this time the court overruled Taylor’s counsel’s objec-
tion and allowed Copeland to identify the exact location.
On appeal in Taylor II, the State conceded that Copeland’s
testimony regarding the exact location of the gun was inadmis-
sible hearsay, but it argued that admission of the testimony was
harmless error. We agreed that the testimony was inadmissible
hearsay and that the error was harmless. We reasoned that
Copeland’s testimony regarding the precise location of the gun
was cumulative of earlier testimony by Copeland to which
Taylor had not objected. We noted that Copeland had already
testified without objection that his son had found the gun in
the trees at the school. We also noted that Copeland’s earlier
testimony had indicated that he lived near the school. We rea-
soned that this evidence, admitted without objection, already
established that the gun was found near Copeland’s home.
We further reasoned that the precise location of the gun “was
not vital to the State’s case” and instead that “[t]he important
fact was that the gun was found near Copeland’s home, in the
area where Copeland had seen someone running the day of the
shooting.” Taylor II, 287 Neb. at 394, 842 N.W.2d at 778. We
concluded that “[b]ecause evidence of the general location of
the gun was received without objection, the subsequent hearsay
[regarding the exact location] was cumulative.” Id. We addi-
tionally reasoned that “there was a substantial amount of other
evidence that established Taylor’s guilt.” Id.
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Taylor claimed in his postconviction motion that trial coun-
sel was ineffective for failing to object based on hearsay as
soon as Copeland mentioned the gun and the general location
in which it was found. He argued that counsel knew from prior
proceedings the nature of Copeland’s testimony and should
have known where the testimony was going. He further argued
that the error in admitting the evidence was not harmless
because other evidence that we relied on in Taylor II to support
his conviction was also improperly admitted.
In its written order, the district court rejected Taylor’s sec-
ond postconviction claim. The court noted that in Taylor II, we
had found the error in admitting hearsay testimony regarding
the exact location of the gun was harmless not only because
it was cumulative of earlier testimony regarding the general
location of the gun, but also “more significantly” because there
was a substantial amount of other evidence that supported
Taylor’s conviction. The court stated that it was apparent
that “even if the Copeland testimony was completely disre-
garded the record contained sufficient evidence to support . . .
Taylor’s conviction.”
Taylor claims in this appeal that the postconviction district
court erred in its legal analysis when it relied on our decision
in Taylor II that admission of hearsay testimony regarding the
location of the gun was harmless error because of the substan-
tial amount of other evidence that support Taylor’s conviction.
He argues that much of the other evidence on which we relied
in reaching our determination in Taylor II was also inadmis-
sible because it was obtained as the result of his detention
and arrest. However, as we discussed above, the trial court
did not err when it determined that Taylor’s detention and
arrest were not unconstitutional. Therefore, the other evidence
upon which we relied in Taylor II was not improper based on
a claim of illegal detention and arrest and it did support our
conclusion in Taylor II that error in admitting hearsay regard-
ing the specific location in which the gun was found was
harmless error.
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In contrast to our analytical framework in the direct appeal,
Taylor II, we note that in this postconviction action the opera-
tive question is not whether error in admitting the evidence was
harmless error. Instead, with regard to Taylor’s claim of inef-
fective assistance of counsel, the court must determine whether
counsel’s alleged deficient performance caused prejudice to the
defendant. To show prejudice under the prejudice component
of the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient per-
formance, the result of the proceeding would have been differ-
ent. State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). This is a
different standard from the harmless error analysis in Taylor II,
which required us to find that Taylor’s conviction was surely
unattributable to the error in admitting hearsay evidence of the
specific location of the gun.
In this postconviction action, the operative question is
whether there is a reasonable probability that but for counsel’s
failure to object to Copeland’s testimony regarding the general
location of the gun the result of the proceeding would have
been different. In other words, we must determine whether,
if counsel had objected and the testimony had been excluded,
there is a reasonable probability that Taylor would not have
been convicted. We determine that because there was sufficient
other evidence of Taylor’s guilt, the admission of Copleand’s
unchallenged testimony regarding the location of the gun does
not undermine confidence in the outcome of the trial and
there was not a reasonable probability that the result of the
trial would have been different if the testimony had been
excluded. We conclude that the district court did not err when
it rejected Taylor’s second postconviction claim without an
evidentiary hearing.
Claim III: Prosecutor’s Comments
in Closing Arguments.
Taylor’s third claim was that counsel was ineffective for
failing to object to and move for a mistrial based on allegedly
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improper closing arguments made by the prosecutor. Taylor
identified five occurrences from the prosecutor’s closing argu-
ments that he claimed were improper.
In the first occurrence, the prosecutor referred to evidence
that Taylor was riding in a car with a codefendant and told
the jury, “you use your own common sense. There’s conver-
sation going on in that car.” The prosecutor later stated, “We
don’t have evidence of what happened in that car, but use
your common sense, the discussion that took place before
they get out of the car.” Taylor argued these comments were
improper because the prosecutor was “inject[ing] her per-
sonal belief which was unsupported by the evidence more
than once.”
In the second occurrence, the prosecutor referred to
Copeland’s testimony and stated, “Copeland sees him on this
block right here . . . . [Copeland] testified that he saw the
defendant cut across right here . . . towards Mary Street where
the gun’s found.” Taylor argued that these comments misstated
the evidence because Copeland testified only that he saw a
“black male” running down the street and that Copeland gave
no further description and he never identified Taylor as the
person he had seen.
In the third occurrence, the prosecutor stated, “[Taylor]
had just run through the neighborhood with that brown shirt
holding this gun . . . in his shorts.” Taylor argued this com-
ment was not supported by the evidence, because no witness
testified to seeing Taylor holding a gun as he ran through the
neighborhood.
In the fourth occurrence, the prosecutor referred to Taylor’s
codefendant, who testified at Taylor’s trial and stated:
What [the codefendant] testified to is the truth. Did he
tell you everything? No. He’s not telling you everything
because he’s friends with [Taylor] . . . . He doesn’t want
to give everything up, what he is telling you is the truth,
because it’s corroborated throughout the testimony and
evidence of all the other witnesses.
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The prosecutor stated in rebuttal:
[Defense counsel] wants you to say that we called [the
codefendant] a liar. We didn’t call him a liar. He told you
the truth. Everything he told you is corroborated. . . .
What he did tell you is the truth. And it’s corrobo-
rated by every other piece of evidence you have in this
case . . . .
Taylor argued that the prosecutor was improperly vouching for
its main witness.
In the fifth occurrence, the prosecutor referred to a witness
who had seen the shooting and stated that she
came in here and she told you who she identified. Didn’t
get a good look at either one of their faces, but think
about it, use your common sense. If you’re standing there,
you’re going through what [the witness] went through,
are you going to remember a visual face or are you going
to remember — is clothing going to stand out more? Is
a brown shirt with orange writing, are you going to for-
get that?
Taylor argued that this comment was improper because it
asked the jurors to put themselves in the shoes of the witness
and it therefore encouraged the jurors to depart from neutral-
ity and to decide the case on the basis of personal interest and
bias rather than on evidence.
The district court rejected Taylor’s third postconviction
claim. The court stated, “Having reviewed the record it is clear
to this Court that the prosecution did not engage in prosecuto-
rial misconduct as any statements made by the prosecutor that
may have been inaccurate did not mislead and unduly influ-
ence the jury. The prosecutor was merely making her closing
argument to the jury.” The court further stated that the pros-
ecutor’s comments “were reasonably drawn inferences from
the evidence” and that trial counsel had “used his opportunity,
during his closing argument to contest and/or discredit” the
prosecutor’s comments.
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[11-13] Determining whether defense counsel was ineffec-
tive in failing to object to prosecutorial misconduct requires
an appellate court to first determine whether the petitioner
has alleged any action or remarks that constituted prosecuto-
rial misconduct. State v. Ely, 295 Neb. 607, 889 N.W.2d 377
(2017). A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct. Id.
A prosecutor is entitled to draw inferences from the evidence
in presenting his or her case, and such inferences generally do
not amount to prosecutorial misconduct. Id. We determine that
the first, second and third occurrences described above were
instances of the prosecutor’s drawing inferences from the evi-
dence in making her arguments to the jury and did not amount
to prosecutorial misconduct.
Regarding the fourth occurrence, Taylor argues that the
prosecutor was improperly vouching for the witness. However,
we do not read the prosecutor’s comments as vouching for the
truth of the witness’ testimony. The prosecutor was not assert-
ing that she had personal knowledge of the witness’ veracity.
Instead, the prosecutor was pointing out that the testimony was
corroborated by other evidence, and therefore, the prosecu-
tor was drawing the inference that the witness’ testimony was
credible because it was consistent with other evidence. This
argument did not amount to prosecutorial misconduct. See
State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016) (stat-
ing that while prosecutor should not express his or her personal
belief or opinion as to truth or falsity of any testimony, when
prosecutor’s comments rest on reasonably drawn inferences
from evidence, prosecutor is permitted to highlight relative
believability of witnesses).
Regarding the fifth occurrence, Taylor contends that the
prosecutor improperly asked the jurors to put themselves in the
shoes of the witness and base their verdict on personal interest
or bias. In his motion for postconviction relief, Taylor cited
Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988),
for the proposition that it is improper for an attorney to make
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a “so-called Golden Rule argument” which encourages the jury
to put itself in the shoes of a plaintiff and which encourages
the jury to depart from neutrality and to decide the case on the
basis of personal interest and bias rather than on the evidence.
However, the prosecutor’s comments in this case were signifi-
cantly different from this sort of argument. Instead, the pros-
ecutor used inferences from the evidence to explain why the
witness may have remembered certain details but not remem-
bered other details of the suspects’ appearances. The prosecutor
did not ask the jurors to put themselves in the shoes of a party
or in the shoes of the victim and to therefore render a verdict
based on personal interest or bias. Instead, the prosecutor asked
the jurors to consider how the circumstances may have affected
the witness’ observations and recollections. These comments
did not constitute misconduct.
Because none of the occurrences urged by Taylor consti-
tuted prosecutorial misconduct, the district court did not err
when it rejected Taylor’s third claim of ineffective assistance
of counsel.
Cumulative Effect and Summary.
Taylor also claimed that even if each of his individual claims
of ineffective assistance of counsel was insufficient to sup-
port postconviction relief, then the cumulative effect of all the
alleged instances of counsel’s deficient performance resulted
in an unfair trial requiring postconviction relief. However,
because we conclude that each of Taylor’s individual claims
was without merit, we further conclude that the cumulative
effect of such claims did not result in an unfair trial and does
not merit postconviction relief. See State v. Robinson, 287 Neb.
606, 843 N.W.2d 672 (2014).
Because none of Taylor’s claims of ineffective assistance
of counsel had merit, either individually or collectively, we
conclude that the district court did not err when it overruled
his motion for postconviction relief without granting an evi-
dentiary hearing.
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Appointment of Counsel.
[14,15] Taylor finally claims that the court erred when
it denied his motion for appointment of counsel. Under the
Nebraska Postconviction Act, it is within the discretion of the
trial court as to whether counsel shall be appointed to repre-
sent the defendant. State v. Epp, 299 Neb. 703, 910 N.W.2d
91 (2018). Where the assigned errors in the postconviction
petition before the district court are either procedurally barred
or without merit, thus establishing that the postconviction
proceeding contained no justiciable issue of law or fact, it is
not an abuse of discretion to fail to appoint appellate counsel
for an indigent defendant. Id. We therefore conclude the dis-
trict court did not abuse its discretion when it denied Taylor’s
motion to appoint postconviction counsel.
CONCLUSION
We conclude that the district court did not err when it over-
ruled Taylor’s motion for postconviction relief without an evi-
dentiary hearing and that it did not abuse its discretion when it
denied his motion to appoint counsel. We therefore affirm the
district court’s order.
A ffirmed.