State v. Lessley

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2022 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. LESSLEY
Cite as 312 Neb. 316State of Nebraska, appellee, v.
Tyeric L. Lessley, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-768.
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
demonstrate 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: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
3. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by an appellate court.
4. 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.
5. 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.
6. ____: ____: ____. The district court must grant an evidentiary hearing
to resolve the claims in a postconviction motion when the motion con-
tains factual allegations which, if proved, constitute an infringement of
the defendant’s rights under the state or federal Constitution.
7. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
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Cite as 312 Neb. 316a preliminary determination as to whether an evidentiary hearing is
justified.
8. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
9. Postconviction: Proof: Appeal and Error. When a district court denies
postconviction relief without conducting an evidentiary hearing, an
appellate court determines de novo whether the petitioner has alleged
facts that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no relief.
10. Records: Appeal and Error. The appellate court will not scour the
record on appeal to understand unclear arguments or find support for
broad conclusions.
11. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
12. Trial: Appeal and Error. An issue not presented to or decided on by
the trial court is not an appropriate issue for consideration on appeal.
13. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
14. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the
defend­ant and which were or could have been litigated on direct
appeal.
15. Judgments: Claim Preclusion. Claim preclusion bars litigation of any
claim that has been directly addressed or necessarily included in a for-
mer adjudication, as long as (1) the former judgment was rendered by
a court of competent jurisdiction, (2) the former judgment was a final
judgment, (3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions.
16. Records: Appeal and Error. It is the appellant’s responsibility to
present a record that permits appellate review of the issue assigned
as error.
17. Postconviction: Appeal and Error. When the defendant is represented
both at trial and on direct appeal by the same counsel, the defendant’s
first opportunity to assert ineffective assistance of trial counsel is in a
motion for postconviction relief.
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STATE V. LESSLEY
Cite as 312 Neb. 31618. Effectiveness of Counsel: Proof. 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 per­
formance actually prejudiced the defendant’s defense.
19. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. To show preju-
dice under the prejudice component of the Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must demonstrate a reasonable probability that but for his or her coun-
sel’s deficient performance, the result of the proceeding would have
been different.
20. ____: ____. 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 under-
mine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable.
21. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
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.
22. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been if they had been called at trial in order to avoid dis-
missal without an evidentiary hearing.
23. ____. Absent specific allegations, a motion for postconviction relief
effectively becomes a discovery motion to determine whether evidence
favorable to a defendant’s position actually exists.
24. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.
A defendant has a fundamental constitutional right to testify, and the
right to testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone.
25. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can pre­
sent a valid claim of ineffective assistance of counsel in two instances:
(1) if the defendant shows that counsel interfered with his or her
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STATE V. LESSLEY
Cite as 312 Neb. 316freedom to decide to testify or (2) if counsel’s tactical advice to waive
the right was unreasonable.
27. Postconviction: Effectiveness of Counsel: Testimony: Proof. In a
postconviction action, when a defendant raises a claim of ineffective
assistance of trial counsel related to counsel’s failure with regard to
advising the defendant on his or her right to testify, an appellate court
subjects the claim to the Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), standard and requires the defendant
to show how trial counsel’s alleged deficient performance prejudiced
the defense.
28. Postconviction: Appeal and Error. In an appeal from the denial of
postconviction relief, an appellate court will not consider for the first
time on appeal claims that were not raised in the verified motion.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Tyeric L. Lessley, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant challenges the district court’s denial of his
motion for postconviction relief without holding an evidentiary
hearing. The defendant alleged in the motion multiple errors
committed by the trial court and multiple claims of ineffective
assistance of trial counsel. The district court found that each of
the allegations were either procedurally barred, insufficiently
alleged, or affirmatively refuted by the record. We affirm.
II. BACKGROUND
1. Convictions
Tyeric L. Lessley was charged with first degree murder
under alternative theories of premeditated murder or felony
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STATE V. LESSLEY
Cite as 312 Neb. 316murder, in violation of Neb. Rev. Stat. § 28-303(1) and (2)
(Reissue 2016); two counts of use of a deadly weapon to com-
mit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)
and (c) (Reissue 2016); first degree assault, in violation of
Neb. Rev. Stat. § 28-308 (Reissue 2016); and possession of a
firearm by a prohibited person, in violation of Neb. Rev. Stat.
§ 28-1206(1)(a)(b) (Reissue 2016).
Lessley filed a motion to suppress all evidence obtained
from a cell phone search. After a hearing, the motion to sup-
press was denied. The district court held that Lessley waived
his right to speedy trial.
Before Lessley’s 5-day jury trial began, the State was
allowed to amend its information by interlineation to remove
the premeditated murder theory of proof with regard to the first
degree murder charge. At trial, the State pursued the remaining
theory of felony murder.
Further details may be found in this court’s opinion on
direct appeal, 1 but the evidence at trial generally showed as
follows:
(a) Events of October 29, 2016
Between 4 and 4:30 a.m. on October 29, 2016, Curtis
Goodwin was paying bills on his laptop computer in the home
shared with his fiance, Suzanne Pope, in Omaha, Nebraska,
while Pope was sleeping in a bed in the main floor living room
of the residence, which the couple used as their bedroom.
During this time, Goodwin left the home through the back
door to investigate a knocking sound he heard at the front of
the house. Goodwin testified that family and friends never used
the front door of the residence, but instead entered and exited
through the rear door.
Goodwin grabbed a baseball bat before leaving the house.
Goodwin then walked around to his front door, where he dis-
covered a man knocking on the door. Goodwin asked the man
if he could help him. The man pointed a gun in Goodwin’s face
1
State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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STATE V. LESSLEY
Cite as 312 Neb. 316and responded, “Yeah, n-----, I’m your worst mother f------
nightmare.” The man, whom Goodwin testified he did not rec-
ognize, then told Goodwin to go into the house.
The two walked around the side of the house to the back
entrance. Goodwin testified that at some point along the way,
he dropped the bat. Once inside, the man told Goodwin to
“give me all your money and your shit.” Goodwin woke Pope
to tell her that someone was there to rob them. According
to Goodwin, both he and Pope told the intruder they did not
have any money. At that point, the intruder shot Pope, took
Goodwin’s laptop, and shot Goodwin as Goodwin lunged
at him.
Goodwin was able to follow the intruder out of the house
and into the backyard, where Goodwin collapsed as the
intruder ran down the street carrying Goodwin’s laptop. At this
time, Goodwin noticed an unfamiliar dark-colored Chevrolet
Suburban or Tahoe parked in his driveway, which was located
in the backyard of the residence. Goodwin testified that this
vehicle had no license plates and described the back doors
as opening “like kitchen cabinets.” The intruder walked back
past Goodwin. By this time, Goodwin had retrieved the bat he
dropped earlier and swung it in the direction of the intruder.
Goodwin testified that he hit “something,” but did not know
if it was the intruder. The intruder then shot Goodwin again,
dropped the laptop, and drove away.
Pope was killed and Goodwin was injured in this incident.
Goodwin was in a coma for nearly 3 months and sustained the
loss of one of his kidneys, his spleen and gallbladder, and sev-
eral feet of his small intestine. Complications from his injuries
caused Goodwin to fall into a second coma, during which he
nearly died.
“Shotspotter” evidence corroborated the timing of the gun-
shots. Shotspotter is a technology utilized by the Omaha Police
Department to determine the location of gunshots based upon
sounds captured by microphones positioned in certain parts of
the city. Here, Shotspotter captured the sound of two gunshots
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Cite as 312 Neb. 316at 4:30 and 4:31 a.m., 20 seconds apart, sounding from out-
side Goodwin and Pope’s residence. Neighbors also testified
they heard gunshots around that time.
In addition, neighbors witnessed a vehicle travel west from
the residence after they heard the gunshots. One neighbor
testified that she saw a dark blue, green, or black Suburban
or Tahoe. A second neighbor testified that he witnessed a
dark-colored Suburban or Tahoe with a loud exhaust, custom
wheels, and tinted windows, and that based upon his experi-
ence with vehicles, he estimated the vehicle was between a
1996 and 1999 model.
(b) DNA and Other Evidence
Goodwin’s laptop computer was found in the backyard near
the driveway. It had a partial shoeprint on its cover. A tread
expert testified that the shoeprint was consistent with a Nike
“Shox” tennis shoe.
Various items of evidence were also recovered from the
scene and tested. The State’s DNA expert testified that the
blood and baseball bat found at the scene were both swabbed
and tested. Each produced a statistical match to Lessley’s
DNA.
Law enforcement later determined that on October 12, 2016,
Lessley had purchased a 2001 green Chevrolet Suburban from
an Omaha dealership. That dealership had global positioning
system records placing the Suburban less than a mile southeast
of the Goodwin-Pope residence at 4:18 a.m. on October 29.
One of the investigating officers testified that it had taken him
about 2 minutes to drive from the residence to the location
noted in the global positioning system records.
Lessley was arrested in January 2017. At the time of arrest,
Lessley was wearing a pair of Nike Shox shoes, which were
consistent with the shoeprint found on the laptop computer.
Lessley’s Suburban was impounded at the time of his arrest.
The Suburban still had in-transit signs and no license plates.
It also had tinted windows, “barn-door” style rear doors, and
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STATE V. LESSLEY
Cite as 312 Neb. 316a louder-than-stock exhaust. A search of Lessley’s residence
recovered custom aftermarket rims.
At the time of the shooting, Lessley and his girlfriend lived
a 3-minute drive northwest of the Goodwin-Pope residence.
Lessley’s girlfriend testified that Lessley returned from work
on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
asleep shortly after Lessley returned home and was awoken
before 5:30 a.m. by Lessley’s talking on the telephone. At
this time, Lessley’s girlfriend noticed a “hole” in the right
side of Lessley’s forehead that he did not have when he
came home from work. Lessley’s cell phone records show
that he was on the cell phone between 4:58 and 5:06 a.m. on
October 29.
The jury was instructed only on the felony murder theory
and was not instructed as to any other theory of first degree
murder, or as to any other degree of murder. Lessley did not
object to the instructions as given and did not offer any pro-
posed instructions.
The jury found Lessley guilty on all five counts. At the sen-
tencing hearing, the district court initially sentenced Lessley
to life imprisonment for first degree murder, 20 to 20 years’
imprisonment for first degree assault, 3 to 3 years’ imprison-
ment for possession of a deadly weapon by a prohibited per-
son, and 5 to 5 years’ imprisonment on both use of a deadly
weapon to commit a felony convictions. After counsel for the
State and for Lessley raised the issue of indeterminate sen-
tences, telling the district court that the sentences had to be
different, the district court amended its sentences for counts
II through V, where it added 1 day to the maximum term of
each sentence so the minimum and maximum terms would
not be the same. All sentences were ordered to be served
consecutively.
2. Direct Appeal and Resentencing
On direct appeal, Lessley, with trial counsel, assigned that
there was insufficient evidence to support his convictions
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STATE V. LESSLEY
Cite as 312 Neb. 316and that the district court erred in not instructing the jury
on the lesser-included offense of manslaughter. This court
affirmed Lessley’s convictions and determined that the dis-
trict court did not err when it did not instruct the jury on
manslaughter. However, this court found plain error in the
sentences imposed for counts II through V. This court con-
cluded that the original sentences imposed for these convic-
tions were valid because the maximum term imposed by the
court (5 years and 3 years) was not greater than the maximum
term provided for by law (50 years) and the minimum term
was the minimum term provided for by law (5 years and 3
years), as set forth in Neb. Rev. Stat. § 29-2204(1)(b) (Reissue
2016). Therefore, this court vacated the modified sentences
and remanded the cause for resentencing in conformity with
the initial sentences of 5 to 5 years’ imprisonment for each
use conviction and 3 to 3 years’ imprisonment for the posses-
sion conviction.
3. Postconviction Proceedings
Lessley filed a timely motion for postconviction relief.
The motion alleged various claims of ineffective assistance of
counsel at trial and on direct appeal and numerous claims of
error by the trial court. Many claims made in Lessley’s post-
conviction motion have not been raised in his appeal.
Relevant to the issues being raised on appeal, Lessley
asserted in his postconviction motion that his trial counsel
was ineffective for (1) advising him to waive his speedy trial
rights, (2) failing to interview potential witnesses, (3) refus-
ing to allow Lessley to testify regarding an extramarital affair
he had with Pope and an altercation that ensued between him
and Goodwin, (4) failing to present readily available expert
testimony such as a serology expert, and (5) failing to object
to the State’s amendment of the first degree murder charge on
the first day of trial. Lessley further asserted that his appel-
late counsel was ineffective for failing to raise on appeal the
district court’s error in allowing the State to amend its infor-
mation on the first day of trial and his excessive sentences
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STATE V. LESSLEY
Cite as 312 Neb. 316issue. Lessley also claimed the district court erred when rul-
ing on the motion to suppress and instructing the jury. Lessley
alleged his trial counsel was ineffective for failing to success-
fully pursue the motion to suppress and object to erroneous
jury instructions at trial and was ineffective on appeal for
failing to pursue those issues.
The district court entered a written order denying Lessley’s
motion for postconviction relief without an evidentiary hear-
ing, finding that each of the claims were either procedur-
ally barred, insufficiently alleged, or affirmatively refuted by
the record.
III. ASSIGNMENTS OF ERROR
Lessley assigns, consolidated and restated, that the district
court erred when it (1) denied his request for appointment
of postconviction counsel without a hearing, (2) denied his
motion for postconviction relief without allowing the State
to respond, and (3) denied his motion for postconviction
relief without an evidentiary hearing as being without merit
or procedurally barred. He also assigns that the district court
erred during the trial stage of his proceedings by (1) failing
to suppress evidence derived from an unlawful search warrant
and supporting affidavit, (2) failing to find the State’s use of
peremptory challenges to exclude jurors of a specific racial
class violated his rights to due process and equal protection,
(3) abusing its discretion by supporting a verdict that was
insufficient to support his conviction for first degree murder,
and (4) giving certain jury instructions.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
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 affirmatively
show that the defendant is entitled to no relief. 2
2
State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
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Cite as 312 Neb. 316[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. 3 When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling. 4
[3] Alleged errors of the lower court must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the errors to be considered by an appellate court. 5
V. ANALYSIS
Lessley asserts on appeal, broadly, that the district court
erred in denying postconviction relief without first conducting
an evidentiary hearing and in determining that his claims are
without merit and are procedurally barred. More specifically,
Lessley asserts multiple errors by the trial court and multiple
claims of ineffective assistance of counsel.
Before addressing the specific claims of postconviction
relief that Lessley believes the court should have held an evi-
dentiary hearing on, we set forth the general legal principles
governing our analysis of appeals from the denial of postcon-
viction claims without an evidentiary hearing and dispose of
any claims Lessley raised that are procedurally barred or not
properly before us for appellate review.
[4-6] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
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, caus-
ing the judgment against the defendant to be void or voidable. 6
3
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
4
Id.5
Id.6
Cullen, supra note 2.
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Cite as 312 Neb. 316The district 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 state or fed-
eral Constitution. 7
[7,8] However, the allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary
hearing is justified. 8 An evidentiary hearing is not required on
a motion for postconviction relief when (1) the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3)
the records and files affirmatively show that the defendant is
entitled to no relief. 9
[9,10] When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. 10 The appellate court does not conduct this review sua
sponte, however; as with all appeals, the alleged errors of the
lower court must be both specifically assigned and specifically
argued in the brief of the party asserting the errors to be con-
sidered by the appellate court. 11 The appellate court will not
scour the record on appeal to understand unclear arguments or
find support for broad conclusions. 12
7
Id.; Jaeger, supra note 3.
8
Jaeger, supra note 3.
9
Id.10
Id.11
Id.12
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STATE V. LESSLEY
Cite as 312 Neb. 3161. Claims Not Properly Brought
for Appellate Review
With these general principles in mind, this court notes that
Lessley assigns many errors on appeal that he does not spe-
cifically argue in his brief. Lessley assigns that the district
court erred in denying his request for appointment of counsel
without a hearing, failing to suppress evidence derived from
an unlawful search warrant and supporting affidavit, failing to
find the State’s use of peremptory challenges to exclude jurors
of a specific racial class violated his rights to due process and
equal protection, and supporting a verdict based on evidence
that was insufficient to support a conviction of Lessley as
guilty beyond a reasonable doubt for felony murder. These
errors were not specifically argued in Lessley’s appellate brief,
and we accordingly decline to consider these assignments in
this appeal.
[11,12] Other issues that are not properly before an appel-
late court for review are issues that are not preserved below.
A motion for postconviction relief must mirror the arguments
made in a party’s appellate brief because we have said that
when an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
to it for disposition. 13 Therefore, an issue not presented to or
decided on by the trial court is not an appropriate issue for
consideration on appeal. 14
Lessley asserts in one general statement in his brief that
“[t]rial counsel rendered ineffective assistance of counsel by
not making proper objections to evidence discovered in vio-
lation of [Lessley’s] 4th amendment right to be free from
unreasonable search and seizure.” 15 Lessley words this allega-
tion in his motion for postconviction relief as “[t]rial counsel
13
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
14
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
15
Brief for appellant at 11.
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Cite as 312 Neb. 316rendered ineffective assistance of counsel when said counsel
fumbled what should have been a successful motion to sup-
press evidence seized pursuant to the search warrant of his
home, cell phone[,] and the questioning of his minor daughter
. . . without a guard[ian] present at [the] interview.” These
allegations are different. One focuses on the pretrial motion to
suppress hearing, and the other focuses on trial counsel’s fail-
ure to object to the evidence received at trial after the motion
to suppress was denied.
Lessley also contends in his appellate brief that counsel was
ineffective because counsel failed to object to the court’s con-
tinued delay of pretrial proceedings and that this caused him
to unknowingly waive his speedy trial right. In contrast, in his
motion, Lessley alleged that trial counsel was ineffective for
advising him to waive his statutory right to speedy trial and
argued that if he had not done so, the prosecution would have
been pressed to move forward with trial with less than 30 days
on the speedy trial clock.
With both of these issues, Lessley is asserting for the first
time on appeal that trial counsel was ineffective for failing to
object during trial, but he raised different allegations in his
motion for postconviction relief. Since the district court was
not presented with these arguments, and thus did not decide
whether trial counsel was ineffective for failing to object, it is
inappropriate for this court to consider them on appeal.
2. Claims That Are Procedurally Barred
Lessley also assigns and argues errors that the district court
correctly determined are procedurally barred. Lessley contends
that the district court abused its discretion when it “meted out
an invalid indeterminate sentence by imposing a fix[ed] inde-
terminate sentence plus one day” and when it “failed and/or
neglected to adjudicate this claim on postconviction relief.” 16
Further, Lessley raises an issue with the jury instructions given
16
Id. at 13 and 14.
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Cite as 312 Neb. 316at trial, asserting that the trial court improperly defined reason-
able doubt as a lower standard by which the State had to prove
him guilty and in giving an instruction regarding the elements
of “intent” because “[i]ntent is a mental element of the crime
of [f]irst degree [m]urder (felony) and assault in the [f]irst
[d]egree” and “[t]he trial court failed to give proper instruc-
tions of willful, knowingly, with specific intent to [commit] the
allege[d] crime, resulting in prejudice to [Lessley].” 17
On direct appeal, 18 Lessley contended that the district court
erred in not instructing the jury on the lesser-included offense
of manslaughter and that there was insufficient evidence to
support his convictions. The State raised the issue of Lessley’s
sentences. We affirmed Lessley’s convictions and determined
that it was not error for the district court to not instruct the
jury on manslaughter. We also determined that the district
court’s modifying Lessley’s sentences by adding 1 day to his
maximum sentences was an invalid modification because the
original sentences for the use and possession convictions were
valid. We remanded the cause for resentencing, directing the
district court to resentence Lessley according to the original
sentences imposed.
Lessley attempts to argue again that his sentences with 1
day added were invalid indeterminate sentences. Lessley’s
argument fails to take into account that these are no longer his
sentences based on our remand in his direct appeal. Further,
his motion attempts to argue that other jury instructions were
incorrect. Since we considered a different issue regarding the
instructions to the jury in his direct appeal, these issues should
have been known to Lessley and should have been raised on
his direct appeal. Therefore, we decline to consider these argu-
ments here.
[13-15] The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first
17
Id. at 9.
18
Lessley, supra note 1.
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Cite as 312 Neb. 316opportunity. 19 We have consistently said that a motion for post-
conviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have
been litigated on direct appeal. 20 To the extent these arguments
are being raised for the first time in relation to his motion for
postconviction relief, they have not been brought at the first
opportunity. To the extent these issues were raised and directly
addressed or necessarily decided in our decision on direct
appeal, they are barred by claim preclusion. Claim preclusion
bars litigation of any claim that has been directly addressed or
necessarily included in a former adjudication, as long as (1)
the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment, (3)
the former judgment was on the merits, and (4) the same par-
ties or their privies were involved in both actions. 21
3. Due Process
An issue that is properly before us and appropriate for
appellate review is Lessley’s contention that the district court
erred when it failed to allow the State the opportunity to
respond to his motion for postconviction relief before rul-
ing upon it. Lessley acknowledges that the petitioner has the
burden of pleading and proving the facts necessary to entitle
him to relief, but he argues that the State had the burden of
pleading grounds of preclusion and then the burden returns to
the petitioner to disprove the preclusion’s existence. He asserts
that because the State was “never given the opportunity to
respond,” the record was not complete for the district court to
make a factual finding. 22
Lessley’s motion for postconviction relief was filed on
February 3, 2020, and the district court’s order denying
19
State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
20
State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).
21
State v. Marrs, 295 Neb. 399, 888 N.W.2d 721 (2016).
22
Brief for appellant at 7.
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Cite as 312 Neb. 316Lessley’s motion was filed on September 1, 2021. Lessley
asserts in his brief that “[i]t has been the formal policy of the
Douglas County District Court judges to allow the State 60 to
90 days to respond to formal pleading of postconviction once
the court has had an opportunity to review the postconviction
pleading.” 23 While this may be true, the State had substantially
more time than 60 to 90 days to respond to Lessley’s motion
if it wished to.
The State was not required to respond to Lessley’s motion
for postconviction relief, and the district court was not in
error in failing to order the State to respond. Neb. Rev. Stat.
§ 29-3001(2) (Reissue 2016) states, in relevant part:
Unless the motion and the files and records of a case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, and determine the issues and make findings of
fact and conclusions of law with respect thereto.
In State v. Burries, 24 we declined to conclude that the State
has an obligation to raise issues concerning a postconvic-
tion action at a time prior to that mandated by the statute. In
Burries, the State had filed a motion to dismiss in response
to the defendant’s first motion for postconviction relief. The
defendant later filed a second amended motion for postcon-
viction relief and argued on appeal that when the State failed
to file a brief in response, the State effectively withdrew its
motion to dismiss and conceded that he was entitled to relief.
We acknowledged that though the State, through its county
attorneys, can, and often does, participate at earlier points in
the process, the State is only called upon to take action with
respect to a motion once it receives notice from the court. And,
under § 29-3001(2), that notice is only mandated once the court
determines that a prisoner is entitled to a hearing. Therefore,
23
Id. at 7-8.
24
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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Cite as 312 Neb. 316we declined to conclude that the State has an obligation prior
to the notice mandated through § 29-3001(2) to respond to a
petitioner’s motion for postconviction relief.
Similarly here, the district court determined that Lessley was
not entitled to an evidentiary hearing on any claim he raised
in his motion for postconviction relief. Therefore, the court
was never required to provide notice to the State to issue a
response, and the State was not obligated to provide a response
to Lessley’s motion. Thus, the district court did not err in rul-
ing on Lessley’s motion for postconviction relief without first
receiving a response from the State.
[16] To the extent Lessley argues the record was not com-
plete without the State’s response, we reiterate that it is the
appellant’s responsibility to present a record that permits appel-
late review of the issue assigned as error. 25 Therefore, Lessley
could not depend on any action from the State in order for the
record to be complete for the district court to make a decision
or for the appellate court to review its decision. The district
court’s decision regarding whether a motion for postconviction
relief is entitled to an evidentiary hearing is based solely on
the facts alleged in the petitioner’s motion and the files and
records of the case, which need not require a response from
the State. 26
4. Ineffective Assistance of Counsel
[17] Lessley’s remaining contentions are ineffective assist­
ance of counsel claims. Generally, a motion for postconviction
relief cannot be used to secure review of issues that were or
could have been litigated on direct appeal. However, when, as
here, the defendant is represented both at trial and on direct
appeal by the same counsel, the defendant’s first opportunity to
assert ineffective assistance of trial counsel is in a motion for
postconviction relief. 27
25
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
26
See § 29-3001.
27
Jaeger, supra note 3.
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Cite as 312 Neb. 316[18-21] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 28 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense. 29 To show that counsel’s performance was defi-
cient, the defendant must show counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. To show prejudice under the prejudice compo-
nent of the Strickland test, the defendant must demonstrate a
reasonable probability that but for his or her 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 prob-
ability sufficient to undermine confidence in the outcome. The
likelihood of a different result must be substantial, not just
conceivable. 30 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. 31
Lessley asserts that trial counsel was ineffective when coun-
sel (1) failed to interview and investigate potential alibi wit-
nesses, (2) refused to allow him to testify, (3) did not make
readily available expert witnesses, and (4) failed to object to
the State’s amendment of the information. We will discuss each
of these claims individually.
(a) Failure to Investigate or
Interview Alibi Witnesses
Lessley argues that trial counsel was ineffective because
counsel failed to interview and investigate potential alibi
28
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
29
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
30
Id.31
Cullen, supra note 2.
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Cite as 312 Neb. 316witnesses, such as Cordell Westbrook. Lessley asserts that
Westbrook would have given testimony that he was with
Lessley between 1:30 and 4:30 a.m. on October 29, 2016.
Lessley argues that “[h]ad counsel interviewed and investi-
gated . . . Westbrook as part of his trial investigation of the
facts of the case, compelling testimony likely would have been
given resulting in [Lessley’s] acquittal of aforemention[ed]
charge to which the jury found him guilty.” 32
In his motion for postconviction relief, Lessley added the
allegation that Westbrook would have testified that he observed
the “scar” on Lessley’s head at that time; however, we will
not consider this allegation in our analysis because it was not
alleged in Lessley’s brief. An appellate court considers errors
that are both specifically assigned and specifically argued in
the brief of the party asserting the error and will not read the
brief together with a motion for postconviction relief in order
to discern what the appellant’s complete argument is.
[22,23] A defendant is required to specifically allege what
the testimony of potential witnesses would have been if they
had been called at trial in order to avoid dismissal without an
evidentiary hearing. 33 Absent specific allegations, a motion for
postconviction relief effectively becomes a discovery motion to
determine whether evidence favorable to a defendant’s position
actually exists. 34
In State v. Munoz, 35 we determined the defendant’s allega-
tions regarding witness testimony did not warrant an eviden-
tiary hearing because they were insufficiently specific. In
Munoz, the defendant alleged in his motion for postconviction
relief that trial counsel was deficient in failing to depose or
interview certain named witnesses who had knowledge of his
whereabouts during the crime. The defendant claimed one
32
Brief for appellant at 11.
33
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
34
Id.35
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Cite as 312 Neb. 316named witness’ testimony would have presented a rebuttable
presumption to the State’s theory of how he allegedly mur-
dered the victim and “‘would have contradicted the [S]tate’s
evidence underlining proof of [his] alibi during the time of the
victim’s murder.’” 36 But the defendant did not elaborate as to
this potential testimony in any further detail. As to this wit-
ness, we concluded that the defendant’s allegations consisted
entirely of legal conclusions and conclusions of fact without
supporting facts.
The defendant in Munoz also alleged that another named
witness had engaged in a conversation with the defendant’s son
that was instrumental to his desire to travel out of town during
the time the crime took place and that this testimony would
have been pivotal because the witness possessed knowledge
of the events leading to the defendant’s desire to travel. While
the facts alleged by the defendant were more specific regarding
the witness’ testimony, we found it was still insufficient to war-
rant an evidentiary hearing. We explained that the defendant
failed to allege when the conversation regarding his desire to
travel with the witness took place—specifically whether the
conversation took place before the murder—and the testimony
would not have been exculpatory under the facts of the case
because the alleged alibi was for when the victim, who had
been murdered several days before, was found, not when she
was murdered. We also noted that the testimony would have
been inadmissible hearsay.
In contrast, we found the facts alleged by the defendant in
State v. Stricklin 37 were sufficient to show, if proved, both defi-
cient performance and prejudice regarding his alibi defense. In
Stricklin, the defendant alleged that on the day of the crimes,
he took his stepson to a barber shop at 10 a.m., left the barber
shop around noon, and drove to his grandmother’s house, dur-
ing which drive he made a call on his cell phone at 12:34 p.m.
36
Id. at 295, 959 N.W.2d at 812.
37
Stricklin, supra note 29.
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Cite as 312 Neb. 316The defendant alleged that four specifically named witnesses
and his cell phone records would corroborate this alibi. At trial,
the State relied on cell phone evidence that linked the defend­
ant and his codefendant to the crime scene between 11:42 a.m.
and 12:36 p.m. We noted that, based on the State’s theory of
the case, the crimes occurred during the general time period
the defendant’s alleged alibi witnesses would confirm he was
someplace else. Since the defendant alleged that counsel knew
of this alibi information and was deficient in failing to pre­
sent it, we found that the defendant had alleged facts which,
if proved, were sufficient to show both deficient performance
and prejudice regarding his alibi defense and that the defendant
was entitled to an evidentiary hearing on whether trial counsel
was ineffective for failing to file notice of and present evi-
dence of the defendant’s alibi defense.
While Lessley alleged Westbrook would have attested that
he was with Lessley between 1:30 and 4:30 a.m. on the day
of Pope’s murder and Goodwin’s assault, he did not allege
where Westbrook would have testified he and Lessley were
at those times. Thus, this alleged potential testimony was not
inconsistent with Westbrook’s being with Lessley outside of
the victims’ house. Unlike in Stricklin, it was not potential
evidence that Lessley was somewhere else. It was not alibi evi-
dence. The allegation that had counsel interviewed and inves-
tigated Westbrook as part of his trial investigation of the facts
of the case, “compelling testimony likely would have been
given resulting in [his] acquittal,” 38 is a factual conclusion and
also insufficient.
The district court did not err in denying Lessley’s motion
without an evidentiary hearing on this claim.
(b) Refusal to Allow Lessley to Testify
Lessley asserts that trial counsel was ineffective because
counsel refused to allow him to testify to an extramarital affair
with Pope and the altercation that ensued between him and
38
Brief for appellant at 11.
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Cite as 312 Neb. 316Goodwin between 12:30 and 1:15 a.m. the night of Pope’s
murder. Lessley argues that had this testimony been presented
to the jury, it would have explained some of the circumstantial
evidence present at the crime scene, which we presume means
his DNA and his shoe print on Goodwin’s laptop.
[24-27] A defendant has a fundamental constitutional right
to testify, and the right to testify is personal to the defendant
and cannot be waived by defense counsel’s acting alone. 39
Defense counsel bears the primary responsibility for advising
a defendant of his or her right to testify or not to testify, of
the strategic implications of each choice, and that the choice
is ultimately for the defendant to make. 40 Defense counsel’s
advice to waive the right to testify can present a valid claim
of ineffective assistance of counsel in two instances: (1) if the
defendant shows that counsel interfered with his or her free-
dom to decide to testify or (2) if counsel’s tactical advice to
waive the right was unreasonable. 41 In a postconviction action,
when a defendant raises a claim of ineffective assistance of
trial counsel related to counsel’s failure with regard to advising
the defendant on his or her right to testify, we have subjected
the claim to the Strickland standard and required the defendant
to show how trial counsel’s alleged deficient performance
prejudiced the defense. 42
Lessley does not specifically allege supporting facts that
show how counsel interfered with his decision on whether
to testify or if counsel’s advice to waive his right to testify
was unreasonable. Lessley provides no detail regarding what
discussions he had with counsel that would show counsel
interfered with his right to testify and little detail as to what
his testimony actually would have been. His allegation that
counsel refused to let him testify to an extramarital affair
39
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
40
Cullen, supra note 2.
41
Stricklin, supra note 29.
42
Cullen, supra note 2.
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Cite as 312 Neb. 316with Pope and an altercation between him and Goodwin is a
conclusory factual statement that is insufficient without sup-
porting facts.
Lessley failed to allege sufficient facts that, if proved, would
show counsel’s performance was ineffective with respect to
Lessley’s right to testify. The district court did not err when it
denied this claim without an evidentiary hearing.
(c) Failure to Offer Expert Witnesses
Lessley contends that trial counsel did not perform as a
competent attorney because counsel did not make readily avail-
able expert witnesses who would have presented scientific and
forensic testimony to “refute the State’s evidence.” 43 More
specifically, Lessley asserts that had counsel elicited testimony
of a serology expert, “an expert would have testified the blood-
spatter from the baseball bat and laptop was a mixture of . . .
Goodwin and possibly [Lessley]” and would have “testified to
the [n]ew testing procedures and the flaw[ed] testing proce-
dures use[d] by the State[’]s forensic department.” 44 Lessley
generally asserts that the failure to consult with an expert
prejudiced his defense.
[28] We will not consider Lessley’s argument that this
expert would have testified to the flawed testing proce-
dures by the State because this allegation does not appear in
Lessley’s motion for postconviction relief. In an appeal from
the denial of postconviction relief, we will not consider for
the first time on appeal claims that were not raised in the
verified motion. 45
As for the remaining assertions, Lessley fails to allege how
a serology expert’s testimony that the blood spatter was a mix-
ture of Goodwin’s and Lessley’s blood would have changed
the outcome of the trial. Lessley does not seem to dispute that
at least some of the blood on the bat was his, and in light of
43
Brief for appellant at 12.
44
Id.45
State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
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Cite as 312 Neb. 316all the evidence offered against him at trial, it is unclear how
this expert testimony that would “refute the State’s evidence”
would be enough to alter the outcome of the trial.
Again, the facts Lessley alleges are insufficient to require
an evidentiary hearing. The district court did not err in denying
an evidentiary hearing on the alleged ineffectiveness of fail-
ing to elicit testimony of a serology expert.
(d) Failure to Object to Amendment
of Information
Finally, Lessley generally asserts trial counsel was ineffec-
tive because counsel failed to object to the State’s amending
the information on the first day of trial. Lessley argues that this
prejudiced him “in that there was no time to prepare for the
new charges.” 46
The record affirmatively refutes this. The State is correct
when it argues that there was no prejudice to Lessley. The
State did not change or add charges when it amended the
information; rather, it simply removed one of the theories of
first degree murder that Lessley had been charged with. The
State removed the premeditated murder theory and proceeded
to trial on only the felony murder theory. Therefore, Lessley
did not have to “prepare for the new charges” 47 or “prepare
and present a new defense strategy” as he asserts. Lessley fails
to allege facts to show that he was prejudiced by this amend-
ment and that counsel was ineffective for failing to object to it.
The district court did not err in denying Lessley an evidentiary
hearing on this claim.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying Lessley’s motion for postconviction relief with-
out an evidentiary hearing.
Affirmed.
46
Brief for appellant at 12.
47
Id.