State v. Stricklin , 310 Neb. 478 ( 2021 )


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    01/14/2022 08:09 AM CST
    - 478 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    State of Nebraska, appellee, v.
    Derrick U. Stricklin, appellant.
    ___ N.W.2d ___
    Filed December 3, 2021.   No. S-20-681.
    1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
    dentiary 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.
    2. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is 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. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    3. Postconviction: Constitutional Law. Postconviction relief is a very
    narrow category of relief, available only to remedy prejudicial constitu-
    tional violations that render the judgment void or voidable.
    4. Postconviction: Sentences: Appeal and Error. The Nebraska
    Postconviction Act is intended to provide relief in those cases where
    a miscarriage of justice may have occurred; it is not intended to be a
    procedure to secure a routine review for any defendant dissatisfied with
    his or her sentence.
    5. Postconviction: Constitutional Law: Proof. A court must grant an evi-
    dentiary 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.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    6. 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
    perform­ance actually prejudiced the defendant’s defense.
    7. ____: ____. To show that counsel’s performance was deficient under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must show counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in criminal law in
    the area.
    8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal
    and Error. To show prejudice under the prejudice component of the
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), test, the defendant must demonstrate a reasonable probabil-
    ity that but for his or her counsel’s deficient performance, the result of
    the proceeding would have been different. A reasonable probability 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.
    9. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel
    claim, deficient performance and prejudice can be addressed in either
    order. If it is more appropriate to dispose of an ineffectiveness claim due
    to the lack of sufficient prejudice, that course should be followed.
    10. Criminal Law: Evidence: Proof. To establish an alibi defense, a
    defend­ant must show (1) he or she was at a place other than where the
    crime was committed and (2) he or she was at such other place for such
    a length of time that it was impossible to have been at the place where
    and when the crime was committed.
    11. Postconviction: Evidence: Witnesses. In an evidentiary hearing for
    postconviction relief, the postconviction trial judge, as the trier of fact,
    resolves conflicts in evidence and questions of fact, including witness
    credibility and the weight to be given a witness’ testimony.
    12. Evidence: Appeal and Error. Where competent evidence supports the
    district court’s findings, the appellate court will not substitute its factual
    findings for those of the district court.
    13. Effectiveness of Counsel: Proof. Trial counsel’s failure to investigate
    various aspects of the case is not ineffective assistance of counsel,
    absent prejudice and a specific showing what the investigation would
    have revealed, what exculpatory evidence would have been discov-
    ered, or how such an investigation would have changed the outcome of
    the trial.
    - 480 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    Appeal from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
    Steinke and Otte, District Judges.
    Funke, J.
    INTRODUCTION
    Derrick U. Stricklin appeals from the denial of postconvic-
    tion relief following an evidentiary hearing. Stricklin asserts
    his trial counsel was ineffective in failing to present an alibi
    defense and in failing to investigate and present evidence of
    other suspects. Stricklin also asserts the district court erred in
    denying his request to depose expert witnesses. We disagree
    with Stricklin’s arguments and therefore affirm the order of the
    district court.
    BACKGROUND
    In 2013, in a joint trial, a jury convicted codefendants,
    Stricklin and Terrell E. Newman, on two counts of first degree
    murder, three counts of use of a deadly weapon to commit a
    felony, attempted intentional manslaughter, and possession of
    a deadly weapon by a prohibited person. The district court for
    Douglas County sentenced both men to life imprisonment for
    each murder conviction; 15 to 25 years’ imprisonment for each
    use of a deadly weapon to commit a felony conviction; 20
    months’ to 5 years’ imprisonment for the attempted manslaugh-
    ter conviction; and 15 to 25 years’ imprisonment for the pos-
    session of a deadly weapon conviction. All sentences were to
    run consecutively. This court affirmed Stricklin’s convictions
    and sentences on direct appeal. 1
    1
    State v. Stricklin, 
    290 Neb. 542
    , 
    861 N.W.2d 367
     (2015).
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    Stricklin timely moved for postconviction relief, asserting
    several claims, which the district court denied without conduct-
    ing an evidentiary hearing. Stricklin appealed directly to this
    court. 2 We affirmed the dismissal of the majority of Stricklin’s
    claims, but remanded the matter back to the district court for an
    evidentiary hearing on two of the claims. The matter remanded
    to the district court included Stricklin’s claims that trial counsel
    failed to file a notice of alibi and present evidence of his alibi
    defense and failed to investigate other potential suspects. 3
    The facts adduced at trial are fully set forth in our opinion
    affirming Stricklin’s convictions and sentences. 4 Summarized,
    on December 2, 2012, Carlos Morales and Bernardo Noriega
    were shot and killed in a drug transaction at an automobile
    body shop in Omaha, Nebraska. The State alleged that Stricklin
    and Newman committed the crimes together. Newman’s cell
    phone records showed that Newman was in communication
    with Morales and Stricklin on the day of the shootings and that
    Newman’s cell phone was in the area of the murder scene dur-
    ing the relevant timeframe. 5
    The State’s primary witness at trial, Jose Herrera-Gutierrez,
    claimed he was present during the shootings. Based upon
    information provided by Herrera-Gutierrez, officers compiled
    photographic lineups containing photographs of Stricklin and
    Newman. Herrera-Gutierrez identified Stricklin and Newman
    as the shooters; he testified that he recognized both men from
    three or four prior visits to the body shop, although he had
    never learned their names.
    Herrera-Gutierrez testified that following a drug trans­
    action, he witnessed Stricklin and Newman draw firearms. 6
    2
    Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).
    3
    State v. Stricklin, 
    300 Neb. 794
    , 
    916 N.W.2d 413
     (2018).
    4
    Id.; Stricklin, supra note 1; State v. Newman, 
    300 Neb. 770
    , 
    916 N.W.2d 393
     (2018); State v. Newman, 
    290 Neb. 572
    , 
    861 N.W.2d 123
     (2015).
    5
    
    Id. 6
     Stricklin, supra note 1.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    According to Herrera-Gutierrez, Newman instructed Morales to
    tell Herrera-Gutierrez and Noriega to lie down. Newman tied
    Herrera-Gutierrez’ wrists. Herrera-Gutierrez stated that plastic
    was wrapped around his face and that he could breathe but was
    unable to see. He claimed that he heard the two or three gun-
    shots that killed Morales and Noriega, that someone untied his
    wrists and took the plastic off his head, and that Stricklin and
    Newman left the scene without shooting him.
    Despite testimony from various witnesses regarding the
    timeline of events, the evidence did not establish a precise
    time for the shootings. Morales’ fiance discovered the bodies
    at 2:15 p.m. The police broadcast about the shootings went out
    at 2:34 p.m.
    The State’s theory was that Stricklin and Newman commit-
    ted the crimes together, at approximately 12:30 p.m. Newman’s
    cell phone records showed multiple contacts with Stricklin
    on December 2, 2012, right before and after the relevant
    period. The State adduced evidence showing that Newman
    and Stricklin called each other seven times between approxi-
    mately 9:27 and 11:13 a.m. Newman received six calls from
    11:42 a.m. to 12:36 p.m., at which time Newman’s phone
    used a cell tower located in the immediate vicinity of the body
    shop. 7 After his 11:13 a.m. call with Newman, Stricklin did not
    make or receive a call until 12:34 p.m., when he received a call
    which went to voicemail. Stricklin did not send or receive any
    text messages during this period of inactivity. Stricklin made
    his next call at 2:15 p.m., which was to Newman.
    Stricklin’s motion for postconviction relief contained the
    following relevant allegations: Under his first claim, he alleged
    that he was in downtown Omaha with his “stepson” Hashim C.
    on the day of the shootings from approximately 9:30 a.m.
    until noon. Stricklin alleged that they ate at a restaurant, pur-
    chased gas, and each got a haircut at a barbershop. He alleged
    they later drove to his grandmother’s house. He alleged that
    7
    
    Id.
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    STATE v. STRICKLIN
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    310 Neb. 478
    during his drive, he made a phone call to a friend at 12:34 p.m.
    The call registered at a cell tower approximately 5 miles from
    the crime scene. He stated he received text messages during
    the drive.
    Stricklin stated that he and Hashim arrived at his grand-
    mother’s house around 12:40 p.m. and that around 20 to 25
    people were present, including his brother Daryel Stricklin. He
    stated Antoineya Richard (Antoineya), his girlfriend at the time
    and Hashim’s mother, arrived at his grandmother’s home and
    picked up Hashim around 2 or 3 p.m. Stricklin stated he made
    his trial counsel aware his alibi was supported by the barber,
    Hashim, Antoineya, and Daryel.
    Under the second claim of his postconviction motion,
    Stricklin alleged his counsel was ineffective for failing to
    investigate as possible suspects Marcus Jefferson, Stricklin’s
    half brother, and a man named “James Moore.” Stricklin
    alleged Jefferson stated to him that Moore committed the mur-
    ders due to a dispute involving money and “bad drugs.”
    Prior to the evidentiary hearing on the two claims ordered
    by this court, Stricklin filed a successive postconviction motion
    which alleged the State advanced a false prosecution theory
    by claiming to the jury that the cell phone location data rep-
    resented the location of Stricklin or his phone rather than the
    location of a cell tower. The State moved to dismiss the succes-
    sive motion for postconviction relief as time barred.
    Stricklin also filed a motion to depose nine witnesses prior
    to the pending evidentiary hearing. The State objected to
    Stricklin’s request to depose two of the witnesses, an agent
    with the Federal Bureau of Investigation and a representative
    from a cell phone provider, arguing the request went beyond
    Stricklin’s first postconviction motion and the scope of our
    remand. The district court granted Stricklin’s motion as to
    seven of the witnesses and took the State’s objection regard-
    ing the remaining two witnesses under advisement. The court
    gave Stricklin leave to file a brief explaining how the two cell
    phone expert witnesses were relevant to the issues on remand.
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    310 Nebraska Reports
    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    Thereafter, the court held a hearing on Stricklin’s motion and
    issued an order denying the request. The court agreed with
    the State that Stricklin’s proposed use of the testimony went
    beyond his alibi claim. The court found “Stricklin’s cell phone
    records are in evidence and he can present and rely upon
    them at his evidentiary hearing without depositions of these
    witnesses.” In the same order, the court dismissed Stricklin’s
    successive postconviction motion which is not at issue in
    this appeal.
    At the evidentiary hearing, the district court received deposi-
    tions from Stricklin, Daryel, Antoineya, Hashim, and Stricklin’s
    trial counsel.
    In his deposition, Stricklin testified that on December 2,
    2012, he went with Hashim to the barbershop for their 9 a.m.
    appointment. The barber was running late, so Stricklin and
    Hashim went to a restaurant and a gas station and returned
    for their haircuts around 10 a.m. Stricklin stated that he and
    Hashim got their hair cut by the same barber every week
    and that their haircuts would take approximately 2 hours.
    Stricklin testified that he left the barbershop between noon
    and 12:30 p.m. and that he placed a call to a friend and briefly
    stopped at the friend’s house while on the way to his grand-
    mother’s house.
    Stricklin further testified that he made counsel aware of his
    alibi defense early in the process and that the alibi defense
    was the “number one” trial strategy. He stated that counsel
    did not inform him he would not present the alibi at trial and
    that Daryel, Antoineya, and Hashim were present and ready to
    testify. When asked about his discussions with counsel regard-
    ing trial strategy, Stricklin testified, “We had, like, a lockdown
    defense, and he didn’t do any of it. He didn’t — he didn’t
    cross-examine the witnesses or anything. He just sat there, like,
    he didn’t know what was going on.”
    Antoineya testified that she was in a dating relationship with
    Stricklin from 2010 to 2014 and that he lived in her home.
    She thought that Stricklin and Hashim went to the barbershop
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    STATE v. STRICKLIN
    Cite as 
    310 Neb. 478
    at 11 a.m. and that Hashim returned home around 2 p.m. She
    spoke with Stricklin’s counsel before trial on multiple occa-
    sions, and counsel knew she and Hashim were alibi witnesses,
    but she was never contacted to testify.
    Daryel testified he was present at the family gathering at his
    grandmother’s house. He recalled that he started eating around
    noon and that around 10 people were present. Daryel testi-
    fied Stricklin arrived at his grandmother’s between 12:30 and
    1 p.m. Daryel recalled the time of Stricklin’s arrival because
    he had to leave to go to a movie around the same time. He did
    not remember if anyone was with Stricklin when he arrived.
    He spoke with Stricklin’s counsel before trial and provided
    this information.
    Hashim was 10 years old in December 2012 and 17 years
    old at the time of his deposition. Hashim testified Stricklin
    is basically his stepfather and they had a good relationship.
    Hashim testified he and Stricklin went for a haircut together
    every week. He thought it would take about an hour for both
    him and Stricklin to get a haircut. He stated that he did not do
    anything else with Stricklin on the day in question other than
    get food and return home. His mother mentioned to him he
    might be a witness at Stricklin’s trial, but he never spoke with
    Stricklin’s counsel.
    Stricklin’s trial counsel testified via deposition. Counsel
    stated that he had not reviewed the case file for years. Counsel
    acknowledged that at one point he had planned to put forward
    an alibi defense but that during the pretrial process, his view of
    the alibi defense changed. He testified he had “vague memories
    of potentially not going forward with an alibi as trial strategy.”
    Counsel testified he believed the alibi contained a “pitfall,” and
    he recalled sharing his concerns with Stricklin.
    Counsel conceded he had not filed a notice of alibi defense
    in order to present the defense at trial, 8 claiming there was
    “a conscious decision that we were moving forward without
    8
    See Neb. Rev. Stat. § 29-1927 (Reissue 2016).
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    STATE v. STRICKLIN
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    310 Neb. 478
    an alibi.” Counsel stated that he discussed the alibi with Daryel
    and Antoineya and that he decided to not interview Hashim,
    because he was unclear as to Stricklin’s relationship with
    Hashim. Counsel did not interview the barber, stating he was
    concerned the barber feared Newman and, if forced to testify,
    might have testified in a way that would harm Stricklin’s
    defense. Counsel thought he made a few attempts to speak to
    the barber, but stated that the barber retained an attorney and
    that he did not remember if he spoke with the barber’s attor-
    ney. Counsel stated his decision not to pursue the alibi was
    strategic, because all the alibi witnesses were personally close
    with Stricklin and had a motive to support him. Further, coun-
    sel stated he was aware of Stricklin’s claim of other potential
    suspects, because Stricklin had discussed it with him, but that
    he chose not to pursue them as a defense.
    In its order discussing and weighing the evidence, the court
    found counsel’s “concerns about the viability of Stricklin’s
    alibi appear to be reasonable in light of the evidence presented
    at trial and the evidence in the current record.” The court found
    that Stricklin did not establish a clear timeline for his alibi and
    that when all of the timeline evidence was considered, there
    were gaps in the evidence which failed to refute the State’s
    theory that Stricklin and Newman committed the murders at
    approximately 12:30 p.m. The court found the gaps showed
    that counsel’s “concerns about a ‘pitfall’ in the alibi were
    reasonable.”
    Additionally, the court found Stricklin failed to prove any
    prejudice, because even if counsel had presented the alibi
    defense, the defense was so weak that the result of the trial
    would not have been any different. The court discussed and
    weighed the deposition testimony and concluded the evidence
    showed Stricklin had no alibi between approximately 11 a.m.
    and 12:34 p.m. The court found Stricklin’s phone records
    placed him in the downtown Omaha area between 9:19 and
    10:45 a.m. The court credited Stricklin’s testimony that he
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    STATE v. STRICKLIN
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    310 Neb. 478
    and Hashim arrived at the barber for their haircuts at around
    10 a.m. Noting that Stricklin and Hashim had short hair and
    weekly haircuts, the court credited Hashim’s testimony that
    their haircuts would have been finished within approximately
    1 hour. The court found that Stricklin’s alibi defense left a gap
    that “corresponds to the time of the murders.” The court found
    that “[c]ompounding the damage [of the gap] to Stricklin’s
    alibi defense, his cell phone’s communications immediately
    before this gap are with a cell phone number attributed to
    Newman at trial.” The court found “the evidence that Stricklin
    has supplied does not establish that [he] was at a place other
    than the crime scene for ‘such a length of time that it was
    impossible for him to have been at the place where and when
    the crime was committed.’” 9
    Although the court had denied Stricklin leave to depose two
    cell phone record experts, the court considered Stricklin’s offer
    of proof regarding the expert testimony. The court found even
    if the court had allowed the depositions and received the evi-
    dence, the analysis would not change, because Stricklin’s cell
    phone records did not fill the gaps in his alibi and therefore did
    not support his alibi defense.
    Lastly, the district court rejected Stricklin’s claim that his
    trial counsel was ineffective in failing to investigate and pre­
    sent evidence of alternative suspects. The court found Stricklin
    had presented no exculpatory evidence on this issue and no
    evidence other than hearsay implicating Jefferson and Moore.
    ASSIGNMENTS OF ERROR
    Stricklin assigns the district court erred in denying his inef-
    fective assistance of counsel claim, when counsel failed to
    present an alibi defense and failed to investigate and present
    evidence of other possible suspects. Further, Stricklin assigns
    the court erred in denying his request to depose cell phone
    record experts.
    9
    See State v. Moreno, 
    228 Neb. 210
    , 
    422 N.W.2d 56
     (1988).
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    STATE v. STRICKLIN
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    310 Neb. 478
    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. 10
    [2] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact. 11 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error. 12 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, 13 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision. 14
    ANALYSIS
    [3-5] Postconviction relief is a very narrow category of
    relief, available only to remedy prejudicial constitutional vio-
    lations that render the judgment void or voidable. 15 The
    Nebraska Postconviction Act is intended to provide relief in
    those cases where a miscarriage of justice may have occurred;
    it is not intended to be a procedure to secure a routine review
    for any defendant dissatisfied with his or her sentence. 16 A
    court must grant an evidentiary hearing to resolve the claims
    in a postconviction motion when the motion contains fac-
    tual allegations which, if proved, constitute an infringement
    10
    State v. Beehn, 
    303 Neb. 172
    , 
    927 N.W.2d 793
     (2019).
    11
    See 
    id. 12
    Id.
    13
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    14
    Beehn, 
    supra note 10
    .
    15
    
    Id. 16
    Id.
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    of the defend­ant’s rights under the Nebraska or federal
    Constitution. 17
    [6-8] Stricklin had the same counsel at trial and on direct
    appeal. To prevail on a claim of ineffective assistance of coun-
    sel under Strickland, 18 the defendant must show that his or her
    counsel’s performance was deficient and that this deficient
    performance actually prejudiced the defendant’s defense. 19 To
    show that counsel’s performance was deficient, the defend­
    ant must show counsel’s performance did not equal that of
    a lawyer with ordinary training and skill in criminal law in
    the area. 20 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
    performance, the result of the proceeding would have been
    different. 21 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. 22
    “The likelihood of a different result must be substantial, not
    just conceivable.” 23
    [9] “‘[A] court need not determine whether counsel’s perform­
    ance was deficient before examining the prejudice ­suffered
    by the defendant as a result of the alleged deficiencies.’” 24
    17
    Stricklin, supra note 3.
    18
    Strickland, 
    supra note 13
    .
    19
    Stricklin, supra note 3.
    20
    Id.
    21
    Id.
    22
    Id.
    23
    Harrington v. Richter, 
    562 U.S. 86
    , 112, 
    131 S. Ct. 770
    , 
    178 L. Ed. 2d 624
    (2011).
    24
    State v. Hawthorne, 
    230 Neb. 343
    , 347, 
    431 N.W.2d 630
    , 633 (1988),
    quoting Strickland, 
    supra note 13
    . Accord, State v. Moss, 
    240 Neb. 21
    ,
    
    480 N.W.2d 198
     (1992); State v. Bostwick, 
    233 Neb. 57
    , 
    443 N.W.2d 885
    (1989).
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    STATE v. STRICKLIN
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    310 Neb. 478
    Deficient performance and prejudice can be addressed in either
    order. If it is more appropriate to dispose of an ineffective-
    ness claim due to the lack of sufficient prejudice, that course
    should be followed. 25
    Alibi Defense
    Stricklin argues counsel was ineffective in failing to present
    his alibi defense. Stricklin claims he had frequent discussions
    with counsel regarding plans to present an alibi at trial, that
    counsel did not inform him he would not present the alibi, and
    that counsel’s actions had foreclosed the possibility of an alibi
    due to the failure to file a notice of alibi. Stricklin contends
    that the importance of the alibi defense was clear from the
    beginning to the end, and there is no evidence counsel aban-
    doned the alibi based on trial strategy, other than counsel’s
    vague recollections. Stricklin argues counsel admitted he did
    not interview Hashim or the barber and did not hire anyone to
    investigate the alibi.
    For the analytical purposes of resolving Stricklin’s appeal,
    the court will assume Stricklin has established counsel’s failure
    to present his alibi defense constituted deficient performance.
    However, in light of the court’s ultimate holding on Stricklin’s
    ineffective assistance of counsel claim, the court need not
    decide the question of deficient performance. Ultimately, we
    conclude Stricklin has failed to prove he was prejudiced by
    counsel’s performance.
    As a rule, a “violation of the Sixth Amendment right to
    effective representation is not ‘complete’ until the defendant
    is prejudiced.” 26 Prejudice means “a reasonable probability
    that, but for counsel’s unprofessional errors, the result of the
    25
    State v. Morgan, 
    286 Neb. 556
    , 
    837 N.W.2d 543
     (2013); State v. Nesbitt,
    
    264 Neb. 612
    , 
    650 N.W.2d 766
     (2002); State v. Soukharith, 
    260 Neb. 478
    ,
    
    618 N.W.2d 409
     (2000).
    26
    United States v. Gonzalez-Lopez, 
    548 U.S. 140
    , 147, 
    126 S. Ct. 2557
    , 
    165 L. Ed. 2d 409
     (2006).
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    STATE v. STRICKLIN
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    proceeding would have been different.” 27 “The benchmark for
    judging any claim of ineffectiveness must be whether coun-
    sel’s conduct so undermined the proper functioning of the
    adversarial process that the trial cannot be relied on as having
    produced a just result.” 28 Assuming Stricklin has established
    deficient performance, Stricklin must also show there is a rea-
    sonable probability that but for counsel’s failure to present his
    alibi defense, the result of his trial would have been different.
    Therefore, we turn to consider the merits of Stricklin’s alibi
    defense, had it been presented to the jury.
    [10] As noted by the trial court, Nebraska precedent indi-
    cates that a defendant asserting an alibi defense bears a heavy
    evidentiary burden. To establish an alibi defense, a defendant
    must show (1) he or she was at a place other than where the
    crime was committed and (2) he or she was at such other place
    for such a length of time that it was impossible to have been at
    the place where and when the crime was committed. 29
    Stricklin claims he could not have been present during the
    shootings, according to the State’s theory that the shootings
    occurred around 12:30 p.m., because he proved through wit-
    ness testimony and cell phone record evidence that he was
    located at least 5 miles away from the scene of the crime at
    12:34 p.m. However, as we discuss, the evidence does not sup-
    port Stricklin’s alibi, especially at the critical time.
    [11,12] The district court explained there was nothing
    accounting for Stricklin’s presence between approximately
    11 a.m. and 12:30 p.m. Stricklin complains the district
    court accepted his testimony that the haircuts commenced at
    27
    Strickland, supra note 13, 
    466 U.S. at 694
    .
    28
    
    Id.,
     
    466 U.S. at 686
    .
    29
    NJI2d Crim. 8.1, comment, citing Moreno, 
    supra note 9
    ; State v. El-Tabech,
    
    225 Neb. 395
    , 
    405 N.W.2d 585
     (1987); State v. Sutton, 
    220 Neb. 128
    , 
    368 N.W.2d 492
     (1985); Mays v. State, 
    72 Neb. 723
    , 
    101 N.W. 979
     (1904);
    Peyton v. State, 
    54 Neb. 188
    , 
    74 N.W. 597
     (1898). See, State v. Jacobs,
    
    226 Neb. 184
    , 
    410 N.W.2d 468
     (1987); State v. Veatch, 
    16 Neb. App. 50
    ,
    
    740 N.W.2d 817
     (2007).
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    10 a.m., but not his testimony that the haircuts were not fin-
    ished until around noon. However, in an evidentiary hearing
    for postconviction relief, the postconviction trial judge, as the
    trier of fact, resolves conflicts in evidence and questions of
    fact, including witness credibility and the weight to be given
    a witness’ testimony. 30 Where competent evidence supports the
    district court’s findings, the appellate court will not substitute
    its factual findings for those of the district court. 31
    The trial court further explained that the phone records
    undermined the credibility of Stricklin’s alibi and showed that
    Stricklin and Newman were in contact with one another based
    on their numerous phone communications on the date of the
    shootings. At trial, the State called a records custodian with a
    cell phone provider who testified that Stricklin’s phone records
    showed there was a call between Stricklin and Newman at
    11:13 a.m., and then no phone activity on Stricklin’s phone
    until 12:34 p.m. The court found this to be evidence of “a
    gap that corresponds to the time of the murders.” Further, the
    phone records disprove Stricklin’s testimony that he placed
    a call at 12:34 p.m. and received text messages during his
    drive to his grandmother’s, because the phone records show
    that Stricklin received a call at 12:34 p.m., which went to
    voicemail, and that he did not receive text messages during
    this time. Even recognizing the fact that Stricklin’s phone was
    located approximately 5 miles away from the crime scene at
    12:34 p.m., such evidence does not establish that Stricklin was
    unable to be present at the body shop with Newman when the
    shootings occurred. 32
    The record does not support Stricklin’s claim that he was at
    another place for such a length of time that it was impossible
    for him to have committed the murders. We agree with the
    district court that in light of the incriminating phone records
    30
    State v. Russell, 
    308 Neb. 499
    , 
    954 N.W.2d 920
     (2021).
    31
    
    Id. 32
    See, e.g., State v. Jackson, 
    275 Neb. 434
    , 
    747 N.W.2d 418
     (2008).
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    and an eyewitness identification, Stricklin failed to show a
    reasonable probability that presentation of his alibi defense at
    trial would have changed the outcome. Stricklin has failed to
    establish he was prejudiced by counsel’s decisions. As such,
    Stricklin’s claim that his counsel was ineffective for failing to
    present an alibi defense is without merit.
    Other Suspects
    [13] Stricklin contends counsel was ineffective in failing to
    investigate and present evidence of other suspects. However,
    Stricklin’s asserted theory regarding other suspects is not based
    on any evidence in our record, other than speculation based on
    hearsay. Stricklin attempted to refer to police reports contained
    in the presentence investigation report. However, the district
    court did not receive those materials into evidence and did not
    consider them. Thus, there is no evidence to support a reason-
    able probability of a different outcome had counsel presented
    evidence of other suspects. Trial counsel’s failure to investi-
    gate various aspects of the case is not ineffective assistance
    of counsel, absent prejudice and a specific showing what the
    investigation would have revealed, what exculpatory evidence
    would have been discovered, or how such an investigation
    would have changed the outcome of the trial. 33 This assignment
    of error is without merit.
    Deposition of Cell Phone Experts
    Stricklin argues the court erred in not granting him leave
    to depose two cell phone experts. Stricklin contends that the
    experts would have interpreted the cell phone records in a man-
    ner corroborating his alibi. The State argues the court correctly
    found Stricklin’s request to be outside this court’s mandate
    upon remand.
    As noted, following remand for an evidentiary hearing
    on two of Stricklin’s postconviction claims, Stricklin moved
    33
    See State v. Marks, 
    286 Neb. 166
    , 
    835 N.W.2d 656
     (2013).
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    to depose nine additional witnesses. The State objected to
    Stricklin’s request to depose two cell phone record expert wit-
    nesses, and the court sustained the objection. In doing so, the
    court found that challenging the use of Newman’s cell phone
    records was beyond the scope of the alibi claim raised in
    Stricklin’s first motion for postconviction relief. Additionally,
    the court noted that Stricklin’s cell phone records were received
    into evidence at trial and could be relied upon to support his
    claims on remand without the additional depositions of expert
    witnesses.
    The construction of a mandate issued by an appellate court
    presents a question of law, on which an appellate court is obli-
    gated to reach a conclusion independent of the determination
    reached by the court below. 34 A district court has an unqualified
    duty to follow the mandate issued by an appellate court and
    must enter judgment in conformity with the opinion and judg-
    ment of the appellate court. 35
    Stricklin has not argued the district court erred in interpret-
    ing this court’s mandate, and we find no error by the district
    court in that regard. Nor has Stricklin explained how his
    request was within the scope of the mandate.
    To the extent any of the proposed expert testimony would
    have been relevant to Stricklin’s alibi defense and thus within
    the scope of our mandate, we review the court’s denial of a dis-
    covery request for an abuse of discretion. 36 Here, the court con-
    sidered Stricklin’s offer of proof regarding the expert testimony
    for purposes of evaluating his alibi defense and concluded that
    even if it had allowed the depositions and received the evi-
    dence, the result would have been the same. The court found
    Stricklin’s phone records undermined, rather than supported,
    his alibi defense, because the phone records established a gap
    that corresponded with the time of the murders and showed
    34
    State v. Harris, 
    307 Neb. 237
    , 
    948 N.W.2d 736
     (2020).
    35
    State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
     (2017).
    36
    See Jackson, 
    supra note 32
    .
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    Stricklin’s contacts with Newman right before and after the
    murders. We find no abuse of discretion by the district court.
    This assignment of error is without merit.
    CONCLUSION
    The order of the district court dismissing Stricklin’s motion
    for postconviction relief is affirmed.
    Affirmed.
    Heavican, C.J., and Freudenberg, J., not participating.