State v. Foster , 300 Neb. 883 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. FOSTER
    Cite as 
    300 Neb. 883
    State of Nebraska, appellee, v.
    Jeremy D. Foster, appellant.
    ___ N.W.2d ___
    Filed August 24, 2018.   No. S-17-707.
    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.	 Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    3.	 Postconviction. Postconviction relief is a very narrow category of relief.
    4.	 Postconviction: Constitutional Law: Proof. In order to be entitled to
    an evidentiary hearing, a prisoner must allege facts in the motion for
    postconviction relief that, if proved, would constitute a violation of his
    or her rights under the U.S. or Nebraska Constitution.
    5.	 Postconviction. A prisoner is not entitled to an evidentiary hearing on a
    motion for postconviction relief on the basis of claims that present only
    conclusory statements of law or fact.
    6.	 ____. In the absence of alleged facts that would render the judgment
    void or voidable, the proper course is to dismiss the motion for postcon-
    viction relief for failure to state a claim.
    7.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    To establish a right to postconviction relief because of counsel’s inef-
    fective assistance, the defendant has the burden, in accordance with
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984), to show that counsel’s performance was deficient; that
    is, counsel’s performance did not equal that of a lawyer with ordinary
    training and skill in criminal law. Next, the defendant must show
    that counsel’s deficient performance prejudiced the defense in his or
    her case.
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    STATE v. FOSTER
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    300 Neb. 883
    8.	 Effectiveness of Counsel: Proof. To establish the prejudice prong of a
    claim of ineffective assistance of counsel, the defendant must demon-
    strate a reasonable probability that but for counsel’s deficient perform­
    ance, the result of the proceeding would have been different.
    9.	 Effectiveness of Counsel: Presumptions. In determining whether trial
    counsel’s performance was deficient, courts give counsel’s acts a strong
    presumption of reasonableness.
    10.	 Effectiveness of Counsel: Appeal and Error. An appellate court will
    not judge an ineffectiveness of counsel claim in hindsight; appellate
    courts must assess trial counsel’s performance from counsel’s perspec-
    tive when counsel provided the assistance.
    11.	 ____: ____. When reviewing claims of ineffective assistance, an appel-
    late court will not second-guess trial counsel’s reasonable strategic
    decisions.
    12.	 Right to Counsel: Plea Bargains. The plea-bargaining process presents
    a critical stage of a criminal prosecution to which the right to coun-
    sel applies.
    13.	 Effectiveness of Counsel: Plea Bargains. As a general rule, defense
    counsel has the duty to communicate to the defendant all formal offers
    from the prosecution to accept a plea on terms and conditions that may
    be favorable to the defendant.
    14.	 Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence
    to the contrary, it is presumed that a jury followed the instructions given
    in arriving at its verdict.
    15.	 Jury Instructions: Appeal and Error. In an appeal based on a claim
    of an erroneous jury instruction, the appellant has the burden to show
    that the questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.
    16.	 ____: ____. All the jury instructions must be read together, and if,
    taken as a whole, they correctly state the law, are not misleading, and
    adequately cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal.
    17.	 Criminal Law: Motions for Mistrial. A motion for mistrial is properly
    granted in a criminal case where an event occurs during the course of
    trial that is of such a nature that its damaging effect cannot be removed
    by proper admonition or instruction to the jury and thus prevents a
    fair trial.
    18.	 Motions for Mistrial: Proof: Appeal and Error. A defendant must
    prove that an alleged error actually prejudiced him or her, rather than
    creating only the possibility of prejudice, in order for a motion for mis-
    trial to be properly granted.
    19.	 Effectiveness of Counsel: Appeal and Error. When a claim of inef-
    fective assistance of appellate counsel is based on the failure to raise
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    STATE v. FOSTER
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    a claim on appeal of ineffective assistance of trial counsel (a layered
    claim of ineffective assistance of counsel), an appellate court will look
    at whether trial counsel was ineffective under the two-part test for inef-
    fectiveness established in Strickland v. Washington, 
    466 U.S. 668
    , 104 S.
    Ct. 2052, 
    80 L. Ed. 2d
    674 (1984); if trial counsel was not ineffective,
    then the defendant was not prejudiced by appellate counsel’s failure to
    raise the issue.
    20.	 ____: ____. Much like claims of ineffective assistance of trial counsel,
    a defendant claiming ineffective assistance of appellate counsel must
    show that but for appellate counsel’s failure to raise the claim, there is a
    reasonable probability that the outcome would have been different.
    21.	 Witnesses: Impeachment. Generally, the credibility of a witness may
    be attacked by any party, including the party who called the witness.
    22.	 ____: ____. A party may not use a prior inconsistent statement of a
    witness under the guise of impeachment for the primary purpose of
    placing before the jury substantive evidence which is not otherwise
    admissible.
    Appeal from the District Court for Douglas County: Peter
    C. Bataillon, Judge. Affirmed.
    Jeremy D. Foster, pro se.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Strong,
    District Judge.
    Funke, J.
    Jeremy D. Foster appeals from the denial of postconviction
    relief without an evidentiary hearing. Foster asserts that he was
    prejudiced by ineffective assistance of counsel at trial and on
    direct appeal. We affirm the judgment below.
    I. BACKGROUND
    This appeal follows our decision on Foster’s direct appeal
    in State v. Foster,1 which affirmed Foster’s jury trial con-
    victions on one count of first degree murder, four counts
    1
    State v. Foster, 
    286 Neb. 826
    , 
    839 N.W.2d 783
    (2013).
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    STATE v. FOSTER
    Cite as 
    300 Neb. 883
    of assault in the second degree, and five counts of use of a
    deadly weapon to commit a felony. Foster and his codefend­
    ant, Darrin D. Smith, were charged with the same crimes. The
    two cases were jointly tried, and the jury found Smith and
    Foster guilty on all counts. The court sentenced both Smith
    and Foster to life imprisonment, plus consecutive sentences
    totaling 96 to 150 years.
    1. Factual Background
    Brothers Victor Henderson and Corey Henderson were
    members of the “Pleasantview” or “PMC” gang in Omaha,
    Nebraska, and Smith was a member of a rival gang referred to
    as “40th Avenue.” Victor and Corey were federally indicted,
    and they agreed to plead guilty and testify for the government
    in exchange for leniency. They were released from federal
    prison in 2007, and they were considered “snitches” within the
    gang community.
    In October 2008, Smith saw Victor and Corey at a party
    and made a derogatory remark toward Corey regarding being a
    “snitch.” Later that month, Smith saw Victor and Corey at an
    American Legion hall in Omaha (the Legion), which was con-
    sidered a bar for the “Pleasantview” gang. When Corey walked
    outside, he saw a group of men had surrounded Victor, includ-
    ing Smith, “Don Don” Swift, and a boy of about 14 years of
    age, who each had a gun. “Don Don” was arguing with Victor.
    Smith made another statement to the effect of “we don’t mess
    with your kind,” which Corey understood to be a comment
    about Victor and Corey being “snitches.”
    On November 9, 2008, while Victor and Corey were at
    the Legion, Smith and Foster entered the bar wearing hooded
    sweatshirts. Corey testified that Smith gave him a “hateful look
    or a stare.” Smith and Foster were in the Legion for approxi-
    mately 10 minutes, but before they left, they looked and nod-
    ded toward Victor and Corey. Around closing time, Smith and
    Foster returned and confronted Victor and Corey in the parking
    lot. Victor was fatally shot in the neck, and Corey and three
    others were wounded.
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    STATE v. FOSTER
    Cite as 
    300 Neb. 883
    Smith and Foster were arrested and charged for the shoot-
    ings. The evidence was in conflict as to whether Smith or
    Foster was the shooter. For example, there was evidence that
    Smith wore a black hooded sweatshirt and that Foster wore
    a gray hooded sweatshirt when they were first at the Legion,
    but had switched shirts before they confronted Victor and
    Corey in the parking lot. Witnesses testified the shooter was
    wearing black clothes with a hood pulled over his face. At
    least two witnesses implicated Foster as the shooter, another
    witness claimed Smith was the shooter, and there was evi-
    dence that the shooter was neither Foster nor Smith but was
    yet a third individual, including “Don Don” or a person
    named “Views.”
    The State’s theory of prosecution at trial was that Foster
    was the shooter and that Smith aided and abetted Foster in
    the commission of the shootings. The State called several wit-
    nesses to establish that Smith was seen with a gun and that he
    handed Foster the gun just prior to the shootings.
    Following a 2-week jury trial, Smith and Foster were con-
    victed on all counts. Both parties appealed, and this court issued
    separate opinions affirming their convictions and sentences.2
    2. Procedural Background
    Our opinion on direct appeal in Foster 3 addressed Foster’s
    assignments that the district court erred by failing to sever
    Foster’s trial from Smith’s, which was the main focus of the
    appeal, and allowing the jury to separate without Foster’s intel-
    ligent waiver of his right to sequester.
    This court rejected Foster’s claim that he was prejudiced
    by the joint trial, reasoning that based upon the evidence, the
    jury could have convicted both Smith and Foster, just one of
    them, or neither of them. Furthermore, we determined that a
    joint trial was appropriate, because the charges against Smith
    2
    See, State v. Smith, 
    286 Neb. 856
    , 
    839 N.W.2d 333
    (2013); Foster, supra
    note 1.
    3
    Foster, supra note 1.
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    and Foster stemmed from the same series of acts and would be
    proved by similar evidence.
    We also rejected Foster’s second assignment of error,
    because the trial court specifically asked Foster whether he
    sought jury sequestration and he replied that he did not, which
    satisfied the requirement for a voluntary, knowing, and intel-
    ligent waiver of the right to sequester.
    Relevant to the instant appeal, Foster then filed a motion for
    postconviction relief, with the assistance of court-appointed
    counsel. Foster’s motion raised claims of trial court error, pros-
    ecutorial misconduct, ineffective assistance of trial counsel,
    and ineffective assistance of appellate counsel.
    The district court found that Foster’s claims of trial court
    error and prosecutorial misconduct could have been raised
    on direct appeal and therefore were procedurally barred. The
    court found Foster’s ineffective assistance of counsel claims
    were not procedurally barred, because he was represented by
    the same counsel at trial and on direct appeal. The court then
    addressed the allegations supporting Foster’s ineffective assist­
    ance of counsel claims and found that they were not specific
    enough to merit a hearing and that Foster had not pointed to
    any facts which showed he was prejudiced.
    In this appeal, Foster proceeds as a self-represented litigant
    and reasserts his ineffective assistance of counsel claims, and
    he argues the court erred in failing to grant him an eviden-
    tiary hearing.
    II. ASSIGNMENTS OF ERROR
    Foster assigns, restated and reordered, that the district court
    erred in (1) failing to find trial counsel deficiency violated
    article I, § 11, of the Nebraska Constitution and the Sixth
    Amendment to the U.S. Constitution; (2) failing to grant Foster
    postconviction relief; (3) failing to find Foster was prejudiced
    by performance of trial counsel; (4) failing to find Foster was
    prejudiced by performance of appellate counsel; and (5) deny-
    ing Foster an evidentiary hearing.
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    STATE v. FOSTER
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    300 Neb. 883
    III. 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.4
    [2] Whether jury instructions are correct is a question of law,
    which an appellate court resolves independently of the lower
    court’s decision.5
    IV. ANALYSIS
    [3] Under the Nebraska Postconviction Act,6 a prisoner in
    custody may file a petition for relief on the grounds that there
    was a denial or infringement of the prisoner’s constitutional
    rights that would render the judgment void or voidable. This
    category of relief is “very narrow.”7
    [4-6] Section 29-3001(2) entitles a prisoner to an eviden-
    tiary hearing on the claim, unless “the motion and the files
    and records of the case show to the satisfaction of the court
    that the prisoner is entitled to no relief.” In order to be entitled
    to an evidentiary hearing, a prisoner must allege facts in the
    motion for postconviction relief that, if proved, would consti-
    tute a violation of his or her rights under the U.S. or Nebraska
    Constitution.8 A prisoner is not entitled to an evidentiary hear-
    ing on the basis of claims that present only conclusory state-
    ments of law or fact.9 In the absence of alleged facts that would
    render the judgment void or voidable, the proper course is to
    dismiss the motion for postconviction relief for failure to state
    a claim.10
    4
    State v. Collins, 
    299 Neb. 160
    , 
    907 N.W.2d 721
    (2018).
    5
    State v. Schwaderer, 
    296 Neb. 932
    , 
    898 N.W.2d 318
    (2017).
    6
    Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
    7
    State v. Haynes, 
    299 Neb. 249
    , 260, 
    908 N.W.2d 40
    , 51 (2018).
    8
    State v. Dubray, 
    294 Neb. 937
    , 
    885 N.W.2d 540
    (2016).
    9
    
    Id. 10 See
    State v. Ryan, 
    287 Neb. 938
    , 
    845 N.W.2d 287
    (2014).
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    STATE v. FOSTER
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    300 Neb. 883
    All of Foster’s allegations in this appeal are grounded in
    claims of ineffective assistance of counsel. The district court
    correctly noted that because Foster was represented at trial
    and on direct appeal by the same counsel, his first opportunity
    to assert ineffective assistance of counsel claims was in his
    motion for postconviction relief.11
    [7,8] To establish a right to postconviction relief because of
    counsel’s ineffective assistance, the defendant has the burden,
    in accordance with Strickland v. Washington,12 to show that
    counsel’s performance was deficient; that is, counsel’s per­
    formance did not equal that of a lawyer with ordinary training
    and skill in criminal law.13 Next, the defendant must show that
    counsel’s deficient performance prejudiced the defense in his
    or her case.14 To show prejudice, the defendant must demon-
    strate a reasonable probability that but for counsel’s deficient
    performance, the result of the proceeding would have been
    different.15 A court may address the two prongs of this test,
    deficient performance and prejudice, in either order.16
    In his brief, Foster raised four arguments: (1) The district
    court abused its discretion in failing to find trial counsel was
    deficient and prejudicial, (2) the district court erred in failing
    to grant postconviction relief, (3) the district court erred when
    it failed to find that trial and appellate counsel were prejudi-
    cially ineffective, and (4) the district court abused its discre-
    tion in denying Foster an evidentiary hearing under § 29-3001.
    However, based on the contents of Foster’s appellate brief
    and his motion before the trial court, these arguments can be
    narrowed to the following: (1) Trial counsel’s performance
    11
    See State v. Vela, 
    297 Neb. 227
    , 
    900 N.W.2d 8
    (2017).
    12
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674
    (1984).
    13
    Schwaderer, supra note 5.
    14
    
    Id. 15 Id.
    16
    
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    was deficient, and counsel’s deficient performance prejudiced
    the defense in the case; (2) appellate counsel’s performance
    was deficient, and counsel’s deficient performance prejudiced
    Foster in the appeal; and (3) the district court erred in denying
    Foster an evidentiary hearing.
    We discuss each of the reframed arguments in turn and
    explain why the district court did not err in denying Foster an
    evidentiary hearing. Our discussion of Foster’s several argu-
    ments includes a common theme that these postconviction
    allegations are lacking and, even accepting them as true, fail to
    establish that his rights were violated.
    1. Ineffective Assistance
    of Trial Counsel
    Foster alleged several claims of ineffective assistance of
    trial counsel. Specifically, he claimed that counsel was inef-
    fective for (a) failing to investigate, interview, and/or call to
    testify specific witnesses; (b) failing to communicate Foster’s
    acceptance of the State’s plea offer before the expiration of
    the offer; (c) failing to provide identifying characteristics
    of other potential shooters; (d) failing to provide alterna-
    tive theories for the murder; (e) failing to object to com-
    ments made by the State; (f) failing to object when the
    court gave the jury a limiting instruction regarding impeach-
    ment evidence during Foster’s cross-examination and fail-
    ing to request a limiting instruction for each time the State
    impeached a witness with prior inconsistent statements; (g)
    failing to properly preserve error and argument when counsel
    failed to object to evidence and testimony that would have
    been potentially inadmissible in a separate trial pursuant to
    Foster’s overruled motion to sever; (h) failing to object when
    the State improperly impeached its own witnesses; (i) fail-
    ing to object to jury instruction No. 9, which failed to con-
    form to the language of NJI2d Crim. 1.2 and 9.2, or propose
    an appropriate jury instruction which appropriately defined
    Foster’s presumption of innocence; (j) failing to request or
    ensure that the court gave a “mere presence” instruction to
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    the jury; and (k) failing to move for a mistrial regarding any
    of these errors.
    [9-11] In determining whether trial counsel’s performance
    was deficient, courts give counsel’s acts a strong presump-
    tion of reasonableness.17 An appellate court will not judge an
    ineffectiveness of counsel claim in hindsight.18 We must assess
    trial counsel’s performance from counsel’s perspective when
    counsel provided the assistance.19 When reviewing claims of
    ineffective assistance, we will not second-guess trial counsel’s
    reasonable strategic decisions.20
    (a) Failure to Call Witnesses
    In assessing postconviction claims that trial counsel was
    ineffective in failing to call a particular witness, we have
    upheld dismissal without an evidentiary hearing where the
    motion did not include specific allegations regarding the tes-
    timony which the witness would have given if called.21 The
    record in this matter shows the State called 24 witnesses.
    Foster did not testify or call any witnesses; he built his case
    through cross-examination of the State’s witnesses.
    Foster alleged that his trial counsel was deficient for failing
    to interview or call potential witnesses. It appears that Foster’s
    trial counsel made the strategic choice to focus on the State’s
    witnesses and to not call any witnesses.
    In his motion to the trial court, Foster named five specific
    individuals that he believes should have been interviewed or
    called to testify and gave a brief comment about each indi-
    vidual. He alleges the following witnesses would have sup-
    ported his defense: Kayiona Smith was present with Smith
    17
    See, State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018); State v.
    Alfredson, 
    287 Neb. 477
    , 
    842 N.W.2d 815
    (2014).
    18
    State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
    (2011).
    19
    
    Id. 20 Id.
    21
    State v. McGhee, 
    280 Neb. 558
    , 
    787 N.W.2d 700
    (2010); State v. Davlin,
    
    277 Neb. 972
    , 
    766 N.W.2d 370
    (2009).
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    prior to the shootings, but did not make any incriminating
    statements against Foster; Terrance Ammons, whose telephone
    number was wrongly attributed to Foster at the time of the
    incident; Brittany Lawson was Foster’s girlfriend and was with
    him prior to the incident; Michelle Baker is Foster’s mother
    and was present with him prior to the incident; and Tony
    Mays is Foster’s stepfather and was present with him prior to
    the shootings.
    Our case law is clear that 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 dismissal without an evi-
    dentiary hearing.22 Absent specific allegations, a motion for
    postconviction relief effectively becomes a discovery motion
    to determine whether evidence favorable to a defendant’s posi-
    tion actually exists.23 Foster’s vague descriptions of witness
    testimony do not merit an evidentiary hearing, because they
    fail to allege facts that, if proved, would constitute a violation
    of his rights.
    The jury heard from a number of eyewitnesses who pro-
    vided their individual accounts of the shootings. Foster did not
    explain how the testimony of the witnesses identified in his
    motion would have affected the evidence that was already pre-
    sented at trial. Foster failed to show a reasonable probability
    that the outcome of trial would have been different had trial
    counsel interviewed or called these witnesses to testify. This
    claim of deficiency by trial counsel is without merit.
    (b) Failure to Communicate
    Acceptance of Plea Offer
    Foster alleged that his trial counsel failed to communicate
    his acceptance of the State’s plea offer before the offer expired
    and that Foster would have received the benefits of “the plea
    offer” but for his counsel’s error. The trial court determined
    22
    See State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014).
    23
    See 
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    that Foster’s allegation did not merit a hearing, because he
    failed to allege any details about the plea offer.
    [12,13] The plea-bargaining process presents a critical stage
    of a criminal prosecution to which the right to counsel applies.24
    As a general rule, defense counsel has the duty to communi-
    cate to the defendant all formal offers from the prosecution to
    accept a plea on terms and conditions that may be favorable
    to the defendant.25 However, as the trial court determined,
    because Foster did not allege the terms of the plea offer and its
    benefits as compared to the outcome at trial, his allegations are
    insufficient to merit a hearing. This claim of deficiency by trial
    counsel is without merit.
    (c) Failing to Provide Identifying
    Characteristics of Other
    Potential Shooters
    Foster alleged that trial counsel failed to offer any identify-
    ing characteristics of “other” shooters. It is true that several
    witnesses provided the jury a physical description of Foster,
    including several witnesses who testified that they saw Smith
    enter the Legion with a man matching Foster’s description
    (light skin, braids, and walked with a limp).
    However, Foster was not the only potential shooter described
    to the jury. There was evidence that “Don Don” and “Views”
    could have been the shooter. Corey described “Don Don” as 5
    feet 7 inches tall with a “brush cut,” darker skin, and a missing
    eye, and as “real distinctive ’cause he can’t see out that eye.”
    He described “Views” as 6 feet 1 inch or 6 feet 2 inches tall
    with “medium length dreads” and “teeth [with] silver chrome
    caps.” Thus, the record disproves Foster’s claim that the jury
    was not made aware of the “identifying characteristics” of
    other potential shooters. This claim is without merit.
    24
    Alfredson, supra note 17.
    25
    
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    (d) Failure to Provide
    Alternative Theories
    Foster alleged that trial counsel failed to present alterna-
    tive theories for the motivation behind the shootings. Foster’s
    motion includes a suggestion that Smith could have acted
    alone because he disapproved of any relationship between his
    family members and the victims.
    As this court concluded on direct appeal, “[b]ased on the
    evidence at trial, the jury could conclude that Foster committed
    the shootings alone, that Smith committed the shootings alone,
    that Smith and Foster committed the shootings together, or that
    neither Foster nor Smith committed the shootings.”26 Foster’s
    claim does not establish any prejudice, because the jury was
    presented with these alternate theories. The jury weighed these
    competing conclusions based on the evidence and determined
    that Smith and Foster committed the shootings together. This
    claim is without merit.
    (e) Failure to Object to
    State’s Comments
    Foster alleged that trial counsel failed to object to question-
    ing by the State, as well as comments made during closing
    argument, which Foster suggests gave the jury the impres-
    sion that the burden of proof had shifted to Foster to prove
    his innocence.
    [14] Contrary to Foster’s claims, the trial court instructed
    the jury that “[t]he burden of proof is always on the State to
    prove beyond a reasonable doubt all of the material elements
    of the crime charged, and this burden never shifts.” The trial
    court also instructed the jury that “[s]tatements, arguments, and
    questions of the lawyers . . .” are not evidence. We found on
    direct appeal that Foster had failed to establish the existence
    of an unreliable verdict.27 Foster’s postconviction allegations
    are too vague and conclusory to change this result. Absent
    26
    Foster, supra note 
    1, 286 Neb. at 844
    , 839 N.W.2d at 800.
    27
    See Foster, supra note 1.
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    evidence to the contrary, it is presumed that a jury followed the
    instructions given in arriving at its verdict.28 These claims are
    without merit.
    (f) Failure to Object to or Request
    Limiting Instruction
    Foster alleged that trial counsel failed to object every time
    the court gave the jury a limiting instruction regarding impeach-
    ment evidence during his cross-examinations. He also alleged
    that trial counsel failed to request a limiting instruction for
    each time the State impeached a witness with a prior inconsist­
    ent statement. Foster alleged that this “inherently prejudiced”
    his case.
    Foster’s claims are conclusory and unavailing. He did
    not identify the grounds on which trial counsel should have
    objected, why asserting numerous objections while questioning
    a witness would have been beneficial to his case, or what the
    court’s ruling would have been had counsel objected. He also
    did not specify the testimony he is referring to. His allegations
    are therefore not sufficient to show how trial counsel’s treat-
    ment of the court’s limiting instruction would have changed the
    outcome of the trial. Foster did not make sufficient allegations
    of deficient performance or prejudice for these claims.
    (g) Failure to Preserve Error
    Foster alleged that trial counsel failed to preserve error when
    he “failed to object to evidence and testimony that would have
    been potentially inadmissible in a separate trial.” Although
    Foster did not specify which evidence trial counsel failed
    to object to, and did not allege how such objections would
    have changed the outcome of the trial, Foster appears to have
    ­reasserted his argument from direct appeal that he was preju-
    diced by having his case jointly tried with Smith’s.
    This court determined in Foster’s previous appeal that a
    joint trial was appropriate because the charges against Smith
    28
    Cotton, supra note 17.
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    and Foster stemmed from the same series of acts and would
    be proved by similar evidence. We found that many of Smith’s
    statements were offered to prove his state of mind rather than
    the truth of the matter asserted, and therefore would have
    been admissible against Foster in a separate trial. Although
    we determined that Smith’s testimony from a prior case about
    the fact that “gang members do carry guns and they do shoot
    them” would have been inadmissible in a separate trial, we
    determined that Smith’s testimony was not prejudicial, because
    his statements were cumulative of other witness testimony.
    Given that this issue was preserved and determined on direct
    appeal, there is no indication of deficient performance by trial
    counsel. This claim is without merit.
    (h) Failure to Object to Impeaching
    State’s Own Witness
    Foster alleged that trial counsel failed to object when the
    State improperly impeached its own witnesses. Foster did not
    specify at what point during the trial this occurred. However,
    he may be referring to the testimony of Martini Swift, Smith’s
    cousin.
    The record shows the State conducted witness preparation
    with Martini leading up to trial. Martini was subpoenaed for
    trial, but failed to appear and was taken into custody. When
    she testified, she did not remain consistent with her prior state-
    ments to police. Martini began her testimony stating that she
    did “not really” remember the night of the shootings. She then
    stated she witnessed Smith come into the Legion that night
    and offered a courtroom identification of Smith. Martini then
    denied being concerned about why Smith was at the bar that
    night, and stated she did not know how long he stayed at the
    bar. She denied seeing someone else enter the bar with Smith.
    The State then impeached Martini with her statement to police
    that she observed Smith walk into the Legion with a “light-
    skinned boy with braids who was wearing a gray hoodie.”
    Contrary to Foster’s allegation, the record shows Foster’s trial
    counsel did object on improper impeachment grounds and was
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    granted a continuing objection throughout Martini’s testimony.
    The trial court overruled the objection, finding that Martini was
    a hostile witness under Neb. Rev. Stat. § 27-611 (Reissue 2016)
    and that the testimony was permissible as long as the ques-
    tions were confined to Martini’s prior statements in a police
    report, rather than Martini’s conversations with the prosecutor.
    The record thus disproves Foster’s claim that his trial coun-
    sel was deficient for failing to raise an objection. This claim
    of ineffective assistance of trial counsel is without merit.
    (i) Jury Instruction No. 9
    Foster contends that his counsel was ineffective for failing to
    object to jury instruction No. 9, which stated: “The Defendant
    is presumed to be innocent. This presumption of innocence is
    evidence in favor of the Defendant and continues throughout
    the trial, until he shall have been proved guilty beyond a rea-
    sonable doubt.”
    Foster asserts that the final clause of the instruction created
    an inevitability that the jury “shall” find him guilty, contrary
    to the presumption of innocence. Foster alleges the instruction
    failed to conform to NJI2d Crim. 9.2, which states, in relevant
    part: “The defendant has pleaded not guilty. [The defendant]
    is presumed to be innocent. That means you must find [the
    defendant] not guilty unless and until you decide that the state
    has proved [the defendant] guilty beyond a reasonable doubt.”
    (Emphasis supplied.)
    The trial court overruled Foster’s objection raised in his
    postconviction motion to instruction No. 9 and stated the lan-
    guage was proper and not prejudicial under State v. Henry.29
    [15,16] In an appeal based on a claim of an erroneous jury
    instruction, the appellant has the burden to show that the
    questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.30 All the jury
    instructions must be read together, and if, taken as a whole,
    29
    State v. Henry, 
    292 Neb. 834
    , 
    875 N.W.2d 374
    (2016).
    30
    State v. McCurry, 
    296 Neb. 40
    , 
    891 N.W.2d 663
    (2017).
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    they correctly state the law, are not misleading, and adequately
    cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal.31
    We conclude that the court did not err in giving instruc-
    tion No. 9. It is not error for a trial court to refuse to give a
    defendant’s requested instruction where the substance of the
    requested instruction was covered in the instructions given.32
    Here, the substance of NJI2d Crim. 9.2 regarding a criminal
    defendants’ presumption of innocence was covered in instruc-
    tion No. 9. In State v. Duncan,33 we approved of the district
    court’s use of a preliminary and final jury instruction identical
    to the instruction used in this case and found such presumption-
    of-innocence instruction was an accurate statement of the law.
    Furthermore, in Henry,34 we found that a criminal defendant’s
    challenge to a jury instruction fashioned from NJI2d Crim. 9.2
    was meritless. Henry is instructive here, because, even though
    the instruction in Henry included the phrase “‘unless and
    until,’” the challenge was limited to the words “‘and until,’”35
    similar to Foster’s claim in this case. In considering the propri-
    ety of the instruction given, we applied well-established princi-
    ples of law regarding jury instructions and found the instruction
    correctly stated the law regarding the presumption of inno-
    cence, adequately covered the issue, and was not misleading.
    Our precedent on this issue of law is controlling. Foster’s alle-
    gations regarding jury instruction No. 9 lack merit.
    (j) “Mere Presence” Instruction
    Foster alleged that trial counsel failed to request a “mere
    presence” jury instruction. Foster cannot claim his counsel was
    deficient by failing to request a “mere presence” instruction,
    31
    
    Id. 32 State
    v. Quintana, 
    261 Neb. 38
    , 
    621 N.W.2d 121
    (2001); State v. Hernandez,
    
    242 Neb. 78
    , 
    493 N.W.2d 181
    (1992).
    33
    State v. Duncan, 
    265 Neb. 406
    , 
    657 N.W.2d 620
    (2003).
    34
    Henry, supra note 29.
    35
    
    Id. at 853,
    875 N.W.2d at 391.
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    because the State’s theory of the case was that Foster was the
    shooter and that Smith aided and abetted Foster. The jury was
    presented with evidence that Foster was directly involved in
    the shootings, and not “merely present.” Therefore, even if the
    instruction had been requested, the “mere presence” instruction
    would not likely have been given, because the evidence did
    not support the giving of the instruction. This claim is with-
    out merit.
    (k) Request of Mistrial
    [17,18] Foster contends that trial counsel’s failure to seek
    a mistrial for any of the deficiencies just addressed was itself
    deficient and prejudicial. A motion for mistrial is properly
    granted in a criminal case where an event occurs during the
    course of trial that is of such a nature that its damaging effect
    cannot be removed by proper admonition or instruction to the
    jury and thus prevents a fair trial.36 A defendant must prove
    that an alleged error actually prejudiced him or her, rather than
    creating only the possibility of prejudice, in order for a motion
    for mistrial to be properly granted.37
    We found no error warranting a mistrial and no deficien-
    cies in the performance of trial counsel in failing to seek a
    mistrial. As a result, we reject the claim that counsel was defi-
    cient in failing to request a mistrial. Having discussed each of
    Foster’s postconviction claims with respect to the performance
    of trial counsel, we determine that Foster’s first argument
    fails to allege a meritorious postconviction claim and that the
    trial court did not err in declining to grant Foster an eviden-
    tiary hearing.
    2. Ineffective Assistance
    of A ppellate Counsel
    Foster contends that his appellate counsel was ineffective for
    failing to raise on direct appeal (a) that the trial court overruled
    36
    McCurry, supra note 30.
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    his motion to sever; (b) that the trial court erred when it gave
    a limiting instruction each time Foster impeached a witness
    with prior inconsistent statements, but failed to give the same
    limiting instruction whenever the State impeached a witness
    with prior inconsistent statements; (c) that the trial court erred
    by allowing the State to impeach its own witness; (d) that the
    trial court erred by allowing the State to improperly shift the
    burden of proof to Foster when the State examined witnesses
    about Foster’s lack of testing the physical evidence and when
    the State made improper comments suggesting Foster failed to
    bring forth sufficient evidence to prove his innocence during
    closing arguments; (e) that the trial court improperly instructed
    the jury on instruction No. 9; and (f) that the trial court did not
    instruct the jury on “mere presence.”
    [19,20] When a claim of ineffective assistance of appellate
    counsel is based on the failure to raise a claim on appeal of
    ineffective assistance of trial counsel (a layered claim of inef-
    fective assistance of counsel), an appellate court will look at
    whether trial counsel was ineffective under the Strickland 38
    test.39 If trial counsel was not ineffective, then the defendant
    was not prejudiced by appellate counsel’s failure to raise the
    issue.40 Much like claims of ineffective assistance of trial coun-
    sel, the defendant must show that but for counsel’s failure to
    raise the claim, there is a reasonable probability that the out-
    come would have been different.41
    (a) Failure to Sever
    In regard to the trial court’s failure to sever Foster’s case
    from Smith’s, that issue was raised by appellate counsel on
    direct appeal and we found that the trial court did not err in
    failing to sever the trials. This claim is without merit.
    38
    Strickland, supra note 12.
    39
    State v. McGuire, 
    299 Neb. 762
    , 
    910 N.W.2d 144
    (2018).
    40
    
    Id. 41 Id.
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    (b) Limiting Instruction
    Foster claims that the trial court gave a limiting instruc-
    tion each and every time he impeached a witness with prior
    inconsistent statements, but failed to give the same limiting
    instruction whenever the State impeached a witness with prior
    inconsistent statements. Having already determined above that
    Foster failed to show that his trial counsel’s performance was
    deficient with respect to this issue, appellate counsel’s failure
    to raise the issue on appeal was also not deficient. This claim
    is without merit.
    (c) Impeaching State’s
    Own Witnesses
    Foster alleged ineffective assistance of appellate counsel
    for failing to raise on direct appeal that the trial court erred by
    allowing the State to impeach its own witnesses. Again, Foster
    did not sufficiently plead this claim. He did not identify the
    witness’ testimony that the trial court should have excluded,
    and therefore his allegations are insufficient to show ineffec-
    tive assistance of appellate counsel for failing to include this
    issue on direct appeal. As discussed above, however, Foster is
    likely referring to the testimony of Martini.
    Martini denied that anyone entered the bar with Smith, and
    the State impeached Martini with her prior statement that she
    observed Smith enter the bar with “a light-skinned boy with
    braids who was wearing a gray hoodie.” Although Foster’s
    trial counsel objected to the State’s impeachment methods at
    trial, Foster’s appellate counsel did not assign as error on direct
    appeal the trial court’s decision to overrule the objection.
    [21,22] Generally, the credibility of a witness may be
    attacked by any party, including the party who called the
    witness.42 However, “‘a party may not use a prior inconsist­
    ent statement of a witness under the guise of impeachment
    for the primary purpose of placing before the jury substantive
    42
    Neb. Rev. Stat. § 27-607 (Reissue 2016); State v. Dominguez, 
    290 Neb. 477
    , 
    860 N.W.2d 732
    (2015).
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    evidence which is not otherwise admissible.’”43 In State v.
    Dominguez,44 we articulated that the scope of § 27-607 is lim-
    ited where a party knows or should know that its witness will
    not testify consistent with the witness’ prior statement and uti-
    lizes impeachment as “‘“mere subterfuge.”’”
    Martini initially established facts relevant to the prosecution
    without any reference to her prior statement. She placed Smith
    at the bar on the night of the shootings and identified Smith
    in court. When Martini failed to admit that Foster was with
    Smith at the Legion, this created a credibility issue concern-
    ing Martini’s memory. The State then impeached Martini with
    her prior statement that Smith walked into the Legion with a
    person who matched the description of Foster. The prosecutor
    stated in her offer of proof, that “when I called her today, I had
    information that I believed based upon what she had expressed
    to me before, she would testify to today and she’s not doing
    so. So the State did not call her with the intention of impeach-
    ing her.”
    Foster’s postconviction allegations fail to establish that the
    State knew Martini would provide inconsistent testimony, that
    the State called Martini for the primary purpose of placing her
    prior statement before the jury, or that Martini’s prior statement
    was otherwise inadmissible. Rather, the evidence suggests the
    prosecution called Martini because she saw Smith and Foster
    at the Legion on the night of the shootings. The evidence was
    not prejudicial, because it was cumulative of other testimony
    that Smith was with Foster at the Legion prior to the shootings.
    This claim is without merit.
    (d) Prosecutorial Misconduct
    Foster alleged ineffective assistance of appellate counsel for
    failing to raise on direct appeal that the trial court erred “by
    43
    Dominguez, supra note 
    42, 290 Neb. at 490
    , 860 N.W.2d at 745, quoting
    State v. Boppre, 
    243 Neb. 908
    , 
    503 N.W.2d 526
    (1993) (emphasis supplied).
    44
    
    Id. at 491,
    860 N.W.2d at 746, quoting 4 Michael H. Graham, Handbook
    of Federal Evidence § 607:3 (7th ed. 2012).
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    allowing the State to improperly shift the burden of proof” to
    Foster on two instances: (1) when the State examined witnesses
    about Foster’s lack of testing the physical evidence and (2)
    when the State made “improper comments suggesting [Foster]
    failed to bring forth sufficient evidence to prove his innocence”
    during closing arguments. Foster did not sufficiently allege this
    claim. Foster did not identify the witnesses and their testimony
    or the improper comments that the trial court should have
    excluded or corrected, and therefore, his allegations are insuf-
    ficient to show ineffective assistance of appellate counsel for
    failing to include these issues on direct appeal.
    There is not a reasonable probability that inclusion of this
    issue would have changed the result of the appeal. As dis-
    cussed above, the trial court instructed the jury that the burden
    was on the State to prove Foster guilty beyond a reasonable
    doubt, and that “[s]tatements, arguments, and questions of the
    lawyers . . .” are not evidence. There is no indication that the
    jury did not follow these instructions. Foster’s claims are with-
    out merit.
    (e) Jury Instruction No. 9
    Foster alleged ineffective assistance of appellate counsel for
    failing to raise on direct appeal that jury instruction No. 9 was
    improper. We discussed the merits of this issue above. Foster
    cannot show a reasonable probability that inclusion of this
    issue on direct appeal would have changed the result of that
    appeal. This claim is without merit.
    (f) Jury Instruction on
    “Mere Presence”
    Foster alleged ineffective assistance of appellate counsel
    for failing to raise on direct appeal that the trial court failed
    to instruct the jury on “mere presence.” We discussed the
    merits of this issue above. Foster cannot show a reasonable
    probability that inclusion of this issue on direct appeal would
    have changed the result of that appeal. This claim is with-
    out merit.
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    (g) Denial of Evidentiary Hearing
    Foster’s final argument is that the court abused its discre-
    tion in denying an evidentiary hearing under § 29-3001 and
    that his postconviction counsel failed to object to the court’s
    denial of an evidentiary hearing. Additionally, Foster alleges
    that he was in the wrong place at the time, that there was no
    physical proof that he was the one who committed the crime,
    and that his trial counsel failed to call witnesses to show what
    actually occurred.
    As has been demonstrated above, our inquiry is focused on
    whether Foster has made a sufficient showing under Strickland
    that his counsel’s performance was deficient and that he suf-
    fered prejudice as a result.
    Assuming that postconviction counsel failed to object to the
    court’s denial of an evidentiary hearing, there is no indication
    that the counsel’s failure to lodge the objection had any impact
    on the case. After the district court entered the order dismissing
    the matter, Foster filed his own motion for reconsideration and
    had an opportunity to raise his claims and have them reviewed
    by the district court. As a result, Foster cannot show prejudice
    by his counsel’s failure to object to the dismissal.
    In regard to Foster’s claim that there was no physical proof
    he was the one who committed the crime and that he was in
    the wrong place at the wrong time, these claims lack the speci-
    ficity required to meet his burden and establish meritorious
    entitlement to a hearing under § 29-3001. We therefore affirm
    the denial of an evidentiary hearing on Foster’s motion for
    postconviction relief.
    V. CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court denying Foster’s motion for postconviction relief with-
    out an evidentiary hearing.
    A ffirmed.
    Heavican, C.J., not participating.