State v. Taylor , 300 Neb. 629 ( 2018 )


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