State v. Tyler , 301 Neb. 365 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/19/2018 09:11 AM CDT
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STATE v. TYLER
Cite as 301 Neb. 365State of Nebraska, appellee, v.
Avery R. Tyler, appellant.
___ N.W.2d ___
Filed October 19, 2018. No. S-17-870.
1. Postconviction: Judgments: Appeal and Error. Whether a claim
raised in a postconviction proceeding is procedurally barred is a
question of law which is reviewed independently of the lower court’s
ruling.
2. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
3. Postconviction: Constitutional Law: Judgments. Under the Nebraska
Postconviction Act, a prisoner in custody may file a petition for relief
on the ground that there was a denial or infringement of the prisoner’s
constitutional rights that would render the judgment void or voidable.
4. Postconviction. In the absence of alleged facts that would render the
judgment void or voidable, the proper course is to dismiss a motion for
postconviction relief for failure to state a claim.
5. Postconviction: Appeal and Error. A motion for postconviction relief
is not a substitute for an appeal.
6. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues which were known to the defendant and could have
been litigated on direct appeal; such issues are procedurally barred.
7. Postconviction: Prosecuting Attorneys: Appeal and Error. Whether
a claim of prosecutorial misconduct could have been litigated on direct
appeal and is thus procedurally barred from being litigated on postcon-
viction depends on the nature of the claim.
8. ____: ____: ____. Where the claim of prosecutorial misconduct is
such that a determination of the merits is possible based on the record
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Cite as 301 Neb. 365on direct appeal, it is procedurally barred from being litigated on
postconviction.
9. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper. It is then necessary to determine
the extent to which the improper remarks had a prejudicial effect on the
defendant’s right to a fair trial.
10. Effectiveness of Counsel: Proof. To show prejudice on a claim of inef-
fective assistance of counsel, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance, the result
of the proceeding would have been different.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro,
L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Funke, J.
Avery R. Tyler appeals from the district court’s denial of
postconviction relief without an evidentiary hearing. Tyler
asserts claims of prosecutorial misconduct and ineffective
assistance of trial and appellate counsel. For the reasons set
forth herein, we affirm.
I. BACKGROUND
This appeal follows our decision in State v. Tyler,1 which
affirmed Tyler’s jury trial convictions and sentences therefrom,
including one count of premeditated first degree murder, a
Class IA felony for which Tyler received a sentence of life
imprisonment, and one count of use of a firearm to commit a
1
State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).
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Cite as 301 Neb. 365felony, a Class IC felony for which Tyler received a sentence
of 20 to 30 years imprisonment. The trial court ordered the
sentences to run consecutively.
1. Facts
On September 3, 2012, Delayno Wright was shot and killed
outside Halo Ultra Lounge (Halo) in Omaha, Nebraska. Prior
to the shooting, Wright, his girlfriend Brittany Ashline, and
his cousin LaRoy Rivers were walking through the parking lot
toward Wright’s vehicle when two men walked past them. One
of the men grabbed or brushed against Ashline, which led to
Ashline and Wright’s confronting the men. Rivers thought he
recognized one of the men who was wearing a brown, striped
shirt and saw that man break away from the group. Rivers saw
a dome light turn on in a vehicle in the parking lot, heard the
voice of the man he thought he recognized yelling, “‘What’s
up now?’” and heard gunshots. Rivers could not see the
shooter, but Ashline said she saw a man run to a tan or gold
sport utility vehicle or Jeep and leave the scene after the shots
were fired. Wright indicated he had been shot, was driven to
a hospital, and was subsequently pronounced dead due to a
gunshot wound to his torso.
When Rivers spoke to investigators, he informed them that
he thought he recognized the man wearing the brown, striped
shirt as a person he played basketball with in high school.
Rivers explained that he thought the man’s first name was
Avery, but that he was unsure of his last name. While on a
detective’s computer, Rivers accessed a social media page,
viewed Tyler’s profile picture, and identified him as the indi-
vidual in the brown, striped shirt.
During the investigation of the shooting, investigators
obtained a photograph of Tyler from a wedding he attended
the day before the shooting in which he was wearing a brown,
striped shirt. Investigators also obtained security footage show-
ing a sport utility vehicle leaving the scene near the time of the
shooting at a high rate of speed. It was subsequently discov-
ered Tyler’s girlfriend owned a silver Jeep Commander. At the
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STATE v. TYLER
Cite as 301 Neb. 365scene of the shooting, investigators found eight shell casings.
A crime laboratory technician reported that the casings were
all fired from the same gun and that there are about 20 guns
capable of firing them, including an “FN Five-seveN” pistol. It
was discovered Tyler had purchased an FN Five-seveN pistol
approximately 21⁄2 months prior to the shooting.
Investigators obtained and executed four search warrants for
Tyler’s car and for his grandparents’, mother’s, and girlfriend’s
residences. During the searches, investigators discovered a cell
phone from Tyler’s car, a gunlock bearing the “FN” logo from
his grandparents’ residence, and a letter from his mother’s
residence. Tyler signed a consent form that allowed investiga-
tors to download and search the contents of the cell phone.
On the cell phone, investigators discovered another picture of
the September 2, 2012, wedding in which Tyler was wearing a
brown, striped shirt; a deleted text message from September 2
that read, “What’s it like and where is halo?”; and call records
and location information.
Based upon this information, Tyler was arrested and charged
for the shooting.
2. Trial
A jury trial was held in June 2014. At trial, the court
heard testimony from 24 witnesses for the State and 5 for the
defense. Among the State’s witnesses were Ronald King and
Jelani Johnson. Tyler’s assignments of error in the current
appeal concern King’s and Johnson’s testimony; therefore, a
summary of their testimony and the State’s arguments concern-
ing their testimony is provided in relevant part below.
(a) King’s Testimony
King testified he met Tyler and Johnson playing basketball
for Bellevue University in Nebraska from 2008 to 2010. After
those 2 years, King moved back to his hometown in Illinois.
In September 2012, King returned to Nebraska for the wed-
ding of a former teammate and stayed with Johnson who was
also attending the wedding. King testified that Tyler attended
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Cite as 301 Neb. 365the wedding and was wearing a brown, striped shirt. King
testified that he left the wedding to go to Halo with Tyler in
the vehicle Tyler was driving, a “light-colored Jeep.” King
explained that once they got to Halo, they parked in the park-
ing lot and were walking on a sidewalk leading into the club
when they passed two men and a woman. King testified that he
brushed against the woman as she was walking by and that the
woman and one of the men confronted them about the contact.
King explained that Tyler and the man who confronted them
got into a heated exchange and that the other man and King
had to separate the two. King testified that Tyler left at some
point and that when King walked back toward Tyler’s Jeep,
he saw Tyler walking from the Jeep toward the location where
the confrontation happened with something in his hand. King
testified he saw Tyler fire three to five gunshots in the direc-
tion where King had last seen the group of three people. After
firing the shots, King testified that Tyler returned to the vehicle
and Tyler drove them to a second bar. King then texted another
friend for a ride and parted ways with Tyler. King testified that
he returned to Illinois on his scheduled return flight. Later,
King was arrested in Illinois for an unrelated matter and held
for a Nebraska warrant. King obtained a lawyer when Omaha
Police Department detectives began to question him about the
shooting. Eventually, he was given immunity. King explained
the terms of the immunity by describing that he gave a formal
interview to the police and that if called to testify, he would
“have to say the exact same thing.”
During cross-examination, King was asked by Tyler’s coun-
sel to look at a letter leading to the following exchange:
Q. Do you recognize [the letter]?
A. Yes.
Q. Is it something that you authored, you wrote it?
A. Yes.
Q. When?
A. I don’t believe that I wrote it. I probably was speak-
ing and somebody else wrote it.
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Cite as 301 Neb. 365Q. Okay. What were the circumstances of you making
those statements and giving that information?
A. You know, just follow-up on my reactions and how
I felt about the situation.
Q. Okay. Was it before you spoke to the cops or after
you spoke to the cops?
A. After.
Q. And who — you say you don’t think you typed it,
someone else did?
A. Yes.
Q. Who?
A. My attorney, possibly.
Q. Well, what do you mean “possibly?”
A. I don’t remember who wrote it.
Q. Okay. But it’s your words?
A. Yes.
Q. And you say this was done after the police spoke to
you in Illinois?
A. Correct.
The letter was not offered into evidence, and King pro-
vided no other testimony concerning the letter outside of this
exchange. However, Tyler attached a letter to his motion for
postconviction relief and alleged the document was the letter
his counsel questioned King about at trial. Tyler alleges his
trial counsel was informed by the State during an off-the-
record recess that the letter discussed was actually written by
Johnson. Neither the State nor Tyler’s trial counsel disclosed to
the jury that Johnson had authored the letter.
(b) Johnson’s Testimony
Johnson testified he has known Tyler since childhood.
Johnson played basketball at Bellevue University with Tyler
and King and asserted that he is friends with both men.
On September 2, 2012, King and Johnson attended a
wedding where they saw Tyler. King and Tyler left the wed-
ding reception without Johnson, and Johnson did not see
King again until the next day. The next morning, Johnson
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Cite as 301 Neb. 365had a conversation with King about what had occurred the
night before. Tyler showed up uninvited at Johnson’s house,
where he talked to Johnson and had a private conversation
with King.
Johnson testified that days after the wedding, Tyler came
to the restaurant where Johnson worked and told Johnson
that Tyler’s property had been searched by police. Tyler
also told him that “his car couldn’t be placed at Halo that
night,” to which Johnson agreed. Johnson further testified that
after the meeting at Johnson’s workplace, Tyler again came
over to Johnson’s house and used Johnson’s cell phone to
call King.
In October 2012, Omaha Police Department detectives initi-
ated an interview with Johnson. Johnson testified that during
the interview, detectives questioned him about the night of
the wedding and Johnson lied and told them King had driven
his car from the wedding and had come back to pick him up
later. A couple weeks after this initial interview, detectives
again attempted to interview Johnson. Johnson declined to talk
with the detectives without an attorney and was charged with
accessory to a felony. After Johnson hired an attorney, another
interview was set up and Johnson admitted that King did not
take his car the night of the wedding and that King did not
return later to pick him up.
At trial, Johnson was questioned concerning whether he
had a plea agreement. On direct examination, the following
exchange occurred:
Q. Are you testifying here today pursuant to any type
of agreement with the Douglas County Attorney’s Office?
A. Are you asking if I do have an agreement?
Q. Yes.
A. No.
Q. Okay. Has there been any type of plea agree-
ment entered into between you and the Douglas County
Attorney’s Office regarding this case?
A. No.
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Cite as 301 Neb. 365Q. Is there any reason why you haven’t already pled to
this charge?
A. I mean, I had conversations with my lawyer, and he
told me just by coming . . . forth and being truthful that
that would be the best route.
On cross-examination, Johnson again testified that he did
not have a plea agreement worked out in exchange for his
testimony. Johnson explained that after consulting with his
attorney, he believed coming forward and being truthful would
be the best thing to do. Johnson believed that testifying truth-
fully would lead to a lesser charge or a dismissal of the acces-
sory charge.
(c) State’s Closing Argument
In the State’s closing argument, the State addressed both
King’s and Johnson’s testimony and stated, in relevant part:
King and . . . Johnson were put in a bad place. Their
teammate and their friend did something very bad. He
told them to be quiet about it. He told them to lie about
it. When . . . King is approached by the police, sure, he’s
scared. He’s worried he’s going to get arrested. He was
at a crime scene, a very serious crime scene, one where
someone was killed, and he doesn’t even bother calling
the cops to tell them about it. He leaves the scene, doesn’t
tell anyone about it. He remains quiet. He was probably
scared. He probably didn’t want . . . Tyler to get in trou-
ble because it’s a friend of his.
So when he’s in jail and the police want to talk to
him, he wanted a deal. And [defense counsel] criticizes
us for giving him that deal. But keep in mind what the
police knew versus what . . . King knew. And what I
would argue to you is the police and prosecutors don’t
give deals to liars. We didn’t give a deal to . . . Johnson.
In fact, the police arrested him and that charge is still
pending. But what we knew about . . . King when he
said, “Hey, I want immunity,” frankly, it’s easy to give it
to him. Why? Because all the evidence was pointing to
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Cite as 301 Neb. 365. . . Tyler being the shooter; Jeep Commander leaving the
scene that we tied to his girlfriend; FN Herstal gun was
the weapon used to kill, we tied that to . . . Tyler; we have
a witness, not only identify him at the scene, telling the
. . . police, not coincidentally, what he was wearing that
night and a picture of him. We have cell phone evidence
of him using his phone that night. There was nothing to
suggest . . . King was the shooter, and the cops knew
that. So to tell . . . King, “We aren’t going to arrest you
as long as you tell the truth,” was simple, which is why it
was different with [Johnson]. He didn’t tell the truth, so
he was arrested.
3. Disposition and Direct A ppeal
The jury found Tyler guilty of first degree murder and use
of a firearm to commit a felony. Utilizing the same counsel he
had at trial, Tyler filed a direct appeal with this court claim-
ing errors relating to the district court’s denial of various
motions to suppress. We concluded the district court did not
err by overruling Tyler’s motions to suppress and affirmed
Tyler’s convictions.2
4. Tyler’s Motion for
Postconviction R elief
In October 2016, Tyler filed a motion for postconviction
relief alleging prosecutorial misconduct and ineffective assist­
ance of trial counsel. As to prosecutorial misconduct, Tyler
claimed the State (1) allowed King’s known, false testimony
concerning the authorship of the letter provided by Tyler’s
counsel to go uncorrected; (2) introduced new and imper-
missible evidence during closing arguments in providing the
reasoning for King’s immunity deal; (3) improperly vouched
for and bolstered King’s testimony by stating during closing
arguments that “‘the police and prosecutors don’t give deals
to liars’”; (4) lied to the jury during closing arguments in
2
See id.- 374 -
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Cite as 301 Neb. 365representing that Johnson would not receive a deal; and (5)
failed to disclose to Tyler’s counsel that Johnson’s charge
would be dropped in exchange for his testimony at trial. As to
ineffective assistance, Tyler claimed trial counsel (1) allowed
King’s false testimony to go uncorrected, (2) failed to object
to prosecutorial misconduct in introducing new and imper-
missible evidence during closing arguments and vouching
for and bolstering a State’s witness, and (3) failed to appeal
the comments made by the county attorney. Tyler addition-
ally argued the cumulative effect of these errors denied him
a fair trial.
In an amended order, the district court denied Tyler’s motion
without an evidentiary hearing. The court found Tyler’s claims
were procedurally barred, insufficiently pled, and affirma-
tively refuted by the record. Tyler appeals this order.
II. ASSIGNMENTS OF ERROR
Tyler assigns, consolidated and restated, that the district
court erred in finding an evidentiary hearing was not war-
ranted and (1) dismissing his claims of prosecutorial miscon-
duct regarding King’s and Johnson’s testimony and the State’s
closing argument and (2) dismissing his claims of ineffective
assistance of counsel for not objecting, correcting, or appeal-
ing the alleged prosecutorial misconduct.
III. STANDARD OF REVIEW
[1] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which is reviewed
independently of the lower court’s ruling.3
[2] 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 affirm­
atively show that the defendant is entitled to no relief.4
3
State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).
4
State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
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Cite as 301 Neb. 365IV. ANALYSIS
[3] Under the Nebraska Postconviction Act, Neb. Rev. Stat.
§§ 29-3001 to 29-3004 (Reissue 2016), a prisoner in custody
may file a petition for relief on the ground 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.”5
[4] Section 29-3001(2) entitles a prisoner to an evidentiary
hearing on a claim for postconviction relief, 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 constitute a violation of his or her rights under the
U.S. or Nebraska Constitution.6 A prisoner is not entitled to
an evidentiary hearing on the basis of claims that present only
conclusory statements of law or fact.7 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.8
[5-8] A motion for postconviction relief is not a substitute
for an appeal.9 Therefore, a motion for postconviction relief
cannot be used to secure review of issues which were known
to the defendant and could have been litigated on direct appeal;
such issues are procedurally barred.10 Whether a claim of
prosecutorial misconduct could have been litigated on direct
appeal and is thus procedurally barred from being litigated on
postconviction depends on the nature of the claim.11 Where
5
Haynes, supra note 3, 299 Neb. at 260, 908 N.W.2d at 51.
6
State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
7
Id.8
See State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
9
State v. Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).
10
Id.11
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Cite as 301 Neb. 365the claim of prosecutorial misconduct is such that a determi-
nation of the merits is possible based on the record on direct
appeal, it is procedurally barred from being litigated on post-
conviction.12 But where an evidentiary hearing is necessary
to decide the merits of the claim, the failure to raise the issue
on direct appeal does not preclude it from being litigated
on postconviction.13
1. Prosecutorial Misconduct
On appeal, Tyler’s allegations of prosecutorial misconduct
include (1) the prosecutor knowingly misrepresented to the
jury that Johnson would not receive a deal before dismissing
his felony charge and committed a Brady v. Maryland 14 viola-
tion by failing to disclose the deal to Tyler, (2) the prosecutor
failed to correct King’s testimony about authoring the letter, (3)
the prosecutor introduced new and impermissible facts during
closing arguments, and (4) the prosecutor improperly bolstered
a witness during closing arguments.
Prosecutors are charged with the duty to conduct criminal
trials in a manner that provides the accused with a fair and
impartial trial.15 Because prosecutors are held to a high stan-
dard for a wide range of duties, the term “prosecutorial mis-
conduct” cannot be neatly defined.16 Generally, prosecutorial
misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may
undermine a defendant’s right to a fair trial.17
(a) Plea Deal
Tyler claims that the State committed prosecutorial mis-
conduct in failing to disclose to the jury that Johnson had
12
See id.13
Id.14
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
15
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
16
Id.17
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Cite as 301 Neb. 365received a plea deal. Tyler also claims that the State com-
mitted a violation of Brady18 when it failed to disclose that
Johnson had received a plea deal.
These claims center on Tyler’s allegation that the prosecutor
told the jury during his closing argument that Johnson would
not be getting a deal and that after trial, Johnson had his crimi-
nal case dismissed as a result of his testimony. A determination
of these claims on the merits is possible based on the record
without further evidentiary hearing.
[9] In assessing allegations of prosecutorial misconduct in
closing arguments, a court first determines whether the pros-
ecutor’s remarks were improper.19 It is then necessary to deter-
mine the extent to which the improper remarks had a prejudi-
cial effect on the defendant’s right to a fair trial.20
A prosecutor must base his or her argument on the evidence
introduced at trial rather than on matters not in evidence.21
However, 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.22 As we
stated in State v. Dubray 23:
[W]hen a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is permit-
ted to present a spirited summation that a defense theory
is illogical or unsupported by the evidence and to high-
light the relative believability of witnesses for the State
and the defense. These types of comments are a major
purpose of summation, and they are distinguishable from
attacking a defense counsel’s personal character or stating
18
Brady, supra note 14.
19
State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
20
Id.; State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
21
Johnson, supra note 19.
22
Id.23
Dubray, supra note 15, 289 Neb. at 227, 854 N.W.2d at 604-05.
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Cite as 301 Neb. 365a personal opinion about the character of a defendant
or witness.
During trial, Johnson testified that he did not have a deal
with the State but that he hoped his cooperation would lead to
a lesser charge or dismissal of his accessory charge. In closing
arguments, the State asserted that Johnson had been arrested,
had a charge pending, and did not have a deal in place at the
time of trial.
Even if Johnson later received a dismissal or reduction
of his charge, it would not make Johnson’s testimony or
the State’s assertions during closing arguments untrue. In
fact, in review of Johnson’s testimony and the State’s asser-
tions during closing arguments, the record makes clear that
Johnson believed it possible and the State did not dispute that
Johnson’s charge or sentence might be modified as a result of
his testimony. As such, the State’s assertions during closing
arguments did not mislead or unduly influence the jury. As
we have previously stated, a prosecutor’s conduct that does
not mislead and unduly influence the jury does not constitute
misconduct.24 Tyler’s claim that the prosecutor misled the jury
is without merit.
In regard to an alleged Brady violation, the U.S. Supreme
Court has held that the prosecution has a duty to disclose all
favorable evidence to a criminal defendant prior to trial.25
Favorable evidence includes both exculpatory and impeach-
ment evidence.26
Tyler’s motion for postconviction relief alleges that the State
committed the Brady violation when the State gave Johnson a
plea deal after telling the jury that Johnson would not be given
a deal. More specifically, Tyler alleges the prosecutor stated
24
See Johnson, supra note 19.
25
Brady, supra note 14.
26
See United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985), citing Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31
L. Ed. 2d 104 (1972).
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Cite as 301 Neb. 365in closing that Johnson would not be getting a deal and that
therefore, the State was precluded from giving Johnson a deal
after trial.
However, the record does not support this allegation. Instead,
the record indicates that the prosecutor stated that “[w]e didn’t
give a deal to . . . Johnson.” The prosecutor’s statement was
made during rebuttal argument in response to defense counsel’s
questioning as to why King wanted immunity. The prosecutor’s
statement was a correct statement of the evidence which indi-
cated that Johnson lied to investigators, that he was charged
with accessory to a felony, and that he did not have a deal at
the time of trial.
Tyler’s motion for postconviction relief did not allege that
Johnson’s testimony was false or that the State had a plea
agreement with Johnson at the time of trial and failed to
disclose that fact to Tyler. As a result, Tyler did not present
allegations that the prosecution failed to disclose exculpatory
or impeachment evidence to support a Brady violation. This
assignment of error is without merit.
(b) False Testimony
Tyler alleges that the State committed prosecutorial mis-
conduct in failing to correct King’s testimony about author-
ing the letter provided by Tyler’s counsel. In his motion for
postconviction relief, Tyler noted that, though King testified
he authored the letter, the State informed Tyler’s counsel
during an off-the-record recess that the letter was written
by Johnson. Neither the State nor Tyler’s counsel disclosed
Johnson’s authorship of the letter to the jury. Tyler claims he
could not have brought this claim of prosecutorial misconduct
on direct appeal, because the State’s disclosure that Johnson,
not King, authored the letter occurred off the record. However,
Tyler acknowledges in his motion for postconviction relief that
this issue was known to Tyler’s counsel at the time of trial,
and there is no evidence that it was raised on direct appeal. It
is well settled that a motion for postconviction relief cannot
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Cite as 301 Neb. 365be used to secure review of issues which were known to the
defendant and which were or could have been litigated on
direct appeal.27 Therefore, Tyler’s claim of prosecutorial mis-
conduct for failing to correct known, false testimony is proce-
durally barred.
(c) Comments During Closing
Tyler alleges that the State committed prosecutorial mis-
conduct in introducing new and impermissible facts during
closing arguments. On this claim, Tyler asserts the State com-
mitted prosecutorial misconduct in informing the jury that the
reason King was offered immunity was because King was at
the scene of a crime and failed to report it to the police. Tyler
asserts this information was not introduced at trial and, as
such, the State should have been precluded from discussing
these facts during closing arguments.
A review of the trial record and the State’s comments in
closing is sufficient to determine whether the State intro-
duced new and impermissible information during closing
arguments. Therefore, Tyler could have raised this claim on
direct appeal, but failed to do so. As such, this claim is proce-
durally barred.
(d) Witness Bolstering
Tyler alleges that the State committed prosecutorial mis-
conduct by improperly bolstering a witness during closing
arguments. Tyler argues that the prosecution’s statement that
“the police and prosecutors don’t give deals to liars” bolstered
King’s credibility.
As with Tyler’s previous claim, Tyler’s bolstering claim is
based on the record of what occurred during closing arguments.
The issues of whether the State’s comments were improper
or materially prejudicial could have been resolved on direct
appeal. Because Tyler failed to raise the claim on direct appeal,
the claim is procedurally barred.
27
Torres, supra note 9.
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Cite as 301 Neb. 365In consideration of all of the above, we conclude that the
district court did not err in dismissing Tyler’s claims of pros-
ecutorial misconduct without an evidentiary hearing.
2. Ineffective Assistance
of Counsel
As to his claims for ineffective assistance, Tyler alleged that
his trial counsel allowed King’s false testimony to go uncor-
rected, failed to object to prosecutorial misconduct in introduc-
ing new and impermissible evidence during closing arguments
and bolstering a State’s witness, and failed to appeal the com-
ments made by the county attorney. Tyler additionally argued
the cumulative effect of these errors denied him a fair trial.
Stated another way, Tyler claims his counsel was ineffective
in failing to object, correct, or appeal the alleged instances of
prosecutorial misconduct.
[10] Where trial counsel and appellate counsel are the same,
a postconviction motion is a defendant’s first opportunity to
raise a claim of ineffective assistance.28 A proper ineffective
assistance of counsel claim alleges a violation of the funda-
mental constitutional right to a fair trial.29 To prevail on a
claim of ineffective assistance of counsel under Strickland v.
Washington,30 the defendant must show that his or her coun-
sel’s performance was deficient and that this deficient perform­
ance actually prejudiced the defendant’s defense.31 To show
prejudice under the prejudice component of the Strickland test,
the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the pro-
ceeding would have been different.32 A reasonable probability
28
State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).
29
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
30
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
31
Vela, supra note 29.
32
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Cite as 301 Neb. 365does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defend­ant must show a probability sufficient to undermine
confidence in the outcome.33 In determining whether counsel
was ineffective in failing to object to prosecutorial miscon-
duct, an appellate court must first determine whether the
petitioner has alleged any action or remarks that constituted
prosecutorial misconduct.34
(a) King’s Testimony
In his motion for postconviction relief, Tyler alleged his
counsel was ineffective for failing to correct King’s known,
false testimony that King authored the letter and, on direct
appeal, in failing to allege prosecutorial misconduct that the
State allowed known, false testimony to go uncorrected. This
claim is without merit, because Tyler has failed to allege suf-
ficient facts to show King’s testimony misled or unduly influ-
enced the jury.
Tyler contends that correcting the testimony about the letter
would have provided the jury evidence relevant to King’s cred-
ibility which was at issue as a primary witness for the State.
However, Tyler’s counsel cross-examined King at trial and
questioned King’s credibility, including the amount of alcohol
he consumed on the day of the shooting, his receiving immu-
nity for his cooperation, and his statements to law enforcement.
The jury was able to compare King’s testimony with the other
witnesses’ accounts and consider the terms of King’s immunity
deal. The authorship of a letter that the jury did not review or
have substantive information about had little probative value to
King’s credibility. Tyler failed to show how evidence that King
authored the letter caused any prejudicial effect.
Tyler also claims his counsel should have introduced the
letter to impeach King’s testimony that he saw Tyler firing
33
Id.34
Johnson, supra note 19.
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Cite as 301 Neb. 365the gun, because the letter allegedly states that the author did
not see the shooting. However, Tyler admits that the letter
was actually written by Johnson, so regardless of the alleged
content of the letter, any statements about what the author of
the letter observed are irrelevant to King’s testimony about his
own observations.
Therefore, based on all of the above, Tyler has failed
to state sufficient allegations under the prejudice prong of
Strickland to show that, but for counsel’s failure to correct
King’s testimony about the letter and failure to allege on direct
appeal that the State committed prosecutorial misconduct in
not correcting King’s testimony, the result of trial would have
been different.
(b) Closing Arguments
Tyler’s remaining claims of ineffective assistance consist
of his counsel’s failure to object to the State’s statements dur-
ing closing arguments and failure to raise the issue on appeal.
Specifically, these claims concern the State’s comments about
King’s immunity deal and Johnson’s lack of a plea deal.
(i) New Evidence
Tyler claims his counsel failed to object to prosecutorial
misconduct when the State discussed the reasoning for King’s
immunity deal. Specifically, Tyler claims prosecutorial mis-
conduct in the State’s explaining that the reason King was
offered immunity was because King was at the scene of a
crime and failed to report it to the police. According to Tyler,
this amounts to misconduct, because “information was not
introduced into evidence during the trial to show that King
had broken the law in any way” for which he would need the
immunity deal. He further asserts that “[w]ithout this evidence
being introduced improperly, the jury very well could have
concluded that King was hiding something or testifying falsely
because most witnesses with no involvement in a crime do not
need immunity to testify.”
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Cite as 301 Neb. 365Here, the record shows King testified that he was with Tyler
on the night of the offense, that King was involved in the
altercation which eventually led to the shooting, that King saw
Tyler shoot a gun toward the group with whom they had the
altercation, that King rode in Tyler’s vehicle after witnessing
him shoot the gun, that King flew back to Illinois, and that
King received an immunity deal before he gave an interview
about the shooting. King did not testify to notifying the police
of the shooting before the Omaha Police Department detec-
tives initiated contact. In addition, Tyler’s counsel argued in
closing that if King was not the shooter, then he would not
need immunity.
It was a reasonable inference for the State to draw from
this testimony that King received his immunity deal to protect
him from possible charges connected with his participation in
the events surrounding the shooting, and it was appropriate to
rebut Tyler’s closing argument. As such, the State’s assertion
that King received his immunity deal in connection with wit-
nessing the shooting and not reporting it does not amount to
prosecutorial misconduct.
(ii) Witness Bolstering
Tyler claims his counsel was ineffective for failing to
object to the State’s improperly bolstering King’s testimony.
Specifically, Tyler points to the State’s comment that “the
police and prosecutors don’t give deals to liars” while noting
King received an immunity deal as opposed to Johnson, who
did not. Such a statement, Tyler argues, implied that King must
be honest because he got an immunity deal.
The trial testimony of both King and Johnson support
the State’s comments in closing. King testified that he was
approached by investigators, that he demanded an immunity
deal in exchange for an interview, and that he received the
deal. Johnson, in turn, testified that he lied to investigators,
that he was charged with accessory to a felony, and that he did
not have a deal at the time of trial. The inferences made by the
State were reasonable given these facts.
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Cite as 301 Neb. 365In addition, the jury was able to determine on its own the
weight and credibility to be given to King’s testimony as it
heard King testify, heard King being cross-examined as to his
credibility, heard testimony from other witnesses concerning
King, and heard Tyler’s closing argument which addressed
concerns about King’s truthfulness.
Further, the prosecutor’s statement was made in the State’s
rebuttal argument. In U.S. v. Delgado,35 the court held that the
prosecutor did not commit misconduct by arguing during clos-
ing arguments that the defendant had lied. The court noted that
“context is crucial” and that the prosecutor’s statement was
made in response to defense counsel’s attack of government
witnesses and after a detailed summary of the evidence.36 The
statement that the defendant lied, the court explained, was a
commentary on what the evidence showed; it was not an asser-
tion of the prosecutor’s personal opinion or an attack on the
defendant’s character.37
Here, Tyler’s counsel, during closing, raised the issue of
King’s credibility repeatedly. More specifically, Tyler’s coun-
sel questioned why King would need immunity if he had not
done anything illegal. To rebut that contention, the prosecu-
tor addressed the reason King was granted immunity and the
reason Johnson was not granted immunity. The prosecutor’s
statement was a commentary on what the evidence showed; it
was not an assertion of the prosecutor’s personal opinion or a
bolstering of King’s credibility.
Lastly, the trial judge instructed the jury that the attorneys’
statements were not to be taken as evidence. Therefore, absent
other evidence, the State’s comment that “the police and pros-
ecutors don’t give deals to liars” and the State’s emphasis on
King’s having received an immunity deal does not amount
to prosecutorial misconduct. Counsel is not ineffective for
35
U.S. v. Delgado, 672 F.3d 320 (5th Cir. 2012).
36
Id. at 335.
37
Id.
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Cite as 301 Neb. 365failing to make an objection that has no merit.38 As a result,
Tyler’s trial counsel could not be ineffective for failing
to object.
(iii) Plea Deal
Tyler argues that the State’s comment during closing argu-
ments, “what I would argue to you is the police and pros-
ecutors don’t give deals to liars[; we] didn’t give a deal to
. . . Johnson,” amounted to prosecutorial misconduct, because
Johnson received a deal to drop his pending charge after he
provided his testimony. Such a statement, Tyler claims, bol-
stered Johnson’s credibility with the jury, because it appeared
as if Johnson were providing testimony against his own best
interests even though he had not been given a plea deal.
As discussed in a previous section, however, this ignores
Johnson’s testimony concerning the status of his then-current
charge. Johnson testified that he did not have an agreement
with the State in exchange for his testimony and explained
that he decided to testify after consulting with his attorney and
determining that testifying would be the best decision to lead
to his own best outcome. He further explained that the best
outcome in his situation would hopefully be that his coop-
eration would lead to a reduction or dismissal of his acces-
sory charge.
The State’s assertion during closing arguments that Johnson
had been arrested, had a charge pending, and did not have a
deal in place at the time of trial aligns with this testimony.
Further, the State’s explanation that Johnson did not currently
have a deal in place because he lied to police and “the police
and prosecutors don’t give deals to liars” is a natural inference
from the evidence.39
Tyler further argues the State’s assertion that Johnson lied to
the police and “the police and prosecutors don’t give deals to
38
See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
39
See Johnson, supra note 19.
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Cite as 301 Neb. 365liars” implied the State meant Johnson would never be given
a deal because of his untruthfulness. However, in review of
the record, the State commented only that Johnson had been
arrested and charged because he had lied and that Johnson
did not have a deal at the time of trial. The State did not say
Johnson could not redress his incorrect statements and reha-
bilitate himself to obtain a deal. Through Johnson’s testimony,
it is clear that he believed there was a possibility for a future
deal if he testified truthfully at trial. Therefore, these claims
fail to make sufficient factual allegations to lead to a finding of
prosecutorial misconduct.
In consideration of all of the above, Tyler failed to allege
sufficient facts that the complained-of remarks in the State’s
closing argument misled and unduly influenced the jury and
constituted prosecutorial misconduct.40 Therefore, the district
court did not err in dismissing, without an evidentiary hearing,
the claims of ineffective assistance of counsel for failing to
object and appeal the alleged prosecutorial misconduct.
V. CONCLUSION
For the reasons stated above, we conclude that Tyler was not
entitled to an evidentiary hearing on his claims of prosecutorial
misconduct and ineffective assistance of counsel. We further
conclude that the district court did not err in dismissing Tyler’s
motion for postconviction relief. Therefore, we affirm the dis-
trict court’s order.
A ffirmed.
Freudenberg, J., not participating.
40
See id.