State v. Henderson , 301 Neb. 633 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. HENDERSON
    Cite as 
    301 Neb. 633
    State of Nebraska, appellee, v.
    Tillman T. Henderson, appellant.
    ___ N.W.2d ___
    Filed November 30, 2018.   No. S-17-535.
    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: Constitutional Law. Postconviction relief is a very
    narrow category of relief, available only to remedy prejudicial constitu-
    tional violations that render the judgment void or voidable.
    3.	 Postconviction: Appeal and Error. On appeal from the denial of
    postconviction relief without an evidentiary hearing, the question is not
    whether the movant was entitled to relief by having made the requisite
    showing. Instead, it must be determined whether the allegations were
    sufficient to grant an evidentiary hearing.
    4.	 Postconviction: Pleadings. The allegations in a motion for postcon-
    viction relief must be sufficiently specific for the district court to
    make a preliminary determination as to whether an evidentiary hearing
    is justified.
    5.	 Postconviction: Pleadings: Proof: Constitutional Law. In a proceed-
    ing under the Nebraska Postconviction Act, the application is required
    to allege facts which, if proved, constitute a violation or infringement
    of constitutional rights, and the pleading of mere conclusions of fact
    or of law is not sufficient to require the court to grant an eviden-
    tiary hearing.
    6.	 Postconviction: Proof: Constitutional Law. A postconviction eviden-
    tiary hearing must be granted when the facts alleged, if proved, would
    justify relief, or when a factual dispute arises as to whether a constitu-
    tional right is being denied.
    7.	 Postconviction: Effectiveness of Counsel: Appeal and Error. When a
    defendant was represented both at trial and on direct appeal by the same
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    counsel, the defendant’s first opportunity to assert ineffective assistance
    of counsel is in a motion for postconviction relief.
    8.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must show that
    his or her counsel’s performance was deficient and that this deficient
    per­formance actually prejudiced the defendant’s defense. A court may
    address the two prongs of this test, deficient performance and prejudice,
    in either order.
    9.	 Postconviction: Effectiveness of Counsel: Proof. In order to establish
    a right to postconviction relief based on a claim of ineffective assistance
    of counsel, the defendant has the burden first to show that counsel’s per-
    formance was deficient; that is, counsel’s performance did not equal that
    of a lawyer with ordinary training and skill in criminal law in the area.
    10.	 Effectiveness of Counsel: Presumptions. In determining whether trial
    counsel’s performance was deficient, courts give counsel’s acts a strong
    presumption of reasonableness.
    11.	 Trial: Effectiveness of Counsel: Appeal and Error. An appellate court
    will not judge an ineffectiveness of counsel claim in hindsight.
    12.	 ____: ____: ____. An appellate court must assess trial counsel’s perform­
    ance from counsel’s perspective when counsel provided the assistance.
    13.	 ____: ____: ____. When reviewing claims of ineffective assistance, an
    appellate court will not second-guess trial counsel’s reasonable strategic
    decisions.
    14.	 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. 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.
    15.	 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.
    Appeal from the District Court for Douglas County: J
    Russell Derr, Judge. Affirmed.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
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    STATE v. HENDERSON
    Cite as 
    301 Neb. 633
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Welch, Judge.
    Papik, J.
    Tillman T. Henderson was convicted of first degree murder,
    attempted first degree murder, and related firearms offenses.
    We affirmed his convictions on direct appeal. See State v.
    Henderson, 
    289 Neb. 271
    , 
    854 N.W.2d 616
     (2014). Henderson
    now appeals the order of the district court for Douglas County
    that denied his motion for postconviction relief without an
    evidentiary hearing. He alleges various claims of ineffective
    assistance of trial and appellate counsel. Finding that the dis-
    trict court did not err by denying Henderson’s postconviction
    claims without an evidentiary hearing, we affirm.
    I. BACKGROUND
    1. Trial
    A detailed recitation of the evidence at trial can be found in
    our opinion on direct appeal. See State v. Henderson, 
    supra.
    In summary, Henderson was charged in connection with
    the shooting death of Matthew Voss and the nonfatal shoot-
    ing of Antonio Washington. Evidence at Henderson’s jury trial
    showed that in the early morning hours of February 18, 2012,
    Voss and Antonio Washington both sustained gunshot wounds
    after a fight broke out at an after-hours party in downtown
    Omaha, Nebraska. Witnesses reported seeing two men fir-
    ing guns. After a person at the scene identified Henderson to
    a police officer as one of the shooters, police apprehended
    Henderson as he was running from the scene of the incident.
    Henderson was in possession of one gun when he was arrested,
    and a police officer saw him throw another gun under a vehicle
    as the officer was chasing him. Forensic evidence presented at
    trial tied bullets and casings found at the scene of the shootings
    to those guns. DNA testing indicated that blood found on cloth-
    ing worn by Henderson had come from Voss.
    The jury found Henderson guilty of first degree murder,
    attempted first degree murder, two counts of use of a deadly
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    weapon to commit a felony, and possession of a deadly weapon
    by a prohibited person.
    2. Direct A ppeal
    Represented by the same counsel that represented him
    at trial, Henderson appealed his convictions. See State v.
    Henderson, 
    supra.
     He made numerous assignments of error
    pertaining to pretrial and trial rulings. This court affirmed
    Henderson’s convictions and sentences. The U.S. Supreme
    Court denied Henderson’s petition for certiorari. See Henderson
    v. Nebraska, ___ U.S. ___, 
    135 S. Ct. 2845
    , 
    192 L. Ed. 2d 881
    (2015).
    3. Postconviction Proceedings
    Following direct appeal, Henderson filed an application for
    postconviction relief. He alleged various instances of inef-
    fective assistance of trial and appellate counsel. In response,
    the State filed a motion to dismiss. The district court denied
    postconviction relief without an evidentiary hearing. It deter-
    mined that Henderson had failed to show either that he had
    received deficient representation or that he had suffered preju-
    dice. Henderson now appeals that order.
    II. ASSIGNMENTS OF ERROR
    Henderson assigns, rephrased and summarized, that the dis-
    trict court erred in denying him an evidentiary hearing on
    his application for postconviction relief, which alleged vari-
    ous instances of ineffective assistance of counsel at trial and
    on appeal.
    III. STANDARD 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.
    Torres, 
    300 Neb. 694
    , 
    915 N.W.2d 596
     (2018).
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    STATE v. HENDERSON
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    301 Neb. 633
    IV. ANALYSIS
    [2,3] Before turning to Henderson’s specific arguments on
    appeal, we review the general principles governing postcon-
    viction actions asserting claims of ineffective assistance of
    counsel. Postconviction relief is a very narrow category of
    relief, available only to remedy prejudicial constitutional vio-
    lations that render the judgment void or voidable. State v.
    Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
     (2018). On appeal from
    the denial of postconviction relief without an evidentiary hear-
    ing, the question is not whether the movant was entitled to
    relief by having made the requisite showing. Instead, it must
    be determined whether the allegations were sufficient to grant
    an evidentiary hearing. 
    Id.
    [4-6] The allegations in a motion for postconviction relief
    must be sufficiently specific for the district court to make
    a preliminary determination as to whether an evidentiary
    hearing is justified. 
    Id.
     In a proceeding under the Nebraska
    Postconviction Act, the application is required to allege facts
    which, if proved, constitute a violation or infringement of
    constitutional rights, and the pleading of mere conclusions of
    fact or of law is not sufficient to require the court to grant an
    evidentiary hearing. 
    Id.
     An evidentiary hearing must be granted
    when the facts alleged, if proved, would justify relief, or when
    a factual dispute arises as to whether a constitutional right is
    being denied. 
    Id.
    [7,8] Here, Henderson bases his claim to postconviction
    relief on ineffective assistance of trial and appellate counsel.
    When, as here, a defendant was represented both at trial and
    on direct appeal by the same counsel, the defendant’s first
    opportunity to assert ineffective assistance of counsel is in a
    motion for postconviction relief. State v. Ely, 
    295 Neb. 607
    ,
    
    889 N.W.2d 377
     (2017). To prevail on a claim of ineffec-
    tive assistance of counsel under Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the
    defendant must show that his or her counsel’s performance
    was deficient and that this deficient performance actually
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    prejudiced the defendant’s defense. State v. Newman, 
    300 Neb. 770
    , 
    916 N.W.2d 393
     (2018). A court may address the two
    prongs of this test, deficient performance and prejudice, in
    either order. State v. Schwaderer, 
    296 Neb. 932
    , 
    898 N.W.2d 318
     (2017).
    [9-13] In order to establish a right to postconviction relief
    based on a claim of ineffective assistance of counsel, the
    defendant has the burden first to show that counsel’s perform­
    ance was deficient; that is, counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in crim-
    inal law in the area. State v. Haynes, 
    supra.
     In determining
    whether trial counsel’s performance was deficient, courts give
    counsel’s acts a strong presumption of reasonableness. State v.
    Alfredson, 
    287 Neb. 477
    , 
    842 N.W.2d 815
     (2014). An appel-
    late court will not judge an ineffectiveness of counsel claim
    in hindsight. State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
     (2011). We must assess trial counsel’s performance from
    counsel’s perspective when counsel provided the assistance.
    
    Id.
     When reviewing claims of ineffective assistance, we will
    not second-guess trial counsel’s reasonable strategic deci-
    sions. 
    Id.
    [14] Next, the defendant must show that counsel’s deficient
    performance prejudiced the defense in his or her case. State v.
    Haynes, 
    supra.
     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
    performance, the result of the proceeding would have been
    different. See State v. Schwaderer, 
    supra.
     A reasonable prob-
    ability 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. State v. Custer, 
    298 Neb. 279
    , 
    903 N.W.2d 911
     (2017).
    With these principles in mind, we turn to Henderson’s
    arguments.
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    STATE v. HENDERSON
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    301 Neb. 633
    1. A lleged Failure to Call
    Other Witnesses
    In his motion for postconviction relief, Henderson asserted
    that trial counsel was ineffective in failing to interview, depose,
    and call three additional witnesses to testify. He now contends
    that the district court erred in denying him an evidentiary
    hearing concerning these claims. For reasons explained below,
    we disagree.
    (a) Timothy Washington
    First, Henderson claims his trial counsel should have called
    Timothy Washington. Henderson argues that had Timothy
    Washington been called to testify, he would have rebutted the
    testimony of a witness called by the State, Vasili Petrihos. At
    trial, Petrihos testified that a young black man, who was later
    apprehended and identified as Henderson, was “tensed up and
    all hyped up,” “huffing and puffing,” and “getting aggravated”
    and appeared “ready to fight” near the shooting site immedi-
    ately prior to the shooting.
    In his motion for postconviction relief, however, Henderson
    did not reference Petrihos or his testimony. Henderson asserted
    only that Timothy Washington was willing to testify about
    Henderson’s “demeanor and the direction . . . Henderson had
    been headed . . . minutes before the shooting” and that such tes-
    timony could have impeached the testimony of other unspeci-
    fied witnesses as to Henderson’s whereabouts, demeanor, and
    actions in the minutes before the shooting. The motion did not
    explain what Timothy Washington would have testified regard-
    ing Henderson’s location, demeanor, or direction.
    The lack of explanation as to what Timothy Washington
    would have testified is relevant because 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. See State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
     (2014). Absent specific allegations,
    a motion for postconviction relief is subject to dismissal
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    without an evidentiary hearing. See 
    id.
     Because Henderson’s
    motion did not describe Timothy Washington’s alleged testi-
    mony with sufficient specificity, an evidentiary hearing was
    not warranted.
    (b) Deonta Marion
    Next, Henderson asserts that he is entitled to postconviction
    relief because his trial counsel failed to call Deonta Marion.
    Henderson alleged in his motion for postconviction relief that
    Marion gave a statement to police regarding the shooting.
    Henderson attached a document to his motion that appears
    to be a police report documenting that statement. The report
    stated that Marion described one shooter as wearing a “‘white
    or a light-colored short-sleeve shirt’” and the other as wearing
    “‘dark clothing.’” Later in the report, the author noted that
    Marion had initially provided a false name to law enforce-
    ment. Henderson argues that had Marion been called, his testi-
    mony regarding the shooters’ clothing would have undercut the
    State’s theory that Henderson was one of the shooters because
    Henderson was wearing a tan “Carhartt” jacket when he was
    apprehended. Brief for appellant at 24.
    We recently addressed two related cases in which defend­
    ants contended that trial counsel failed to call witnesses
    who would have identified the perpetrators of crimes as
    having different characteristics than the defendants charged
    with those crimes. In State v. Newman, 
    300 Neb. 770
    , 
    916 N.W.2d 393
     (2018), and State v. Stricklin, 
    300 Neb. 794
    , 
    916 N.W.2d 413
     (2018), the codefendants, who were both African
    American, contended that their counsel deficiently failed to
    call witnesses. They claimed the witnesses would have tes-
    tified that the perpetrators were unnamed “‘Mexicans’” or
    “‘Latino’s.’” State v. Newman, 
    300 Neb. at 782
    , 916 N.W.2d
    at 406. Accord State v. Stricklin, 
    supra.
     We concluded that
    these allegations did not show a reasonable likelihood that,
    absent the alleged deficiency, the outcome at trial would have
    been different.
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    In so finding, we applied the approach that the U.S. Supreme
    Court set forth in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), to analyze prejudice:
    “In making [the prejudice] determination, a court
    hearing an ineffectiveness claim must consider the total-
    ity of the evidence before the judge or jury. Some of the
    factual findings will have been unaffected by the errors,
    and factual findings that were affected will have been
    affected in different ways. Some errors will have had
    a pervasive effect on the inferences to be drawn from
    the evidence, altering the entire evidentiary picture, and
    some will have had an isolated, trivial effect. Moreover,
    a verdict or conclusion only weakly supported by the
    record is more likely to have been affected by errors
    than one with overwhelming record support. Taking the
    unaffected findings as a given, and taking due account
    of the effect of the errors on the remaining findings,
    a court making the prejudice inquiry must ask if the
    defendant has met the burden of showing that the deci-
    sion reached would reasonably likely have been different
    absent the errors.”
    State v. Newman, 
    300 Neb. at 782-83
    , 916 N.W.2d at 407,
    quoting Strickland v. Washington, 
    supra.
     See, also, State v.
    Stricklin, 
    supra.
     In both cases, we concluded that in the con-
    text of all the evidence adduced at trial, the omitted testimony
    “would not have altered the evidentiary picture and would, at
    best, have had an isolated or trivial effect on the jury’s find-
    ings.” See State v. Newman, 
    300 Neb. at 783
    , 916 N.W.2d at
    407. Accord State v. Stricklin, 
    supra.
    Similarly, here, there is overwhelming evidentiary support
    for the jury’s verdict, which we summarized on direct appeal:
    Henderson was apprehended by police as he was run-
    ning from the scene of the incident. A person who was
    at the scene had identified 	      Henderson to a police
    officer as one of the shooters. The other suspect was not
    apprehended. One gun was found on Henderson’s person
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    when he was arrested, and a police officer saw Henderson
    throw another gun under a vehicle as the officer was chas-
    ing him.
    Forensic evidence presented at trial indicated that bul-
    lets and casings found at the scene of the shootings had
    been fired from the gun found on Henderson and from the
    gun he was seen throwing under a vehicle. A fingerprint
    on the gun found under the vehicle matched Henderson’s.
    In addition, DNA testing of blood found on the clothing
    worn by Henderson at the time of his arrest indicated that
    the blood had come from Voss.
    The State maintained at trial that Henderson shot Voss
    and [Antonio] Washington to retaliate for an assault on
    Henderson’s friend, Jimmy Levering. Levering and Voss
    had both been inmates at a prison in Florida, and Voss had
    allegedly stabbed and punched Levering.
    State v. Henderson, 
    289 Neb. 271
    , 274-75, 
    854 N.W.2d 616
    ,
    624 (2014). In addition to the evidence quoted above, text
    messages obtained from a cell phone found on Henderson’s
    person indicated that the two people exchanging the messages
    around the time of the shooting were attempting to meet one
    another outside the party where the shooting occurred and that
    the individual who stabbed “‘Jb’” was there. 
    Id. at 277
    , 854
    N.W.2d at 625. The background of the cell phone’s screen was
    a picture of Jimmy Levering.
    When we weigh the effect of counsel’s allegedly deficient
    failure to call Marion against the remaining evidence, we
    conclude that there is not a reasonable likelihood the outcome
    would have been different had Marion testified. Henderson’s
    presence at the scene, his possession of the weapons used
    in the shooting, the blood matching the DNA profile of one
    of the victims on his clothing, and the evidence of his pre-
    meditative intent to retaliate against someone he believed to
    be present at the scene are highly suggestive of his guilt. To
    reach a different conclusion, the jury would have to find that
    just after Henderson had received a text message that someone
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    who had stabbed his acquaintance was at a party in downtown
    Omaha, Henderson went to such a party where someone else
    shot a person who had assaulted Henderson’s friend Levering
    in prison when Henderson happened to be sufficiently nearby
    to get blood matching the DNA profile of the victim on his
    clothes, and that Henderson somehow took possession of both
    guns used in the crime and fled the scene with them. We find
    the likelihood of the jury’s reaching such a conclusion to be
    exceedingly low.
    Our prejudice analysis is also informed by the fact that
    Henderson relied on another account of the shooters’ attire at
    trial but was unable to convince the jury of his innocence. The
    evidence showed that Henderson was apprehended wearing a
    tan Carhartt jacket that had a hood. However, an eyewitness,
    Charles Bird, testified that one shooter wore a light-colored
    or gray “hoodie” and the other wore a dark-colored hoodie.
    Henderson’s counsel highlighted Bird’s testimony during clos-
    ing arguments, noting that the witness did not describe a tan
    jacket like Henderson wore that night. Even so, the jury found
    Henderson guilty.
    The State points to Henderson’s reliance on Bird’s testimony
    and contends that it shows that Marion’s testimony would not
    have made a difference. In this case, we agree. We can envision
    a circumstance in which testimony of a purported eyewitness
    that the perpetrator of a crime lacked certain characteristics of
    the defendant might corroborate similar testimony of another
    purported eyewitness and thus meaningfully assist the defense.
    However, for multiple reasons, we do not believe Marion’s
    testimony would have had that effect here. First, it is not clear
    that Marion’s testimony would have corroborated Bird’s: Bird
    identified the shooters as wearing hoodies, and Marion identi-
    fied one of the shooters as wearing a short-sleeved shirt. And
    even if the chance that Marion’s testimony would undercut
    rather than corroborate Bird’s is set to the side, the testimony
    would not necessarily have been exculpatory, because there was
    evidence that Henderson was wearing a white short-sleeved
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    shirt under his jacket. Finally, there is still the overwhelm-
    ing evidence of Henderson’s guilt set forth above. Given the
    nature of this evidence, we are convinced that the jury would
    have reacted to the testimony Henderson claims Marion would
    have given the same way it did to the testimony of Bird, which
    Henderson relied on at trial.
    Because Marion’s testimony would not have meaningfully
    altered the evidentiary picture and any impact on the jury’s
    findings would have been isolated and trivial, we hold that the
    district court did not err in denying this claim of ineffective
    assistance of counsel without an evidentiary hearing.
    (c) Jermaine Westbrook
    Finally, Henderson contends he should have received an evi-
    dentiary hearing on his claim that his counsel was ineffective
    for failing to call Jermaine Westbrook to testify. In his motion
    for postconviction relief, Henderson alleged that Westbrook
    called the 911 emergency dispatch service regarding a sport
    utility vehicle (SUV) following the shooting. The record does
    not contain a recording or transcript of Westbrook’s 911 call,
    but Henderson attached a police report to his application for
    postconviction relief that summarized the call:
    WESTBROOK . . . stated to [the] 911 operator that
    he is following the car that the shooter was in. . . .
    WESTBROOK stated the party inside this white SUV is
    the “accessory to the shooting”. . . . WESTBROOK stated
    [that] after he saw the guys do the shooting, they went
    right on 16th and Harney. He stated that one of the shoot-
    ers (masculine) shot the guy in broad (unaudible). 911
    asked WESTBROOK if he knew who the shooters or the
    people in the vehicle were, to which the caller responded
    no. WESTBROOK further described one of the shoot-
    ers as having a brown Carhart [sic] jacket on. He further
    stated that this suspect in the brown Carhart [sic] jacket
    was a black male, approximately five foot five, and short,
    and approximately 20-21 years old. . . . WESTBROOK
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    stated he lost sight of the taillights of the white SUV
    which the possible suspects were in.
    Henderson contends that if Westbrook had been called to
    relay the substance of his 911 call, the testimony would have
    absolved Henderson because he fled the scene not in an
    SUV, but on foot. Henderson’s motion alleges that Westbrook
    could have provided information about the departure from
    the scene of “at least one of the shooters.” But the police
    report indicates that Westbrook claimed to be following the
    car that the “shooter,” singular, was in. Henderson’s motion
    and the attached exhibit do not explain how Westbrook could
    have provided information about the departure of more than
    one shooter. The lack of any such explanation is significant.
    Testimony by Westbrook that one unidentified shooter fled
    in an SUV would not have benefited Henderson. Evidence at
    trial established that there were two shooters. Evidence that
    the other suspect fled in an SUV would not have disproved the
    claim that Henderson shot Voss and Antonio Washington and
    then fled on foot.
    As we have already stated, to establish the prejudice prong
    of a claim of ineffective assistance of counsel, the defendant
    must demonstrate a reasonable probability that but for coun-
    sel’s deficient performance, the result of the proceeding would
    have been different. See State v. Schwaderer, 
    296 Neb. 932
    ,
    
    898 N.W.2d 318
     (2017). In assessing postconviction claims
    that trial counsel was ineffective in failing to call a particu-
    lar witness, we have upheld dismissal without an evidentiary
    hearing where the motion did not include specific allegations
    regarding the testimony which the witness would have given
    if called. See, State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 890
     (2015); State v. Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
    (2015). And we have held that without such specific allega-
    tions, an application for postconviction relief has not alleged
    sufficient facts to establish a reasonable probability that the
    outcome of trial would have been different if trial counsel had
    called those witnesses. See State v. Marks, 
    286 Neb. 166
    , 835
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    N.W.2d 656 (2013). Here, Henderson’s motion for postconvic-
    tion relief does not contain the level of specificity needed to
    demonstrate that the outcome would have been different had
    Westbrook testified.
    Even if it is assumed Westbrook would have testified to a
    belief that he was following an SUV in which both shooters
    were riding, we do not believe there is a reasonable probabil-
    ity that such testimony would have affected the outcome. In
    addition to the overwhelming evidence of Henderson’s guilt
    recounted above, had Westbrook been called to testify, the
    State would assuredly have elicited from Westbrook another
    item contained in the police report summarizing Westbrook’s
    911 call—that Westbrook identified one shooter as a “black
    male” wearing a “brown Carhart [sic] jacket” and match-
    ing Henderson’s physical description. We are confident that
    the jury would not have concluded that both shooters were
    in an SUV driving away from the scene when Westbrook’s
    description of one of the shooters matched the clothing and
    physical characteristics of Henderson, who was running away
    from the scene of the shooting carrying both guns used and
    who was identified to police as the shooter. We find no error
    in the district court’s denial of this claim without an eviden-
    tiary hearing.
    2. A lleged Failure to Move for
    Gunshot R esidue Testing
    Henderson also claims that his trial counsel provided inef-
    fective assistance by failing to move for gunshot residue test-
    ing of other individuals at the scene of the shooting, including
    the victims. Henderson argues the district court’s rejection of
    this claim without granting an evidentiary hearing was errone-
    ous. Again, we disagree.
    Henderson contends that gunshot residue swabs were taken
    from Voss, Antonio Washington, and two other individuals
    who were present at the scene. Henderson asserts that these
    swabs were never submitted for testing and that such testing
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    “could have implicated other suspects in the shooting” or
    provided him with “alternative theories of defense.” Evidence
    introduced at trial, however, demonstrated that gunshot residue
    testing would not have made a difference. An officer involved
    in the investigation testified that a finding of gunshot residue
    on a person does not definitively show that the person had
    fired a gun, because a person can also come into contact with
    gunshot residue by being in the vicinity of gunfire. Because the
    individuals from whom gunshot residue swabs were obtained
    either were victims or were known to be at the scene, a finding
    of gunshot residue on them would not have implicated them or
    exculpated Henderson. In light of this testimony, the correct-
    ness of which Henderson does not dispute, Henderson’s coun-
    sel could not have acted deficiently by not seeking gunshot
    residue testing and Henderson suffered no prejudice.
    3. A lleged Failure to Move for
    and Compel DNA Testing
    Henderson argues that he received ineffective assistance
    when his trial counsel failed to move for DNA testing on a
    sample taken from Jeremy Terrell.
    As previously mentioned, shortly before the shooting, text
    messages were sent from the cell phone found on Henderson’s
    person. Those messages were responses to text messages from
    a telephone number assigned to Terrell, also referred to as
    “Jay Town.” The correspondence indicated that “Jay Town”
    and the recipient were attempting to meet one another outside
    the after-hours party where the shooting occurred and that the
    individual who stabbed “Jb” was there. Terrell was not appre-
    hended at the scene of the shootings. Police later attempted
    to interview him, but he refused to provide any information.
    Police obtained a DNA sample from Terrell, but the sample
    was not tested.
    Law enforcement conducted DNA testing on samples taken
    only from Henderson and Voss. That testing led to the con-
    clusion that blood found on Henderson’s shirt and shoes had
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    come from Voss. It also showed a mixture of DNA from at
    least three people on the grip of one of the guns recovered
    upon Henderson’s arrest, but testing could not show the iden-
    tities of those sources with any degree of certainty. A DNA
    analyst explained that because of the mixture, many people
    could be indicated and the probability that a random indi-
    vidual matched a DNA profile found in the mixture was 1 in
    3 for Caucasians, 1 in 2 for African Americans, and 1 in 4 for
    Hispanic Americans. The DNA analyst testified that conse-
    quently, test results comparing the mixture to Henderson’s and
    Voss’ DNA were inconclusive, meaning that she could not be
    certain whether either man’s DNA was present or not present
    on the gun grip.
    In his application for postconviction relief, Henderson ref-
    erenced the mixture of DNA from at least three people and
    alleged that testing Terrell’s sample “may have” exculpated
    Henderson on its own or led to a more thorough investigation
    that “could have” revealed more evidence pointing to “the
    actual shooters.” Even if we were to consider Henderson’s
    allegation sufficiently specific, he has failed to show ineffec-
    tive assistance of counsel. The DNA analyst’s testimony sug-
    gests that even if Terrell’s DNA sample had been tested and
    compared to the DNA mixture on the gun grip, the result would
    have been inconclusive, and Henderson makes no allegation
    that the DNA analyst’s testimony was incorrect. Therefore,
    Henderson’s motion failed to show a reasonable probability
    that DNA testing would have resulted in a different outcome at
    trial. In the absence of any prejudice to Henderson, then, the
    district court did not err in denying Henderson an evidentiary
    hearing concerning DNA testing.
    4. A llegedly Ineffective R esponse to
    Evidence of Gang A ffiliation
    Henderson also asserts that his trial counsel ineffectively
    responded to evidence at trial concerning gang affiliation.
    Henderson contends that his trial counsel (1) should have taken
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    various measures after a police officer testified that Levering
    was “kind of an infamous gang member” and (2) should have
    objected to the admission of pictures of Levering in which
    Henderson claims Levering is making gang-related hand ges-
    tures as unfairly prejudicial. Again, we find no error with the
    district court’s disposition of this claim.
    (a) Statement Regarding Levering
    The reference to Levering’s being “kind of an infamous gang
    member” came about when Det. Nick Herfordt was testifying
    regarding the contents of the cell phone found on Henderson
    when he was arrested. Herfordt identified a background picture
    on the cell phone as a photograph of Levering, and when asked
    how he knew that, he answered, “I worked Northeast Omaha
    when I was in uniform, and . . . Levering, I guess, was kind of
    an infamous gang member . . . .”
    Henderson immediately moved for a mistrial, noting that
    the State had agreed in connection with Henderson’s pretrial
    motion in limine that it would not introduce evidence regarding
    gang affiliations. The trial court denied the motion. The trial
    court later asked Henderson’s counsel whether he was moving
    to strike Herfordt’s answer, and Henderson’s counsel stated he
    was not.
    Henderson now argues his trial counsel should have done
    more to respond to Herfordt’s statement. Henderson details var-
    ious measures he contends trial counsel should have employed,
    including further pressing the motion for a mistrial, asking that
    the testimony be stricken, or requesting an admonition or limit-
    ing instruction.
    On direct appeal, however, we rejected Henderson’s conten-
    tion that he was prejudiced by the trial court’s denial of his
    motion for a mistrial. In doing so, we observed that Herfordt’s
    gang reference “was an isolated comment” and that the State
    did not present any other evidence of gang affiliation on the
    part of Henderson or anyone else. State v. Henderson, 
    289 Neb. 271
    , 299, 
    854 N.W.2d 616
    , 639 (2014). These same facts
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    lead us to conclude that Henderson could not show that he
    was prejudiced by his counsel’s failure to take additional steps
    concerning the comment.
    (b) Pictures of Levering
    Henderson also contends his trial counsel was deficient
    for not objecting to the admission of pictures of Levering as
    unfairly prejudicial. According to Henderson, Levering is mak-
    ing gang-related hand gestures in the pictures. However, there
    was no testimony that Levering’s hand gestures were gang
    related. Furthermore, on direct appeal, we did not consider the
    photograph itself to be evidence of gang affiliation; we deter-
    mined that other than the “‘infamous gang member’” reference,
    “the State did not present . . . evidence of gang affiliations.” Id.
    at 298, 299, 854 N.W.2d at 638, 639. Having already decided
    that the photograph of Levering does not constitute evidence of
    gang affiliation, we will not revisit the issue on postconviction
    review. See State v. Thorpe, 
    290 Neb. 149
    , 156, 
    858 N.W.2d 880
    , 887 (2015) (“[a] motion for postconviction relief cannot be
    used to secure review of issues which were or could have been
    litigated on direct appeal, no matter how those issues may be
    phrased or rephrased”).
    5. A llegedly Ineffective R esponse
    to Text M essage Evidence
    Henderson alleges several instances of ineffective assistance
    of counsel relating to a series of text messages admitted at trial.
    The text messages were from a cell phone found on Henderson
    at the time of his arrest. Henderson’s counsel moved unsuccess-
    fully to suppress the messages and also attempted to exclude
    evidence from the cell phone via a motion in limine and objec-
    tions at trial.
    On direct appeal, Henderson assigned that the trial court
    erred in overruling his second motion to suppress evidence
    obtained from his cell phone and admitting that evidence,
    including text messages and pictures. This court concluded that
    the district court had not erred when it overruled the motion
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    to suppress or when it admitted evidence obtained from the
    search over Henderson’s Fourth Amendment objections. We
    also concluded that the district court did not err in admitting
    the cell phone evidence over Henderson’s objections based on
    hearsay and lack of foundation establishing a chain of custody.
    Henderson now claims his counsel was ineffective for not tak-
    ing various other steps in response to the text messages. We
    disagree as we explain in the sections below.
    (a) Authentication of Text Messages
    First, Henderson contends his counsel was ineffective for not
    objecting to a lack of “authentication that . . . Henderson was
    the one receiving or sending those text messages.” According
    to Henderson, the State would have been unable to oppose
    an authentication objection by proving that Henderson was
    involved in the text messages.
    The State’s burden of authentication for text messages is
    relatively low. The proponent of text messages is not required
    to conclusively prove who authored the messages and can
    establish foundation through the context of the messages and
    testimony that the number belonged to or was regularly uti-
    lized by the alleged sender. See State v. Henry, 
    292 Neb. 834
    ,
    
    875 N.W.2d 374
     (2016). Although Henderson asserts that the
    State would not have been able to do so had he objected, he
    alleges no facts to support this assertion. As pleadings of mere
    conclusions of fact or law are not sufficient to require the
    court to grant an evidentiary hearing, we find that the district
    court did not err in denying this claim without an evidentiary
    hearing. See State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
     (2018).
    (b) Limiting Instruction
    At trial, Henderson’s counsel proposed the following instruc-
    tion regarding the text messages:
    During this trial the Court admitted some evidence that
    was received for a specific limited purpose. Specifically,
    the incoming text messages received into evidence from
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    the cell phone of [Henderson were] offered to show
    [Henderson’s] state of mind. The content of the text mes-
    sages was not received for the purpose of showing the
    truth of the matter asserted in the incoming text messages.
    You may consider the evidence only for the limited pur-
    pose for which it was received and for no other purpose.
    The trial court declined to give this instruction. On direct
    appeal, we determined that the text messages were admitted
    not for the truth of the statements contained therein but instead
    for the purpose of showing their effect on Henderson and were
    thus not hearsay. We did not address the limiting instruction
    because Henderson’s appellate counsel did not properly raise
    the issue on direct appeal. Henderson alleged in his post-
    conviction motion that his appellate counsel was deficient in
    failing to do so and now alleges on appeal that the district
    court erred in denying him an evidentiary hearing to address
    the issue.
    We conclude that Henderson was not entitled to an eviden-
    tiary hearing on this matter. Even if Henderson’s appellate
    counsel had raised the limiting instruction on appeal, it would
    not have been grounds for a reversal of his convictions. We
    perceive little danger that the jury improperly deliberated
    by considering the text messages for the truth of the mat-
    ter asserted. The facts asserted in the messages were that an
    individual had stabbed “Jb” and that the individual was in the
    same area as the author of the text messages. Whether those
    facts were true was immaterial. Regardless of whether “Jb”
    had actually been stabbed, whether the suspected individual
    had done it, or whether that person was in the area described,
    the text messages would have suggested that Henderson went
    to the area of the shootings with the intent of retaliating
    against the individual who he believed stabbed his acquaint­
    ance. And this was the nonhearsay purpose for which they
    were admitted. No limiting instruction was necessary to pre-
    vent the jury from considering the truth of the statements in
    the text messages.
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    (c) Brief Supporting Second
    Motion to Suppress
    In his application for postconviction relief, Henderson
    asserted that his trial counsel was ineffective in failing to prop-
    erly brief the trial court concerning the text messages before a
    suppression hearing on the second search warrant. Based on a
    few words uttered by his trial counsel at a hearing on the mat-
    ter, he contended that his trial counsel’s brief only addressed
    the second search warrant’s validity, not the suppression of evi-
    dence. But the record affirmatively refutes this claim. Both the
    second motion to suppress and the brief supporting it sought
    to suppress evidence obtained as a result of the second search
    warrant, and Henderson’s counsel affirmed this objective later
    at the same hearing. In addition, we considered Henderson’s
    motions to suppress on direct appeal and ultimately determined
    that the trial court did not err in overruling them. This allega-
    tion is refuted by the record.
    (d) Timing of Search
    Henderson asserts that the district court should have granted
    him an evidentiary hearing concerning contents from the cell
    phone that he believes police may have accessed before obtain-
    ing a search warrant. He refers to two allegations of ineffective
    assistance of counsel from his motion for postconviction relief:
    (1) that his trial counsel failed to mount a Fourth Amendment
    challenge to the Omaha Police Department’s search to obtain
    the telephone number from the cell phone before securing
    a search warrant and (2) that his trial and appellate coun-
    sel failed to pursue Fourth Amendment objections to the
    download of data from the cell phone that “potentially could
    have occurred” before police obtained a search warrant. But
    Henderson did not show ineffective assistance of counsel in
    either regard.
    As to obtaining the telephone number from the cell phone,
    Henderson can show no prejudice. The record shows that
    police obtained the telephone number prior to applying for
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    any search warrant and that the telephone number was not
    necessary for that application. But no evidence at trial uti-
    lized the telephone number to demonstrate that the cell phone
    belonged to Henderson; nor was the telephone number used to
    obtain other evidence through telephone records. The key evi-
    dence from the cell phone—photographs of Levering and the
    “J Town” text messages—was downloaded from the cell phone
    itself. Based on the record, we cannot discern how Henderson
    could have suffered prejudice when his counsel did not argue
    that the telephone number was prematurely obtained.
    Henderson’s claim that data was downloaded from the cell
    phone before police obtained the search warrant also fails,
    because the record refutes it. Henderson relies on testimony
    by the officer who applied for the search warrant that he was
    uncertain whether information was downloaded on the day the
    search warrant was obtained. According to Henderson, this
    suggests the possibility that the download occurred before
    police secured the search warrant and that his counsel was
    ineffective in not pursuing the issue. However, the record
    demonstrates no such possibility. The same officer testified
    that police waited until after obtaining the first search war-
    rant to download data and that the second search warrant was
    executed in the same manner. Because the record refutes this
    claim, Henderson cannot demonstrate ineffective assistance of
    trial or appellate counsel.
    6. A llegedly Ineffective R esponse to
    Testimony of R amone Narvaez
    Next, Henderson asserts that he received ineffective assist­
    ance both at trial and on appeal concerning his counsel’s
    response to testimony of Ramone Narvaez. Narvaez, a cor-
    rectional officer from a federal penitentiary in Florida, testified
    that in 2009, he witnessed an altercation between Levering and
    an inmate named “Voss.” As noted above, the State contended
    that Henderson shot Voss and Antonio Washington to retali-
    ate for an assault on Henderson’s friend, Levering. Henderson
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    argues his trial counsel provided ineffective assistance by fail-
    ing to object to the Narvaez testimony on relevance grounds
    until after it was complete and that his appellate counsel pro-
    vided ineffective assistance by failing to contend the testimony
    was irrelevant on appeal.
    Henderson cannot establish that he received ineffec-
    tive assistance of counsel regarding the Narvaez testimony.
    Contrary to Henderson’s assertion, the relevance and allegedly
    prejudicial nature of the Narvaez testimony was addressed on
    direct appeal. We specifically stated that the testimony was
    “relevant to the State’s case and was not unfairly prejudicial.”
    State v. Henderson, 
    289 Neb. 271
    , 301, 
    854 N.W.2d 616
    , 640
    (2014). Because we have already rejected the evidentiary
    objections that Henderson contends his counsel should have
    raised, the record refutes Henderson’s claim that his appel-
    late counsel failed to raise the issue of relevance on appeal,
    and we need not revisit whether his trial counsel was ineffec-
    tive in not objecting on relevance grounds during Narvaez’
    testimony. See State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
     (2015).
    7. A lleged Failure to R equest Lesser-Included
    Offense Instruction
    Henderson was charged and convicted of the attempted
    first degree murder of Antonio Washington. He claims his
    trial counsel was ineffective in not requesting lesser-included
    offense instructions on that charge. But, in fact, the trial
    court did instruct the jury on the elements of second degree
    murder and informed the jury that it could find Henderson
    guilty of first degree murder or second degree murder or
    find him not guilty. Furthermore, Henderson did not iden-
    tify any other lesser-included offenses in his postconviction
    motion or explain why the result of the proceeding would have
    been different had the jury been instructed on those offenses.
    Because Henderson’s allegations were not sufficiently specific
    for the district court to make a determination as to whether an
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    evidentiary hearing was required, the district court did not err
    in denying Henderson’s claim without an evidentiary hearing.
    See State v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
     (2018).
    8. A lleged Failure to Object
    to Pictures of Coat
    Photographs of a coat were received at trial without objec-
    tion. Testimony at trial established that the coat in the pho-
    tographs was the Carhartt jacket worn by Henderson when
    police apprehended him. The detective who identified the
    photographs testified without objection that the coat had blood
    on it. DNA testing was not performed on this blood, but as
    noted above, DNA testing showed that Voss’ blood was on
    Henderson’s shirt and shoes.
    Henderson asserts his counsel was deficient in failing to
    make authentication or prejudice objections to the admission
    of photographs of the coat. He noted that no evidence was pre-
    sented that the blood on the coat was ever tested and matched
    to either victim. Henderson claimed that allowing the jury to
    see photographs of “an untested and supposedly blood-stained
    article of clothing” denied him a fair trial.
    We fail to see how testimony that there was blood on
    Henderson’s jacket prejudiced Henderson’s defense. Henderson
    conceded that he was at the scene of the shootings. In addition,
    Voss’ blood was found on Henderson’s shirt and shoes. Given
    evidence that Henderson was not only present at the scene but
    also sufficiently close to Voss to get Voss’ blood on his cloth-
    ing, we do not believe additional testimony suggesting there
    was blood on his coat “altered the evidentiary picture.” See
    State v. Newman, 
    300 Neb. 770
    , 783, 
    916 N.W.2d 393
    , 407
    (2018). Accordingly, the district court did not err by denying
    this claim without an evidentiary hearing.
    9. A lleged Failure to Investigate
    Witness Tampering
    Henderson also claims that he received ineffective assist­
    ance because his trial counsel did not pursue claims of witness
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    tampering. In his postconviction motion, Henderson states that
    although Antonio Washington testified that he did not know
    Matthew Voss, their “families were close friends” and Voss’
    mother asked Antonio Washington to do what he could to
    keep Henderson in prison. Henderson says that this motivated
    Antonio Washington to lie in his testimony at trial, but that
    Henderson’s counsel did not investigate or pursue the matter
    when Henderson reported it.
    We find that Henderson has not sufficiently alleged how an
    investigation on the part of Henderson’s counsel would have
    made a difference. Henderson has not described what would
    have been discovered during any additional investigation or
    explained what testimony of Antonio Washington was untrue
    or how it made a difference to the result. Without such allega-
    tions, he has failed to allege facts that would entitle him to an
    evidentiary hearing. See State v. Haynes, 
    supra. 10
    . A lleged Misstatement
    of Testimony
    Henderson also claims his trial counsel misstated testi-
    mony in a way that prejudiced his defense during his cross-
    examination of Petrihos. Petrihos testified during his direct
    examination that before the shooting, he saw an individual
    pass something “metallic [and] black” to “a younger black
    male,” later identified as Henderson. The following colloquy
    between Petrihos and Henderson’s counsel then took place dur-
    ing cross-examination:
    Q [by Henderson’s counsel]: And you’re that close to
    that and you — you couldn’t tell it was a gun?
    A [by Petrihos]: No, sir.
    Q: I think, in fact, you didn’t — you thought it might
    have been brass knuckles?
    A: It looked — something metal. I didn’t know. It
    [sic] didn’t — didn’t really think it was a gun. Didn’t
    really think — I don’t know — didn’t really think it was
    a gun.
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    Q: And you can’t tell us what this black male was
    wearing that was handed the gun?
    A: From a year ago? No, sir, I can’t.
    [15] Henderson argues that his counsel’s reference to the
    object’s being a gun constituted ineffective assistance. The
    record, however, affirmatively refutes Henderson’s claim. It
    is apparent from the record that counsel was trying to cre-
    ate doubt the object was a gun and doubt regarding Petrihos’
    general credibility and that the reference to the object as a
    gun was a momentary and inconsequential slip of the tongue.
    Moments before, Henderson’s counsel asked Petrihos a lead-
    ing question about whether he thought the object was a set of
    brass knuckles and Petrihos responded that he did not think
    it was a gun. Later, counsel again referred to the object as a
    gun but immediately corrected himself. Moreover, the jury
    was instructed that “[s]tatements, arguments, and questions
    of the lawyers for the State and [Henderson]” are not evi-
    dence. Absent evidence to the contrary, it is presumed that a
    jury followed the instructions given in arriving at its verdict.
    State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
     (2016).
    Consequently, we conclude that the district court did not
    err in denying an evidentiary hearing concerning trial coun-
    sel’s misstatement.
    11. Failure   to A rgue State v. Tompkins
    A ppeal
    on
    Finally, Henderson alleges that his appellate counsel was
    ineffective for not arguing that our opinion in State v. Tompkins,
    
    272 Neb. 547
    , 
    723 N.W.2d 344
     (2006), modified on denial of
    rehearing 
    272 Neb. 865
    , 
    727 N.W.2d 423
     (2007), precluded
    us from finding, as argued by the State on direct appeal, that
    text messages from the cell phone found on Henderson were
    admissible under the good faith exception to the exclusionary
    rule. Henderson contends that the State did not raise the good
    faith exception at trial and that as a result, Tompkins precluded
    the State from raising it on appeal.
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    It is not entirely clear that the State did not raise the good
    faith exception to the trial court in some fashion. Although the
    State cannot point to any indication in the record that it did, we
    note that the record does show that Henderson’s counsel argued
    at trial that the good faith exception did not apply. At the very
    least, then, Henderson’s counsel was aware of the potential
    applicability of the exception and took the opportunity to argue
    against it.
    In any event, we do not need to determine whether the State
    actually raised the good faith exception in the trial court in
    order to resolve this assignment of error. In State v. Tompkins,
    supra, the sole issue on appeal was whether an appellate court
    may consider the good faith exception sua sponte. We con-
    cluded that it may not, reasoning that if the court finds the
    exception applies on the court’s own initiative, the defendant is
    given no chance to make arguments to the contrary. Tompkins
    thus does not answer the question of whether the State may
    raise the good faith exception for the first time on appeal.
    In Tompkins, we did cite U.S. v. Hahn, 
    922 F.2d 243
     (5th
    Cir. 1991), a case in which a federal appellate court declined to
    apply the exception because the prosecution had not raised the
    issue before the trial court. Henderson seems to contend that
    if his appellate counsel had cited Tompkins, we would have,
    in reliance on Hahn, extended Tompkins to say that we could
    not consider the good faith exception because it was not raised
    at trial. But in fact, Hahn itself did not categorically hold that
    the prosecution could never raise the good faith exception for
    the first time on appeal. Rather, the court pointed out that the
    defendant had “not had a fair opportunity to factually respond”
    to the assertion of the good faith exception, and because of
    that and other reasons unique to that case, “considerations of
    fairness and the orderly administration of justice tip[ped] the
    scales in favor” of not considering the good faith exception.
    U.S. v. Hahn, 
    922 F.2d at 248
    .
    In this case, Henderson cannot claim that he did not have
    an opportunity to factually address the potential applicability
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    of the good faith exception. As noted above, his counsel
    expressly argued at trial that the exception did not apply. Thus,
    even assuming for the sake of argument that we could have
    been convinced to follow Hahn, it would not have precluded
    our consideration of the good faith exception in Henderson’s
    direct appeal. Because the result of Henderson’s direct appeal
    would have been no different had his counsel cited Tompkins,
    we find no merit to this assignment of error.
    V. CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court denying Henderson’s motion for postconviction relief
    without an evidentiary hearing.
    A ffirmed.
    Freudenberg, J., not participating.