State v. Ellis , 311 Neb. 862 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. ELLIS
    Cite as 
    311 Neb. 862
    State of Nebraska, appellee,
    v. Roy L. Ellis, appellant.
    ___ N.W.2d ___
    Filed June 24, 2022.    No. S-21-595.
    1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
    dentiary hearing on a motion for postconviction relief, the trial judge,
    as the trier of fact, resolves conflicts in the evidence and questions of
    fact. An appellate court upholds the trial court’s findings unless they are
    clearly erroneous.
    2. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    3. Postconviction: Constitutional Law. Postconviction relief is a very
    narrow category of relief, available only to remedy prejudicial constitu-
    tional violations that render the judgment void or voidable.
    4. 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.
    5. ____: ____. To show that counsel’s performance was deficient under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must show counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in criminal law in
    the area.
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    STATE v. ELLIS
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    6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal
    and Error. To show prejudice under the prejudice component of the
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), test, the defendant must demonstrate a reasonable probabil-
    ity that but for his or her counsel’s deficient performance, the result of
    the proceeding would have been different. A reasonable probability does
    not require that it be more likely than not that the deficient performance
    altered the outcome of the case; rather, the defendant must show a prob-
    ability sufficient to undermine confidence in the outcome.
    7. Effectiveness of Counsel: Proof. A court may examine the two prongs
    of the ineffective assistance of counsel test, deficient performance and
    prejudice, in any order and need not examine both prongs if a defendant
    fails to demonstrate either.
    Appeal from the District Court for Douglas County:
    Gregory M. Schatz, Judge. Affirmed.
    James J. Regan for appellant.
    Douglas J. Peterson, Attorney General, and James D. Smith,
    Senior Assistant Attorney General, for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
    Doyle and Dobrovolny, District Judges.
    Papik, J.
    Roy L. Ellis, who has been sentenced to death for first
    degree murder, appeals the order that denied him postconvic-
    tion relief following an evidentiary hearing. He claims that his
    trial attorneys were ineffective in challenging the admissibility
    and weight of DNA evidence presented at his jury trial. His
    arguments focus on the probability statistic provided with that
    evidence. Unpersuaded, we affirm.
    BACKGROUND
    Trial and Sentence.
    In 2005, 12-year-old Amber Harris disappeared after exit-
    ing her schoolbus. Harris’ bookbag was later found in a
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    Nebraska Supreme Court Advance Sheets
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    STATE v. ELLIS
    Cite as 
    311 Neb. 862
    trash bin behind a boarding house where Ellis had lived before
    Harris’ disappearance. Among other objects linked to Harris,
    the bookbag contained Harris’ jeans, which had Harris’ blood
    on them. DNA in a shape resembling a handprint was later
    detected on the jeans, in a mixture from which Ellis could not
    be excluded as a contributor. Months after Harris disappeared,
    her decomposed and partially clothed body was discovered in
    a secluded area. Harris had died from blunt force trauma to
    the head. In the months before the DNA evidence and Harris’
    body were found, Ellis had made a variety of incriminat-
    ing statements to several individuals. Ellis was charged with
    first degree murder on theories of both premeditated murder
    and felony murder, for which the predicate felony was sex-
    ual assault.
    Ellis was represented by appointed counsel, William Patrick
    Dunn and Jerry M. Hug. Prior to trial, Dunn filed a motion
    in limine in an attempt to exclude the DNA evidence gleaned
    from Harris’ jeans. The motion generally challenged the theory
    of PCR-STR DNA testing that was applied in this case, based
    on the framework in Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
     (2001), and Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
     (1993). At a hearing on the motion, the State,
    which had the burden of proof, presented the testimony of two
    DNA experts who were involved in processing and analyzing
    the DNA sample in Ellis’ case, Kaye Shepard and Dr. James
    Wisecarver. Defense counsel’s cross-examination addressed
    whether the DNA laboratory was properly accredited and
    whether accepted procedures were properly followed. Defense
    counsel did not present any evidence. The district court over-
    ruled the motion in limine.
    The DNA evidence was presented at Ellis’ jury trial over
    his general foundational objection. We recounted that evi-
    dence in our opinion on direct appeal:
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    STATE v. ELLIS
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    The State’s witness, . . . Wisecarver, explained gener-
    ally that the testing process used in this case involved
    looking at 16 different genetic markers scattered through-
    out the genome at different loci. One of those is a sex
    marker that identifies the gender of the contributor; the
    other 15 are used to compare to known reference samples
    (in this case, for [Harris] and Ellis) to see if they are the
    same or different.
    The DNA found on [Harris’] jeans was a mixture
    of DNA from at least two people, one of whom was
    male. Wisecarver explained that it was not possible to
    separate the mixture into a major and minor contributor at
    each locus. Instead, he said, the presence of the mixture
    was taken into account when calculating the likelihood
    that any other person would have any combination of
    the genetic markers that had been identified. Wisecarver
    explained that the purpose of the statistical calculations
    was to determine the likelihood that “we’re going to find
    somebody, anybody, that could have any of these mark-
    ers in any combination.” In other words, Wisecarver said,
    when testing a mixture, “[w]e make no inferences as to
    who matches up with whom in there. We just want to say
    in all the populations how many people would we have to
    screen in order to find somebody, anybody, that would fit
    in here in any combination of those.”
    Given that [Harris’] genetic profile was known,
    Wisecarver testified that only 1 in 2.3 billion people
    would be expected to “plug in” as the other contributor
    to the mixture. And despite those odds, Ellis could not be
    excluded as a contributor to the mixture.
    On cross-examination, Wisecarver was asked about
    what happened when two samples had common
    alleles—in other words, when the two possible contrib­
    utors to the mixture were genetically identical at a tested
    locus. Wisecarver conceded that when such a common
    genetic marker was found at a locus, in this case, it
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    was not possible to tell who had contributed the allele.
    But, Wisecarver said, it was still scientifically appro-
    priate to consider such a locus when making statistical
    calculations.
    State v. Ellis, 
    281 Neb. 571
    , 585, 
    799 N.W.2d 267
    , 284-85
    (2011).
    On redirect, Wisecarver further explained the “uniqueness or
    rareness” of the probability statistic linking Ellis to the crime:
    [T]he population of the planet Earth is known to be
    approximately 6.6 billion people. So based on that, the
    odds that — the likelihood we would find — if we look
    at the population of the planet Earth, we would maybe
    find two other people in addition to [Harris] and . . . Ellis
    who could have contributed to this mixture based on our
    known frequencies.
    Ellis’ counsel did not object.
    Shepard also testified for the State. She explained on cross-
    examination by Ellis’ counsel that the statistical analysis gar-
    nered from DNA testing was a tool for attorneys and jurors to
    determine how important the results were. She acknowledged
    that her laboratory had generated statistics that were “bigger”
    than the 1 in 2.3 billion generated in this case. When Ellis’
    counsel posited to her that it was “not a staggering number . . .
    given the work you do,” Shepard replied, “It’s a pretty large
    number to me.”
    In addition to the DNA evidence, the State presented evi-
    dence of the incriminating statements Ellis made while incar-
    cerated on unrelated charges and before the DNA evidence
    and Harris’ body were discovered. He repeatedly asked for-
    mer neighbors about any activity at the boarding house, but
    after Harris’ possessions were found, these inquiries stopped,
    though Ellis’ communication with the neighbors did not. A
    corrections officer reported that Ellis asked him for infor-
    mation about Harris’ case and books on forensics and DNA
    examination and that Ellis asked questions about finger­
    print identification, decomposition of buried bodies, and
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    contamination of blood and semen left outside. Ellis asked
    another corrections officer how long semen would last inside
    a dead body in a rural forested area and asked the corrections
    officer to do internet research on the subject. Ellis posed
    similar questions about semen and decomposition to other
    inmates. An inmate heard Ellis say that he had previously
    taken women to the area where Harris’ body was ultimately
    found and sexually assaulted them, hitting them on the head
    if they did not comply. Ellis told another inmate that he had
    sexually molested underage girls, some of them in the same
    area. The same inmate said that Ellis expressed an unusual
    interest in Harris’ case and cut out newspaper articles about
    it. Ellis told yet another inmate that he had sexually assaulted
    and strangled a young girl. When one inmate remarked that
    it was “crazy what happened to that Amber Harris girl,” Ellis
    said, “that’s why I got to get out and cover my tracks.” Two
    inmates said Ellis admitted to sexually assaulting Harris and
    striking her in the head; according to one of those inmates,
    Ellis said he hit Harris in the head with a hammer.
    The State also presented other circumstantial evidence and
    evidence that Ellis had sexually assaulted his former step-
    daughters when they were between 12 and 15 years old.
    The jury found Ellis guilty of first degree murder, and he
    was sentenced to death.
    Direct Appeal.
    Represented by the same counsel, Ellis appealed his convic-
    tion and sentence, and we affirmed. See State v. Ellis, 
    supra.
    Relevant here, we concluded that the district court did not err
    in admitting the DNA evidence over Ellis’ motion in limine:
    Ellis does not contend that the State’s witnesses were
    not qualified to testify, or that their basic reasoning and
    methodology was not reliable. Rather, Ellis contends that
    under our Daubert/Schafersman framework, that method-
    ology was not properly applied in this case. . . .
    Ellis’ appellate argument is focused on the use of
    common alleles in the State’s statistical analysis. Ellis
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    STATE v. ELLIS
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    contends that the “overriding issue” with that method is
    that “where there is uncertainty as to the contributor, as
    long as the suspect is ‘fully represented’ . . . then that
    location counts against the suspect in calculating the
    possibility of exclusion.” This, according to Ellis, “is
    fundamentally unduly prejudicial and should not have
    been allowed.”
    Ellis cites no authority that is specifically relevant
    to the issue he raises, nor is it clear that he raised that
    issue in the trial court. It was not addressed in his
    pretrial motion, which was addressed generally at the
    theory of PCR-STR DNA testing that was applied in
    this case. Nor did he raise it at trial beyond a general
    foundational objection, which is insufficient to preserve
    a Daubert/Schafersman issue. . . . Ellis’ pretrial motion
    should have identified what is believed to be lacking
    with respect to the validity and reliability of the evidence
    and any challenge to the relevance of the evidence to the
    issues of the case. But the issue now raised by Ellis was
    not identified then.
    Furthermore, Ellis’ argument rests upon a misunder-
    standing of the way in which the DNA statistics were cal-
    culated. As Wisecarver explained, the purpose of examin-
    ing each locus is to determine two things: (1) whether the
    contributor of the reference sample can be excluded as
    a contributor and (2) how commonly one might expect
    the profile that is generated to occur randomly in the
    population. In other words, the initial question was not
    whether the alleles that were found at each locus iden-
    tified Ellis as the contributor; instead, it was whether
    the testing excluded Ellis as a possible contributor. And
    obviously, an allele that could be found in both Ellis’ and
    [Harris’] genetic profile would not exclude Ellis as a pos-
    sible contributor.
    On the second step, the fact that the DNA sample was
    a mixture clearly affected the calculation of how many
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    STATE v. ELLIS
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    people might be expected to have genetic profiles consist­
    ent with the sample, which is presumably why the prob-
    abilities found in this case are relatively modest compared
    to others. While 1 in 2.3 billion people might seem like a
    daunting figure, other cases involving single-contributor
    or major-contributor samples have produced probabilities
    of 1 in several quintillion. But that goes to the weight of
    the evidence, not its admissibility—in fact, Ellis explored
    that issue on cross-examination of one of the State’s
    experts. The district court did not abuse its discretion in
    concluding that the DNA evidence was admissible, and
    we find no merit to Ellis’ assignment of error.
    State v. Ellis, 
    281 Neb. 571
    , 586-88, 
    799 N.W.2d 267
    , 285-86
    (2011) (emphasis omitted).
    We also determined that the trial court had abused its
    discretion in admitting prior bad acts evidence that Ellis
    had sexually abused his former stepdaughters, but given the
    strength of the State’s other evidence, including the DNA evi-
    dence, we concluded that the erroneously admitted evidence
    was harmless:
    We recognize that the admission of other acts evidence,
    by its nature, is usually prejudicial to the defendant. But
    this is the rare instance in which it was not. For one
    thing, [one witness] testified, without objection, that Ellis
    admitted molesting young girls and impregnating his
    stepdaughter. And more fundamentally, Ellis was ines-
    capably tied to [Harris’] killing through DNA evidence
    that . . . was admissible and persuasive, and physical
    evidence that proved to be consistent with Ellis’ careless
    statements that had already been reported to investiga-
    tors. There was no innocent explanation for how Ellis’
    DNA came to be on [Harris’] bloody clothing. Nor is
    there any innocent explanation for how several witnesses
    came forward with information before [Harris’] body or
    Ellis’ DNA on her clothing had been discovered link-
    ing Ellis to the killing—some of whom even accurately
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    described [Harris’] cause of death and the possible loca-
    tion of her body. This evidence can only be explained by
    the conclusion that Ellis was the killer.
    Given Ellis’ statements, the physical evidence, and the
    other circumstantial evidence, we have no doubt that any
    reasonable trier of fact would have found Ellis guilty of
    the charge against him. In particular, no reasonable trier
    of fact could overlook the testimony of [three witnesses],
    each of whom was interviewed several weeks before
    Ellis’ DNA was identified on [Harris’] clothing and at
    least a month before [Harris’] body was found . . . . Each
    witness found Ellis’ interest in the case suspicious, and
    they all described details of the case that they had no way
    of knowing unless they heard them from the person who
    killed [Harris].
    Id. at 581-82, 799 N.W.2d at 282-83 (emphasis omitted).
    Postconviction Motions and
    Evidentiary Hearing.
    In 2011, Ellis filed a timely pro se motion for postconvic-
    tion relief, which was subsequently amended by Ellis and later
    by new counsel. Among other things, the motions alleged that
    Ellis’ trial counsel had been ineffective in challenging the
    State’s DNA evidence. The district court allowed Ellis an evi-
    dentiary hearing on the issue. At the hearing, the district court
    received the deposition testimony of Ellis’ former counsel,
    Dunn and Hug.
    Dunn testified that the probability statistics admitted at trial
    were available at the time of the pretrial motion in limine.
    Dunn stated that he had “seen much higher numbers” than
    the probability statistics in Ellis’ case. Dunn recalled he did
    not raise the common allele argument in his pretrial motion to
    exclude DNA evidence because the statistical calculations took
    common alleles into account. Dunn retained a DNA expert,
    Dr. Ron Ostrefski, after the hearing on the motion in limine
    but prior to trial. Ostrefski did not conduct his own testing
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    and analysis, but examined the State’s DNA evidence and
    did not express any concerns about the statistical probabili-
    ties it proffered. For this reason, Dunn explained that he did
    not call Ostrefski to testify at trial as a defense DNA expert.
    Asked whether there was a strategic purpose to making a gen-
    eral foundational objection at trial that did not preserve the
    admissibility issues raised before trial, Dunn testified that he
    did not view the point he was trying to make about the DNA
    evidence to be of “great evidentiary moment or any eviden-
    tiary moment.” Dunn testified that using cross-examination at
    trial to address the effect of common alleles on the ability to
    generate a statistical probability was the best approach for the
    defense at the time, as was advancing the same theory in the
    context of admissibility on direct appeal.
    Hug testified that Dunn took the lead on challenging the
    State’s DNA evidence. Hug stated that if Ostrefski had disputed
    the State’s probability statistics, they would have pursued the
    matter. But Hug recalled that he and Dunn had not come up
    with any realistic way to keep the DNA evidence from being
    admitted at trial. Thus, it was their strategy to try to minimize
    the importance of the evidence at trial, that is, its weight.
    Order Denying Postconviction Relief.
    The district court denied postconviction relief. It identified
    ineffective assistance claims pertaining to (1) the admissibility
    of the State’s DNA evidence and (2) counsel’s failure to retain
    a defense expert to testify about the weakness of the statistical
    analysis proffered by the State’s expert.
    Regarding admissibility of the State’s DNA evidence, the
    district court found that trial counsel’s performance through-
    out the proceedings was not ineffective. It observed that
    Ellis’ counsel had extensively cross-examined the State’s DNA
    experts at the hearing on the motion in limine and that
    Ostrefski, who defense counsel retained afterward, generally
    agreed with the accuracy of the DNA testing results. The
    district court further reasoned that defense counsel conducted
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    an extensive cross-examination that elicited Wisecarver’s tes-
    timony that when a common genetic marker was found at a
    locus, it was not possible to tell who had contributed the allele,
    but that it was still scientifically appropriate to consider that
    locus when making statistical calculations. The district court
    concluded that on appeal, “Ellis was not prejudiced by coun-
    sel’s failure to preserve the issue of his trial attorneys’ failure
    to challenge the admissibility of the DNA evidence for appel-
    late review because the DNA evidence was determined to be
    admissible on direct appeal.”
    The district court also found that Ellis had failed to show
    deficient performance and prejudice when defense counsel did
    not retain a DNA expert to assist in challenging the State’s
    DNA evidence at the hearing on the motion in limine or pre­
    sent expert testimony challenging the State’s statistical analy-
    sis. It stated that Ellis had not identified an expert who would
    have assisted defense counsel and offered no evidence as to
    what that expert’s testimony would be. And the district court
    noted that Ostrefski had conceded that the State’s statistical
    data was sound.
    Ellis now appeals.
    ASSIGNMENTS OF ERROR
    Ellis assigns, consolidated and restated, that the district
    court erred in not granting him postconviction relief based on
    his allegation that trial counsel was ineffective in challenging
    the State’s DNA evidence.
    STANDARD OF REVIEW
    [1] In an evidentiary hearing on a motion for postconviction
    relief, the trial judge, as the trier of fact, resolves conflicts in
    the evidence and questions of fact. An appellate court upholds
    the trial court’s findings unless they are clearly erroneous.
    State v. Newman, 
    310 Neb. 463
    , 
    966 N.W.2d 860
     (2021).
    [2] Appellate review of a claim of ineffective assistance
    of counsel is a mixed question of law and fact. 
    Id.
     When
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    reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court
    for clear error. 
    Id.
     With regard to the questions of counsel’s
    performance or prejudice to the defendant as part of the two-
    pronged test articulated in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), an appellate
    court reviews such legal determinations independently of the
    lower court’s decision. State v. Newman, 
    supra.
    ANALYSIS
    [3] Ellis challenges the order that denied his request for
    postconviction relief. Postconviction relief is a very narrow
    category of relief, available only to remedy prejudicial consti-
    tutional violations that render the judgment void or voidable.
    
    Id.
     In this case, Ellis alleges one such constitutional violation,
    ineffective assistance of counsel. See 
    id.
     We understand his
    arguments to center on the probability statistic generated from
    the State’s DNA evidence that implicated him in Harris’ death,
    which we described as “relatively modest” compared to the
    probabilities in other cited cases. See State v. Ellis, 
    281 Neb. 571
    , 587, 
    799 N.W.2d 267
    , 286 (2011), citing State v. Edwards,
    
    278 Neb. 55
    , 
    767 N.W.2d 784
     (2009), State v. Archie, 
    273 Neb. 612
    , 
    733 N.W.2d 513
     (2007), State v. Tolliver, 
    268 Neb. 920
    ,
    
    689 N.W.2d 567
     (2004), and State v. Fernando-Granados, 
    268 Neb. 290
    , 
    682 N.W.2d 266
     (2004). As we read Ellis’ brief, he
    asserts that his trial counsel rendered ineffective assistance in
    not addressing the impact of this “relatively modest” prob-
    ability statistic on the admissibility of the DNA evidence and,
    once it was admitted, on its probative value. See 
    id.
     We are
    not convinced that Ellis is entitled to postconviction relief on
    either basis.
    [4-7] The principles that govern here are well-established.
    To prevail on a claim of ineffective assistance of counsel
    under the two-pronged test in Strickland, the defendant must
    show that his or her counsel’s performance was deficient
    and that this deficient performance actually prejudiced the
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    defendant’s defense. See State v. Newman, 
    supra.
     To show that
    counsel’s performance was deficient, the defendant must show
    counsel’s performance did not equal that of a lawyer with ordi-
    nary training and skill in criminal law in the area. 
    Id.
     To show
    prejudice under the prejudice component of the Strickland test,
    the defendant must demonstrate a reasonable probability that
    but for his or her counsel’s deficient perform­ance, the result
    of the proceeding would have been different. State v. Newman,
    
    supra.
     A reasonable probability does not require that it be
    more likely than not that the deficient perform­ance altered the
    outcome of the case; rather, the defendant must show a prob-
    ability sufficient to undermine confidence in the outcome. 
    Id.
    “‘The likelihood of a different result must be substantial, not
    just conceivable.’” State v. Newman, 
    310 Neb. 463
    , 472-73,
    
    966 N.W.2d 860
    , 869 (2021), quoting Harrington v. Richter,
    
    562 U.S. 86
    , 
    131 S. Ct. 770
    , 
    178 L. Ed. 2d 624
     (2011). A court
    may examine performance and prejudice in any order and need
    not examine both prongs if a defendant fails to demonstrate
    either. State v. Newman, 
    supra.
    We begin by considering whether trial counsel rendered
    ineffective assistance with respect to the admissibility of the
    State’s DNA evidence. Ellis contends that his counsel should
    have opposed the admission of this evidence by addressing it
    in the pretrial motion and in a corresponding objection at trial
    based on the probability statistic’s relative weight. Ellis also
    suggests that his counsel should have retained an expert to
    guide the defense in dealing with the impact of the probability
    statistic on admissibility. To argue that he was prejudiced by
    his trial attorneys’ performance in this regard, Ellis places great
    emphasis on the role of the DNA evidence in this court’s harm-
    less error analysis on direct appeal.
    We conclude that trial counsel did not perform deficiently
    when it did not challenge the admission of the DNA evidence
    based on the relative strength of the probability statistic.
    When reviewing claims of alleged ineffective assistance of
    counsel, strategic decisions made by trial counsel will not
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    be second-guessed so long as those decisions are reasonable.
    See State v. Newman, 
    supra.
     See, also, Harrington v. Richter,
    
    supra
     (defense counsel entitled to formulate strategy that
    was reasonable at time and to balance limited resources with
    effective trial tactics and strategies). At the time the motion
    in limine was filed, Ellis’ trial counsel was aware of the
    1-in-2.3-billion probability statistic, a statistic that the expert
    retained by the defense later accepted. Ellis’ trial counsel
    testified that, unable to find a realistic way to keep the DNA
    evidence from being admitted, the best approach was to mini-
    mize the impact of this evidence at trial by casting doubt on
    the use of common alleles to conduct the statistical analysis
    that generated the probability statistic.
    We believe this admissibility strategy was reasonable, espe-
    cially considering our holdings that DNA evidence will not be
    withheld from the jury simply because the probability statistics
    it provides are relatively low. See State v. Bauldwin, 
    283 Neb. 678
    , 
    811 N.W.2d 267
     (2012). See, also, State v. Tucker, 
    301 Neb. 856
    , 
    920 N.W.2d 680
     (2018). To the contrary, we have
    found jurors capable of assigning appropriate weight to “the
    statistical analysis that accompanies DNA evidence,” even
    when the odds of a coincidental match are much greater than
    the odds expressed by the 1-in-2.3-billion probability statistic
    in this case. State v. Bauldwin, 283 Neb. at 703, 811 N.W.2d
    at 288 (rejecting claim that jury would treat probability of 1
    in 500,000 same as 1 in septillion). See, also, State v. Tucker,
    
    supra.
     (1-in-1,842 chance of coincidental match did not render
    Y-STR DNA evidence unreliable so as to justify withholding it
    from jury). Given our prior decisions, we cannot say that trial
    counsel performed below the level of a lawyer with ordinary
    training and skill in this area of criminal law. Accordingly,
    Ellis has not satisfied the performance prong required to prove
    ineffective assistance of counsel in addressing the admissibility
    of DNA evidence.
    Likewise, we conclude that once the probability sta-
    tistic was admitted at trial, Ellis’ trial attorneys were not
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    ineffective in their response. Ellis claims that his trial coun-
    sel should have retained an expert who could have guided
    the trial strategy and explained the weakness of the State’s
    statistical analysis to the jury. Absent a defense expert, Ellis
    contends, his trial counsel should have simply pointed out
    that the statistical probability that Ellis was a contributor to
    the sample from Harris’ jeans was “tens of thousands of times
    weaker than the DNA evidence typically admitted in criminal
    proceedings.” Brief for appellant at 11. He further submits that
    his trial counsel performed deficiently in allowing Wisecarver
    to “equate the statistical probability to the number of people on
    [E]arth.” Brief for appellant at 9. Ellis essentially argues that
    his trial counsel should have done more to put the probability
    statistic into proper perspective for the jury.
    Again, rather than showing Ellis’ trial attorneys’ perform­
    ance to be deficient, we find the evidence demonstrates it was
    a product of reasonable trial strategy. Attorneys in the position
    of Ellis’ trial counsel could reasonably conclude that drawing
    additional attention to the probability statistic would not be
    to Ellis’ advantage. After all, the odds that a random person
    other than Ellis was the contributor, “relatively modest” as
    they were, nonetheless served as “persuasive” evidence sup-
    porting the verdict. State v. Ellis, 
    281 Neb. 571
    , 581, 587,
    
    799 N.W.2d 267
    , 282, 286 (2011). This was illustrated when
    trial counsel pursued the issue to some degree with Shepard,
    who explained that the jurors could weigh the probative value
    of the probability statistic and indicated that the probabil-
    ity statistic pointing to Ellis was, from her perspective, “a
    pretty large number.” Not only did additional focus on the
    DNA probability statistic pose a downside risk to Ellis’ case,
    we discern little that could have been gained by comparing
    the probability statistic in this case to other cases as Ellis
    contends his counsel should have done. It is not apparent to
    us why the jury would be moved by an argument that DNA
    evidence in unrelated cases showed more likely matches
    with the defendants in those cases. Given these factors, we
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    find it reasonable that Ellis’ trial attorneys focused their
    efforts on diminishing the weight of the DNA evidence in the
    jury’s eyes by questioning the common alleles upon which
    it was based.
    Ellis does not explain how a defense expert could have
    improved upon this strategy or framed the probability statis-
    tic to Ellis’ advantage, nor did he present any evidence on
    this point at the evidentiary hearing. Without specifying what
    such expert testimony would have been or who would have
    provided it, Ellis cannot establish that his trial attorneys were
    deficient for not retaining an expert to guide his defense or
    to testify.
    Finally, although we find that Ellis has not succeeded in
    showing that his trial counsel performed deficiently in their
    treatment of the probability statistic admitted at trial, we also
    note that he cannot prove prejudice as to this point. Ellis does
    not explain—and, again, it is not apparent to us—why the jury
    would have discounted DNA evidence in this case just because
    there were probability statistics in other cases demonstrating
    a lesser likelihood of random matches with the defendants in
    those cases. And despite being “relatively modest” compared
    to some cases, the probability statistic here strongly suggested
    that Ellis’ DNA was likely on Harris’ jeans. See State v. Ellis,
    281 Neb. at 587, 799 N.W.2d at 286. Considering this with the
    other circumstantial evidence that Ellis killed Harris, much of
    which we recounted above, we find there is not a substantial
    likelihood that the outcome would have been different had
    the probability statistic’s relative strength been more overtly
    pointed out to the jury.
    CONCLUSION
    Finding no merit to the errors alleged by Ellis, we affirm the
    order that denied him postconviction relief.
    Affirmed.
    Heavican, C.J., and Freudenberg, J., not participating.