State v. Custer , 298 Neb. 279 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. CUSTER
    Cite as 
    298 Neb. 279
    State of Nebraska, appellee, v.
    Jason William Custer, appellant.
    ___ N.W.2d ___
    Filed December 1, 2017.   No. S-16-1196.
    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
    demonstrate a violation of his or her constitutional rights or that the
    record and files affirmatively show that the defendant is entitled to
    no relief.
    2.	 Postconviction: Proof: Appeal and Error. A defendant requesting
    postconviction relief must establish the basis for such relief, and the
    findings of the district court will not be disturbed unless they are
    clearly erroneous.
    3.	 Postconviction: Constitutional Law. Postconviction relief is available
    to a prisoner in custody under sentence who seeks to be released on the
    ground that there was a denial or infringement of his or her constitu-
    tional rights such that the judgment was void or voidable.
    4.	 Postconviction: Constitutional Law: Proof. In a motion for postcon-
    viction relief, the defendant must allege facts which, if proved, consti-
    tute a denial or violation of his or her rights under the U.S. or Nebraska
    Constitution, causing the judgment against the defendant to be void
    or voidable.
    5.	 Postconviction: Proof. If a postconviction motion alleges only conclu-
    sions of fact or law, or if the records and files in the case affirmatively
    show that the defendant is entitled to no relief, the court is not required
    to grant an evidentiary hearing.
    6.	 Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. To prevail on a claim of ineffective assistance of counsel under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984), the defendant must show that his or her counsel’s per­
    formance was deficient and that this deficient performance actually
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    prejudiced the defendant’s defense. To show prejudice under the preju-
    dice component of the Strickland test, the defendant must demonstrate
    a reasonable probability that but for his or her counsel’s deficient per-
    formance, the result of the proceeding would have been different. A rea-
    sonable 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.
    7.	 Rules of the Supreme Court: Trial: Attorneys at Law. The Nebraska
    Rules of Professional Conduct set forth that a lawyer shall not, in trial,
    state a personal opinion as to the credibility of a witness or the guilt or
    innocence of an accused.
    8.	 Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on
    reasonably drawn inferences from the evidence, the prosecutor is per-
    mitted to present a spirited summation that a defense theory is illogical
    or unsupported by the evidence and to highlight the relative believability
    of witnesses for the State and the defense.
    9.	 ____: ____. In cases where a prosecutor comments on the theory of
    defense, the defendant’s veracity, or the defendant’s guilt, the prosecutor
    crosses the line into misconduct only if the prosecutor’s comments are
    expressions of the prosecutor’s personal beliefs rather than a summation
    of the evidence.
    10.	 Trial: Prosecuting Attorneys: Appeal and Error. In assessing whether
    a prosecutor’s statements were misconduct, an appellate court looks
    at the entire context of the language used to determine whether the
    prosecutor was expressing a personal opinion or merely submitting to
    the jury a conclusion that the prosecutor is arguing can be drawn from
    the evidence.
    11.	 Postconviction: Appeal and Error. An appellate court will not consider
    as an assignment of error a question not presented to the district court
    for disposition through a defendant’s motion for postconviction relief.
    12.	 Postconviction: Right to Counsel. There is no federal or state constitu-
    tional right to an attorney in state postconviction proceedings.
    13.	 ____: ____. Under the Nebraska Postconviction Act, it is within the
    discretion of the trial court as to whether counsel shall be appointed to
    represent the defendant.
    14.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and
    Error. Where the assigned errors in the postconviction petition before
    the district court are either procedurally barred or without merit, estab-
    lishing that the postconviction action contained no justiciable issue of
    law or fact, it is not an abuse of discretion to fail to appoint appellate
    counsel for an indigent defendant.
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    STATE v. CUSTER
    Cite as 
    298 Neb. 279
    Appeal from the District Court for Cheyenne County: Derek
    C. Weimer, Judge. Affirmed.
    Jason William Custer, pro se.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    Jason William Custer appeals from the district court’s
    denial, without an evidentiary hearing, of his motion for post-
    conviction relief. Custer proceeds pro se in his postconviction
    motion. We affirm.
    II. BACKGROUND
    The facts of this case can be found in this court’s opinion
    on direct appeal, State v. Custer.1 The following facts from the
    direct appeal opinion are pertinent to our decision on Custer’s
    postconviction motion.
    On or around October 20, 2012, [Adam] McCormick
    came to the apartment where Custer and [Billy] Fields
    were staying to collect the money [that Custer owed
    McCormick]. After Custer told McCormick he would
    pay him from his next check, Fields, who was upset
    that McCormick had come to confront Custer, told
    McCormick that he would pay McCormick by the end of
    the week. In the following days, McCormick exchanged
    threatening text messages and telephone calls with Custer
    and Fields.
    On or about October 26, 2012, . . . McCormick con-
    fronted [Custer and Fields], demanding his money. Fields
    testified that when McCormick approached them, it
    1
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).
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    looked like McCormick was reaching into his pocket
    for something, and that Fields thought it was a knife
    that he knew McCormick carried. Custer and Fields told
    McCormick they could not repay the $150 at that time,
    but in order to calm McCormick, Fields paid him $40 for
    another debt he owed. . . .
    A few days later, on November 1, 2012, McCormick
    sent Fields text messages threatening physical violence if
    the debt was not repaid soon. The text messages prompted
    Custer to arrange with McCormick to meet in a park for
    a fight. Custer and Fields went to the park at the arranged
    time. McCormick did not show up, but he continued to
    exchange confrontational text messages and telephone
    calls with Custer and Fields.
    ....
    The next night, November 2, 2012, [McCormick was
    at a gathering at Syrus Leal’s house]. . . . Throughout the
    evening, [Fields’ girlfriend] updated Custer and Fields
    through text messages and telephone calls regarding
    McCormick’s activities and whereabouts. Around 11:20
    p.m., Custer responded . . . with a text message stating
    that he and Fields were coming over to handle matters
    with McCormick.
    . . . Around 11:35 p.m., Custer asked McCormick [via
    text] whether they could “FINISH THIS RIGHT NOW
    ONE ON ONE.” McCormick responded in the affirma-
    tive . . . .
    Shortly after midnight on November 3, 2012, [Custer
    learned that] McCormick was leaving the gathering at
    Leal’s house. Custer borrowed Fields’ truck to drive to
    Leal’s house. . . . Thereafter, an incident ensued in which
    Custer shot McCormick twice.2
    Following the shooting, Custer was charged with first
    degree murder, a Class IA felony; use of a firearm to commit
    2
    
    Id. at 92-94,
    871 N.W.2d at 250-52.
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    a felony, a Class IC felony; and possession of a firearm by a
    prohibited person, a Class ID felony. On January 31, 2014, the
    jury found Custer guilty on all three counts. The court sen-
    tenced Custer to life imprisonment for first degree murder, to
    20 to 50 years’ imprisonment for use of a firearm to commit a
    felony, and to 10 to 20 years’ imprisonment for being a felon
    in possession of a firearm. The court ordered that the sen-
    tences be served consecutively. Custer appealed his convic-
    tions and sentences. This court affirmed Custer’s convictions
    and affirmed his sentences as modified.3
    On May 10, 2016, Custer filed a motion for postconvic-
    tion relief, a motion for permission to proceed in forma pau-
    peris, and a motion for appointment of counsel. The State
    filed a motion to dismiss Custer’s motion for postconvic-
    tion relief without conducting an evidentiary hearing, and
    on November 22, 2016, the district court overruled Custer’s
    motion for postconviction relief without an evidentiary hear-
    ing. Custer appeals.
    III. ASSIGNMENTS OF ERROR
    Custer assigns, restated, that the district court erred in
    denying his motion for postconviction relief, because counsel
    was ineffective when counsel (1) “illicited testimony from
    Dr. Peter Schilke on information that was not in evidence
    [and] information that he was not the originating expert on”;
    (2) “insisted that a key state witness was testifying falsely to
    information supported by the record and critical to [Custer’s]
    self-defense defense”; (3) cross-examined a patrol officer; (4)
    “failed to call rebuttal witness, a fellow law partner, Kelly
    Breen, to the stand”; (5) “failed to object at critical junctures
    throughout the entirety of the trial”; and (6) failed to ensure
    that “the court provided proper jury instructions, or a proper
    verdict form to all jurors, and omitted critical instruction on
    self-defense, assault, terroristic threats and other omissions.”
    3
    See State v. Custer, supra note 1.
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    Custer also assigns that the district court erred in denying his
    motion for appointment of counsel.
    IV. STANDARD OF REVIEW
    [1,2] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defendant
    failed to allege sufficient facts to demonstrate a violation of
    his or her constitutional rights or that the record and files
    affirmatively show that the defendant is entitled to no relief.4
    A defendant requesting postconviction relief must establish the
    basis for such relief, and the findings of the district court will
    not be disturbed unless they are clearly erroneous.5
    V. ANALYSIS
    On appeal, Custer argues that his trial counsel was inef-
    fective in various particulars and that the district court erred
    in denying his motion for postconviction relief without a
    hearing.
    [3-5] Postconviction relief is available to a prisoner in cus-
    tody under sentence who seeks to be released on the ground
    that there was a denial or infringement of his or her consti-
    tutional rights such that the judgment was void or voidable.6
    Thus, in a motion for postconviction relief, the defendant must
    allege facts which, if proved, constitute a denial or violation
    of his or her rights under the U.S. or Nebraska Constitution,
    causing the judgment against the defendant to be void or
    voidable.7 If a postconviction motion alleges only conclusions
    of fact or law, or if the records and files in the case affirma-
    tively show that the defendant is entitled to no relief, the court
    is not required to grant an evidentiary hearing.8
    4
    State v. Watson, 
    295 Neb. 802
    , 
    891 N.W.2d 322
    (2017).
    5
    State v. Starks, 
    294 Neb. 361
    , 
    883 N.W.2d 310
    (2016).
    6
    Neb. Rev. Stat. § 29-3001(1) (Reissue 2016).
    7
    State v. Starks, supra note 5.
    8
    State v. Phelps, 
    286 Neb. 89
    , 
    834 N.W.2d 786
    (2013).
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    1. Ineffective Assistance
    of Counsel
    [6] To prevail on a claim of ineffective assistance of coun-
    sel under Strickland v. Washington,9 the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s
    defense.10 To show prejudice under the prejudice component
    of the Strickland test, the defendant must demonstrate a rea-
    sonable probability that but for his or her counsel’s deficient
    performance, the result of the proceeding would have been
    different.11 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.12
    (a) Testimony From
    Dr. Peter Schilke
    Custer argues that the district court erred in denying an
    evidentiary hearing on the ground that counsel rendered inef-
    fective assistance when cross-examining Dr. Peter Schilke.
    Schilke was a witness for the State and a pathologist. Schilke
    performed McCormick’s autopsy, during which he obtained
    fluids for a toxicology panel. Those samples were sent to a
    toxicologist for testing.
    Custer takes issue with the following question posed by
    counsel during cross-examination of Schilke:
    Q. . . . [I]n [the toxicologist’s] findings, he said that
    blood levels of 200 ng to 600 ng had been reported
    in methamphetamine abusers who exhibited violent and
    irrational behavior. Now I realize [McCormick’s] level
    9
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674
    (1984).
    10
    State v. Watson, supra note 4.
    11
    
    Id. 12 Id.
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    wasn’t as high as 200 to 600 but what I guess I am asking
    you is it, in your experience that methamphetamine users
    can exhibit violent and irrational behavior?
    A. Sure, that has been reported.
    Custer argues that counsel erred in drawing the jury’s attention
    to the fact that the level of methamphetamine in McCormick’s
    system was lower than levels that had reportedly caused “vio-
    lent and irrational behavior.”
    Custer relied on a theory of self-defense at trial. The testi-
    mony elicited by counsel demonstrated that McCormick had
    levels of methamphetamine in his system. Schilke’s testimony
    supported the conclusion that levels did not have to be as
    high as “200 ng to 600 ng” in order to cause “methamphet-
    amine users [to] exhibit violent and irrational behavior.” That
    McCormick could have been violent and irrational despite
    the relatively low level of methamphetamine in his system
    was entirely consistent with, and helpful to, Custer’s claim of
    self-defense.
    We agree with the district court that counsel’s performance
    was not deficient and therefore find no merit to this assignment
    of error.
    (b) Cross-Examination
    of Billy Fields
    Custer argues that counsel was ineffective in advising him
    to discredit Billy Fields’ testimony, which Custer claims ulti-
    mately led Custer to change Custer’s testimony.
    Custer testified that a few days before the shooting,
    McCormick came to an apartment in which Custer was staying
    and demanded that Custer repay the money that McCormick
    had loaned him. Custer testified that during this exchange,
    neither he nor McCormick threatened each other with a knife.
    At trial, however, Fields testified on cross-examination that
    while Fields did not see anything, Custer told him after the
    exchange that “he had pulled a knife on [McCormick] and that
    [McCormick] had pulled one back.” On cross-examination,
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    Fields initially claimed that he had explained this account in
    his deposition, but when pressed by Custer’s counsel, Fields
    was unable to find this testimony in the transcript of that
    deposition. Counsel then asked Fields: “[I]t’s safe to say the
    first time you ever said that was yesterday in court, correct?”
    Fields agreed. But on redirect, the State presented Fields with
    his deposition and requested that he read certain lines the
    State had identified in which Fields had stated that Custer
    and McCormick pulled knives on each other. In addition,
    Custer’s testimony at trial of the same incident contradicted
    Fields’ testimony.
    Assuming that counsel was ineffective in his attempt to
    attack Fields’ credibility, Custer has not shown that he was
    prejudiced. The incident in which McCormick allegedly pulled
    a knife on Custer occurred several days before the shooting
    and did not provide a basis for the jury to find, as Custer
    contends, that Custer feared for his life at the time of the
    shooting. Indeed, evidence at trial showed that Custer and
    McCormick had exchanged threats the night of the shooting,
    at which point Custer drove over to Syrus Leal’s house, where
    he knew McCormick was, to confront McCormick. Therefore,
    even if counsel was deficient in this line of questioning,
    Custer has not shown that he was prejudiced by counsel’s per-
    formance. There is no merit to Custer’s assertion that counsel
    was ineffective.
    (c) Cross-Examination of
    Officer James Bush
    Custer argues that counsel was ineffective for failing to
    “highlight” critical facts on the cross-examination of Officer
    James Bush about the collection of guns and drug parapherna-
    lia found at Leal’s house.13 Custer contends that “[c]ritical to
    [his] self-defense claim was a general knowledge as to [Leal’s]
    being an armed ex-felon” and that counsel “squandered an
    13
    Brief for appellant at 18.
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    opportunity to show the seriousness of the envir[on]ment at
    [Leal’s] house.” Custer also argues that Leal could have given
    McCormick a weapon at the time of the incident which resulted
    in McCormick’s death.
    Bush, the State’s witness, was a patrol officer for the city of
    Sidney, Nebraska. Bush testified that exhibits 86 through 90
    contained photographs of the firearms and drug paraphernalia
    found in Leal’s house. Bush further testified that “the firearms
    were located in the southwest bedroom closet.” In addition,
    Fields also testified that there were at least four weapons at
    Leal’s house. Custer testified in his defense, but did not men-
    tion in his testimony any concern he had about the weapons in
    Leal’s house at the time of the shooting.
    We find Custer’s allegation to be without merit. Custer’s
    motion does not explain what he believes counsel should have
    done to further emphasize this evidence. As such, Custer has
    failed to allege sufficient facts to support his allegation. We
    further note that because Bush and other witnesses testified
    about the weaponry found at Leal’s house, the jury was aware
    of that fact.
    Assuming that Custer has made sufficient allegations to pre-
    serve his claim of ineffective assistance of counsel as to this
    issue, we still find no prejudice in counsel’s handling of this
    issue. There is no merit to this assignment of error.
    (d) Failure to Call
    Breen as Witness
    Custer contends that his counsel was ineffective for failing to
    call Breen, a lawyer from the Commission on Public Advocacy
    who was first appointed as Custer’s counsel, because Breen
    “had been told the entire version of . . . Custer’s side of the
    incidents leading up to the shooting death of . . . McCormick,
    within only a few days of the shooting” in order “to confirm
    the version of events as told by [Custer] at trial.”14 Custer
    14
    
    Id. at 19.
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    argues that Breen could have testified that Custer “maintained
    from the beginning that he acted in self-defense” and that
    Custer “testified differently at the behest of” counsel due to
    “improper legal advice.”15
    Fields testified on direct examination that Custer had told
    him shortly after the shooting that McCormick “had come
    running at [Custer] with something in his hand,” so Custer
    shot at him. Fields testified again on direct examination that
    Custer told him that McCormick “had rushed [Custer] and that
    [McCormick] had something in his hand.”
    Custer has not identified how Breen’s testimony of Custer’s
    account following the shooting and immediately prior to trial
    would have differed from the account that Custer relayed to
    Fields shortly after the shooting and prior to trial. Custer has
    only alleged that Breen would “underscore” that Custer “testi-
    fied [at trial] differently at the behest of his unethical lawyer
    . . . whom [sic] gave him improper legal advice.”16 Custer has
    not alleged what Breen would testify to in support of Custer’s
    claim that he changed his testimony due to counsel’s “improper
    legal advice.” Custer alleged only mere conclusions of law
    and has not alleged sufficient facts to support his allegation of
    ineffective assistance of counsel. There is no merit to Custer’s
    arguments on appeal.
    (e) Failure to Object
    Custer argues that counsel was ineffective for failing to
    object to (1) a statement made by the prosecutor in closing
    argument that Custer could “accurately testify in relation to
    the evidence . . . because he had had 15 months to review the
    evidence, discovery, and hear all the testimony given in the
    case”;17 (2) an analogy made by the prosecutor in closing state-
    ments; (3) “badgering the witness about someone else yelling
    15
    
    Id. at 20.
    16
    
    Id. 17 Id.
    at 22.
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    during the shooting”;18 (4) an inquiry made by the State into
    Custer’s criminal history during direct examination of Fields;
    and (5) testimony from Fields that Custer was not scared of
    McCormick. The district court held that counsel’s failure to
    object in each of these instances was not deficient and that
    Custer had not shown he was prejudiced.
    First, Custer contends that the prosecutor’s statements in
    closing arguments were improper when the prosecutor stated
    that Custer could “accurately testify in relation to the evidence
    . . . because he had had 15 months to review the evidence.”19
    We have already addressed this allegation in our opinion in
    Custer’s direct appeal.20 We held that
    the State’s comments [made during closing arguments
    referencing the prosecutor’s statements] regarding the
    amount of time [Custer] had to prepare his testimony for
    trial and the State’s comments highlighting [Custer’s]
    failure to report the shooting and McCormick’s alleged
    aggressive actions to the police . . . were not improper
    and did not constitute prosecutorial misconduct.21
    We will not revisit the matter here.22 There is no merit to
    this assertion.
    Custer next contends that counsel was ineffective for fail-
    ing to object to the prosecutor’s closing argument when the
    prosecutor relied on an analogy that Custer’s account of the
    circumstances surrounding the shooting were a “lie” and a
    “fantasy,” much like the story about Santa Claus that he told
    his son at Christmas. In order for his son to believe in Santa
    Claus, the prosecutor explained, his son would have to “ignore
    the evidence.” The prosecutor then stated that Custer’s account
    18
    
    Id. at 24.
    19
    See 
    id. at 22.
    20
    State v. Custer, supra note 1.
    21
    
    Id. at 107,
    871 N.W.2d at 259.
    22
    See Thomas v. State, 
    268 Neb. 594
    , 
    685 N.W.2d 66
    (2004).
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    “doesn’t comport with reality. He is asking you to ignore the
    evidence. It does not fit common sense.” Custer contends that
    the analogy was “religiously infused,” thus “playing to the pas-
    sions and prejudices of the jury.”
    [7-10] The Nebraska Rules of Professional Conduct set forth
    that a lawyer shall not, in trial, “state a personal opinion as to
    the . . . credibility of a witness . . . or the guilt or innocence
    of an accused.”23 But we have explained that “when a pros-
    ecutor’s comments rest on reasonably drawn inferences from
    the evidence, the prosecutor is permitted to present a spirited
    summation that a defense theory is illogical or unsupported by
    the evidence and to highlight the relative believability of wit-
    nesses for the State and the defense.”24 Thus, in cases where a
    prosecutor comments on the theory of defense, the defendant’s
    veracity, or the defendant’s guilt, the prosecutor crosses the
    line into misconduct only if the prosecutor’s comments are
    expressions of the prosecutor’s personal beliefs rather than a
    summation of the evidence.25 In assessing whether a prosecu-
    tor’s statements were misconduct, we “look[] at the entire con-
    text of the language used to determine whether the prosecutor
    was expressing a personal opinion or merely submitting to the
    jury a conclusion that the prosecutor is arguing can be drawn
    from the evidence.”26
    Custer mischaracterizes the prosecutor’s analogy. The pros-
    ecutor’s statements were not “religiously infused.” Instead,
    looking at the entire context of the language, the statement
    to which Custer takes issue established an inference that the
    jury would have to “ignore the evidence” to believe Custer’s
    account. Thus, the prosecutor was arguing that a conclusion
    could be drawn from the evidence that Custer lied in his
    23
    Neb. Ct. R. of Prof. Cond. § 3-503.4(e).
    24
    State v. Gonzales, 
    294 Neb. 627
    , 645, 
    884 N.W.2d 102
    , 117 (2016).
    25
    State v. Gonzales, supra note 24.
    26
    
    Id. at 647,
    884 N.W.2d at 118.
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    testimony. Because the prosecutor’s analogy was not an expres-
    sion of a personal opinion in support of religion, or an effort
    to inflame the jurors’ prejudices or excite their passions against
    the accused, we find no error in the prosecutor’s comments.
    [11] Custer next argues that counsel was ineffective for
    failing to object to questioning about “someone else yell-
    ing during the shooting, which wasn’t in evidence.”27 Custer
    argued this assertion in his brief, but did not allege this in his
    motion for postconviction relief. An appellate court will not
    consider as an assignment of error a question not presented to
    the district court for disposition through a defendant’s motion
    for postconviction relief.28 Therefore, we do not consider
    this allegation.
    Custer also contends that counsel was ineffective for failing
    to object to questions during the direct examination of Fields
    about Custer’s prior criminal record and status as a felon.
    Custer contends that counsel should have invoked Neb. Rev.
    Stat. § 27-609 (Reissue 2016), which deals with the impeach-
    ment by evidence of a conviction for a crime. Custer takes
    issue with the following question counsel directed at Fields
    on direct examination: “Q: [Custer] also is a felon, is that cor-
    rect? [Fields]: Yes.” While not cited by Custer, counsel then
    proceeded to ask:
    Q: And where has he done some time? State or —
    [Fields]: State jail.
    Q: State and county jail?
    A: Yeah.
    ....
    Q: Okay, and in fairness to him, I mean there is nothing
    similar to these charges?
    A: No.
    Q: It was theft or those types of things?
    A: That stuff, yes.
    27
    Brief for appellant at 24.
    28
    State v. Haas, 
    279 Neb. 812
    , 
    782 N.W.2d 584
    (2010).
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    Section 27-609(1) provides for the impeachment of a wit-
    ness on cross-examination when the witness has committed
    a felony or a crime of dishonesty.29 After the conviction is
    established, “‘the inquiry must end there, and it is improper to
    inquire into the nature of the crime, the details of the offense,
    or the time spent in prison as a result thereof.’”30
    Counsel’s conduct was not deficient. Having reviewed the
    record, it is apparent that the purpose of this line of question-
    ing was to emphasize that Custer’s prior criminal record was
    nonviolent. Given that Custer was charged in this case with
    first degree murder, it was not deficient for counsel to empha-
    size that while Custer might have a criminal record, the prior
    charges for which he was convicted were not violent crimes.
    And even if counsel was deficient in questioning Fields
    about Custer’s prior criminal record and status as a felon,
    Custer’s claim fails for lack of prejudice. On direct exami-
    nation, Custer also testified that he had been convicted of a
    felony and listed the felonies on his criminal record. There is
    no merit to this allegation of ineffective assistance of counsel.
    In addition, Custer contends that counsel was ineffective
    for failing to object to an answer made by Fields, which
    Custer contends was hearsay. Custer takes issue with the fol-
    lowing inquiry in the State’s direct examination of Fields:
    “Q: How about, to your knowledge did [Custer] ever indicate
    that he was scared of [McCormick] to you? [Fields]: No.
    Q: He didn’t indicate that [to] you? A: No.” Custer claims that
    counsel should have objected to Fields’ answer as hearsay,
    because Fields “is unqualified to know the thoughts and fears
    of [Custer].”31
    Custer mischaracterizes the above line of inquiry. The State
    asked whether Custer had indicated to Fields that he was
    29
    See State v. Castillo-Zamora, 
    289 Neb. 382
    , 
    855 N.W.2d 14
    (2014).
    30
    
    Id. at 388,
    855 N.W.2d at 22, quoting State v. Johnson, 
    226 Neb. 618
    , 
    413 N.W.2d 897
    (1987).
    31
    Brief for appellant at 25.
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    scared of McCormick. A witness may not testify to a matter
    unless evidence is introduced sufficient to support a finding
    that he has personal knowledge of the matter.32 The question
    concerns whether Custer had indicated anything to Fields. This
    is a fact within Fields’ personal knowledge of the matter and,
    as such, was admissible.33 Counsel was not deficient for failing
    to object.
    There is no merit to this assignment of error.
    (f) Jury Instructions
    Custer argues that counsel was ineffective for (1) failing to
    submit a proper jury instruction on self-defense in accordance
    with State v. Miller34 and NJI2d Crim. 7.3; (2) failing to pro-
    vide a “self-defense option on jury verdict form, and only 1
    jury verdict form was sent to the jury room, which prevented
    multiple jurors from seeing the jury form and understanding it
    completely”;35 (3) failing to identify manslaughter as voluntary
    manslaughter in jury instructions Nos. 4 and 5; (4) using the
    wrong definition of “premeditation” in jury instruction No. 7;
    (5) failing to include jury instruction No. 10, “Self Defense
    (Deadly Force),” as part of jury instruction No. 3, “Reasonable
    Doubt”; and (6) failing to object to jury instruction No. 14,
    because it “is confusing.”36
    We find that the jury was instructed on Custer’s claim of
    self-defense. Jury instruction No. 4 states, under the elements
    of first degree murder, “[t]hat the Defendant did not do so in
    self-defense.” Similarly, this phrase is also listed under the ele-
    ments of second degree murder and manslaughter.
    The language of jury instruction No. 10 comes directly from
    NJI2d Crim. 7.3. Custer contends that the language is improper
    32
    Neb. Rev. Stat. § 27-602 (Reissue 2016).
    33
    See 
    id. 34 State
    v. Miller, 
    281 Neb. 343
    , 
    798 N.W.2d 827
    (2011).
    35
    Brief for appellant at 26.
    36
    
    Id. at 29.
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    in light of State v. Miller.37 But Custer fails to allege how the
    instruction should have read in order for it to be “proper.”
    Therefore, we find that the above jury instruction properly
    instructed the jury on self-defense.
    Second, we find that “a self-defense option” was clearly
    explained in the jury instructions. As we stated, jury instruc-
    tion No. 10 defines self-defense under the circumstances of
    this case. Jury instruction No. 4 further states that the jury
    must find Custer not guilty of count I if “you find the State has
    failed to prove beyond a reasonable doubt any one or more of
    the elements.” Because “[t]hat the Defendant did not do so in
    self-defense” was one of the elements of first degree murder,
    second degree murder, and manslaughter, it necessarily follows
    that if the jury found the State had not proved that element, the
    jury would have to find Custer not guilty of both counts I and
    II. Therefore, the jury instructions provided adequate explana-
    tion and opportunity for the jury to find that Custer acted in
    self-defense.
    We do not consider the remainder of Custer’s allegations on
    appeal, because they were not alleged in his motion for post-
    conviction relief.
    There is no merit to this assignment of error.
    2. A ppointment of Counsel
    Finally, Custer contends that the district court erred in deny-
    ing him appointment of counsel because the “instant action” is
    a “‘critical stage of a criminal prosecution.’”38
    [12-14] There is no federal or state constitutional right to
    an attorney in state postconviction proceedings.39 Under the
    Nebraska Postconviction Act, it is within the discretion of
    the trial court as to whether counsel shall be appointed to
    37
    State v. Miller, supra note 34.
    38
    Brief for appellant at 10.
    39
    State v. McGhee, 
    280 Neb. 558
    , 
    787 N.W.2d 700
    (2010).
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    represent the defendant.40 Where the assigned errors in the
    postconviction petition before the district court are either
    procedurally barred or without merit, establishing that the
    postconviction action contained no justiciable issue of law or
    fact, it is not an abuse of discretion to fail to appoint appellate
    counsel for an indigent defendant.41 Because Custer’s postcon-
    viction motion presents no justiciable issues, the district court
    did not err in not appointing Custer postconviction counsel.
    VI. CONCLUSION
    We conclude the district court did not err when it determined
    that Custer’s motion for postconviction relief did not allege
    facts which constituted a denial of his constitutional rights and
    accordingly denied Custer’s motion. The judgment of the dis-
    trict court is affirmed.
    A ffirmed.
    Wright, J., not participating in the decision.
    40
    
    Id. 41 State
    v. Silvers, 
    255 Neb. 702
    , 
    587 N.W.2d 325
    (1998).