State v. Johnson , 298 Neb. 491 ( 2017 )


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    02/23/2018 01:13 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. JOHNSON
    Cite as 
    298 Neb. 491
    State of Nebraska,         appellee, v.
    Craig A. Johnson,         appellant.
    ___ N.W.2d ___
    Filed December 22, 2017.   No. S-17-069.
    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.	 Effectiveness of Counsel: Appeal and Error. When a claim of inef-
    fective assistance of counsel presents a mixed question of law and fact,
    an appellate court reviews the lower court’s factual findings for clear
    error but independently determines whether those facts show counsel’s
    performance was deficient and prejudiced the defendant.
    3.	 Postconviction: Constitutional Law: Proof. A defendant seeking relief
    under the Nebraska Postconviction Act must show that his or her con-
    viction was obtained in violation of his or her constitutional rights.
    4.	 Postconviction: Constitutional Law: Judgments: Proof. An eviden-
    tiary hearing on a motion for postconviction relief is required on an
    appropriate motion containing factual allegations which, if proved,
    constitute an infringement of the movant’s rights under the Nebraska or
    federal Constitution, causing the judgment against the defendant to be
    void or voidable.
    5.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    When a district court denies postconviction relief without conducting
    an evidentiary hearing, an appellate court must determine whether the
    petitioner has alleged facts that would support a claim of ineffective
    assistance of counsel and, if so, whether the files and records affirma-
    tively show that he or she is entitled to no relief.
    6.	 Postconviction: Effectiveness of Counsel: Proof. If the petitioner has
    not alleged facts which would support a claim of ineffective assistance
    of counsel or if the files and records affirmatively show he or she is
    entitled to no relief, then no evidentiary hearing is necessary.
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    STATE v. JOHNSON
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    298 Neb. 491
    7.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective
    assistance of counsel claim alleges a violation of the fundamental con-
    stitutional right to a fair trial.
    8.	 Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. To prevail on a claim of ineffective assistance of counsel under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the defendant must show that his or her counsel’s perform­
    ance was deficient and that this deficient performance actually preju-
    diced the defendant’s defense. To show prejudice under the prejudice
    component of the Strickland test, the defendant must demonstrate a rea-
    sonable probability that but for his or her counsel’s deficient perform­
    ance, the result of the proceeding would have been different. A reason-
    able probability does not require that it be more likely than not that
    the deficient performance altered the outcome of the case; rather, the
    defendant must show a probability sufficient to undermine confidence
    in the outcome.
    9.	 Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
    Error. In determining whether defense counsel was ineffective in fail-
    ing to object to prosecutorial misconduct, an appellate court must first
    determine whether the petitioner has alleged any action or remarks that
    constituted prosecutorial misconduct.
    10.	 Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that
    does not mislead and unduly influence the jury does not constitute
    misconduct.
    11.	 Criminal Law: Directed Verdict. In a criminal case, the court can
    direct a verdict only when (1) there is a complete failure of evidence
    to establish an essential element of the crime charged or (2) evidence is
    so doubtful in character and lacking in probative value that a finding of
    guilt based on such evidence cannot be sustained.
    12.	 Criminal Law: Directed Verdict: Appeal and Error. In an appellate
    court’s consideration of a criminal defendant’s motion for a directed
    verdict, the State is entitled to have all its relevant evidence accepted as
    true, every controverted fact resolved in its favor, and every beneficial
    inference reasonably deducible from the evidence.
    13.	 Directed Verdict. If there is any evidence which will sustain a find-
    ing for the party against whom a motion for directed verdict is made,
    the case may not be decided as a matter of law, and a verdict may not
    be directed.
    14.	 Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
    misconduct in closing arguments, a court first determines whether the
    prosecutor’s remarks were improper. It is then necessary to determine
    the extent to which the improper remarks had a prejudicial effect on the
    defendant’s right to a fair trial.
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    STATE v. JOHNSON
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    298 Neb. 491
    15.	 Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or
    her argument on the evidence introduced at trial rather than on matters
    not in evidence.
    16.	 Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
    ences from the evidence in presenting his or her case, and such infer-
    ences generally do not amount to prosecutorial misconduct.
    17.	 Trial: Constitutional Law: Testimony. A defendant has a fundamental
    constitutional right to testify.
    18.	 Trial: Attorney and Client: Testimony: Waiver. The right to testify
    is personal to the defendant and cannot be waived by defense counsel’s
    acting alone.
    19.	 ____: ____: ____: ____. A trial court does not have a duty to advise the
    defendant of his or her right to testify or to ensure that the defendant
    waived this right on the record. Instead, defense counsel bears the pri-
    mary responsibility for advising a defendant of his or her right to testify
    or not to testify, of the strategic implications of each choice, and that the
    choice is ultimately for the defendant to make.
    20.	 Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
    Waiver. Defense counsel’s advice to waive the right to testify can
    present a valid claim of ineffective assistance in two instances: (1) if
    the defendant shows that counsel interfered with his or her freedom to
    decide to testify or (2) if counsel’s tactical advice to waive the right was
    unreasonable.
    21.	 Postconviction: Constitutional Law: Proof. In a postconviction pro-
    ceeding, an evidentiary hearing is not required (1) when the motion
    does not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights; (2) when the motion
    alleges only conclusions of fact or law; or (3) when the records and files
    affirm­atively show that the defendant is entitled to no relief.
    22.	 Effectiveness of Counsel: Appeal and Error. When analyzing a claim
    of ineffective assistance of appellate counsel, courts usually begin by
    determining whether appellate counsel failed to bring a claim on appeal
    that actually prejudiced the defendant.
    23.	 ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
    fective assistance only if there is a reasonable probability that inclusion
    of the issue would have changed the result of the appeal.
    24.	 Constitutional Law: Speedy Trial. Determining whether a defendant’s
    constitutional right to a speedy trial has been violated requires a balanc-
    ing test in which the courts must approach each case on an ad hoc basis.
    This balancing test involves four factors: (1) length of delay, (2) the
    reason for the delay, (3) the defendant’s assertion of the right, and (4)
    prejudice to the defendant.
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    STATE v. JOHNSON
    Cite as 
    298 Neb. 491
    25.	 Postconviction: Appeal and Error. A party cannot raise an issue in a
    postconviction motion if he or she could have raised that same issue on
    direct appeal.
    Appeal from the District Court for Cheyenne County: Derek
    C. Weimer, Judge. Affirmed.
    Craig A. Johnson, pro se.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    This is Craig A. Johnson’s appeal from the district court’s
    order denying him postconviction relief without an evidentiary
    hearing. We affirm.
    I. BACKGROUND
    In the spring of 2011, Johnson began dating April Smith.
    During their relationship, Johnson exhibited signs of jealousy
    about April’s relationship with her former husband Edward
    Smith. In November, Johnson told a coworker that he would
    kill April if she ever left him, and on December 10, he told his
    supervisor that if he ever caught April and Edward together, he
    would “beat the shit out of both of them.”
    Later that same day, April’s nephew, Robert Gray, his wife,
    and their children visited April and Johnson at her duplex.
    Gray testified that Johnson was drinking beer that night and
    was unusually quiet. Both Gray and his wife testified that
    Johnson was upset that Edward had repaired April’s van
    and that other men had been flirting with April. Gray’s wife
    also testified that Johnson’s demeanor was angry, that the
    interactions between Johnson and April were tense, and that
    they had begun to argue before the Grays left that evening.
    April’s neighbors reported hearing loud voices and arguing
    in the early morning hours of December 11, 2011. One of the
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    STATE v. JOHNSON
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    298 Neb. 491
    neighbors stated that she heard “a couple of thuds” as well.
    On December 12, April did not report to work and did not
    respond to Gray’s attempts to contact her. Two law enforce-
    ment officers went to April’s duplex and found April dead.
    April’s body was lying face down in the living room, and
    her feet and hands were bound. They observed ligature abra-
    sions on her neck, a wound on her hand and face, and a gap-
    ing wound on her abdomen. The pathologist who performed
    April’s autopsy concluded that pinpoint hemorrhages found
    on April’s mouth could have been caused by strangulation or
    suffocation. The ligature abrasion on her neck indicated stran-
    gulation. A forensic scientist found a fingerprint on a trash
    bag that matched one of Johnson’s fingerprints. DNA test-
    ing on blood found on the trash bag produced DNA profiles
    that matched April’s profile. An investigator testified that an
    imprint left on the trash bag appeared to be of a human face.
    Investigators also found two knives in the sink, one of which
    had an 8-inch blade with blood on it that matched April’s
    DNA. The duplex showed signs of a struggle, and blood
    was splattered throughout. The pathologist opined that her
    death was a homicide caused by the stab wound to her abdo-
    men and suffocation, with a contributing cause of multiple
    drug toxicity.
    On December 15, 2011, Johnson was arrested in Michigan
    while driving April’s van. When Nebraska investigators
    searched the van, they found Johnson’s T-shirt and athletic
    shoes with dark stains that they believed to be blood. The
    stains on both the T-shirt and the shoes tested positive for
    blood, and the DNA profile extracted from these stains matched
    April’s profile.
    After a jury trial in which Johnson did not testify, he was
    convicted of first degree murder, use of a deadly weapon to
    commit a felony, and possession of a deadly weapon by a
    prohibited person. The court sentenced him to prison terms of,
    respectively, life, 40 to 50 years, and 10 to 20 years, with all
    terms to be served consecutively.
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    STATE v. JOHNSON
    Cite as 
    298 Neb. 491
    On direct appeal, Johnson claimed that the court erred
    by admitting cumulative, gruesome autopsy photographs that
    depicted the same injuries, thus allowing the prosecutor to
    inflame the jurors’ passions. We rejected this claim, because
    Johnson did not assign and argue it.1 We also rejected his
    claim that the court erred by denying his Batson challenge
    based on an irrational and pretextual justification.2 In doing
    so, we held that the record supported the prosecutor’s concerns
    about the juror’s knowledge of the case. Lastly, we determined
    that the court did err by admitting testimony and exhibits that
    Johnson’s DNA profile contained certain alleles that matched
    alleles found in a mixed blood sample, because such evidence
    lacked sufficient probative value. However, we concluded that
    the error was harmless beyond a reasonable doubt.
    In Johnson’s verified motion for postconviction relief, he
    alleged multiple instances of ineffective assistance of coun-
    sel. Because Johnson was represented by the same lawyers at
    the time of his trial and on direct appeal, this postconviction
    proceeding was his first opportunity to assert claims of inef-
    fective assistance of counsel. Johnson alleged that his trial
    counsel was ineffective in failing to file a motion for absolute
    discharge on the basis of speedy trial, failing to object to the
    prosecutor’s comments in voir dire, failing to properly exam-
    ine various witnesses at trial, failing to argue after moving for
    a directed verdict, failing to object to the state’s closing argu-
    ment, failing to sever count III from the other charges, and
    failing to allow Johnson to testify at trial.
    The district court, without holding an evidentiary hearing,
    denied Johnson’s motion, finding that Johnson had failed to
    allege sufficient facts to demonstrate a violation of his constitu-
    tional rights and that the record and files affirmatively showed
    that he was entitled to no relief. Johnson timely appealed.
    1
    See State v. Johnson, 
    290 Neb. 862
    , 
    862 N.W.2d 757
    (2015).
    2
    See Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
          (1986).
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    STATE v. JOHNSON
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    298 Neb. 491
    II. ASSIGNMENTS OF ERROR
    Johnson assigns, restated, that the district court erred in
    overruling his motion for postconviction relief by (1) deny-
    ing his claim of ineffective assistance of counsel during voir
    dire, (2) denying his claim of ineffective assistance of counsel
    on the motion for directed verdict, (3) denying his claim of
    ineffective assistance of counsel during closing arguments, (4)
    denying his claim of ineffective assistance of counsel concern-
    ing his constitutional right to testify, (5) denying his claim
    of ineffective assistance of counsel on direct appeal, and (6)
    denying his claim of a violation of his constitutional right to a
    speedy trial.
    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.3
    [2] Likewise, when a claim of ineffective assistance of coun-
    sel presents a mixed question of law and fact, we review the
    lower court’s factual findings for clear error but independently
    determine whether those facts show counsel’s performance was
    deficient and prejudiced the defendant.4
    IV. ANALYSIS
    In its ruling on Johnson’s motion for postconviction relief,
    the district court determined that its records and files, as well
    as the bill of exceptions and transcript prepared for Johnson’s
    direct appeal, provided a sufficient record to consider each of
    Johnson’s claims. In doing so, the court ruled that he was not
    entitled to relief on his motion and was not entitled to an evi-
    dentiary hearing.
    3
    State v. Vela, 
    297 Neb. 227
    , 
    900 N.W.2d 8
    (2017).
    4
    See State v. Dubray, 
    289 Neb. 208
    , 
    854 N.W.2d 584
    (2014).
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    [3-6] A defendant seeking relief under the Nebraska
    Postconviction Act5 must show that his or her conviction was
    obtained in violation of his or her constitutional rights.6 An
    evidentiary hearing on a motion for postconviction relief is
    required on an appropriate motion containing factual alle-
    gations which, if proved, constitute an infringement of the
    movant’s rights under the Nebraska or federal Constitution,
    causing the judgment against the defendant to be void or
    voidable.7 When a district court denies postconviction relief
    without conducting an evidentiary hearing, an appellate court
    must determine whether the petitioner has alleged facts that
    would support a claim of ineffective assistance of counsel
    and, if so, whether the files and records affirmatively show
    that he or she is entitled to no relief.8 If the petitioner has not
    alleged facts which would support a claim of ineffective
    assist­ance of counsel or if the files and records affirmatively
    show he or she is entitled to no relief, then no evidentiary
    hearing is necessary.9
    1. Ineffective Assistance
    of Counsel
    [7,8] A proper ineffective assistance of counsel claim
    alleges a violation of the fundamental constitutional right to
    a fair trial.10 To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington,11 the defendant must
    show that his or her counsel’s performance was deficient
    and that this deficient performance actually prejudiced the
    5
    Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).
    6
    State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
    (2016).
    7
    Id.
    8
    Id.
    9
    
    Id. 10 Vela,
    supra note 3.
    11
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984).
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    defendant’s defense.12 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 performance, the result of the proceeding
    would have been different.13 A reasonable probability does
    not require that it be more likely than not that the deficient
    performance altered the outcome of the case; rather, the
    defendant must show a probability sufficient to undermine
    confidence in the outcome.14
    (a) Voir Dire
    Concerning the statements made by the prosecutor during
    voir dire, the court determined that the statements complained
    of by Johnson were not objectionable, and therefore, counsel
    was not ineffective for failing to object, and that Johnson
    failed to show how he was prejudiced by counsel’s perform­
    ance. Those statements include the prosecutor’s telling the
    prospective jurors that there would be no evidence of a shoot-
    ing or “gun play,” that the matter was not a death penalty
    case, that the evidence and testimony was “not pretty,” and
    that Johnson had “an obligation to put [the State’s] evidence
    to the test.”
    [9,10] In determining whether defense counsel was inef-
    fective in failing to object to prosecutorial misconduct, an
    appellate court must first determine whether the petitioner has
    alleged any action or remarks that constituted prosecutorial
    misconduct.15 A prosecutor’s conduct that does not mislead and
    unduly influence the jury does not constitute misconduct.16
    The first statement raised by Johnson—that there would be
    no evidence of a shooting or “gun play”—was not improper.
    12
    Vela, supra note 3.
    13
    
    Id. 14 Id.
    15
    See State v. Ely, 
    295 Neb. 607
    , 
    889 N.W.2d 377
    (2017).
    16
    
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    The evidence clearly showed that a gun was not found during
    the investigation, and there was no evidence that April was
    shot. The prosecutor brought up this issue during voir dire to
    address what he believed were inaccurate media reports about
    the case and to explain why the jurors must set aside anything
    that they may have heard about the case or what they may have
    seen about the case outside of the courtroom.
    It was not improper for the prosecutor to inform the jurors
    of their obligations so long as it was consistent with the law.
    Later, at the end of the trial, the court also instructed the jury
    that certain things were not evidence from which it could find
    the facts, including “[a]nything you may have seen or heard
    about this case outside the courtroom.” As a result, the pros-
    ecutor’s comment about “gun play” was not improper.
    The second statement raised by Johnson—that the State was
    not seeking the death penalty—was an important detail to share
    with the prospective jurors. If the State had been seeking the
    death penalty, the jury would have been tasked with determin-
    ing whether alleged aggravating circumstances existed. As a
    result, it was proper to inform the jury of what their responsi-
    bilities entailed. So to address the fact that the State was not
    seeking the death penalty was not improper.
    The third statement raised by Johnson—that the evidence
    and testimony was “not pretty”—was not improper. The crime
    scene and autopsy photographs depicted the violent end to
    April’s life, and the testimony of the pathologist detailed
    the injuries April sustained. This type of evidence would be
    disturbing to most jurors, and it was important for both the
    State and Johnson to know whether prospective jurors would
    be able to cope with seeing such evidence and maintain their
    impartiality. As a result, to phrase it as “not pretty” was
    not improper.
    In regard to the last statement raised by Johnson, that the
    defendant had an obligation to put the State’s evidence to
    the test, Johnson has taken this comment out of context. The
    entirety of the prosecutor’s statement was as follows:
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    The judge has a role to administer sentence. He has a role
    to rule on objections. He has a role to conduct the court
    accordingly and as the judge told you we are optimistic
    that we can try this case as quickly as possible. And I
    read about 21 names of potential witnesses, we have a
    [b]unch of exhibits, a [b]unch of photographs, a lot of
    videos, some physical evidence to put before you and
    then there are 21 witnesses and we are going to try to
    speed through them as quickly as possible but we also
    have an obligation, we have an obligation to meet our
    burden of proof and the defendant has an obligation to
    put our evidence to the test and that sometimes is not an
    exact science. There is no normal in a murder case or any
    jury trial. Most of the state’s witnesses in this case are
    coming from long distances away, some from Michigan,
    some from Iowa, there are a few local but most of them
    are from Scotts Bluff or f[a]rther. There could be traf-
    fic problems, there could be days [we] would run out of
    witnesses because we went to[o] fast and we ended [at]
    3:00, there may be days that we go a bit later maybe an
    hour later because we have to fit the witness [in], I think
    it is all of our goals to have this case to you no later than
    Monday, perhaps Tuesday of next week. Is it possible
    that you go Wednesday, maybe and maybe deliberations
    go on into Wednesday, could be longer could be much
    shorter. Is there anybody aside from those th[at] indicated
    earlier to the judge that is going to be so distracted about
    the [length] that this trial, the fact that their kids are not
    getting picked up or having to rearrange plans that they
    are not going to be able to focus on the evidence and just
    think about rushing justice?
    The prosecutor made the statement while explaining the
    number of witnesses intended to call and the amount of evi-
    dence he intended to present. The prosecutor was determining
    whether any of the prospective jurors would have difficulty
    with the length of the trial. The comment was not repeated
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    in the prosecutor’s comments regarding the State’s burden to
    prove Johnson guilty beyond a reasonable doubt. The com-
    ment was also not included in the prosecutor’s comments about
    Johnson’s presumption of innocence.
    Though we do not condone the use of the term “obliga-
    tion,” the same did not impose upon Johnson a compulsion
    to put the State’s evidence to the test. Further, the trial court
    instructed the jury at the end of the trial that “[i]n criminal
    prosecutions, the burden of proof never shifts from the State
    to the Defendant.” A phrase used no less than five times
    throughout the instructions. In addition, the jury was instructed
    that “[s]tatements, arguments, and questions of the attorneys
    representing both the State and [Johnson]” were not evidence.
    As a result, given the specific and limited context in which the
    phrase “obligation to put [the State’s] evidence to the test” was
    used, it was not improper.
    (b) Motion for Directed Verdict
    In regard to the claim that upon moving for a directed
    verdict, counsel failed to argue in support of the motion, the
    district court noted that sufficient evidence had been offered
    to support the charges and that therefore, argument would
    have been fruitless. As a result, the district court found that
    Johnson was not prejudiced by counsel’s failure to make such
    an argument.
    [11-13] In a criminal case, the court can direct a verdict only
    when (1) there is a complete failure of evidence to establish
    an essential element of the crime charged or (2) evidence is
    so doubtful in character and lacking in probative value that a
    finding of guilt based on such evidence cannot be sustained.17
    In our consideration of a criminal defendant’s motion for a
    directed verdict, the State is entitled to have all its relevant
    evidence accepted as true, every controverted fact resolved in
    its favor, and every beneficial inference reasonably deducible
    17
    State v. Betancourt-Garcia, 
    295 Neb. 170
    , 
    887 N.W.2d 296
    (2016).
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    from the evidence.18 If there is any evidence which will sustain
    a finding for the party against whom a motion for directed ver-
    dict is made, the case may not be decided as a matter of law,
    and a verdict may not be directed.19
    Johnson alleges that since his DNA and fingerprints were
    not found on the knife recovered in April’s home, the court
    should have granted a directed verdict on counts II and III.
    However, sufficient evidence was introduced to support the
    jury’s finding that Johnson committed the murder, including
    witnesses who had heard Johnson state that he would harm
    April if she ever left him, witnesses who saw Johnson and
    April arguing on the evening before the murder, a witness who
    heard thuds from April’s home on the night she was killed, the
    pathologist’s testimony that indicated the cause of April’s death
    was a stab wound or suffocation, April’s DNA that was found
    on the knife, Johnson’s fingerprints that were found on a trash
    bag used to suffocate or strangle April, Johnson who was found
    driving April’s van in Michigan after the murder, and Johnson
    who had April’s blood on his clothing and his shoes after
    the murder. Therefore, the court did not err in overruling the
    motion for directed verdict and any argument in support of the
    motion would have been without value. As a result, Johnson’s
    trial counsel could not be ineffective in failing to argue in sup-
    port of the motion for directed verdict.
    Because we find that none of the prosecutor’s statements
    were improper, trial counsel’s performance was not deficient
    when he failed to object to those statements. In addition, even
    if the prosecutor’s comments constituted misconduct, Johnson
    is unable to demonstrate a reasonable probability that but for
    his counsel’s deficient performance, the result of the proceed-
    ing would have been different, based upon the overwhelming
    evidence of guilt.
    18
    State v. Morley, 
    239 Neb. 141
    , 
    474 N.W.2d 660
    (1991), reversed on other
    grounds sub nom. Morley v. Stenberg, 
    828 F. Supp. 1413
    (1993).
    19
    See State v. Rothenberger, 
    294 Neb. 810
    , 
    885 N.W.2d 23
    (2016).
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    (c) Closing Argument
    In regard to counsel’s failure to object to the State’s clos-
    ing argument, Johnson contends that the argument was highly
    prejudicial to him and inflamed the jury. The district court
    ruled that counsel was not ineffective, because the State’s clos-
    ing argument was proper and was supported by the evidence.
    The prosecutor’s comment specifically complained of by
    Johnson is as follows:
    There is a tactic at play here, it’s not a surprise, let’s
    blame [April], let’s blame the police. Why do we do that
    to get the focus off of [Johnson]. To get the focus off of
    what did he do and the evidence against him. The other
    thing — the other tactic at work here is look at this piece
    of evidence, [defense counsel] got up here and he told
    you, you know, look at that — look at those few spots
    on the wall. One has April’s one has [Johnson’s], doesn’t
    mean nothing. Really does that mean proof beyond a
    reasonable doubt? Again, that is the temptation I asked
    you not to fall into, to look at a piece of information
    in isolation, to look at a piece of evidence in isolation
    and again, you know, blame the police, blame [April],
    get the focus off of [Johnson]. We want you to forget
    that his fingerprint is on this trash bag. We want you
    to forget that underneath the bag that is associated with
    him and the killing of April [are] these hats. Were the
    hats involved, I don’t know. They are in the trashcan
    and if there is a connection between those hats we
    know that one piece of evidence is certainly tied to
    . . . Johnson.
    [14] In assessing allegations of prosecutorial misconduct
    in closing arguments, a court first determines whether the
    prosecutor’s remarks were improper. It is then necessary to
    determine the extent to which the improper remarks had a
    prejudicial effect on the defendant’s right to a fair trial.20
    20
    State v. Nolan, 
    292 Neb. 118
    , 
    870 N.W.2d 806
    (2015).
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    [15,16] A prosecutor must base his or her argument on the
    evidence introduced at trial rather than on matters not in evi-
    dence.21 However, a prosecutor is entitled to draw inferences
    from the evidence in presenting his or her case, and such infer-
    ences generally do not amount to prosecutorial misconduct.22
    In State v. Dubray,23 we stated:
    [W]hen a prosecutor’s comments rest on reasonably
    drawn inferences from the evidence, he or she is permit-
    ted to present a spirited summation that a defense theory
    is illogical or unsupported by the evidence and to high-
    light the relative believability of witnesses for the State
    and the defense. These types of comments are a major
    purpose of summation, and they are distinguishable from
    attacking a defense counsel’s personal character or stat-
    ing a personal opinion about the character of a defendant
    or witness.
    Here, the record includes evidence of blood splatters on a
    wall which matched both April’s and Johnson’s blood; evi-
    dence of Johnson’s fingerprint on the trash bag; and evidence
    of two hats found in the garbage bag. As a result, the prosecu-
    tor correctly stated the facts. In addition, the jury was properly
    instructed that the “attorneys may draw legitimate deductions
    and inferences from the evidence.” The prosecutor’s com-
    ments did not amount to prosecutorial misconduct, because
    the inferences were based upon the evidence introduced at
    trial and because the jury was properly instructed in the use of
    these inferences.
    Further, the prosecutor’s comments were not an attack on
    the defense counsel’s character, but merely an argument that
    defense counsel was attempting to divert the juror’s attention
    from the relevant evidence. As a result, there was no pros-
    ecutorial misconduct, and therefore, Johnson’s trial counsel
    21
    State v. McSwine, 
    292 Neb. 565
    , 
    873 N.W.2d 405
    (2016).
    22
    See Nolan, supra note 20. See, also, Dubray, supra note 4.
    23
    Dubray, supra note 
    4, 289 Neb. at 227
    , 854 N.W.2d at 604-05.
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    could not be ineffective in failing to object to the State’s clos-
    ing argument.
    (d) Failure to Testify
    Concerning Johnson’s right to testify, the district court ruled
    that Johnson merely provided generalizations and factual con-
    clusions that he would have testified that he did not commit
    the murder and that he would have provided a reason why he
    was found in Michigan. As a result, the court found no demon-
    stration of prejudice.
    [17-19] A defendant has a fundamental constitutional right
    to testify.24 The right to testify is personal to the defendant and
    cannot be waived by defense counsel’s acting alone.25 But a
    trial court does not have a duty to advise the defendant of his
    or her right to testify or to ensure that the defendant waived
    this right on the record. Instead, “‘defense counsel bears the
    primary responsibility for advising a defendant of his or her
    right to testify or not to testify, of the strategic implications of
    each choice, and that the choice is ultimately for the defendant
    to make.’”26
    [20] Defense counsel’s advice to waive the right to tes-
    tify can present a valid claim of ineffective assistance in two
    instances: (1) if the defendant shows that counsel interfered
    with his or her freedom to decide to testify or (2) if counsel’s
    tactical advice to waive the right was unreasonable.27
    [21] However, if a postconviction motion alleges only con-
    clusions 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.28 Thus,
    in a postconviction proceeding, an evidentiary hearing is not
    24
    State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
    (2011).
    25
    
    Id. 26 Id.
    at 
    810-11, 806 N.W.2d at 421
    .
    27
    Iromuanya, supra note 24.
    28
    See State v. Thorpe, 
    290 Neb. 149
    , 
    858 N.W.2d 880
    (2015).
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    required (1) when the motion does not contain factual allega-
    tions which, if proved, constitute an infringement of the mov-
    ant’s constitutional rights; (2) when the motion alleges only
    conclusions of fact or law; or (3) when the records and files
    affirmatively show that the defendant is entitled to no relief.29
    In assessing postconviction claims of ineffective assistance
    of counsel for failure to call a particular witness, we have
    upheld the dismissal without an evidentiary hearing where the
    motion did not include specific allegations regarding the testi-
    mony which the witness would have given if called.30
    Johnson’s motion merely alleges that if he were allowed to
    testify, he “would have refuted the allegations against him”
    and he “wanted to explain to the jury why he traveled to
    Michigan.” These reasons are mere conclusions of fact and
    are not sufficiently detailed to constitute factual allegations
    which, if proved, constitute an infringement of the movant’s
    constitutional rights. Further, Johnson’s allegations are insuf-
    ficient to show a reasonable probability that the outcome
    would have been different but for the failure to call him as
    a witness.
    (e) Autopsy Photographs
    Johnson alleges that trial counsel was ineffective on direct
    appeal for assigning as an error the admission of cumulative,
    gruesome autopsy photographs that depicted the same injuries,
    but arguing that the district court erred in admitting crime
    scene photographs, not autopsy photographs.
    On direct appeal, we held that Johnson had not assigned
    that the court erred in admitting cumulative crime scene pho-
    tographs, and he had not argued his assignment that the
    court erred in admitting gruesome autopsy photographs. So
    we did not address whether the court erred in admitting
    any photographs.
    29
    
    Id. 30 Dubray,
    supra note 4.
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    Johnson contends generally that the autopsy photographs
    admitted during the direct examination of the pathologist who
    performed the autopsy were cumulative and gruesome and, as
    a result, were more prejudicial than probative.
    [22,23] When analyzing a claim of ineffective assistance of
    appellate counsel, courts usually begin by determining whether
    appellate counsel failed to bring a claim on appeal that actually
    prejudiced the defendant.31 That is, courts begin by assessing
    the strength of the claim appellate counsel failed to raise.32
    Counsel’s failure to raise an issue on appeal could be inef-
    fective assistance only if there is a reasonable probability
    that inclusion of the issue would have changed the result of
    the appeal.33
    We have reviewed the autopsy photographs admitted into
    evidence and conclude that they were necessary to understand
    the pathologist’s medical testimony regarding the severity
    of April’s injuries and to establish the cause and manner of
    April’s death. April suffered multiple stabs wounds and had
    numerous abrasions and ligature marks. The cause of her
    death included both a stab wound and/or strangulation or suf-
    focation. As such, the records and files in this case show that
    Johnson was not entitled to relief on the ground that defense
    counsel failed to object to the admission of the photographs
    during the trial. Therefore, defense counsel was not ineffective
    for failing to preserve the issue on direct appeal.
    2. Constitutional R ight
    to Speedy Trial
    In regard to Johnson’s claim that his constitutional right to a
    speedy trial was violated, the court ruled that because he failed
    to raise it on direct appeal, it was procedurally barred.
    31
    State v. Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
    (2015).
    32
    
    Id. 33 Id.
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    [24] Under U.S. Const. amend. VI and Neb. Const. art. I,
    § 11, a defendant has the right to a speedy trial. Determining
    whether a defendant’s constitutional right to a speedy trial has
    been violated requires a balancing test in which the courts must
    approach each case on an ad hoc basis.34 This balancing test
    involves four factors: (1) length of delay, (2) the reason for the
    delay, (3) the defendant’s assertion of the right, and (4) preju-
    dice to the defendant.35
    [25] However, a party cannot raise an issue in a postcon-
    viction motion if he or she could have raised that same issue
    on direct appeal.36 Whether Johnson’s constitutional right to
    a speedy trial was violated could have been raised in his
    direct appeal and was not. As a result, the claim is procedur-
    ally barred.
    V. CONCLUSION
    For the reasons set forth above, we conclude that Johnson
    was not entitled to an evidentiary hearing on his claims of inef-
    fective assistance of counsel. We therefore affirm the district
    court’s order.
    A ffirmed.
    Wright, J., not participating in the decision.
    34
    Betancourt-Garcia, supra note 17.
    35
    
    Id. 36 See
    State v. Jackson, 
    275 Neb. 434
    , 
    747 N.W.2d 418
    (2008).