State v. Lessley , 312 Neb. 316 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/28/2022 09:05 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. LESSLEY
    Cite as 
    312 Neb. 316
    State of Nebraska, appellee, v.
    Tyeric L. Lessley, appellant.
    ___ N.W.2d ___
    Filed August 26, 2022.   No. S-21-768.
    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: Judgments: Appeal and Error. Whether a claim raised
    in a postconviction proceeding is procedurally barred is a question of
    law. When reviewing a question of law, an appellate court reaches a
    conclusion independent of the lower court’s ruling.
    3. Appeal and Error. Alleged errors of the lower court must be both spe-
    cifically assigned and specifically argued in the brief of the party assert-
    ing the errors to be considered by an appellate court.
    4. Postconviction: Constitutional Law: Judgments. 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 constitutional rights such that the judgment was void or voidable.
    5. 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.
    6. ____: ____: ____. The district court must grant an evidentiary hearing
    to resolve the claims in a postconviction motion when the motion con-
    tains factual allegations which, if proved, constitute an infringement of
    the defendant’s rights under the state or federal Constitution.
    7. Postconviction: Pleadings. The allegations in a motion for postconvic-
    tion relief must be sufficiently specific for the district court to make
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    STATE V. LESSLEY
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    312 Neb. 316
    a preliminary determination as to whether an evidentiary hearing is
    justified.
    8.   Postconviction: Constitutional Law: Proof. An evidentiary hearing is
    not required on a motion for postconviction relief when (1) the motion
    does not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights rendering the judg-
    ment void or voidable; (2) the motion alleges only conclusions of fact or
    law without supporting facts; or (3) the records and files affirmatively
    show that the defendant is entitled to no relief.
    9.   Postconviction: Proof: Appeal and Error. When a district court denies
    postconviction relief without conducting an evidentiary hearing, an
    appellate court determines de novo whether the petitioner has alleged
    facts that would support the claim and, if so, whether the files and
    records affirmatively show that he or she is entitled to no relief.
    10.   Records: Appeal and Error. The appellate court will not scour the
    record on appeal to understand unclear arguments or find support for
    broad conclusions.
    11.   Appeal and Error. When an issue is raised for the first time in an
    appellate court, it will be disregarded inasmuch as a lower court cannot
    commit error in resolving an issue never presented and submitted to it
    for disposition.
    12.   Trial: Appeal and Error. An issue not presented to or decided on by
    the trial court is not an appropriate issue for consideration on appeal.
    13.   Postconviction. The need for finality in the criminal process requires
    that a defendant bring all claims for relief at the first opportunity.
    14.   Postconviction: Appeal and Error. A motion for postconviction relief
    cannot be used to secure review of issues that were known to the
    defend­ant and which were or could have been litigated on direct
    appeal.
    15.   Judgments: Claim Preclusion. Claim preclusion bars litigation of any
    claim that has been directly addressed or necessarily included in a for-
    mer adjudication, as long as (1) the former judgment was rendered by
    a court of competent jurisdiction, (2) the former judgment was a final
    judgment, (3) the former judgment was on the merits, and (4) the same
    parties or their privies were involved in both actions.
    16.   Records: Appeal and Error. It is the appellant’s responsibility to
    present a record that permits appellate review of the issue assigned
    as error.
    17.   Postconviction: Appeal and Error. When the defendant is represented
    both at trial and on direct appeal by the same counsel, the defendant’s
    first opportunity to assert ineffective assistance of trial counsel is in a
    motion for postconviction relief.
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    312 Nebraska Reports
    STATE V. LESSLEY
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    312 Neb. 316
    18. 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 per­
    formance actually prejudiced the defendant’s defense.
    19. ____: ____. To show that counsel’s performance was deficient, the
    defendant must show counsel’s performance did not equal that of a
    lawyer with ordinary training and skill in criminal law. To show preju-
    dice under the prejudice component of the Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant
    must demonstrate a reasonable probability that but for his or her coun-
    sel’s deficient performance, the result of the proceeding would have
    been different.
    20. ____: ____. 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 under-
    mine confidence in the outcome. The likelihood of a different result
    must be substantial, not just conceivable.
    21. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
    test under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), may be addressed in either order, and the entire
    ineffectiveness analysis should be viewed with a strong presumption that
    counsel’s actions were reasonable.
    22. Postconviction. In a motion for postconviction relief, a defendant is
    required to specifically allege what the testimony of potential witnesses
    would have been if they had been called at trial in order to avoid dis-
    missal without an evidentiary hearing.
    23. ____. Absent specific allegations, a motion for postconviction relief
    effectively becomes a discovery motion to determine whether evidence
    favorable to a defendant’s position actually exists.
    24. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.
    A defendant has a fundamental constitutional right to testify, and the
    right to testify is personal to the defendant and cannot be waived by
    defense counsel’s acting alone.
    25. Trial: Attorney and Client: Testimony. 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.
    26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
    Waiver. Defense counsel’s advice to waive the right to testify can pre­
    sent a valid claim of ineffective assistance of counsel in two instances:
    (1) if the defendant shows that counsel interfered with his or her
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    STATE V. LESSLEY
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    freedom to decide to testify or (2) if counsel’s tactical advice to waive
    the right was unreasonable.
    27. Postconviction: Effectiveness of Counsel: Testimony: Proof. In a
    postconviction action, when a defendant raises a claim of ineffective
    assistance of trial counsel related to counsel’s failure with regard to
    advising the defendant on his or her right to testify, an appellate court
    subjects the claim to the Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), standard and requires the defendant
    to show how trial counsel’s alleged deficient performance prejudiced
    the defense.
    28. Postconviction: Appeal and Error. In an appeal from the denial of
    postconviction relief, an appellate court will not consider for the first
    time on appeal claims that were not raised in the verified motion.
    Appeal from the District Court for Douglas County: Marlon
    A. Polk, Judge. Affirmed.
    Tyeric L. Lessley, pro se.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. INTRODUCTION
    The defendant challenges the district court’s denial of his
    motion for postconviction relief without holding an evidentiary
    hearing. The defendant alleged in the motion multiple errors
    committed by the trial court and multiple claims of ineffective
    assistance of trial counsel. The district court found that each of
    the allegations were either procedurally barred, insufficiently
    alleged, or affirmatively refuted by the record. We affirm.
    II. BACKGROUND
    1. Convictions
    Tyeric L. Lessley was charged with first degree murder
    under alternative theories of premeditated murder or felony
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    STATE V. LESSLEY
    Cite as 
    312 Neb. 316
    murder, in violation of 
    Neb. Rev. Stat. § 28-303
    (1) and (2)
    (Reissue 2016); two counts of use of a deadly weapon to com-
    mit a felony, in violation of 
    Neb. Rev. Stat. § 28-1205
    (1)(a)
    and (c) (Reissue 2016); first degree assault, in violation of
    
    Neb. Rev. Stat. § 28-308
     (Reissue 2016); and possession of a
    firearm by a prohibited person, in violation of 
    Neb. Rev. Stat. § 28-1206
    (1)(a)(b) (Reissue 2016).
    Lessley filed a motion to suppress all evidence obtained
    from a cell phone search. After a hearing, the motion to sup-
    press was denied. The district court held that Lessley waived
    his right to speedy trial.
    Before Lessley’s 5-day jury trial began, the State was
    allowed to amend its information by interlineation to remove
    the premeditated murder theory of proof with regard to the first
    degree murder charge. At trial, the State pursued the remaining
    theory of felony murder.
    Further details may be found in this court’s opinion on
    direct appeal, 1 but the evidence at trial generally showed as
    follows:
    (a) Events of October 29, 2016
    Between 4 and 4:30 a.m. on October 29, 2016, Curtis
    Goodwin was paying bills on his laptop computer in the home
    shared with his fiance, Suzanne Pope, in Omaha, Nebraska,
    while Pope was sleeping in a bed in the main floor living room
    of the residence, which the couple used as their bedroom.
    During this time, Goodwin left the home through the back
    door to investigate a knocking sound he heard at the front of
    the house. Goodwin testified that family and friends never used
    the front door of the residence, but instead entered and exited
    through the rear door.
    Goodwin grabbed a baseball bat before leaving the house.
    Goodwin then walked around to his front door, where he dis-
    covered a man knocking on the door. Goodwin asked the man
    if he could help him. The man pointed a gun in Goodwin’s face
    1
    State v. Lessley, 
    301 Neb. 734
    , 
    919 N.W.2d 884
     (2018).
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    STATE V. LESSLEY
    Cite as 
    312 Neb. 316
    and responded, “Yeah, n-----, I’m your worst mother f------
    nightmare.” The man, whom Goodwin testified he did not rec-
    ognize, then told Goodwin to go into the house.
    The two walked around the side of the house to the back
    entrance. Goodwin testified that at some point along the way,
    he dropped the bat. Once inside, the man told Goodwin to
    “give me all your money and your shit.” Goodwin woke Pope
    to tell her that someone was there to rob them. According
    to Goodwin, both he and Pope told the intruder they did not
    have any money. At that point, the intruder shot Pope, took
    Goodwin’s laptop, and shot Goodwin as Goodwin lunged
    at him.
    Goodwin was able to follow the intruder out of the house
    and into the backyard, where Goodwin collapsed as the
    intruder ran down the street carrying Goodwin’s laptop. At this
    time, Goodwin noticed an unfamiliar dark-colored Chevrolet
    Suburban or Tahoe parked in his driveway, which was located
    in the backyard of the residence. Goodwin testified that this
    vehicle had no license plates and described the back doors
    as opening “like kitchen cabinets.” The intruder walked back
    past Goodwin. By this time, Goodwin had retrieved the bat he
    dropped earlier and swung it in the direction of the intruder.
    Goodwin testified that he hit “something,” but did not know
    if it was the intruder. The intruder then shot Goodwin again,
    dropped the laptop, and drove away.
    Pope was killed and Goodwin was injured in this incident.
    Goodwin was in a coma for nearly 3 months and sustained the
    loss of one of his kidneys, his spleen and gallbladder, and sev-
    eral feet of his small intestine. Complications from his injuries
    caused Goodwin to fall into a second coma, during which he
    nearly died.
    “Shotspotter” evidence corroborated the timing of the gun-
    shots. Shotspotter is a technology utilized by the Omaha Police
    Department to determine the location of gunshots based upon
    sounds captured by microphones positioned in certain parts of
    the city. Here, Shotspotter captured the sound of two gunshots
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    STATE V. LESSLEY
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    at 4:30 and 4:31 a.m., 20 seconds apart, sounding from out-
    side Goodwin and Pope’s residence. Neighbors also testified
    they heard gunshots around that time.
    In addition, neighbors witnessed a vehicle travel west from
    the residence after they heard the gunshots. One neighbor
    testified that she saw a dark blue, green, or black Suburban
    or Tahoe. A second neighbor testified that he witnessed a
    dark-colored Suburban or Tahoe with a loud exhaust, custom
    wheels, and tinted windows, and that based upon his experi-
    ence with vehicles, he estimated the vehicle was between a
    1996 and 1999 model.
    (b) DNA and Other Evidence
    Goodwin’s laptop computer was found in the backyard near
    the driveway. It had a partial shoeprint on its cover. A tread
    expert testified that the shoeprint was consistent with a Nike
    “Shox” tennis shoe.
    Various items of evidence were also recovered from the
    scene and tested. The State’s DNA expert testified that the
    blood and baseball bat found at the scene were both swabbed
    and tested. Each produced a statistical match to Lessley’s
    DNA.
    Law enforcement later determined that on October 12, 2016,
    Lessley had purchased a 2001 green Chevrolet Suburban from
    an Omaha dealership. That dealership had global positioning
    system records placing the Suburban less than a mile southeast
    of the Goodwin-Pope residence at 4:18 a.m. on October 29.
    One of the investigating officers testified that it had taken him
    about 2 minutes to drive from the residence to the location
    noted in the global positioning system records.
    Lessley was arrested in January 2017. At the time of arrest,
    Lessley was wearing a pair of Nike Shox shoes, which were
    consistent with the shoeprint found on the laptop computer.
    Lessley’s Suburban was impounded at the time of his arrest.
    The Suburban still had in-transit signs and no license plates.
    It also had tinted windows, “barn-door” style rear doors, and
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    STATE V. LESSLEY
    Cite as 
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    a louder-than-stock exhaust. A search of Lessley’s residence
    recovered custom aftermarket rims.
    At the time of the shooting, Lessley and his girlfriend lived
    a 3-minute drive northwest of the Goodwin-Pope residence.
    Lessley’s girlfriend testified that Lessley returned from work
    on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
    asleep shortly after Lessley returned home and was awoken
    before 5:30 a.m. by Lessley’s talking on the telephone. At
    this time, Lessley’s girlfriend noticed a “hole” in the right
    side of Lessley’s forehead that he did not have when he
    came home from work. Lessley’s cell phone records show
    that he was on the cell phone between 4:58 and 5:06 a.m. on
    October 29.
    The jury was instructed only on the felony murder theory
    and was not instructed as to any other theory of first degree
    murder, or as to any other degree of murder. Lessley did not
    object to the instructions as given and did not offer any pro-
    posed instructions.
    The jury found Lessley guilty on all five counts. At the sen-
    tencing hearing, the district court initially sentenced Lessley
    to life imprisonment for first degree murder, 20 to 20 years’
    imprisonment for first degree assault, 3 to 3 years’ imprison-
    ment for possession of a deadly weapon by a prohibited per-
    son, and 5 to 5 years’ imprisonment on both use of a deadly
    weapon to commit a felony convictions. After counsel for the
    State and for Lessley raised the issue of indeterminate sen-
    tences, telling the district court that the sentences had to be
    different, the district court amended its sentences for counts
    II through V, where it added 1 day to the maximum term of
    each sentence so the minimum and maximum terms would
    not be the same. All sentences were ordered to be served
    consecutively.
    2. Direct Appeal and Resentencing
    On direct appeal, Lessley, with trial counsel, assigned that
    there was insufficient evidence to support his convictions
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    STATE V. LESSLEY
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    312 Neb. 316
    and that the district court erred in not instructing the jury
    on the lesser-included offense of manslaughter. This court
    affirmed Lessley’s convictions and determined that the dis-
    trict court did not err when it did not instruct the jury on
    manslaughter. However, this court found plain error in the
    sentences imposed for counts II through V. This court con-
    cluded that the original sentences imposed for these convic-
    tions were valid because the maximum term imposed by the
    court (5 years and 3 years) was not greater than the maximum
    term provided for by law (50 years) and the minimum term
    was the minimum term provided for by law (5 years and 3
    years), as set forth in 
    Neb. Rev. Stat. § 29-2204
    (1)(b) (Reissue
    2016). Therefore, this court vacated the modified sentences
    and remanded the cause for resentencing in conformity with
    the initial sentences of 5 to 5 years’ imprisonment for each
    use conviction and 3 to 3 years’ imprisonment for the posses-
    sion conviction.
    3. Postconviction Proceedings
    Lessley filed a timely motion for postconviction relief.
    The motion alleged various claims of ineffective assistance of
    counsel at trial and on direct appeal and numerous claims of
    error by the trial court. Many claims made in Lessley’s post-
    conviction motion have not been raised in his appeal.
    Relevant to the issues being raised on appeal, Lessley
    asserted in his postconviction motion that his trial counsel
    was ineffective for (1) advising him to waive his speedy trial
    rights, (2) failing to interview potential witnesses, (3) refus-
    ing to allow Lessley to testify regarding an extramarital affair
    he had with Pope and an altercation that ensued between him
    and Goodwin, (4) failing to present readily available expert
    testimony such as a serology expert, and (5) failing to object
    to the State’s amendment of the first degree murder charge on
    the first day of trial. Lessley further asserted that his appel-
    late counsel was ineffective for failing to raise on appeal the
    district court’s error in allowing the State to amend its infor-
    mation on the first day of trial and his excessive sentences
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    STATE V. LESSLEY
    Cite as 
    312 Neb. 316
    issue. Lessley also claimed the district court erred when rul-
    ing on the motion to suppress and instructing the jury. Lessley
    alleged his trial counsel was ineffective for failing to success-
    fully pursue the motion to suppress and object to erroneous
    jury instructions at trial and was ineffective on appeal for
    failing to pursue those issues.
    The district court entered a written order denying Lessley’s
    motion for postconviction relief without an evidentiary hear-
    ing, finding that each of the claims were either procedur-
    ally barred, insufficiently alleged, or affirmatively refuted by
    the record.
    III. ASSIGNMENTS OF ERROR
    Lessley assigns, consolidated and restated, that the district
    court erred when it (1) denied his request for appointment
    of postconviction counsel without a hearing, (2) denied his
    motion for postconviction relief without allowing the State
    to respond, and (3) denied his motion for postconviction
    relief without an evidentiary hearing as being without merit
    or procedurally barred. He also assigns that the district court
    erred during the trial stage of his proceedings by (1) failing
    to suppress evidence derived from an unlawful search warrant
    and supporting affidavit, (2) failing to find the State’s use of
    peremptory challenges to exclude jurors of a specific racial
    class violated his rights to due process and equal protection,
    (3) abusing its discretion by supporting a verdict that was
    insufficient to support his conviction for first degree murder,
    and (4) giving certain jury instructions.
    IV. STANDARD OF REVIEW
    [1] 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
    2
    State v. Cullen, 
    311 Neb. 383
    , 
    972 N.W.2d 391
     (2022).
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    312 Neb. 316
    [2] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law. 3 When reviewing a
    question of law, an appellate court reaches a conclusion inde-
    pendent of the lower court’s ruling. 4
    [3] Alleged errors of the lower court must be both specifi-
    cally assigned and specifically argued in the brief of the party
    asserting the errors to be considered by an appellate court. 5
    V. ANALYSIS
    Lessley asserts on appeal, broadly, that the district court
    erred in denying postconviction relief without first conducting
    an evidentiary hearing and in determining that his claims are
    without merit and are procedurally barred. More specifically,
    Lessley asserts multiple errors by the trial court and multiple
    claims of ineffective assistance of counsel.
    Before addressing the specific claims of postconviction
    relief that Lessley believes the court should have held an evi-
    dentiary hearing on, we set forth the general legal principles
    governing our analysis of appeals from the denial of postcon-
    viction claims without an evidentiary hearing and dispose of
    any claims Lessley raised that are procedurally barred or not
    properly before us for appellate review.
    [4-6] 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.
    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, caus-
    ing the judgment against the defendant to be void or voidable. 6
    3
    State v. Jaeger, 
    311 Neb. 69
    , 
    970 N.W.2d 751
     (2022).
    4
    
    Id.
    5
    
    Id.
    6
    Cullen, 
    supra note 2
    .
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    STATE V. LESSLEY
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    312 Neb. 316
    The district court must grant an evidentiary hearing to resolve
    the claims in a postconviction motion when the motion
    contains factual allegations which, if proved, constitute an
    infringement of the defendant’s rights under the state or fed-
    eral Constitution. 7
    [7,8] However, the allegations in a motion for postconvic-
    tion relief must be sufficiently specific for the district court to
    make a preliminary determination as to whether an evidentiary
    hearing is justified. 8 An evidentiary hearing is not required on
    a motion for postconviction relief when (1) the motion does
    not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights rendering
    the judgment void or voidable; (2) the motion alleges only
    conclusions of fact or law without supporting facts; or (3)
    the records and files affirmatively show that the defendant is
    entitled to no relief. 9
    [9,10] When a district court denies postconviction relief
    without conducting an evidentiary hearing, an appellate court
    determines de novo whether the petitioner has alleged facts
    that would support the claim and, if so, whether the files and
    records affirmatively show that he or she is entitled to no
    relief. 10 The appellate court does not conduct this review sua
    sponte, however; as with all appeals, the alleged errors of the
    lower court must be both specifically assigned and specifically
    argued in the brief of the party asserting the errors to be con-
    sidered by the appellate court. 11 The appellate court will not
    scour the record on appeal to understand unclear arguments or
    find support for broad conclusions. 12
    7
    Id.; Jaeger, supra note 3.
    8
    Jaeger, 
    supra note 3
    .
    9
    
    Id.
    10
    
    Id.
    11
    
    Id.
    12
    
    Id.
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    STATE V. LESSLEY
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    312 Neb. 316
    1. Claims Not Properly Brought
    for Appellate Review
    With these general principles in mind, this court notes that
    Lessley assigns many errors on appeal that he does not spe-
    cifically argue in his brief. Lessley assigns that the district
    court erred in denying his request for appointment of counsel
    without a hearing, failing to suppress evidence derived from
    an unlawful search warrant and supporting affidavit, failing to
    find the State’s use of peremptory challenges to exclude jurors
    of a specific racial class violated his rights to due process and
    equal protection, and supporting a verdict based on evidence
    that was insufficient to support a conviction of Lessley as
    guilty beyond a reasonable doubt for felony murder. These
    errors were not specifically argued in Lessley’s appellate brief,
    and we accordingly decline to consider these assignments in
    this appeal.
    [11,12] Other issues that are not properly before an appel-
    late court for review are issues that are not preserved below.
    A motion for postconviction relief must mirror the arguments
    made in a party’s appellate brief because we have said that
    when an issue is raised for the first time in an appellate court,
    it will be disregarded inasmuch as a lower court cannot com-
    mit error in resolving an issue never presented and submitted
    to it for disposition. 13 Therefore, an issue not presented to or
    decided on by the trial court is not an appropriate issue for
    consideration on appeal. 14
    Lessley asserts in one general statement in his brief that
    “[t]rial counsel rendered ineffective assistance of counsel by
    not making proper objections to evidence discovered in vio-
    lation of [Lessley’s] 4th amendment right to be free from
    unreasonable search and seizure.” 15 Lessley words this allega-
    tion in his motion for postconviction relief as “[t]rial counsel
    13
    See State v. Nadeem, 
    284 Neb. 513
    , 
    822 N.W.2d 372
     (2012).
    14
    State v. Lee, 
    304 Neb. 252
    , 
    934 N.W.2d 145
     (2019).
    15
    Brief for appellant at 11.
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    rendered ineffective assistance of counsel when said counsel
    fumbled what should have been a successful motion to sup-
    press evidence seized pursuant to the search warrant of his
    home, cell phone[,] and the questioning of his minor daughter
    . . . without a guard[ian] present at [the] interview.” These
    allegations are different. One focuses on the pretrial motion to
    suppress hearing, and the other focuses on trial counsel’s fail-
    ure to object to the evidence received at trial after the motion
    to suppress was denied.
    Lessley also contends in his appellate brief that counsel was
    ineffective because counsel failed to object to the court’s con-
    tinued delay of pretrial proceedings and that this caused him
    to unknowingly waive his speedy trial right. In contrast, in his
    motion, Lessley alleged that trial counsel was ineffective for
    advising him to waive his statutory right to speedy trial and
    argued that if he had not done so, the prosecution would have
    been pressed to move forward with trial with less than 30 days
    on the speedy trial clock.
    With both of these issues, Lessley is asserting for the first
    time on appeal that trial counsel was ineffective for failing to
    object during trial, but he raised different allegations in his
    motion for postconviction relief. Since the district court was
    not presented with these arguments, and thus did not decide
    whether trial counsel was ineffective for failing to object, it is
    inappropriate for this court to consider them on appeal.
    2. Claims That Are Procedurally Barred
    Lessley also assigns and argues errors that the district court
    correctly determined are procedurally barred. Lessley contends
    that the district court abused its discretion when it “meted out
    an invalid indeterminate sentence by imposing a fix[ed] inde-
    terminate sentence plus one day” and when it “failed and/or
    neglected to adjudicate this claim on postconviction relief.” 16
    Further, Lessley raises an issue with the jury instructions given
    16
    
    Id.
     at 13 and 14.
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    at trial, asserting that the trial court improperly defined reason-
    able doubt as a lower standard by which the State had to prove
    him guilty and in giving an instruction regarding the elements
    of “intent” because “[i]ntent is a mental element of the crime
    of [f]irst degree [m]urder (felony) and assault in the [f]irst
    [d]egree” and “[t]he trial court failed to give proper instruc-
    tions of willful, knowingly, with specific intent to [commit] the
    allege[d] crime, resulting in prejudice to [Lessley].” 17
    On direct appeal, 18 Lessley contended that the district court
    erred in not instructing the jury on the lesser-included offense
    of manslaughter and that there was insufficient evidence to
    support his convictions. The State raised the issue of Lessley’s
    sentences. We affirmed Lessley’s convictions and determined
    that it was not error for the district court to not instruct the
    jury on manslaughter. We also determined that the district
    court’s modifying Lessley’s sentences by adding 1 day to his
    maximum sentences was an invalid modification because the
    original sentences for the use and possession convictions were
    valid. We remanded the cause for resentencing, directing the
    district court to resentence Lessley according to the original
    sentences imposed.
    Lessley attempts to argue again that his sentences with 1
    day added were invalid indeterminate sentences. Lessley’s
    argument fails to take into account that these are no longer his
    sentences based on our remand in his direct appeal. Further,
    his motion attempts to argue that other jury instructions were
    incorrect. Since we considered a different issue regarding the
    instructions to the jury in his direct appeal, these issues should
    have been known to Lessley and should have been raised on
    his direct appeal. Therefore, we decline to consider these argu-
    ments here.
    [13-15] The need for finality in the criminal process
    requires that a defendant bring all claims for relief at the first
    17
    Id. at 9.
    18
    Lessley, supra note 1.
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    opportunity. 19 We have consistently said that a motion for post-
    conviction relief cannot be used to secure review of issues that
    were known to the defendant and which were or could have
    been litigated on direct appeal. 20 To the extent these arguments
    are being raised for the first time in relation to his motion for
    postconviction relief, they have not been brought at the first
    opportunity. To the extent these issues were raised and directly
    addressed or necessarily decided in our decision on direct
    appeal, they are barred by claim preclusion. Claim preclusion
    bars litigation of any claim that has been directly addressed or
    necessarily included in a former adjudication, as long as (1)
    the former judgment was rendered by a court of competent
    jurisdiction, (2) the former judgment was a final judgment, (3)
    the former judgment was on the merits, and (4) the same par-
    ties or their privies were involved in both actions. 21
    3. Due Process
    An issue that is properly before us and appropriate for
    appellate review is Lessley’s contention that the district court
    erred when it failed to allow the State the opportunity to
    respond to his motion for postconviction relief before rul-
    ing upon it. Lessley acknowledges that the petitioner has the
    burden of pleading and proving the facts necessary to entitle
    him to relief, but he argues that the State had the burden of
    pleading grounds of preclusion and then the burden returns to
    the petitioner to disprove the preclusion’s existence. He asserts
    that because the State was “never given the opportunity to
    respond,” the record was not complete for the district court to
    make a factual finding. 22
    Lessley’s motion for postconviction relief was filed on
    February 3, 2020, and the district court’s order denying
    19
    State v. Jackson, 
    296 Neb. 31
    , 
    892 N.W.2d 67
     (2017).
    20
    State v. Betancourt-Garcia, 
    310 Neb. 440
    , 
    967 N.W.2d 111
     (2021).
    21
    State v. Marrs, 
    295 Neb. 399
    , 
    888 N.W.2d 721
     (2016).
    22
    Brief for appellant at 7.
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    Lessley’s motion was filed on September 1, 2021. Lessley
    asserts in his brief that “[i]t has been the formal policy of the
    Douglas County District Court judges to allow the State 60 to
    90 days to respond to formal pleading of postconviction once
    the court has had an opportunity to review the postconviction
    pleading.” 23 While this may be true, the State had substantially
    more time than 60 to 90 days to respond to Lessley’s motion
    if it wished to.
    The State was not required to respond to Lessley’s motion
    for postconviction relief, and the district court was not in
    error in failing to order the State to respond. 
    Neb. Rev. Stat. § 29-3001
    (2) (Reissue 2016) states, in relevant part:
    Unless the motion and the files and records of a case
    show to the satisfaction of the court that the prisoner is
    entitled to no relief, the court shall cause notice thereof to
    be served on the county attorney, grant a prompt hearing
    thereon, and determine the issues and make findings of
    fact and conclusions of law with respect thereto.
    In State v. Burries, 24 we declined to conclude that the State
    has an obligation to raise issues concerning a postconvic-
    tion action at a time prior to that mandated by the statute. In
    Burries, the State had filed a motion to dismiss in response
    to the defendant’s first motion for postconviction relief. The
    defendant later filed a second amended motion for postcon-
    viction relief and argued on appeal that when the State failed
    to file a brief in response, the State effectively withdrew its
    motion to dismiss and conceded that he was entitled to relief.
    We acknowledged that though the State, through its county
    attorneys, can, and often does, participate at earlier points in
    the process, the State is only called upon to take action with
    respect to a motion once it receives notice from the court. And,
    under § 29-3001(2), that notice is only mandated once the court
    determines that a prisoner is entitled to a hearing. Therefore,
    23
    Id. at 7-8.
    24
    State v. Burries, 
    310 Neb. 688
    , 
    969 N.W.2d 96
     (2022).
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    we declined to conclude that the State has an obligation prior
    to the notice mandated through § 29-3001(2) to respond to a
    petitioner’s motion for postconviction relief.
    Similarly here, the district court determined that Lessley was
    not entitled to an evidentiary hearing on any claim he raised
    in his motion for postconviction relief. Therefore, the court
    was never required to provide notice to the State to issue a
    response, and the State was not obligated to provide a response
    to Lessley’s motion. Thus, the district court did not err in rul-
    ing on Lessley’s motion for postconviction relief without first
    receiving a response from the State.
    [16] To the extent Lessley argues the record was not com-
    plete without the State’s response, we reiterate that it is the
    appellant’s responsibility to present a record that permits appel-
    late review of the issue assigned as error. 25 Therefore, Lessley
    could not depend on any action from the State in order for the
    record to be complete for the district court to make a decision
    or for the appellate court to review its decision. The district
    court’s decision regarding whether a motion for postconviction
    relief is entitled to an evidentiary hearing is based solely on
    the facts alleged in the petitioner’s motion and the files and
    records of the case, which need not require a response from
    the State. 26
    4. Ineffective Assistance of Counsel
    [17] Lessley’s remaining contentions are ineffective assist­
    ance of counsel claims. Generally, a motion for postconviction
    relief cannot be used to secure review of issues that were or
    could have been litigated on direct appeal. However, when, as
    here, the defendant is represented both at trial and on direct
    appeal by the same counsel, the defendant’s first opportunity to
    assert ineffective assistance of trial counsel is in a motion for
    postconviction relief. 27
    25
    State v. Lester, 
    295 Neb. 878
    , 
    898 N.W.2d 299
     (2017).
    26
    See § 29-3001.
    27
    Jaeger, 
    supra note 3
    .
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    [18-21] To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington, 28 the defendant must
    show that his or her counsel’s performance was deficient and
    that this deficient performance actually prejudiced the defend­
    ant’s defense. 29 To show that counsel’s performance was defi-
    cient, the defendant must show counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in
    criminal law. To show prejudice under the prejudice compo-
    nent 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. 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. The
    likelihood of a different result must be substantial, not just
    conceivable. 30 The two prongs of this test may be addressed
    in either order, and the entire ineffectiveness analysis should
    be viewed with a strong presumption that counsel’s actions
    were reasonable. 31
    Lessley asserts that trial counsel was ineffective when coun-
    sel (1) failed to interview and investigate potential alibi wit-
    nesses, (2) refused to allow him to testify, (3) did not make
    readily available expert witnesses, and (4) failed to object to
    the State’s amendment of the information. We will discuss each
    of these claims individually.
    (a) Failure to Investigate or
    Interview Alibi Witnesses
    Lessley argues that trial counsel was ineffective because
    counsel failed to interview and investigate potential alibi
    28
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    29
    State v. Stricklin, 
    300 Neb. 794
    , 
    916 N.W.2d 413
     (2018).
    30
    
    Id.
    31
    Cullen, 
    supra note 2
    .
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    witnesses, such as Cordell Westbrook. Lessley asserts that
    Westbrook would have given testimony that he was with
    Lessley between 1:30 and 4:30 a.m. on October 29, 2016.
    Lessley argues that “[h]ad counsel interviewed and investi-
    gated . . . Westbrook as part of his trial investigation of the
    facts of the case, compelling testimony likely would have been
    given resulting in [Lessley’s] acquittal of aforemention[ed]
    charge to which the jury found him guilty.” 32
    In his motion for postconviction relief, Lessley added the
    allegation that Westbrook would have testified that he observed
    the “scar” on Lessley’s head at that time; however, we will
    not consider this allegation in our analysis because it was not
    alleged in Lessley’s brief. An appellate court considers errors
    that are both specifically assigned and specifically argued in
    the brief of the party asserting the error and will not read the
    brief together with a motion for postconviction relief in order
    to discern what the appellant’s complete argument is.
    [22,23] A defendant is required to specifically allege what
    the testimony of potential witnesses would have been if they
    had been called at trial in order to avoid dismissal without an
    evidentiary hearing. 33 Absent specific allegations, a motion for
    postconviction relief effectively becomes a discovery motion to
    determine whether evidence favorable to a defendant’s position
    actually exists. 34
    In State v. Munoz, 35 we determined the defendant’s allega-
    tions regarding witness testimony did not warrant an eviden-
    tiary hearing because they were insufficiently specific. In
    Munoz, the defendant alleged in his motion for postconviction
    relief that trial counsel was deficient in failing to depose or
    interview certain named witnesses who had knowledge of his
    whereabouts during the crime. The defendant claimed one
    32
    Brief for appellant at 11.
    33
    State v. Munoz, 
    309 Neb. 285
    , 
    959 N.W.2d 806
     (2021).
    34
    
    Id.
    35
    
    Id.
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    named witness’ testimony would have presented a rebuttable
    presumption to the State’s theory of how he allegedly mur-
    dered the victim and “‘would have contradicted the [S]tate’s
    evidence underlining proof of [his] alibi during the time of the
    victim’s murder.’” 36 But the defendant did not elaborate as to
    this potential testimony in any further detail. As to this wit-
    ness, we concluded that the defendant’s allegations consisted
    entirely of legal conclusions and conclusions of fact without
    supporting facts.
    The defendant in Munoz also alleged that another named
    witness had engaged in a conversation with the defendant’s son
    that was instrumental to his desire to travel out of town during
    the time the crime took place and that this testimony would
    have been pivotal because the witness possessed knowledge
    of the events leading to the defendant’s desire to travel. While
    the facts alleged by the defendant were more specific regarding
    the witness’ testimony, we found it was still insufficient to war-
    rant an evidentiary hearing. We explained that the defendant
    failed to allege when the conversation regarding his desire to
    travel with the witness took place—specifically whether the
    conversation took place before the murder—and the testimony
    would not have been exculpatory under the facts of the case
    because the alleged alibi was for when the victim, who had
    been murdered several days before, was found, not when she
    was murdered. We also noted that the testimony would have
    been inadmissible hearsay.
    In contrast, we found the facts alleged by the defendant in
    State v. Stricklin 37 were sufficient to show, if proved, both defi-
    cient performance and prejudice regarding his alibi defense. In
    Stricklin, the defendant alleged that on the day of the crimes,
    he took his stepson to a barber shop at 10 a.m., left the barber
    shop around noon, and drove to his grandmother’s house, dur-
    ing which drive he made a call on his cell phone at 12:34 p.m.
    36
    Id. at 295, 959 N.W.2d at 812.
    37
    Stricklin, 
    supra note 29
    .
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    The defendant alleged that four specifically named witnesses
    and his cell phone records would corroborate this alibi. At trial,
    the State relied on cell phone evidence that linked the defend­
    ant and his codefendant to the crime scene between 11:42 a.m.
    and 12:36 p.m. We noted that, based on the State’s theory of
    the case, the crimes occurred during the general time period
    the defendant’s alleged alibi witnesses would confirm he was
    someplace else. Since the defendant alleged that counsel knew
    of this alibi information and was deficient in failing to pre­
    sent it, we found that the defendant had alleged facts which,
    if proved, were sufficient to show both deficient performance
    and prejudice regarding his alibi defense and that the defendant
    was entitled to an evidentiary hearing on whether trial counsel
    was ineffective for failing to file notice of and present evi-
    dence of the defendant’s alibi defense.
    While Lessley alleged Westbrook would have attested that
    he was with Lessley between 1:30 and 4:30 a.m. on the day
    of Pope’s murder and Goodwin’s assault, he did not allege
    where Westbrook would have testified he and Lessley were
    at those times. Thus, this alleged potential testimony was not
    inconsistent with Westbrook’s being with Lessley outside of
    the victims’ house. Unlike in Stricklin, it was not potential
    evidence that Lessley was somewhere else. It was not alibi evi-
    dence. The allegation that had counsel interviewed and inves-
    tigated Westbrook as part of his trial investigation of the facts
    of the case, “compelling testimony likely would have been
    given resulting in [his] acquittal,” 38 is a factual conclusion and
    also insufficient.
    The district court did not err in denying Lessley’s motion
    without an evidentiary hearing on this claim.
    (b) Refusal to Allow Lessley to Testify
    Lessley asserts that trial counsel was ineffective because
    counsel refused to allow him to testify to an extramarital affair
    with Pope and the altercation that ensued between him and
    38
    Brief for appellant at 11.
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    Goodwin between 12:30 and 1:15 a.m. the night of Pope’s
    murder. Lessley argues that had this testimony been presented
    to the jury, it would have explained some of the circumstantial
    evidence present at the crime scene, which we presume means
    his DNA and his shoe print on Goodwin’s laptop.
    [24-27] A defendant has a fundamental constitutional right
    to testify, and the right to testify is personal to the defendant
    and cannot be waived by defense counsel’s acting alone. 39
    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. 40 Defense counsel’s
    advice to waive the right to testify can present a valid claim
    of ineffective assistance of counsel in two instances: (1) if the
    defendant shows that counsel interfered with his or her free-
    dom to decide to testify or (2) if counsel’s tactical advice to
    waive the right was unreasonable. 41 In a postconviction action,
    when a defendant raises a claim of ineffective assistance of
    trial counsel related to counsel’s failure with regard to advising
    the defendant on his or her right to testify, we have subjected
    the claim to the Strickland standard and required the defendant
    to show how trial counsel’s alleged deficient performance
    prejudiced the defense. 42
    Lessley does not specifically allege supporting facts that
    show how counsel interfered with his decision on whether
    to testify or if counsel’s advice to waive his right to testify
    was unreasonable. Lessley provides no detail regarding what
    discussions he had with counsel that would show counsel
    interfered with his right to testify and little detail as to what
    his testimony actually would have been. His allegation that
    counsel refused to let him testify to an extramarital affair
    39
    State v. Golyar, 
    301 Neb. 488
    , 
    919 N.W.2d 133
     (2018).
    40
    Cullen, 
    supra note 2
    .
    41
    Stricklin, 
    supra note 29
    .
    42
    Cullen, 
    supra note 2
    .
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    with Pope and an altercation between him and Goodwin is a
    conclusory factual statement that is insufficient without sup-
    porting facts.
    Lessley failed to allege sufficient facts that, if proved, would
    show counsel’s performance was ineffective with respect to
    Lessley’s right to testify. The district court did not err when it
    denied this claim without an evidentiary hearing.
    (c) Failure to Offer Expert Witnesses
    Lessley contends that trial counsel did not perform as a
    competent attorney because counsel did not make readily avail-
    able expert witnesses who would have presented scientific and
    forensic testimony to “refute the State’s evidence.” 43 More
    specifically, Lessley asserts that had counsel elicited testimony
    of a serology expert, “an expert would have testified the blood-
    spatter from the baseball bat and laptop was a mixture of . . .
    Goodwin and possibly [Lessley]” and would have “testified to
    the [n]ew testing procedures and the flaw[ed] testing proce-
    dures use[d] by the State[’]s forensic department.” 44 Lessley
    generally asserts that the failure to consult with an expert
    prejudiced his defense.
    [28] We will not consider Lessley’s argument that this
    expert would have testified to the flawed testing proce-
    dures by the State because this allegation does not appear in
    Lessley’s motion for postconviction relief. In an appeal from
    the denial of postconviction relief, we will not consider for
    the first time on appeal claims that were not raised in the
    verified motion. 45
    As for the remaining assertions, Lessley fails to allege how
    a serology expert’s testimony that the blood spatter was a mix-
    ture of Goodwin’s and Lessley’s blood would have changed
    the outcome of the trial. Lessley does not seem to dispute that
    at least some of the blood on the bat was his, and in light of
    43
    Brief for appellant at 12.
    44
    
    Id.
    45
    State v. Britt, 
    310 Neb. 69
    , 
    963 N.W.2d 533
     (2021).
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    all the evidence offered against him at trial, it is unclear how
    this expert testimony that would “refute the State’s evidence”
    would be enough to alter the outcome of the trial.
    Again, the facts Lessley alleges are insufficient to require
    an evidentiary hearing. The district court did not err in denying
    an evidentiary hearing on the alleged ineffectiveness of fail-
    ing to elicit testimony of a serology expert.
    (d) Failure to Object to Amendment
    of Information
    Finally, Lessley generally asserts trial counsel was ineffec-
    tive because counsel failed to object to the State’s amending
    the information on the first day of trial. Lessley argues that this
    prejudiced him “in that there was no time to prepare for the
    new charges.” 46
    The record affirmatively refutes this. The State is correct
    when it argues that there was no prejudice to Lessley. The
    State did not change or add charges when it amended the
    information; rather, it simply removed one of the theories of
    first degree murder that Lessley had been charged with. The
    State removed the premeditated murder theory and proceeded
    to trial on only the felony murder theory. Therefore, Lessley
    did not have to “prepare for the new charges” 47 or “prepare
    and present a new defense strategy” as he asserts. Lessley fails
    to allege facts to show that he was prejudiced by this amend-
    ment and that counsel was ineffective for failing to object to it.
    The district court did not err in denying Lessley an evidentiary
    hearing on this claim.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court denying Lessley’s motion for postconviction relief with-
    out an evidentiary hearing.
    Affirmed.
    46
    Brief for appellant at 12.
    47
    
    Id.