finding defendant was entitled to evidentiary hearing in postconvic- tion proceeding on claims asserted in direct appeal but on which record was insufficient to resolve
How later courts described this case
- finding defendant was entitled to evidentiary hearing in postconvic- tion proceeding on claims asserted in direct appeal but on which record was insufficient to resolve
- district court erred in failing to grant evidentiary hearing on ineffective assistance claim where claim was raised on direct appeal but record was insufficient to analyze claim, and same claim was raised on postconviction
Written by the judges who cited it.
The opinion
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State of Nebraska, appellee, v.
Joshua W. Nolan, appellant.
___ N.W.2d ___
Filed November 13, 2015. No. S-15-106.
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: 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.
3. ____: ____: ____. A 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 defend
ant’s rights under the Nebraska or federal Constitution.
4. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
5. 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.
6. Effectiveness of Counsel: Proof: 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 performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
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7. ____: ____: ____. To show prejudice under the prejudice component of
the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), test, the defendant must demonstrate a reasonable prob-
ability that but for his or her counsel’s deficient performance, the result
of the proceeding would have been different.
8. Proof: Words and Phrases. 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 suf-
ficient to undermine confidence in the outcome.
9. Effectiveness of Counsel. A court may address the two prongs of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, deficient performance and prejudice, in either order.
10. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
of ineffective assistance of appellate counsel which could not have been
raised on direct appeal may be raised on postconviction review.
11. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the defend
ant. That is, courts begin by assessing the strength of the claim appellate
counsel failed to raise.
12. ____: ____. 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.
13. ____: ____. When a case presents layered ineffectiveness claims, an
appellate court determines the prejudice prong of appellate counsel’s
performance by focusing on whether trial counsel was ineffective under
the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), test. If trial counsel was not ineffective, then the defend
ant suffered no prejudice when appellate counsel failed to bring an inef-
fective assistance of trial counsel claim.
14. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to
conduct criminal trials in a manner that provides the accused with a fair
and impartial trial.
15. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
ecutorial misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial.
16. Trial: Prosecuting Attorneys. Generally, 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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17. ____: ____. When a prosecutor’s comments rest on reasonably drawn
inferences from the evidence, he or she is permitted to present a spir-
ited summation that a defense theory is illogical or unsupported by the
evidence and to highlight the relative believability of witnesses for the
State and the defense. These types of comments are a major purpose of
summation, and they are distinguishable from attacking a defense coun-
sel’s personal character or stating a personal opinion about the character
of a defendant or witness.
18. Trial: Prosecuting Attorneys: Juries. A distinction exists between
arguing that a defense strategy is intended to distract jurors from what
the evidence shows, which is not misconduct, and arguing that a defense
counsel is deceitful, which is misconduct.
19. Trial: Photographs. If the State demonstrates that a police photograph
in question is not unduly prejudicial and that it has substantial evidential
value independent of other evidence, it is admissible.
20. ____: ____. Caution must be exercised when introducing police file
photographs so that the defendant is not prejudiced by evidence of a
prior contact with the police. In order to avoid such a prejudicial effect
where the fact of a prior criminal record is not properly before the jury,
the prosecution should avoid (1) use of such pictures in a form in which
they may be identified as police pictures and (2) references in testimony
to the files from which they were obtained.
21. Trial: Verdicts: Appeal and Error. Harmless error review looks
to the basis on which the trier of fact actually rested its verdict; the
inquiry is not whether in a trial that occurred without the error a guilty
verdict would surely have been rendered, but whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Joshua Nolan, pro se.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
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Miller-Lerman, J.
I. NATURE OF CASE
Joshua W. Nolan, the appellant, was convicted of first
degree murder and use of a deadly weapon to commit a
felony in connection with the killing of Justin Gaines. He was
sentenced to a term of life imprisonment for the first degree
murder conviction and a term of 10 years’ imprisonment for
the use of a deadly weapon to commit a felony conviction,
to be served consecutively. On direct appeal, we affirmed
Nolan’s convictions and sentences. See State v. Nolan, 283
Neb. 50, 807 N.W.2d 520 (2012). On March 31, 2014, Nolan
filed a pro se motion for postconviction relief. On January
21, 2015, the district court for Douglas County filed an order
in which it denied the motion without holding an evidentiary
hearing. Nolan appeals. We determine that the district court
erred when it denied Nolan an evidentiary hearing on three
of his claims, identified as A, B, and C, set forth in detail
below, and we reverse the decision of the district court on
these claims and remand the cause for an evidentiary hearing
on these claims. In all other respects, we affirm the decision
of the district court.
II. STATEMENT OF FACTS
The events underlying Nolan’s convictions and sentences
involve the shooting killing of Gaines. Nolan was 19 years old
at the time of the shooting. In our opinion regarding Nolan’s
direct appeal, we set forth the facts as follows:
The events leading up to Gaines’ death began on the
morning of September 19, 2009, the day of the shoot-
ing. Joshua Kercheval testified that at around 11:30 a.m.
that day, [Trevelle J.] Taylor and Nolan had shown up
at his house and that Kercheval drove Taylor and Nolan
around Omaha. Kercheval explained that Taylor asked
him to drive, although Kercheval was not told where
to go. Kercheval ended up driving them around town
for roughly 30 minutes before deciding to drive to a
gas station near 72d Street and Ames Avenue. Video
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surveillance from the gas station places the three of them
at the gas station from 1:21 to 1:30 p.m. Kercheval testi-
fied that when they left the gas station, he began driving
back toward his house. But as they approached the inter-
section of 45th and Vernon Streets, Taylor told Kercheval
to stop the car and Nolan and Taylor both got out. At
that point, Kercheval parked the car and was sitting in
the car texting on his telephone when he heard a number
of gunshots.
Meanwhile, at around 1 p.m., Gaines had driven past
a home near 45th Street and Curtis Avenue and had seen
Catrice Bryson, a close family friend, in the driveway.
Bryson was at the house visiting a friend and her baby,
but had stepped outside to smoke a cigarette. Gaines
pulled into the driveway, parked right behind Bryson’s
car, and greeted Bryson with a hug. Bryson and Gaines
began talking; Gaines sat back in his car, on the driver’s
side, one foot in, one foot out, with the car door open.
Bryson, standing with the open car door between her and
Gaines, continued talking with Gaines for roughly 10 to
15 minutes. Toward the end of their conversation, Bryson
went to get a pen from her car to give Gaines her tele-
phone number.
When Bryson turned back around, she saw two indi-
viduals with guns behind Gaines’ car and she heard shoot-
ing. The two shooters were on each side of Gaines’ car,
angled toward each other. Bryson described the shooter
on the passenger’s side of Gaines’ car as a black male in
his early twenties with a beard and goatee and shoulder-
length hair in braids, wearing a “do-rag.” Bryson identi-
fied the shooter on the passenger’s side of Gaines’ car
as Nolan.
Gaines, while still sitting in the driver’s-side seat of
his car, was shot in the back. Once Gaines had been hit,
the shooters made their escape, each fleeing in opposite
directions on Curtis Avenue. At that point, Bryson began
screaming for help. Several people responded, and the
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police arrived quickly thereafter. Gaines was transported
to a nearby hospital, but never regained consciousness
and was pronounced dead.
Several eyewitnesses to the aftermath of the shooting
testified at trial. Heather Riesselman, at the time of the
shooting, lived close to the house where the shooting
took place. On the day of the shooting, at approximately
1:40 p.m., Riesselman was outside on her porch with her
daughter. At that time, Riesselman saw a young black
man “jogging down the street.” Riesselman described
him as being roughly 5 feet 10 inches tall, medium build,
medium complexion, with his hair in braids and with a
long, thin goatee. Riesselman identified the man, in court,
as Nolan.
Carrie Schlabs was Riesselman’s next-door neighbor.
At approximately 1:30 p.m. on the day of the shooting,
Schlabs was at home with her husband and two friends
when they heard gunshots and dove to the floor. Once
the gunfire ceased, Schlabs heard screaming, so she got
to her feet and ran out to her front porch. Once outside,
Schlabs started running toward the screams on Curtis
Avenue, to the south, and she saw a young man running
to the north. Schlabs saw the young man holding his left
side, which made her think that he had been shot. Schlabs
ran up to him, getting to within a foot of him, and asked
if he needed help. In response, the individual just smiled
at Schlabs. At that point, Schlabs continued on toward the
screams. While Schlabs could not remember any specific
details of the young man’s physical appearance or cloth-
ing, she remembered his face. Schlabs identified the man,
in court, as Nolan.
Kercheval testified that after he had heard the gun-
shots, he had started the car, getting ready to drive
off. But then Kercheval saw Nolan approaching the car
and waited until Nolan jumped into the back passenger
seat. Once Nolan was in the car, he told Kercheval to
“Drive. Go.” Kercheval said that he began driving toward
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his house, but, at Nolan’s direction, Kercheval dropped
Nolan off near a school. Whether it was Nolan or Taylor
who was dropped off near the school was in dispute.
Kercheval’s next thought was to “go dump the car.” But
before he was able to do so, he was arrested. Taylor was
also arrested that day. Nolan, however, was not taken into
custody that day.
Eight days after the shooting, Nolan, driving in his
car, was pulled over for making an improper turn. The
officers received identification for both the driver and
the passenger. The officers knew that Nolan was associ-
ated with a local gang. Upon approaching the driver’s-
side door of the car, the arresting officer noticed bullet
holes in the car. After running data checks on both the
driver and the passenger, the officer saw that the Omaha
police homicide unit had put out a “locate” for Nolan. A
“locate” means that an officer wishes to speak with the
individual, but it does not give the officers authority to
arrest the individual.
At that point, the officer asked Nolan to get out of his
car and stand near the back fender area. Instead, Nolan
went past that area and sat on the curb. The officer
observed that Nolan moved “[v]ery quickly” and was
grabbing his waistband. The officer also observed that
Nolan’s pants were falling down and that it appeared as
if there was something heavy in his pants. Finally, when
asked if he had any weapons or other dangerous objects
on his person, Nolan did not respond. The officer con-
ducted a pat-down of Nolan, looking for weapons. The
pat-down revealed a .44-caliber gun, found in Nolan’s
waistband. A subsequent search of Nolan’s person uncov-
ered live ammunition, and Nolan was placed under arrest
at that time. The gun and ammunition were admitted into
evidence at trial over objection.
Nolan was charged with one count of murder in the
first degree and one count of use of a deadly weapon to
commit a felony. Nolan filed several pretrial motions.
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The motions relevant to this [direct] appeal are (1) a
motion to suppress the gun and ammunition recovered
from Nolan during the traffic stop, (2) a motion to
suppress identifications of Nolan by Riesselman and
Schlabs, and (3) a motion for the judge to recuse himself
from the case. Each of these motions was denied. The
case proceeded to a jury trial, and Nolan was convicted
of both crimes. Nolan was then sentenced to a term of
life imprisonment for the first degree murder conviction,
and a consecutive term of 10 years’ imprisonment for the
use of a weapon conviction. Nolan appeals.
State v. Nolan, 283 Neb. 50, 53-56, 807 N.W.2d 520, 529-
30 (2012).
Approximately 2 months after Gaines was killed, a gun was
found that was that was later matched to some of the bullet
casings that were found at the scene of the shooting. We wrote
about the finding of this gun in State v. Taylor, 287 Neb. 386,
842 N.W.2d 771 (2014). Trevelle J. Taylor was also convicted
of first degree murder and use of a deadly weapon to commit
a felony in connection with Gaines’ death. With respect to the
gun that was found, we stated in Taylor:
The State also adduced evidence that more than 2
months after the shooting, [Joseph] Copeland’s son found
a gun hidden in the bushes or trees of a nearby school.
The weapon was a semiautomatic 9-mm pistol. Three
bullet casings recovered from the scene of the shooting
were matched to the pistol.
287 Neb. at 390, 842 N.W.2d at 776.
The foregoing facts are also supported by the trial record in
this case. Joseph Copeland testified that he called the police
on November 27, 2009, because his son had found a gun at
a school near his residence. Copeland testified regarding his
son’s informing him of finding a gun and the location thereof:
“My son and his friend had been down at the school flying
an airplane, and at some point they lost the airplane in the
bushes, and they had went looking for it, and they had came
across a pistol,” and “he had brought it to the house and gave
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it to me, and then we called the police and had them come
pick it up.” When asked if the son physically took Copeland
to the area where the son had found the pistol, Copeland testi-
fied: “He did.”
At the current trial, the State’s firearms expert, Daniel
Bredow, testified that a spent bullet retrieved from Gaines’
body was a .44-caliber bullet, but it could not conclusively be
linked to the gun found on Nolan. Bullets at the scene were
fired from a .44-caliber weapon.
In our opinion in Nolan’s direct appeal at which he was
represented by counsel different from trial counsel, we restated
and consolidated Nolan’s assignments of error as follows:
[T]he district court erred in (1) denying [Nolan’s] motion
to suppress the gun and ammunition resulting from the
traffic stop, (2) denying his motion to suppress the iden-
tifications of Nolan made by [Heather] Riesselman and
[Carrie] Schlabs, (3) admitting the .44-caliber gun into
evidence in violation of Neb. Evid. R. 403 and 404, Neb.
Rev. Stat. §§ 27-403 (Reissue 2008) and 27-404 (Cum.
Supp. 2010), (4) allowing a cellular telephone company
employee to testify regarding telephone records, (5) deny-
ing his motion to recuse the trial judge, (6) giving a “step”
jury instruction, and (7) concluding that the evidence was
sufficient to sustain his convictions. Nolan, as his eighth
assignment of error, also claims that he received ineffec-
tive assistance of counsel at trial.
State v. Nolan, 283 Neb. at 56, 807 N.W.2d at 530-31. We
found no merit to any of Nolan’s assignments of error on
direct appeal.
With respect to the eighth assignment of error claiming inef-
fectiveness of trial counsel, we stated:
Nolan claims, consolidated and restated, that his trial
counsel, who was different from appellate counsel, pro-
vided ineffective assistance in three respects, by fail-
ing to (1) file a motion to suppress evidence retrieved
from the investigatory stop of Nolan’s car, (2) object
to prejudicial statements obtained through custodial
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interrogation in violation of Miranda, and (3) consult and
call a fingerprint expert or identification expert to rebut
the State’s testimony.
State v. Nolan, 283 Neb. 50, 74, 807 N.W.2d 520, 542 (2012).
With respect to Nolan’s first and second claims of inef-
fective assistance of counsel, we determined that the record
was sufficient to review the claims and that trial counsel’s
performance was not deficient. With respect to Nolan’s third
claim of ineffective assistance of counsel, we determined
that the record was not sufficient to review this claim on
direct appeal and declined to consider the claim at that time.
We stated:
Nolan claims that trial counsel should have called expert
witnesses in order to rebut aspects of the State’s case. In
particular, Nolan claims that trial counsel should have
consulted with experts on fingerprint evidence and the
reliability of eyewitness identification. But, while we
know such rebuttal evidence was not presented at trial,
the record does not establish whether trial counsel con-
sidered or explored such strategies, what may or may not
have led trial counsel not to pursue the strategies, or what
such experts would have said had they been retained and
called to testify. In other words, from our review of the
record, we cannot make any meaningful determination
whether expert testimony beneficial to Nolan could have
been produced or, if it could have, whether trial counsel
made a reasonable strategic decision not to present cer-
tain evidence. The record is, therefore, not sufficient to
adequately review these claims on direct appeal, and we
decline to consider them at this time.
State v. Nolan, 283 Neb. at 76-77, 807 N.W.2d at 543. In the
present postconviction action, Nolan repeated his allegations
regarding trial counsel’s assistance with respect to experts on
eyewitness identification and fingerprints, as claims A and B
respectively, but the district court did not hold an evidentiary
hearing on these claims. Having found no merit to Nolan’s
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assignments of error on direct appeal, we affirmed his convic-
tions and sentences.
On March 31, 2014, Nolan filed a pro se motion for post-
conviction relief. In his motion, Nolan alleged 14 claims of
ineffective assistance of trial and/or appellate counsel, which
he labeled “A” through “N.” Nolan alleged that his trial and/or
appellate counsel was ineffective for failing to
A. consult with and call an identification expert to rebut the
State’s case;
B. consult with and call a fingerprint expert to rebut the
State’s case;
C. call Gwendolyn Anderson to testify on behalf of Nolan;
D. object to prosecutor’s remarks during closing arguments
about the testimony of Joshua Kercheval;
E. consult with and call a firearms expert to rebut the
State’s case;
F. move for a rehearing of our opinion on direct appeal
regarding the identifications of Nolan made by Carrie Schlabs
and Heather Riesselman;
G. object to exhibits 169 and 170 presented by the State;
H. assign and argue on direct appeal that the handgun found
in Nolan’s possession 8 days after the murder was inadmissible
under Neb. Rev. Stat. § 27-403 (Reissue 2008);
I. move for a rehearing of our opinion on direct appeal
regarding the admissibility of the gun and ammunition found
during the traffic stop and subsequent pat-down of Nolan 8
days after the murder;
J. object to the prosecutor’s remarks during closing argu-
ments regarding “defense counsel’s job”;
K. object on grounds of prosecutorial misconduct to the
State’s use of tainted identifications and testimony of Schlabs
and Riesselman;
L. and M. object to Nolan’s sentence of life without parole,
which is unlawful under Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012); and
N. object to the State’s presenting inadmissible hearsay evi-
dence from Copeland as to where the 9-mm gun was found.
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On January 21, 2015, the district court denied Nolan’s
motion for postconviction relief without holding an eviden-
tiary hearing. With respect to Nolan’s claims A through K
and N, the district court determined that his motion should be
denied because
the allegations were raised and addressed in his direct
appeal. In addition, these arguments relate to tactical or
strategic decisions made by trial counsel which . . . Nolan
is bound by and he is [sic] not made a requisite showing
of how he may have been prejudiced by the decisions of
trial counsel.
With respect to Nolan’s claims L and M, the district court
denied relief because Nolan was 19 years old at the time of the
offense, and therefore was not entitled to relief under Miller v.
Alabama, supra. Accordingly, the district court denied Nolan’s
motion for postconviction relief without holding an eviden-
tiary hearing.
Nolan appeals.
III. ASSIGNMENT OF ERROR
Nolan assigns that the district court erred when it denied his
motion for postconviction relief without holding an eviden-
tiary hearing.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. State v.
Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
V. ANALYSIS
1. R elevant Postconviction Law
We begin by reviewing general propositions relating to
postconviction relief and ineffective assistance of counsel
claims before applying those propositions to the claims alleged
and argued by Nolan in this appeal.
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[2] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), pro-
vides that 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 constitutional
rights such that the judgment was void or voidable. State v.
Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015). Thus, in
a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his or
her rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable. State v.
Crawford, supra.
[3,4] A 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 infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution. State v. Huston, supra. If a postconviction motion
alleges only conclusions 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 evi-
dentiary hearing. Id.
[5-9] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right
to a fair trial. State v. Crawford, supra. To prevail on a
claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. State v. Crawford,
supra. To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Huston, supra. A reasonable probability
does not require that it be more likely than not that the defi-
cient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
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confidence in the outcome. Id. A court may address the two
prongs of this test, deficient performance and prejudice, in
either order. Id.
[10-13] A claim of ineffective assistance of appellate coun-
sel which could not have been raised on direct appeal may
be raised on postconviction review. State v. Huston, 291 Neb.
708, 868 N.W.2d 766 (2015). When analyzing a claim of inef-
fective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the
defendant. Id. That is, courts begin by assessing the strength of
the claim appellate counsel failed to raise. Id. Counsel’s fail-
ure to raise an issue on appeal could be ineffective assistance
only if there is a reasonable probability that inclusion of the
issue would have changed the result of the appeal. Id. When a
case presents layered ineffectiveness claims, we determine the
prejudice prong of appellate counsel’s performance by focusing
on whether trial counsel was ineffective under the Strickland
test. Id. If trial counsel was not ineffective, then the defendant
suffered no prejudice when appellate counsel failed to bring an
ineffective assistance of trial counsel claim. Id.
2. Nolan’s Claims for Postconviction R elief:
Claims A, B, and C Warrant
an Evidentiary H earing
In his motion for postconviction relief, Nolan alleged 14
claims of ineffective assistance of trial and/or appellate coun-
sel, which he listed as claims A through N. The State concedes
that reversal is warranted with respect to claims A, B, and
C, and on appeal, the parties focus on claims J, G, E, and N.
Accordingly, we consider Nolan’s claims in this order.
As an initial matter, we note that the State indicates in its
appellate brief that the district court erred when it denied
Nolan’s motion for postconviction relief without a hearing on
claims A, B, and C. The State therefore concedes that reversal
and remand for an evidentiary hearing should be ordered lim-
ited to claims A, B, and C. We agree with the State.
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In claim A, Nolan alleges that his trial counsel was ineffec-
tive for failing to consult with and call an identification expert
to rebut the State’s case regarding the eyewitness identifica-
tions of Nolan as a shooter. In claim B, Nolan alleges that his
trial counsel was ineffective for failing to consult with and
call a fingerprint expert to rebut the State’s case regarding
the presence of Nolan’s fingerprints found in the vehicle in
which Nolan, Taylor, and Kercheval were riding just before
the shooting occurred. In claim C, Nolan alleges that his trial
counsel was ineffective for failing to call Anderson to testify
on Nolan’s behalf and that appellate counsel was ineffective
for failing to raise the issue of trial counsel’s ineffectiveness
on direct appeal. Anderson’s testimony would allegedly be
at odds with the State’s witnesses regarding, inter alia, what
color clothing the shooter was wearing.
In our opinion in Nolan’s direct appeal, we stated that the
record was insufficient to evaluate the substance of Nolan’s
complaints, now identified on postconviction as claims A and
B. See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
The record is still insufficient, and an evidentiary hearing is
warranted. See State v. Seberger, 284 Neb. 40, 815 N.W.2d
910 (2012) (stating that district court erred when it failed to
grant evidentiary hearing on counsel’s ineffectiveness because,
after declining to address claim on appeal due to insufficient
record, we determined record was still insufficient to analyze
claim on defendant’s motion for postconviction relief). We
also agree with the State that claim C warrants an evidentiary
hearing. Based on the allegations in Nolan’s motion for post-
conviction relief, the record in this case, and the applicable
law, an evidentiary hearing is warranted on Nolan’s claims
A, B, and C. Thus, we determine that the district court erred
with respect to claims A, B, and C, and we reverse the district
court’s ruling denying these claims without an evidentiary
hearing and remand the cause for an evidentiary hearing on
claims A, B, and C.
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3. Nolan’s Claims for Postconviction R elief:
Claims J, G, E, and N
(a) Claim J: Prosecutor’s Remarks During Closing
Regarding Defense Counsel Summation
In claim J, Nolan alleges that his trial counsel was ineffec-
tive for failing to object to the prosecutors’ remarks regard-
ing “defense counsel’s job” made during closing arguments,
because the comments amounted to prosecutorial misconduct,
and that appellate counsel was deficient for not raising this
issue on appeal. We determine that the comments were not
improper and that the district court correctly rejected this claim
without an evidentiary hearing.
During the State’s initial closing argument, the prosecu-
tor stated:
So what do you have? What are the odds? Is this all
just mere coincidence? I mean, is the defense going to get
up here and do the smoke screens and mirrors. I assume
he will. That’s his job. That’s what he’s supposed to do.
He will get up here and try to pick apart every incon
sistency with every witness, and I concede to you that
there are inconsistencies. There are going to be incon
sistencies. It’s human error.
During the State’s rebuttal closing argument, a second pros-
ecutor stated:
Now, as [the other prosecutor] told you before she sat
down, it’s [defense counsel’s] job to get up here and go
through mirrors and smoke screens. And so what I’m
going to do is go through everything he had to say to
you and let you know how that’s not what you heard.
And I will tell you that our arguments are not evidence.
Okay. You twelve collectively will make that decision.
You twelve will talk about what you all remember hear-
ing. You will have every single one of those exhibits
with you. You will have the jury instructions with you.
Closing arguments are designed to just let you know how
we believe all the evidence fits together and whether
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you collectively think it fits together in that same way.
It’s not evidence. So some of the things — and I’ll point
them out — that [defense counsel] said you will have to
recall was not the evidence.
[14,15] We have stated that prosecutors are charged with
the duty to conduct criminal trials in a manner that provides
the accused with a fair and impartial trial. State v. Dubray,
289 Neb. 208, 854 N.W.2d 584 (2014). Because prosecutors
are held to a high standard for a wide range of duties, the
term “prosecutorial misconduct” cannot be neatly defined. Id.
Generally, prosecutorial misconduct encompasses conduct that
violates legal or ethical standards for various contexts because
the conduct will or may undermine a defendant’s right to a fair
trial. Id.
[16] Generally, in assessing allegations of prosecutorial mis-
conduct in closing arguments, a court first determines whether
the prosecutor’s remarks were improper. State v. Gresham, 276
Neb. 187, 752 N.W.2d 571 (2008); State v. Barfield, 272 Neb.
502, 723 N.W.2d 303 (2006), disapproved on other grounds,
State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
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. Id.
In State v. Barfield, supra, during closing arguments, the
prosecutor strongly insinuated that all defense lawyers are
liars. We stated, inter alia, that the evidence in the case was
not overwhelming and that the credibility of the witnesses was
a key factor and that accordingly, “the implication that defense
counsel was a liar, and by extension was willing to suborn per-
jury, was highly prejudicial when viewed in that context.” Id.
at 516, 723 N.W.2d at 315. We concluded that the prosecutor’s
remarks were misconduct and required a new trial.
[17,18] However, in Dubray, we stated:
[W]hen a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is per-
mitted to present a spirited summation that a defense
theory is illogical or unsupported by the evidence and to
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highlight the relative believability of witnesses for the
State and the defense. These types of comments are a
major purpose of summation, and they are distinguish-
able from attacking a defense counsel’s personal charac-
ter or stating a personal opinion about the character of a
defendant or witness.
So a distinction exists between arguing that a defense
strategy is intended to distract jurors from what the evi-
dence shows, which is not misconduct, and arguing that a
defense counsel is deceitful, which is misconduct.
289 Neb. at 227, 854 N.W.2d at 604-05.
In this case, the prosecutors made statements during closing
arguments that the defense counsel was going to use “smoke
screens and mirrors” to point out inconsistencies in the evi-
dence. These statements, when read in context, constituted
an argument by the State that defense counsel was intending
to divert the jurors’ attention from what the State believed
the evidence showed and to point out inconsistencies in the
evidence. The prosecutors’ statements, when read in context,
did not assert that defense counsel personally or defense law-
yers generally are deceitful, nor did the prosecutors state that
it is the job of defense counsel generally to mislead the jury.
Accordingly, we determine that the prosecutors’ remarks made
during closing arguments were not improper and therefore
were not prosecutorial misconduct.
Following our examination of the record, we determine that
given the absence of prosecutorial misconduct, trial counsel
was not deficient, and that therefore, appellate counsel was
not deficient for not claiming error on appeal. The district
court did not err when it denied relief on this claim without
an evidentiary hearing. We affirm this portion of the district
court’s order.
(b) Claim G: Exhibits 169 and 170
In claim G, Nolan alleges that his trial counsel was inef-
fective for failing to object to exhibits 169 and 170 and
that appellate counsel was ineffective for not raising this
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claim of ineffectiveness on appeal. We determine that the
district court correctly rejected this claim without an eviden-
tiary hearing.
Exhibits 169 and 170, which are black-and-white photo-
graphs of Nolan, were offered by the State. In exhibit 169,
Nolan was facing toward the camera, and in exhibit 170, Nolan
was facing away from the camera. Nolan asserts that exhibits
169 and 170 are mugshot photographs taken in connection with
a prior arrest and that the admission of the photographs was
improper and prejudicial because they implied to the jury that
Nolan had prior contact with the police or had been arrested
and/or convicted of prior crimes.
[19,20] We have previously stated that a police photo-
graph is admissible to show the reasonableness of a witness’
identification that the defendant and the person depicted are
the same, but such a photograph is not admissible simply to
prejudice the jurors by suggesting to them that the defendant
has a prior criminal record. See State v. Birge, 215 Neb. 761,
340 N.W.2d 434 (1983). If the State demonstrates that the
police photograph in question is not unduly prejudicial and
that it has substantial evidential value independent of other
evidence, it is admissible. See id. However, caution must be
exercised when introducing police file photographs so that the
defendant is not prejudiced by evidence of a prior contact with
the police. Id. In order to avoid such a prejudicial effect where
the fact of a prior criminal record is not properly before the
jury, the prosecution should avoid (1) use of such pictures in
a form in which they may be identified as police pictures and
(2) references in testimony to the files from which they were
obtained. See id.
Exhibits 169 and 170 were not prejudicial. There was no
indication at trial that they are mugshots or police pictures.
The attire does not signal the clothing of an incarcerated per-
son. The photographs do not look like traditional mugshot
photographs; in the photographs, Nolan is standing in front of
a wall with wood paneling and there are no writings, numbers,
or other insignia in the photographs that would indicate that
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Nolan is under arrest. Furthermore, there was no testimony at
trial that exhibits 169 and 170 were taken in connection with
a prior arrest. Even if the jury had speculated that the photo-
graphs were mugshots, as urged by Nolan, there would be no
basis for the jury to conclude that the photographs were taken
in connection with a prior arrest instead of the current arrest
for the crimes at issue in this case, and the photographs had
independent value regarding, inter alia, eyewitness descrip-
tions of the shooter.
Nolan’s trial counsel was not deficient for not object-
ing to the photographs, and therefore, appellate counsel was
not deficient for not claiming error on appeal. The district
court did not err when it denied relief on this claim without
an evidentiary hearing. We affirm this portion of the district
court’s order.
(c) Claim E: Firearms Expert
In claim E, Nolan alleges that his trial counsel was inef-
fective for failing to consult with and call a firearms expert
for the purposes of rebutting the State’s evidence to the effect
that some of the bullets recovered from the scene of the shoot-
ing were consistent with having been fired from a .44-caliber
gun, such as the .44-caliber gun found in Nolan’s possession.
Nolan further alleges that appellate counsel was deficient
for not raising this issue on appeal. Nolan asserts that if his
trial counsel had obtained a firearms expert, the expert could
have rebutted the State’s evidence and perhaps distinguished
the gun found in Nolan’s possession from a gun capable of
firing the bullets found at the scene of the shooting. The
district court correctly rejected this claim without an eviden-
tiary hearing.
The premise of Nolan’s argument and Nolan’s speculation
regarding the usefulness of a firearms expert’s testimony are
belied by the record. The record shows that Bredow, the State’s
expert, testified that some of the bullets found at the scene
were consistent with having been fired from a .44-caliber
gun, such as the .44-caliber gun found in Nolan’s possession.
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However, Bredow testified that there was not enough evidence
to determine that any of the bullets found at the scene were in
fact fired from the particular gun found on Nolan. According
to Bredow’s testimony, the evidence regarding the .44-caliber
gun found in Nolan’s possession was inconclusive and did not
directly tie Nolan to Gaines’ murder.
Because the evidence regarding the .44-caliber gun found in
Nolan’s possession was inconclusive and did not tie Nolan to
Gaines’ murder, the scope and potential for rebutting Bredow’s
testimony was limited. There is not a reasonable probability
that Nolan would have been acquitted if a firearms expert had
been obtained by Nolan. Therefore, Nolan was not prejudiced
by trial counsel’s decision to not obtain a firearms expert. The
records and files in this case affirmatively show that Nolan
was entitled to no relief on this claim. Trial counsel’s conduct
was not deficient, and appellate counsel was not deficient for
not claiming error on appeal. We affirm this portion of the
district court’s order.
(d) Claim N: Copeland’s Testimony
In claim N, Nolan alleges that his trial counsel was ineffec-
tive for failing to make a hearsay objection to Copeland’s tes-
timony regarding the location where his son found the 9-mm
gun which was later connected to the shooting of Gaines and
that appellate counsel was deficient for not raising this issue
on appeal. Even though Copeland’s testimony was inadmis-
sible hearsay, we determine the district court correctly rejected
this claim without an evidentiary hearing, because admission
of the testimony was harmless.
At trial, Copeland testified about how his son notified
Copeland of the location of the 9-mm pistol which was found
by his son months after the shooting. Copeland testified
in part:
[Prosecution:] After September 19th of 2009, did you
then have the occasion to call officers out to your resi-
dence on November 27th of 2009?
[Copeland:] We did.
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Q. And was that at approximately 12:30 in the
afternoon?
A. Yes.
Q. And do you recall on that day whether there was
any snow on the ground or anything like that?
A. There was none, no.
Q. And what — why did you call the police to your
residence?
A. My son and his friend had been down at the school
flying an airplane, and at some point they lost the air-
plane in the bushes, and they had went looking for it, and
they had came across a pistol, and —
....
A. — he had brought it to the house and gave it to me,
and then we called the police and had them come pick
it up.
Q. And did your son physically take you to the area
where he found the pistol?
A. He did.
Q. And can you, using Exhibit 119, show the jury
where your son took you?
A. This corner house right here (indicating), on the
backside of the house, there’s some bushes and stuff that
set right along the edge of the street, and it was approxi-
mately two to three feet off the street in some bushes.
About right here (indicating).
Nolan alleges that Copeland’s testimony regarding where
his son found the gun was inadmissible hearsay. The State con-
cedes that the testimony is inadmissible hearsay but contends
its admission was harmless.
Hearsay is a statement, other than one made by the declar-
ant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted. Neb. Evid. R. 801(3),
Neb. Rev. Stat. § 27-801(3) (Reissue 2008). A “statement” for
hearsay purposes includes “nonverbal conduct of a person,
if it is intended by him as an assertion.” § 27-801(1). Under
Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008),
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hearsay is not admissible unless a specific exception to the
hearsay rule applies. The State does not argue that Copeland’s
statement fell within any of these exceptions.
Copeland’s statement concerning the location where the
9-mm gun had been found as conveyed by the out-of-court
statement of his son should have been objected to and should
not have been admitted. Copeland did not personally find
the gun. Copeland knew the precise location at which the
gun was found only because of his son’s conduct, which
was an assertion by the son as to where the gun was found.
See, similarly, State v. Taylor, 287 Neb. 386, 842 N.W.2d
771 (2014) (determining that Copeland’s similar testimony
regarding location where his son found 9-mm pistol was
inadmissible hearsay).
[21] However, the State maintains that the admission of
Copeland’s testimony regarding how he learned of the gun
and where the gun was found was harmless error. Harmless
error review looks to the basis on which the trier of fact actu-
ally rested its verdict; the inquiry is not whether in a trial that
occurred without the error a guilty verdict would surely have
been rendered, but whether the actual guilty verdict rendered in
the questioned trial was surely unattributable to the error. See
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
We determine that the admission of Copeland’s testimony
concerning the location where the 9-mm gun was found was
harmless error. The 9-mm gun was not found in Nolan’s pos-
session, and there was no direct evidence that he had been in
possession of this gun. Nolan’s guilt was established in this
case by other relevant evidence, including eyewitness testi-
mony, Kercheval’s testimony, video footage from the gas sta-
tion, and Nolan’s fingerprints in the vehicle that Nolan, Taylor,
and Kercheval had been in just before the murder, and the
guilty verdict against Nolan was surely unattributable to the
error in admitting Copeland’s hearsay testimony.
The records and files in this case refute Nolan’s allega-
tion that his trial counsel was ineffective for failing to object
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to Copeland’s testimony. Furthermore, the allegations sur-
rounding this case do not demonstrate a violation of Nolan’s
constitutional rights. The record shows that Nolan was not
prejudiced by trial counsel’s conduct, and appellate counsel
was not deficient for not claiming error on appeal. Therefore,
the district court did not err when it denied relief without an
evidentiary hearing on this claim. We affirm this portion of the
district court’s order.
4. Claims D, F, H, I, K, L, and M
(a) Claim D: Prosecutor’s Remarks During Closing
Regarding Kercheval’s Testimony
In claim D, Nolan alleges that his trial counsel was ineffec-
tive for failing to object to remarks the prosecutor made during
closing arguments regarding Kercheval’s testimony. During
closing arguments, the prosecutor stated:
I mean, let’s call a spade a spade here. [Kercheval is]
not giving you full disclosure. He’s not going to sit here
and tell you what they’re saying word for word. These
were his friends. He’s charged with a crime. You think he
wants to seal the deal for this defendant? He knows what
he’s capable of. He gave you just enough that’s consistent
with what he said from the beginning to Detective Tramp
over and over again. But he’s not giving you everything
[that was] said in that car.
Nolan alleges that these comments constituted prosecutorial
misconduct and that his trial counsel was ineffective for failing
to object to them and appellate counsel was ineffective for not
raising this issue on appeal. The district court correctly rejected
this claim without an evidentiary hearing.
As stated above, generally, in assessing allegations of pros-
ecutorial misconduct in closing arguments, a court first deter-
mines whether the prosecutor’s remarks were improper. State
v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008); State
v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disap-
proved on other grounds, State v. McCulloch, 274 Neb. 636,
742 N.W.2d 727 (2007). It is then necessary to determine the
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extent to which the improper remarks had a prejudicial effect
on the defendant’s right to a fair trial. Id. As we have noted
above, “when a prosecutor’s comments rest on reasonably
drawn inferences from the evidence, he or she is permitted to
present a spirited summation that a defense theory is illogical
or unsupported by the evidence and to highlight the relative
believability of witnesses for the State and the defense.” State
v. Dubray, 289 Neb. 208, 227, 854 N.W.2d 584, 604 (2014)
(emphasis supplied).
In this case, during closing arguments, the prosecutor made
statements regarding Kercheval’s credibility that were based on
the evidence and the inferences that could be drawn therefrom.
These comments were not improper and did not constitute
prosecutorial misconduct. In this regard, we note that defense
counsel also made comments regarding Kercheval’s credibility
during closing arguments and suggested that Kercheval had
lied to the police and had lied to the jury at trial. Defense
counsel also made comments to the effect that Kercheval
lacked credibility because he had an incentive to cooperate
with the State in exchange for a reduced sentence on his pend-
ing charges.
Because both parties challenged the credibility of Kercheval,
the record refutes Nolan’s allegation that his trial counsel was
deficient for failing to object to the prosecutor’s remarks made
during closing arguments regarding Kercheval’s credibility or
that he was prejudiced by this alleged failing. Thus, appellate
counsel was not deficient for not claiming error on appeal.
Nolan is entitled to no relief on this claim. The district court
did not err when it denied postconviction relief on this claim
without an evidentiary hearing. We affirm this portion of the
district court’s order.
(b) Claim F: Rehearing Regarding
Identifications
In claim F, Nolan alleges that his appellate counsel was
ineffective for failing to move for a rehearing of our deci-
sion in Nolan’s direct appeal. See State v. Nolan, 283 Neb.
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50, 807 N.W.2d 520 (2012). Nolan contends that our opinion
was incorrect because it misstated the facts surrounding the
identifications made before trial by Schlabs and Riesselman
and that thus, we incorrectly determined that the identifica-
tions made by Schlabs and Riesselman did not need to be sup-
pressed and were admissible.
Our opinion on Nolan’s direct appeal reflected a synthe-
sis of several somewhat inconsistent versions of the tes-
timony surrounding the identifications. Our description on
direct appeal was supported by testimony. More important,
the argument Nolan implies is that the identification procedure
was unduly suggestive. We discuss this issue below in connec-
tion with claim K, wherein we reject the claim of an unduly
suggestive procedure. In State v. Nolan, supra, we rejected
Nolan’s argument, and upon our further review of the records
and files in this case, we determine that Nolan’s argument
that these identifications should not have been admitted is
without merit. At the trial of this matter, it was for the finder
of fact to determine the weight to be accorded to the wit-
nesses’ identifications.
Another challenge to the admissibility of the identifications
would not have succeeded on rehearing. Because a motion
for rehearing on this issue would not have yielded a different
result, appellate counsel was not deficient for not so moving.
The district court did not err when it denied relief on this claim
without an evidentiary hearing. We affirm this portion of the
district court’s order.
(c) Claim H: Admissibility
of the .44-Caliber Gun
In claim H, Nolan alleges that his appellate counsel was
ineffective for failing to vigorously argue on direct appeal
that the .44-caliber gun found in Nolan’s possession 8 days
after the murder of Gaines was inadmissible under § 27-403
for the reason that its admission was unfairly prejudicial.
Section 27-403 generally provides that relevant evidence may
be excluded if its probative value is substantially outweighed
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by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Nolan recognizes that his appellate coun-
sel raised this issue on direct appeal, but he asserts that his
appellate counsel failed to sufficiently argue the issue.
We have reviewed the record in this case, including the
appellate arguments made on direct appeal, and we deter-
mine that the issue of the admissibility of the .44-caliber gun
under § 27-403 was adequately raised and considered, and
properly decided on direct appeal. See State v. Nolan, supra.
The fact that appellate counsel did not persuade us is not to
be equated with deficient performance. We determine that the
records and files in this case affirmatively show Nolan was
entitled to no relief on this claim and that Nolan has failed
to allege any facts in his motion which, if proved, constitute
an infringement on his constitutional rights. The district
court did not err when it denied relief on this claim without
an evidentiary hearing. We affirm this portion of the district
court’s order.
(d) Claim I: Rehearing Regarding Motion
to Suppress .44-Caliber Gun
In claim I, Nolan alleges that his appellate counsel was
ineffective for failing to move for a rehearing of our deci-
sion on direct appeal because, according to Nolan, we incor-
rectly determined that the trial court properly denied Nolan’s
motion to suppress evidence of the .44-caliber gun found in
Nolan’s possession. Nolan asserts that our opinion was in
error because it misstated the facts surrounding the evidence
adduced in connection with the motion to suppress and that
thus, we made an incorrect determination based on incorrect
facts. Specifically, Nolan contends our opinion incorrectly
stated that there was evidence that Nolan was affiliated with
a gang and reasoned that this affiliation justified the pat-
down that resulted in the discovery of the .44-caliber gun on
Nolan’s person.
The records and files in this case refute Nolan’s allegation.
We have reviewed the record in this case. The record shows
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that Nolan’s conduct and lack of cooperation after exiting
the vehicle justified the pat-down, quite apart from the fact
that one of the officers believed that Nolan was affiliated
with a gang. In our opinion on direct appeal, we described
Nolan’s conduct after exiting the vehicle, in part, as “grab-
bing his waistband,” having “something heavy in his pants,”
and moving very quickly. State v. Nolan, 283 Neb. 50, 55, 807
N.W.2d 520, 530 (2012). We continue to believe that the trial
court properly denied the motion to suppress evidence of the
.44-caliber gun discovered during the traffic stop and pat-down
as we previously concluded. A motion for rehearing on this
issue would not have yielded a different result, and appellate
counsel was not deficient for not so moving.
The record shows that Nolan was not entitled to relief on
this claim, and Nolan has failed to allege any facts in his
motion which, if proved, constitute an infringement of his con-
stitutional rights. The district court did not err when it denied
relief on this claim without holding an evidentiary hearing. We
affirm this portion of the district court’s order.
(e) Claim K: Prosecutorial Misconduct
Regarding Identifications
In claim K, Nolan alleges that his trial counsel was ineffec-
tive for failing to object to the identifications of Nolan made
by Schlabs and Riesselman on the grounds of prosecutorial
misconduct. Nolan asserts that it was improper for the prosecu-
tion to allow both Schlabs and Riesselman to attend the meet-
ing (initially set for only Riesselman) at which the identifica-
tions were made. Nolan argues that the procedures followed at
the meeting resulted in both Schlabs and Riesselman making
tainted identifications and that the procedures amounted to
prosecutorial misconduct. This issue of the identifications
made by Schlabs and Riesselman was raised and rejected on
direct appeal. See State v. Nolan, supra.
We have reviewed the record and believe the steps taken by
the prosecution to separate the witnesses as they made their
identifications before trial were timely, effective, and proper.
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Based on the reasoning set forth in our opinion on direct
appeal, we determine that the facts surrounding the identifi-
cations made by Schlabs and Riesselman did not constitute
prosecutorial misconduct. Nolan’s claim that trial counsel was
deficient for failing to object to the identifications based on
prosecutorial misconduct is refuted by the record, and appel-
late counsel was not deficient for not claiming error on appeal.
The district court did not err when it denied relief without an
evidentiary hearing with respect to this claim. We affirm this
portion of the district court’s order.
5. Claims L and M: Miller v. Alabama
In claims L and M, Nolan claims that his trial counsel was
ineffective for failing to object to his sentence of life without
parole and that his appellate counsel was ineffective for not
raising this issue on direct appeal. Nolan argues that because
he was only 19 years old at the time of the crime, his sentence
of mandatory life imprisonment without the possibility of
parole is improper under Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Although Miller was
decided after Nolan’s direct appeal was concluded and we have
held it is to be applied retroactively, see State v. Mantich, 287
Neb. 320, 842 N.W.2d 716 (2014), cert. denied ___ U.S. ___,
135 S. Ct. 67, 190 L. Ed. 2d 229, the holding in Miller would
not afford Nolan relief. The district court correctly rejected this
claim without an evidentiary hearing.
Miller generally held that mandatory life sentences with-
out the possibility of parole for persons under 18 years old
at the time they committed their offense were unconstitu-
tional. Specifically, Miller provides that “mandatory life with-
out parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” 132 S. Ct. at 2460 (emphasis
supplied). In State v. Wetherell, 289 Neb. 312, 855 N.W.2d
359 (2014), we determined that Miller applies only to those
persons who were under the age of 18 at the time of their
crimes. In Wetherell, we determined that Miller did not apply
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to the appellant therein who was 18 years old at the time of
her crime.
In the present case, Nolan was 19 years old at the time of
Gaines’ murder, and accordingly, because he was not under
the age of 18 at the time of the crime, Miller does not apply
to him. Nolan has failed to allege facts in his motion which,
if proved, constitute an infringement on his constitutional
rights, and the records and files show that he is entitled to
no relief. Trial counsel was not deficient for not raising this
issue with the sentencing court, and appellate counsel was not
deficient for not claiming error on appeal. The district court
did not err when it concluded that Nolan was not entitled to
relief under Miller and denied relief on this claim without
an evidentiary hearing. We affirm this portion of the district
court’s order.
VI. CONCLUSION
The district court erred when it denied Nolan relief with-
out an evidentiary hearing on three claims: claim A, that trial
counsel was ineffective for failing to consult with and call
an identification expert to rebut the State’s case; claim B,
that trial counsel was ineffective for failing to consult with
and call a fingerprint expert to rebut the State’s case; and
claim C, that trial counsel was ineffective for failing to call
Anderson to testify on Nolan’s behalf and that appellate coun-
sel was deficient for not raising this issue on direct appeal.
We reverse the decision of the district court on these three
claims and remand the cause for an evidentiary hearing on
these claims. In all other respects, the decision of the district
court is affirmed.
A ffirmed in part, and in part reversed and
remanded for further proceedings.