State v. Nolan

870 N.W.2d 806

State of Nebraska, appellee

v.Joshua W. Nolan, appellant.

No. S–15–106

Supreme Court of Nebraska.

Filed November 13, 2015

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Joshua Nolan, pro se.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, Cassel, and Stacy, JJ.

Syllabus by the Court

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 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.

3. Postconviction: Constitutional Law: Proof.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 defendant's rights under the Nebraska or federal Constitution.

4. Postconviction: Proof.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 evidentiary hearing.

5. Constitutional Law: Effectiveness of Counsel.A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional 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.

7. Effectiveness of Counsel: Proof: Appeal and Error.To show prejudice under the prejudice component of the Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, the defendant must demonstrate a reasonable probability 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 sufficient 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 defendant. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise.

12. Effectiveness of Counsel: Appeal and Error.Counsel's failure 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.

13. Effectiveness of Counsel: Appeal and Error.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 defendant suffered no prejudice when appellate counsel failed to bring an ineffective 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, 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.

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.

17. Trial: Prosecuting Attorneys.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. These types of comments are a major purpose of summation, and they are distinguishable from attacking a defense counsel'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. Trial: Photographs.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.

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 shooting. 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 surveillance from the gas station places the three of them at the gas station from 1:21 to 1:30 p.m. Kercheval testified that when they left the gas station, he began driving back toward his house. But as they approached the intersection 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 telephone number.

When Bryson turned back around, she saw two individuals with guns

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