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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. HENDERSON

Cite as 301 Neb. 633

State of Nebraska, appellee, v.

Tillman T. Henderson, app

___ N.W.2d ___

Filed November 30, 2018. No. S-17-535.

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. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

3. Postconviction: Appeal and Error. On appeal from the denial of 

postconviction relief without an evidentiary hearing, the question is not 

whether the movant was entitled to relief by having made the requisite 

showing. Instead, it must be determined whether the allegations were 

sufficient to grant an evidentiary hearing.

4. Postconviction: Pleadings. The allegations in a motion for postconviction relief must be sufficiently specific for the district court to 

make a preliminary determination as to whether an evidentiary hearing 

is justified.

5. Postconviction: Pleadings: Proof: Constitutional Law. In a proceeding under the Nebraska Postconviction Act, the application is required 

to allege facts which, if proved, constitute a violation or infringement 

of constitutional rights, and the pleading of mere conclusions of fact 

or of law is not sufficient to require the court to grant an evidentiary hearing.

6. Postconviction: Proof: Constitutional Law. A postconviction evidentiary hearing must be granted when the facts alleged, if proved, would 

justify relief, or when a factual dispute arises as to whether a constitutional right is being denied.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. When a 

defendant was represented both at trial and on direct appeal by the same 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/07/2018 08:09 AM CST
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counsel, the defendant’s first opportunity to assert ineffective assistance 

of counsel is in a motion for postconviction relief.

8. 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 

performance actually prejudiced the defendant’s defense. A court may 

address the two prongs of this test, deficient performance and prejudice, 

in either order.

9. Postconviction: Effectiveness of Counsel: Proof. In order to establish 

a right to postconviction relief based on a claim of ineffective assistance 

of counsel, the defendant has the burden first to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that 

of a lawyer with ordinary training and skill in criminal law in the area.

10. Effectiveness of Counsel: Presumptions. In determining whether trial 

counsel’s performance was deficient, courts give counsel’s acts a strong 

presumption of reasonableness.

11. Trial: Effectiveness of Counsel: Appeal and Error. An appellate court 

will not judge an ineffectiveness of counsel claim in hindsight.

12. ____: ____: ____. An appellate court must assess trial counsel’s performance from counsel’s perspective when counsel provided the assistance.

13. ____: ____: ____. When reviewing claims of ineffective assistance, an 

appellate court will not second-guess trial counsel’s reasonable strategic 

decisions.

14. Effectiveness of Counsel: Proof. To establish the prejudice prong of a 

claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for 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 probability sufficient to undermine confidence in 

the outcome.

15. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence 

to the contrary, it is presumed that a jury followed the instructions given 

in arriving at its verdict.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirme

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.
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STATE v. HENDERSON

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Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ., and Welch, Judg

Papik, J

Tillman T. Henderson was convicted of first degree murder, 

attempted first degree murder, and related firearms offenses. 

We affirmed his convictions on direct appeal. See State v. 

Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014). Henderson 

now appeals the order of the district court for Douglas County 

that denied his motion for postconviction relief without an 

evidentiary hearing. He alleges various claims of ineffective 

assistance of trial and appellate counsel. Finding that the district court did not err by denying Henderson’s postconviction 

claims without an evidentiary hearing, we affirm.

I. BACKGROUND

1. Tria

A detailed recitation of the evidence at trial can be found in 

our opinion on direct appeal. See State v. Henderson, supra.

In summary, Henderson was charged in connection with 

the shooting death of Matthew Voss and the nonfatal shooting of Antonio Washington. Evidence at Henderson’s jury trial 

showed that in the early morning hours of February 18, 2012, 

Voss and Antonio Washington both sustained gunshot wounds 

after a fight broke out at an after-hours party in downtown 

Omaha, Nebraska. Witnesses reported seeing two men firing guns. After a person at the scene identified Henderson to 

a police officer as one of the shooters, police apprehended 

Henderson as he was running from the scene of the incident. 

Henderson was in possession of one gun when he was arrested, 

and a police officer saw him throw another gun under a vehicle 

as the officer was chasing him. Forensic evidence presented at 

trial tied bullets and casings found at the scene of the shootings 

to those guns. DNA testing indicated that blood found on clothing worn by Henderson had come from Voss.

The jury found Henderson guilty of first degree murder, 

attempted first degree murder, two counts of use of a deadly 
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weapon to commit a felony, and possession of a deadly weapon 

by a prohibited person.

2. Direct App

Represented by the same counsel that represented him 

at trial, Henderson appealed his convictions. See State v. 

Henderson, supra. He made numerous assignments of error 

pertaining to pretrial and trial rulings. This court affirmed 

Henderson’s convictions and sentences. The U.S. Supreme 

Court denied Henderson’s petition for certiorari. See Henderson 

v. Nebraska, ___ U.S. ___, 135 S. Ct. 2845, 192 L. Ed. 2d 881 

(2015).

3. Postconviction Pro

Following direct appeal, Henderson filed an application for 

postconviction relief. He alleged various instances of ineffective assistance of trial and appellate counsel. In response, 

the State filed a motion to dismiss. The district court denied 

postconviction relief without an evidentiary hearing. It determined that Henderson had failed to show either that he had 

received deficient representation or that he had suffered prejudice. Henderson now appeals that order.

II. ASSIGNMENTS OF ERROR

Henderson assigns, rephrased and summarized, that the district court erred in denying him an evidentiary hearing on 

his application for postconviction relief, which alleged various instances of ineffective assistance of counsel at trial and 

on appeal.

III. 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. State v. 

Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
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IV. ANALYSIS

[2,3] Before turning to Henderson’s specific arguments on 

appeal, we review the general principles governing postconviction actions asserting claims of ineffective assistance of 

counsel. Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. State v. 

Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018). On appeal from 

the denial of postconviction relief without an evidentiary hearing, the question is not whether the movant was entitled to 

relief by having made the requisite showing. Instead, it must 

be determined whether the allegations were sufficient to grant 

an evidentiary hearing. Id.

[4-6] The allegations in a motion for postconviction relief 

must be sufficiently specific for the district court to make 

a preliminary determination as to whether an evidentiary 

hearing is justified. Id. In a proceeding under the Nebraska 

Postconviction Act, the application is required to allege facts 

which, if proved, constitute a violation or infringement of 

constitutional rights, and the pleading of mere conclusions of 

fact or of law is not sufficient to require the court to grant an 

evidentiary hearing. Id. An evidentiary hearing must be granted 

when the facts alleged, if proved, would justify relief, or when 

a factual dispute arises as to whether a constitutional right is 

being denied. Id.

[7,8] Here, Henderson bases his claim to postconviction 

relief on ineffective assistance of trial and appellate counsel. 

When, as here, a defendant was represented both at trial and 

on direct appeal by the same counsel, the defendant’s first 

opportunity to assert ineffective assistance of counsel is in a 

motion for postconviction relief. State v. Ely, 295 Neb. 607, 

889 N.W.2d 377 (2017). 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 
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prejudiced the defendant’s defense. State v. Newman, 300 Neb. 

770, 916 N.W.2d 393 (2018). A court may address the two 

prongs of this test, deficient performance and prejudice, in 

either order. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 

318 (2017).

[9-13] In order to establish a right to postconviction relief 

based on a claim of ineffective assistance of counsel, the 

defendant has the burden first to show that counsel’s performance was deficient; that is, counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Haynes, supra. In determining 

whether trial counsel’s performance was deficient, courts give 

counsel’s acts a strong presumption of reasonableness. State v. 

Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). An appellate court will not judge an ineffectiveness of counsel claim 

in hindsight. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 

404 (2011). We must assess trial counsel’s performance from 

counsel’s perspective when counsel provided the assistance. 

Id. When reviewing claims of ineffective assistance, we will 

not second-guess trial counsel’s reasonable strategic decisions. Id.

[14] Next, the defendant must show that counsel’s deficient 

performance prejudiced the defense in his or her case. State v. 

Haynes, supra. To establish the prejudice prong of a claim of 

ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been 

different. See State v. Schwaderer, supra. 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. State v. Custer, 298 Neb. 279, 903 

N.W.2d 911 (2017).

With these principles in mind, we turn to Henderson’s 

arguments.
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1. Alleged Failure to Ca

Other Witness

In his motion for postconviction relief, Henderson asserted 

that trial counsel was ineffective in failing to interview, depose, 

and call three additional witnesses to testify. He now contends 

that the district court erred in denying him an evidentiary 

hearing concerning these claims. For reasons explained below, 

we disagree.

(a) Timothy Washington

First, Henderson claims his trial counsel should have called 

Timothy Washington. Henderson argues that had Timothy 

Washington been called to testify, he would have rebutted the 

testimony of a witness called by the State, Vasili Petrihos. At 

trial, Petrihos testified that a young black man, who was later 

apprehended and identified as Henderson, was “tensed up and 

all hyped up,” “huffing and puffing,” and “getting aggravated” 

and appeared “ready to fight” near the shooting site immediately prior to the shooting.

In his motion for postconviction relief, however, Henderson 

did not reference Petrihos or his testimony. Henderson asserted 

only that Timothy Washington was willing to testify about 

Henderson’s “demeanor and the direction . . . Henderson had 

been headed . . . minutes before the shooting” and that such testimony could have impeached the testimony of other unspecified witnesses as to Henderson’s whereabouts, demeanor, and 

actions in the minutes before the shooting. The motion did not 

explain what Timothy Washington would have testified regarding Henderson’s location, demeanor, or direction.

The lack of explanation as to what Timothy Washington 

would have testified is relevant because 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. See State v. Abdullah, 289 Neb. 

123, 853 N.W.2d 858 (2014). Absent specific allegations, 

a motion for postconviction relief is subject to dismissal 
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without an evidentiary hearing. See id. Because Henderson’s 

motion did not describe Timothy Washington’s alleged testimony with sufficient specificity, an evidentiary hearing was 

not warranted.

(b) Deonta Marion

Next, Henderson asserts that he is entitled to postconviction 

relief because his trial counsel failed to call Deonta Marion. 

Henderson alleged in his motion for postconviction relief that 

Marion gave a statement to police regarding the shooting. 

Henderson attached a document to his motion that appears 

to be a police report documenting that statement. The report 

stated that Marion described one shooter as wearing a “‘white 

or a light-colored short-sleeve shirt’” and the other as wearing 

“‘dark clothing.’” Later in the report, the author noted that 

Marion had initially provided a false name to law enforcement. Henderson argues that had Marion been called, his testimony regarding the shooters’ clothing would have undercut the 

State’s theory that Henderson was one of the shooters because 

Henderson was wearing a tan “Carhartt” jacket when he was 

apprehended. Brief for appellant at 24.

We recently addressed two related cases in which defendants contended that trial counsel failed to call witnesses 

who would have identified the perpetrators of crimes as 

having different characteristics than the defendants charged 

with those crimes. In State v. Newman, 300 Neb. 770, 916 

N.W.2d 393 (2018), and State v. Stricklin, 300 Neb. 794, 916 

N.W.2d 413 (2018), the codefendants, who were both African 

American, contended that their counsel deficiently failed to 

call witnesses. They claimed the witnesses would have testified that the perpetrators were unnamed “‘Mexicans’” or 

“‘Latino’s.’” State v. Newman, 300 Neb. at 782, 916 N.W.2d 

at 406. Accord State v. Stricklin, supra. We concluded that 

these allegations did not show a reasonable likelihood that, 

absent the alleged deficiency, the outcome at trial would have 

been different.
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In so finding, we applied the approach that the U.S. Supreme 

Court set forth in Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to analyze prejudice:

“In making [the prejudice] determination, a court 

hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the 

factual findings will have been unaffected by the errors, 

and factual findings that were affected will have been 

affected in different ways. Some errors will have had 

a pervasive effect on the inferences to be drawn from 

the evidence, altering the entire evidentiary picture, and 

some will have had an isolated, trivial effect. Moreover, 

a verdict or conclusion only weakly supported by the 

record is more likely to have been affected by errors 

than one with overwhelming record support. Taking the 

unaffected findings as a given, and taking due account 

of the effect of the errors on the remaining findings, 

a court making the prejudice inquiry must ask if the 

defendant has met the burden of showing that the decision reached would reasonably likely have been different 

absent the errors.”

State v. Newman, 300 Neb. at 782-83, 916 N.W.2d at 407, 

quoting Strickland v. Washington, supra. See, also, State v. 

Stricklin, supra. In both cases, we concluded that in the context of all the evidence adduced at trial, the omitted testimony 

“would not have altered the evidentiary picture and would, at 

best, have had an isolated or trivial effect on the jury’s findings.” See State v. Newman, 300 Neb. at 783, 916 N.W.2d at 

407. Accord State v. Stricklin, supra.

Similarly, here, there is overwhelming evidentiary support 

for the jury’s verdict, which we summarized on direct appeal:

Henderson was apprehended by police as he was running from the scene of the incident. A person who was 

at the scene had identified Henderson to a police 

officer as one of the shooters. The other suspect was not 

apprehended. One gun was found on Henderson’s person 
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when he was arrested, and a police officer saw Henderson 

throw another gun under a vehicle as the officer was chasing him.

Forensic evidence presented at trial indicated that bullets and casings found at the scene of the shootings had 

been fired from the gun found on Henderson and from the 

gun he was seen throwing under a vehicle. A fingerprint 

on the gun found under the vehicle matched Henderson’s. 

In addition, DNA testing of blood found on the clothing 

worn by Henderson at the time of his arrest indicated that 

the blood had come from Voss.

The State maintained at trial that Henderson shot Voss 

and [Antonio] Washington to retaliate for an assault on 

Henderson’s friend, Jimmy Levering. Levering and Voss 

had both been inmates at a prison in Florida, and Voss had 

allegedly stabbed and punched Levering.

State v. Henderson, 289 Neb. 271, 274-75, 854 N.W.2d 616, 

624 (2014). In addition to the evidence quoted above, text 

messages obtained from a cell phone found on Henderson’s 

person indicated that the two people exchanging the messages 

around the time of the shooting were attempting to meet one 

another outside the party where the shooting occurred and that 

the individual who stabbed “‘Jb’” was there. Id. at 277, 854 

N.W.2d at 625. The background of the cell phone’s screen was 

a picture of Jimmy Levering.

When we weigh the effect of counsel’s allegedly deficient 

failure to call Marion against the remaining evidence, we 

conclude that there is not a reasonable likelihood the outcome 

would have been different had Marion testified. Henderson’s 

presence at the scene, his possession of the weapons used 

in the shooting, the blood matching the DNA profile of one 

of the victims on his clothing, and the evidence of his premeditative intent to retaliate against someone he believed to 

be present at the scene are highly suggestive of his guilt. To 

reach a different conclusion, the jury would have to find that 

just after Henderson had received a text message that someone 
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who had stabbed his acquaintance was at a party in downtown 

Omaha, Henderson went to such a party where someone else 

shot a person who had assaulted Henderson’s friend Levering 

in prison when Henderson happened to be sufficiently nearby 

to get blood matching the DNA profile of the victim on his 

clothes, and that Henderson somehow took possession of both 

guns used in the crime and fled the scene with them. We find 

the likelihood of the jury’s reaching such a conclusion to be 

exceedingly low.

Our prejudice analysis is also informed by the fact that 

Henderson relied on another account of the shooters’ attire at 

trial but was unable to convince the jury of his innocence. The 

evidence showed that Henderson was apprehended wearing a 

tan Carhartt jacket that had a hood. However, an eyewitness, 

Charles Bird, testified that one shooter wore a light-colored 

or gray “hoodie” and the other wore a dark-colored hoodie. 

Henderson’s counsel highlighted Bird’s testimony during closing arguments, noting that the witness did not describe a tan 

jacket like Henderson wore that night. Even so, the jury found 

Henderson guilty.

The State points to Henderson’s reliance on Bird’s testimony 

and contends that it shows that Marion’s testimony would not 

have made a difference. In this case, we agree. We can envision 

a circumstance in which testimony of a purported eyewitness 

that the perpetrator of a crime lacked certain characteristics of 

the defendant might corroborate similar testimony of another 

purported eyewitness and thus meaningfully assist the defense. 

However, for multiple reasons, we do not believe Marion’s 

testimony would have had that effect here. First, it is not clear 

that Marion’s testimony would have corroborated Bird’s: Bird 

identified the shooters as wearing hoodies, and Marion identified one of the shooters as wearing a short-sleeved shirt. And 

even if the chance that Marion’s testimony would undercut 

rather than corroborate Bird’s is set to the side, the testimony 

would not necessarily have been exculpatory, because there was 

evidence that Henderson was wearing a white short-sleeved 
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shirt under his jacket. Finally, there is still the overwhelming evidence of Henderson’s guilt set forth above. Given the 

nature of this evidence, we are convinced that the jury would 

have reacted to the testimony Henderson claims Marion would 

have given the same way it did to the testimony of Bird, which 

Henderson relied on at trial.

Because Marion’s testimony would not have meaningfully 

altered the evidentiary picture and any impact on the jury’s 

findings would have been isolated and trivial, we hold that the 

district court did not err in denying this claim of ineffective 

assistance of counsel without an evidentiary hearing.

(c) Jermaine Westbrook

Finally, Henderson contends he should have received an evidentiary hearing on his claim that his counsel was ineffective 

for failing to call Jermaine Westbrook to testify. In his motion 

for postconviction relief, Henderson alleged that Westbrook 

called the 911 emergency dispatch service regarding a sport 

utility vehicle (SUV) following the shooting. The record does 

not contain a recording or transcript of Westbrook’s 911 call, 

but Henderson attached a police report to his application for 

postconviction relief that summarized the call:

WESTBROOK . . . stated to [the] 911 operator that 

he is following the car that the shooter was in. . . . 

WESTBROOK stated the party inside this white SUV is 

the “accessory to the shooting”. . . . WESTBROOK stated 

[that] after he saw the guys do the shooting, they went 

right on 16th and Harney. He stated that one of the shooters (masculine) shot the guy in broad (unaudible). 911 

asked WESTBROOK if he knew who the shooters or the 

people in the vehicle were, to which the caller responded 

no. WESTBROOK further described one of the shooters as having a brown Carhart [sic] jacket on. He further 

stated that this suspect in the brown Carhart [sic] jacket 

was a black male, approximately five foot five, and short, 

and approximately 20-21 years old. . . . WESTBROOK 
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stated he lost sight of the taillights of the white SUV 

which the possible suspects were in.

Henderson contends that if Westbrook had been called to 

relay the substance of his 911 call, the testimony would have 

absolved Henderson because he fled the scene not in an 

SUV, but on foot. Henderson’s motion alleges that Westbrook 

could have provided information about the departure from 

the scene of “at least one of the shooters.” But the police 

report indicates that Westbrook claimed to be following the 

car that the “shooter,” singular, was in. Henderson’s motion 

and the attached exhibit do not explain how Westbrook could 

have provided information about the departure of more than 

one shooter. The lack of any such explanation is significant. 

Testimony by Westbrook that one unidentified shooter fled 

in an SUV would not have benefited Henderson. Evidence at 

trial established that there were two shooters. Evidence that 

the other suspect fled in an SUV would not have disproved the 

claim that Henderson shot Voss and Antonio Washington and 

then fled on foot.

As we have already stated, to establish the prejudice prong 

of a claim of ineffective assistance of counsel, the defendant 

must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would 

have been different. See State v. Schwaderer, 296 Neb. 932, 

898 N.W.2d 318 (2017). In assessing postconviction claims 

that trial counsel was ineffective in failing to call a particular witness, we have upheld dismissal without an evidentiary 

hearing where the motion did not include specific allegations 

regarding the testimony which the witness would have given 

if called. See, State v. Thorpe, 290 Neb. 149, 858 N.W.2d 

890 (2015); State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 

(2015). And we have held that without such specific allegations, an application for postconviction relief has not alleged 

sufficient facts to establish a reasonable probability that the 

outcome of trial would have been different if trial counsel had 

called those witnesses. See State v. Marks, 286 Neb. 166, 835 
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N.W.2d 656 (2013). Here, Henderson’s motion for postconviction relief does not contain the level of specificity needed to 

demonstrate that the outcome would have been different had 

Westbrook testified.

Even if it is assumed Westbrook would have testified to a 

belief that he was following an SUV in which both shooters 

were riding, we do not believe there is a reasonable probability that such testimony would have affected the outcome. In 

addition to the overwhelming evidence of Henderson’s guilt 

recounted above, had Westbrook been called to testify, the 

State would assuredly have elicited from Westbrook another 

item contained in the police report summarizing Westbrook’s 

911 call—that Westbrook identified one shooter as a “black 

male” wearing a “brown Carhart [sic] jacket” and matching Henderson’s physical description. We are confident that 

the jury would not have concluded that both shooters were 

in an SUV driving away from the scene when Westbrook’s 

description of one of the shooters matched the clothing and 

physical characteristics of Henderson, who was running away 

from the scene of the shooting carrying both guns used and 

who was identified to police as the shooter. We find no error 

in the district court’s denial of this claim without an evidentiary hearing.

2. Alleged Failure to Move 

Gunshot Residue Te

Henderson also claims that his trial counsel provided ineffective assistance by failing to move for gunshot residue testing of other individuals at the scene of the shooting, including 

the victims. Henderson argues the district court’s rejection of 

this claim without granting an evidentiary hearing was erroneous. Again, we disagree.

Henderson contends that gunshot residue swabs were taken 

from Voss, Antonio Washington, and two other individuals 

who were present at the scene. Henderson asserts that these 

swabs were never submitted for testing and that such testing 
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“could have implicated other suspects in the shooting” or 

provided him with “alternative theories of defense.” Evidence 

introduced at trial, however, demonstrated that gunshot residue 

testing would not have made a difference. An officer involved 

in the investigation testified that a finding of gunshot residue 

on a person does not definitively show that the person had 

fired a gun, because a person can also come into contact with 

gunshot residue by being in the vicinity of gunfire. Because the 

individuals from whom gunshot residue swabs were obtained 

either were victims or were known to be at the scene, a finding 

of gunshot residue on them would not have implicated them or 

exculpated Henderson. In light of this testimony, the correctness of which Henderson does not dispute, Henderson’s counsel could not have acted deficiently by not seeking gunshot 

residue testing and Henderson suffered no prejudice.

3. Alleged Failure to Move 

and Compel DNA Te

Henderson argues that he received ineffective assistance 

when his trial counsel failed to move for DNA testing on a 

sample taken from Jeremy Terrell.

As previously mentioned, shortly before the shooting, text 

messages were sent from the cell phone found on Henderson’s 

person. Those messages were responses to text messages from 

a telephone number assigned to Terrell, also referred to as 

“Jay Town.” The correspondence indicated that “Jay Town” 

and the recipient were attempting to meet one another outside 

the after-hours party where the shooting occurred and that the 

individual who stabbed “Jb” was there. Terrell was not apprehended at the scene of the shootings. Police later attempted 

to interview him, but he refused to provide any information. 

Police obtained a DNA sample from Terrell, but the sample 

was not tested.

Law enforcement conducted DNA testing on samples taken 

only from Henderson and Voss. That testing led to the conclusion that blood found on Henderson’s shirt and shoes had 
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come from Voss. It also showed a mixture of DNA from at 

least three people on the grip of one of the guns recovered 

upon Henderson’s arrest, but testing could not show the identities of those sources with any degree of certainty. A DNA 

analyst explained that because of the mixture, many people 

could be indicated and the probability that a random individual matched a DNA profile found in the mixture was 1 in 

3 for Caucasians, 1 in 2 for African Americans, and 1 in 4 for 

Hispanic Americans. The DNA analyst testified that consequently, test results comparing the mixture to Henderson’s and 

Voss’ DNA were inconclusive, meaning that she could not be 

certain whether either man’s DNA was present or not present 

on the gun grip.

In his application for postconviction relief, Henderson referenced the mixture of DNA from at least three people and 

alleged that testing Terrell’s sample “may have” exculpated 

Henderson on its own or led to a more thorough investigation 

that “could have” revealed more evidence pointing to “the 

actual shooters.” Even if we were to consider Henderson’s 

allegation sufficiently specific, he has failed to show ineffective assistance of counsel. The DNA analyst’s testimony suggests that even if Terrell’s DNA sample had been tested and 

compared to the DNA mixture on the gun grip, the result would 

have been inconclusive, and Henderson makes no allegation 

that the DNA analyst’s testimony was incorrect. Therefore, 

Henderson’s motion failed to show a reasonable probability 

that DNA testing would have resulted in a different outcome at 

trial. In the absence of any prejudice to Henderson, then, the 

district court did not err in denying Henderson an evidentiary 

hearing concerning DNA testing.

4. Allegedly Ineffective Respo

Evidence of Gang Affi

Henderson also asserts that his trial counsel ineffectively 

responded to evidence at trial concerning gang affiliation. 

Henderson contends that his trial counsel (1) should have taken 
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various measures after a police officer testified that Levering 

was “kind of an infamous gang member” and (2) should have 

objected to the admission of pictures of Levering in which 

Henderson claims Levering is making gang-related hand gestures as unfairly prejudicial. Again, we find no error with the 

district court’s disposition of this claim.

(a) Statement Regarding Levering

The reference to Levering’s being “kind of an infamous gang 

member” came about when Det. Nick Herfordt was testifying 

regarding the contents of the cell phone found on Henderson 

when he was arrested. Herfordt identified a background picture 

on the cell phone as a photograph of Levering, and when asked 

how he knew that, he answered, “I worked Northeast Omaha 

when I was in uniform, and . . . Levering, I guess, was kind of 

an infamous gang member . . . .”

Henderson immediately moved for a mistrial, noting that 

the State had agreed in connection with Henderson’s pretrial 

motion in limine that it would not introduce evidence regarding 

gang affiliations. The trial court denied the motion. The trial 

court later asked Henderson’s counsel whether he was moving 

to strike Herfordt’s answer, and Henderson’s counsel stated he 

was not.

Henderson now argues his trial counsel should have done 

more to respond to Herfordt’s statement. Henderson details various measures he contends trial counsel should have employed, 

including further pressing the motion for a mistrial, asking that 

the testimony be stricken, or requesting an admonition or limiting instruction.

On direct appeal, however, we rejected Henderson’s contention that he was prejudiced by the trial court’s denial of his 

motion for a mistrial. In doing so, we observed that Herfordt’s 

gang reference “was an isolated comment” and that the State 

did not present any other evidence of gang affiliation on the 

part of Henderson or anyone else. State v. Henderson, 289 

Neb. 271, 299, 854 N.W.2d 616, 639 (2014). These same facts 
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lead us to conclude that Henderson could not show that he 

was prejudiced by his counsel’s failure to take additional steps 

concerning the comment.

(b) Pictures of Levering

Henderson also contends his trial counsel was deficient 

for not objecting to the admission of pictures of Levering as 

unfairly prejudicial. According to Henderson, Levering is making gang-related hand gestures in the pictures. However, there 

was no testimony that Levering’s hand gestures were gang 

related. Furthermore, on direct appeal, we did not consider the 

photograph itself to be evidence of gang affiliation; we determined that other than the “‘infamous gang member’” reference, 

“the State did not present . . . evidence of gang affiliations.” Id. 

at 298, 299, 854 N.W.2d at 638, 639. Having already decided 

that the photograph of Levering does not constitute evidence of 

gang affiliation, we will not revisit the issue on postconviction 

review. See State v. Thorpe, 290 Neb. 149, 156, 858 N.W.2d 

880, 887 (2015) (“[a] motion for postconviction relief cannot be 

used to secure review of issues which were or could have been 

litigated on direct appeal, no matter how those issues may be 

phrased or rephrased”).

5. Allegedly Ineffective Re

to Text Message Evi

Henderson alleges several instances of ineffective assistance 

of counsel relating to a series of text messages admitted at trial. 

The text messages were from a cell phone found on Henderson 

at the time of his arrest. Henderson’s counsel moved unsuccessfully to suppress the messages and also attempted to exclude 

evidence from the cell phone via a motion in limine and objections at trial.

On direct appeal, Henderson assigned that the trial court 

erred in overruling his second motion to suppress evidence 

obtained from his cell phone and admitting that evidence, 

including text messages and pictures. This court concluded that 

the district court had not erred when it overruled the motion 
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to suppress or when it admitted evidence obtained from the 

search over Henderson’s Fourth Amendment objections. We 

also concluded that the district court did not err in admitting 

the cell phone evidence over Henderson’s objections based on 

hearsay and lack of foundation establishing a chain of custody. 

Henderson now claims his counsel was ineffective for not taking various other steps in response to the text messages. We 

disagree as we explain in the sections below.

(a) Authentication of Text Messages

First, Henderson contends his counsel was ineffective for not 

objecting to a lack of “authentication that . . . Henderson was 

the one receiving or sending those text messages.” According 

to Henderson, the State would have been unable to oppose 

an authentication objection by proving that Henderson was 

involved in the text messages.

The State’s burden of authentication for text messages is 

relatively low. The proponent of text messages is not required 

to conclusively prove who authored the messages and can 

establish foundation through the context of the messages and 

testimony that the number belonged to or was regularly utilized by the alleged sender. See State v. Henry, 292 Neb. 834, 

875 N.W.2d 374 (2016). Although Henderson asserts that the 

State would not have been able to do so had he objected, he 

alleges no facts to support this assertion. As pleadings of mere 

conclusions of fact or law are not sufficient to require the 

court to grant an evidentiary hearing, we find that the district 

court did not err in denying this claim without an evidentiary 

hearing. See State v. Haynes, 299 Neb. 249, 908 N.W.2d 

40 (2018).

(b) Limiting Instruction

At trial, Henderson’s counsel proposed the following instruction regarding the text messages:

During this trial the Court admitted some evidence that 

was received for a specific limited purpose. Specifically, 

the incoming text messages received into evidence from 
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the cell phone of [Henderson were] offered to show 

[Henderson’s] state of mind. The content of the text messages was not received for the purpose of showing the 

truth of the matter asserted in the incoming text messages. 

You may consider the evidence only for the limited purpose for which it was received and for no other purpose.

The trial court declined to give this instruction. On direct 

appeal, we determined that the text messages were admitted 

not for the truth of the statements contained therein but instead 

for the purpose of showing their effect on Henderson and were 

thus not hearsay. We did not address the limiting instruction 

because Henderson’s appellate counsel did not properly raise 

the issue on direct appeal. Henderson alleged in his postconviction motion that his appellate counsel was deficient in 

failing to do so and now alleges on appeal that the district 

court erred in denying him an evidentiary hearing to address 

the issue.

We conclude that Henderson was not entitled to an evidentiary hearing on this matter. Even if Henderson’s appellate 

counsel had raised the limiting instruction on appeal, it would 

not have been grounds for a reversal of his convictions. We 

perceive little danger that the jury improperly deliberated 

by considering the text messages for the truth of the matter asserted. The facts asserted in the messages were that an 

individual had stabbed “Jb” and that the individual was in the 

same area as the author of the text messages. Whether those 

facts were true was immaterial. Regardless of whether “Jb” 

had actually been stabbed, whether the suspected individual 

had done it, or whether that person was in the area described, 

the text messages would have suggested that Henderson went 

to the area of the shootings with the intent of retaliating 

against the individual who he believed stabbed his acquaintance. And this was the nonhearsay purpose for which they 

were admitted. No limiting instruction was necessary to prevent the jury from considering the truth of the statements in 

the text messages.
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(c) Brief Supporting Second 

Motion to Suppress

In his application for postconviction relief, Henderson 

asserted that his trial counsel was ineffective in failing to properly brief the trial court concerning the text messages before a 

suppression hearing on the second search warrant. Based on a 

few words uttered by his trial counsel at a hearing on the matter, he contended that his trial counsel’s brief only addressed 

the second search warrant’s validity, not the suppression of evidence. But the record affirmatively refutes this claim. Both the 

second motion to suppress and the brief supporting it sought 

to suppress evidence obtained as a result of the second search 

warrant, and Henderson’s counsel affirmed this objective later 

at the same hearing. In addition, we considered Henderson’s 

motions to suppress on direct appeal and ultimately determined 

that the trial court did not err in overruling them. This allegation is refuted by the record.

(d) Timing of Search

Henderson asserts that the district court should have granted 

him an evidentiary hearing concerning contents from the cell 

phone that he believes police may have accessed before obtaining a search warrant. He refers to two allegations of ineffective 

assistance of counsel from his motion for postconviction relief: 

(1) that his trial counsel failed to mount a Fourth Amendment 

challenge to the Omaha Police Department’s search to obtain 

the telephone number from the cell phone before securing 

a search warrant and (2) that his trial and appellate counsel failed to pursue Fourth Amendment objections to the 

download of data from the cell phone that “potentially could 

have occurred” before police obtained a search warrant. But 

Henderson did not show ineffective assistance of counsel in 

either regard.

As to obtaining the telephone number from the cell phone, 

Henderson can show no prejudice. The record shows that 

police obtained the telephone number prior to applying for 
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any search warrant and that the telephone number was not 

necessary for that application. But no evidence at trial utilized the telephone number to demonstrate that the cell phone 

belonged to Henderson; nor was the telephone number used to 

obtain other evidence through telephone records. The key evidence from the cell phone—photographs of Levering and the 

“J Town” text messages—was downloaded from the cell phone 

itself. Based on the record, we cannot discern how Henderson 

could have suffered prejudice when his counsel did not argue 

that the telephone number was prematurely obtained.

Henderson’s claim that data was downloaded from the cell 

phone before police obtained the search warrant also fails, 

because the record refutes it. Henderson relies on testimony 

by the officer who applied for the search warrant that he was 

uncertain whether information was downloaded on the day the 

search warrant was obtained. According to Henderson, this 

suggests the possibility that the download occurred before 

police secured the search warrant and that his counsel was 

ineffective in not pursuing the issue. However, the record 

demonstrates no such possibility. The same officer testified 

that police waited until after obtaining the first search warrant to download data and that the second search warrant was 

executed in the same manner. Because the record refutes this 

claim, Henderson cannot demonstrate ineffective assistance of 

trial or appellate counsel.

6. Allegedly Ineffective Respo

Testimony of Ramone Nar

Next, Henderson asserts that he received ineffective assistance both at trial and on appeal concerning his counsel’s 

response to testimony of Ramone Narvaez. Narvaez, a correctional officer from a federal penitentiary in Florida, testified 

that in 2009, he witnessed an altercation between Levering and 

an inmate named “Voss.” As noted above, the State contended 

that Henderson shot Voss and Antonio Washington to retaliate for an assault on Henderson’s friend, Levering. Henderson 
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argues his trial counsel provided ineffective assistance by failing to object to the Narvaez testimony on relevance grounds 

until after it was complete and that his appellate counsel provided ineffective assistance by failing to contend the testimony 

was irrelevant on appeal.

Henderson cannot establish that he received ineffective assistance of counsel regarding the Narvaez testimony. 

Contrary to Henderson’s assertion, the relevance and allegedly 

prejudicial nature of the Narvaez testimony was addressed on 

direct appeal. We specifically stated that the testimony was 

“relevant to the State’s case and was not unfairly prejudicial.” 

State v. Henderson, 289 Neb. 271, 301, 854 N.W.2d 616, 640 

(2014). Because we have already rejected the evidentiary 

objections that Henderson contends his counsel should have 

raised, the record refutes Henderson’s claim that his appellate counsel failed to raise the issue of relevance on appeal, 

and we need not revisit whether his trial counsel was ineffective in not objecting on relevance grounds during Narvaez’ 

testimony. See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 

880 (2015).

7. Alleged Failure to Request Lesser-I

Offense Instr

Henderson was charged and convicted of the attempted 

first degree murder of Antonio Washington. He claims his 

trial counsel was ineffective in not requesting lesser-included 

offense instructions on that charge. But, in fact, the trial 

court did instruct the jury on the elements of second degree 

murder and informed the jury that it could find Henderson 

guilty of first degree murder or second degree murder or 

find him not guilty. Furthermore, Henderson did not identify any other lesser-included offenses in his postconviction 

motion or explain why the result of the proceeding would have 

been different had the jury been instructed on those offenses. 

Because Henderson’s allegations were not sufficiently specific 

for the district court to make a determination as to whether an 
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evidentiary hearing was required, the district court did not err 

in denying Henderson’s claim without an evidentiary hearing. 

See State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018).

8. Alleged Failure to O

to Pictures of Co

Photographs of a coat were received at trial without objection. Testimony at trial established that the coat in the photographs was the Carhartt jacket worn by Henderson when 

police apprehended him. The detective who identified the 

photographs testified without objection that the coat had blood 

on it. DNA testing was not performed on this blood, but as 

noted above, DNA testing showed that Voss’ blood was on 

Henderson’s shirt and shoes.

Henderson asserts his counsel was deficient in failing to 

make authentication or prejudice objections to the admission 

of photographs of the coat. He noted that no evidence was presented that the blood on the coat was ever tested and matched 

to either victim. Henderson claimed that allowing the jury to 

see photographs of “an untested and supposedly blood-stained 

article of clothing” denied him a fair trial.

We fail to see how testimony that there was blood on 

Henderson’s jacket prejudiced Henderson’s defense. Henderson 

conceded that he was at the scene of the shootings. In addition, 

Voss’ blood was found on Henderson’s shirt and shoes. Given 

evidence that Henderson was not only present at the scene but 

also sufficiently close to Voss to get Voss’ blood on his clothing, we do not believe additional testimony suggesting there 

was blood on his coat “altered the evidentiary picture.” See 

State v. Newman, 300 Neb. 770, 783, 916 N.W.2d 393, 407 

(2018). Accordingly, the district court did not err by denying 

this claim without an evidentiary hearing.

9. Alleged Failure to Investi

Witness Tamper

Henderson also claims that he received ineffective assistance because his trial counsel did not pursue claims of witness 
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tampering. In his postconviction motion, Henderson states that 

although Antonio Washington testified that he did not know 

Matthew Voss, their “families were close friends” and Voss’ 

mother asked Antonio Washington to do what he could to 

keep Henderson in prison. Henderson says that this motivated 

Antonio Washington to lie in his testimony at trial, but that 

Henderson’s counsel did not investigate or pursue the matter 

when Henderson reported it.

We find that Henderson has not sufficiently alleged how an 

investigation on the part of Henderson’s counsel would have 

made a difference. Henderson has not described what would 

have been discovered during any additional investigation or 

explained what testimony of Antonio Washington was untrue 

or how it made a difference to the result. Without such allegations, he has failed to allege facts that would entitle him to an 

evidentiary hearing. See State v. Haynes, supra.

10. Alleged Misstatem

of Testimo

Henderson also claims his trial counsel misstated testimony in a way that prejudiced his defense during his crossexamination of Petrihos. Petrihos testified during his direct 

examination that before the shooting, he saw an individual 

pass something “metallic [and] black” to “a younger black 

male,” later identified as Henderson. The following colloquy 

between Petrihos and Henderson’s counsel then took place during cross-examination:

Q [by Henderson’s counsel]: And you’re that close to 

that and you — you couldn’t tell it was a gun?

A [by Petrihos]: No, sir.

Q: I think, in fact, you didn’t — you thought it might 

have been brass knuckles?

A: It looked — something metal. I didn’t know. It 

[sic] didn’t — didn’t really think it was a gun. Didn’t 

really think — I don’t know — didn’t really think it was 

a gun.
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Q: And you can’t tell us what this black male was 

wearing that was handed the gun?

A: From a year ago? No, sir, I can’t.

[15] Henderson argues that his counsel’s reference to the 

object’s being a gun constituted ineffective assistance. The 

record, however, affirmatively refutes Henderson’s claim. It 

is apparent from the record that counsel was trying to create doubt the object was a gun and doubt regarding Petrihos’ 

general credibility and that the reference to the object as a 

gun was a momentary and inconsequential slip of the tongue. 

Moments before, Henderson’s counsel asked Petrihos a leading question about whether he thought the object was a set of 

brass knuckles and Petrihos responded that he did not think 

it was a gun. Later, counsel again referred to the object as a 

gun but immediately corrected himself. Moreover, the jury 

was instructed that “[s]tatements, arguments, and questions 

of the lawyers for the State and [Henderson]” are not evidence. Absent evidence to the contrary, it is presumed that a 

jury followed the instructions given in arriving at its verdict. 

State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016). 

Consequently, we conclude that the district court did not 

err in denying an evidentiary hearing concerning trial counsel’s misstatement.

11. Failure to Argue State v. Tomp

on Appe

Finally, Henderson alleges that his appellate counsel was 

ineffective for not arguing that our opinion in State v. Tompkins, 

272 Neb. 547, 723 N.W.2d 344 (2006), modified on denial of 

rehearing 272 Neb. 865, 727 N.W.2d 423 (2007), precluded 

us from finding, as argued by the State on direct appeal, that 

text messages from the cell phone found on Henderson were 

admissible under the good faith exception to the exclusionary 

rule. Henderson contends that the State did not raise the good 

faith exception at trial and that as a result, Tompkins precluded 

the State from raising it on appeal.
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It is not entirely clear that the State did not raise the good 

faith exception to the trial court in some fashion. Although the 

State cannot point to any indication in the record that it did, we 

note that the record does show that Henderson’s counsel argued 

at trial that the good faith exception did not apply. At the very 

least, then, Henderson’s counsel was aware of the potential 

applicability of the exception and took the opportunity to argue 

against it.

In any event, we do not need to determine whether the State 

actually raised the good faith exception in the trial court in 

order to resolve this assignment of error. In State v. Tompkins, 

supra, the sole issue on appeal was whether an appellate court 

may consider the good faith exception sua sponte. We concluded that it may not, reasoning that if the court finds the 

exception applies on the court’s own initiative, the defendant is 

given no chance to make arguments to the contrary. Tompkins

thus does not answer the question of whether the State may 

raise the good faith exception for the first time on appeal.

In Tompkins, we did cite U.S. v. Hahn, 922 F.2d 243 (5th 

Cir. 1991), a case in which a federal appellate court declined to 

apply the exception because the prosecution had not raised the 

issue before the trial court. Henderson seems to contend that 

if his appellate counsel had cited Tompkins, we would have, 

in reliance on Hahn, extended Tompkins to say that we could 

not consider the good faith exception because it was not raised 

at trial. But in fact, Hahn itself did not categorically hold that 

the prosecution could never raise the good faith exception for 

the first time on appeal. Rather, the court pointed out that the 

defendant had “not had a fair opportunity to factually respond” 

to the assertion of the good faith exception, and because of 

that and other reasons unique to that case, “considerations of 

fairness and the orderly administration of justice tip[ped] the 

scales in favor” of not considering the good faith exception. 

U.S. v. Hahn, 922 F.2d at 248.

In this case, Henderson cannot claim that he did not have 

an opportunity to factually address the potential applicability 
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of the good faith exception. As noted above, his counsel 

expressly argued at trial that the exception did not apply. Thus, 

even assuming for the sake of argument that we could have 

been convinced to follow Hahn, it would not have precluded 

our consideration of the good faith exception in Henderson’s 

direct appeal. Because the result of Henderson’s direct appeal 

would have been no different had his counsel cited Tompkins, 

we find no merit to this assignment of error.

V. CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court denying Henderson’s motion for postconviction relief 

without an evidentiary hearing.

Affirmed

Freudenberg, J., not participatin