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STATE v. FOSTER

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State of Nebraska, appellee, v.

Jeremy D. Foster, appella

___ N.W.2d ___

Filed August 24, 2018. No. S-17-707.

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. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

3. Postconviction. Postconviction relief is a very narrow category of relief.

4. Postconviction: Constitutional Law: Proof. In order to be entitled to 

an evidentiary hearing, a prisoner must allege facts in the motion for 

postconviction relief that, if proved, would constitute a violation of his 

or her rights under the U.S. or Nebraska Constitution.

5. Postconviction. A prisoner is not entitled to an evidentiary hearing on a 

motion for postconviction relief on the basis of claims that present only 

conclusory statements of law or fact.

6. ____. In the absence of alleged facts that would render the judgment 

void or voidable, the proper course is to dismiss the motion for postconviction relief for failure to state a claim.

7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 

To establish a right to postconviction relief because of counsel’s ineffective assistance, the defendant has the burden, in accordance with 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 

2d 674 (1984), 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. Next, the defendant must show 

that counsel’s deficient performance prejudiced the defense in his or 

her case.

Nebraska Supreme Court Online Library

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

10/05/2018 01:11 AM CDT
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8. 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.

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

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

presumption of reasonableness.

10. Effectiveness of Counsel: Appeal and Error. An appellate court will 

not judge an ineffectiveness of counsel claim in hindsight; appellate 

courts must assess trial counsel’s performance from counsel’s perspective when counsel provided the assistance.

11. ____: ____. When reviewing claims of ineffective assistance, an appellate court will not second-guess trial counsel’s reasonable strategic 

decisions.

12. Right to Counsel: Plea Bargains. The plea-bargaining process presents 

a critical stage of a criminal prosecution to which the right to counsel applies.

13. Effectiveness of Counsel: Plea Bargains. As a general rule, defense 

counsel has the duty to communicate to the defendant all formal offers 

from the prosecution to accept a plea on terms and conditions that may 

be favorable to the defendant.

14. 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.

15. Jury Instructions: Appeal and Error. In an appeal based on a claim 

of an erroneous jury instruction, the appellant has the burden to show 

that the questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.

16. ____: ____. All the jury instructions must be read together, and if, 

taken as a whole, they correctly state the law, are not misleading, and 

adequately cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal.

17. Criminal Law: Motions for Mistrial. A motion for mistrial is properly 

granted in a criminal case where an event occurs during the course of 

trial that is of such a nature that its damaging effect cannot be removed 

by proper admonition or instruction to the jury and thus prevents a 

fair trial.

18. Motions for Mistrial: Proof: Appeal and Error. A defendant must 

prove that an alleged error actually prejudiced him or her, rather than 

creating only the possibility of prejudice, in order for a motion for mistrial to be properly granted.

19. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise 
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a claim on appeal of ineffective assistance of trial counsel (a layered 

claim of ineffective assistance of counsel), an appellate court will look 

at whether trial counsel was ineffective under the two-part test for ineffectiveness established in Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984); if trial counsel was not ineffective, 

then the defendant was not prejudiced by appellate counsel’s failure to 

raise the issue.

20. ____: ____. Much like claims of ineffective assistance of trial counsel, 

a defendant claiming ineffective assistance of appellate counsel must 

show that but for appellate counsel’s failure to raise the claim, there is a 

reasonable probability that the outcome would have been different.

21. Witnesses: Impeachment. Generally, the credibility of a witness may 

be attacked by any party, including the party who called the witness.

22. ____: ____. A party may not use a prior inconsistent statement of a 

witness under the guise of impeachment for the primary purpose of 

placing before the jury substantive evidence which is not otherwise 

admissible.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Jeremy D. Foster, pro se.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Miller-Lerman, Cassel, Stacy, and Funke, JJ., and

District Judge.

Funke, 

Jeremy D. Foster appeals from the denial of postconviction 

relief without an evidentiary hearing. Foster asserts that he was 

prejudiced by ineffective assistance of counsel at trial and on 

direct appeal. We affirm the judgment below.

I. BACKGROUND

This appeal follows our decision on Foster’s direct appeal 

in State v. Foster,

1

 which affirmed Foster’s jury trial convictions on one count of first degree murder, four counts 

1 State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
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of assault in the second degree, and five counts of use of a 

deadly weapon to commit a felony. Foster and his codefendant, Darrin D. Smith, were charged with the same crimes. The 

two cases were jointly tried, and the jury found Smith and 

Foster guilty on all counts. The court sentenced both Smith 

and Foster to life imprisonment, plus consecutive sentences 

totaling 96 to 150 years.

1. Factual Backg

Brothers Victor Henderson and Corey Henderson were 

members of the “Pleasantview” or “PMC” gang in Omaha, 

Nebraska, and Smith was a member of a rival gang referred to 

as “40th Avenue.” Victor and Corey were federally indicted, 

and they agreed to plead guilty and testify for the government 

in exchange for leniency. They were released from federal 

prison in 2007, and they were considered “snitches” within the 

gang community.

In October 2008, Smith saw Victor and Corey at a party 

and made a derogatory remark toward Corey regarding being a 

“snitch.” Later that month, Smith saw Victor and Corey at an 

American Legion hall in Omaha (the Legion), which was considered a bar for the “Pleasantview” gang. When Corey walked 

outside, he saw a group of men had surrounded Victor, including Smith, “Don Don” Swift, and a boy of about 14 years of 

age, who each had a gun. “Don Don” was arguing with Victor. 

Smith made another statement to the effect of “we don’t mess 

with your kind,” which Corey understood to be a comment 

about Victor and Corey being “snitches.”

On November 9, 2008, while Victor and Corey were at 

the Legion, Smith and Foster entered the bar wearing hooded 

sweatshirts. Corey testified that Smith gave him a “hateful look 

or a stare.” Smith and Foster were in the Legion for approximately 10 minutes, but before they left, they looked and nodded toward Victor and Corey. Around closing time, Smith and 

Foster returned and confronted Victor and Corey in the parking 

lot. Victor was fatally shot in the neck, and Corey and three 

others were wounded.
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Smith and Foster were arrested and charged for the shootings. The evidence was in conflict as to whether Smith or 

Foster was the shooter. For example, there was evidence that 

Smith wore a black hooded sweatshirt and that Foster wore 

a gray hooded sweatshirt when they were first at the Legion, 

but had switched shirts before they confronted Victor and 

Corey in the parking lot. Witnesses testified the shooter was 

wearing black clothes with a hood pulled over his face. At 

least two witnesses implicated Foster as the shooter, another 

witness claimed Smith was the shooter, and there was evidence that the shooter was neither Foster nor Smith but was 

yet a third individual, including “Don Don” or a person 

named “Views.”

The State’s theory of prosecution at trial was that Foster 

was the shooter and that Smith aided and abetted Foster in 

the commission of the shootings. The State called several witnesses to establish that Smith was seen with a gun and that he 

handed Foster the gun just prior to the shootings.

Following a 2-week jury trial, Smith and Foster were convicted on all counts. Both parties appealed, and this court issued 

separate opinions affirming their convictions and sentences.2

2. Procedural Backg

Our opinion on direct appeal in Foster3 addressed Foster’s 

assignments that the district court erred by failing to sever 

Foster’s trial from Smith’s, which was the main focus of the 

appeal, and allowing the jury to separate without Foster’s intelligent waiver of his right to sequester.

This court rejected Foster’s claim that he was prejudiced 

by the joint trial, reasoning that based upon the evidence, the 

jury could have convicted both Smith and Foster, just one of 

them, or neither of them. Furthermore, we determined that a 

joint trial was appropriate, because the charges against Smith 

2 See, State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013); Foster, supra

note 1.

3 Foster, supra note 1.
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and Foster stemmed from the same series of acts and would be 

proved by similar evidence.

We also rejected Foster’s second assignment of error, 

because the trial court specifically asked Foster whether he 

sought jury sequestration and he replied that he did not, which 

satisfied the requirement for a voluntary, knowing, and intelligent waiver of the right to sequester.

Relevant to the instant appeal, Foster then filed a motion for 

postconviction relief, with the assistance of court-appointed 

counsel. Foster’s motion raised claims of trial court error, prosecutorial misconduct, ineffective assistance of trial counsel, 

and ineffective assistance of appellate counsel.

The district court found that Foster’s claims of trial court 

error and prosecutorial misconduct could have been raised 

on direct appeal and therefore were procedurally barred. The 

court found Foster’s ineffective assistance of counsel claims 

were not procedurally barred, because he was represented by 

the same counsel at trial and on direct appeal. The court then 

addressed the allegations supporting Foster’s ineffective assistance of counsel claims and found that they were not specific 

enough to merit a hearing and that Foster had not pointed to 

any facts which showed he was prejudiced.

In this appeal, Foster proceeds as a self-represented litigant 

and reasserts his ineffective assistance of counsel claims, and 

he argues the court erred in failing to grant him an evidentiary hearing.

II. ASSIGNMENTS OF ERROR

Foster assigns, restated and reordered, that the district court 

erred in (1) failing to find trial counsel deficiency violated 

article I, § 11, of the Nebraska Constitution and the Sixth 

Amendment to the U.S. Constitution; (2) failing to grant Foster 

postconviction relief; (3) failing to find Foster was prejudiced 

by performance of trial counsel; (4) failing to find Foster was 

prejudiced by performance of appellate counsel; and (5) denying Foster an evidentiary hearing.
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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.4

[2] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision.5

IV. ANALYSIS

[3] Under the Nebraska Postconviction Act,6 a prisoner in 

custody may file a petition for relief on the grounds that there 

was a denial or infringement of the prisoner’s constitutional 

rights that would render the judgment void or voidable. This 

category of relief is “very narrow.”7

[4-6] Section 29-3001(2) entitles a prisoner to an evidentiary hearing on the claim, unless “the motion and the files 

and records of the case show to the satisfaction of the court 

that the prisoner is entitled to no relief.” In order to be entitled 

to an evidentiary hearing, a prisoner must allege facts in the 

motion for postconviction relief that, if proved, would constitute a violation of his or her rights under the U.S. or Nebraska 

Constitution.8 A prisoner is not entitled to an evidentiary hearing on the basis of claims that present only conclusory statements of law or fact.9

 In the absence of alleged facts that would 

render the judgment void or voidable, the proper course is to 

dismiss the motion for postconviction relief for failure to state 

a claim.10

4 State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).

5 State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).

6 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

7 State v. Haynes, 299 Neb. 249, 260, 908 N.W.2d 40, 51 (2018).

8 State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).

9 Id.

10 See State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
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All of Foster’s allegations in this appeal are grounded in 

claims of ineffective assistance of counsel. The district court 

correctly noted that because Foster was represented at trial 

and on direct appeal by the same counsel, his first opportunity 

to assert ineffective assistance of counsel claims was in his 

motion for postconviction relief.11

[7,8] To establish a right to postconviction relief because of 

counsel’s ineffective assistance, the defendant has the burden, 

in accordance with Strickland v. Washington,

12 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.13 Next, the defendant must show that 

counsel’s deficient performance prejudiced the defense in his 

or her case.14 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been 

different.15 A court may address the two prongs of this test, 

deficient performance and prejudice, in either order.16

In his brief, Foster raised four arguments: (1) The district 

court abused its discretion in failing to find trial counsel was 

deficient and prejudicial, (2) the district court erred in failing 

to grant postconviction relief, (3) the district court erred when 

it failed to find that trial and appellate counsel were prejudicially ineffective, and (4) the district court abused its discretion in denying Foster an evidentiary hearing under § 29-3001. 

However, based on the contents of Foster’s appellate brief 

and his motion before the trial court, these arguments can be 

narrowed to the following: (1) Trial counsel’s performance 

11 See State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).

12 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

13 Schwaderer, supra note 5.

14 Id.

15 Id.

16 Id.
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was deficient, and counsel’s deficient performance prejudiced 

the defense in the case; (2) appellate counsel’s performance 

was deficient, and counsel’s deficient performance prejudiced 

Foster in the appeal; and (3) the district court erred in denying 

Foster an evidentiary hearing.

We discuss each of the reframed arguments in turn and 

explain why the district court did not err in denying Foster an 

evidentiary hearing. Our discussion of Foster’s several arguments includes a common theme that these postconviction 

allegations are lacking and, even accepting them as true, fail to 

establish that his rights were violated.

1. Ineffective Assi

of Trial Couns

Foster alleged several claims of ineffective assistance of 

trial counsel. Specifically, he claimed that counsel was ineffective for (a) failing to investigate, interview, and/or call to 

testify specific witnesses; (b) failing to communicate Foster’s 

acceptance of the State’s plea offer before the expiration of 

the offer; (c) failing to provide identifying characteristics 

of other potential shooters; (d) failing to provide alternative theories for the murder; (e) failing to object to comments made by the State; (f) failing to object when the 

court gave the jury a limiting instruction regarding impeachment evidence during Foster’s cross-examination and failing to request a limiting instruction for each time the State 

impeached a witness with prior inconsistent statements; (g) 

failing to properly preserve error and argument when counsel 

failed to object to evidence and testimony that would have 

been potentially inadmissible in a separate trial pursuant to 

Foster’s overruled motion to sever; (h) failing to object when 

the State improperly impeached its own witnesses; (i) failing to object to jury instruction No. 9, which failed to conform to the language of NJI2d Crim. 1.2 and 9.2, or propose 

an appropriate jury instruction which appropriately defined 

Foster’s presumption of innocence; (j) failing to request or 

ensure that the court gave a “mere presence” instruction to 
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the jury; and (k) failing to move for a mistrial regarding any 

of these errors.

[9-11] In determining whether trial counsel’s performance 

was deficient, courts give counsel’s acts a strong presumption of reasonableness.17 An appellate court will not judge an 

ineffectiveness of counsel claim in hindsight.18 We must assess 

trial counsel’s performance from counsel’s perspective when 

counsel provided the assistance.19 When reviewing claims of 

ineffective assistance, we will not second-guess trial counsel’s 

reasonable strategic decisions.20

(a) Failure to Call Witnesses

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.21 The 

record in this matter shows the State called 24 witnesses. 

Foster did not testify or call any witnesses; he built his case 

through cross-examination of the State’s witnesses.

Foster alleged that his trial counsel was deficient for failing 

to interview or call potential witnesses. It appears that Foster’s 

trial counsel made the strategic choice to focus on the State’s 

witnesses and to not call any witnesses.

In his motion to the trial court, Foster named five specific 

individuals that he believes should have been interviewed or 

called to testify and gave a brief comment about each individual. He alleges the following witnesses would have supported his defense: Kayiona Smith was present with Smith 

17 See, State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018); State v. 

Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014).

18 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

19 Id.

20 Id.

21 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State v. Davlin, 

277 Neb. 972, 766 N.W.2d 370 (2009).
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prior to the shootings, but did not make any incriminating 

statements against Foster; Terrance Ammons, whose telephone 

number was wrongly attributed to Foster at the time of the 

incident; Brittany Lawson was Foster’s girlfriend and was with 

him prior to the incident; Michelle Baker is Foster’s mother 

and was present with him prior to the incident; and Tony 

Mays is Foster’s stepfather and was present with him prior to 

the shootings.

Our case law is clear that in a motion for postconviction 

relief, a defendant is required to specifically allege what the 

testimony of potential witnesses would have been if they had 

been called at trial in order to avoid dismissal without an evidentiary hearing.22 Absent specific allegations, a motion for 

postconviction relief effectively becomes a discovery motion 

to determine whether evidence favorable to a defendant’s position actually exists.23 Foster’s vague descriptions of witness 

testimony do not merit an evidentiary hearing, because they 

fail to allege facts that, if proved, would constitute a violation 

of his rights.

The jury heard from a number of eyewitnesses who provided their individual accounts of the shootings. Foster did not 

explain how the testimony of the witnesses identified in his 

motion would have affected the evidence that was already presented at trial. Foster failed to show a reasonable probability 

that the outcome of trial would have been different had trial 

counsel interviewed or called these witnesses to testify. This 

claim of deficiency by trial counsel is without merit.

(b) Failure to Communicate 

Acceptance of Plea Offer

Foster alleged that his trial counsel failed to communicate 

his acceptance of the State’s plea offer before the offer expired 

and that Foster would have received the benefits of “the plea 

offer” but for his counsel’s error. The trial court determined 

22 See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

23 See id.
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that Foster’s allegation did not merit a hearing, because he 

failed to allege any details about the plea offer.

[12,13] The plea-bargaining process presents a critical stage 

of a criminal prosecution to which the right to counsel applies.24

As a general rule, defense counsel has the duty to communicate to the defendant all formal offers from the prosecution to 

accept a plea on terms and conditions that may be favorable 

to the defendant.25 However, as the trial court determined, 

because Foster did not allege the terms of the plea offer and its 

benefits as compared to the outcome at trial, his allegations are 

insufficient to merit a hearing. This claim of deficiency by trial 

counsel is without merit.

(c) Failing to Provide Identifying 

Characteristics of Other 

Potential Shooters

Foster alleged that trial counsel failed to offer any identifying characteristics of “other” shooters. It is true that several 

witnesses provided the jury a physical description of Foster, 

including several witnesses who testified that they saw Smith 

enter the Legion with a man matching Foster’s description 

(light skin, braids, and walked with a limp).

However, Foster was not the only potential shooter described 

to the jury. There was evidence that “Don Don” and “Views” 

could have been the shooter. Corey described “Don Don” as 5 

feet 7 inches tall with a “brush cut,” darker skin, and a missing 

eye, and as “real distinctive ’cause he can’t see out that eye.” 

He described “Views” as 6 feet 1 inch or 6 feet 2 inches tall 

with “medium length dreads” and “teeth [with] silver chrome 

caps.” Thus, the record disproves Foster’s claim that the jury 

was not made aware of the “identifying characteristics” of 

other potential shooters. This claim is without merit.

24 Alfredson, supra note 17.

25 Id.
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(d) Failure to Provide 

Alternative Theories

Foster alleged that trial counsel failed to present alternative theories for the motivation behind the shootings. Foster’s 

motion includes a suggestion that Smith could have acted 

alone because he disapproved of any relationship between his 

family members and the victims.

As this court concluded on direct appeal, “[b]ased on the 

evidence at trial, the jury could conclude that Foster committed 

the shootings alone, that Smith committed the shootings alone, 

that Smith and Foster committed the shootings together, or that 

neither Foster nor Smith committed the shootings.”26 Foster’s 

claim does not establish any prejudice, because the jury was 

presented with these alternate theories. The jury weighed these 

competing conclusions based on the evidence and determined 

that Smith and Foster committed the shootings together. This 

claim is without merit.

(e) Failure to Object to 

State’s Comments

Foster alleged that trial counsel failed to object to questioning by the State, as well as comments made during closing 

argument, which Foster suggests gave the jury the impression that the burden of proof had shifted to Foster to prove 

his innocence.

[14] Contrary to Foster’s claims, the trial court instructed 

the jury that “[t]he burden of proof is always on the State to 

prove beyond a reasonable doubt all of the material elements 

of the crime charged, and this burden never shifts.” The trial 

court also instructed the jury that “[s]tatements, arguments, and 

questions of the lawyers . . .” are not evidence. We found on 

direct appeal that Foster had failed to establish the existence 

of an unreliable verdict.27 Foster’s postconviction allegations 

are too vague and conclusory to change this result. Absent 

26 Foster, supra note 1, 286 Neb. at 844, 839 N.W.2d at 800.

27 See Foster, supra note 1.
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evidence to the contrary, it is presumed that a jury followed the 

instructions given in arriving at its verdict.28 These claims are 

without merit.

(f) Failure to Object to or Request 

Limiting Instruction

Foster alleged that trial counsel failed to object every time 

the court gave the jury a limiting instruction regarding impeachment evidence during his cross-examinations. He also alleged 

that trial counsel failed to request a limiting instruction for 

each time the State impeached a witness with a prior inconsistent statement. Foster alleged that this “inherently prejudiced” 

his case.

Foster’s claims are conclusory and unavailing. He did 

not identify the grounds on which trial counsel should have 

objected, why asserting numerous objections while questioning 

a witness would have been beneficial to his case, or what the 

court’s ruling would have been had counsel objected. He also 

did not specify the testimony he is referring to. His allegations 

are therefore not sufficient to show how trial counsel’s treatment of the court’s limiting instruction would have changed the 

outcome of the trial. Foster did not make sufficient allegations 

of deficient performance or prejudice for these claims.

(g) Failure to Preserve Error

Foster alleged that trial counsel failed to preserve error when 

he “failed to object to evidence and testimony that would have 

been potentially inadmissible in a separate trial.” Although 

Foster did not specify which evidence trial counsel failed 

to object to, and did not allege how such objections would 

have changed the outcome of the trial, Foster appears to have 

reasserted his argument from direct appeal that he was prejudiced by having his case jointly tried with Smith’s.

This court determined in Foster’s previous appeal that a 

joint trial was appropriate because the charges against Smith 

28 Cotton, supra note 17.
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and Foster stemmed from the same series of acts and would 

be proved by similar evidence. We found that many of Smith’s 

statements were offered to prove his state of mind rather than 

the truth of the matter asserted, and therefore would have 

been admissible against Foster in a separate trial. Although 

we determined that Smith’s testimony from a prior case about 

the fact that “gang members do carry guns and they do shoot 

them” would have been inadmissible in a separate trial, we 

determined that Smith’s testimony was not prejudicial, because 

his statements were cumulative of other witness testimony.

Given that this issue was preserved and determined on direct 

appeal, there is no indication of deficient performance by trial 

counsel. This claim is without merit.

(h) Failure to Object to Impeaching 

State’s Own Witness

Foster alleged that trial counsel failed to object when the 

State improperly impeached its own witnesses. Foster did not 

specify at what point during the trial this occurred. However, 

he may be referring to the testimony of Martini Swift, Smith’s 

cousin.

The record shows the State conducted witness preparation 

with Martini leading up to trial. Martini was subpoenaed for 

trial, but failed to appear and was taken into custody. When 

she testified, she did not remain consistent with her prior statements to police. Martini began her testimony stating that she 

did “not really” remember the night of the shootings. She then 

stated she witnessed Smith come into the Legion that night 

and offered a courtroom identification of Smith. Martini then 

denied being concerned about why Smith was at the bar that 

night, and stated she did not know how long he stayed at the 

bar. She denied seeing someone else enter the bar with Smith. 

The State then impeached Martini with her statement to police 

that she observed Smith walk into the Legion with a “lightskinned boy with braids who was wearing a gray hoodie.”

Contrary to Foster’s allegation, the record shows Foster’s trial 

counsel did object on improper impeachment grounds and was 
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granted a continuing objection throughout Martini’s testimony. 

The trial court overruled the objection, finding that Martini was 

a hostile witness under Neb. Rev. Stat. § 27-611 (Reissue 2016) 

and that the testimony was permissible as long as the questions were confined to Martini’s prior statements in a police 

report, rather than Martini’s conversations with the prosecutor. 

The record thus disproves Foster’s claim that his trial counsel was deficient for failing to raise an objection. This claim 

of ineffective assistance of trial counsel is without merit.

(i) Jury Instruction No. 9

Foster contends that his counsel was ineffective for failing to 

object to jury instruction No. 9, which stated: “The Defendant 

is presumed to be innocent. This presumption of innocence is 

evidence in favor of the Defendant and continues throughout 

the trial, until he shall have been proved guilty beyond a reasonable doubt.”

Foster asserts that the final clause of the instruction created 

an inevitability that the jury “shall” find him guilty, contrary 

to the presumption of innocence. Foster alleges the instruction 

failed to conform to NJI2d Crim. 9.2, which states, in relevant 

part: “The defendant has pleaded not guilty. [The defendant] 

is presumed to be innocent. That means you must find [the 

defendant] not guilty unless and until you decide that the state 

has proved [the defendant] guilty beyond a reasonable doubt.” 

(Emphasis supplied.)

The trial court overruled Foster’s objection raised in his 

postconviction motion to instruction No. 9 and stated the language was proper and not prejudicial under State v. Henry.

29

[15,16] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 

questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.30 All the jury 

instructions must be read together, and if, taken as a whole, 

29 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

30 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).
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they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal.31

We conclude that the court did not err in giving instruction No. 9. It is not error for a trial court to refuse to give a 

defendant’s requested instruction where the substance of the 

requested instruction was covered in the instructions given.32

Here, the substance of NJI2d Crim. 9.2 regarding a criminal 

defendants’ presumption of innocence was covered in instruction No. 9. In State v. Duncan,

33 we approved of the district 

court’s use of a preliminary and final jury instruction identical 

to the instruction used in this case and found such presumptionof-innocence instruction was an accurate statement of the law. 

Furthermore, in Henry,

34 we found that a criminal defendant’s 

challenge to a jury instruction fashioned from NJI2d Crim. 9.2 

was meritless. Henry is instructive here, because, even though 

the instruction in Henry included the phrase “‘unless and 

until,’” the challenge was limited to the words “‘and until,’”35

similar to Foster’s claim in this case. In considering the propriety of the instruction given, we applied well-established principles of law regarding jury instructions and found the instruction 

correctly stated the law regarding the presumption of innocence, adequately covered the issue, and was not misleading. 

Our precedent on this issue of law is controlling. Foster’s allegations regarding jury instruction No. 9 lack merit.

(j) “Mere Presence” Instruction

Foster alleged that trial counsel failed to request a “mere 

presence” jury instruction. Foster cannot claim his counsel was 

deficient by failing to request a “mere presence” instruction, 

31 Id.

32 State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001); State v. Hernandez, 

242 Neb. 78, 493 N.W.2d 181 (1992).

33 State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).

34 Henry, supra note 29.

35 Id. at 853, 875 N.W.2d at 391.
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because the State’s theory of the case was that Foster was the 

shooter and that Smith aided and abetted Foster. The jury was 

presented with evidence that Foster was directly involved in 

the shootings, and not “merely present.” Therefore, even if the 

instruction had been requested, the “mere presence” instruction 

would not likely have been given, because the evidence did 

not support the giving of the instruction. This claim is without merit.

(k) Request of Mistrial

[17,18] Foster contends that trial counsel’s failure to seek 

a mistrial for any of the deficiencies just addressed was itself 

deficient and prejudicial. A motion for mistrial is properly 

granted in a criminal case where an event occurs during the 

course of trial that is of such a nature that its damaging effect 

cannot be removed by proper admonition or instruction to the 

jury and thus prevents a fair trial.36 A defendant must prove 

that an alleged error actually prejudiced him or her, rather than 

creating only the possibility of prejudice, in order for a motion 

for mistrial to be properly granted.37

We found no error warranting a mistrial and no deficiencies in the performance of trial counsel in failing to seek a 

mistrial. As a result, we reject the claim that counsel was deficient in failing to request a mistrial. Having discussed each of 

Foster’s postconviction claims with respect to the performance 

of trial counsel, we determine that Foster’s first argument 

fails to allege a meritorious postconviction claim and that the 

trial court did not err in declining to grant Foster an evidentiary hearing.

2. Ineffective Assi

of Appellate Couns

Foster contends that his appellate counsel was ineffective for 

failing to raise on direct appeal (a) that the trial court overruled 

36 McCurry, supra note 30.

37 Id.
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his motion to sever; (b) that the trial court erred when it gave 

a limiting instruction each time Foster impeached a witness 

with prior inconsistent statements, but failed to give the same 

limiting instruction whenever the State impeached a witness 

with prior inconsistent statements; (c) that the trial court erred 

by allowing the State to impeach its own witness; (d) that the 

trial court erred by allowing the State to improperly shift the 

burden of proof to Foster when the State examined witnesses 

about Foster’s lack of testing the physical evidence and when 

the State made improper comments suggesting Foster failed to 

bring forth sufficient evidence to prove his innocence during 

closing arguments; (e) that the trial court improperly instructed 

the jury on instruction No. 9; and (f) that the trial court did not 

instruct the jury on “mere presence.”

[19,20] When a claim of ineffective assistance of appellate 

counsel is based on the failure to raise a claim on appeal of 

ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look at 

whether trial counsel was ineffective under the Strickland38

test.39 If trial counsel was not ineffective, then the defendant 

was not prejudiced by appellate counsel’s failure to raise the 

issue.40 Much like claims of ineffective assistance of trial counsel, the defendant must show that but for counsel’s failure to 

raise the claim, there is a reasonable probability that the outcome would have been different.41

(a) Failure to Sever

In regard to the trial court’s failure to sever Foster’s case 

from Smith’s, that issue was raised by appellate counsel on 

direct appeal and we found that the trial court did not err in 

failing to sever the trials. This claim is without merit.

38 Strickland, supra note 12.

39 State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).

40 Id.

41 Id.
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(b) Limiting Instruction

Foster claims that the trial court gave a limiting instruction each and every time he impeached a witness with prior 

inconsistent statements, but failed to give the same limiting 

instruction whenever the State impeached a witness with prior 

inconsistent statements. Having already determined above that 

Foster failed to show that his trial counsel’s performance was 

deficient with respect to this issue, appellate counsel’s failure 

to raise the issue on appeal was also not deficient. This claim 

is without merit.

(c) Impeaching State’s 

Own Witnesses

Foster alleged ineffective assistance of appellate counsel 

for failing to raise on direct appeal that the trial court erred by 

allowing the State to impeach its own witnesses. Again, Foster 

did not sufficiently plead this claim. He did not identify the 

witness’ testimony that the trial court should have excluded, 

and therefore his allegations are insufficient to show ineffective assistance of appellate counsel for failing to include this 

issue on direct appeal. As discussed above, however, Foster is 

likely referring to the testimony of Martini.

Martini denied that anyone entered the bar with Smith, and 

the State impeached Martini with her prior statement that she 

observed Smith enter the bar with “a light-skinned boy with 

braids who was wearing a gray hoodie.” Although Foster’s 

trial counsel objected to the State’s impeachment methods at 

trial, Foster’s appellate counsel did not assign as error on direct 

appeal the trial court’s decision to overrule the objection.

[21,22] Generally, the credibility of a witness may be 

attacked by any party, including the party who called the 

witness.42 However, “‘a party may not use a prior inconsistent statement of a witness under the guise of impeachment 

for the primary purpose of placing before the jury substantive 

42 Neb. Rev. Stat. § 27-607 (Reissue 2016); State v. Dominguez, 290 Neb. 

477, 860 N.W.2d 732 (2015).
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evidence which is not otherwise admissible.’”43 In State v. 

Dominguez,

44 we articulated that the scope of § 27-607 is limited where a party knows or should know that its witness will 

not testify consistent with the witness’ prior statement and utilizes impeachment as “‘“mere subterfuge.”’”

Martini initially established facts relevant to the prosecution 

without any reference to her prior statement. She placed Smith 

at the bar on the night of the shootings and identified Smith 

in court. When Martini failed to admit that Foster was with 

Smith at the Legion, this created a credibility issue concerning Martini’s memory. The State then impeached Martini with 

her prior statement that Smith walked into the Legion with a 

person who matched the description of Foster. The prosecutor 

stated in her offer of proof, that “when I called her today, I had 

information that I believed based upon what she had expressed 

to me before, she would testify to today and she’s not doing 

so. So the State did not call her with the intention of impeaching her.”

Foster’s postconviction allegations fail to establish that the 

State knew Martini would provide inconsistent testimony, that 

the State called Martini for the primary purpose of placing her 

prior statement before the jury, or that Martini’s prior statement 

was otherwise inadmissible. Rather, the evidence suggests the 

prosecution called Martini because she saw Smith and Foster 

at the Legion on the night of the shootings. The evidence was 

not prejudicial, because it was cumulative of other testimony 

that Smith was with Foster at the Legion prior to the shootings. 

This claim is without merit.

(d) Prosecutorial Misconduct

Foster alleged ineffective assistance of appellate counsel for 

failing to raise on direct appeal that the trial court erred “by 

43 Dominguez, supra note 42, 290 Neb. at 490, 860 N.W.2d at 745, quoting 

State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993) (emphasis supplied).

44 Id. at 491, 860 N.W.2d at 746, quoting 4 Michael H. Graham, Handbook 

of Federal Evidence § 607:3 (7th ed. 2012).
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allowing the State to improperly shift the burden of proof” to 

Foster on two instances: (1) when the State examined witnesses 

about Foster’s lack of testing the physical evidence and (2) 

when the State made “improper comments suggesting [Foster] 

failed to bring forth sufficient evidence to prove his innocence” 

during closing arguments. Foster did not sufficiently allege this 

claim. Foster did not identify the witnesses and their testimony 

or the improper comments that the trial court should have 

excluded or corrected, and therefore, his allegations are insufficient to show ineffective assistance of appellate counsel for 

failing to include these issues on direct appeal.

There is not a reasonable probability that inclusion of this 

issue would have changed the result of the appeal. As discussed above, the trial court instructed the jury that the burden 

was on the State to prove Foster guilty beyond a reasonable 

doubt, and that “[s]tatements, arguments, and questions of the 

lawyers . . .” are not evidence. There is no indication that the 

jury did not follow these instructions. Foster’s claims are without merit.

(e) Jury Instruction No. 9

Foster alleged ineffective assistance of appellate counsel for 

failing to raise on direct appeal that jury instruction No. 9 was 

improper. We discussed the merits of this issue above. Foster 

cannot show a reasonable probability that inclusion of this 

issue on direct appeal would have changed the result of that 

appeal. This claim is without merit.

(f) Jury Instruction on 

“Mere Presence”

Foster alleged ineffective assistance of appellate counsel 

for failing to raise on direct appeal that the trial court failed 

to instruct the jury on “mere presence.” We discussed the 

merits of this issue above. Foster cannot show a reasonable 

probability that inclusion of this issue on direct appeal would 

have changed the result of that appeal. This claim is without merit.
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(g) Denial of Evidentiary Hearing

Foster’s final argument is that the court abused its discretion in denying an evidentiary hearing under § 29-3001 and 

that his postconviction counsel failed to object to the court’s 

denial of an evidentiary hearing. Additionally, Foster alleges 

that he was in the wrong place at the time, that there was no 

physical proof that he was the one who committed the crime, 

and that his trial counsel failed to call witnesses to show what 

actually occurred.

As has been demonstrated above, our inquiry is focused on 

whether Foster has made a sufficient showing under Strickland

that his counsel’s performance was deficient and that he suffered prejudice as a result.

Assuming that postconviction counsel failed to object to the 

court’s denial of an evidentiary hearing, there is no indication 

that the counsel’s failure to lodge the objection had any impact 

on the case. After the district court entered the order dismissing 

the matter, Foster filed his own motion for reconsideration and 

had an opportunity to raise his claims and have them reviewed 

by the district court. As a result, Foster cannot show prejudice 

by his counsel’s failure to object to the dismissal.

In regard to Foster’s claim that there was no physical proof 

he was the one who committed the crime and that he was in 

the wrong place at the wrong time, these claims lack the specificity required to meet his burden and establish meritorious 

entitlement to a hearing under § 29-3001. We therefore affirm 

the denial of an evidentiary hearing on Foster’s motion for 

postconviction relief.

V. CONCLUSION

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

court denying Foster’s motion for postconviction relief without an evidentiary hearing.

Affirmed

Heavican, C.J., not participati