- 172 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

State of Nebraska, appellee, v. 

Jordan L. Beehn, appellant.

___ N.W.2d ___

Filed May 24, 2019. No. S-18-603.

1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, 

as the trier of fact, resolves conflicts in the evidence and questions of 

fact. An appellate court upholds the trial court’s findings unless they are 

clearly erroneous.

2. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

3. Effectiveness of Counsel: Appeal and Error. When reviewing a 

claim of ineffective assistance of counsel, an appellate court reviews 

the factual findings of the lower court for clear error. With regard to 

questions of counsel’s performance or prejudice to the defendant as 

part of the two-pronged test articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court 

reviews such legal determinations independently of the lower court’s 

conclusion.

4. 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.

5. Postconviction: Sentences: Appeal and Error. The Nebraska 

Postconviction Act is intended to provide relief in those cases where 

a miscarriage of justice may have occurred; it is not intended to be a 

procedure to secure a routine review for any defendant dissatisfied with 

his or her sentence.

6. Postconviction: Effectiveness of Counsel: Appeal and Error. To 

establish a right to postconviction relief based on a claim of ineffective assistance of counsel, 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; 

Nebraska Supreme Court Online Library

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

08/16/2019 12:07 AM CDT
- 173 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

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.

7. Postconviction: Effectiveness of Counsel: Proof. In a postconviction 

proceeding, a showing of prejudice to the defense requires a demonstration of reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

8. Trial: Attorneys at Law. Trial counsel is afforded due deference to 

formulate trial strategy and tactics.

9. Effectiveness of Counsel: Pleas: Proof. In a claim for ineffective 

assistance of counsel, the likelihood of the defense’s success should be 

considered with other factors such as the likely penalties the defendant 

would face if convicted at trial, the relative benefit of the plea bargain, 

and the strength of the State’s case.

10. ____: ____: ____. Self-serving declarations that a defendant would have 

gone to trial are not enough to warrant a hearing; a defendant must present objective evidence showing a reasonable probability that he or she 

would have insisted on going to trial.

11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a 

reasonable probability that but for the errors of counsel, the defendant 

would have insisted on going to trial rather than pleading guilty.

Appeal from the District Court for Madison County: Mark

A. Johnson, Judge. Affirmed.

Jack W. Lafleur, of Moyer & Moyer, for appellant.

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

for appellee.

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

Papik, JJ.

Heavican, C.J.

INTRODUCTION

Jordan L. Beehn appeals from an order denying his motion 

for postconviction relief following an evidentiary hearing. 
- 174 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Beehn pled no contest to first degree assault and tampering 

with a witness and is currently serving 50 to 50 years’ imprisonment. We affirm.

BACKGROUND

On November 24, 2012, Beehn and his wife were at a bar 

in Norfolk, Nebraska. They left the bar at the same time as 

another group of patrons, which consisted of brothers Jose 

Zepada and Jorge Zepada, accompanied by Jessika Ruroede. 

As the two groups left the bar, Beehn’s wife and Ruroede 

engaged in an argument that led to a physical altercation 

between the two women. Jose and Jorge stood over the two 

women as they were fighting on the ground. According to witness accounts, Jose and Jorge tried to pull Beehn’s wife from 

Ruroede, at which point Beehn retrieved a handgun from his 

person, hit Jose with the gun, and shot Jorge. The bullet struck 

Jorge’s spinal cord and paralyzed him from the head down, an 

injury from which he will never recover.

Beehn was subsequently arrested for the assaults on Jose 

and Jorge. While Beehn was in jail awaiting trial, he suggested 

that his wife change her story about being “on top” during the 

altercation with Ruroede as she had previously told the police 

and had stated during recorded jail telephone calls to Beehn 

following the incident. In a letter sent from jail, Beehn further 

instructed his wife to locate other unidentified witnesses and 

offer to “pay what ever [sic] they want.”

Beehn was initially charged with five offenses corresponding to the assaults. With regard to Beehn’s assault of Jorge, 

Beehn was charged with first degree assault, a Class II felony, 

and second degree assault, a Class III felony. With regard 

to Beehn’s assault of Jose, Beehn was charged with second 

degree assault, a Class III felony. In addition to the assault 

charges, Beehn was charged with use of a firearm to commit 

a felony, a Class IC felony, and possession of a firearm during 

the commission of a felony, a Class II felony. Upon the State’s 

learning of Beehn’s letter to his wife from jail, the State added 
- 175 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

two additional charges of tampering with a witness, a Class IV 

felony, and bribery, a Class I misdemeanor.

Beehn had various attorneys throughout the pretrial proceedings, which lasted from November 2012 to February 2014. 

From the inception of the case until June 2013, Beehn was 

represented by private counsel, Charles Balsiger. Beehn discharged Balsiger, and the Madison County public defender, 

Kyle Melia, was appointed to the case. Melia represented 

Beehn for approximately 1 month, from June to July 2013. 

Beehn subsequently discharged Melia and hired private counsel, Craig Martin and Dennis McCarthy. Martin and McCarthy 

represented Beehn for the remainder of his proceedings at the 

trial level, from July 2013 until the entry of his pleas and sentencing in February 2014.

In December 2013, while represented by Martin and 

McCarthy, Beehn entered into a plea agreement with the State. 

Beehn pled no contest to one count of first degree assault 

and one count of tampering with a witness. In exchange for 

Beehn’s pleas, the State dismissed the remaining five charges 

and agreed to make no specific sentencing recommendation. 

The district court advised Beehn of the rights he was waiving by entering the pleas, and a factual basis was provided, 

after which the district court accepted Beehn’s pleas. Beehn, 

still represented by Martin and McCarthy, was sentenced to 

50 to 50 years’ imprisonment for the first degree assault conviction and 12 to 12 months’ imprisonment for the tampering 

with a witness conviction. The sentences were ordered to run 

concurrently, resulting in an aggregate sentence of 50 to 50 

years’ imprisonment.

Direct Appeal.

On direct appeal, Beehn was again represented by Melia. 

On appeal, Beehn’s sole assignment of error was a claim of 

excessive sentences. On August 1, 2014, in case No. A-14-195, 

the Nebraska Court of Appeals, without opinion, summarily 

affirmed Beehn’s convictions and sentences.
- 176 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Postconviction.

Following the denial of his direct appeal, Beehn initiated 

this postconviction proceeding. Beehn alleges, for the first 

time, that he received ineffective assistance of counsel at both 

the trial and appellate levels. With the assistance of new counsel, Beehn alleged a number of errors that can be consolidated 

as follows: (1) Trial counsel was ineffective for failing to 

advise Beehn about the defenses of self-defense and defense of 

others under Neb. Rev. Stat. §§ 28-1409 and 28-1410 (Reissue 

2016); (2) trial counsel was ineffective for failing to advise 

Beehn that by entering his pleas, he would be waiving his right 

to appeal from pretrial rulings; (3) trial counsel was ineffective 

for failing to interview and depose witnesses and for failing to 

investigate the prospect of additional witnesses beyond those 

listed in the police reports; (4) trial counsel was ineffective for 

incorrectly advising Beehn that all communications between 

Beehn and his wife were privileged and could not be used 

against Beehn in the prosecution of his criminal charges; and 

(5) appellate counsel was ineffective for not raising claims (1) 

through (4) on direct appeal.

Despite the potential procedural bar, the district court conducted an evidentiary hearing of Beehn’s claims. The evidence 

adduced at the hearing consisted of the bill of exceptions from 

Beehn’s pretrial, plea, and sentencing proceedings; depositions 

of Beehn and each of his prior attorneys; transcripts of Beehn’s 

telephone calls from jail; and a copy of the court file for all of 

the proceedings at the trial level.

Beehn testified that all of his attorneys told him that his 

only option was to enter into a plea agreement. Beehn claims 

that each of his attorneys told him that there were no available defenses for his charges. Specifically, Beehn claims that 

Balsiger, as well as Martin and McCarthy, told him that the 

defense of self-defense was not available in Nebraska. Beehn 

further claims that Balsiger erroneously advised him that any 

communications between Beehn and his wife were privileged 

and could not be used against him. Beehn contends that he, 
- 177 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Beehn, maintained this belief throughout his case until October 

2013, when the court entered an order denying Beehn’s assertion of spousal privilege.

Additionally, Beehn contends that his trial attorneys deposed 

only two witnesses and failed to investigate the existence of 

other witnesses that may have been beneficial to his case. 

Beehn further contends that counsel never advised him that 

by entering a plea agreement, he waived his right to appeal 

from adverse pretrial rulings. Lastly, Beehn contends that 

Melia never met with him to discuss his appeal, but that one of 

Melia’s assistants advised him that an excessive sentence claim 

was the only claim available on appeal.

Beehn’s initial trial counsel, Balsiger, disagreed with 

Beehn’s allegations. Balsiger, who had been practicing criminal law since 1973, explained that he first met with Beehn on 

December 3, 2012, within a few days of the charges being 

filed. Balsiger testified that he and Beehn specifically discussed the possibility of asserting a defense such as justification of the use of force, which Balsiger thought would at 

least be a possible defense based on the limited information 

he had at that time. Balsiger further explained that during 

their first meeting, he also spoke with Beehn about the possibility of asserting a privilege for communications between 

Beehn and his wife, but told Beehn that “it may not be 

valid” based on the circumstances. Balsiger testified that he 

specifically advised Beehn “not to discuss the facts of this 

case with his wife or anyone else.” Balsiger’s testimony is 

corroborated by a December 6 recorded jail telephone conversation between Beehn and his wife in which the following 

exchange occurred:

[Beehn]: The lawyer say anything?

[Beehn’s wife]: I talked to him after the deal, he questioned me on what I know and what happened. And then 

he told me that we need to not talk amongst ourselves 

about the whole case or something of that sort.

[Beehn]: Yeah, he told me that too.
- 178 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Balsiger explained that he deposed at least two witnesses 

in the case: Ruroede, the female involved in the fight with 

Beehn’s wife, and one of the officers involved in the investigation. Balsiger did not recall that Beehn had given him the 

names of any other witnesses to contact.

Melia, who represented Beehn for approximately 1 month 

after Balsiger’s representation, also disagreed with Beehn’s 

allegations. Melia explained that during his time as Beehn’s 

trial counsel, he met with Beehn twice and also spoke with him 

on the telephone to discuss the case.

Melia testified that he discussed possible defenses with 

Beehn, including self-defense and defense of others. Melia 

noted that there were obvious obstacles to pursuing either 

defense, because it appeared that Beehn’s wife was the aggressor in the fight. Melia also noted that a self-defense claim was 

further complicated by the fact that on at least one occasion, 

Beehn said the gun discharged accidentally, which would 

negate the defense altogether. Melia also explained that he 

told Beehn not to discuss his case over the telephone with 

anyone else and that he never gave Beehn the impression 

that Beehn’s communications with his wife were privileged 

and could not be used against him. Melia also testified that 

he did not recall any witnesses that may have been available to contact other than Beehn, his wife, Ruroede, and the 

two victims.

McCarthy, who represented Beehn at the time of his pleas, 

also disagreed with Beehn’s claims. McCarthy, who had been 

practicing law since 1989 with extensive experience in conducting jury trials, testified that he and Beehn discussed the 

issue of spousal privilege. McCarthy testified that he repeatedly told Beehn that his communications with his wife were 

not privileged. McCarthy contended that Beehn’s assertion to 

the contrary is not true. He explained that the letter Beehn sent 

to his wife, which served as the basis for the tampering charge, 

was sent after Martin and McCarthy specifically advised Beehn 

that such communications were not privileged.
- 179 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

McCarthy further testified that he and Martin, McCarthy’s 

cocounsel, also looked into available defenses, including 

self-defense and defense of others. McCarthy explained that 

they considered defense of others based on the theory that 

Beehn was protecting his wife, but their attempt to pursue this 

option was complicated by the fact that Beehn kept changing 

his story and, at one point, said the gun discharged accidentally. McCarthy also believed that such defense would have 

had credibility problems with Beehn.

McCarthy explained that because Beehn was intoxicated on 

the night in question, he kept changing his story. Additionally 

troubling was the fact that Beehn continued to try to persuade his wife to change her story. McCarthy testified that 

in light of these issues, he believed defense of others might 

not be successful. McCarthy testified that he explained these 

concerns to Beehn but never advised Beehn that the defense 

was unavailable.

Martin testified that Beehn agreed to the plea agreement 

and that Beehn knew what the pleas were and knew the rights 

he was giving up by taking the plea agreement. This was 

explained to Beehn by counsel, as was counsel’s opinion that 

self-defense and defense of others would not be successful 

defenses. Martin testified that after he advised Beehn that his 

version of the facts would not fit self-defense or defense of 

others, Beehn’s story changed several times.

As noted earlier, following Beehn’s plea agreement which 

resulted in a conviction and prison sentence, Beehn, with the 

assistance of Melia, filed a direct appeal. The direct appeal 

was handled primarily by Melia’s chief deputy public defender, 

Christopher Bellmore.

During the postconviction proceeding, Melia testified that 

on direct appeal, he and Bellmore did not see any viable ineffective assistance of counsel claims from their review of the 

record. Melia further indicated that even if they had been 

inclined to raise claims of ineffective assistance of counsel, 
- 180 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

they would have been hesitant to do so given that Melia was 

one of Beehn’s trial attorneys.

Melia did not recall meeting with Beehn, but did recall that 

Bellmore generally met with appellate clients because he lived 

closer than Melia to the State penitentiaries. The record demonstrates that Beehn and appellate counsel did meet in person 

and spoke about excessive sentencing issues and claims of 

ineffective assistance of counsel.

According to Beehn, he was advised by appellate counsel 

that the record did not support a claim of ineffective assistance 

of counsel on direct appeal. Therefore, Beehn’s only assignment of error on direct appeal was in regard to excessive sentences. Beehn initiated a postconviction proceeding and was 

granted an evidentiary hearing. The district court subsequently 

denied Beehn’s postconviction motion following the evidentiary hearing.

The district court concluded that each of Beehn’s trial 

attorneys advised him of potential defenses, including selfdefense and defense of others, and that the testimony on 

the matter was credible and refuted Beehn’s allegation that 

he was not so advised. Moreover, as Beehn’s trial attorneys 

explained, the district court found that it was unlikely that 

such defenses would have been successful, given the evidence 

against Beehn and all of the events that transpired while Beehn 

was in custody.

The court then noted that each of Beehn’s trial attorneys 

advised him not to speak with anyone about the case, and 

specifically advised him that the spousal privilege may not, 

or would not, protect communications between Beehn and his 

wife. The court found that the testimony of Beehn’s attorneys 

on the matter was credible and refuted Beehn’s allegation that 

he was not so advised.

The court further noted that Beehn’s trial attorneys contacted all of the witnesses known to them and made efforts 

to seek out additional witnesses and evidence. These efforts 
- 181 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

proved to be unhelpful, or in some instances “detrimental,” to 

Beehn’s case.

The court found that before entering his pleas, Beehn was 

advised of the rights he was waiving and was advised that 

he would be waiving any defenses that may be available. 

The court also found that Beehn’s trial attorneys, Martin and 

McCarthy, specifically advised Beehn that if he entered the 

pleas, he would be waiving his right to appeal from the court’s 

pretrial rulings.

Lastly, the court noted that Beehn would have been unsuccessful had he raised his postconviction claims of ineffective 

assistance of trial counsel on direct appeal and that thus, his 

appellate counsel was not ineffective for failing to raise those 

claims. And because appellate counsel had served as Beehn’s 

trial counsel for a period of time, the court believed there 

would have been a question as to whether appellate counsel 

could have raised the ineffective assistance of trial counsel claims.

ASSIGNMENT OF ERROR

Beehn assigns, consolidated and restated, that the trial court 

erred in denying his motion for postconviction relief in which 

he alleged the ineffective assistance of both trial and appellate counsel.

STANDARD OF REVIEW

[1] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves 

conflicts in the evidence and questions of fact. An appellate 

court upholds the trial court’s findings unless they are clearly 

erroneous.1

[2,3] A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact.2 When 

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

2 Id.
- 182 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error. With regard to questions of counsel’s performance or prejudice to the defendant as part of the two-pronged 

test articulated in Strickland v. Washington,

3

 an appellate court 

reviews such legal determinations independently of the lower 

court’s conclusion.4

ANALYSIS

As stated above, when appearing before the district court, 

Beehn’s postconviction claims were that (1) trial counsel was 

ineffective for failing to advise Beehn about the defenses 

of self-defense and defense of others under §§ 28-1409 and 

28-1410; (2) trial counsel was ineffective for failing to advise 

Beehn that by entering his pleas, he would be waiving his right 

to appeal from pretrial rulings; (3) trial counsel was ineffective 

for failing to interview and depose witnesses and for failing to 

investigate the prospect of additional witnesses beyond those 

listed in the police reports; (4) trial counsel was ineffective for 

incorrectly advising Beehn that all communications between 

Beehn and his wife were privileged and could not be used 

against Beehn in the prosecution of his criminal charges; and 

(5) appellate counsel was ineffective for not raising claims 

(1) through (4) on direct appeal. Additionally, Beehn now 

claims that appellate counsel was ineffective for failing to meet 

with him.

[4,5] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.5

 The Nebraska 

Postconviction Act is intended to provide relief in those cases 

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

(1984).

4 State v. McGuire, supra note 1.

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

other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.
- 183 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

where a miscarriage of justice may have occurred; it is not 

intended to be a procedure to secure a routine review for any 

defendant dissatisfied with his or her sentence.6

[6,7] To establish a right to postconviction relief based on a 

claim of ineffective assistance of counsel, the defendant has the 

burden, in accordance with Strickland v. Washington, 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.7

 Next, the defendant must show 

that counsel’s deficient performance prejudiced the defense in 

his or her case.8 A showing of prejudice to the defense requires 

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

have been different.9

[8] Trial counsel is afforded due deference to formulate trial 

strategy and tactics.10

[9,10] In a claim for ineffective assistance of counsel, the 

likelihood of the defense’s success should be considered with 

other factors such as the likely penalties the defendant would 

face if convicted at trial, the relative benefit of the plea bargain, 

and the strength of the State’s case.11 Self-serving declarations 

that a defendant would have gone to trial are not enough to 

warrant a hearing; a defendant must present objective evidence 

showing a reasonable probability that he or she would have 

insisted on going to trial.12

[11] When a conviction is based upon a guilty plea, the 

prejudice requirement for an ineffective assistance of counsel 

6 Id.

7 See Strickland v. Washington, supra note 3.

8 See State v. Allen, supra note 5.

9 State v. Blank, 239 Neb. 188, 474 N.W.2d 689 (1991).

10 State v. McGuire, supra note 1.

11 State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).

12 State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).
- 184 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have 

insisted on going to trial rather than pleading guilty.13

The likelihood of the defense’s success had the defendant 

insisted on going to trial is relevant to the prejudice analysis.14

It is relevant to the consideration of whether a rational defendant would have insisted on going to trial.15 The likelihood of 

the defense’s success had the defendant gone to trial should be 

considered along with other factors, such as the likely penalties the defendant would have faced if convicted at trial, the 

relative benefit of the plea bargain, and the strength of the 

State’s case.16

Failure to Advise Beehn About 

Potential Defenses.

Beehn first contends that trial counsel failed to advise him 

of potential defenses, including self-defense and defense of 

others, in regard to his case.

Under subsection (1) of § 28-1409, “[s]ubject to the provisions of this section and of section 28-1414, the use of force 

upon or toward another person is justifiable when the actor 

believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force 

by such other person . . .” except that under subsection (4) of 

§ 28-1409,

[t]he use of deadly force shall not be justifiable under this 

section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, 

kidnapping or sexual intercourse compelled by force or 

threat, nor is it justifiable if:

13 State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).

14 See State v. Yos-Chiguil, supra note 11.

15 Id.

16 Id.
- 185 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

(a) The actor, with the purpose of causing death or 

serious bodily harm, provoked the use of force against 

himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of 

using such force with complete safety by retreating or by 

surrendering possession of a thing to a person asserting 

a claim of right thereto or by complying with a demand 

that he abstain from any action which he has no duty to 

take . . . .

Section 28-1410 similarly states in part:

(1) Subject to the provisions of this section and of 

section 28-1414, the use of force upon or toward the 

person of another is justifiable to protect a third person 

when:

(a) The actor would be justified under section 28-1409 

in using such force to protect himself against the injury 

he believes to be threatened to the person whom he seeks 

to protect.

Under Neb. Rev. Stat. § 28-1414(1) (Reissue 2016), “[t]he justification afforded by sections 28-1409 to 28-1412 is unavailable when: (a) The actor’s belief in the unlawfulness of the 

force or conduct against which he employs protective force or 

his belief in the lawfulness of an arrest which he endeavors to 

effect by force is erroneous[.]”

As noted above, Balsiger, Beehn’s first defense attorney, 

testified that he met with Beehn within a few days of the 

charges first being filed. Balsiger specifically discussed with 

Beehn the possibility of asserting a defense such as justification for the use of force, which Balsiger thought would be at 

least a possible defense based on the information he had at 

that time.

Melia, who briefly represented Beehn following Balsiger’s 

representation, met with Beehn twice and also spoke with him 

on the telephone to discuss the case. The record indicates that 

Melia discussed possible defenses with Beehn, including selfdefense and defense of others. However, Melia noted that there 
- 186 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

were obstacles to pursuing either defense, because it appeared 

that Beehn’s wife was the aggressor in the fight. Moreover, 

Melia noted that a self-defense claim was further complicated 

by the fact that on at least one occasion, Beehn claimed that 

the gun discharged accidentally, which Melia believed would 

negate the defense altogether.

Following Melia’s discharge as counsel, Martin and 

McCarthy were retained by Beehn. Martin and McCarthy 

also considered available defenses, including self-defense and 

defense of others. McCarthy explained that they considered 

defense of others based on the theory that Beehn was protecting his wife, but that their attempt to pursue this defense was 

complicated by the fact that Beehn kept changing his story 

and, at one point, said the gun discharged accidentally. The 

record demonstrates that McCarthy also had concerns regarding credibility problems with that defense, because Beehn was 

intoxicated on the night in question and continually changed 

his story.

McCarthy’s concerns were reinforced by the fact that Beehn 

continued to try to persuade his wife to change her story, 

which further complicated the strategy of arguing self-defense. 

McCarthy indicated that in light of such issues, he believed 

the self-defense strategy might not be successful. McCarthy 

explained these concerns to Beehn, but the record does not 

adequately support Beehn’s claim that he was advised that the 

defense was unavailable.

Following repeated discussions with various counsel and the 

seemingly universal belief of counsel regarding the viability 

and considerable lack of likelihood of success of a defense in 

this case, Beehn agreed to enter a plea agreement in order to 

seek a more lenient sentence.

We affirm the district court’s finding that based on the 

evidence contained in the record, Beehn was advised by all 

his attorneys at trial level of the affirmative defenses of selfdefense and defense of others. The record demonstrates that the 

employment of any potential affirmative defense was hampered 
- 187 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

by Beehn’s ever-changing story of the events of the evening 

in question, as well as his actions and communications during incarceration.

Beehn alleges that trial counsel was universally ineffective by not informing him of the availability of the defense 

of self-defense, but the record contradicts that claim. As such, 

Beehn has not shown that his trial counsel’s performance was 

deficient.

Beehn’s first assignment of error is without merit.

Failure to Advise Beehn of Effect 

of Pleas on Right to Appeal.

Beehn next contends that counsel did not advise him of the 

effect that entering into a plea agreement would have on his 

ability to appeal adverse preliminary rulings of the trial court. 

There is no merit to this claim.

According to Martin and McCarthy, Beehn’s attorneys at the 

time he entered into the plea agreement, Beehn was advised 

that if he pled guilty, he would not be able to appeal any 

adverse rulings made during the pretrial process. McCarthy 

testified that he also advised Beehn of the rights he had and 

that he would be giving up those rights if he pled guilty. 

Further, McCarthy testified that based on the communications 

McCarthy had with Beehn, McCarthy was under the impression that Beehn understood his rights as they had been advised 

to him by McCarthy.

Martin testified that Beehn agreed to the plea agreement 

and that Beehn knew what the pleas were and knew the rights 

he was giving up by taking the plea agreement. The details of 

the plea agreement, and the resulting waiver of Beehn’s rights, 

were explained to Beehn by counsel. Counsel also explained its 

opinion that the strategies of self-defense and defense of others 

would not be successful.

Based on the record, it is clear that counsel’s performance 

was not deficient. Beehn’s second claim of ineffective assistance of counsel is without merit.
- 188 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Failure to Locate, Interview, 

or Depose Witnesses.

Beehn next argues that his trial counsel failed to locate, interview, or depose potential witnesses to the events of November 

24, 2012. According to Beehn, Balsiger, as the first trial counsel, 

conducted depositions of Ruroede and the investigating officer. 

But Beehn suggests that Melia failed to conduct any interviews 

with witnesses. As for Martin and McCarthy, Beehn contends 

that they failed to conduct depositions. Beehn concedes that 

Martin and McCarthy’s intern interviewed two of the three witnesses Beehn identified, but that he failed to depose them.

Further, Beehn contends that 10 additional witnesses were 

added by the State after Martin and McCarthy engaged in 

the representation of Beehn. According to Beehn, Martin and 

McCarthy failed to depose any of the 10 new witnesses. Beehn 

contends that had trial counsel been more diligent in deposing and interviewing witnesses, Beehn’s defense theory would 

have “come into better focus.”17

As the record reflects, Balsiger did depose two of the State’s 

witnesses in preparation for trial. During the brief time in 

which Melia represented Beehn, Melia did not conduct interviews with witnesses to Beehn’s case.

McCarthy testified that he did not take any additional depositions in Beehn’s case. McCarthy contended that either he 

or his staff did interview additional witnesses not identified 

in the police reports but located based on information Beehn 

provided to him. McCarthy indicated that his staff interviewed 

those witnesses and recorded their statements. Without disclosing content, McCarthy noted that the witnesses interviewed 

were determined to be extremely detrimental to Beehn’s case 

and were not helpful in any manner.

Additionally, McCarthy noted that the case and the credibility of the defense was further hampered when the State 

filed the charge of tampering with a witness, which arose from 

17 Brief for appellant at 20.
- 189 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

the discovery of the letter Beehn had sent to his wife. In the 

letter, Beehn sought to have his wife locate witnesses and “pay 

what ever [sic] they want.” The letter from Beehn further suggested to his wife that she give testimony of events that was 

inconsistent with her previous recitation of events given to 

the police.

Further, the record demonstrates that Martin, McCarthy, 

and their investigator went to the scene of the shooting to try 

to locate possible video surveillance cameras that may have 

recorded the incident. However, according to McCarthy’s testimony, they were unable to locate any working cameras near 

the scene.

As for the 10 witnesses added by the State, Martin testified 

that they were all jailhouse witnesses located by the prosecution. Beehn fails to demonstrate any prejudice that resulted 

from failing to depose these witnesses, especially in light of the 

overwhelming evidence of guilt presented by the State.

McCarthy’s testimony, however, reflected concerns regarding Beehn’s possession of white supremacist materials while 

incarcerated, as well as Beehn’s derogatory statements toward 

those of Latin American descent. Given the fact that the 

victims were of Latin American descent, McCarthy testified 

that he was concerned with the effect that Beehn’s jailhouse 

behavior would have on a jury.

Based on the foregoing discussion, it is clear that trial 

counsel conducted a lengthy investigation and sought potential witnesses. The fact that the witnesses were not beneficial 

to Beehn’s case, or altogether lacked credibility as a result of 

Beehn’s offer of remuneration, does not fall on trial counsel. 

Beehn’s assignment of error is without merit.

Advice Concerning Issues of Privilege 

Regarding Communications Between 

Beehn and His Wife.

Beehn testified that before the trial court entered its ruling in 

October 2013, in which it denied his motion to suppress statements made to his wife, he believed that his communications 
- 190 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

with her were privileged. Beehn testified that he knew the 

State would listen to his telephone calls with his wife, but that 

he did not know the State could use statements made in those 

calls against him. Beehn contends that trial counsel led him 

to believe his communications with his wife were privileged. 

Beehn concedes that the communications with his wife were, 

in fact, not subject to spousal privilege.18

Beehn’s claims that all four of his trial counsel informed 

him that the communications in question were privileged are 

directly refuted by trial counsel. According to the testimony 

of each attorney, Beehn was repeatedly advised not to discuss 

his case with anyone other than his attorney at the time. Beehn 

admitted as much in a December 6, 2012, telephone conversation with his wife. At one point, Beehn’s wife stated in 

part, “[the attorney] told me that we need to not talk amongst 

ourselves about the whole case or something of that sort.” To 

which Beehn responded, “Yeah, he told me that too.” It is of 

particular note that this telephone conversation occurred only 3 

days after Balsiger met with Beehn for the first time.

Melia testified that he did not remember the specific details 

of his conversation with Beehn. However, Melia stated that it 

was his practice to advise clients not to speak about their cases 

over the telephone, because in his experience, the prosecution 

routinely listened to jail telephone conversations.

McCarthy testified that he explained the nature of the privilege within the first 5 minutes of his and Beehn’s first meeting 

and advised Beehn of the fact that his communications with his 

wife were not privileged. McCarthy went on to indicate that he 

and Martin repeatedly pleaded with Beehn to stop discussing 

his case with others, including his wife, and went so far as to 

send Beehn written correspondence to that effect.

Based on the evidence in the record contradicting Beehn’s 

claim, this assignment of error is without merit.

18 See Neb. Rev. Stat. § 27-505 (Reissue 2016). See, also, State v. Cowling, 

No. A-92-744, 1993 WL 183609 (Neb. App. June 1, 1993) (not designated 

for permanent publication).
- 191 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Failure of Appellate Counsel to 

Raise Ineffective Assistance 

of Trial Counsel Claim.

Beehn assigns that he received ineffective assistance of 

appellate counsel due to appellate counsel’s failure to raise the 

claim of ineffective assistance of trial counsel. The State does 

not argue that Beehn failed to preserve this claim, and thus, we 

turn to our Strickland analysis.

As noted above, Strickland v. Washington consists of a twoprong analysis.19 In order to prevail on an ineffective assistance 

of counsel claim, the defendant must satisfy both prongs of the 

Strickland analysis, that defense counsel’s performance was 

deficient and that the deficient performance actually prejudiced 

the defendant’s defense. The two prongs of the ineffective 

assistance test, deficient performance and prejudice, may be 

addressed in either order.20 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.21

Assuming, without deciding, that appellate counsel’s actions 

were deficient for failing to raise a claim of ineffective assistance of counsel on direct appeal, it is clear that Beehn has 

not suffered any resulting prejudice. Following the denial of 

his direct appeal, Beehn sought to collaterally attack his convictions through this postconviction proceeding. Despite not 

raising his ineffective assistance of counsel claims on direct 

appeal as procedurally required when appellate counsel is different from trial counsel, the district court nevertheless allowed 

Beehn to raise the claims and granted Beehn an evidentiary 

hearing to expound on those claims.

As Beehn did not suffer prejudice, this assignment of error 

is without merit.

19 See Strickland v. Washington, supra note 3.

20 State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).

21 State v. McGuire, supra note 1.
- 192 -

Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. BEEHN

Cite as 303 Neb. 172

Failure of Appellate Counsel 

to Meet With Beehn.

Lastly, Beehn contends that appellate counsel failed to meet 

with him or discuss his appeal. Beehn argues that appellate 

counsel took an extremely narrow view on direct appeal by 

only assigning as error that Beehn received excessive sentences.

By Beehn’s own admission, he recalled an assistant from the 

Madison County public defender’s office who visited with him 

for the direct appeal. According to Melia, Bellmore, his chief 

deputy public defender, was tasked with meeting clients incarcerated in the State penitentiaries. As such, the record is clear 

that appellate counsel did in fact meet with Beehn.

In regard to Beehn’s claim that appellate counsel “took an 

extremely narrow view on Beehn’s direct appeal,”22 Melia 

testified that he discussed with Beehn the issues of excessive 

sentences and the lack of evidence for an ineffective assistance 

of counsel claim. Melia further testified that while discussing 

the possibility of a claim of ineffective assistance of counsel 

as it related to trial counsel, and any promise of leniency for 

which there was no evidence, Beehn was offered the option to 

seek new appellate counsel. Beehn did not do so.

The district court noted that on the issue of credibility, it 

relied more heavily upon the testimony of appellate counsel 

than on Beehn’s testimony, “due to Beehn’s history of willingness to change his facts to meet the circumstances of the 

moment.” Further, appellate counsel’s testimony was consistent 

throughout as to the facts of the case.

The district court’s decision was not clearly erroneous. 

Beehn’s final assignment of error is without merit.

CONCLUSION

The decision of the district court denying Beehn’s motion 

for postconviction relief is affirmed.

Affirmed.

Freudenberg, J., not participating.

22 Brief for appellant at 23.