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STATE v. HUFF

Cite as 25 Neb. App. 219

State of Nebraska, appellee, v. 

Herchel Harold Huff, appellant.

___ N.W.2d ___

Filed October 31, 2017. No. A-16-983.

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: Claims. Whether a claim raised in a postconviction 

proceeding is procedurally barred is a question of law.

3. Judgments: Appeal and Error. When reviewing a question of law, 

an appellate court resolves the question independently of the lower 

court’s conclusion.

4. Postconviction: Evidence. 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.

5. Postconviction: Evidence: Appeal and Error. An appellate court 

upholds the trial court’s findings in an evidentiary hearing on a motion 

for postconviction relief unless the findings are clearly erroneous.

6. Judgments: Appeal and Error. An appellate court independently 

resolves questions of law.

7. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of counsel presents a mixed question of law and fact, 

an appellate court reviews the lower court’s factual findings for clear 

error but independently determines whether those facts show counsel’s 

performance was deficient and prejudiced the defendant.

8. Postconviction: Final Orders. Within a postconviction proceeding, 

an order granting an evidentiary hearing on some issues and denying 

a hearing on others is a final, appealable order as to the claims denied 

without a hearing.

Nebraska Supreme Court Online Library

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

11/07/2017 09:13 AM CST
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9. Postconviction: Time: Appeal and Error. Pursuant to Neb. Rev. Stat. 

§ 25-1912 (Reissue 2016), a defendant has just 30 days to appeal from 

the denial of an evidentiary hearing; the failure to do so results in the 

defendant’s losing the right to pursue those allegations further.

10. Postconviction: Appeal and Error. A motion for postconviction relief 

cannot be used to secure review of issues which were known to the 

defendant and could have been litigated on direct appeal.

11. 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; 

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.

12. Effectiveness of Counsel: Proof: Words and Phrases. To show 

prejudice under the prejudice component of the test in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the 

defendant must demonstrate a reasonable probability that but for his or 

her counsel’s deficient performance, the result of the proceeding would 

have been different. 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.

13. Effectiveness of Counsel. The two prongs of the test in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

deficient performance and prejudice, may be addressed in either order.

14. Constitutional Law: Criminal Law: Trial: Witnesses. The 

Confrontation Clause of the Sixth Amendment to the U.S. Constitution 

provides that in all criminal prosecutions, the accused shall enjoy 

the right to be confronted with the witnesses against him or her. The 

14th Amendment makes the guarantees of this clause obligatory upon 

the states.

15. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees the accused’s right to be present in the courtroom at every stage 

of his or her trial.

16. Trial: Due Process. The general rule is that an accused has a right to 

be present at all stages of the trial where his absence might frustrate the 

fairness of the proceedings.

17. Trial: Due Process: Waiver. A defendant has a right to be present at all 

times when any proceeding is taken during the trial, from impaneling of 
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the jury to the rendition of the verdict, inclusive, unless he has waived 

such right.

18. Trial: Waiver. If a defendant is to effectively waive his or her presence 

at trial, that waiver must be knowing and voluntary.

19. Constitutional Law: Juror Qualifications. Voir dire plays a critical 

function in assuring a criminal defendant that his or her constitutional 

right to an impartial jury will be honored.

20. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.

When reviewing claims of alleged ineffective assistance of counsel, an 

appellate court affords trial counsel due deference to formulate trial 

strategy and tactics.

21. Effectiveness of Counsel: Presumptions: Appeal and Error. There 

is a strong presumption that counsel acted reasonably, and an appellate 

court will not second-guess reasonable strategic decisions.

22. Effectiveness of Counsel: Judgments: Appeal and Error. Even if 

found unreasonable, error owing to ineffective assistance of counsel 

justifies setting aside the judgment only if there was prejudice.

Appeal from the District Court for Furnas County: James E. 

Doyle IV, Judge. Affirmed.

Brian J. Davis, of Berreckman & Davis, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Moore, Chief Judge.

I. INTRODUCTION

Herchel Harold Huff was convicted of motor vehicle homicide, among other charges, in connection with the death of 

Kasey Jo Warner. Following his direct appeals, Huff filed a 

motion for postconviction relief in the district court for Furnas 

County. Following an initial review of Huff’s motion, the 

court dismissed a number of Huff’s claims without an evidentiary hearing. Huff appealed, and this court affirmed the dismissal of those claims. Subsequently, the State filed a motion 

to dismiss the remainder of Huff’s postconviction claims. The 

court sustained the motion in part and overruled it in part. 

Huff again appealed, and this court affirmed. An evidentiary 
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hearing was held on Huff’s remaining postconviction claims 

as well as a motion to disqualify or recuse the judge hearing 

his postconviction motion. The present appeal arises from the 

district court’s order denying the remaining claims in Huff’s 

postconviction motion following an evidentiary hearing. Huff 

asserts both ineffective assistance of counsel and trial court 

error in connection with the in-chambers voir dire of certain 

jurors conducted outside of his presence. Huff’s first assigned 

error is not properly before us in this appeal, and he has 

not shown that he was prejudiced by his counsel’s actions 

in connection with the in-chambers voir dire. Accordingly, 

we affirm.

II. BACKGROUND

1. Trial and Direct Appeals

On October 3, 2007, Warner was jogging on a gravel road 

near her home in Furnas County when she was struck and 

killed by a vehicle driven by Huff. Huff pled guilty to manslaughter, but not guilty to the other crimes with which he was 

charged. A jury trial was held, and the jury found Huff guilty 

of motor vehicle homicide. The district court found Huff guilty 

of the remaining counts (tampering with a witness and refusal 

to submit to a chemical test). Huff was sentenced to imprisonment for a term of 45 to 45 years for motor vehicle homicide 

and a concurrent term of 20 to 20 years for manslaughter. 

Huff was sentenced to imprisonment for 20 to 60 months for 

tampering with a witness and 5 to 5 years for third-offense 

refusal to submit to a chemical test. These sentences were 

to be served consecutively to the sentences for manslaughter 

and motor vehicle homicide and to one another. Huff filed a 

direct appeal and was represented on direct appeal by his trial 

attorneys. The Supreme Court affirmed Huff’s convictions for 

motor vehicle homicide, tampering with a witness, and refusal 

to submit to a chemical test, but it remanded the cause for 

sentencing on the third-offense refusal to submit to a chemical 

test. The Supreme Court also vacated Huff’s conviction and 
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sentence for manslaughter. See State v. Huff, 282 Neb. 78, 802 

N.W.2d 77 (2011).

After remand, Huff was resentenced on the refusal to take 

a chemical test to 60 days’ incarceration, a $500 fine, and the 

suspension of his license for 6 months after his release from 

incarceration. Huff appealed this sentence, and the Nebraska 

Supreme Court summarily affirmed. State v. Huff, 283 Neb. xix 

(No. S-11-1102, Apr. 11, 2012). Huff was represented by his 

trial attorneys in this appeal as well.

2. Postconviction Motion

On August 20, 2012, Huff filed a verified motion for postconviction relief, alleging numerous claims of ineffective 

assistance of counsel, prosecutorial misconduct, trial court 

error, law enforcement misconduct, and denial of his right to 

appellate counsel, and he requested an evidentiary hearing.

3. First Postconviction Appeal

On October 22, 2012, the district court entered an order 

denying certain of Huff’s claims and granting him an evidentiary hearing on others. The court appointed postconviction 

counsel for Huff. Huff appealed from the order dismissing 

portions of his postconviction claims. In that appeal, Huff challenged the court’s dismissal of two of his claims of ineffective 

assistance of trial counsel without an evidentiary hearing. In a 

memorandum opinion, this court affirmed. See State v. Huff, 

No. A-12-1072, 2013 WL 6622896 (Neb. App. Dec. 17, 2013) 

(selected for posting to court website).

4. Second Postconviction Appeal

Following the first postconviction appeal, the State filed a 

motion to dismiss Huff’s remaining postconviction claims. On 

October 1, 2014, the district court entered an order granting 

in part and denying in part the State’s motion to dismiss. The 

court detailed the remaining claims for postconviction relief 

and found that the remaining claims under “[g]rounds 2, 3, and 

4” set forth in Huff’s motion constituted claims of ineffective 
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assistance of counsel and were “considered by the court to 

be preserved through, and to be part of, Huff’s ineffective 

assistance of counsel claims set forth in [g]round 1.” To the 

extent that the court’s description of and prior characterization 

of grounds 2 through 4 “create[d] a different impression, or 

g[a]ve rise to inferences that the claims can be classified as 

other than ineffective assistance of counsel claims,” the court 

granted the State’s motion to dismiss. The court dismissed 

additional claims for relief asserted in Huff’s postconviction 

motion and denied the State’s motion as to other claims. Huff 

again appealed, asserting that the court erred when it sustained 

the State’s motion to dismiss in part, denying two additional 

claims of ineffective assistance of counsel without an evidentiary hearing. In an unpublished memorandum opinion, this 

court affirmed the dismissal of the additional claims from 

Huff’s postconviction motion. State v. Huff, 22 Neb. App. xxxii 

(No. A-14-985, June 26, 2015).

5. Evidentiary Hearing

On May 26, 2016, an evidentiary hearing was held on the 

remaining claims in Huff’s postconviction motion. The district 

court received exhibits including the bill of exceptions from 

Huff’s trial, various depositions and affidavits, and certain 

pleadings. We have set forth the evidence relevant to Huff’s 

assignments of error in the present appeal, focusing on the voir 

dire of certain prospective jurors in the court’s chambers outside of Huff’s presence.

(a) Voir Dire Proceedings

The record shows that voir dire took place on March 9, 

2010, and that Huff was present in the courtroom during the 

voir dire proceedings. During voir dire, the trial judge asked 

the panel if anyone had ever been arrested for, cited for, or 

convicted of driving while under the influence of alcohol 

(DUI). In response, six prospective jurors (jurors Nos. 52, 

73, 95, 96, 106, and 139) raised their hands. The judge then 
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asked the six prospective jurors a series of questions to see if 

anything about their experience would affect their ability to be 

fair and impartial. None of the six prospective jurors indicated 

that they could not be fair and impartial. We note that jurors 

Nos. 52 and 96 were later excused for cause for other reasons based upon additional in-court questioning and were not 

among those prospective jurors later questioned in the court’s 

chambers. When selected from the pool after other prospective 

jurors were excused, both juror No. 91 and juror No. 102 also 

informed the court of prior DUI convictions. Upon in-court 

questioning by the judge, they both indicated that they could 

be fair and impartial.

The attorneys for both sides also conducted in-court questioning of prospective jurors, and Huff was present for this 

questioning. During the prosecutor’s questioning, jurors Nos. 

29, 73, 91, 95, 102, 106, and 139 raised their hands to indicate that they had prior DUI convictions. After Huff’s counsel 

questioned the prospective jurors, the judge confirmed that the 

State wanted to individually question some of the prospective 

jurors in chambers.

During a sidebar discussion between the district court and 

counsel for both parties, one of the prosecuting attorneys 

informed the court that the State wanted more details from 

the seven prospective jurors who had prior DUI convictions 

“about how long ago it was” and “what the treatment was” 

and to “[g]et the personal details out.” Upon the court’s 

inquiry, Huff’s attorneys indicated they had no objections to 

such individual questioning of the seven prospective jurors 

in chambers. Following the sidebar, the court informed the 

prospective jurors that the attorneys wanted to ask some questions of certain individual jurors in private “to spare any kind 

of embarrassment to anyone.” The court stated that the questioning would occur in a separate room with the attorneys and 

court reporter present and that each of the seven identified 

prospective jurors would be called back separately to answer 

questions outside the presence of the other prospective jurors. 
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Huff did not express any desire on the record to be present 

during the in-chambers questioning.

The in-chambers voir dire began at 11:45 a.m. on March 

9, 2010. The district court noted the presence of the attorneys 

for both Huff and the State for the in-chambers voir dire. 

Neither the court nor the attorneys mentioned Huff’s absence, 

but a notation from the court reporter in the bill of exceptions shows that Huff was not present for the in-chambers 

voir dire. The seven prospective jurors were then questioned 

individually about the circumstances of their past DUI convictions. Six of the seven prospective jurors (jurors Nos. 29, 91, 

95, 102, 106, and 139) stated that they could set aside their 

prior convictions and decide Huff’s case based on the facts 

presented to them. However, juror No. 73 was excused for 

cause during the in-chambers questioning after stating a belief 

that Huff was guilty. After the seven prospective jurors had 

been questioned, Huff’s attorneys suggested that the court 

call the next prospective juror from the pool into chambers 

for questioning in case that individual also had a prior DUI 

conviction. As the State had no objections, the judge told the 

attorneys he would ask the clerk to “pull another name” and 

would then bring that individual into the conference room. 

After the clerk selected prospective juror No. 48, that person 

was individually questioned in chambers by the judge and the 

attorneys for both parties. Juror No. 48 did not have any prior 

DUI convictions.

After the in-chambers voir dire concluded at 12:19 p.m. 

on March 9, 2010, the judge and all counsel returned to 

the courtroom, where Huff was still present. The State and 

the defense both passed the jury for cause. After the parties exercised their peremptory strikes, the court clerk read 

the names of those persons who were excused and the judge 

thanked them for their service. The bill of exceptions shows 

only which jurors were eliminated via peremptory strikes and 

does not show which jurors were removed by the State and 
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which were removed by the defense. Of the eight jurors who 

were individually questioned in chambers, only jurors Nos. 

95 and 106 were selected as members of the jury. Juror No. 

91 was selected as the alternate juror but did not participate 

in deliberations.

(b) Depositions of Huff’s 

Trial Counsel

At the evidentiary hearing, the district court received the 

depositions of both of Huff’s trial attorneys. We have referred 

to them as “the first attorney” and “the second attorney” based 

on the order in which they were appointed to represent Huff. 

The second attorney did not recall who made the request to 

conduct the individual in-chambers voir dire of prospective 

jurors with prior DUI’s, but testified that the decision to do so 

was made to avoid embarrassing those individuals in front of 

the other prospective jurors. He testified that he did not ask 

for Huff to be present for those individual interviews or waive 

Huff’s presence in any way and that the trial judge did not 

ask if he was willing to waive Huff’s presence. When asked 

if he thought “anything of that at the time,” he responded that 

he made the tactical decision not to say anything because he 

“thought that if things went badly, . . . the fact that [Huff] 

wasn’t present would have been a good issue on appeal if 

he was convicted.” The second attorney stated that the issue 

of Huff’s absence during the in-chambers voir dire was not 

raised on direct appeal because after researching the issue, 

he and the first attorney determined that the claim would not 

be successful.

The second attorney recalled that he spoke with Huff 

briefly after the in-chambers voir dire and prior to exercising peremptory strikes and that he informed Huff the defense 

“didn’t want to have any of [the prospective jurors questioned 

in chambers] on the panel because they were not favorable to him.” Both of Huff’s trial attorneys testified in their 
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depositions that Huff did not provide any input when it came 

to deciding which prospective jurors the defense wanted on 

the jury and which ones the defense wanted to strike.

The first attorney testified about the extent of Huff’s 

involvement in the overall voir dire process. The first attorney recalled that he and the second attorney went through the 

list of potential jurors with Huff prior to trial to see if Huff 

recognized any of the names, which Huff did not. He stated 

that they would have also told Huff to let them know if he 

recognized anyone on the panel once voir dire began. The first 

attorney recalled that Huff did not know any of the jurors, and 

he did not remember Huff’s commenting “either way” with 

respect to keeping or striking specific jurors.

(c) Huff’s Deposition 

and Affidavit

At the evidentiary hearing, the district court also received 

Huff’s deposition and an affidavit from Huff prepared after the 

deposition was taken.

In his deposition, Huff acknowledged that prior to trial, 

his attorneys briefly explained the voir dire process and went 

through the list of potential jurors with him. He had been 

provided the list ahead of time and informed by his attorneys 

that they wanted to know if he knew any of the individuals 

or anything about them. Huff testified that he was better at 

remembering faces than names and that he wished he had been 

provided with pictures of the individuals or a map of their 

listed addresses to aid him in determining whether he knew 

anything about them.

With respect to the in-chambers voir dire, Huff testified 

he would have liked to have been present because he “had 

a right to be in that room” and “had a right to know what 

they were talking about and why they were dismissing people 

without [his] being present.” Huff testified that following the 

in-chambers voir dire, his attorneys did not discuss the questions asked or answers provided by the prospective jurors 
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during the individual questioning and that there was not time 

to discuss “why they were going to make any decision” with 

respect to particular jurors. He testified, “[I]f I would have 

known what was going on in there, I would have had the ability to maybe help in my case.” Huff had not seen the record 

of the in-chambers voir dire at that point, and he testified that 

if shown the record, he thought he might be able to be more 

specific about input he could have provided.

According to Huff, his attorneys did not discuss with him 

the reason why any jurors were or were not being dismissed 

prior to exercising the peremptory strikes. He testified that he 

felt if he had been present for and able to provide input during 

the in-chambers voir dire, it could have affected the outcome 

of his trial. Huff explained:

Well, one of [those] jurors may have been . . . the person 

that could have [given] me an unbiased trial. They could 

have had the ability to give me freedom. In the same 

sense, they could have had the sense to find me guilty, 

they could have found me not guilty. . . . I’ll never know 

because I wasn’t in the room with them. I’ll have no ability to defend myself or help myself because I don’t know 

what went on.

Huff testified that the second attorney informed him following 

the in-chambers voir dire that the attorney needed to research 

the issue of Huff’s absence.

In the affidavit, Huff indicated that he had recently 

reviewed the portion of the bill of exceptions from his trial 

that recorded voir dire. Huff stated that if his trial attorneys 

had “demanded [his] presence, [he] would have been able to 

see the faces of the jurors that were being questioned, observe 

their body language, posture, and demeanor while they were 

being questioned, and provide[] input on whether [he] thought 

they were being honest” and “whether [he] thought they 

would be good jurors on [his] case.” Huff stated:

To show how important the process was, 4 out of the 7 

jurors questioned while I was not present were stricken. 
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One by the Judge and 3 by my own attorneys. In reviewing the record, I don’t know why [juror No.] 102 was 

stricken by my attorneys and I think [juror No.] 91 

should have been stricken. I can’t provide any details into 

why those decisions were made because I wasn’t present to observe anything about the jurors while they were 

being questioned.

He stated further:

This clearly could have affected the outcome of my case 

had I wanted to strike different jurors or keep different 

jurors after hearing and observing the relevant information they were providing. How jurors felt about their own 

DUI’s was probably the most important information they 

could provide, and my lawyers purposely did not allow 

me to be present during the process.

Huff did not provide any specific reasons as to why he believed 

juror No. 102 would have made a good juror or why juror No. 

91 should have been stricken.

6. Order Denying

Postconviction Relief

On September 1, 2016, the district court entered an order 

denying postconviction relief. As relevant to Huff’s claim that 

he received ineffective assistance of trial counsel in connection with the in-chambers voir dire of eight potential jurors 

outside of Huff’s presence, the court found that Huff’s absence 

was inadvertent and that Huff could not establish prejudice. 

The court also rejected Huff’s argument that he did not have 

to establish actual prejudice. Huff subsequently perfected the 

present appeal.

III. ASSIGNMENTS OF ERROR

Huff asserts that the district court erred in (1) denying his 

claim that the court violated his constitutional rights by allowing voir dire of prospective jurors to proceed in chambers 

outside of Huff’s presence and (2) denying his claim that his 
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trial attorneys were ineffective in not objecting or moving 

for a mistrial following the voir dire of prospective jurors in 

chambers outside of Huff’s presence.

IV. STANDARD OF REVIEW

[1-3] 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. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). Whether 

a claim raised in a postconviction proceeding is procedurally 

barred is a question of law. Id. When reviewing a question of 

law, an appellate court resolves the question independently of 

the lower court’s conclusion. Id.

[4-6] 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. State v. Alarcon-Chavez, 

295 Neb. 1014, 893 N.W.2d 706 (2017). An appellate court 

upholds the trial court’s findings in an evidentiary hearing on a 

motion for postconviction relief unless the findings are clearly 

erroneous. Id. An appellate court independently resolves questions of law. Id.

[7] When a claim of ineffective assistance of counsel presents a mixed question of law and fact, an appellate court 

reviews the lower court’s factual findings for clear error but 

independently determines whether those facts show counsel’s 

performance was deficient and prejudiced the defendant. State 

v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).

V. ANALYSIS

1. Claim of Trial Court Error

Huff asserts that the district court erred in denying his claim 

that the court violated his constitutional rights by allowing voir 

dire of prospective jurors to proceed in chambers outside of 

his presence. This claim, found in subparagraph E of ground 
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3 of Huff’s motion, was previously dismissed by the court in 

its order of October 1, 2014, ruling on the State’s motion to 

dismiss and is not properly before this court in Huff’s present appeal.

In its October 2014 order, the district court determined that 

this claim and the other remaining claims under “[g]rounds 

2, 3, and 4” of Huff’s postconviction motion all constituted 

claims of ineffective assistance of counsel. The court denied 

the State’s motion to dismiss in that regard, but it granted 

the motion to the extent those claims could be “construed or 

interpreted to be claims for any relief grounded on any theory 

or basis other than ineffective assistance of counsel.” In other 

words, to the extent that Huff’s claims under grounds 2, 3, and 

4 of his motion could be interpreted as claims of prosecutorial 

misconduct, trial court error, or law enforcement misconduct, 

the court dismissed those claims for reasons including that they 

were known to Huff and could have been litigated on direct 

appeal and were thus procedurally barred.

[8,9] Within a postconviction proceeding, an order granting 

an evidentiary hearing on some issues and denying a hearing 

on others is a final, appealable order as to the claims denied 

without a hearing. State v. Determan, 292 Neb. 557, 873 

N.W.2d 390 (2016). Pursuant to Neb. Rev. Stat. § 25-1912 

(Reissue 2016), a defendant has just 30 days to appeal from the 

denial of an evidentiary hearing; the failure to do so results in 

the defendant’s losing the right to pursue those allegations further. State v. Determan, supra. While Huff did perfect a timely 

appeal from the district court’s October 2014 order, he did not 

assign error to the court’s dismissal of his claim in subparagraph E of ground 3 to the extent the claim could be construed 

as one of trial court error. Thus, Huff has waived the right to 

pursue further his allegations of trial court error in connection 

with the in-chambers voir dire.

[10] Even if Huff had not waived the claim raised in his 

first assignment of error, the district court was correct in 

finding in its October 2014 order that any claim of trial court 
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error in connection with the in-chambers voir dire was procedurally barred because it was known to Huff at the time of his 

trial and could have been litigated on direct appeal. A motion 

for postconviction relief cannot be used to secure review of 

issues which were known to the defendant and could have 

been litigated on direct appeal. State v. Alarcon-Chavez, 295 

Neb. 1014, 893 N.W.2d 706 (2017).

Huff’s first assignment of error is without merit. However, 

we address his arguments below to the extent that they are 

applicable to his claim of ineffective assistance of counsel.

2. Claim of Ineffective

Assistance of Counsel

Huff asserts that the district court erred in denying his claim 

that his trial attorneys were ineffective in not objecting or moving for a mistrial following the voir dire of prospective jurors 

in chambers outside of Huff’s presence.

[11-13] 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; that is, counsel’s performance did not equal that of a lawyer with ordinary 

training and skill in criminal law. State v. Ross, 296 Neb. 923, 

899 N.W.2d 209 (2017). Next, the defendant must show that 

counsel’s deficient performance prejudiced the defense in his 

or her case. Id. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate 

a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different. State v. Watson, 295 Neb. 802, 891 N.W.2d 

322 (2017). 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. 

Id. The two prongs of this test, deficient performance and 
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prejudice, may be addressed in either order. State v. AlarconChavez, supra.

[14-18] The Confrontation Clause of the Sixth Amendment 

to the U.S. Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with 

the witnesses against him or her. State v. Fox, 282 Neb. 957, 

806 N.W.2d 883 (2011). The 14th Amendment makes the guarantees of this clause obligatory upon the states. State v. Fox, 

supra. The Confrontation Clause guarantees the accused’s right 

to be present in the courtroom at every stage of his or her trial. 

State v. Fox, supra. The 5th and 14th Amendments to the U.S. 

Constitution and article I, § 3, of the Nebraska Constitution 

guarantee the right to due process of law. Article I, § 11, of 

the Nebraska Constitution further guarantees an accused individual the right to appear at his or her trial. Pursuant to Neb. 

Rev. Stat. § 29-2001 (Reissue 2016), “[n]o person indicted 

for a felony shall be tried unless personally present during 

the trial.” The general rule is that an accused has a right to 

be present at all stages of the trial where his absence might 

frustrate the fairness of the proceedings. State v. Red Kettle, 

239 Neb. 317, 476 N.W.2d 220 (1991). The Nebraska Supreme 

Court has stated that a “defendant has a right to be present at 

all times when any proceeding is taken during the trial, from 

the impaneling of the jury to the rendition of the verdict, inclusive, unless he has waived such right.” Scott v. State, 113 Neb. 

657, 659, 204 N.W. 381 (1925). If a defendant is to effectively 

waive his or her presence at trial, that waiver must be knowing 

and voluntary. State v. Fox, supra.

The U.S. Supreme Court has assumed that “even in situations where the defendant is not actually confronting witnesses 

or evidence against him, he has a due process right ‘to be 

present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to 

defend against the charge.’” Kentucky v. Stincer, 482 U.S. 730, 

745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), quoting Snyder 

v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 
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(1934), overruled in part on other grounds, Malloy v. Hogan, 

378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Referring 

to voir dire, the Supreme Court has noted that

defense may be made easier if the accused is permitted to 

be present at the examination of jurors or the summing up 

of counsel, for it will be in his power, if present, to give 

advice or suggestion or even to supersede his lawyers 

altogether and conduct the trial himself.

Snyder v. Massachusetts, 291 U.S. at 106. In further considering the right, the Supreme Court stated, “Nowhere in the decisions of this court is there a dictum, and still less a ruling, that 

the Fourteenth Amendment assures the privilege of presence 

when presence would be useless, or the benefit but a shadow.” 

Snyder v. Massachusetts, 291 U.S. at 106-07. A due process 

right to be present is not absolute; rather, “the presence of a 

defendant is a condition of due process to the extent that a fair 

and just hearing would be thwarted by his absence.” Id., 291 

U.S. at 107-08. See, also, State v. Marks, 286 Neb. 166, 835 

N.W.2d 656 (2013).

[19] Voir dire plays a critical function in assuring the criminal defendant that his or her constitutional right to an impartial jury will be honored. State v. Iromuanya, 282 Neb. 798, 

806 N.W.2d 404 (2011). Clearly, it was important for Huff to 

have the opportunity to be present and participate in the jury 

selection process. Huff was present for the portion of the voir 

dire proceedings that occurred in the courtroom. He also was 

given a list of the potential jurors and had the opportunity to 

consult with his attorneys about the voir dire process prior to 

trial. His attorneys told him to let them know if he recognized 

anyone on the panel once voir dire began. The in-chambers 

questioning was directed to the ability of seven prospective 

jurors to be impartial given their prior DUI convictions. The 

responses of six of those prospective jurors indicated that they 

could be fair and impartial. The seventh juror, who stated a 

belief that Huff was guilty, was dismissed for cause during 

the in-chambers questioning. The additional prospective juror 
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selected from the pool and questioned in chambers did not 

have a prior DUI conviction. Huff’s attorneys were present for 

the in-chambers questioning, which lasted a little more than 

30 minutes. At least one of Huff’s attorneys spoke with him 

briefly after the in-chambers voir dire and prior to the parties’ exercise of their peremptory strikes. Huff did not provide 

any input with respect to exercising the defense’s peremptory 

strikes. He was present during this process and for the selection and swearing of the 12 jurors and 1 alternate juror.

In determining that Huff had the burden to prove actual 

prejudice from his absence during the in-chambers voir dire, 

i.e., that his absence adversely affected the outcome of the 

trial, the district court relied on U.S. v. Tipton, 90 F.3d 861, 

875 (4th Cir. 1996), which held:

Where absence [from voir dire] has not been total but 

only intermittent during the process the courts accordingly have not presumed prejudice but have analyzed 

the circumstances to determine whether prejudice has 

been specifically established. See, e.g., United States 

v. Bascaro, 742 F.2d 1335, 1349-50 (11th Cir.1984) 

(although peremptory strike phase of voir dire is critical, no prejudice to defendants where attorneys conferred 

about peremptories outside their presence, but defendants 

were present both while questioning took place and when 

strikes actually entered); United States v. Alessandrello, 

637 F.2d 131, 137-141 (3d Cir.1980) (absence of defendants from in-chambers questioning of venirepersons 

respecting pre-trial publicity not prejudicial in view of 

their presence at substantial part of voir dire and their 

counsels’ presence during in-chambers proceedings).

[20-22] When reviewing claims of alleged ineffective assistance of counsel, an appellate court affords trial counsel due 

deference to formulate trial strategy and tactics. State v. Torres, 

295 Neb. 830, 894 N.W.2d 191 (2017). There is a strong 

presumption that counsel acted reasonably, and an appellate 

court will not second-guess reasonable strategic decisions. Id.
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Even if found unreasonable, the error justifies setting aside 

the judgment only if there was prejudice. See State v. Duncan, 

293 Neb. 359, 377, 878 N.W.2d 363, 377 (2016). We are not 

convinced that Huff’s trial attorneys were deficient under 

the circumstances of this case, but even assuming that they 

were deficient in failing to object to his absence from the 

in-chambers voir dire of the prospective jurors who indicated 

that they had prior DUI convictions (and the prospective juror 

selected after juror No. 73 was struck for cause), Huff cannot 

demonstrate a reasonable probability that but for his counsel’s 

deficient performance, the result of the proceeding would have 

been different.

Huff argues that his attorneys’ failure in this case was presumptively prejudicial. We disagree.

Pursuant to [United States v.] Cronic, [466 U.S. 648, 

104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984),] under certain 

specified circumstances, prejudice to the accused is to 

be presumed. The text of Cronic lists the following three 

circumstances in which prejudice will be presumed: (1) 

where the accused is completely denied counsel at a critical stage of the proceedings, (2) where counsel fails to 

subject the prosecution’s case to meaningful adversarial 

testing, and (3) where the surrounding circumstances may 

justify a presumption of ineffectiveness without inquiry 

into counsel’s actual performance at trial.

State v. Trotter, 259 Neb. 212, 218, 609 N.W.2d 33, 38 (2000). 

Clearly, the first two circumstances are not applicable here, 

and, as discussed above, Huff has not shown that the surrounding circumstances of this case justify a presumption 

of prejudice.

Huff cannot show a reasonable probability that but for his 

attorneys’ alleged deficient performance, the result of the proceeding would have been different. Of the prospective jurors 

who were questioned in chambers, only jurors Nos. 95 and 

106 served on the jury and participated in deliberations. Huff 

complains about only two of the prospective jurors that were 
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questioned individually—jurors Nos. 102 and 91. Juror No. 

102 was stricken from the jury by either the State or defense 

counsel during the exercise of peremptory strikes, and juror 

No. 91 was the alternate juror and was dismissed prior to 

deliberations. The record does not conclusively show which of 

the prospective jurors at issue were stricken via the defense’s 

peremptory strikes. Huff is not guaranteed a jury comprising 

particular jurors, only a jury that is fair and impartial. See, 

Kloss v. United States, 77 F.2d 462 (8th Cir. 1935); Hartzell 

v. United States, 72 F.2d 569 (8th Cir. 1934). Huff does not 

allege that any of the jurors who were selected and deliberated on his case were biased. Nor does he explain why he 

thought prospective juror No. 102 would have made a good 

juror. Although Huff did not hear that individual’s responses 

during the in-chambers questioning, he heard the responses of 

and had the opportunity to observe all of the jurors, with the 

exception of juror No. 48, who was questioned only in chambers, during the in-court questioning. One of the parties exercised a peremptory strike against juror No. 48, and, as noted 

above, Huff does not have the right to have a jury comprising 

particular individuals. Huff has not shown and the record does 

not demonstrate that a juror with actual bias sat in judgment. 

Because Huff cannot show a reasonable probability that but for 

his counsel’s alleged deficient performance, the result of the 

proceeding would have been different, his second assignment 

of error is without merit.

VI. CONCLUSION

The district court did not err in denying postconviction relief 

following Huff’s evidentiary hearing.

Affirmed.