- 862 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

State of Nebraska, appellee, 

v. Roy L. Ellis, appellant.

___ N.W.2d ___

Filed June 24, 2022. No. S-21-595.

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: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. 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 the 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 decision.

3. 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.

4. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that 

his or her counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense.

5. ____: ____. To show that counsel’s performance was deficient under 

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

674 (1984), the defendant must show counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law in 

the area.

Nebraska Supreme Court Online Library

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

09/09/2022 01:07 AM CDT
- 863 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

6. Effectiveness of Counsel: Proof: Words and Phrases: Appeal 

and Error. To show prejudice under the prejudice component of the 

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

674 (1984), test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of 

the proceeding would have been different. 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.

7. Effectiveness of Counsel: Proof. A court may examine the two prongs 

of the ineffective assistance of counsel test, deficient performance and 

prejudice, in any order and need not examine both prongs if a defendant 

fails to demonstrate either.

Appeal from the District Court for Douglas County: 

Gregory M. Schatz, Judge. Affirmed.

James J. Regan for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, 

Senior Assistant Attorney General, for appellee.

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

Doyle and Dobrovolny, District Judges.

Papik, J.

Roy L. Ellis, who has been sentenced to death for first 

degree murder, appeals the order that denied him postconviction relief following an evidentiary hearing. He claims that his 

trial attorneys were ineffective in challenging the admissibility 

and weight of DNA evidence presented at his jury trial. His 

arguments focus on the probability statistic provided with that 

evidence. Unpersuaded, we affirm.

BACKGROUND

Trial and Sentence.

In 2005, 12-year-old Amber Harris disappeared after exiting her schoolbus. Harris’ bookbag was later found in a 
- 864 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

trash bin behind a boarding house where Ellis had lived before 

Harris’ disappearance. Among other objects linked to Harris, 

the bookbag contained Harris’ jeans, which had Harris’ blood 

on them. DNA in a shape resembling a handprint was later 

detected on the jeans, in a mixture from which Ellis could not 

be excluded as a contributor. Months after Harris disappeared, 

her decomposed and partially clothed body was discovered in 

a secluded area. Harris had died from blunt force trauma to 

the head. In the months before the DNA evidence and Harris’ 

body were found, Ellis had made a variety of incriminating statements to several individuals. Ellis was charged with 

first degree murder on theories of both premeditated murder 

and felony murder, for which the predicate felony was sexual assault.

Ellis was represented by appointed counsel, William Patrick 

Dunn and Jerry M. Hug. Prior to trial, Dunn filed a motion 

in limine in an attempt to exclude the DNA evidence gleaned 

from Harris’ jeans. The motion generally challenged the theory 

of PCR-STR DNA testing that was applied in this case, based 

on the framework in Schafersman v. Agland Coop, 262 Neb. 

215, 631 N.W.2d 862 (2001), and Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 

L. Ed. 2d 469 (1993). At a hearing on the motion, the State, 

which had the burden of proof, presented the testimony of two 

DNA experts who were involved in processing and analyzing 

the DNA sample in Ellis’ case, Kaye Shepard and Dr. James 

Wisecarver. Defense counsel’s cross-examination addressed 

whether the DNA laboratory was properly accredited and 

whether accepted procedures were properly followed. Defense 

counsel did not present any evidence. The district court overruled the motion in limine.

The DNA evidence was presented at Ellis’ jury trial over 

his general foundational objection. We recounted that evidence in our opinion on direct appeal:
- 865 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

The State’s witness, . . . Wisecarver, explained generally that the testing process used in this case involved 

looking at 16 different genetic markers scattered throughout the genome at different loci. One of those is a sex 

marker that identifies the gender of the contributor; the 

other 15 are used to compare to known reference samples 

(in this case, for [Harris] and Ellis) to see if they are the 

same or different.

The DNA found on [Harris’] jeans was a mixture 

of DNA from at least two people, one of whom was 

male. Wisecarver explained that it was not possible to 

separate the mixture into a major and minor contributor at 

each locus. Instead, he said, the presence of the mixture 

was taken into account when calculating the likelihood 

that any other person would have any combination of 

the genetic markers that had been identified. Wisecarver 

explained that the purpose of the statistical calculations 

was to determine the likelihood that “we’re going to find 

somebody, anybody, that could have any of these markers in any combination.” In other words, Wisecarver said, 

when testing a mixture, “[w]e make no inferences as to 

who matches up with whom in there. We just want to say 

in all the populations how many people would we have to 

screen in order to find somebody, anybody, that would fit 

in here in any combination of those.”

Given that [Harris’] genetic profile was known, 

Wisecarver testified that only 1 in 2.3 billion people 

would be expected to “plug in” as the other contributor 

to the mixture. And despite those odds, Ellis could not be 

excluded as a contributor to the mixture.

On cross-examination, Wisecarver was asked about 

what happened when two samples had common 

alleles—in other words, when the two possible contributors to the mixture were genetically identical at a tested 

locus. Wisecarver conceded that when such a common 

genetic marker was found at a locus, in this case, it 
- 866 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

was not possible to tell who had contributed the allele. 

But, Wisecarver said, it was still scientifically appropriate to consider such a locus when making statistical 

calculations.

State v. Ellis, 281 Neb. 571, 585, 799 N.W.2d 267, 284-85 

(2011).

On redirect, Wisecarver further explained the “uniqueness or 

rareness” of the probability statistic linking Ellis to the crime:

[T]he population of the planet Earth is known to be 

approximately 6.6 billion people. So based on that, the 

odds that — the likelihood we would find — if we look 

at the population of the planet Earth, we would maybe 

find two other people in addition to [Harris] and . . . Ellis 

who could have contributed to this mixture based on our 

known frequencies.

Ellis’ counsel did not object.

Shepard also testified for the State. She explained on crossexamination by Ellis’ counsel that the statistical analysis garnered from DNA testing was a tool for attorneys and jurors to 

determine how important the results were. She acknowledged 

that her laboratory had generated statistics that were “bigger” 

than the 1 in 2.3 billion generated in this case. When Ellis’ 

counsel posited to her that it was “not a staggering number . . . 

given the work you do,” Shepard replied, “It’s a pretty large 

number to me.”

In addition to the DNA evidence, the State presented evidence of the incriminating statements Ellis made while incarcerated on unrelated charges and before the DNA evidence 

and Harris’ body were discovered. He repeatedly asked former neighbors about any activity at the boarding house, but 

after Harris’ possessions were found, these inquiries stopped, 

though Ellis’ communication with the neighbors did not. A 

corrections officer reported that Ellis asked him for information about Harris’ case and books on forensics and DNA 

examination and that Ellis asked questions about fingerprint identification, decomposition of buried bodies, and 
- 867 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

contamination of blood and semen left outside. Ellis asked 

another corrections officer how long semen would last inside 

a dead body in a rural forested area and asked the corrections 

officer to do internet research on the subject. Ellis posed 

similar questions about semen and decomposition to other 

inmates. An inmate heard Ellis say that he had previously 

taken women to the area where Harris’ body was ultimately 

found and sexually assaulted them, hitting them on the head 

if they did not comply. Ellis told another inmate that he had 

sexually molested underage girls, some of them in the same 

area. The same inmate said that Ellis expressed an unusual 

interest in Harris’ case and cut out newspaper articles about 

it. Ellis told yet another inmate that he had sexually assaulted 

and strangled a young girl. When one inmate remarked that 

it was “crazy what happened to that Amber Harris girl,” Ellis 

said, “that’s why I got to get out and cover my tracks.” Two 

inmates said Ellis admitted to sexually assaulting Harris and 

striking her in the head; according to one of those inmates, 

Ellis said he hit Harris in the head with a hammer.

The State also presented other circumstantial evidence and 

evidence that Ellis had sexually assaulted his former stepdaughters when they were between 12 and 15 years old.

The jury found Ellis guilty of first degree murder, and he 

was sentenced to death.

Direct Appeal.

Represented by the same counsel, Ellis appealed his conviction and sentence, and we affirmed. See State v. Ellis, supra. 

Relevant here, we concluded that the district court did not err 

in admitting the DNA evidence over Ellis’ motion in limine:

Ellis does not contend that the State’s witnesses were 

not qualified to testify, or that their basic reasoning and 

methodology was not reliable. Rather, Ellis contends that 

under our Daubert/Schafersman framework, that methodology was not properly applied in this case. . . .

Ellis’ appellate argument is focused on the use of 

common alleles in the State’s statistical analysis. Ellis 
- 868 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

contends that the “overriding issue” with that method is 

that “where there is uncertainty as to the contributor, as 

long as the suspect is ‘fully represented’ . . . then that 

location counts against the suspect in calculating the 

possibility of exclusion.” This, according to Ellis, “is 

fundamentally unduly prejudicial and should not have 

been allowed.”

Ellis cites no authority that is specifically relevant 

to the issue he raises, nor is it clear that he raised that 

issue in the trial court. It was not addressed in his 

pretrial motion, which was addressed generally at the 

theory of PCR-STR DNA testing that was applied in 

this case. Nor did he raise it at trial beyond a general 

foundational objection, which is insufficient to preserve 

a Daubert/Schafersman issue. . . . Ellis’ pretrial motion 

should have identified what is believed to be lacking 

with respect to the validity and reliability of the evidence 

and any challenge to the relevance of the evidence to the 

issues of the case. But the issue now raised by Ellis was 

not identified then.

Furthermore, Ellis’ argument rests upon a misunderstanding of the way in which the DNA statistics were calculated. As Wisecarver explained, the purpose of examining each locus is to determine two things: (1) whether the 

contributor of the reference sample can be excluded as 

a contributor and (2) how commonly one might expect 

the profile that is generated to occur randomly in the 

population. In other words, the initial question was not 

whether the alleles that were found at each locus identified Ellis as the contributor; instead, it was whether 

the testing excluded Ellis as a possible contributor. And 

obviously, an allele that could be found in both Ellis’ and 

[Harris’] genetic profile would not exclude Ellis as a possible contributor.

On the second step, the fact that the DNA sample was 

a mixture clearly affected the calculation of how many 
- 869 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

people might be expected to have genetic profiles consistent with the sample, which is presumably why the probabilities found in this case are relatively modest compared 

to others. While 1 in 2.3 billion people might seem like a 

daunting figure, other cases involving single-contributor 

or major-contributor samples have produced probabilities 

of 1 in several quintillion. But that goes to the weight of 

the evidence, not its admissibility—in fact, Ellis explored 

that issue on cross-examination of one of the State’s 

experts. The district court did not abuse its discretion in 

concluding that the DNA evidence was admissible, and 

we find no merit to Ellis’ assignment of error.

State v. Ellis, 281 Neb. 571, 586-88, 799 N.W.2d 267, 285-86 

(2011) (emphasis omitted).

We also determined that the trial court had abused its 

discretion in admitting prior bad acts evidence that Ellis 

had sexually abused his former stepdaughters, but given the 

strength of the State’s other evidence, including the DNA evidence, we concluded that the erroneously admitted evidence 

was harmless:

We recognize that the admission of other acts evidence, 

by its nature, is usually prejudicial to the defendant. But 

this is the rare instance in which it was not. For one 

thing, [one witness] testified, without objection, that Ellis 

admitted molesting young girls and impregnating his 

stepdaughter. And more fundamentally, Ellis was inescapably tied to [Harris’] killing through DNA evidence 

that . . . was admissible and persuasive, and physical 

evidence that proved to be consistent with Ellis’ careless 

statements that had already been reported to investigators. There was no innocent explanation for how Ellis’ 

DNA came to be on [Harris’] bloody clothing. Nor is 

there any innocent explanation for how several witnesses 

came forward with information before [Harris’] body or 

Ellis’ DNA on her clothing had been discovered linking Ellis to the killing—some of whom even accurately 
- 870 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

described [Harris’] cause of death and the possible location of her body. This evidence can only be explained by 

the conclusion that Ellis was the killer.

Given Ellis’ statements, the physical evidence, and the 

other circumstantial evidence, we have no doubt that any 

reasonable trier of fact would have found Ellis guilty of 

the charge against him. In particular, no reasonable trier 

of fact could overlook the testimony of [three witnesses], 

each of whom was interviewed several weeks before 

Ellis’ DNA was identified on [Harris’] clothing and at 

least a month before [Harris’] body was found . . . . Each 

witness found Ellis’ interest in the case suspicious, and 

they all described details of the case that they had no way 

of knowing unless they heard them from the person who 

killed [Harris].

Id. at 581-82, 799 N.W.2d at 282-83 (emphasis omitted).

Postconviction Motions and 

Evidentiary Hearing.

In 2011, Ellis filed a timely pro se motion for postconviction relief, which was subsequently amended by Ellis and later 

by new counsel. Among other things, the motions alleged that 

Ellis’ trial counsel had been ineffective in challenging the 

State’s DNA evidence. The district court allowed Ellis an evidentiary hearing on the issue. At the hearing, the district court 

received the deposition testimony of Ellis’ former counsel, 

Dunn and Hug.

Dunn testified that the probability statistics admitted at trial 

were available at the time of the pretrial motion in limine. 

Dunn stated that he had “seen much higher numbers” than 

the probability statistics in Ellis’ case. Dunn recalled he did 

not raise the common allele argument in his pretrial motion to 

exclude DNA evidence because the statistical calculations took 

common alleles into account. Dunn retained a DNA expert, 

Dr. Ron Ostrefski, after the hearing on the motion in limine 

but prior to trial. Ostrefski did not conduct his own testing 
- 871 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

and analysis, but examined the State’s DNA evidence and 

did not express any concerns about the statistical probabilities it proffered. For this reason, Dunn explained that he did 

not call Ostrefski to testify at trial as a defense DNA expert. 

Asked whether there was a strategic purpose to making a general foundational objection at trial that did not preserve the 

admissibility issues raised before trial, Dunn testified that he 

did not view the point he was trying to make about the DNA 

evidence to be of “great evidentiary moment or any evidentiary moment.” Dunn testified that using cross-examination at 

trial to address the effect of common alleles on the ability to 

generate a statistical probability was the best approach for the 

defense at the time, as was advancing the same theory in the 

context of admissibility on direct appeal.

Hug testified that Dunn took the lead on challenging the 

State’s DNA evidence. Hug stated that if Ostrefski had disputed 

the State’s probability statistics, they would have pursued the 

matter. But Hug recalled that he and Dunn had not come up 

with any realistic way to keep the DNA evidence from being 

admitted at trial. Thus, it was their strategy to try to minimize 

the importance of the evidence at trial, that is, its weight.

Order Denying Postconviction Relief.

The district court denied postconviction relief. It identified 

ineffective assistance claims pertaining to (1) the admissibility 

of the State’s DNA evidence and (2) counsel’s failure to retain 

a defense expert to testify about the weakness of the statistical 

analysis proffered by the State’s expert.

Regarding admissibility of the State’s DNA evidence, the 

district court found that trial counsel’s performance throughout the proceedings was not ineffective. It observed that 

Ellis’ counsel had extensively cross-examined the State’s DNA 

experts at the hearing on the motion in limine and that 

Ostrefski, who defense counsel retained afterward, generally 

agreed with the accuracy of the DNA testing results. The 

district court further reasoned that defense counsel conducted 
- 872 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

an extensive cross-examination that elicited Wisecarver’s testimony that when a common genetic marker was found at a 

locus, it was not possible to tell who had contributed the allele, 

but that it was still scientifically appropriate to consider that 

locus when making statistical calculations. The district court 

concluded that on appeal, “Ellis was not prejudiced by counsel’s failure to preserve the issue of his trial attorneys’ failure 

to challenge the admissibility of the DNA evidence for appellate review because the DNA evidence was determined to be 

admissible on direct appeal.”

The district court also found that Ellis had failed to show 

deficient performance and prejudice when defense counsel did 

not retain a DNA expert to assist in challenging the State’s 

DNA evidence at the hearing on the motion in limine or present expert testimony challenging the State’s statistical analysis. It stated that Ellis had not identified an expert who would 

have assisted defense counsel and offered no evidence as to 

what that expert’s testimony would be. And the district court 

noted that Ostrefski had conceded that the State’s statistical 

data was sound.

Ellis now appeals.

ASSIGNMENTS OF ERROR

Ellis assigns, consolidated and restated, that the district 

court erred in not granting him postconviction relief based on 

his allegation that trial counsel was ineffective in challenging 

the State’s DNA evidence.

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. 

State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021).

[2] Appellate review of a claim of ineffective assistance 

of counsel is a mixed question of law and fact. Id. When 
- 873 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error. Id. With regard to the questions of counsel’s 

performance or prejudice to the defendant as part of the twopronged 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 decision. State v. Newman, supra.

ANALYSIS

[3] Ellis challenges the order that denied his request for 

postconviction relief. Postconviction relief is a very narrow 

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

Id. In this case, Ellis alleges one such constitutional violation, 

ineffective assistance of counsel. See id. We understand his 

arguments to center on the probability statistic generated from 

the State’s DNA evidence that implicated him in Harris’ death, 

which we described as “relatively modest” compared to the 

probabilities in other cited cases. See State v. Ellis, 281 Neb. 

571, 587, 799 N.W.2d 267, 286 (2011), citing State v. Edwards, 

278 Neb. 55, 767 N.W.2d 784 (2009), State v. Archie, 273 Neb. 

612, 733 N.W.2d 513 (2007), State v. Tolliver, 268 Neb. 920, 

689 N.W.2d 567 (2004), and State v. Fernando-Granados, 268 

Neb. 290, 682 N.W.2d 266 (2004). As we read Ellis’ brief, he 

asserts that his trial counsel rendered ineffective assistance in 

not addressing the impact of this “relatively modest” probability statistic on the admissibility of the DNA evidence and, 

once it was admitted, on its probative value. See id. We are 

not convinced that Ellis is entitled to postconviction relief on 

either basis.

[4-7] The principles that govern here are well-established. 

To prevail on a claim of ineffective assistance of counsel 

under the two-pronged test in Strickland, the defendant must 

show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 
- 874 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

defendant’s defense. See State v. Newman, supra. To show that 

counsel’s performance was deficient, the defendant must show 

counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. 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. Newman, 

supra. A reasonable probability does not require that it be 

more likely than not that the deficient performance altered the 

outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. Id.

“‘The likelihood of a different result must be substantial, not 

just conceivable.’” State v. Newman, 310 Neb. 463, 472-73, 

966 N.W.2d 860, 869 (2021), quoting Harrington v. Richter, 

562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). A court 

may examine performance and prejudice in any order and need 

not examine both prongs if a defendant fails to demonstrate 

either. State v. Newman, supra.

We begin by considering whether trial counsel rendered 

ineffective assistance with respect to the admissibility of the 

State’s DNA evidence. Ellis contends that his counsel should 

have opposed the admission of this evidence by addressing it 

in the pretrial motion and in a corresponding objection at trial 

based on the probability statistic’s relative weight. Ellis also 

suggests that his counsel should have retained an expert to 

guide the defense in dealing with the impact of the probability 

statistic on admissibility. To argue that he was prejudiced by 

his trial attorneys’ performance in this regard, Ellis places great 

emphasis on the role of the DNA evidence in this court’s harmless error analysis on direct appeal.

We conclude that trial counsel did not perform deficiently 

when it did not challenge the admission of the DNA evidence 

based on the relative strength of the probability statistic. 

When reviewing claims of alleged ineffective assistance of 

counsel, strategic decisions made by trial counsel will not 
- 875 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

be second-guessed so long as those decisions are reasonable. 

See State v. Newman, supra. See, also, Harrington v. Richter, 

supra (defense counsel entitled to formulate strategy that 

was reasonable at time and to balance limited resources with 

effective trial tactics and strategies). At the time the motion 

in limine was filed, Ellis’ trial counsel was aware of the 

1-in-2.3-billion probability statistic, a statistic that the expert 

retained by the defense later accepted. Ellis’ trial counsel 

testified that, unable to find a realistic way to keep the DNA 

evidence from being admitted, the best approach was to minimize the impact of this evidence at trial by casting doubt on 

the use of common alleles to conduct the statistical analysis 

that generated the probability statistic.

We believe this admissibility strategy was reasonable, especially considering our holdings that DNA evidence will not be 

withheld from the jury simply because the probability statistics 

it provides are relatively low. See State v. Bauldwin, 283 Neb. 

678, 811 N.W.2d 267 (2012). See, also, State v. Tucker, 301 

Neb. 856, 920 N.W.2d 680 (2018). To the contrary, we have 

found jurors capable of assigning appropriate weight to “the 

statistical analysis that accompanies DNA evidence,” even 

when the odds of a coincidental match are much greater than 

the odds expressed by the 1-in-2.3-billion probability statistic 

in this case. State v. Bauldwin, 283 Neb. at 703, 811 N.W.2d 

at 288 (rejecting claim that jury would treat probability of 1 

in 500,000 same as 1 in septillion). See, also, State v. Tucker, 

supra. (1-in-1,842 chance of coincidental match did not render 

Y-STR DNA evidence unreliable so as to justify withholding it 

from jury). Given our prior decisions, we cannot say that trial 

counsel performed below the level of a lawyer with ordinary 

training and skill in this area of criminal law. Accordingly, 

Ellis has not satisfied the performance prong required to prove 

ineffective assistance of counsel in addressing the admissibility 

of DNA evidence.

Likewise, we conclude that once the probability statistic was admitted at trial, Ellis’ trial attorneys were not 
- 876 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

ineffective in their response. Ellis claims that his trial counsel should have retained an expert who could have guided 

the trial strategy and explained the weakness of the State’s 

statistical analysis to the jury. Absent a defense expert, Ellis 

contends, his trial counsel should have simply pointed out 

that the statistical probability that Ellis was a contributor to 

the sample from Harris’ jeans was “tens of thousands of times 

weaker than the DNA evidence typically admitted in criminal 

proceedings.” Brief for appellant at 11. He further submits that 

his trial counsel performed deficiently in allowing Wisecarver 

to “equate the statistical probability to the number of people on 

[E]arth.” Brief for appellant at 9. Ellis essentially argues that 

his trial counsel should have done more to put the probability 

statistic into proper perspective for the jury.

Again, rather than showing Ellis’ trial attorneys’ performance to be deficient, we find the evidence demonstrates it was 

a product of reasonable trial strategy. Attorneys in the position 

of Ellis’ trial counsel could reasonably conclude that drawing 

additional attention to the probability statistic would not be 

to Ellis’ advantage. After all, the odds that a random person 

other than Ellis was the contributor, “relatively modest” as 

they were, nonetheless served as “persuasive” evidence supporting the verdict. State v. Ellis, 281 Neb. 571, 581, 587, 

799 N.W.2d 267, 282, 286 (2011). This was illustrated when 

trial counsel pursued the issue to some degree with Shepard, 

who explained that the jurors could weigh the probative value 

of the probability statistic and indicated that the probability statistic pointing to Ellis was, from her perspective, “a 

pretty large number.” Not only did additional focus on the 

DNA probability statistic pose a downside risk to Ellis’ case, 

we discern little that could have been gained by comparing 

the probability statistic in this case to other cases as Ellis 

contends his counsel should have done. It is not apparent to 

us why the jury would be moved by an argument that DNA 

evidence in unrelated cases showed more likely matches 

with the defendants in those cases. Given these factors, we 
- 877 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. ELLIS

Cite as 311 Neb. 862

find it reasonable that Ellis’ trial attorneys focused their 

efforts on diminishing the weight of the DNA evidence in the 

jury’s eyes by questioning the common alleles upon which 

it was based.

Ellis does not explain how a defense expert could have 

improved upon this strategy or framed the probability statistic to Ellis’ advantage, nor did he present any evidence on 

this point at the evidentiary hearing. Without specifying what 

such expert testimony would have been or who would have 

provided it, Ellis cannot establish that his trial attorneys were 

deficient for not retaining an expert to guide his defense or 

to testify.

Finally, although we find that Ellis has not succeeded in 

showing that his trial counsel performed deficiently in their 

treatment of the probability statistic admitted at trial, we also 

note that he cannot prove prejudice as to this point. Ellis does 

not explain—and, again, it is not apparent to us—why the jury 

would have discounted DNA evidence in this case just because 

there were probability statistics in other cases demonstrating 

a lesser likelihood of random matches with the defendants in 

those cases. And despite being “relatively modest” compared 

to some cases, the probability statistic here strongly suggested 

that Ellis’ DNA was likely on Harris’ jeans. See State v. Ellis, 

281 Neb. at 587, 799 N.W.2d at 286. Considering this with the 

other circumstantial evidence that Ellis killed Harris, much of 

which we recounted above, we find there is not a substantial 

likelihood that the outcome would have been different had 

the probability statistic’s relative strength been more overtly 

pointed out to the jury.

CONCLUSION

Finding no merit to the errors alleged by Ellis, we affirm the 

order that denied him postconviction relief.

Affirmed.

Heavican, C.J., and Freudenberg, J., not participating.