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301 Nebraska Report

STATE v. ALLEN

Cite as 301 Neb. 560

State of Nebraska, appellee, v.

Kevin Allen, appel

___ N.W.2d ___

Filed November 16, 2018. No. S-17-771.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo a 

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record 

and files affirmatively show that the defendant is entitled to no relief.

2. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

3. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

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

relief.

5. Postconviction: Proof. In a postconviction proceeding, an evidentiary 

hearing is not required (1) when the motion does not contain factual 

allegations which, if proved, constitute an infringement of the movant’s 

constitutional rights; (2) when the motion alleges only conclusions of 

fact or law; or (3) when the records and files affirmatively show that the 

defendant is entitled to no relief

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

void or voidable, the proper course is to overrule a motion for postconviction relief without an evidentiary hearing.

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

cannot be used to secure review of issues which were or could have 

been litigated on direct appeal.

Nebraska Supreme Court Online Library

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

11/23/2018 12:10 AM CST
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8. ____: ____. Plain error cannot be asserted in a postconviction proceeding to raise claims of error by the trial court.

9. Postconviction: Effectiveness of Counsel: Appeal and Error. Although 

a motion for postconviction relief cannot be used to secure review of 

issues which were or could have been litigated on direct appeal, when a 

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

lawyer, the defendant’s first opportunity to assert ineffective assistance 

of counsel is in a motion for postconviction relief.

10. ____: ____: ____. To establish a right to postconviction relief because 

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

accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was 

deficient; that is, counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law, and then the defendant 

must show that counsel’s deficient performance prejudiced the defense 

in his or her case.

11. Effectiveness of Counsel: Proof. To establish the prejudice prong of 

a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.

12. Trial: Polygraph Tests. The results of polygraph examinations are not 

admissible into evidence.

13. Postconviction. An evidentiary hearing is not required when a motion 

for postconviction relief alleges only conclusions of fact or law without 

supporting facts.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirme

Kevin Allen, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Papik, JJ

Funke, 

Kevin Allen appeals from the denial of postconviction relief 

without an evidentiary hearing. Allen asserts that he was 

denied a fair trial, that he was prejudiced by ineffective assistance of counsel at trial and on direct appeal, and that he was 
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entitled to a hearing based on newly discovered evidence. We 

determine that Allen’s postconviction motion fails to state a 

claim for relief. Thus, we affirm the district court’s denial of 

postconviction relief without an evidentiary hearing.

BACKGROUND

This appeal follows our decision on Allen’s direct appeal in 

State v. Allen,

1

 which affirmed Allen’s jury trial convictions of 

first degree murder and use of a firearm to commit a felony 

in the shooting of an Omaha, Nebraska, police officer, James 

B. “Jimmy” Wilson, Jr. The district court for Douglas County 

sentenced Allen to life imprisonment on the murder conviction 

and 18 to 20 years’ imprisonment on the use of a firearm to 

commit a felony conviction, to be served consecutively. We 

determined that all of Allen’s assigned errors on direct appeal 

were without merit. As we will discuss, Allen’s motion for 

postconviction relief raises many of the same issues addressed 

on direct appeal.

Shooti

On August 20, 1995, at 8 p.m., Wilson radioed for a license 

plate check on a brown Chevrolet van and was informed that 

the plate was expired and was assigned to a blue Mazda. 

Wilson radioed that he would stop the van and began to radio 

the location of the stop but never completed his communication. Police officers in the area reported hearing multiple 

gunshots. Officers responded to an “officer needs assistance” 

call and discovered Wilson’s police cruiser at 40th and Blondo 

Streets. The cruiser had been hit by 11 rounds of gunfire. 

Wilson was shot four times; three times in the head. He was 

found deceased with his seatbelt still on and the radio microphone still in his hand.

At the time, Allen was a member of the “South Family 

Bloods” gang and had the street nickname “Dumb.” On August 

1 State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997), disapproved in part,

State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
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20, 1995, members of the gang, including Allen, were driving 

around Omaha in a brown and tan Chevrolet van. Allen was 

driving the van earlier in the afternoon and stopped at a convenience store to purchase gasoline. Dion Harris later replaced 

Allen as the driver and drove for the remainder of the day.

Harris drove to his mother’s house, and Tavias Minor went 

inside and returned with a bag containing a rifle with a bananashaped ammunition clip. The group then headed to North 

Omaha and stopped for gas at another convenience store at 

approximately 7:35 p.m. When they left the store, Harris was 

sitting in the driver’s seat, Ronney Perry was sitting in the passenger’s seat, Minor was seated behind the driver, and Allen 

was seated in the back next to the sliding door.

Shortly thereafter, Wilson activated his police cruiser’s overhead lights and pulled over the van. Three eyewitnesses—

LaKeisha Lucas, LaTasha Lucas, and Stephanie Bean—told 

police that they saw one gunman exit the van through the 

sliding door and shoot Wilson. The murder weapon was never 

recovered, but police determined that the weapon that killed 

Wilson was a semiautomatic rifle. Witnesses provided inconsistent renditions of the facts during the postshooting investigation, which we summarize below as relevant to Allen’s 

postconviction appeal.

Postshooting Chronol

Police tracked the van to a housing community in South 

Omaha and conducted door-to-door interviews and searches. 

Otis Simmons, Perry, Harris, Minor, and the owner of the van 

were contacted by the police and taken to the police station for 

additional questioning. Simmons initially stated that he was 

at the movies at the time of the shooting, but then stated that 

he, Perry, Harris, Minor, Allen, and Quincy Hughes all participated in the shooting and that Allen was the shooter. Perry 

stated that Simmons, Harris, and Minor were at the scene, that 

Hughes and Allen jumped out of the van, and that Allen was 

the shooter.
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Police executed a search warrant on Hughes’ home and 

arrested Hughes and seized some rap lyrics he had written. Hughes provided a detailed alibi. Eyewitnesses Bean, 

LaKeisha Lucas, and Tyran McCleton identified Hughes out 

of a lineup as the shooter. LaTasha Lucas stated that Hughes 

closely resembled the shooter. Simmons and Perry changed 

their stories and claimed that Hughes was the shooter, not 

Allen. Prosecutors outlined this evidence at a preliminary hearing to establish probable cause that Hughes was the shooter.

Two months later, Simmons and Perry both recanted their 

statements that Hughes was the shooter after being given polygraph examinations. The results indicated that Simmons and 

Perry were deceptive when they denied that Hughes was the 

shooter. Simmons went back to his original statement that he 

was at the movies. Perry reverted to his earlier statement that 

Allen was the shooter. The State reopened the investigation and 

conducted further interviews of alibi witnesses. In exchange for 

time served, Minor agreed to testify that Allen shot Wilson and 

that Simmons and Hughes were not at the scene. Minor sat for 

a deposition conducted by Allen’s counsel.

Tria

The State dismissed charges against Hughes without prejudice and filed charges against Allen. At trial, Perry testified 

that Allen was the shooter. The following exchange occurred 

during direct examination of Perry:

“Q. Okay. And after [Harris] pulled over, did anybody 

say anything?

“A. [Perry]: [Allen] said he ain’t going back to jail.

“Q. Okay. What happened then?

“A. He got out and started shooting.

“Q. Who did?

“A. Kevin.

“Q. Kevin Allen?

“A. Yeah.

“. . . .
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“Q. Okay. So Kevin Allen, or Dumb, got out. Did he 

have a gun with him when he got out of the van?

“A. Yep.

“Q. What gun?

“A. The rifle.

“Q. Okay. And what door did he get out of . . . ?

“A. Sliding door.”2

The State supported its theory that Allen was the shooter by 

offering Minor’s deposition testimony. Security photographs 

were offered to show that Allen purchased gasoline at the first 

convenience store. The police laboratory identified nine latent 

fingerprints from Allen around the driver’s seat and near the 

rear passenger seat next to the sliding door. No fingerprints 

from Hughes were found in the van.

Allen’s theory of defense was that he was innocent and that 

Hughes was the shooter. The defense focused on the inconsistent accounts given by Simmons and Perry, the fact that 

the State initially charged Hughes, and the fact that Bean and 

McCleton testified that Hughes was the shooter. In rebuttal, the 

State provided testimony in support of Hughes’ alibi. After the 

close of evidence, and following arguments and deliberations, 

the jury convicted Allen on both counts.

Direct App

On direct appeal, Allen assigned, restated, that the district 

court erred in (1) refusing to instruct the jury that it could not 

speculate as to what potential alibi witnesses for Simmons 

and Hughes, who were identified but not called, might have 

said had they testified; (2) refusing to instruct the jury that the 

charges against Hughes had been dismissed without prejudice 

and that the State could have refiled charges against Hughes; 

(3) allowing the State to read into evidence Minor’s deposition 

testimony after he asserted his Fifth Amendment rights part 

way through his live testimony; (4) excluding from evidence 

2 Id. at 191, 560 N.W.2d at 835.
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four of the five offered exhibits that contained rap lyrics written by Hughes and refusing Allen’s requested jury instruction 

that a felon (Hughes) in possession of a gun with a barrel 

less than 18 inches in length is guilty of a Class IV felony; 

(5) prohibiting inquiry into the fact that Simmons and Perry 

failed polygraph examinations when they denied Hughes was 

the shooter; (6) excluding from evidence the information filed 

against Hughes and the State’s position at the preliminary 

hearing that Hughes shot Wilson; (7) denying Allen’s motions 

that would have allowed for African-American jurors to be 

selected; (8) applying the rule that minorities can be preemptorially challenged as long as a race-neutral reason for the 

challenge can be articulated; and (9) permitting the preemptory 

challenge of juror No. 43, an African-American.

We found no merit to any of Allen’s assigned errors. We 

found no merit to Allen’s first assignment of error, because, 

contrary to Allen’s assertion, the court instructed the jury to 

not speculate as to what the testimony of witnesses who were 

not called would have been. We found no merit to Allen’s 

second assignment of error, because even though the State did 

not believe that Hughes shot Wilson after reexamining Hughes’ 

alibi, the State never suggested to the jury that charges against 

Hughes could not be refiled, and Allen was free to argue that 

the charges against Hughes could be refiled if additional evidence pointed to Hughes.

Regarding Allen’s third assignment of error, we found that 

Minor’s out-of-court deposition testimony was admissible 

without violating the Confrontation Clause, because the testimony was properly admitted under Neb. Evid. R. 804(2)(a), 

Neb. Rev. Stat. § 27-804(2)(a) (Reissue 1995), a firmly rooted 

hearsay exception. As an issue of first impression, we concluded that rule 804(2)(a) controlled over Neb. Rev. Stat. 

§ 29-1917(4) (Reissue 1995) regarding the use of a deposition when the deponent is unavailable as a witness at trial. 

We found that the requirements of rule 804(2)(a) were met, 

because Minor’s deposition was taken by Allen’s counsel 
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in compliance with Nebraska law and in the course of the 

same criminal proceeding in which it was offered and because 

Allen’s counsel had an opportunity to develop Minor’s testimony with a similar interest or motive on matters related 

to Allen’s defense. For example, Allen’s counsel questioned 

Minor, knowing that Minor would testify that Allen was 

the shooter and that Minor would provide this testimony 

based on an agreement he made with the State. We therefore agreed with the district court’s conclusion that Minor’s 

deposition testimony was reliable and admissible under rule 

804(2)(a).

We found no merit to Allen’s fourth assignment of error, 

because the court did admit an exhibit that contained rap lyrics 

written by Hughes and excluded four other exhibits containing 

Hughes’ lyrics as cumulative of evidence already admitted. 

The exhibit admitted by the court provided:

“[Gates Of Hell.] My life has been hell in and out of 

jail so all I got is a fuck it mentality and kill tha devil 

when he comes for me Im gona have to hold court in the 

street G, Ill be dam if I go back to a cell . . . .”3

We also concluded that the court did not err in rejecting 

Allen’s proposed instruction stating that a felon who possesses 

a firearm with a barrel less than 18 inches commits a felony 

offense. There was testimony at trial that a handgun was in the 

van on the night of the shooting, and the parties stipulated that 

Hughes had a prior felony conviction. Allen argued the court 

should have given the proposed instruction in order to allow 

him to demonstrate that Hughes had a motive to shoot Wilson. 

We determined that Allen was not prejudiced by the court’s 

refusal to give the requested instruction, because the instruction was irrelevant to the charges against Allen and, even 

without the instruction, Allen had an opportunity to introduce 

evidence and argue to the jury that Hughes had a motive to 

shoot Wilson.

3 Id. at 202, 560 N.W.2d at 841.
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Allen’s fifth assignment of error was without merit, because 

the court properly concluded that evidence concerning a polygraph examination is inadmissible under Nebraska law. We 

found no merit to Allen’s sixth assignment of error, because 

the court did not err in excluding from evidence the State’s 

position at the preliminary hearing that Hughes was the 

shooter, the information filed against Hughes, and Hughes’ 

docket sheet. We found the proffered evidence was not relevant, because the State’s decision to charge Hughes was not 

probative as to whether Allen shot Wilson. Rather, the relevant evidence was the witness testimony regarding the facts 

and events surrounding the shooting. Moreover, the State had 

admitted throughout trial that it made a mistake in charging 

Hughes. Therefore, the excluded evidence was cumulative to 

evidence before the jury.

We found no merit to Allen’s seventh and eighth assignments of error, because Allen’s position was contrary to settled 

law regarding jury selection proceedings. Lastly, we found no 

merit to Allen’s ninth assignment of error, because the State 

provided a race-neutral reason for excusing juror No. 43.4

Postconvi

In the fall of 2007, the clerk of the district court for Douglas 

County docketed a verified motion for postconviction relief 

filed by Allen, pro se. For reasons not provided in this record, 

the court did not rule upon Allen’s pro se motion, a delay 

which troubles this court. The court later appointed counsel 

to represent Allen on his postconviction motion in district 

court. Through counsel, Allen filed an amended motion for 

postconviction relief on July 1, 2016. Allen’s amended motion 

asserted five causes of action: (1) denial of the right to a fair 

trial; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; and (5) newly discovered evidence. The State moved to 

4 See Allen, supra note 1.
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dismiss Allen’s amended motion, and the court granted the 

State’s motion.

The court found Allen’s first and fourth causes of action 

were procedurally barred, because Allen’s arguments about 

the fairness of trial and prosecutorial misconduct could have 

been brought on direct appeal. The court found Allen’s second 

cause of action was not procedurally barred, because Allen 

had the same counsel at trial and on direct appeal and this 

was Allen’s first opportunity to raise ineffective assistance 

of counsel claims. The court, however, determined that Allen 

had not pointed to any defective actions taken by counsel. The 

court, for the same reasons, determined Allen’s cause of action 

for ineffective assistance of appellate counsel was without 

merit and stated that inclusion of Allen’s postconviction arguments on direct appeal would not have changed the result of 

the appeal.

The court found no merit to Allen’s fifth cause of action 

regarding the discovery of new evidence. The court found the 

proper course would have been to file a motion for new trial 

under Neb. Rev. Stat. § 29-2101(5) (Reissue 2016) rather than 

to pursue postconviction relief. The court found Allen was not 

entitled to an evidentiary hearing.

Allen appealed and proceeds as a self-represented litigant. 

On appeal, he contends the court erred in failing to grant him 

an evidentiary hearing.

ASSIGNMENTS OF ERROR

Allen assigns, condensed and restated, that the district court 

erred in (1) prohibiting Allen from cross-examining Minor and 

failing to strike Minor’s trial testimony after Minor invoked 

his Fifth Amendment rights and permitting Minor’s deposition to be read into evidence, in contravention of Allen’s 

Sixth Amendment right to confront his accuser; (2) failing to 

grant Allen postconviction relief based on ineffective assistance of trial counsel; (3) failing to grant Allen postconviction 

relief based on ineffective assistance of appellate counsel; 
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and (4) failing to grant Allen an evidentiary hearing based on 

newly discovered evidence.

STANDARD OF REVIEW

[1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.5

ANALYSIS

[2-6] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.6

 In 

a motion for postconviction relief, the defendant must allege 

facts which, if proved, constitute a denial or violation of his 

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

the judgment against the defendant to be void or voidable.7

Relief under the Nebraska Postconviction Act8 is a very narrow category of relief.9

 In a postconviction proceeding, an 

evidentiary hearing is not required (1) when the motion does 

not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights; (2) when 

the motion alleges only conclusions of fact or law; or (3) 

when the records and files affirmatively show that the defendant is entitled to no relief.10 In a few previous postconviction 

appeals, we have stated that in the absence of alleged facts 

that would render the judgment void or voidable, the proper 

5 State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).

6 State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).

7 Id.

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

9 Foster, supra note 5.

10 Newman, supra note 6.
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course is to dismiss the motion for postconviction relief for 

failure to state a claim.11 This articulation is couched in terms 

of a rule of civil pleading,12 and it originated prior to our 

opinion in State v. Robertson.

13 In Robertson, we clarified that 

postconviction proceedings are not governed by the Nebraska 

Court Rules of Pleading in Civil Cases.14 Thus, we take this 

opportunity to disapprove of the former articulation. A more 

precise formulation is that in the absence of alleged facts that 

would render the judgment void or voidable, the proper course 

is to overrule the motion for postconviction relief without an 

evidentiary hearing.

Fair Trial Challe

Procedurally Bar

Allen asserts that the district court erred in failing to grant 

an evidentiary hearing based on allegations that the district 

court committed prejudicial error during Allen’s trial. Allen 

argues that the court erred in permitting Minor to invoke his 

Fifth Amendment rights against self-incrimination midway 

through his testimony. Allen also asserts that the court erred 

in failing to strike Minor’s in-court testimony and permitting the State to read portions of Minor’s deposition into 

evidence.

[7,8] We conclude that the district court properly found 

these allegations were procedurally barred, because they could 

have been and actually were raised and addressed on direct 

appeal. Postconviction relief is available only to remedy prejudicial constitutional violations.15 A motion for postconviction 

relief cannot be used to secure review of issues which were 

11 See, Foster, supra note 5; State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 

(2018); State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).

12 See Neb. Ct. R. Pldg. § 6-1112(b)(6).

13 State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

14 Id.

15 State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017).
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or could have been litigated on direct appeal.16 Allen asserts 

that we should consider his arguments that the trial court erred 

under a plain error analysis. Plain error cannot be asserted in a 

postconviction proceeding to raise claims of error by the trial 

court.17 We therefore affirm the denial of postconviction relief 

as to Allen’s first assignment of error.

Trial Counsel W

Not Ineffect

[9] Although a motion for postconviction relief cannot be 

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

litigated on direct appeal, when a defendant was represented 

both at trial and on direct appeal by the same lawyer, the 

defendant’s first opportunity to assert ineffective assistance of 

counsel is in a motion for postconviction relief.18 Allen’s ineffective assistance of trial counsel claim is properly before us.

[10,11] 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,

19

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, and then the 

defendant must show that counsel’s deficient performance 

prejudiced the defense in his or her case.20 To establish the 

prejudice prong of a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability 

that but for counsel’s deficient performance, the result of the 

proceeding would have been different.21 A court may address 

16 Id.

17 State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).

18 Id.

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

(1984).

20 See Foster, supra note 5.

21 Id.
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the two prongs of this test, deficient performance and prejudice, in either order.22

Allen asserts that his trial counsel was ineffective in failing to call certain witnesses at trial to support his defense 

that he was innocent. The postconviction motion before the 

district court referred to trial counsel’s alleged failure to 

investigate, interview, or call nine different witnesses; Allen’s 

brief on appeal contends that three witnesses should have been 

called to testify: Clarence Burns, Clyde Smith, and Richard 

Circo.

Allen alleges that had Burns been called as a witness, he 

would have testified that the individual who shot Wilson 

matched the description of Hughes. However, the jury was 

already provided with testimony from multiple witnesses that 

Hughes was the shooter. Allen does not explain how the 

testimony of Burns would have changed the jury’s decision, 

given that the jury was already presented with evidence supporting Allen’s theory of the case. Allen’s postconviction 

motion before the district court asserted that Burns’ testimony 

would have bolstered a description of the shooter provided 

by McCleton. However, there is no reason why McCleton’s 

testimony was critical to the jury’s decision. While McCleton 

stated that Hughes was the shooter, he admitted that he 

never saw the individual who shot the gun, and only heard 

the gunshots.

Allen contends that had Smith been called to testify, he 

would have said that when the van stopped, he saw Minor 

and two other individuals who he was unable to identify 

exit the van. In addition, Smith was unable to identify Allen 

out of a lineup. Like the testimony which Burns allegedly 

would have provided, Smith’s testimony would not have 

been critical and would not have proved whether Allen was 

or was not the shooter at the scene of the murder at 40th and 

Blondo Streets.

22 Id.
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Allen claims that his counsel should have offered the testimony of Circo, a polygraph examiner with the Omaha Police 

Department who conducted polygraph tests on Simmons and 

Perry. Circo stated in his deposition that when Simmons and 

Perry denied that Hughes was the shooter, they were not truthful. However, this evidence would have been inadmissible 

under Nebraska law.

[12] We have consistently held that the results of polygraph 

examinations are not admissible into evidence in this state.23

We have stated that “the scientific principle involved in the use 

of such polygraph has not yet gone beyond the experimental 

and reached the demonstrable stage, and that it has not yet 

received general scientific acceptance,”24 and we have generally affirmed the exclusion of polygraph evidence. We have 

more recently stated that “[t]here is no consensus that polygraph evidence is reliable, and a fundamental principle of the 

justice system is that the jury is the lie detector, determining 

the weight and credibility of witness testimony.”25

We have specifically prohibited the admission of the results 

of polygraph examinations in evidence, and we have disapproved of any reference to polygraph tests.26 Although the 

results of a polygraph test are not admissible in evidence, the 

“mere mention of the word ‘polygraph,’ absent more, does not 

constitute prejudicial error.”27 But we have held that a mere 

reference to a polygraph examination is improper where the 

23 See, Allen, supra note 1; State v. Walker, 242 Neb. 99, 493 N.W.2d 329 

(1992); State v. Steinmark, 195 Neb. 545, 239 N.W.2d 495 (1976).

24 Boeche v. State, 151 Neb. 368, 377, 37 N.W.2d 593, 597 (1949). See 

Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957).

25 State v. Castaneda, 287 Neb. 289, 303, 842 N.W.2d 740, 752 (2014), 

citing United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 

2d 413 (1998).

26 See State v. Temple, 192 Neb. 442, 222 N.W.2d 356 (1974).

27 State v. Anderson and Hochstein, 207 Neb. 51, 67, 296 N.W.2d 440, 451 

(1980). See State v. Beach, 215 Neb. 213, 337 N.W.2d 772 (1983).
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credibility of a witness is impacted.28 Our decisions in this 

area have recognized that it is the jury’s responsibility to 

determine the credibility of witnesses and that polygraph evidence interferes with this process.

Circo’s alleged testimony would have been introduced for 

the purpose of undermining the credibility of witnesses based 

on his reading of their polygraph examinations. This evidence would have interfered with the jury’s role to determine 

the credibility of Simmons and Perry and would not have 

been admissible.

Because the alleged testimony of Burns and Smith would 

not have affected the outcome of the case, and because 

Circo’s testimony would have been prohibited, Allen’s claim 

that trial counsel was ineffective for declining to call these 

witnesses is without merit.

Allen asserts that he was prejudiced by trial counsel’s failure to object to the admission of an assault rifle with a bananashaped ammunition clip into evidence. Similarly, Allen asserts 

that a certain witness should not have been permitted to testify 

that police found a black gun in her apartment, but that the 

witness did not know how the gun got there. The issue before 

the jury was not whether guns were involved in the murder or 

whether a shooting had occurred, but whether the State proved 

that Allen shot Wilson beyond a reasonable doubt. As there 

was no dispute that someone exited the van and shot Wilson, 

there is no reason why the probative value of evidence of firearms would have been substantially outweighed by the danger 

of unfair prejudice.29 Therefore, Allen has not shown that an 

objection would have led to the exclusion of the evidence. 

Counsel is not ineffective for failing to make an objection that 

has no merit.30

28 See, Castaneda, supra note 25; State v. Riley, 281 Neb. 394, 796 N.W.2d 

371 (2011).

29 See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).

30 See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
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Cite as 301 Neb. 560

We therefore affirm the denial of postconviction relief as to 

Allen’s second assignment of error.

Appellate Counsel W

Not Ineffect

Allen’s motion for postconviction relief alleged that his 

appellate counsel was ineffective by failing to assign that the 

district court erred in permitting Minor to invoke his Fifth 

Amendment rights against self-incrimination midway through 

his testimony, failing to strike Minor’s in-court testimony, 

and permitting the State to read portions of Minor’s deposition into evidence. In addition, Allen contended that appellate 

counsel was ineffective for failing to raise claims of prosecutorial misconduct.

When a claim of ineffective assistance of appellate counsel 

is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective 

assistance of counsel), an appellate court will look at whether 

trial counsel was ineffective under the Strickland 31 test.32 If 

trial counsel was not ineffective, then the defendant was not 

prejudiced by appellate counsel’s failure to raise the issue.33

Much like claims of ineffective assistance of trial counsel, the 

defendant must show that but for counsel’s failure to raise the 

claim, there is a reasonable probability that the outcome would 

have been different.34

However, in Allen’s brief, he merely argues that his defense 

“was highly prejudiced by appella[te] counsel[’s] lack of concern or interest in effectively challenging . . . constitutional 

concerns on direct appeal.”35 He fails to discuss how appellate counsel lacked concern or lacked interest. In addition, he 

31 Strickland, supra note 19.

32 Foster, supra note 5.

33 Id.

34 Id.

35 Brief for appellant at 30.
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STATE v. ALLEN

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fails to discuss any of the contentions raised in his motion for 

postconviction relief. As we have said many times, an alleged 

error must be both specifically assigned and specifically argued 

in the brief of the party asserting the error to be considered by 

an appellate court.36 Because Allen’s brief fails to argue the 

assigned error, we decline to address it. We therefore affirm the 

denial of postconviction relief as to Allen’s third assignment 

of error.

Newly Discovered Ev

Claim Without Meri

[13] Allen asserts that he should have been granted an 

evidentiary hearing based on the claim that newly discovered evidence suggests that law enforcement officials might 

have tampered with forensic evidence involved in his case. 

Allen’s claim concerns David Kofoed, the former supervisor 

of the Crime Scene Investigation Division for the Douglas 

County, Nebraska, sheriff’s office. Kofoed testified in Allen’s 

trial about diagramming the crime scene at 40th and Blondo 

Streets. Allen asserts, quite generically, that based on Kofoed’s 

involvement in the investigation, any forensic evidence in the 

case, such as fingerprints and ballistics information, has been 

rendered unreliable. An evidentiary hearing is not required 

when a motion for postconviction relief alleges only conclusions of fact or law without supporting facts.37

 Kofoed’s testimony showed that he did not play a major 

role in the evidence which led the jury to convict Allen. 

Kofoed was responsible for measuring the distance between 

items of physical evidence at the crime scene that were located 

and marked, mostly shell casings. He did not indicate that 

he collected any evidence, and he did not mention Allen in 

his testimony. He merely provided a description of the scene 

and laid foundation for the admission of a photograph of the 

36 State v. Lotter, ante p. 125, 917 N.W.2d 850 (2018).

37 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
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police cruiser. We agree with the district court that “[s]imply 

alleging Kofoed’s involvement under these circumstances does 

not warrant an evidentiary hearing . . . .”38

Similarly, Allen’s motion and brief discuss a 2012 burglary case in which a crime laboratory technician and her 

colleagues misidentified a fingerprint. Allen claims, in light 

of this new information, the evidence of fingerprint analysis 

used in Allen’s trial was unreliable and inadmissible. Here, 

Allen’s broad and generalized allegations do not include any 

factual support to suggest that his fingerprints were misidentified. In addition, Allen has failed to demonstrate that had the 

jury been prohibited from considering the fact that nine latent 

fingerprints of Allen’s were found in the van, the jury would 

not have still convicted him based on eyewitness testimony. 

We determine Allen’s request for an evidentiary hearing based 

on newly discovered evidence is without merit. We therefore 

affirm the denial of postconviction relief as to Allen’s fourth 

assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the order of the district court denying Allen’s motion for postconviction relief 

without an evidentiary hearing.

Affirmed

Freudenberg, J., not participatin

38 See id.