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STATE v. TAYLOR

Cite as 300 Neb. 629

State of Nebraska, appellee, v. 

Trevelle J. Taylor, appellant.

___ N.W.2d ___

Filed July 27, 2018. No. S-17-1034.

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: Right to Counsel: Appeal and Error. An appellate 

court reviews the failure of the district court to provide court-appointed 

counsel in a postconviction proceeding for an abuse of discretion.

3. 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.

4. 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.

5. ____: ____: ____. A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion contains factual 

allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal Constitution.

6. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not required 

to grant an evidentiary hearing.

7. Constitutional Law: Effectiveness of Counsel. A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

Nebraska Supreme Court Online Library

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

09/12/2018 08:09 AM CDT
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8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and 

Error. 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. 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. 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.

9. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the 

ineffective assistance of counsel test under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed 

in either order, and the entire ineffectiveness analysis should be viewed 

with a strong presumption that counsel’s actions were reasonable.

10. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

11. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and 

Error. Determining whether defense counsel was ineffective in failing 

to object to prosecutorial misconduct requires an appellate court to first 

determine whether the petitioner has alleged any action or remarks that 

constituted prosecutorial misconduct.

12. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that 

does not mislead and unduly influence the jury does not constitute 

misconduct.

13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.

14. Postconviction: Right to Counsel. Under the Nebraska Postconviction 

Act, it is within the discretion of the trial court as to whether counsel 

shall be appointed to represent the defendant.

15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and 

Error. Where the assigned errors in the postconviction petition before 

the district court are either procedurally barred or without merit, thus 
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establishing that the postconviction proceeding contained no justiciable 

issue of law or fact, it is not an abuse of discretion to fail to appoint 

appellate counsel for an indigent defendant.

Appeal from the District Court for Douglas County: Marlon

A. Polk, Judge. Affirmed.

Trevelle J. Taylor, pro se.

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

for appellee.

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

Papik, JJ., and Johnson, District Judge.

Miller-Lerman, J.

NATURE OF CASE

Trevelle J. Taylor was convicted of first degree murder and 

use of a deadly weapon to commit a felony. In this postconviction action, he claimed that he received ineffective assistance 

of counsel. In a written order, the district court for Douglas 

County overruled Taylor’s postconviction motion without an 

evidentiary hearing and without appointing counsel. Taylor 

appeals. We affirm the district court’s order.

STATEMENT OF FACTS

Taylor was originally convicted of first degree murder and 

use of a weapon to commit a felony in 2010, but his convictions were reversed on direct appeal because of an erroneous 

jury instruction. See State v. Taylor, 282 Neb. 297, 803 N.W.2d 

746 (2011) (Taylor I). After a new trial on remand, Taylor was 

again convicted of both charges. We affirmed the convictions 

on appeal; we also affirmed the sentence of imprisonment for 

10 to 10 years for use of a weapon to commit a felony, but 

because Taylor was under 18 years of age at the time of the 

offense, we vacated the sentence of life imprisonment for first 

degree murder and remanded the cause for resentencing as to 

that conviction. See State v. Taylor, 287 Neb. 386, 842 N.W.2d 

771 (2014) (Taylor II). Taylor was resentenced on February 5, 
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2016, to imprisonment for 40 to 40 years for first degree murder, with the sentence to run consecutively to his sentence for 

use of a weapon to commit a felony.

Taylor was charged and convicted of fatally shooting Justin 

Gaines outside Gaines’ residence on September 19, 2009. The 

facts related to the charges in this case are set forth in greater 

detail in Taylor I and Taylor II, but certain facts are set forth 

in the analysis below as they pertain to Taylor’s postconviction claims.

On March 30, 2016, Taylor filed a pro se motion for postconviction relief. He set forth three claims of ineffective assistance of trial counsel. He claimed that counsel was ineffective 

for (1) failing to object to the admission of evidence obtained 

from an allegedly unconstitutional detention and arrest, (2) 

failing to object to allegedly inadmissible hearsay testimony 

regarding the general location in which a gun tied to the 

shooting was found, and (3) failing to object to and move for 

a mistrial based on the prosecutor’s allegedly improper closing arguments. He also claimed that the cumulative effect of 

these alleged errors denied him effective assistance of counsel. 

Taylor requested an evidentiary hearing, appointment of postconviction counsel, and relief including reversal of his convictions and vacation of his sentences.

In a written order filed August 31, 2017, the district court 

rejected each of Taylor’s claims. The specific allegations of 

the claims and the court’s disposition of each is set forth in the 

analysis below. The court overruled Taylor’s motion for postconviction relief, denied his request for an evidentiary hearing, 

and denied his request for appointment of counsel.

Taylor appeals.

ASSIGNMENTS OF ERROR

Taylor claims that the district court erred when it found 

each of his claims to be without merit and overruled his 

motion for postconviction relief without an evidentiary hearing. He also claims the district court erred when it refused to 

appoint postconviction counsel.
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STANDARDS 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. State v. 

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

[2] We review the failure of the district court to provide 

court-appointed counsel in a postconviction proceeding for an 

abuse of discretion. State v. Haynes, 299 Neb. 249, 908 N.W.2d 

40 (2018).

ANALYSIS

Postconviction Standards.

[3,4] Because Taylor appeals from the denial of postconviction relief, we begin by reviewing standards related to 

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

Thus, 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. Id.

[5,6] A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion 

contains factual allegations which, if proved, constitute an 

infringement of the defendant’s rights under the Nebraska or 

federal Constitution. Id. If a postconviction motion alleges 

only conclusions of fact or law, or if the records and files in 

the case affirmatively show that the defendant is entitled to no 

relief, the court is not required to grant an evidentiary hearing. Id.

Taylor’s claims for postconviction relief assert that he 

received ineffective assistance of counsel. Because Taylor was 
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represented both at trial and on direct appeal by the same 

lawyer or lawyers from the same office, this motion for postconviction relief was his first opportunity to assert ineffective 

assistance of counsel. See State v. Haynes, supra.

[7-9] A proper ineffective assistance of counsel claim 

alleges a violation of the fundamental constitutional right to 

a fair trial. State v. Vela, supra. 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. State v. Vela, supra. 

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. Id. 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 may be addressed 

in either order, and the entire ineffectiveness analysis should 

be viewed with a strong presumption that counsel’s actions 

were reasonable. State v. Cotton, 299 Neb. 650, 910 N.W.2d 

102 (2018).

With these principles in mind, we turn to Taylor’s specific 

claims of ineffective assistance of counsel.

Claim I: Suppression of Evidence.

Taylor’s first claim was that counsel was ineffective for failing to object to the admission of evidence obtained from an 

allegedly unconstitutional detention and arrest. Taylor noted 

that prior to his first trial, counsel had filed a motion to suppress evidence obtained as a result of his detention and arrest, 

which he alleged were made without reasonable suspicion or 

probable cause. Taylor’s motion was successful in part. The 

court determined that statements made by Taylor should be 
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suppressed because he was interrogated before he was read his 

Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. 

Ct. 1602, 16 L. Ed. 2d 694 (1966). The court also determined 

that a DNA sample should be suppressed because Taylor was 

coerced into giving the sample. However, the court denied the 

remainder of the motion to suppress because it found that the 

detention and arrest were not unconstitutional.

The facts related to Taylor’s detention and arrest were 

generally as follows: A witness saw two men shooting into a 

vehicle in which the victim, Gaines, was seated. The witness 

described one of the shooters as wearing a brown shirt. Police 

officers who arrived on the scene of the shooting broadcast 

a description of a white vehicle that was believed to have 

been connected with the suspects. Officer Joel Strominger 

heard the broadcast and was in the vicinity of the shooting 

when he saw a vehicle that matched the description in the 

broadcast. Strominger observed a man standing near the passenger side of the vehicle who appeared to have exited the 

vehicle. The man was holding something brown in his hand. 

When the vehicle and the man departed in opposite directions, Strominger followed the vehicle. He radioed a description of the man and the direction the man was heading to 

other officers.

Officer Jarvis Duncan heard Strominger’s description and 

was traveling in the direction that Strominger had said the man 

was going. Duncan saw a man, Taylor, who fit the description 

given by Strominger. When Duncan and his partner pulled their 

cruiser up next to Taylor, Taylor started running. Duncan and 

his partner chased after Taylor and ordered him to stop, but he 

kept running. They caught up to Taylor at the front door of a 

house. Before the officers apprehended Taylor, they saw him 

throw something behind a tree in the front yard of the house. 

Duncan later found a brown shirt by the tree. At trial, a witness to the shooting identified the brown shirt found under the 

tree as the shirt worn by one of the shooters. Duncan and his 

partner handcuffed Taylor and placed him inside their cruiser. 
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The officers took Taylor to Strominger, who was nearby. 

Strominger identified Taylor as the man he had seen earlier 

beside the vehicle.

Taylor claimed in his postconviction motion that trial counsel failed to properly object at trial to the admission of evidence that was obtained as a result of his arrest and, thus, 

failed to preserve for appeal the issue of the constitutionality of 

his arrest. He asserted that counsel either did not object to such 

evidence or that counsel’s objection was inadequate because 

counsel objected on bases other than the constitutionality of 

his detention and arrest. Taylor’s allegations in support of this 

claim focused on the brown shirt, which was received into 

evidence, and testimony by witnesses who identified one of the 

shooters as wearing a brown shirt.

The postconviction district court rejected Taylor’s first postconviction claim. The district court reasoned in part that the 

trial court had reviewed Duncan’s actions in stopping and 

arresting Taylor and had “ruled Officer Duncan’s actions to 

be legal” and that therefore, the stop and arrest were not 

unconstitutional.

[10] We have reviewed the trial court’s ruling on Taylor’s 

motion to suppress. We determine that even if trial counsel 

had challenged the constitutionality of the detention and arrest 

on appeal, the ruling would have been affirmed. In reviewing a trial court’s ruling on a motion to suppress based on a 

claimed violation of the Fourth Amendment, an appellate court 

applies a two-part standard of review. Regarding historical 

facts, an appellate court reviews the trial court’s findings for 

clear error, but whether those facts trigger or violate Fourth 

Amendment protection is a question of law that an appellate 

court reviews independently of the trial court’s determination. State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018). 

Based on the evidence presented by the State at the hearing on 

Taylor’s motion to suppress, we agree with the district court’s 

conclusion that the detention and arrest of Taylor did not violate the Fourth Amendment. Therefore, no evidence obtained 
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as a result of Taylor’s arrest or detention should have been 

suppressed based on an illegal search or seizure.

Because the trial court’s ruling on the motion to suppress 

was correct, we conclude that Taylor has not shown prejudice resulting from trial counsel’s failure to object at trial 

to evidence obtained as a result of his detention and arrest. 

Even if such objection had been made, it would properly have 

been overruled, and even if the issue had been preserved and 

raised on appeal, it would not have resulted in a reversal of 

Taylor’s conviction. See State v. Schwaderer, 296 Neb. 932, 

898 N.W.2d 318 (2017) (counsel not ineffective for failing to 

renew motion to suppress at trial when motion raised meritless 

argument). We therefore conclude that the district court did not 

err when it rejected Taylor’s first postconviction claim without 

an evidentiary hearing.

Claim II: Hearsay Regarding 

Location of Gun.

Taylor’s second claim was that counsel was ineffective for 

failing to object to allegedly inadmissible hearsay testimony 

regarding the general location in which a gun tied to the shooting was found. In Taylor II, Taylor claimed that the trial court 

erred when it overruled his objection based on hearsay to testimony regarding the specific location in which the gun was 

found. We rejected the claim in Taylor II, in part because it was 

cumulative of prior testimony, to which Taylor did not object, 

regarding the general location in which the gun was found. In 

this postconviction claim, Taylor asserts counsel was ineffective for failing to object to the testimony regarding the general 

location. In effect, the claim is that trial counsel was deficient 

when he failed to object sooner.

Joseph Copeland was a witness called by the State. Copeland 

lived near where the shooting occurred, and he testified that at 

the time of the shooting, just after he heard gunfire, he saw a 

man running down his street. Copeland further testified that 

approximately 2 months after the shooting, he called police to 
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his residence because his son and a neighbor boy had found 

a gun “in the trees” when they were looking for an airplane 

they had lost when they “were playing down at the school.” 

Copeland testified that his son had brought the gun to him and 

that his son had shown him where he found the gun.

When the State asked Copeland to indicate on a map the 

location where his son had said he had found the gun, Taylor’s 

counsel objected based on hearsay and the court sustained the 

objection. The State then asked Copeland whether he “physically went to that location,” and Copeland responded, “Yes.” 

The State again asked Copeland to identify the location on the 

map, and this time the court overruled Taylor’s counsel’s objection and allowed Copeland to identify the exact location.

On appeal in Taylor II, the State conceded that Copeland’s 

testimony regarding the exact location of the gun was inadmissible hearsay, but it argued that admission of the testimony was 

harmless error. We agreed that the testimony was inadmissible 

hearsay and that the error was harmless. We reasoned that 

Copeland’s testimony regarding the precise location of the gun 

was cumulative of earlier testimony by Copeland to which 

Taylor had not objected. We noted that Copeland had already 

testified without objection that his son had found the gun in 

the trees at the school. We also noted that Copeland’s earlier 

testimony had indicated that he lived near the school. We reasoned that this evidence, admitted without objection, already 

established that the gun was found near Copeland’s home. 

We further reasoned that the precise location of the gun “was 

not vital to the State’s case” and instead that “[t]he important 

fact was that the gun was found near Copeland’s home, in the 

area where Copeland had seen someone running the day of the 

shooting.” Taylor II, 287 Neb. at 394, 842 N.W.2d at 778. We 

concluded that “[b]ecause evidence of the general location of 

the gun was received without objection, the subsequent hearsay 

[regarding the exact location] was cumulative.” Id. We additionally reasoned that “there was a substantial amount of other 

evidence that established Taylor’s guilt.” Id.
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Taylor claimed in his postconviction motion that trial counsel was ineffective for failing to object based on hearsay as 

soon as Copeland mentioned the gun and the general location 

in which it was found. He argued that counsel knew from prior 

proceedings the nature of Copeland’s testimony and should 

have known where the testimony was going. He further argued 

that the error in admitting the evidence was not harmless 

because other evidence that we relied on in Taylor II to support 

his conviction was also improperly admitted.

In its written order, the district court rejected Taylor’s second postconviction claim. The court noted that in Taylor II, we 

had found the error in admitting hearsay testimony regarding 

the exact location of the gun was harmless not only because 

it was cumulative of earlier testimony regarding the general 

location of the gun, but also “more significantly” because there 

was a substantial amount of other evidence that supported 

Taylor’s conviction. The court stated that it was apparent 

that “even if the Copeland testimony was completely disregarded the record contained sufficient evidence to support . . . 

Taylor’s conviction.”

Taylor claims in this appeal that the postconviction district 

court erred in its legal analysis when it relied on our decision 

in Taylor II that admission of hearsay testimony regarding the 

location of the gun was harmless error because of the substantial amount of other evidence that support Taylor’s conviction. 

He argues that much of the other evidence on which we relied 

in reaching our determination in Taylor II was also inadmissible because it was obtained as the result of his detention 

and arrest. However, as we discussed above, the trial court 

did not err when it determined that Taylor’s detention and 

arrest were not unconstitutional. Therefore, the other evidence 

upon which we relied in Taylor II was not improper based on 

a claim of illegal detention and arrest and it did support our 

conclusion in Taylor II that error in admitting hearsay regarding the specific location in which the gun was found was 

harmless error.
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In contrast to our analytical framework in the direct appeal, 

Taylor II, we note that in this postconviction action the operative question is not whether error in admitting the evidence was 

harmless error. Instead, with regard to Taylor’s claim of ineffective assistance of counsel, the court must determine whether 

counsel’s alleged deficient performance caused prejudice to the 

defendant. 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. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). This is a 

different standard from the harmless error analysis in Taylor II, 

which required us to find that Taylor’s conviction was surely 

unattributable to the error in admitting hearsay evidence of the 

specific location of the gun.

In this postconviction action, the operative question is 

whether there is a reasonable probability that but for counsel’s 

failure to object to Copeland’s testimony regarding the general 

location of the gun the result of the proceeding would have 

been different. In other words, we must determine whether, 

if counsel had objected and the testimony had been excluded, 

there is a reasonable probability that Taylor would not have 

been convicted. We determine that because there was sufficient 

other evidence of Taylor’s guilt, the admission of Copleand’s 

unchallenged testimony regarding the location of the gun does 

not undermine confidence in the outcome of the trial and 

there was not a reasonable probability that the result of the 

trial would have been different if the testimony had been 

excluded. We conclude that the district court did not err when 

it rejected Taylor’s second postconviction claim without an 

evidentiary hearing.

Claim III: Prosecutor’s Comments 

in Closing Arguments.

Taylor’s third claim was that counsel was ineffective for 

failing to object to and move for a mistrial based on allegedly 
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improper closing arguments made by the prosecutor. Taylor 

identified five occurrences from the prosecutor’s closing arguments that he claimed were improper.

In the first occurrence, the prosecutor referred to evidence 

that Taylor was riding in a car with a codefendant and told 

the jury, “you use your own common sense. There’s conversation going on in that car.” The prosecutor later stated, “We 

don’t have evidence of what happened in that car, but use 

your common sense, the discussion that took place before 

they get out of the car.” Taylor argued these comments were 

improper because the prosecutor was “inject[ing] her personal belief which was unsupported by the evidence more 

than once.”

In the second occurrence, the prosecutor referred to 

Copeland’s testimony and stated, “Copeland sees him on this 

block right here . . . . [Copeland] testified that he saw the 

defendant cut across right here . . . towards Mary Street where 

the gun’s found.” Taylor argued that these comments misstated 

the evidence because Copeland testified only that he saw a 

“black male” running down the street and that Copeland gave 

no further description and he never identified Taylor as the 

person he had seen.

In the third occurrence, the prosecutor stated, “[Taylor] 

had just run through the neighborhood with that brown shirt 

holding this gun . . . in his shorts.” Taylor argued this comment was not supported by the evidence, because no witness 

testified to seeing Taylor holding a gun as he ran through the 

neighborhood.

In the fourth occurrence, the prosecutor referred to Taylor’s 

codefendant, who testified at Taylor’s trial and stated:

What [the codefendant] testified to is the truth. Did he 

tell you everything? No. He’s not telling you everything 

because he’s friends with [Taylor] . . . . He doesn’t want 

to give everything up, what he is telling you is the truth, 

because it’s corroborated throughout the testimony and 

evidence of all the other witnesses.
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The prosecutor stated in rebuttal:

[Defense counsel] wants you to say that we called [the 

codefendant] a liar. We didn’t call him a liar. He told you 

the truth. Everything he told you is corroborated. . . .

What he did tell you is the truth. And it’s corroborated by every other piece of evidence you have in this 

case . . . .

Taylor argued that the prosecutor was improperly vouching for 

its main witness.

In the fifth occurrence, the prosecutor referred to a witness 

who had seen the shooting and stated that she

came in here and she told you who she identified. Didn’t 

get a good look at either one of their faces, but think 

about it, use your common sense. If you’re standing there, 

you’re going through what [the witness] went through, 

are you going to remember a visual face or are you going 

to remember — is clothing going to stand out more? Is 

a brown shirt with orange writing, are you going to forget that?

Taylor argued that this comment was improper because it 

asked the jurors to put themselves in the shoes of the witness 

and it therefore encouraged the jurors to depart from neutrality and to decide the case on the basis of personal interest and 

bias rather than on evidence.

The district court rejected Taylor’s third postconviction 

claim. The court stated, “Having reviewed the record it is clear 

to this Court that the prosecution did not engage in prosecutorial misconduct as any statements made by the prosecutor that 

may have been inaccurate did not mislead and unduly influence the jury. The prosecutor was merely making her closing 

argument to the jury.” The court further stated that the prosecutor’s comments “were reasonably drawn inferences from 

the evidence” and that trial counsel had “used his opportunity, 

during his closing argument to contest and/or discredit” the 

prosecutor’s comments.
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[11-13] Determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct requires 

an appellate court to first determine whether the petitioner 

has alleged any action or remarks that constituted prosecutorial misconduct. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 

(2017). A prosecutor’s conduct that does not mislead and 

unduly influence the jury does not constitute misconduct. Id. 

A prosecutor is entitled to draw inferences from the evidence 

in presenting his or her case, and such inferences generally do 

not amount to prosecutorial misconduct. Id. We determine that 

the first, second and third occurrences described above were 

instances of the prosecutor’s drawing inferences from the evidence in making her arguments to the jury and did not amount 

to prosecutorial misconduct.

Regarding the fourth occurrence, Taylor argues that the 

prosecutor was improperly vouching for the witness. However, 

we do not read the prosecutor’s comments as vouching for the 

truth of the witness’ testimony. The prosecutor was not asserting that she had personal knowledge of the witness’ veracity. 

Instead, the prosecutor was pointing out that the testimony was 

corroborated by other evidence, and therefore, the prosecutor was drawing the inference that the witness’ testimony was 

credible because it was consistent with other evidence. This 

argument did not amount to prosecutorial misconduct. See 

State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016) (stating that while prosecutor should not express his or her personal 

belief or opinion as to truth or falsity of any testimony, when 

prosecutor’s comments rest on reasonably drawn inferences 

from evidence, prosecutor is permitted to highlight relative 

believability of witnesses).

Regarding the fifth occurrence, Taylor contends that the 

prosecutor improperly asked the jurors to put themselves in the 

shoes of the witness and base their verdict on personal interest 

or bias. In his motion for postconviction relief, Taylor cited

Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988), 

for the proposition that it is improper for an attorney to make 
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a “so-called Golden Rule argument” which encourages the jury 

to put itself in the shoes of a plaintiff and which encourages 

the jury to depart from neutrality and to decide the case on the 

basis of personal interest and bias rather than on the evidence. 

However, the prosecutor’s comments in this case were significantly different from this sort of argument. Instead, the prosecutor used inferences from the evidence to explain why the 

witness may have remembered certain details but not remembered other details of the suspects’ appearances. The prosecutor 

did not ask the jurors to put themselves in the shoes of a party 

or in the shoes of the victim and to therefore render a verdict 

based on personal interest or bias. Instead, the prosecutor asked 

the jurors to consider how the circumstances may have affected 

the witness’ observations and recollections. These comments 

did not constitute misconduct.

Because none of the occurrences urged by Taylor constituted prosecutorial misconduct, the district court did not err 

when it rejected Taylor’s third claim of ineffective assistance 

of counsel.

Cumulative Effect and Summary.

Taylor also claimed that even if each of his individual claims 

of ineffective assistance of counsel was insufficient to support postconviction relief, then the cumulative effect of all the 

alleged instances of counsel’s deficient performance resulted 

in an unfair trial requiring postconviction relief. However, 

because we conclude that each of Taylor’s individual claims 

was without merit, we further conclude that the cumulative 

effect of such claims did not result in an unfair trial and does 

not merit postconviction relief. See State v. Robinson, 287 Neb. 

606, 843 N.W.2d 672 (2014).

Because none of Taylor’s claims of ineffective assistance 

of counsel had merit, either individually or collectively, we 

conclude that the district court did not err when it overruled 

his motion for postconviction relief without granting an evidentiary hearing.
- 645 -

Nebraska Supreme Court Advance Sheets

300 Nebraska Reports

STATE v. TAYLOR

Cite as 300 Neb. 629

Appointment of Counsel.

[14,15] Taylor finally claims that the court erred when 

it denied his motion for appointment of counsel. Under the 

Nebraska Postconviction Act, it is within the discretion of the 

trial court as to whether counsel shall be appointed to represent the defendant. State v. Epp, 299 Neb. 703, 910 N.W.2d 

91 (2018). Where the assigned errors in the postconviction 

petition before the district court are either procedurally barred 

or without merit, thus establishing that the postconviction 

proceeding contained no justiciable issue of law or fact, it is 

not an abuse of discretion to fail to appoint appellate counsel 

for an indigent defendant. Id. We therefore conclude the district court did not abuse its discretion when it denied Taylor’s 

motion to appoint postconviction counsel.

CONCLUSION

We conclude that the district court did not err when it overruled Taylor’s motion for postconviction relief without an evidentiary hearing and that it did not abuse its discretion when it 

denied his motion to appoint counsel. We therefore affirm the 

district court’s order.

Affirmed.