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STATE v. JOHNSON

Cite as 298 Neb. 491

State of Nebraska, appellee, v.

Craig A. Johnson, appell

___ N.W.2d ___

Filed December 22, 2017. No. S-17-069.

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

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

error but independently determines whether those facts show counsel’s 

performance was deficient and prejudiced the defendant.

3. Postconviction: Constitutional Law: Proof. A defendant seeking relief 

under the Nebraska Postconviction Act must show that his or her conviction was obtained in violation of his or her constitutional rights.

4. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hearing on a motion for postconviction relief is required on an 

appropriate motion containing factual allegations which, if proved, 

constitute an infringement of the movant’s rights under the Nebraska or 

federal Constitution, causing the judgment against the defendant to be 

void or voidable.

5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 

When a district court denies postconviction relief without conducting 

an evidentiary hearing, an appellate court must determine whether the 

petitioner has alleged facts that would support a claim of ineffective 

assistance of counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.

6. Postconviction: Effectiveness of Counsel: Proof. If the petitioner has 

not alleged facts which would support a claim of ineffective assistance 

of counsel or if the files and records affirmatively show he or she is 

entitled to no relief, then no evidentiary hearing is necessary.

Nebraska Supreme Court Online Library

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

01/19/2018 01:13 AM CST
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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.

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

Error. In determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct, an appellate court must first 

determine whether the petitioner has alleged any action or remarks that 

constituted prosecutorial misconduct.

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

does not mislead and unduly influence the jury does not constitute 

misconduct.

11. Criminal Law: Directed Verdict. In a criminal case, the court can 

direct a verdict only when (1) there is a complete failure of evidence 

to establish an essential element of the crime charged or (2) evidence is 

so doubtful in character and lacking in probative value that a finding of 

guilt based on such evidence cannot be sustained.

12. Criminal Law: Directed Verdict: Appeal and Error. In an appellate 

court’s consideration of a criminal defendant’s motion for a directed 

verdict, the State is entitled to have all its relevant evidence accepted as 

true, every controverted fact resolved in its favor, and every beneficial 

inference reasonably deducible from the evidence.

13. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, 

the case may not be decided as a matter of law, and a verdict may not 

be directed.

14. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial 

misconduct in closing arguments, a court first determines whether the 

prosecutor’s remarks were improper. It is then necessary to determine 

the extent to which the improper remarks had a prejudicial effect on the 

defendant’s right to a fair trial.
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15. Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or 

her argument on the evidence introduced at trial rather than on matters 

not in evidence.

16. 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.

17. Trial: Constitutional Law: Testimony. A defendant has a fundamental 

constitutional right to testify.

18. Trial: Attorney and Client: Testimony: Waiver. The right to testify 

is personal to the defendant and cannot be waived by defense counsel’s 

acting alone.

19. ____: ____: ____: ____. A trial court does not have a duty to advise the 

defendant of his or her right to testify or to ensure that the defendant 

waived this right on the record. Instead, defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

20. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: 

Waiver. Defense counsel’s advice to waive the right to testify can 

present a valid claim of ineffective assistance in two instances: (1) if 

the defendant shows that counsel interfered with his or her freedom to 

decide to testify or (2) if counsel’s tactical advice to waive the right was 

unreasonable.

21. Postconviction: Constitutional Law: 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.

22. Effectiveness of Counsel: Appeal and Error. When analyzing a claim 

of ineffective assistance of appellate counsel, courts usually begin by 

determining whether appellate counsel failed to bring a claim on appeal 

that actually prejudiced the defendant.

23. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion 

of the issue would have changed the result of the appeal.

24. Constitutional Law: Speedy Trial. Determining whether a defendant’s 

constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis. 

This balancing test involves four factors: (1) length of delay, (2) the 

reason for the delay, (3) the defendant’s assertion of the right, and (4) 

prejudice to the defendant.
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25. Postconviction: Appeal and Error. A party cannot raise an issue in a 

postconviction motion if he or she could have raised that same issue on 

direct appeal.

Appeal from the District Court for Cheyenne County: Dere

C. Weimer, Judge. Affirmed.

Craig A. Johnson, pro se.

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

for appellee.

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

Kelch, and Funke,

Funke, 

This is Craig A. Johnson’s appeal from the district court’s 

order denying him postconviction relief without an evidentiary 

hearing. We affirm.

I. BACKGROUND

In the spring of 2011, Johnson began dating April Smith. 

During their relationship, Johnson exhibited signs of jealousy 

about April’s relationship with her former husband Edward 

Smith. In November, Johnson told a coworker that he would 

kill April if she ever left him, and on December 10, he told his 

supervisor that if he ever caught April and Edward together, he 

would “beat the shit out of both of them.”

Later that same day, April’s nephew, Robert Gray, his wife, 

and their children visited April and Johnson at her duplex. 

Gray testified that Johnson was drinking beer that night and 

was unusually quiet. Both Gray and his wife testified that 

Johnson was upset that Edward had repaired April’s van 

and that other men had been flirting with April. Gray’s wife 

also testified that Johnson’s demeanor was angry, that the 

interactions between Johnson and April were tense, and that 

they had begun to argue before the Grays left that evening. 

April’s neighbors reported hearing loud voices and arguing 

in the early morning hours of December 11, 2011. One of the 
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neighbors stated that she heard “a couple of thuds” as well. 

On December 12, April did not report to work and did not 

respond to Gray’s attempts to contact her. Two law enforcement officers went to April’s duplex and found April dead. 

April’s body was lying face down in the living room, and 

her feet and hands were bound. They observed ligature abrasions on her neck, a wound on her hand and face, and a gaping wound on her abdomen. The pathologist who performed 

April’s autopsy concluded that pinpoint hemorrhages found 

on April’s mouth could have been caused by strangulation or 

suffocation. The ligature abrasion on her neck indicated strangulation. A forensic scientist found a fingerprint on a trash 

bag that matched one of Johnson’s fingerprints. DNA testing on blood found on the trash bag produced DNA profiles 

that matched April’s profile. An investigator testified that an 

imprint left on the trash bag appeared to be of a human face. 

Investigators also found two knives in the sink, one of which 

had an 8-inch blade with blood on it that matched April’s 

DNA. The duplex showed signs of a struggle, and blood 

was splattered throughout. The pathologist opined that her 

death was a homicide caused by the stab wound to her abdomen and suffocation, with a contributing cause of multiple 

drug toxicity.

On December 15, 2011, Johnson was arrested in Michigan 

while driving April’s van. When Nebraska investigators 

searched the van, they found Johnson’s T-shirt and athletic 

shoes with dark stains that they believed to be blood. The 

stains on both the T-shirt and the shoes tested positive for 

blood, and the DNA profile extracted from these stains matched 

April’s profile.

After a jury trial in which Johnson did not testify, he was 

convicted of first degree murder, use of a deadly weapon to 

commit a felony, and possession of a deadly weapon by a 

prohibited person. The court sentenced him to prison terms of, 

respectively, life, 40 to 50 years, and 10 to 20 years, with all 

terms to be served consecutively.
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On direct appeal, Johnson claimed that the court erred 

by admitting cumulative, gruesome autopsy photographs that 

depicted the same injuries, thus allowing the prosecutor to 

inflame the jurors’ passions. We rejected this claim, because 

Johnson did not assign and argue it.1 We also rejected his 

claim that the court erred by denying his Batson challenge 

based on an irrational and pretextual justification.2 In doing 

so, we held that the record supported the prosecutor’s concerns 

about the juror’s knowledge of the case. Lastly, we determined 

that the court did err by admitting testimony and exhibits that 

Johnson’s DNA profile contained certain alleles that matched 

alleles found in a mixed blood sample, because such evidence 

lacked sufficient probative value. However, we concluded that 

the error was harmless beyond a reasonable doubt.

In Johnson’s verified motion for postconviction relief, he 

alleged multiple instances of ineffective assistance of counsel. Because Johnson was represented by the same lawyers at 

the time of his trial and on direct appeal, this postconviction 

proceeding was his first opportunity to assert claims of ineffective assistance of counsel. Johnson alleged that his trial 

counsel was ineffective in failing to file a motion for absolute 

discharge on the basis of speedy trial, failing to object to the 

prosecutor’s comments in voir dire, failing to properly examine various witnesses at trial, failing to argue after moving for 

a directed verdict, failing to object to the state’s closing argument, failing to sever count III from the other charges, and 

failing to allow Johnson to testify at trial.

The district court, without holding an evidentiary hearing, 

denied Johnson’s motion, finding that Johnson had failed to 

allege sufficient facts to demonstrate a violation of his constitutional rights and that the record and files affirmatively showed 

that he was entitled to no relief. Johnson timely appealed.

1 See State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).

2 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986).
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II. ASSIGNMENTS OF ERROR

Johnson assigns, restated, that the district court erred in 

overruling his motion for postconviction relief by (1) denying his claim of ineffective assistance of counsel during voir 

dire, (2) denying his claim of ineffective assistance of counsel 

on the motion for directed verdict, (3) denying his claim of 

ineffective assistance of counsel during closing arguments, (4) 

denying his claim of ineffective assistance of counsel concerning his constitutional right to testify, (5) denying his claim 

of ineffective assistance of counsel on direct appeal, and (6) 

denying his claim of a violation of his constitutional right to a 

speedy trial.

III. 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.3

[2] Likewise, when a claim of ineffective assistance of counsel presents a mixed question of law and fact, we review the 

lower court’s factual findings for clear error but independently 

determine whether those facts show counsel’s performance was 

deficient and prejudiced the defendant.4

IV. ANALYSIS

In its ruling on Johnson’s motion for postconviction relief, 

the district court determined that its records and files, as well 

as the bill of exceptions and transcript prepared for Johnson’s 

direct appeal, provided a sufficient record to consider each of 

Johnson’s claims. In doing so, the court ruled that he was not 

entitled to relief on his motion and was not entitled to an evidentiary hearing.

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

4 See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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[3-6] A defendant seeking relief under the Nebraska 

Postconviction Act5 must show that his or her conviction was 

obtained in violation of his or her constitutional rights.6 An 

evidentiary hearing on a motion for postconviction relief is 

required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the 

movant’s rights under the Nebraska or federal Constitution, 

causing the judgment against the defendant to be void or 

voidable.7 When a district court denies postconviction relief 

without conducting an evidentiary hearing, an appellate court 

must determine whether the petitioner has alleged facts that 

would support a claim of ineffective assistance of counsel 

and, if so, whether the files and records affirmatively show 

that he or she is entitled to no relief.8 If the petitioner has not 

alleged facts which would support a claim of ineffective 

assistance of counsel or if the files and records affirmatively 

show he or she is entitled to no relief, then no evidentiary 

hearing is necessary.9

1. Ineffective Assi

of Counse

[7,8] A proper ineffective assistance of counsel claim 

alleges a violation of the fundamental constitutional right to 

a fair trial.10 To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

11 the defendant must 

show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

5 Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).

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

7 Id.

8 Id.

9 Id.

10 Vela, supra note 3.

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

(1984).
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defendant’s defense.12 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.13 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.14

(a) Voir Dire

Concerning the statements made by the prosecutor during 

voir dire, the court determined that the statements complained 

of by Johnson were not objectionable, and therefore, counsel 

was not ineffective for failing to object, and that Johnson 

failed to show how he was prejudiced by counsel’s performance. Those statements include the prosecutor’s telling the 

prospective jurors that there would be no evidence of a shooting or “gun play,” that the matter was not a death penalty 

case, that the evidence and testimony was “not pretty,” and 

that Johnson had “an obligation to put [the State’s] evidence 

to the test.”

[9,10] In determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct, an 

appellate court must first determine whether the petitioner has 

alleged any action or remarks that constituted prosecutorial 

misconduct.15 A prosecutor’s conduct that does not mislead and 

unduly influence the jury does not constitute misconduct.16

The first statement raised by Johnson—that there would be 

no evidence of a shooting or “gun play”—was not improper. 

12 Vela, supra note 3.

13 Id.

14 Id.

15 See State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

16 Id.
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The evidence clearly showed that a gun was not found during 

the investigation, and there was no evidence that April was 

shot. The prosecutor brought up this issue during voir dire to 

address what he believed were inaccurate media reports about 

the case and to explain why the jurors must set aside anything 

that they may have heard about the case or what they may have 

seen about the case outside of the courtroom.

It was not improper for the prosecutor to inform the jurors 

of their obligations so long as it was consistent with the law. 

Later, at the end of the trial, the court also instructed the jury 

that certain things were not evidence from which it could find 

the facts, including “[a]nything you may have seen or heard 

about this case outside the courtroom.” As a result, the prosecutor’s comment about “gun play” was not improper.

The second statement raised by Johnson—that the State was 

not seeking the death penalty—was an important detail to share 

with the prospective jurors. If the State had been seeking the 

death penalty, the jury would have been tasked with determining whether alleged aggravating circumstances existed. As a 

result, it was proper to inform the jury of what their responsibilities entailed. So to address the fact that the State was not 

seeking the death penalty was not improper.

The third statement raised by Johnson—that the evidence 

and testimony was “not pretty”—was not improper. The crime 

scene and autopsy photographs depicted the violent end to 

April’s life, and the testimony of the pathologist detailed 

the injuries April sustained. This type of evidence would be 

disturbing to most jurors, and it was important for both the 

State and Johnson to know whether prospective jurors would 

be able to cope with seeing such evidence and maintain their 

impartiality. As a result, to phrase it as “not pretty” was 

not improper.

In regard to the last statement raised by Johnson, that the 

defendant had an obligation to put the State’s evidence to 

the test, Johnson has taken this comment out of context. The 

entirety of the prosecutor’s statement was as follows:
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The judge has a role to administer sentence. He has a role 

to rule on objections. He has a role to conduct the court 

accordingly and as the judge told you we are optimistic 

that we can try this case as quickly as possible. And I 

read about 21 names of potential witnesses, we have a 

[b]unch of exhibits, a [b]unch of photographs, a lot of 

videos, some physical evidence to put before you and 

then there are 21 witnesses and we are going to try to 

speed through them as quickly as possible but we also 

have an obligation, we have an obligation to meet our 

burden of proof and the defendant has an obligation to 

put our evidence to the test and that sometimes is not an 

exact science. There is no normal in a murder case or any 

jury trial. Most of the state’s witnesses in this case are 

coming from long distances away, some from Michigan, 

some from Iowa, there are a few local but most of them 

are from Scotts Bluff or f[a]rther. There could be traffic problems, there could be days [we] would run out of 

witnesses because we went to[o] fast and we ended [at] 

3:00, there may be days that we go a bit later maybe an 

hour later because we have to fit the witness [in], I think 

it is all of our goals to have this case to you no later than 

Monday, perhaps Tuesday of next week. Is it possible 

that you go Wednesday, maybe and maybe deliberations 

go on into Wednesday, could be longer could be much 

shorter. Is there anybody aside from those th[at] indicated 

earlier to the judge that is going to be so distracted about 

the [length] that this trial, the fact that their kids are not 

getting picked up or having to rearrange plans that they 

are not going to be able to focus on the evidence and just 

think about rushing justice?

The prosecutor made the statement while explaining the 

number of witnesses intended to call and the amount of evidence he intended to present. The prosecutor was determining 

whether any of the prospective jurors would have difficulty 

with the length of the trial. The comment was not repeated 
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in the prosecutor’s comments regarding the State’s burden to 

prove Johnson guilty beyond a reasonable doubt. The comment was also not included in the prosecutor’s comments about 

Johnson’s presumption of innocence.

Though we do not condone the use of the term “obligation,” the same did not impose upon Johnson a compulsion 

to put the State’s evidence to the test. Further, the trial court 

instructed the jury at the end of the trial that “[i]n criminal 

prosecutions, the burden of proof never shifts from the State 

to the Defendant.” A phrase used no less than five times 

throughout the instructions. In addition, the jury was instructed 

that “[s]tatements, arguments, and questions of the attorneys 

representing both the State and [Johnson]” were not evidence. 

As a result, given the specific and limited context in which the 

phrase “obligation to put [the State’s] evidence to the test” was 

used, it was not improper.

(b) Motion for Directed Verdict

In regard to the claim that upon moving for a directed 

verdict, counsel failed to argue in support of the motion, the 

district court noted that sufficient evidence had been offered 

to support the charges and that therefore, argument would 

have been fruitless. As a result, the district court found that 

Johnson was not prejudiced by counsel’s failure to make such 

an argument.

[11-13] In a criminal case, the court can direct a verdict only 

when (1) there is a complete failure of evidence to establish 

an essential element of the crime charged or (2) evidence is 

so doubtful in character and lacking in probative value that a 

finding of guilt based on such evidence cannot be sustained.17

In our consideration of a criminal defendant’s motion for a 

directed verdict, the State is entitled to have all its relevant 

evidence accepted as true, every controverted fact resolved in 

its favor, and every beneficial inference reasonably deducible 

17 State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
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from the evidence.18 If there is any evidence which will sustain 

a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, 

and a verdict may not be directed.19

Johnson alleges that since his DNA and fingerprints were 

not found on the knife recovered in April’s home, the court 

should have granted a directed verdict on counts II and III. 

However, sufficient evidence was introduced to support the 

jury’s finding that Johnson committed the murder, including 

witnesses who had heard Johnson state that he would harm 

April if she ever left him, witnesses who saw Johnson and 

April arguing on the evening before the murder, a witness who 

heard thuds from April’s home on the night she was killed, the 

pathologist’s testimony that indicated the cause of April’s death 

was a stab wound or suffocation, April’s DNA that was found 

on the knife, Johnson’s fingerprints that were found on a trash 

bag used to suffocate or strangle April, Johnson who was found 

driving April’s van in Michigan after the murder, and Johnson 

who had April’s blood on his clothing and his shoes after 

the murder. Therefore, the court did not err in overruling the 

motion for directed verdict and any argument in support of the 

motion would have been without value. As a result, Johnson’s 

trial counsel could not be ineffective in failing to argue in support of the motion for directed verdict.

Because we find that none of the prosecutor’s statements 

were improper, trial counsel’s performance was not deficient 

when he failed to object to those statements. In addition, even 

if the prosecutor’s comments constituted misconduct, Johnson 

is unable to demonstrate a reasonable probability that but for 

his counsel’s deficient performance, the result of the proceeding would have been different, based upon the overwhelming 

evidence of guilt.

18 State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991), reversed on other 

grounds sub nom. Morley v. Stenberg, 828 F. Supp. 1413 (1993).

19 See State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016).
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(c) Closing Argument

In regard to counsel’s failure to object to the State’s closing argument, Johnson contends that the argument was highly 

prejudicial to him and inflamed the jury. The district court 

ruled that counsel was not ineffective, because the State’s closing argument was proper and was supported by the evidence.

The prosecutor’s comment specifically complained of by 

Johnson is as follows:

There is a tactic at play here, it’s not a surprise, let’s 

blame [April], let’s blame the police. Why do we do that 

to get the focus off of [Johnson]. To get the focus off of 

what did he do and the evidence against him. The other 

thing — the other tactic at work here is look at this piece 

of evidence, [defense counsel] got up here and he told 

you, you know, look at that — look at those few spots 

on the wall. One has April’s one has [Johnson’s], doesn’t 

mean nothing. Really does that mean proof beyond a 

reasonable doubt? Again, that is the temptation I asked 

you not to fall into, to look at a piece of information 

in isolation, to look at a piece of evidence in isolation 

and again, you know, blame the police, blame [April], 

get the focus off of [Johnson]. We want you to forget 

that his fingerprint is on this trash bag. We want you 

to forget that underneath the bag that is associated with 

him and the killing of April [are] these hats. Were the 

hats involved, I don’t know. They are in the trashcan 

and if there is a connection between those hats we 

know that one piece of evidence is certainly tied to 

. . . Johnson.

[14] In assessing allegations of prosecutorial misconduct 

in closing arguments, a court first determines whether the 

prosecutor’s remarks were improper. It is then necessary to 

determine the extent to which the improper remarks had a 

prejudicial effect on the defendant’s right to a fair trial.20

20 State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
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[15,16] A prosecutor must base his or her argument on the 

evidence introduced at trial rather than on matters not in evidence.21 However, 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.22

In State v. Dubray,

23 we stated:

[W]hen a prosecutor’s comments rest on reasonably 

drawn inferences from the evidence, he or she is permitted to present a spirited summation that a defense theory 

is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State 

and the defense. These types of comments are a major 

purpose of summation, and they are distinguishable from 

attacking a defense counsel’s personal character or stating a personal opinion about the character of a defendant 

or witness.

Here, the record includes evidence of blood splatters on a 

wall which matched both April’s and Johnson’s blood; evidence of Johnson’s fingerprint on the trash bag; and evidence 

of two hats found in the garbage bag. As a result, the prosecutor correctly stated the facts. In addition, the jury was properly 

instructed that the “attorneys may draw legitimate deductions 

and inferences from the evidence.” The prosecutor’s comments did not amount to prosecutorial misconduct, because 

the inferences were based upon the evidence introduced at 

trial and because the jury was properly instructed in the use of 

these inferences.

Further, the prosecutor’s comments were not an attack on 

the defense counsel’s character, but merely an argument that 

defense counsel was attempting to divert the juror’s attention 

from the relevant evidence. As a result, there was no prosecutorial misconduct, and therefore, Johnson’s trial counsel 

21 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

22 See Nolan, supra note 20. See, also, Dubray, supra note 4.

23 Dubray, supra note 4, 289 Neb. at 227, 854 N.W.2d at 604-05.
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could not be ineffective in failing to object to the State’s closing argument.

(d) Failure to Testify

Concerning Johnson’s right to testify, the district court ruled 

that Johnson merely provided generalizations and factual conclusions that he would have testified that he did not commit 

the murder and that he would have provided a reason why he 

was found in Michigan. As a result, the court found no demonstration of prejudice.

[17-19] A defendant has a fundamental constitutional right 

to testify.24 The right to testify is personal to the defendant and 

cannot be waived by defense counsel’s acting alone.25 But a 

trial court does not have a duty to advise the defendant of his 

or her right to testify or to ensure that the defendant waived 

this right on the record. Instead, “‘defense counsel bears the 

primary responsibility for advising a defendant of his or her 

right to testify or not to testify, of the strategic implications of 

each choice, and that the choice is ultimately for the defendant 

to make.’”26

[20] Defense counsel’s advice to waive the right to testify can present a valid claim of ineffective assistance in two 

instances: (1) if the defendant shows that counsel interfered 

with his or her freedom to decide to testify or (2) if counsel’s 

tactical advice to waive the right was unreasonable.27

[21] However, 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.28 Thus, 

in a postconviction proceeding, an evidentiary hearing is not 

24 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

25 Id.

26 Id. at 810-11, 806 N.W.2d at 421.

27 Iromuanya, supra note 24.

28 See State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
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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.29

In assessing postconviction claims of ineffective assistance 

of counsel for failure to call a particular witness, we have 

upheld the dismissal without an evidentiary hearing where the 

motion did not include specific allegations regarding the testimony which the witness would have given if called.30

Johnson’s motion merely alleges that if he were allowed to 

testify, he “would have refuted the allegations against him” 

and he “wanted to explain to the jury why he traveled to 

Michigan.” These reasons are mere conclusions of fact and 

are not sufficiently detailed to constitute factual allegations 

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

constitutional rights. Further, Johnson’s allegations are insufficient to show a reasonable probability that the outcome 

would have been different but for the failure to call him as 

a witness.

(e) Autopsy Photographs

Johnson alleges that trial counsel was ineffective on direct 

appeal for assigning as an error the admission of cumulative, 

gruesome autopsy photographs that depicted the same injuries, 

but arguing that the district court erred in admitting crime 

scene photographs, not autopsy photographs.

On direct appeal, we held that Johnson had not assigned 

that the court erred in admitting cumulative crime scene photographs, and he had not argued his assignment that the 

court erred in admitting gruesome autopsy photographs. So 

we did not address whether the court erred in admitting 

any photographs.

29 Id.

30 Dubray, supra note 4.
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Johnson contends generally that the autopsy photographs 

admitted during the direct examination of the pathologist who 

performed the autopsy were cumulative and gruesome and, as 

a result, were more prejudicial than probative.

[22,23] When analyzing a claim of ineffective assistance of 

appellate counsel, courts usually begin by determining whether 

appellate counsel failed to bring a claim on appeal that actually 

prejudiced the defendant.31 That is, courts begin by assessing 

the strength of the claim appellate counsel failed to raise.32

Counsel’s failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability 

that inclusion of the issue would have changed the result of 

the appeal.33

We have reviewed the autopsy photographs admitted into 

evidence and conclude that they were necessary to understand 

the pathologist’s medical testimony regarding the severity 

of April’s injuries and to establish the cause and manner of 

April’s death. April suffered multiple stabs wounds and had 

numerous abrasions and ligature marks. The cause of her 

death included both a stab wound and/or strangulation or suffocation. As such, the records and files in this case show that 

Johnson was not entitled to relief on the ground that defense 

counsel failed to object to the admission of the photographs 

during the trial. Therefore, defense counsel was not ineffective 

for failing to preserve the issue on direct appeal.

2. Constitutional Ri

to Speedy Tri

In regard to Johnson’s claim that his constitutional right to a 

speedy trial was violated, the court ruled that because he failed 

to raise it on direct appeal, it was procedurally barred.

31 State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).

32 Id.

33 Id.
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[24] Under U.S. Const. amend. VI and Neb. Const. art. I, 

§ 11, a defendant has the right to a speedy trial. Determining 

whether a defendant’s constitutional right to a speedy trial has 

been violated requires a balancing test in which the courts must 

approach each case on an ad hoc basis.34 This balancing test 

involves four factors: (1) length of delay, (2) the reason for the 

delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant.35

[25] However, a party cannot raise an issue in a postconviction motion if he or she could have raised that same issue 

on direct appeal.36 Whether Johnson’s constitutional right to 

a speedy trial was violated could have been raised in his 

direct appeal and was not. As a result, the claim is procedurally barred.

V. CONCLUSION

For the reasons set forth above, we conclude that Johnson 

was not entitled to an evidentiary hearing on his claims of ineffective assistance of counsel. We therefore affirm the district 

court’s order.

Affirmed

Wright, J., not participating in the decision.

34 Betancourt-Garcia, supra note 17.

35 Id.

36 See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).