State v. Edwards

382 	284 NEBRASKA REPORTS
the supersedeas bond is taxed as an expense, and the cost is
payable by Shields.
CONCLUSION
In the case at bar, the real estate should be partitioned in
kind. Partition is an equitable action, and this court has the
authority to grant complete relief. Accordingly, we reverse the
judgment of the county court directing sale of the real estate
and remand the cause with directions that the court award
tracts 1 and 2 to one sister, tract 3 and $174,000 to another,
and tract 4 and $155,000 to the third in accordance with
our opinion.
The county court did not err in appointing a referee to deter-
mine if partition was required. However, the court did not have
jurisdiction to order payment of referee fees after the appeal
was perfected. Therefore, the October 14, 2011, order awarding
fees is vacated.
The county court did not err in requiring McConville to post
a supersedeas bond. Since McConville has prevailed in this
appeal, the cost of the bond is taxed to Shields.
The judgment of the county court is reversed, and the cause
is remanded thereto with directions for further proceedings
consistent with this court’s opinion.
R eveRsed in paRt, and in paRt vacated and
Remanded foR fuRtheR pRoceedings.
stephan, J., participating on briefs.
state of nebRaska, appellee, v.
chRistopheR a. edwaRds, appellant.
821 N.W.2d 680
Filed September 28, 2012. 	No. S-11-723.
1. Constitutional Law: Due Process. Whether the procedures given an individual
comport with constitutional requirements for procedural due process presents a
question of law.
2. Effectiveness of Counsel: Appeal and Error. A petitioner’s claim that his or
her defense counsel provided ineffective assistance presents a mixed question of
law and fact. An appellate court reviews factual findings for clear error. Whether
the defense counsel’s performance was deficient and whether the petitioner was
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. EDWARDS 	383
Cite as 284 Neb. 382
prejudiced by that performance are questions of law that the appellate court
reviews independently of the lower court’s decision.
3. Postconviction: Constitutional Law: Proof. A court must grant an eviden-
tiary 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.
4. 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 eviden-
tiary hearing.
5. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
6. Postconviction: Constitutional Law. A trial court’s ruling that the petitioner’s
allegations are refuted by the record or are too conclusory to demonstrate a
violation of the petitioner’s constitutional rights is not a finding of fact—it is a
determination, as a matter of law, that the petitioner has failed to state a claim for
postconviction relief.
7. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction 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.
8. Effectiveness of Counsel: Appeal and Error. When a case presents lay-
ered claims of ineffective assistance of counsel, an appellate court determines
whether the petitioner was prejudiced by his or her appellate counsel’s failure to
raise issues related to his or her trial counsel’s performance. If the trial counsel
did not provide ineffective assistance, then the petitioner cannot show prejudice
from the appellate counsel’s alleged ineffectiveness in failing to raise the issue
on appeal.
9. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of
counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
10. Effectiveness of Counsel: Proof: 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 actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
11. 	Criminal Law: Effectiveness of Counsel. A trial counsel’s performance was
deficient if it did not equal that of a lawyer with ordinary training and skill in
criminal law.
12. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, courts give his or her acts a strong presumption
of reasonableness.
13. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When
reviewing claims of ineffective assistance, an appellate court will not second-
guess a trial counsel’s reasonable strategic decisions. And an appellate court must

384 	284 NEBRASKA REPORTS
assess the trial counsel’s performance from the counsel’s perspective when the
counsel provided the assistance.
14. Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice”
component of the test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), an appellate court focuses on whether a trial
counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair.
15. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), the petitioner 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 is a probability sufficient to undermine
confidence in the outcome.
16. Venue. Under Neb. Rev. Stat. § 29-1301 (Reissue 2008), a change of venue is
mandated when a defendant cannot receive a fair and impartial trial in the county
where the offense was committed.
17. Venue: Appeal and Error. An appellate court evaluates a court’s change of
venue ruling under eight factors unless the defendant claims that the pretrial pub-
licity was so pervasive and prejudicial that the appellate court should presume the
unconstitutional partiality of the prospective jurors.
18. Venue: Juror Qualifications. Under most circumstances, voir dire examina-
tion provides the best opportunity to determine whether a court should change
venue.
19. Venue: Juror Qualifications: Presumptions. Two circumstances exist when
the prospective jurors’ claims of impartiality are presumptively unreliable. First,
pervasive pretrial publicity that is sufficiently inflammatory can create a pre-
sumption of prejudice in a community and require a change of venue to a loca-
tion untainted by the publicity. Second, if most of the prospective jurors admit
to a disqualifying prejudice, the reliability of the others’ claims of impartiality is
called into question.
20. Venue: Due Process. Mere exposure to news accounts of a crime does not pre-
sumptively deprive a defendant of due process. Even the community’s extensive
knowledge about the crime or the defendant through pretrial publicity is insuf-
ficient in itself to render a trial constitutionally unfair if the media coverage
consists of merely factual accounts that do not reflect animus or hostility toward
the defendant.
21. Venue: Presumptions: Courts. In determining whether the pretrial publicity
created a presumption of prejudice, a court should consider whether the media
coverage was (1) invidious or inflammatory, as distinguished from factual, and
(2) pervasive.
22. Constitutional Law: Trial: Due Process. A fair trial before a fair and impar-
tial jury is a basic requirement of constitutional due process guaranteed by the
Constitutions of the United States and the State of Nebraska.
23. Postconviction: Constitutional Law: Trial: Due Process: Public Officers and
Employees. Short of claiming actual innocence, to establish a violation of the
Due Process Clause based on the State’s use of false evidence at trial, the defend-
ant in a postconviction proceeding must allege that state action was involved. The

STATE v. EDWARDS 	385
Cite as 284 Neb. 382
conduct of state officials must have rendered his or her conviction inconsistent
with the due process guarantee of a fair trial in which the truth-seeking process
has not been corrupted.
24. Trial: Due Process: Police Officers and Sheriffs: Witnesses. A due proc-
ess violation occurs when a law enforcement officer who participated in the
investigation or preparation of the prosecution’s case fabricates evidence or
gives false testimony against the defendant at trial on an issue material to guilt
or innocence.
25. Due Process: Convictions: Evidence. The State’s knowing use of false evidence
to secure a conviction violates a defendant’s due process rights. A conviction is
tainted and must be set aside if there is any reasonable likelihood that the false
evidence could have affected the jury’s verdict.
26. Jurisdiction: Appeal and Error: Words and Phrases. “Appellate jurisdiction”
is the power vested in a superior court to review and revise a decision that has
been tried in an inferior court.
27. Effectiveness of Counsel: Conflict of Interest. A conflict of interest must be
actual rather than speculative or hypothetical before a court will overturn a con-
viction because of ineffective assistance of counsel.
28. ____: ____. The right to effective assistance of counsel entitles the accused to his
or her counsel’s undivided loyalties, free from conflicting interests.
29. Constitutional Law: Effectiveness of Counsel: Conflict of Interest: Proof. A
defendant who raised no objection at trial must show that an actual conflict of
interest existed and that the conflict adversely affected his lawyer’s performance.
If the defendant satisfies this requirement, the defendant is not required to show
that the Sixth Amendment violation had a probable effect on the outcome of the
trial to obtain relief.
30. Trial: Witnesses: Attorney and Client: Conflict of Interest. Although not
common, a defense counsel’s close personal relationship with a material pros-
ecution witness can create a conflict of interest if the evidence shows that the
defense counsel’s desire to protect the witness outweighed his or her duty to
represent the defendant’s interests.
31. Attorneys at Law: Conflict of Interest. Conflicts of interests resulting from
successive representations can occur when a defendant’s trial counsel previously
represented a codefendant, trial witness, or victim.
32. Trial: Attorney and Client: Conflict of Interest. If a defense counsel acts
or refrains from acting at trial in loyalty to a former client in a manner that is
inconsistent with the defendant’s interests, the defense counsel actively represents
conflicting interests no less than a defense counsel who does the same during
concurrent representations.
33. Trial: Attorneys at Law. A defense counsel is entitled to formulate a strategy
that was reasonable at the time and to balance limited resources in accord with
effective trial tactics and strategies.
34. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s postconviction
claims that his or her defense counsel was ineffective in failing to investigate
possible defenses are too speculative to warrant relief if the petitioner fails to
allege what exculpatory evidence that the investigation would have procured and
how it would have affected the outcome of the case.

386 	284 NEBRASKA REPORTS
Appeal from the District Court for Douglas County: J
Russell deRR, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
heavican, c.J., wRight, connolly, stephan, mccoRmack,
and milleR-leRman, JJ.
connolly, J.
I. SUMMARY
Christopher A. Edwards appeals from the district court’s
order overruling his motion for postconviction relief without
an evidentiary hearing. We reverse in part. We conclude that
the following two claims require an evidentiary hearing: (1)
that the State presented fabricated forensic evidence at his trial
and (2) that his trial counsel had a conflict of interest because
of his relationship with the officer accused of fabricating
the evidence.
II. BACKGROUND
In March 2007, a jury convicted Edwards of second degree
murder and use of a deadly weapon to commit a felony.
In 2009, we affirmed his convictions in State v. Edwards.1
We summarize the factual background for his convictions
from Edwards.
1. evidence at edwaRds’ tRial
Jessica O’Grady was last seen on May 10, 2006. Investigators
never 	found 	her 	body. 	But 	they 	found 	blood 	matching
O’Grady’s DNA profile in Edwards’ bedroom in many places:
on his nightstand, bedding, chair, bookcase, laundry baskets,
headboard, clock radio, and ceiling. They also found a large
amount of her blood soaked into the underside of his mat-
tress. In addition, investigators found her blood on a sword in
1 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

STATE v. EDWARDS 	387
Cite as 284 Neb. 382
Edwards’ closet. In his vehicle, investigators found a shovel
and garden shears. They found blood on the garden shears, on
the underside of Edwards’ trunk lid, and on a trunk gasket. The
blood on the vehicle items produced full or partial DNA pro-
files that matched O’Grady’s profile.
Investigators also found a trash bag in the garage where
Edwards lived that contained bloodstained towels and a drug-
store receipt. O’Grady’s DNA profile matched the blood found
on the towels. And on May 11, 2006, the drugstore’s video
camera recorded Edwards purchasing poster paint, white shoe
polish, and correction fluid. The blood on his bedroom ceiling
was covered over in paint that chemically matched the poster
paint. An expert testified that the bloodstains on the ceiling
over Edwards’ bed were consistent with a “cast-off” pattern,
i.e., blood splattered from seven individual swings of an object
wet with blood.
In affirming the convictions, we rejected Edwards’ argu-
ment that the evidence was insufficient to prove that O’Grady
had been murdered because her body had not been found.
We stated, “[I]t does not take much imagination to see how
bloodstains on a weapon, garden shears, towels, and the trunk
of a car suggest both criminal activity and an explanation for
the absence of the victim’s body.”2 From that evidence, we
concluded that a jury could have found beyond a reasonable
doubt that O’Grady had been murdered and that Edwards had
killed her.
2. postconviction allegations
Edwards claimed that the State violated his due process
rights 	by 	presenting 	fabricated 	evidence 	during 	his 	trial.
Edwards alleged that while investigating O’Grady’s murder,
David Kofoed, a supervisor of Douglas County’s Crime Scene
Investigation (CSI) Division, planted blood evidence to be used
against Edwards. Edwards’ allegations and attachments set out
a history of Kofoed’s unlawful conduct during other murder
investigations. Edwards alleged that the State’s introduction
of forensic evidence at his trial that had been falsified by law
2 Id. at 68, 767 N.W.2d at 797.

388 	284 NEBRASKA REPORTS
enforcement officials constituted outrageous government con-
duct that violated his right to due process.
In addition to his due process claim, Edwards alleged claims
of ineffective assistance of counsel. Edwards was represented
by the same three attorneys at trial and on appeal. First, he
alleged that although his lead attorney, Steven Lefler, should
have known that Kofoed was suspected of planting evidence
during the 2006 murder investigation, Lefler did not investi-
gate this information or effectively impeach Kofoed at trial.
Edwards alleged that Lefler was ineffective because he was a
friend of Kofoed.
Edwards also claimed that his trial counsel was ineffec-
tive in failing to retain a DNA expert to testify at trial. He
alleged that an expert could have testified that the blood on
his mattress came from two contributors—neither of which
was Edwards. He claimed that such testimony would have sup-
ported his theory that O’Grady had experienced a miscarriage,
which would have explained the blood on his mattress. He also
claimed that his counsel should have obtained additional DNA
testing after learning that mixed DNA samples had been found.
He alleged that this evidence could have opened the door to
other possible theories about the blood on the mattress. Finally,
Edwards alleged that his trial counsel failed to effectively
investigate (1) calls made to O’Grady’s aunt after O’Grady’s
disappearance, concerning the location of O’Grady’s car; (2)
whether O’Grady had contacted an online travel agency around
the time of her disappearance; and (3) whether an “‘alternate
suspect’” existed.
Regarding his direct appeal, Edwards alleged that his appel-
late counsel was ineffective in failing to raise (1) the trial
court’s denial of his motion to change venue, (2) the due proc-
ess violation related to his claim of falsified evidence, and (3)
his other claims of his trial counsel’s ineffective assistance.
3. distRict couRt’s oRdeR
As 	noted, 	the 	court 	overruled 	Edwards’ postconviction
motion without an evidentiary hearing. Regarding Edwards’
appellate counsel’s failure to raise the change of venue issue,
the court concluded that Edwards had alleged insufficient

STATE v. EDWARDS 	389
Cite as 284 Neb. 382
facts to show that a challenge to the change of venue ruling
would have been successful. It concluded that the trial record
refuted this claim. It stated that the voir dire of potential jurors
had taken 3 days. It concluded that prospective jurors’ mere
exposure to pretrial publicity is insufficient to presume that a
defendant did not receive a fair trial.
On Edwards’ due process claim, the court concluded that
he failed to show a violation because his factual allegations of
falsified evidence were insufficient and conclusory. Because
the court concluded that Edwards’ due process claim failed, it
also concluded his claim of falsified evidence was procedur-
ally barred. The court concluded that Edwards failed to seek a
new trial for newly discovered evidence3 within the 3-year time
limit for such claims.4 Alternatively, the court determined that
even if a due process violation had occurred, Edwards’ convic-
tions were not void because other blood evidence overwhelm-
ingly established that he committed the crimes.
The court also concluded that Edwards’ allegations of his
trial counsel’s conflict of interest based on his friendship with
Kofoed were conclusory. And it stated that Edwards did not
allege how his trial counsel should have conducted the cross-
examination of Kofoed or how it would have changed the out-
come. So the court concluded that Edwards’ conflict of interest
allegations did not warrant an evidentiary hearing.
The court rejected Edwards’ allegations regarding the neces-
sity of retaining a DNA expert. It disagreed that Edwards’ trial
counsel was ineffective in failing to retain a DNA expert to
support Edwards’ claim that O’Grady could have suffered a
miscarriage. Relying on a recent U.S. Supreme Court decision,
it concluded that a trial counsel is entitled to balance limited
resources with effective trial strategies. The court concluded
that the existence of two contributors to the DNA found in the
blood on the mattress would not have changed the outcome and
that not presenting an expert witness may have been a deliber-
ate trial strategy.
3 See Neb. Rev. Stat. § 29-2101 (Reissue 2008).
4 See Neb. Rev. Stat. § 29-2103(4) (Reissue 2008).

390 	284 NEBRASKA REPORTS
Regarding Edwards’ allegations that his trial counsel had not
conducted a reasonable pretrial investigation, the court con-
cluded that Edwards had failed to allege sufficient facts to war-
rant an evidentiary hearing. It stated that Edwards had failed
to allege what evidence that his counsel’s further investigation
would have procured or how any of that evidence would have
changed the outcome, considering the overwhelming evidence
of his guilt.
III. ASSIGNMENTS OF ERROR
Edwards assigns that the court erred in failing to order an
evidentiary hearing to resolve his claims for the following
reasons:
(1) Edwards sufficiently alleged that his appellate counsel
provided ineffective assistance in failing to argue on direct
appeal that the trial court erred in denying Edwards’ motion for
a change of venue.
(2) Edwards sufficiently alleged that his appellate counsel
was ineffective in failing to argue that his right to due process
was violated when the State introduced forensic evidence at his
trial that a state investigator had falsified.
(3) Edwards’ other factual allegations, if proved, would
constitute a violation of his Sixth Amendment right to effective
assistance of counsel.
IV. STANDARD OF REVIEW
[1,2] Whether the procedures given an individual comport
with constitutional requirements for procedural due process
presents a question of law, which we independently review.5
A petitioner’s claim that his or her defense counsel pro-
vided ineffective assistance presents a mixed question of
law and fact.6 We review factual findings for clear error.7
Whether the defense counsel’s performance was deficient and
whether the petitioner was prejudiced by that performance are
5 See State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
6 State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).
7 See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

STATE v. EDWARDS 	391
Cite as 284 Neb. 382
questions of law that we review independently of the lower
court’s decision.8
[3,4] We pause here to clarify our standard for reviewing a
trial court’s determination that a defendant’s allegations in a
postconviction motion are refuted by the record or too conclu-
sory to warrant an evidentiary hearing. 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.9 But if a postcon-
viction 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.10
[5,6] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law.11 A trial court’s ruling that
the petitioner’s allegations are refuted by the record or are too
conclusory to demonstrate a violation of the petitioner’s con-
stitutional rights is not a finding of fact—it is a determination,
as a matter of law, that the petitioner has failed to state a claim
for postconviction relief.
[7] This conclusion is implied by our adoption of de novo
standards of review in postconviction appeals for claims of
ineffective assistance of counsel and due process violations.12
It is also consistent with the way that we actually review post-
conviction appeals. Most notably, in postconviction appeals
raising ineffective assistance claims, we have independently
reviewed whether the facts alleged presented a constitutional
violation and whether the record affirmatively refuted the
defendant’s claim.13 So to clarify our review procedures in
postconviction appeals, we expressly state the standard that
8 See State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
9 See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
10 See id.
11 See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
12 See, e.g., Boppre, supra note 5.
13 See, e.g., Iromuanya, supra note 9.

392 	284 NEBRASKA REPORTS
we have implicitly applied: In appeals from postconviction
proceedings, we review 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.
V. ANALYSIS
[8] Except for his due process claim based on the State’s
alleged presentation of fabricated evidence, Edwards’ post-
conviction claims all rest on an alleged violation of his con-
stitutional right to effective assistance of counsel. Because
Edwards’ trial counsel was also his appellate counsel, this is
his first opportunity to assert claims that his trial counsel pro-
vided ineffective assistance.14 Most of these claims are layered
ineffective claims—i.e., a claim that his appellate counsel was
ineffective in failing to raise claims of his trial counsel’s inef-
fective assistance. When a case presents layered claims of inef-
fective assistance of counsel, we determine whether the peti-
tioner was prejudiced by his or her appellate counsel’s failure
to raise issues related to his or her trial counsel’s performance.
If the trial counsel did not provide ineffective assistance,
then the petitioner cannot show prejudice from the appellate
counsel’s alleged ineffectiveness in failing to raise the issue
on appeal.15
1. goveRning pRinciples foR ineffective
assistance claims
[9,10] An ineffective assistance of counsel claim alleges a
violation of the fundamental constitutional right to a fair trial.16
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington,17 the defendant must show that his or
her counsel’s performance was deficient and that this deficient
14 See State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
15 See Iromuanya, supra note 9.
16 Id.
17 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).

STATE v. EDWARDS 	393
Cite as 284 Neb. 382
performance actually prejudiced the defendant’s defense.18 An
appellate court may address the two prongs of this test, defi-
cient performance and prejudice, in either order.19
[11-13] A trial counsel’s performance was deficient if it did
not equal that of a lawyer with ordinary training and skill in
criminal law.20 In determining whether a trial counsel’s per-
formance was deficient, courts give his or her acts a strong pre-
sumption of reasonableness.21 When reviewing claims of inef-
fective assistance, we will not second-guess a trial counsel’s
reasonable strategic decisions.22 And we must assess the trial
counsel’s performance from the counsel’s perspective when the
counsel provided the assistance.23
[14,15] In addressing the “prejudice” component of the
Strickland test, we focus on whether a trial counsel’s defi-
cient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.24 To show prejudice, the
petitioner must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of the
proceeding would have been different.25 A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome.26
2. change of venue claim did not meRit
postconviction R elief
Edwards contends that his appellate counsel was ineffective
in failing to raise the trial court’s overruling of his motion for
a change of venue. He argues that it was impossible for him to
obtain a fair trial in Douglas County because of pervasive and
18 Reinhart, supra note 6.
19 See id.
20 Iromuanya, supra note 9.
21 Id.
22 Id.
23 See id.
24 Id.
25 See Reinhart, supra note 6.
26 Id.

394 	284 NEBRASKA REPORTS
inflammatory pretrial publicity. The State argues that Edwards
pleaded no facts that supported his claim that his appellate
counsel was ineffective.
Edwards alleged that a barrage of inflammatory media cov-
erage before his trial created a presumption of impartial-
ity among prospective jurors. He mentioned two television
broadcasts as examples of the inflammatory coverage. He
also alleged that the answers to the questionnaires sent to the
prospective jurors showed a public passion against him. He
alleged that 31 of the 62 prospective jurors reported that they
could not set aside their opinion of Edwards’ guilt. But the
State contends that the alleged facts were nonetheless insuf-
ficient to show an inflammatory courtroom atmosphere, so
that the change of venue argument on direct appeal would
not have been successful. We conclude that the record refutes
Edwards’ allegations.
[16,17] Under Neb. Rev. Stat. § 29-1301 (Reissue 2008), a
change of venue is mandated when a defendant cannot receive
a fair and impartial trial in the county where the offense
was committed.27 We evaluate a court’s change of venue rul-
ing under eight factors unless the defendant claims that we
should presume the unconstitutional partiality of the prospec-
tive jurors.28 Although Edwards cites the eight factors in his
brief, he does not argue their application. Instead, his argu-
ment is that we should presume the prejudice of the prospec-
tive jurors.
[18,19] Under most circumstances, voir dire examination
provides the best opportunity to determine whether a court
should change venue.29 But we have recognized two circum-
stances when the prospective jurors’ claims of impartiality
are presumptively unreliable.30 First, under the U.S. Supreme
Court’s decision in Irvin v. Dowd,31 pervasive pretrial publicity
27 State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
28 See, id.; State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
29 State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
30 See, e.g., Galindo, supra note 28.
31 Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).

STATE v. EDWARDS 	395
Cite as 284 Neb. 382
that is sufficiently inflammatory can create a presumption of
prejudice in a community and require a change of venue to a
location untainted by the publicity.32 Second, under the U.S.
Supreme Court’s decision in Murphy v. Florida,33 if most of
the prospective jurors admit to a disqualifying prejudice, the
reliability of the others’ claims of impartiality is called into
question. But neither of these circumstances was present here.
(a) Pretrial Publicity
[20,21] Mere exposure to news accounts of a crime does
not presumptively deprive a defendant of due process.34 Even
the community’s extensive knowledge about the crime or the
defendant through pretrial publicity is insufficient in itself to
render a trial constitutionally unfair if the media coverage con-
sists of merely factual accounts that do not reflect animus or
hostility toward the defendant.35 And a court will not presume
unconstitutional partiality because of media coverage unless
the record shows a barrage of inflammatory publicity immedi-
ately before trial. The pretrial publicity must amount to a huge
wave of public passion or result in a trial atmosphere utterly
corrupted by press coverage.36 In sum, in determining whether
the pretrial publicity created a presumption of prejudice, a
court should consider whether the media coverage was (1)
“‘invidious or inflammatory,’” as distinguished from factual,
and (2) pervasive.37
Edwards focuses on two “inflammatory” televised news
stories. First, he alleged that 4 months before trial, a television
station broadcasted a news segment featuring Kofoed. Kofoed
used a dummy to demonstrate how blood splatters occur when a
victim is shot in the head or hit in the head with a blunt instru-
ment. The demonstration showed how CSI investigators could
32 See State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
33 Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975).
34 Dixon, supra note 27.
35 Galindo, supra note 28.
36 Schroeder, supra note 32.
37 Id. at 209, 777 N.W.2d at 803, quoting Murphy, supra note 33.

396 	284 NEBRASKA REPORTS
determine from blood splatters that O’Grady had been mur-
dered even if her body was missing. Second, Edwards argues
that 3 months before trial, the same station broadcasted a news
story reporting that a private investigator claimed Edwards had
confessed to a cellmate that he had killed O’Grady and dumped
her body along a creek. Edwards argues that this claim was
false, inflammatory, and slanted toward a conviction.
As for the news segment featuring Kofoed’s show-and-
tell demonstration, we obviously do not condone investiga-
tors demonstrating to the public why or how they believe a
victim has been murdered before the suspect’s trial. But our
concern is with media coverage that renders a trial fundamen-
tally unfair under the Constitution. We need not determine
whether this publicity was invidious or inflammatory because
Edwards has not alleged facts showing that the reports were
pervasive. Instead, the record shows that Kofoed’s demonstra-
tion was broadcast on a single television station at 10 p.m.
on November 6, 2006, and at 5 a.m. and 6 a.m. on November
7. During voir dire, none of the prospective jurors reported
seeing this news segment, and Edwards did not offer into evi-
dence their questionnaires, which asked them to describe any
reports in the media that they had seen. We conclude that the
record refutes any claim that the news report featuring Kofoed
was pervasive.
Second, we disagree that the news story about the private
investigator’s claim was inflammatory. The evidence presented
at Edwards’ trial to support his change of venue motion shows
that the television station reported the investigator’s claim to
explain why investigators were searching the same pond for
O’Grady’s body after several months. Reporting the source
of a tip did not constitute a false statement when presented
to explain why a new search was taking place. More impor-
tant, standing alone, it did not reflect an animus or hostility
toward Edwards.
The vast majority of evidence submitted at Edwards’ trial
shows only that the media broadcasted or printed extensive
factual accounts of the searches for O’Grady’s body, the mur-
der investigation, and the trial proceedings. But this is not

STATE v. EDWARDS 	397
Cite as 284 Neb. 382
surprising for a murder of this nature. We conclude that the
record refutes Edwards’ claim that a barrage of inflammatory
publicity immediately before his trial amounted to a wave of
public passion against him.
(b) Jurors’ Statements on Questionnaires and
During Voir Dire Did Not Show That
the Majority Were Biased
Edwards argues that the prospective jurors’ pretrial question-
naires showed that 39 percent of them could not be impartial
jurors. The record shows that pretrial questionnaires were
sent to “approximately 100 prospective jurors” who had been
summoned by the court for the venire. Ninety-eight of them
returned the questionnaires. According to his trial counsel’s
affidavit, 37 percent of them “indicated” that they believed
Edwards was guilty and that they could not set aside their
opinion. His trial counsel believed an additional 5 percent of
them had made conflicting statements whether they could set
aside an initial opinion of guilt. He concluded that the ques-
tionnaires showed 39 percent of the prospective jurors could
not be impartial.
Edwards repeated this claim in the postconviction proceed-
ing, but the record shows that the jurors were not asked about
their ability to be impartial. A sample questionnaire in the
record shows that the jurors were asked to report (1) what they
had heard about the case in the media, (2) whether they had
formed an opinion as to Edwards’ guilt or innocence based
on the media coverage, and (3) what they had heard that had
caused them to form an opinion. The questionnaires did not
ask the jurors whether they could set aside any opinions that
they had formed or whether they could be impartial jurors. As
stated, the completed questionnaires are not part of the record,
and the court disagreed with Edwards’ trial counsel’s charac-
terization of the prospective jurors’ responses. We conclude
that the record refutes Edwards’ claim that the questionnaires
showed the prospective jurors’ bias.
We have reviewed the voir dire proceedings and disagree
with Edwards that the record shows widespread bias among

398 	284 NEBRASKA REPORTS
the 	prospective 	jurors. 	The 	parties 	conducted 	individual,
sequestered interviews of 66 prospective jurors to obtain
42 venire members, upon which each party could exercise
peremptory challenges. Each prospective juror was asked (1)
what they knew about the case; (2) the source of their infor-
mation; (3) whether they had formed an opinion of Edwards’
guilt; (4) whether they could set aside their opinion, if they
had formed any, and give Edwards a presumption of inno-
cence; and (5) whether they could set aside any information
that they had heard and base their decision solely upon the
evidence presented at trial.
Of the 66 prospective jurors, half had (1) heard little about
the case and formed no opinion of Edwards’ guilt or (2) heard
about the case but formed no opinion. The other half had
formed an initial opinion of Edwards’ guilt based on media
coverage or what they had heard from people in the com-
munity, or they were leaning toward an opinion of guilt if
what the media reported was true. But 13 of those prospec-
tive jurors with an initial opinion (39 percent) stated that they
could set aside their initial opinion and what they had heard
and base their decision solely upon the trial evidence. In total,
the court dismissed 22 of the prospective jurors (33 percent)
because they could not set aside their opinion of Edwards’
guilt or had doubts about their ability to do so.
To summarize, the record refutes Edwards’ claim that so
many of the prospective jurors were biased that the court
should have presumed that all the prospective jurors could not
be impartial and set aside their initial opinion. The 33 percent
of prospective jurors who stated that they could not be impar-
tial is considerably less than the 62 percent of prospective
jurors who were dismissed for cause in Irvin.38 And we have
rejected due process arguments under similar facts.39 So the
court did not err in finding that Edwards was not entitled to
postconviction relief based on his venue claim.
38 See Murphy, supra note 33 (distinguishing Irvin, supra note 31).
39 See, Erickson, supra note 29; Galindo, supra note 28.

STATE v. EDWARDS 	399
Cite as 284 Neb. 382
3. due pRocess claim based on
falsified evidence R equiRes
an evidentiaRy heaRing
As explained, the court rejected Edwards’ allegations that
Kofoed had fabricated evidence during the investigation as
conclusory: Because Kofoed had falsified evidence in other
investigations, he did so while investigating O’Grady’s mur-
der. It also concluded that even if a due process violation
occurred, Edwards’ convictions were not void because other
blood evidence overwhelmingly established that he committed
the crimes.
(a) Additional Background
As mentioned, in dismissing Edwards’ allegations of a
due process violation, the court primarily reasoned that the
allegations were conclusory. Edwards generally alleged that
Kofoed planted blood evidence to be used against Edwards.
But Edwards’ allegations and attachments set out a detailed
history of Kofoed’s unlawful conduct during two other mur-
der investigations.
In April 2009, a U.S. Attorney and a Nebraska special pros-
ecutor separately charged Kofoed with planting false evidence
in late April or early May 2006 during an investigation into
the murders of Wayne and Sharmon Stock. In June 2010, the
Cass County District Court convicted Kofoed of tampering
with evidence during that 2006 investigation. Specifically,
he planted Wayne Stock’s blood in a suspect’s vehicle. We
affirmed Kofoed’s tampering conviction.40 As part of the pros-
ecution, the State also proved that in a separate 2003 murder
investigation, Kofoed similarly planted a victim’s blood in a
trash container to corroborate the suspect’s confession that he
had placed the victim’s body in the container.41
Edwards alleged that because of Kofoed’s proven history of
falsifying evidence, his involvement in Edwards’ case rendered
the State’s forensic evidence against him inherently suspect
40 See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
41 See id.

400 	284 NEBRASKA REPORTS
and presumptively inadmissible. And he alleged that Kofoed’s
previous activities were strikingly similar to what had occurred
in his case.
Specifically, he alleged that like the earlier investigations,
investigators collected O’Grady’s blood at the crime scene and
stored it at the CSI facility. After investigators had searched
Edwards’ car and failed to find blood evidence, Kofoed con-
ducted a second search in which O’Grady’s blood was found
in an obscure part of the vehicle. Edwards attached copies of
CSI reports supporting his claim that Kofoed ordered a differ-
ent CSI investigator to assist him in a “follow-up” search of
Edwards’ car.
Additionally, Edwards alleged that after analysts swabbed
the garden shears for blood tests at a separate DNA labora-
tory, Kofoed took the shears back to the CSI facility. Two days
later, Kofoed requested that the DNA laboratory test the shears
again. About a week later, Kofoed took additional swabs of the
shears into the DNA laboratory for testing. Finally, Edwards
alleged that 5 days after the initial search of his apartment,
investigators returned to look for a sword in a sheath, which
they found. He alleged that a CSI investigator found a speck
of blood on the tip of the sword 9 days after it was transported
to the CSI facility despite not finding any blood on the inside
of the sheath.
The court determined that Edwards’ allegations were con-
clusory because he pled no facts that established Kofoed had
planted evidence. It stated that the record refuted Edwards’
claim that blood on the sword had been falsified. It determined
that the record affirmatively showed that Kofoed was not
involved in the recovery or the processing of the sword and
that the trial evidence failed to establish that the sword was
even the murder weapon.
The court concluded that the issue was whether a jury
would have found Edwards innocent but for Kofoed’s alleged
fabrication of blood evidence on the sword, the garden shears,
and the trunk gasket. It concluded that because of the over-
whelming evidence against Edwards, an evidentiary hearing
was not required even if Kofoed had fabricated evidence as
Edwards alleged.

STATE v. EDWARDS 	401
Cite as 284 Neb. 382
(b) Analysis
Edwards argues that the State’s presentation of, and the
jury’s reliance on, evidence that a state agent has fabricated
violates the Due Process Clause of the 14th Amendment—
regardless whether the prosecutor knew that the evidence was
fabricated. The State contends that the claim is pure conjecture
and that Edwards cannot show that the result would have been
different even if this evidence had not been presented.
(i) Due Process Right to a Fair Trial
[22] A fair trial before a fair and impartial jury is a basic
requirement of constitutional due process guaranteed by the
Constitutions of the United States and the State of Nebraska.42
We have left open the possibility that even if the State did not
violate the petitioner’s right to a fair trial, a persuasive claim
of actual innocence in a postconviction proceeding might show
a constitutional violation: i.e., that the State’s continued incar-
ceration of such a petitioner without an opportunity to present
newly discovered evidence is a denial of procedural or substan-
tive due process.43 A strong demonstration of actual innocence
is required because after a fair trial and conviction, a defend-
ant’s presumption of innocence disappears.44
[23] But Edwards does not claim actual innocence. And the
Due Process Clause generally restricts unfair state action.45
So, short of claiming actual innocence, to establish a violation
of the Due Process Clause based on the State’s use of false
evidence at trial, the defendant in a postconviction proceeding
must allege that state action was involved. The conduct of state
officials must have rendered his or her conviction inconsistent
with the due process guarantee of a fair trial in which the truth-
seeking process has not been corrupted.46
42 State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
43 See id.
44 See id., citing Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed.
2d 203 (1993).
45 See, U.S. Const. amend. XIV, § 1; Brown v. Mississippi, 297 U.S. 278, 56
S. Ct. 461, 80 L. Ed. 682 (1936).
46 See Lotter, supra note 42.

402 	284 NEBRASKA REPORTS
[24] The U.S. Supreme Court has long held that the Due
Process Clause will not tolerate a criminal conviction obtained
through the prosecutor’s knowing use of false evidence or
perjured testimony.47 It has also held that a due process vio-
lation occurs if other state officers involved in a prosecution
deliberately violated the defendant’s right to a fair trial without
the prosecutor’s knowledge.48 Thus, a due process violation
occurs when a law enforcement officer who participated in the
investigation or preparation of the prosecution’s case fabricates
evidence or gives false testimony against the defendant at trial
on an issue material to guilt or innocence. Such conduct passes
“the line of tolerable imperfection and fall[s] into the field of
fundamental unfairness.”49 That is exactly the police conduct
that Edwards claims occurred.
(ii) Court Applied Wrong Standard of Materiality
in Rejecting Edwards’ Due Process Claim
As mentioned, the court concluded that even if Edwards’
allegations were true, he could not show prejudice from
Kofoed’s fabrication of evidence. The court reasoned that dur-
ing the other murder investigations in which Kofoed planted
DNA evidence, the fabricated evidence was the only evidence
linking the suspect to the crime. In contrast, it concluded
that in Edwards’ case, there was overwhelming evidence—the
collection of which did not involve Kofoed—that supported
Edwards’ convictions.
To the extent the court reasoned that Kofoed would not
have fabricated evidence in Edwards’ case because he had
47 See, Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967);
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959);
Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
48 See Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942).
See, also, Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972).
49 Curran v. State of Delaware, 259 F.2d 707, 713 (3d Cir. 1958). Accord,
United States v. Rosner, 516 F.2d 269 (2d Cir. 1975); Smith v. State of
Florida, 410 F.2d 1349 (5th Cir. 1969); Rivers v. Martin, 484 F. Supp. 162
(W.D. Va. 1980); Chamberlain v. Mantello, No. 95-CV-1050, 1996 WL
521062 (N.D.N.Y. Sept. 11, 1996) (unpublished judgment).

STATE v. EDWARDS 	403
Cite as 284 Neb. 382
previously done so only when the State was desperate for
evidence, we disagree. Particularly in the 2003 investigation,
other evidence connected the suspect to the crime. The sus-
pect confessed to the murder and led investigators to the place
where he had disposed of the body.
More important, the court incorrectly required Edwards to
show that a jury would have acquitted him without the fab-
ricated evidence. The court stated the issue as whether a jury
would have found Edwards innocent but for Kofoed’s alleged
falsification of blood evidence found on the sword, the gar-
den shears, and the trunk gasket. It concluded that Edwards
could not satisfy that standard. But this standard of materiality
is incorrect.
[25] The State’s knowing use of false evidence to secure a
conviction violates a defendant’s due process rights.50 At an
evidentiary hearing, it is Edwards’ burden to establish that state
officers involved in the investigation or prosecution knowingly
used false evidence to secure his conviction.51 But contrary
to the materiality standard that the court applied, a convic-
tion is tainted and must be set aside if there is any reason-
able likelihood that the false evidence could have affected the
jury’s verdict.52
Under this standard, we disagree with the court that even
if Edwards proved his allegations, he could not show that the
fabricated evidence prejudiced him. The evidence that Kofoed
allegedly fabricated would have strengthened the State’s case
by explaining why O’Grady had been murdered even though
her body had not been found. As noted, in Edwards’ direct
appeal, we specifically relied on this evidence in rejecting
his claim that the evidence was insufficient to show that he
had murdered O’Grady. So the court incorrectly dismissed
Edwards’ petition because he could not show prejudice even if
his allegations were true.
50 See State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).
51 See id.
52 See, Giglio, supra note 48; Napue, supra note 47; Brooks v. Tennessee,
626 F.3d 878 (6th Cir. 2010), cert. denied 563 U.S. 976, 131 S. Ct. 2876,
179 L. Ed. 2d 1191 (2011); Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995).

404 	284 NEBRASKA REPORTS
(iii) Claims Warranted an
Evidentiary Hearing
We also disagree with the court’s ruling that Edwards’ alle-
gations were too conclusory to warrant an evidentiary hearing.
Under the district court’s reasoning, Edwards’ claim would be
sufficient only if he could allege specific acts of Kofoed’s fab-
ricating evidence in the O’Grady investigation. We conclude
that this pleading requirement is an unreasonable burden for
alleging a crime of deceit. Such crimes are usually proved by
circumstantial evidence.
We agree that Edwards’ allegations would be too conclusory
if he had simply alleged in a vacuum that a law enforcement
officer fabricated evidence to be used against him at trial with-
out any factual allegations upon which to base such a claim.
But Edwards alleged that Kofoed had fabricated specific evi-
dence and that the circumstances under which Kofoed found
this evidence were very similar to his unlawful conduct in the
two other investigations.
To recap, Edwards alleged that as in the 2006 investigation
of the Stocks’ murders, Kofoed found blood in an obscure part
of Edwards’ car after other CSI investigators had examined
the car and failed to find this evidence. The facts alleged in
Edwards’ petition also appear similar to the 2003 investigation
in that Kofoed allegedly submitted swabs of evidence for DNA
testing instead of submitting the evidence itself. And the alle-
gations suggest that Kofoed may have held physical evidence
for several days before having another investigator test it, a
pattern that is similar to his conduct during the 2006 investiga-
tion in which he fabricated evidence.
Reasonable explanations for these actions may exist. But
we believe that Edwards has alleged Kofoed’s finding of
evidence under circumstances similar enough to those in the
earlier investigations when Kofoed fabricated evidence to raise
concerns of fabricated evidence here. Although the court con-
cluded that the record showed that Kofoed was not involved in
the discovery or processing of the murder weapon, this record
cannot rule out Kofoed’s participation in the processing of
any evidence during the investigation. And we cannot require
Edwards to produce evidence that Kofoed was in fact involved

STATE v. EDWARDS 	405
Cite as 284 Neb. 382
or that the evidence was fabricated before he has had an oppor-
tunity to gather evidence.
Given Kofoed’s history of fabricating evidence during the
same time that he was involved in investigating O’Grady’s
murder, we conclude that Edwards’ allegations are specific
enough that we cannot assume that they are without merit.
To affirm the court’s dismissal of Edwards’ petition without a
hearing would erode public confidence in the impartiality and
fairness of the judicial process.53 We conclude that the court
erred in denying Edwards’ request for an evidentiary hearing
on his due process claim.
[26] We note that Edwards requests that we direct the for-
mation of an independent committee to investigate the actions
of Kofoed and the CSI in other criminal investigations. But
“appellate jurisdiction” is the power vested in a superior court
to review and revise a decision that has been tried in an inferior
court.54 Edwards’ request that we initiate investigative action in
other criminal cases is beyond the scope of our appellate juris-
diction in deciding his appeal.
4. edwaRds’ allegations of his tRial counsel’s
conflict of inteRest R equiRe an
evidentiaRy heaRing
Edwards alleged that by the time of his trial, his trial coun-
sel, Lefler, knew that Kofoed was suspected of planting blood
evidence during the investigation of the Stocks’ murders. He
alleged that Lefler nonetheless failed to investigate the infor-
mation and failed to attack Kofoed’s credibility at Edwards’
trial. He alleged that Lefler failed to provide a meaningful
defense because of his friendship with Kofoed, which created a
conflict of interest in his representation of Edwards.
The court concluded that Edwards had alleged nothing
but a speculative conflict of interest: “Any allegation arising
against Kofoed involving evidence [of] tampering or fabrica-
tion occurred well after the trial in this case.” It concluded
53 See State v. Gookins, 135 N.J. 42, 637 A.2d 1255 (1994).
54 See In re Application of Burlington Northern RR. Co., 249 Neb. 821, 545
N.W.2d 749 (1996).

406 	284 NEBRASKA REPORTS
that Edwards’ allegations were conclusory because he had not
specified how Lefler should have cross-examined Kofoed and
how effective cross-examination would have affected the trial.
The court also concluded that Edwards had not specified how
or when Lefler had learned of allegations against Kofoed.
[27] It is true that a conflict of interest must be actual rather
than speculative or hypothetical before a court will overturn a
conviction because of ineffective assistance of counsel.55 But
before addressing the court’s conclusion that the allegations
were too speculative to warrant an evidentiary hearing, we set
out the relevant rules for resolving this claim.
(a) Governing Principles for Conflict
of Interest Claims
[28,29] The right to effective assistance of counsel entitles
the accused to his or her counsel’s undivided loyalties, free
from conflicting interests.56 But a defendant who raised no
objection at trial must show that an actual conflict of interest
existed and that the conflict adversely affected his lawyer’s
performance.57 If the defendant satisfies this requirement, the
defendant is not required to show that the Sixth Amendment
violation had a probable effect on the outcome of the trial to
obtain relief.58
In 2002, in Mickens v. Taylor,59 the U.S Supreme Court stated
that the “actual conflict” inquiry is not separate from a per-
formance inquiry: “An ‘actual conflict,’ for Sixth Amendment
purposes, is a conflict of interest that adversely affects coun-
sel’s performance.” Thus, we have stated that when an actual
conflict exists, there is no need to show that the conflict
resulted in actual prejudice to the defendant (meaning no need
55 See State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
56 See, id.; State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008); State v.
Narcisse, 260 Neb. 55, 615 N.W.2d 110 (2000).
57 See, Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333
(1980); Narcisse, supra note 56.
58 See, Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291
(2002). Accord, Cuyler, supra note 57; Jackson, supra note 56.
59 See Mickens, supra note 58, 535 U.S. at 172 n.5 (quoted in State v.
Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006)).

STATE v. EDWARDS 	407
Cite as 284 Neb. 382
to show the outcome of the proceeding was affected).60 But the
substantive analysis is the same.61 If the defendant shows that
his or her defense counsel faced a situation in which conflict-
ing loyalties pointed in opposite directions and that his or her
counsel acted for the other client’s interests and against the
defendant’s interests, prejudice is presumed.62
(b) Sufficiency of the Allegations
[30] Although not common, a defense counsel’s close per-
sonal relationship with a material prosecution witness can cre-
ate a conflict of interest if the evidence shows that the defense
counsel’s desire to protect the witness outweighed his or her
duty to represent the defendant’s interests.63 Here, the issue
is complicated by Lefler’s representation of Kofoed in the
State prosecution.64
Edwards alleged that by September 2006, it was clear that
Kofoed had planted blood evidence while investigating the
Stocks’ murders. He alleged that a reasonably diligent defense
attorney would have known Kofoed was suspected of plant-
ing evidence while investigating the Stocks’ murders. And he
alleged that Lefler knew of these allegations because of his
friendship with Kofoed. He claimed that Lefler repeatedly cited
his friendship with Kofoed during his representation of Kofoed
in the federal and state trials.
In fact, this record supports Edwards’ contention that Lefler
had a personal relationship with Kofoed. Before trial, Edwards
moved to exclude Kofoed’s testimony because of his televised
demonstration of blood splatters. In arguing for the motion,
Lefler referred to his friendship with Kofoed:
I’m going to ask the Court to prevent Dave Kofoed,
who’s a friend of mine and I like him a ton . . . I’m going
60 See Jackson, supra note 56.
61 See U.S. v. Infante, 404 F.3d 376 (5th Cir. 2005), citing McFarland v.
Yukins, 356 F.3d 688 (6th Cir. 2004).
62 See, Jackson, supra note 56; 3 Wayne R. LaFave et al., Criminal Procedure
§ 11.9(d) (3d ed. 2007).
63 See, e.g., Com. v. Mosher, 455 Mass. 811, 920 N.E.2d 285 (2010); 3
LaFave et al., supra note 62, § 11.9(a). Compare Sandoval, supra note 55.
64 See Kofoed, supra note 40.

408 	284 NEBRASKA REPORTS
to ask you to prevent him from testifying in this particular
case as a consequence of the TV demonstration that he
gave. . . .
. . . .
. . . [W]hat we are worried about for . . . Edwards is
that there’s going to be some juror who halfway through
the trial is going to remember seeing this TV clip.
And Dave Kofoed’s a great — a nice man, smart guy.
And so I’m just worried that halfway through the trial it
clicks in some juror’s mind.
The court implicitly reasoned that Edwards’ allegations were
without merit, in part, because Lefler did not represent Kofoed
until April 2009 when Kofoed was charged with fabricating
evidence. But the date that the State charged Kofoed does not
resolve this issue.
We cannot know from this record whether before Edwards’
trial, Kofoed had asked Lefler to represent him if he was later
charged with a crime. Given allegations of their friendship and
Lefler’s undisputed representation of Kofoed against fabrica-
tion charges in 2009, Kofoed’s possible request of represen-
tation is a prospect that the court should have considered. In
addition, we cannot know from this record whether before
Edwards’ trial, law enforcement officers conducted an internal
investigation of Kofoed’s conduct in which Lefler had already
represented or advised Kofoed. Finally, because of their friend-
ship, Lefler may have learned of the allegations against Kofoed
even without agreeing to represent him.
[31] Conflicts of interests resulting from successive repre-
sentations can occur when a defendant’s trial counsel previ-
ously represented a codefendant, trial witness, or victim.65
“[T]he most common example of an actual conflict of interest
arising from successive representation occurs where an attor-
ney’s former client serves as a government witness against the
attorney’s current client at trial.”66 A primary concern in this
scenario is that a defense counsel will fail to cross-examine the
witness in the defendant’s trial about privileged information.
65 See, Mickens, supra note 58; Moss v. U.S., 323 F.3d 445 (6th Cir. 2003).
66 Moss, supra note 65, 323 F.3d at 460.

STATE v. EDWARDS 	409
Cite as 284 Neb. 382
In the successive representation situation, privileged
information obtained from the former client might be
relevant to cross-examination, thus affecting advocacy in
one of two ways:
(a) the attorney may be tempted to use that confidential
information to impeach the former client; or
(b) counsel may fail to conduct a rigorous cross-
examination 	for 	fear 	of 	misusing 	his 	confidential
information.
. . . The second major possibility of conflict in the
successive representation situation is that the attorney’s
pecuniary interest in possible future business may cause
him to make trial decisions with a view toward avoiding
prejudice to the client he formerly represented.67
Thus, “[w]hen an attorney attempts to represent his client
free of compromising loyalties, and at the same time preserve
the confidences communicated by a present or former client
during representation in the same or a substantially related
matter, a conflict arises.”68
[32] We have broadly defined the phrase “actual conflict” to
include any situation in which a defense attorney faces divided
loyalties such that regard for one duty tends to lead to disre-
gard of another.69 So we conclude that if a defense counsel acts
or refrains from acting at trial in loyalty to a former client in
a manner that is inconsistent with the defendant’s interests, the
defense counsel “‘actively represent[s] conflicting interests’”70
no less than a defense counsel who does the same during con-
current representations.71
67 United States v. Agosto, 675 F.2d 965, 971 (8th Cir. 1982) (citation
omitted), abrogated on other grounds, Flanagan v. United States, 465 U.S.
259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984).
68 Id.
69 See Jackson, supra note 56.
70 Strickland, supra note 17, 466 U.S. at 692, quoting Cuyler, supra note 57.
71 See, e.g., Alberni v. McDaniel, 458 F.3d 860 (9th Cir. 2006); Infante,
supra note 61; Hall v. U.S., 371 F.3d 969 (7th Cir. 2004); People v. Miera,
183 P.3d 672 (Colo. App. 2008); Acosta v. State, 233 S.W.3d 349 (Tex.
Crim. App. 2007).

410 	284 NEBRASKA REPORTS
If, as Edwards alleged, Lefler knew of the allegations against
Kofoed, we believe that a reasonably diligent defense counsel,
without a conflict, would have determined whether Kofoed
was under investigation and questioned him about any pending
investigation at trial. Such information would have obviously
been relevant to Kofoed’s credibility.
We have previously reversed postconviction orders and
remanded the cause for an evidentiary hearing when the allega-
tions were sufficient to raise factual issues whether a defense
counsel labored under a conflict of interest that adversely
affected his performance.72 As in those cases, we cannot know,
without an evidentiary hearing, whether Lefler knew of the
allegations against Kofoed before Edwards’ trial or whether
a conflict of interest prevented him from cross-examining
Kofoed about any pending investigation. But Edwards’ alle-
gations are sufficient to raise a factual issue whether a Sixth
Amendment violation occurred. We conclude that the court
erred in denying Edwards’ request for an evidentiary hearing
on his conflict of interest claim.
5. edwaRds’ claim that his tRial counsel was
ineffective in failing to R etain a dna expeRt
did not meRit postconviction R elief
[33] Edwards alleged that a reasonable defense attorney
would have obtained additional DNA testing and retained
a DNA expert. That expert would have allegedly testified
about the two different sources of blood found on Edwards’
mattress, to support his theory that O’Grady could have suf-
fered a miscarriage or to develop new theories. The court
concluded that these allegations were insufficient to show
that his trial counsel was ineffective. The court relied on the
U.S. Supreme Court’s holding in Harrington v. Richter73 that
a defense counsel is entitled to “formulate a strategy that was
reasonable at the time and to balance limited resources in
72 See, Narcisse, supra note 56; State v. Marchese, 245 Neb. 975, 515
N.W.2d 670 (1994).
73 Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624
(2011).

STATE v. EDWARDS 	411
Cite as 284 Neb. 382
accord with effective trial tactics and strategies.”74 We agree.
The record refutes Edwards’ claim that his counsel could have
retained an expert to support his defense theory. It affirma-
tively shows that his counsel’s trial strategies were reasonable
under the circumstances.
At trial, Edwards’ counsel asked the State’s two forensic
experts whether any test could determine that the contribu-
tor to a bloodstain was pregnant or that the blood had been
discharged from a woman’s body during menstruation or a
miscarriage. The experts could not say that the blood on the
mattress was consistent with the characteristics of blood that
had been discharged from a woman’s body. They also did not
know of any currently available tests that would determine
that the blood sample contained vaginal cells, was menstrual
blood, or showed that the contributor was pregnant. One of the
experts had even asked a colleague to perform an experimental
test for menstrual blood collected from a mattress, but the test
was unsuccessful.
In addition, a State expert testified that in a couple of the
blood samples taken from the mattress, she had found alleles
(DNA variations between individuals) that suggested another
person, besides O’Grady or Edwards, had contributed DNA to
sample. But she stated that the samples did not contain enough
alleles to draw any conclusions about another contributor.
Edwards has not specified what evidence that he believes an
expert could have presented to rebut this evidence or to provide
any additional information about the blood samples. But given
these experts’ testimony that the information Edwards now
seeks was unavailable, his claim that an expert was necessary
to present a meaningful defense is speculative.
Equally important, absent blood tests that could show the
blood was discharged from O’Grady’s body, his defense coun-
sel used the limitations of blood testing to bolster Edwards’
defense to the extent possible. The record shows that Edwards’
trial counsel had previously deposed the two experts, so he
likely knew the limitations of their testing. But by asking
experts on cross-examination whether they could make these
74 Id., 562 U.S. at 107.

412 	284 NEBRASKA REPORTS
determinations, he showed the jury that their testing could not
rule out the possibility that the blood had been discharged dur-
ing menstruation or a miscarriage. Nonetheless, his counsel
reasonably chose not to put too much emphasis on this theory.
Menstruation or a miscarriage could not account for investi-
gators finding O’Grady’s blood all over the room, including
the ceiling.
Edwards’ trial counsel also extensively questioned the
experts about inconsistencies in their DNA test results, the
subjective nature of interpreting the results, and DNA mate-
rial found in the tests that suggested another person’s DNA
was in the blood samples. Because of the strength of the
State’s evidence against Edwards, planting doubts in jurors’
minds about the reliability of the State’s evidence—and not
retaining an expert to present an improbable theory to explain
O’Grady’s blood on the mattress—was not an unreasonable
trial strategy.
Finally, even if a defense expert had presented testimony
that another person’s DNA was present in a couple of the
blood samples from the mattress, this evidence would not have
changed the result. As stated, the State’s experts conceded this
possibility at trial. But because of substantial other evidence
pointing to Edwards’ guilt, it obviously did not persuade the
jurors. The court correctly concluded that Edwards’ allegations
regarding the necessity of an expert did not warrant postcon-
viction relief.
6. edwaRds’ R emaining claims of ineffective
assistance did not meRit
postconviction R elief
[34] As stated, Edwards also alleged that his trial counsel
failed to effectively investigate (1) calls made to O’Grady’s
aunt after O’Grady’s disappearance, concerning the location of
O’Grady’s car; (2) whether O’Grady had contacted an online
travel agency around the time of her disappearance; and (3)
whether an “‘alternate suspect’” existed. But a petitioner’s
postconviction claims that his or her defense counsel was
ineffective in failing to investigate possible defenses are too
speculative to warrant relief if the petitioner fails to allege

STATE v. EDWARDS 	413
Cite as 284 Neb. 382
what exculpatory evidence that the investigation would have
procured and how it would have affected the outcome of the
case.75 Edwards did not allege these facts. Thus, the court cor-
rectly concluded that these allegations did not entitle Edwards
to postconviction relief.
VI. CONCLUSION
We conclude that the court properly denied postconviction
relief on Edwards’ claim that his appellate counsel was inef-
fective for failing to raise on appeal that the trial court erred
in overruling his motion for a change of venue. The record
refutes his claim that the court should have presumed the pro-
spective jurors were biased. Edwards also failed to allege facts
showing that his trial counsel was ineffective for not retaining
an expert to support his defense theory of a miscarriage caus-
ing the blood found on the mattress or to assist in developing
new theories. Finally, Edwards’ allegations failed to show that
his trial counsel unreasonably failed to investigate (1) calls
made to O’Grady’s aunt after O’Grady’s disappearance, con-
cerning the location of O’Grady’s car; (2) whether O’Grady
had contacted an online travel agency around the time of
her disappearance; and (3) whether an “‘alternate suspect’”
existed. These allegations were too speculative to require post-
conviction relief.
But we conclude that Edwards’ allegations require an eviden-
tiary hearing on two claims: (1) that he was denied due process
by the State’s knowing use of fabricated evidence to obtain his
conviction and (2) that his trial counsel labored under an actual
conflict of interest. We reverse the court’s ruling on these two
claims and remand the cause for an evidentiary hearing.
affiRmed in paRt, and in paRt ReveRsed and
Remanded foR fuRtheR pRoceedings.
75 See, e.g., State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); State
v. Whiteley, 234 Neb. 693, 452 N.W.2d 290 (1990), disapproved on other
grounds, State v. Pieper, 274 Neb. 768, 743 N.W.2d 360 (2008).