State v. Elseman

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. ELSEMAN
Cite as 322 Neb. 412
State of Nebraska, appellee, v.
Ryan M. Elseman, appellant.
___ N.W.3d ___
Filed October 2, 2026. 	No. S-24-816.
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 dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Judgments. Postconviction relief
is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or
her constitutional rights such that the judgment was void or voidable.
3. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
4. ____: ____: ____. The district 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 state or federal Constitution.
5. ____: ____: ____. An evidentiary hearing is not required on a motion
for postconviction relief when (1) the motion does not contain factual
allegations which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without supporting facts;
or (3) the records and files affirmatively show that the defendant is
entitled to no relief.
6. Trial: Jurors: Presumptions: Proof. The competency of a juror is gen-
erally presumed, and the burden is on the challenging party to establish
otherwise.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:35 AM CDT

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. ELSEMAN
Cite as 322 Neb. 412
7. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
8. Postconviction: Appeal and Error. In an appeal from the denial of
postconviction relief, an appellate court will not consider for the first
time on appeal claims that were not raised in the verified motion.
9. Effectiveness of Counsel: Proof. Generally, 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.
10. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
11. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were or could have been
litigated on direct appeal.
12. ____: ____. Plain error cannot be asserted in a postconviction proceed-
ing to raise claims of error by the trial court.
13. Criminal Law: Due Process: Witnesses. The existence of an agree-
ment to testify by a witness under threats or promises of leniency made
by the prosecutor is relevant to the credibility of such witness, and
failure to bring that to the attention of the jury denies the defendant due
process of law.
14. Criminal Law: Witnesses. An expectation of leniency on the part of a
witness, absent evidence of any expressed or implied agreement, need
not be revealed to the jury.
Appeal from the District Court for Douglas County: Derek
R. Vaughn, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Michael J. Wilson, of Berry Law, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. ELSEMAN
Cite as 322 Neb. 412
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Bergevin, JJ., and Mellor, District Judge.
Papik, J.
Ryan M. Elseman appeals the district court’s denial of his
motion for postconviction relief without granting an eviden-
tiary hearing. Elseman alleged in his motion that a person
who served on his jury made statements during voir dire that
revealed bias. Elseman’s trial counsel challenged the prospec-
tive juror for cause, but the district court overruled the chal-
lenge. Elseman asserted that thereafter, his counsel provided
ineffective assistance by not using a peremptory strike and
by not preserving and appealing the district court’s overrul-
ing of the challenge for cause. Elseman also alleged that the
State violated his constitutional rights by failing to disclose
implied plea agreements with two of the witnesses who testi-
fied against him. We find that Elseman was not entitled to an
evidentiary hearing on his claims concerning the juror and on
his claim alleging a failure to disclose an implied plea agree-
ment with one witness. We find, however, that he was entitled
to an evidentiary hearing on his claim regarding the alleged
failure to disclose an implied plea agreement with another
witness. We therefore affirm in part, and in part reverse and
remand with directions.
I. BACKGROUND
1. Trial and Direct Appeal
Elseman was tried and convicted of first degree murder
and use of a deadly weapon to commit a felony. Our opinion
affirming Elseman’s convictions on direct appeal includes an
extended discussion of the case’s facts and procedural history,
see State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014),
which we broadly summarize here.
The State alleged that Elseman and a group of others,
including Marqus Patton, Drake Northrop, and Emily G., were
on their way to buy marijuana from Kristopher Winters when

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. ELSEMAN
Cite as 322 Neb. 412
they changed plans and decided to rob Winters instead. At
trial, the State adduced evidence that the group carried out this
scheme. Northrop and Emily testified that Emily first entered
Winters’ house and then sent a text message to Elseman after
which Elseman, Patton, and Northrop entered. Northrop testi-
fied that after he and the other men entered, Elseman threat-
ened Winters, a scuffle ensued, and Elseman shot Winters. The
State does not dispute that Northrop provided the only testi-
mony that Elseman shot Winters.
Winters’ mother testified at trial that she saw the men who
entered the house as they were running away and that she
screamed at them. She identified the men as three black males.
Elseman is a white male.
Following his convictions, Elseman was sentenced to life
imprisonment for the first degree murder conviction and 25
to 30 years’ imprisonment for the use of a deadly weapon to
commit a felony conviction. After sentencing, Elseman, repre-
sented by the same counsel who represented him at trial, filed
a direct appeal. We affirmed. See id.
2. Motion for Postconviction Relief
Elseman later filed a pro se motion for postconviction
relief, along with a motion for the appointment of counsel.
The district court granted the motion for appointment of coun-
sel and granted Elseman leave to file an amended motion for
postconviction relief. Elseman, with the aid of counsel, later
filed an amended motion for postconviction relief, which is
the operative motion for purposes of this appeal. Elseman’s
motion for postconviction relief raised five claims, which we
discuss in more detail in the following subsections.
(a) Claims Regarding Challenged Juror
Three of the claims in Elseman’s operative motion for post-
conviction relief pertained to the seating of a juror Elseman
alleged was biased. For ease of reference, we will refer to
this individual as the “challenged juror.” During voir dire at
Elseman’s trial, the district court asked prospective jurors

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STATE v. ELSEMAN
Cite as 322 Neb. 412
whether they had learned about Elseman or Patton from media
coverage. The district court allowed Elseman’s trial counsel
to separately examine those prospective jurors who responded
affirmatively. After the challenged juror acknowledged seeing
media coverage regarding the case, this exchange took place:
THE COURT: All right. We’ve got [the challenged
juror] here who indicated a few minutes ago that he
thinks he might remember something about this incident;
is that fair?
[Challenged juror:] Yeah, that’s correct.
THE COURT: Go ahead. Why don’t you tell us?
[Challenged juror:] Well, I think I remember now the
initial — when the alleged crime happened. I remember
some media coverage about it. I can recall the — some
pictures, I think, of some of the accomplices. And I just
remember that it was a botched — or a robbery attempt
and the murder. It’s just kind of coming back to me. I
remember some of the faces from it.
I remember thinking at the time, I think the media
coverage stated there was some, that the gentleman who
was killed, I just remember recollections of some of his
neighbors or friends talking about what a great guy he
was. I just kind of recall all of that. I remember thinking
at the time it sure didn’t look like a good deal, but that’s
the majority of it, I don’t know, that I recall.
I do vaguely remember, also, I think, some of the
previous trial that you had mentioned with one of the other
people in here and — but I really can’t even recall that
much about that.
THE COURT: All right. And, of course, [Elseman’s]
on trial.
[Challenged juror:] Yes, correct.
THE COURT: The question is: Knowing what you
recall about the incident, can you set that aside, listen
to the evidence in this case and make the State meet its
burden as far as [Elseman’s] —

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STATE v. ELSEMAN
Cite as 322 Neb. 412
[Challenged juror:] I do believe that I can. I just
thought it was important for me to let you know I do
remember it. I remember my initial impulse that it was a
very bad deal and I didn’t feel very good about it.
. . . .
[Defense counsel:] Ryan Elseman, what, if anything,
do you remember about him, the stories, TV, if anything?
[Challenged juror:] I think just from mostly, I believe
it was in the Omaha World-Herald right after the story
broke. I just remember that he was alleged to have used
the gun to kill — to kill the drug dealer.
. . . .
[Defense counsel:] I need to know that you’re going to
be fair and impartial on behalf of [Elseman].
[Challenged juror:] I believe that I can be.
[Defense counsel:] I’m always concerned when I hear a
lot of “I believe I can.”
[Challenged juror:] That’s a good point. I guess I
should say [when I heard the news coverage] I had a
problem with the story. I had a problem, and I guess
maybe I still do a little bit. I’m probably leaning a little
bit more toward the State, if you will, but I realize they
have to present the evidence. I think I can do that fairly,
but I have to admit, based on the media coverage at the
time . . . I remember thinking how heinous of a crime this
was, how unnecessary it was for a murder to occur in a
situation like this, based on what I read.
[Defense counsel:] As we sit here today, do you believe
[Elseman’s] more than likely guilty as charged?
[Challenged juror:] I’d like to think of myself as being
open-minded.
[Defense counsel:] And I’m not saying that. I don’t
want you to misread me.
[Challenged juror:] I think that — I think it could be a
problem.
[Defense counsel:] For [Elseman]?

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STATE v. ELSEMAN
Cite as 322 Neb. 412
[Challenged juror:] Yes.
[Defense counsel:] If you stayed on the jury?
[Challenged juror:] Right. I mean, a possibility of it,
yes.
[Defense counsel:] All right. So — I’m going to phrase
this — I don’t want to put words in your mouth — but
would you agree with me, then, the way you’re feeling
now is that [Elseman] could be at a distinct disadvantage
in the event you were kept on the jury; is that a fair
statement?
[Challenged juror:] I am saying that, yes.
[Defense counsel:] I appreciate your honesty.
THE COURT: Wait a minute. Once again, you’ve
heard no evidence.
[Challenged juror:] That’s correct.
. . . .
THE COURT: So right now, you know that there’s a
presumption of innocence, correct?
[Challenged juror:] I do understand that, yes.
THE COURT: And by “presumption” that means that’s
something that can be rebutted, but not — it isn’t rebutted
right now. So right now if I said to you, what would your
verdict be, what would you say?
[Challenged juror:] It would have to be innocent.
THE 	COURT: 	You’re 	right, 	because 	there’s 	a
presumption of innocence and he hasn’t — there’s no
evidence to find him guilty.
[Challenged juror:] Correct.
THE COURT: That doesn’t mean that there’s something
wrong with you changing your mind based upon what the
State presents, see?
[Challenged juror:] Right.
Elseman’s trial counsel moved to strike the challenged juror
for cause, and the district court overruled the motion. Elseman’s
counsel did not use a peremptory strike on the challenged
juror. He was seated and served on the jury as the foreperson.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. ELSEMAN
Cite as 322 Neb. 412
In his operative motion for postconviction relief, Elseman
alleged three separate claims concerning the seating of the
challenged juror. Two of those claims alleged ineffective
assistance of counsel. First, Elseman asserted his trial counsel
should have used a peremptory challenge on the challenged
juror. Second, he alleged his counsel provided ineffective
assistance by failing to preserve and then appeal the district
court’s decision to overrule his motion to strike the challenged
juror for cause. Specifically, Elseman alleged that his counsel
should have made a record demonstrating that he used all
available peremptory challenges on other prospective jurors
and the challenged juror was thus forced upon him. This,
Elseman alleges, would have preserved for appeal an argument
that the district court erred by denying his challenge for cause
under our opinion in State v. Quintana, 261 Neb. 38, 621
N.W.2d 121 (2001), modified on denial of rehearing 261 Neb.
623, 633 N.W.2d 890.
In addition to his claims of ineffective assistance of counsel,
Elseman also raised a stand-alone claim of trial error concern-
ing the seating of the juror. He asserted that because the juror
demonstrated bias, the district court’s decision to seat him was
“structural error.” Elseman claimed that a finding of structural
error would require the district court to vacate his convictions
and order a new trial.
(b) Claims Regarding Alleged
Implied Plea Agreements
Elseman’s other two claims in his operative motion for post-
conviction relief alleged that the State violated his constitu-
tional rights by failing to disclose that Northrop and Emily had
entered into implied plea agreements prior to their testimony at
Elseman’s trial.
At the time of Elseman’s trial, Northrop had also been
charged with first degree murder for his role in Winters’
death. Northrop was asked at Elseman’s trial what he had been

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Nebraska Supreme Court Advance Sheets
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STATE v. ELSEMAN
Cite as 322 Neb. 412
promised in exchange for his testimony. He twice responded,
“Nothing.”
On cross-examination, he testified that he hoped he would
be able to go home as soon as he could after the trial. He also
admitted he was testifying because he thought it would help his
chances, agreeing on two occasions that he would “do what-
ever it took” to ensure he could get “out of this jam.”
Emily, who was also charged with first degree murder but
was 15 years old when Winters was killed, testified that she
also hoped for leniency, specifically that her case would be
moved to juvenile court, where the maximum penalty would
be lower. She admitted she had spoken to the prosecutors
about moving her case to juvenile court, and her motion to
transfer her case there had been pending for over a year. Like
Northrop, Emily testified that she had not been promised any-
thing but agreed she would do “whatever it takes” to get her
case moved to juvenile court.
In its closing argument, the State mentioned the above testi-
mony. The prosecutor said:
No doubt great lengths will be talked about in [defense
counsel’s] closing about the credibility of [Emily] and
Northrop because of a deal they’re going to get.
Do I want to make deals with people like [Emily]
and Northrop? No. Again, this is the real world, and
people aren’t going to do something for nothing, certainly
not people like [Northrop] and Emily[.] No, they’re not
coming in here, out of the goodness of their heart, and
admitting to committing first degree murder, which is
what the two of them did. On numerous occasions they
have admitted to it. They both expect something in return.
And what weight you give that towards their credibility is
going to be up to you.
Elseman’s motion for postconviction relief asserted that sev-
eral facts indicated that Northrop and Emily reached implied
plea agreements with the State. With respect to Northrop,

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STATE v. ELSEMAN
Cite as 322 Neb. 412
Elseman alleged that following his convictions, Northrop pled
guilty to an amended charge and was sentenced to a term of
10 years’ incarceration. Elseman also alleged that in June
2016, Northrop’s former cellmate sent Patton’s counsel a let-
ter stating that one day, Northrop returned from a meeting
with his counsel “‘very happy’” and stated that “‘as long as he
followed what the prosecutor had told him, they promised him
no more than 10 years.’” Elseman also alleged that at an evi-
dentiary hearing on Patton’s motion for postconviction relief,
an employee of the public defender’s office testified that dur-
ing a meeting with her, Northrop stated that his attorney “‘told
me that he couldn’t promise me that I had a deal but that I had
a deal.’” Elseman also alleged that Northrop’s former cell-
mate testified at the evidentiary hearing on Patton’s motion
for postconviction relief that Northrop told the cellmate that
“‘as long as he followed what [the prosecutors] had told him,
he would get a 10 to 15 or a 10 to 10, maybe, or something
like that.’” Elseman alleged that the former cellmate further
testified that Northrop said his attorney told him “he couldn’t
admit he had a deal” and that he “‘wasn’t supposed to tell
anybody that.’”
As for Emily, Elseman alleged that after his convictions,
Emily’s case was transferred to juvenile court. Elseman also
alleged that at the evidentiary hearing on Patton’s motion for
postconviction relief, Emily’s attorney testified that while
there was no express agreement about transferring Emily’s
case to juvenile court, the attorney was “‘confident’” that it
would be done.
3. Denial of Motion for
Postconviction Relief
The district court denied the motion for postconviction
relief without an evidentiary hearing. The district court found
that each of the claims pertaining to the challenged juror
were affirmatively refuted by the record. The district court
concluded that there was no showing that the challenged

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STATE v. ELSEMAN
Cite as 322 Neb. 412
juror was partial or unable to set aside any pretrial opinions.
Accordingly, the district court reasoned, Elseman could not
show prejudice from trial counsel’s failure to use a peremp-
tory strike on the challenged juror. And, for the same reason,
the district court concluded that any appeal of the district
court’s overruling of his motion to strike the challenged juror
for cause would have been unsuccessful and thus, counsel was
not deficient for failing to preserve and appeal that issue. The
district court also found that Elseman’s stand-alone claim of
trial error relating to the seating of the challenged juror failed
because he could not show error.
The district court further found that Elseman was not enti-
tled to an evidentiary hearing on his claims relating to implied
plea agreements with Northrop and Emily. For this finding,
the district court cited several reasons. First, it concluded that
Elseman could have raised the issue on direct appeal and thus,
the claims were procedurally barred. Second, the district court
concluded that Elseman had failed to allege facts demonstrat-
ing that Northrop and Emily had actually reached plea agree-
ments at the time of Elseman’s trial. Here, the district court
specifically stated that Elseman’s claim regarding Northrop
depended on allegations about what Northrop had said to the
employee at the public defender’s office that conflicted with
his testimony at Elseman’s trial; the district court likened
Northrop’s statements to “recantation” and concluded “[s]uch
evidence” was “suspect” under State v. Lotter, 278 Neb. 466,
771 N.W.2d 551 (2009).
Finally, the district court concluded that even if Northrop
and Emily failed to disclose implied plea agreements, that
was, at most, harmless error. On this point, the district court
reasoned that both Northrop and Emily were questioned at trial
about their hopes for leniency and that the State acknowledged
in its closing argument that “each of the witnesses was going
to get a ‘deal.’”
Elseman filed a timely appeal.

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STATE v. ELSEMAN
Cite as 322 Neb. 412
II. ASSIGNMENTS OF ERROR
Elseman assigns five errors on appeal. Each of his assigned
errors corresponds to one of his five claims for postconviction
relief. With respect to each claim, he assigns that the district
court erred by finding that he was not entitled to an eviden-
tiary hearing.
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. State v. Trail,
319 Neb. 84, 21 N.W.3d 61 (2025).
IV. ANALYSIS
Elseman argues that he should have received an evidentiary
hearing on each of his five claims for postconviction relief.
Before analyzing his arguments with respect to each claim, we
briefly review legal principles governing claims for postcon-
viction relief.
1. Postconviction Legal Standards
[2,3] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). Thus,
in a motion for postconviction relief, the defendant must allege
facts which, if proved, constitute a denial or violation of his or
her rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable. Id.
[4,5] The district 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 state or fed-
eral Constitution. Id. On the other hand, an evidentiary hearing

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STATE v. ELSEMAN
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is not required on a motion for postconviction relief when
(1) the motion does not contain factual allegations which, if
proved, constitute an infringement of the movant’s constitu-
tional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without sup-
porting facts; or (3) the records and files affirmatively show
that the defendant is entitled to no relief. Id.
With these standards in mind, we turn to Elseman’s claims.
2. Claims Regarding Challenged Juror
We first address Elseman’s various claims regarding the
challenged juror, beginning with his claim that trial counsel
should have preserved and appealed the district court’s over-
ruling of his motion to excuse the challenged juror for cause.
(a) Claim That Trial Counsel
Should Have Appealed
Elseman submits that reasonable trial counsel would have
preserved and appealed the overruling of his motion to excuse
the challenged juror for cause and that if his trial counsel
had done so, his convictions would have been reversed by
this court on direct appeal. We agree with the district court’s
determination that this claim is refuted by the record. As we
will explain, we find that even if counsel had appealed, such
an appeal would not have been successful.
At the heart of this claim is Elseman’s contention that the
district court erred by overruling his motion to excuse the chal-
lenged juror for cause. In particular, Elseman argues that by
overruling his challenge and allowing the challenged juror to
be seated, the district court violated federal and state consti-
tutional guarantees, as well as a Nebraska statute. We address
Elseman’s constitutional arguments first.
(i) Constitutional Argument Regarding
Challenged Juror
[6] Both the 6th Amendment to the U.S. Constitution, applied
to the states through the 14th Amendment, and article I, § 11,

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Cite as 322 Neb. 412
of the Nebraska Constitution guarantee to criminal defendants
the right to a speedy and public trial by an impartial jury. See
State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998). This
court has determined that while those constitutional provisions
require that a juror be excused or a mistrial declared when a
juror cannot be fair and impartial, “the competency of a juror is
generally presumed, and the burden is on the challenging party
to establish otherwise.” Id. at 15, 573 N.W.2d at 775.
We have also recognized that the task of determining
whether a person on the venire should be dismissed for cause
or whether a juror should be dismissed after commencement
of the trial is largely entrusted to the discretion of the trial
court. See Krutilek, supra. In Krutilek, we explained that
the discretion afforded to trial courts in this area is consid-
erable. We cited approvingly, for example, to decisions in
which appellate courts deferred to trial courts’ resolutions
of challenges for cause even when a juror or potential juror
was equivocal about his or her ability to be impartial. We
also noted that the appraisal of whether a juror can be fair
or impartial may involve weighing factors not reflected in an
appellate record.
Applying those principles in Krutilek, we held that a trial
court did not abuse its discretion by overruling a motion to
strike for cause a juror who stated he would “‘do [his] best’”
to be impartial despite knowing one of the witnesses. 254 Neb.
at 16, 573 N.W.2d at 775. We distinguished these facts from
an earlier case in which a juror expressly stated a belief that
he could not be a fair and impartial juror. The juror in Krutilek
did not unequivocally state he could be fair and impartial,
nor did he state he could not be fair and impartial. Id. Even
so, we determined that the trial court was in the best position
to determine whether the juror could be fair and impartial. In
the absence of “something specific in the record that would
indicate otherwise,” we found no abuse of discretion. Id. at 18,
573 N.W.2d at 776.

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STATE v. ELSEMAN
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We understand Krutilek and our other cases in this area to
be consistent with U.S. Supreme Court decisions regarding the
Sixth Amendment right to an impartial jury. The U.S. Supreme
Court has said that when a juror’s impartiality is at issue, the
relevant questions are whether the juror swore that “he could
set aside any opinion he might hold and decide the case on
the evidence, and should the juror’s protestation of impar-
tiality have been believed.” Patton v. Yount, 467 U.S. 1025,
1036, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). But the U.S.
Supreme Court has also recognized that the determination of
whether a prospective juror can be impartial is not susceptible
to stringent appellate review. See, Skilling v. United States,
561 U.S. 358, 386, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010)
(“[r]eviewing courts are properly resistant to second-guessing
the trial judge’s estimation of a juror’s impartiality, for that
judge’s appraisal is ordinarily influenced by a host of factors
impossible to capture fully in the record . . .”); Rosales-Lopez
v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L.
Ed. 2d 22 (1981) (comparing trial judge’s function at voir dire
to function of juries at trial and observing that “[i]n neither
instance can an appellate court easily second-guess the con-
clusions of the decisionmaker who heard and observed the
witnesses”). Accordingly, a trial court’s finding of juror impar-
tiality may only be overturned for “manifest error.” Mu’Min
v. Virginia, 500 U.S. 415, 428, 111 S. Ct. 1899, 114 L. Ed. 2d
493 (1991) (internal quotation marks omitted).
Elseman contends that the challenged juror’s affirmative
response when asked if Elseman “could be at a distinct disad-
vantage” if the challenged juror was kept on the jury was an
unequivocal statement that he could not be fair and impartial.
Because the challenged juror made an unequivocal statement
that he could not be fair and impartial, Elseman argues, the
district court was constitutionally obligated to sustain his
motion to excuse the challenged juror for cause.
We disagree that the challenged juror unequivocally stated
that he could not be fair and impartial. We do not deny that

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the challenged juror made several statements that merited
additional inquiry. In addition to agreeing that Elseman “could
be at a distinct disadvantage” if he was kept on the jury, the
challenged juror also acknowledged reading about the case in
media reports, learning that Elseman was the alleged shooter,
forming an “initial impulse” that Winters’ death was a “very
bad deal,” and thinking that this was a “heinous” and “unnec-
essary” crime.
Contrary to Elseman, however, we do not understand any of
these statements, alone or taken together, to rise to the level
of an unequivocal expression that the challenged juror could
not be fair and impartial. Even if the challenged juror formed
initial impressions based on media reports, it does not fol-
low that he was incapable of setting those impressions aside
and fairly deciding the case based on the evidence presented.
Further, the challenged juror’s affirmative response to the
question of whether Elseman “could be at a distinct disadvan-
tage,” if the challenged juror was left on the jury was, by its
terms, equivocal. (Emphasis supplied.) The word “could” is
“used to indicate possibility.” See The New Oxford American
Dictionary 389 (2001). So while the challenged juror perhaps
acknowledged a possibility that his presence on the jury would
place Elseman at a disadvantage, his answer to that precise
question also left open the possibility that it would not.
Furthermore, the challenged juror made several other state-
ments suggesting that, notwithstanding the statements high-
lighted above, he was, in fact, capable of serving as a
fair and impartial juror. The challenged juror stated that he
“believe[d]” he could set aside what he learned and require
the State to carry its burden to prove Elseman’s guilt. He also
stated that he “believe[d]” he could be “fair and impartial” to
Elseman. And while he at one point said he was “leaning a lit-
tle bit more toward the State,” he just moments later acknowl-
edged that the State had to present evidence. When asked
by Elseman’s counsel if he believed Elseman was more than
likely guilty, the challenged juror refused to agree, saying he

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“like[d] to think of [himself] as being open-minded.” Finally,
after answering the question about whether Elseman could be
at a disadvantage if the challenged juror was left on the jury,
the challenged juror engaged in an exchange with the district
court in which he demonstrated that he understood the pre-
sumption of innocence and that he could not vote to convict
Elseman in the absence of evidence proving his guilt.
Summing up matters, even if Elseman’s trial counsel had
preserved and appealed the district court’s overruling of his
motion to excuse the challenged juror for cause, he would not
have been able to identify an unequivocal statement by the
challenged juror that he could not be fair and impartial. He
also would have been forced to reckon with several other state-
ments suggesting the challenged juror was capable of serving
as a fair and impartial juror. Given this record and the consid-
erable deference owed to trial courts in determining whether
the dismissal of an allegedly biased juror is constitutionally
required, we determine that any argument that the district
court violated Elseman’s constitutional rights by overruling
the motion to excuse the challenged juror for cause would not
have been successful.
(ii) Statutory Argument Regarding
Challenged Juror
In addition to arguing that the district court committed con-
stitutional error by overruling his motion to excuse the chal-
lenged juror for cause, Elseman also argues that the district
court’s decision failed to comply with a statute, Neb. Rev. Stat.
§ 29-2006 (Cum. Supp. 2024). Section 29-2006 lists several
circumstances in which jurors must be excused. Relevant to
this case is subsection (2) of that statute. It provides that a
juror who has “formed or expressed an opinion as to the guilt
or innocence of the accused” should generally be excused, but
it also sets out a process that, if followed, allows for the pos-
sibility of such a juror to serve:

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[I]f a juror or alternate juror shall state that he has
formed or expressed an opinion as to the guilt or inno-
cence of the accused, the court shall thereupon proceed
to examine, on oath, such juror or alternate juror as
to the ground of such opinion; and if it shall appear to
have been founded upon reading newspaper statements,
communications, comments or reports, or upon rumor or
hearsay, and not upon conversations with witnesses of the
transactions or reading reports of their testimony or hear-
ing them testify, and the juror or alternate juror shall say
on oath that he feels able, notwithstanding such opinion,
to render an impartial verdict upon the law and the evi-
dence, the court, if satisfied that such juror or alternate
juror is impartial and will render such verdict, may, in its
discretion, admit such juror or alternate juror as compe-
tent to serve in such case.
§ 29-2006(2).
Elseman argues that in this case, the challenged juror had
formed or expressed an opinion as to Elseman’s guilt based
on reading media reports. Elseman contends that, as a result,
§ 29-2006(2) permitted the challenged juror to serve only if he,
under oath, made the statement described in the statute. And
Elseman submits that the challenged juror failed to make such
a statement. Elseman thus concludes that if his counsel had
argued on direct appeal that the district court failed to comply
with § 29-2006(2), he would have received a new trial. Again,
we disagree.
At trial, Elseman’s counsel did not mention § 29-2006(2),
let alone argue that the challenged juror should be excused
for failure to comply with that statute. Because the district
court was not alerted to any argument that the challenged
juror should be excused based on § 29-2006(2), we would
have reviewed an argument that the district court was required
to do so for plain error only. If a party makes an argument
that a trial court committed error without first bringing that
argument to the attention of the trial court, we will generally

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review only for plain error. See, e.g., State v. Horne, 315 Neb.
766, 1 N.W.3d 457 (2024). As we have explained, this prac-
tice encourages litigants to raise arguments in the trial court
“‘so that any errors can be corrected before their full impact
is realized.’” Id. at 774, 1 N.W.3d at 464 (quoting State v.
Pearson, 775 N.W.2d 155 (Minn. 2009)).
[7] 	If 	Elseman’s 	counsel 	had 	made 	an 	argument 	on
direct appeal that the challenged juror should have been
excused because he had not made the statement described
in § 29-2006(2), we would not have found plain error. As
discussed above, the challenged juror did not unequivocally
communicate that he could not be fair and impartial and, in
fact, made several statements in his exchange with the district
court and defense counsel expressing his belief that he was
capable of fairly deciding the case based on the evidence
presented at trial. Viewed through the lens of plain error,
even if these statements did not precisely mirror the state-
ment described in § 29-2006(2), they expressed the same
sentiment—while § 29-2006(2) requires a juror to state that
he or she “feels able” to “render an impartial verdict upon
the law and the evidence,” the challenged juror stated that
he “believe[d]” he could be “fair and impartial.” We have
said that plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial
right and, if uncorrected, would result in damage to the integ-
rity, reputation, and fairness of the judicial process. State v.
McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016). We have
additionally observed that plain error “is not a vehicle that
should be routinely used to ‘save’ an issue for appeal where
a proper objection should have been, but was not, made at
trial.” Id. at 583, 873 N.W.2d at 418. For the reasons we have
expressed, we conclude that it would not have resulted in
damage to the integrity, reputation, or fairness of the judicial
process to allow the district court’s seating of the challenged
juror to stand.

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[8] Finally, we acknowledge that Elseman generally alleged
in his postconviction motion that his trial counsel was ineffec-
tive for not preserving and appealing the district court’s over-
ruling of his motion to excuse the challenged juror for cause.
The only allegations in Elseman’s postconviction motion per-
taining to error preservation concerned Elseman’s claim that
if counsel used peremptory strikes on other jurors, he should
have made a record of that fact to generally preserve a claim
that the trial court erred in overruling his motion to excuse the
challenged juror for cause as required by State v. Quintana,
261 Neb. 38, 621 N.W.2d 121 (2001), modified on denial of
rehearing 261 Neb. 623, 633 N.W.2d 890. Because Elseman’s
postconviction motion did not allege ineffective assistance
concerning the preservation of an argument that the district
court failed to follow § 29-2006(2), we do not consider it
here. In an appeal from the denial of postconviction relief, an
appellate court will not consider for the first time on appeal
claims that were not raised in the verified motion. State v.
Ammons, 314 Neb. 433, 990 N.W.2d 897 (2023).
[9,10] As we have explained, if Elseman’s trial counsel had
appealed the seating of the challenged juror on the grounds
raised by Elseman, that appeal would not have succeeded.
It follows that Elseman’s ineffective assistance of counsel
claim is refuted by the record. Generally, to prevail on a
claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. State v. Haas,
317 Neb. 919, 12 N.W.3d 787 (2024). To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different. Id. Had counsel appealed the
seating of the challenged juror, there is no reasonable prob-
ability the outcome of Elseman’s direct appeal would have
been different. Elseman was not entitled to an evidentiary

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hearing on his claim that his counsel was ineffective in failing
to appeal the seating of the challenged juror.
(b) Claim That Trial Counsel Should
Have Used Peremptory Strike
We turn next to Elseman’s claim that his trial counsel was
ineffective for not using a peremptory strike on the chal-
lenged juror. We find this claim is also affirmatively refuted
by the record.
As we just mentioned, in order to prevail on a claim of
ineffective assistance of counsel, Elseman must demonstrate
that his counsel performed deficiently and that, as a result of
that deficient performance, he suffered prejudice. See id. A
number of courts have recognized that to establish prejudice
based on counsel’s failure to exercise peremptory challenges,
a defendant must show that, as a result of counsel’s failure
to use peremptory challenges, the jury panel contained at
least one biased juror. See, e.g., Miller v. Francis, 269 F.3d
609 (6th Cir. 2001); U.S. v. Quintero-Barraza, 78 F.3d 1344
(9th Cir. 1995); State v. Dean, 2015 Ohio 4347, 146 Ohio St.
3d 106, 54 N.E.3d 80 (2015); Peterson v. State, 154 So. 3d
275 (Fla. 2014). Here, for reasons we have already covered,
Elseman cannot show that the challenged juror was biased.
Accordingly, the district court did not err in denying this claim
without an evidentiary hearing.
(c) Stand-alone Claim of Trial Court Error
Elseman also argues that the district court erred by not
granting an evidentiary hearing on his claim that the district
court erred when it seated the challenged juror at trial. Again,
we find that Elseman was not entitled to an evidentiary hearing
on this claim.
Unlike Elseman’s other claims regarding the challenged
juror, this claim is not framed as a claim of ineffective assist-
ance of counsel, but as a stand-alone claim of district court
error. When, as here, a defendant is represented by the same
attorney at trial and on direct appeal, claims of ineffective

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assistance of counsel can be raised in a postconviction motion
free of a procedural bar. See, e.g., State v. Allen, 301 Neb.
560, 919 N.W.2d 500 (2018). The rationale for this rule is
that, under those circumstances, a motion for postconviction
relief is the defendant’s first opportunity to raise such claims.
See id.
[11] A motion for postconviction relief cannot, however, be
used to secure review of issues that were or could have been
litigated on direct appeal. State v. Jaeger, 311 Neb. 69, 970
N.W.2d 751 (2022). When raised in a motion for postconvic-
tion relief, such issues are procedurally barred. See State v.
Payne, 289 Neb. 467, 855 N.W.2d 783 (2014). Elseman offers
no reason why his stand-alone claim of trial court error could
not have been raised on direct appeal.
Likely recognizing the looming procedural bar, Elseman
seeks to avoid it by claiming that the error he asserts here
is of a type that would allow it to be reached via a motion
for postconviction relief. In his motion for postconviction
relief, Elseman alleged that the seating of the challenged juror
amounted to “structural error” and thus required “automatic
reversal.” Now on appeal, Elseman adds an argument that the
seating of the challenged juror was plain error and contends
that this court can recognize plain error in this appeal of a
postconviction proceeding.
[12] Elseman’s contention that if plain error is shown,
a claim that would otherwise face a procedural bar can be
reached on postconviction review is flatly contradicted by our
precedent. We have held that plain error cannot be asserted
in a postconviction proceeding to raise claims of error by the
trial court. Allen, supra.
Elseman’s invocation of structural error is also unavailing.
“Structural error” is the term the U.S. Supreme Court uses
to refer to those errors that are not subject to harmless-error
analysis. See, e.g., State v. Galindo, 315 Neb. 1, 994 N.W.2d
562 (2023). As the U.S. Supreme Court has said, “in the case
of a structural error where there is an objection at trial and

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the issue is raised on direct appeal, the defendant generally is
entitled to ‘automatic reversal’ regardless of the error’s actual
‘effect on the outcome.’” Weaver v. Massachusetts, 582 U.S.
286, 299, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017) (quot-
ing Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144
L. Ed. 2d 35 (1999)). But Elseman does not point to any
authority suggesting that structural errors are not subject to
a state law procedural bar. And, in any case, to qualify as a
structural error, there must first be error. But, for reasons we
have discussed, Elseman cannot show that his constitutional
rights were violated at all by the seating of the challenged
juror. The district court did not err in denying Elseman relief
on his stand-alone claim of trial error without granting an
evidentiary hearing.
3. Claims Regarding Alleged
Implied Plea Agreements
We next take up Elseman’s argument that the district court
should have granted him an evidentiary hearing on his claims
that the State violated his constitutional rights by not disclosing
that it had reached implied plea agreements with Northrop and
Emily. We first discuss his claim regarding Northrop.
(a) Alleged Implied Plea Agreement
With Northrop
Elseman contends that he has adequately alleged facts sug-
gesting that the State reached an implied plea agreement with
Northrop. If such an agreement was reached, Elseman argues,
the State was required to disclose it under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (Brady),
and once Northrop denied the existence of any such agree-
ment, the State was required to correct that testimony under
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d
1217 (1959) (Napue).
[13,14] Elseman is correct that if prosecutors reached an
agreement with Northrop or Emily that they would receive
leniency in exchange for their testimony against Elseman, the

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State was required to disclose it. This court has held that the
existence of an agreement to testify by a witness under threats
or promises of leniency made by the prosecutor is relevant to
the credibility of such witness and that failure to bring that
to the attention of the jury denies the defendant due process
of law. State v. Patton, 287 Neb. 899, 845 N.W.2d 572 (2014).
An expectation of leniency on the part of a witness, absent
evidence of any expressed or implied agreement, however,
need not be revealed to the jury. Id. Additionally, Elseman is
correct that if the State knew Northrop or Emily lied when
they denied being promised anything in exchange for their
testimony, the State was required to correct that testimony.
Under Napue, the knowing use of perjured testimony by the
prosecution deprives a criminal defendant of his or her right
to a fair trial. See State v. Lotter, 278 Neb. 466, 771 N.W.2d
551 (2009).
The district court found that Elseman was not entitled to an
evidentiary hearing on his claim concerning Northrop for sev-
eral reasons. It first found that Elseman’s claim was procedur-
ally barred because he could have asserted it on direct appeal.
We disagree. It is true that a motion for postconviction relief
cannot be used to secure review of issues that were known to
the defendant and which were or could have been litigated on
direct appeal. See State v. Galindo, 315 Neb. 1, 994 N.W.2d
562 (2023). We have held, however, that when a claim is based
on evidence that was not available on direct appeal or in a
prior postconviction motion, it is not procedurally barred. See
State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). In this
case, Elseman’s claim that Northrop reached an agreement with
the State depended on evidence that emerged during Patton’s
postconviction proceedings and thus was not available at the
time of Elseman’s direct appeal. Accordingly, the claim is not
procedurally barred.
The district court also determined that Elseman was not
entitled to an evidentiary hearing on this claim because he
failed to adequately allege that Northrop had anything more

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than a hope of leniency. Here, the district court appeared to
conclude that it could not consider Elseman’s allegations as
to what Northrop had said to others suggesting he had reached
an implied plea agreement because that amounted to “recanta-
tion” testimony that was “suspect” under Lotter, supra.
We disagree with the district court that it would be improper
to consider Elseman’s allegations that Northrop had made
statements to others suggesting he reached an implied plea
agreement. In Lotter, we explained that we had previously
held that a motion for postconviction relief cannot be used
to escape the statute of limitations for a motion for new trial
based on newly discovered evidence and emphasized that the
same holding would apply to a recently discovered recantation.
We did not hold that statements like those Elseman alleges
Northrop made here were barred from consideration in deter-
mining whether a defendant is entitled to an evidentiary hear-
ing on a motion for postconviction relief.
Finally, the district court determined that Elseman was
not entitled to an evidentiary hearing because even if there
was an implied plea agreement between Northrop and the
State, the failure to disclose the agreement would amount to,
at most, harmless error. Again, we disagree with the district
court’s conclusion.
A defendant is not automatically entitled to relief under
Brady or Napue upon a mere showing that the prosecution
failed to disclose favorable evidence or that it knowingly
failed to correct false testimony. Both claims are subject to
materiality inquiries. To establish a Brady violation, Elseman
must show not only that the prosecution failed to disclose
favorable evidence, but also that the evidence was material to
guilt or punishment. See Galindo, supra. Evidence qualifies
as material under Brady if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. Galindo, supra.
To establish a violation of Napue, a defendant must show
that the prosecution either knowingly solicited or knowingly

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failed to correct false testimony. See Glossip v. Oklahoma,
604 U.S. 226, 145 S. Ct. 612, 221 L. Ed. 2d 90 (2025). But
if such a showing is made, the defendant is entitled to relief
under Napue if there is “any reasonable likelihood” the false
testimony “[could] have affected the judgment of the jury.”
Glossip, 604 U.S. at 246 (internal quotation marks omit-
ted). The U.S. Supreme Court has said that, “[i]n effect, this
materiality standard requires the beneficiary of [the] constitu-
tional error to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Id.
(internal quotation marks omitted).
The district court appeared to conclude that even if there
was an implied plea agreement that Northrop failed to dis-
close, it would not be material under Brady or Napue. The
district court reached that conclusion based on the fact that
Northrop was cross-examined about his hopes for leniency
and thus, the jury already had reasons to question his motives
for implicating Elseman. The district court also asserted that
Northrop’s testimony was corroborated by other evidence at
trial and that the prosecutor’s closing argument suggested that
Northrop would “get a ‘deal.’”
We are not persuaded that, at least at this stage of the
proceedings, it could be determined that the existence of a
plea agreement between Northrop and the State would not be
material under Brady or Napue. The district court concluded
that the existence of an implied plea agreement would not
be material, in part, because Elseman’s cross-examination
exposed another reason to question Northrop’s credibility—
Northrop’s general hope for leniency. The U.S. Supreme
Court’s opinion in Napue, however, specifically rejected the
argument that a prosecutor’s failure to correct false testimony
about the existence of a plea agreement could be rendered
immaterial by the fact that “the jury was apprised of other
grounds for believing that [a witness] may have had an inter-
est in testifying” against the defendant. 360 U.S. at 270.
Other courts have similarly concluded that even if a witness

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is cross-examined about hopes for leniency, that does not
render immaterial the failure to disclose a plea agreement that
the defendant would receive consideration for his or her tes-
timony. See, e.g., Douglas v. Workman, 560 F.3d 1156 (10th
Cir. 2009); Jackson v. Brown, 513 F.3d 1057 (9th Cir. 2008);
U.S. v. Mason, 293 F.3d 826 (5th Cir. 2002); Conyers v. State,
367 Md. 571, 790 A.2d 15 (2002).
The district court also concluded that there could be no
prejudicial constitutional violation with respect to a plea
agreement with Northrop because Northrop’s testimony was
corroborated by other evidence. Even if there was some cor-
roboration, we still do not believe it can be determined at
this stage that, if Northrop reached a plea agreement with the
State, any failure to disclose and failure to correct testimony
could not be material. In other words, we are not convinced
that the State has proved beyond a reasonable doubt that any
failure to disclose an implied plea agreement with Northrop
did not contribute to the verdicts. Here, it must be recalled that
Northrop was the only witness who testified that Elseman shot
Winters and that Winters’ mother initially identified the men
who ran away from her house as three black males, despite the
fact that Elseman is white.
Finally, we do not believe the prosecutor’s suggestion that
Northrop would later receive leniency in exchange for his
testimony would allow us, at this stage, to determine that
the failure to disclose an actual, implied plea agreement was
immaterial for purposes of Brady and Napue.
In sum, we are not persuaded by the reasons offered by the
district court for denying Elseman an evidentiary hearing on
his claim that the State violated his rights to due process by
not disclosing an implied plea agreement with Northrop. As
recounted above, a district 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 state or federal Constitution. State v. Lessley, 312 Neb.

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316, 978 N.W.2d 620 (2022). In our view, Elseman’s claim
that the State failed to disclose an implied plea agreement
with Northrop meets that standard. Accordingly, Elseman is
entitled to an evidentiary hearing on his allegation that the
State violated his rights under Brady and Napue by failing to
disclose an implied plea agreement with Northrop and then
failing to correct Northrop’s testimony that no such agree-
ment existed.
(b) Alleged Implied Plea Agreement With Emily
Elseman’s postconviction motion also alleged that the State
reached an implied plea agreement with Emily and that the
State violated his rights under Brady and Napue by first
failing to disclose the agreement and then failing to correct
Emily’s testimony that no such agreement existed. As with
his claim concerning Northrop, he argues on appeal that the
district court erred by not granting him an evidentiary hearing
on this claim.
We concluded above that Elseman was entitled to an evi-
dentiary hearing on his claim alleging that the State reached
an implied plea agreement with Northrop, but we do not reach
the same conclusion with respect to his claim alleging that
the State reached an implied plea agreement with Emily. We
do so because while Elseman made several factual allegations
supporting his assertion that the State reached an implied
plea agreement with Northrop, he alleged little more than a
conclusory statement that the State reached an implied plea
agreement with Emily.
The most that Elseman alleged concerning an implied plea
agreement with Emily was that Emily’s attorney testified at
an evidentiary hearing on Patton’s motion for postconvic-
tion relief that he was confident that Emily’s case would
be transferred to juvenile court. But, as we held in Patton’s
direct appeal, testimony from Emily’s attorney that he was
confident her case would be moved to juvenile court “[falls]
short” of establishing an implied plea agreement with Emily.

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State v. Patton, 287 Neb. 899, 914, 845 N.W.2d 572, 584
(2014). Rather, we explained, such testimony is consistent
with Emily’s testimony that she was hoping for leniency in
exchange for her testimony but had received no promises or
assurances from the State.
An evidentiary hearing is not required on a motion for post-
conviction relief when the motion alleges only conclusions of
fact or law without supporting facts. See State v. Jaeger, 311
Neb. 69, 970 N.W.2d 751 (2022). Because Elseman failed
to allege facts supporting his assertion that the State reached
an implied plea agreement with Emily, the district court did
not err when it did not grant him an evidentiary hearing on
that claim.
V. CONCLUSION
For reasons we have explained, we find that the district court
did not err in denying Elseman postconviction relief without
granting an evidentiary hearing on his claims relating to the
challenged juror. The district court also did not err in denying
postconviction relief without granting an evidentiary hearing
on his claim that the State violated his rights under Brady and
Napue with respect to an alleged implied plea agreement with
Emily. However, Elseman is entitled to an evidentiary hear-
ing on his claim that the State violated his rights under Brady
and Napue by failing to disclose an implied plea agreement
with Northrop and then failing to correct Northrop’s testimony
denying such an agreement existed. Accordingly, we affirm in
part, and in part reverse and remand for an evidentiary hearing
limited to that claim.
Affirmed in part, and in part reversed
and remanded with directions.
Miller-Lerman, J., not participating in the decision.
Freudenberg, J., not participating.