State v. Jackson

434 	275 Nebraska reports
S tate of N ebraSka , appellee , v .
M ichael t. J ackSoN, appellaNt .
747 N.W.2d 418
Filed april 18, 2008. 	No. s-06-1041.
1. Postconviction: Proof: Appeal and Error. a defendant requesting postconvic-
tion relief must establish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel. a claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. an appellate court reviews inef-
fective assistance of counsel claims under the two-prong inquiry mandated
by Strickland v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d
674 (1984).
4. ____: ____. In applying the two-prong test for ineffective assistance of coun-
sel claims, an appellate court reviews the lower court’s factual findings for
clear error.
5. ____: ____. Whether counsel’s performance was deficient and whether that defi-
ciency prejudiced the defendant are legal determinations that an appellate court
resolves independently of the lower court’s decision.
6. Postconviction. Whether a claim raised in a postconviction proceeding is proce-
durally barred is a question of law.
7. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s conclusion.
8. Postconviction: Appeal and Error. a party cannot raise an issue in a postconvic-
tion motion if he or she could have raised that same issue on direct appeal.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. a motion for
postconviction relief asserting ineffective assistance of trial counsel is procedur-
ally barred when (1) the defendant was represented by a different attorney on
direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was
not brought on direct appeal, and (3) the alleged deficiencies in trial counsel’s
performance were known to the defendant or apparent from the record.
10. Constitutional Law: Right to Counsel: Conflict of Interest. a conflict of inter-
est which adversely affects a lawyer’s performance violates the client’s sixth
amendment right to effective assistance of counsel.
11. Effectiveness of Counsel: Conflict of Interest: Proof. In cases of a conflict
which adversely affects a lawyer’s performance, there is no need to show that the
conflict resulted in actual prejudice to the defendant, showing an actual conflict
existed is sufficient.
12. Attorney and Client: Conflict of Interest: Words and Phrases. the term “actual
conflict” encompasses any situation in which a defense attorney faces divided loy-
alties such that regard for one duty tends to lead to disregard of another.
13. Effectiveness of Counsel: Proof. Under Strickland v. Washington, 466 U.s. 668,
104 s. Ct. 2052, 80 L. ed. 2d 674 (1984), the defendant has the burden to show
that (1) counsel performed deficiently—that is, counsel did not perform at least
as well as a criminal lawyer with ordinary training and skill in the area—and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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(2) this deficient performance actually prejudiced the defendant in making his or
her defense.
14. ____: ____. the prejudice prong of the ineffective assistance of counsel test
requires that the defendant show a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding in question would have
been different.
15. Effectiveness of Counsel: Words and Phrases. a reasonable probability is a prob-
ability sufficient to undermine confidence in the outcome.
16. Effectiveness of Counsel: Appeal and Error. an appellate court can assess the
two prongs of the ineffective assistance of counsel test, deficient performance and
prejudice, in either order.
17. ____: ____. Counsel’s failure to raise an issue on appeal could only be ineffective
assistance if there is a reasonable probability that inclusion of the issue would
have changed the result of the appeal.
18. ____: ____. When a case presents layered ineffectiveness claims, an appellate
court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland v.
Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d 674 (1984).
19. Trial: Effectiveness of Counsel: Appeal and Error. If trial counsel was inef-
fective, then the defendant suffered prejudice when appellate counsel failed to
bring such a claim. an appellate court must then consider whether the appel-
late counsel’s failure to bring the claim qualifies as a deficient performance
under Strickland v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d
674 (1984).
20. Trial: Effectiveness of Counsel: Presumptions. In assessing trial counsel’s
performance under the two-prong test in Strickland v. Washington, 466 U.s. 668,
104 s. Ct. 2052, 80 L. ed. 2d 674 (1984), there is a strong presumption that trial
counsel acted reasonably.
21. Trial: Attorneys at Law. trial counsel is afforded due deference to formulate
trial strategy and tactics.
22. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When
reviewing an ineffective assistance of counsel claim, an appellate court will not
second-guess reasonable strategic decisions made by counsel.
23. Evidence: Prosecuting Attorneys. prosecutors have a duty to present material
exculpatory evidence even if defense counsel never requests the evidence.
24. Trial: Evidence. Favorable evidence is material if there is a reasonable probabil-
ity that, had the evidence been disclosed to the defense, the result of the proceed-
ing would have been different.
25. ____: ____. a reasonable probability of a different result is shown when
the state’s evidentiary suppression undermines confidence in the outcome of
the trial.
26. Due Process: Evidence: Prosecuting Attorneys. In the context of prosecutorial
withholding of evidence, Nebraska law defines materiality more broadly than due
process requirements and applies that term to evidence which strongly indicates it
would play an important role in preparing a defense.
27. Pretrial Procedure: Appeal and Error. the trial court has broad discretion in
granting discovery requests and errs only when it abuses its discretion.
state v. JaCksoN 	435
Cite as 275 Neb. 434

436 	275 Nebraska reports
28. Evidence: Words and Phrases. evidence is relevant if it tends in any degree to
alter the probability of a material fact.
29. ____: ____. relevancy requires only that the degree of probativeness be some-
thing more than nothing.
30. Postconviction: Appeal and Error. the Nebraska postconviction act looks
unfavorably on any attempts to rehash issues at the postconviction stage which
were—or could have been—raised and disposed of at trial or on direct appeal.
31. Postconviction: Evidence. prisoners cannot seek discovery at the postconviction
stage if the requested evidence could have been obtained at trial.
appeal from the District Court for Douglas County: J. M ichael
coffey, Judge. affirmed.
paula b. Hutchinson for appellant.
Jon bruning, attorney General, and James D. smith for
appellee.
W right, coNNolly, gerrard, S tephaN, M ccorMack, and
M iller -lerMaN, JJ.
coNNolly, J.
a jury convicted Michael t. Jackson of first degree mur-
der, attempted first degree murder, and two counts of use of
a deadly weapon to commit a felony. on direct appeal, we
affirmed Jackson’s convictions.1 In Jackson’s postconviction
petition, he alleges (1) ineffective assistance of trial counsel,
(2) ineffective assistance of counsel on appeal, and (3) prosecu-
torial misconduct. the district court overruled Jackson’s peti-
tion. Jackson appeals. We conclude that none of his numerous
assignments of error have merit.
I. baCkGroUND
1. the criMe
the facts of Jackson’s underlying offense are set out in his
direct appeal.2 We briefly recount the facts necessary to provide
context for Jackson’s claims.
on February 4, 1996, Jackson met with Dionne brewer and
Jason thornton to buy cocaine. they planned to travel from
1 see State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).
2 Id.

omaha to Minneapolis to make the buy. brewer and thornton
wanted to fly, but Jackson wanted to drive because he was con-
cerned about flying with $11,500 in cash. brewer and thornton
agreed to drive and picked Jackson up in thornton’s vehicle,
but Jackson suggested that they make the trip in a car that he
had rented.
Jackson then gave thornton, the driver, instructions to drive
to where the rental car was parked. Jackson, who purported
to be under the influence of marijuana, repeatedly led the trio
astray. brewer grew impatient and urged Jackson to stop wast-
ing time. Jackson then directed thornton to the location where
he said he had parked the rental car. When they arrived at the
location, thornton stopped near a car Jackson identified as the
rental car. as thornton opened the driver’s-side door to get
out, gunshots rang out and brewer saw Jackson shooting at
thornton from behind.
brewer leapt out of the vehicle and began running down the
street. Jackson got out of the vehicle and shot brewer. as she
lay in the street, Jackson shot her several times in the head and
torso. ella r. Iler, a woman who lived on the street where the
shootings occurred, heard the initial gunfire. she rushed to her
kitchen window and observed Jackson shoot brewer.
brewer managed to survive by playing dead. When officers
arrived, brewer informed them that she did not know Jackson’s
last name, but that his first name was Mike and that she knew
where he lived. some officers went to the location brewer
provided, while others went to the home of Jackson’s former
girlfriend, Demeteria Gardner, now known as Demeteria Miller
(Miller). Miller gave officers consent to search her vehicle,
which was parked in front of Jackson’s home. (Jackson had
borrowed Miller’s vehicle earlier that day.) In the vehicle, police
found a duffelbag containing clothes matching the description
of the clothing worn by the killer. the clothing also contained
red stains. a test at the University of Nebraska Medical Center
would later reveal that the stains came from thornton’s blood.
officers then obtained a warrant and entered Jackson’s home,
where they found Jackson. police seized several items in the
house, including two .38-caliber bullets, a gun case, and a knit
cap matching the description of a cap worn by the shooter.
state v. JaCksoN 	437
Cite as 275 Neb. 434

438 	275 Nebraska reports
2. pretrial M otioNS aNd the trial
Michael J. poepsel represented Jackson at trial. before trial,
poepsel moved in limine to suppress (1) physical evidence that
officers recovered from Jackson’s home and Miller’s car, (2)
statements that Jackson made to police, and (3) DNa evidence.
the court overruled the motion regarding the physical and
DNa evidence. the prosecution, however, agreed not to intro-
duce Jackson’s statements at trial.
several doctors and technicians affiliated with the University
of Nebraska Medical Center testified that the bloodstains on the
clothing found in the vehicle came from thornton.
at one point, poepsel objected to the admission of autopsy
photographs of thornton’s body. the court overruled the objec-
tion. poepsel also renewed his objection to the items of physical
evidence when the state offered them at trial. after the prosecu-
tion rested, poepsel moved to dismiss because the state had
failed to prove premeditation. the court overruled the motion.
poepsel then rested without presenting any evidence. the jury
found Jackson guilty on all counts.
3. direct appeal
on appeal, James C. Hart, Jr., represented Jackson. Hart did
not argue ineffective assistance of trial counsel in his direct
appeal. Instead, Hart argued that the district court erred in (1)
admitting the items of physical evidence seized from Jackson’s
residence, (2) admitting DNa evidence regarding the substance
on Jackson’s clothing, (3) admitting the gruesome photographs
of thornton’s body, (4) overruling Jackson’s motion to dis-
miss for lack of evidence on premeditation, and (5) overruling
Jackson’s motion for a new trial because of jury contamination.
We rejected these claims and upheld Jackson’s convictions.3
4. poStcoNvictioN M otioNS
Following his unsuccessful appeal, Jackson filed a postcon-
viction motion. In his motion, Jackson alleged: (1) ineffective
assistance of trial counsel, (2) ineffective assistance of appellate
3 Jackson, supra note 1.

counsel, and (3) prosecutorial misconduct because the prosecu-
tion failed to provide potentially exculpatory evidence.
at the postconviction hearing, the state adduced testimony
from poepsel and Hart. Jackson adduced testimony from his
mother; Miller; and Cindy Lee Welch-brown, the mother of
Jackson’s nieces and nephews.
poepsel testified that he met with Jackson regularly to dis-
cuss trial strategy. During these meetings, Jackson allegedly
changed his story frequently. according to poepsel, Jackson
initially stated that he did not murder thornton, then stated that
he killed thornton in self-defense, and then admitted to mur-
dering thornton. poepsel testified that because Jackson admit-
ted he killed thornton and because of the DNa evidence, they
changed strategy. poepsel testified that he and Jackson would
focus the defense on ensuring a conviction of a lesser offense.
Hart testified that while preparing an appeal in Jackson’s case,
he found nothing in the record that indicated a viable ineffec-
tive assistance of counsel claim.
the district court denied Jackson’s motion. on appeal, this
court remanded with instructions that the district court enter
a formal order with factual findings.4 In response, the district
court entered an order in which it made numerous factual
findings and conclusions of law. Notably, the court credited
poepsel’s and Hart’s testimony over the testimony of Jackson,
Jackson’s mother, and Welch-brown.
II. assIGNMeNts oF error
1. aSSigNMeNtS regardiNg trial couNSel
Jackson assigns on appeal, restated, that the court erred in
failing to find that Jackson received ineffective assistance of
trial counsel. regarding this assignment, Jackson argues that
trial counsel failed to (1) present Miller’s testimony, (2) pre-
sent Welch-brown’s testimony, (3) refute and undermine Iler’s
testimony, (4) undermine the state’s use of the bullets and gun
case found in Jackson’s home, (5) obtain and present evidence
of the gunshot residue analysis, (6) depose a University of
Nebraska Medical Center medical technologist and undermine
4 State v. Jackson, 264 Neb. xxiv (No. s-02-366, oct. 9, 2002).
state v. JaCksoN 	439
Cite as 275 Neb. 434

440 	275 Nebraska reports
her testimony at trial, (7) consider and present testimony by
a forensic pathologist, (8) effectively rebut brewer’s testi-
mony, (9) present evidence that fingerprints found at the crime
scene did not match Jackson’s prints, (10) develop a clear
trial strategy, and (11) subject the state’s case to meaningful
adversarial testing.
2. aSSigNMeNtS regardiNg appellate couNSel
additionally, Jackson assigns that the court erred in failing
to find that Jackson received ineffective assistance of counsel
on direct appeal. He claims Hart was ineffective because of (1)
an alleged conflict of interest stemming from Hart’s personal
relationship with poepsel, Jackson’s trial counsel, and (2)
Hart’s failure to argue on direct appeal that poepsel was inef-
fective in the particulars listed above.
3. aSSigNMeNt regardiNg the proSecutioN
Jackson assigns that he was deprived a fair trial because the
state failed to disclose potentially exculpatory evidence.
4. aSSigNMeNtS regardiNg diScovery M otioNS
Jackson assigns that the court erred when it denied the fol-
lowing discovery requests: (1) evidence found in a search of a
drug kingpin’s jail cell, (2) brewer’s drug abuse history, and (3)
gunshot residue testing, either by a court-appointed expert or at
Jackson’s own expense.
III. staNDarD oF reVIeW
[1-5] a defendant requesting postconviction relief must
establish the basis for such relief, and the district court’s find-
ings will not be disturbed unless they are clearly erroneous.5
a claim that defense counsel provided ineffective assistance
presents a mixed question of law and fact.6 We review ineffec-
tive assistance of counsel claims under the two-prong inquiry
mandated by Strickland v. Washington.7 Under this inquiry,
5 State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).
6 see State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
7 Strickland v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d 674
(1984).

we review the lower court’s factual findings for clear error.8
Whether counsel’s performance was deficient and whether that
deficiency prejudiced the defendant are legal determinations
that we resolve independently of the lower court’s decision.9
IV. aNaLYsIs
1. alleged iNeffective aSSiStaNce of trial couNSel
[6-9] on appeal, Jackson argues that he received inef-
fective assistance from his trial attorney. the state argues
that Nebraska’s procedural default rule bars Jackson’s claim.
Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law.10 When reviewing a
question of law, we resolve the question independently of the
lower court’s conclusion.11 a party cannot raise an issue in a
postconviction motion if he or she could have raised that same
issue on direct appeal.12 so a motion for postconviction relief
asserting ineffective assistance of trial counsel is procedurally
barred when (1) the defendant was represented by a different
attorney on direct appeal than at trial, (2) an ineffective assis-
tance of trial counsel claim was not brought on direct appeal,
and (3) the alleged deficiencies in trial counsel’s performance
were known to the defendant or apparent from the record.13
a different attorney, Hart, represented Jackson on his direct
appeal. Jackson did not allege ineffective assistance of counsel
as part of his direct appeal to this court.14 all of Jackson’s alle-
gations regarding trial counsel’s deficient performance would
either have been apparent to Jackson at the time of appeal or
would have been apparent from the record. as such, Jackson is
8 see State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
9 see, Miner, supra note 6; Gales, supra note 8.
10 see State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
11 see id.
12 see id. (citing State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004), and
State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003)).
13 see id. (citing State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002);
State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000); and State v. Williams,
259 Neb. 234, 609 N.W.2d 313 (2000)).
14 see Jackson, supra note 1.
state v. JaCksoN 	441
Cite as 275 Neb. 434

442 	275 Nebraska reports
prohibited from claiming that he received ineffective assistance
of trial counsel in his postconviction motion under the proce-
dural default rule.
2. alleged iNeffective aSSiStaNce of direct appeal couNSel
Jackson argues that he received ineffective assistance from
Hart, his appellate counsel. He claims Hart failed to argue
that his trial attorney, poepsel, provided ineffective assistance.
Jackson also argues that Hart was ineffective because of a close
personal relationship with poepsel. Jackson claims that this
relationship presented a conflict of interest and kept Hart from
arguing that poepsel was ineffective at trial.
(a) alleged Conflict of Interest
[10-12] a conflict of interest which adversely affects a law-
yer’s performance violates the client’s sixth amendment right
to effective assistance of counsel.15 In cases of such a conflict,
there is no need to show that the conflict resulted in actual
prejudice to the defendant, showing an actual conflict existed is
sufficient.16 ordinarily, such a conflict arises when an attorney
is representing multiple defendants.17 this court, however, has
previously defined “actual conflict” broadly. the term therefore
encompasses any situation in which a defense attorney faces
divided loyalties such that regard for one duty tends to lead to
disregard of another.18
the district court found no conflict of interest. It specifi-
cally found that Jackson was not credible in testifying that Hart
adjusted his appeal strategy based on his alleged relationship
with poepsel. the court determined that no friendship or per-
sonal relationship existed between the two attorneys. Jackson
fails to point to evidence which might show that poepsel and
Hart had a personal relationship. We will not disturb the district
15 see Mickens v. Taylor, 535 U.s. 162, 122 s. Ct. 1237, 152 L. ed. 2d 291
(2002).
16 State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003).
17 see, e.g., McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004).
18 State v. Turner, 218 Neb. 125, 354 N.W.2d 617 (1984).

court’s conclusions unless they are clearly erroneous.19 Jackson
failed to show that the district court erred in concluding that
poepsel and Hart had no personal relationship.
(b) Failure to argue Ineffective assistance of
trial Counsel on Direct appeal
Jackson next argues that he received ineffective assistance
of counsel on direct appeal because Hart failed to assign and
argue that Jackson received ineffective assistance of counsel
at trial. because Jackson’s postconviction motion was his first
opportunity to raise this claim, it is not procedurally barred.20
[13-16] We analyze Jackson’s claim that he received inef-
fective assistance of appellate counsel in violation of the sixth
amendment under the two-prong test set forth in Strickland
v. Washington.21 Under Strickland, Jackson has the burden to
show that (1) counsel performed deficiently—that is, coun-
sel did not perform at least as well as a criminal lawyer with
ordinary training and skill in the area—and (2) this deficient
performance actually prejudiced him in making his defense.22
the prejudice prong requires that Jackson show a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding in question would have been different.23
a reasonable probability is a probability sufficient to undermine
confidence in the outcome.24 Notably, we can assess the prongs
in either order.25
[17,18] When analyzing a claim of ineffective assistance of
appellate counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that actually
prejudiced the defendant. that is, courts begin by assessing
19 Mata, supra note 5.
20 see Marshall, supra note 10.
21 Strickland, supra note 7.
22 see State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006) (construing
Strickland, supra note 7).
23 see Al-Zubaidy, supra note 13.
24 Strickland, supra note 7.
25 see State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
state v. JaCksoN 	443
Cite as 275 Neb. 434

444 	275 Nebraska reports
the strength of the claim appellate counsel failed to raise.26
Counsel’s failure to raise an issue on appeal could only be
ineffective assistance if there is a reasonable probability that
inclusion of the issue would have changed the result of the
appeal.27 When, as here, the case presents layered ineffective-
ness claims, we determine the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel
was ineffective under the Strickland test.28 If trial counsel was
not, then the defendant suffered no prejudice when appel-
late counsel failed to bring an ineffective assistance of trial
counsel claim.
[19] If trial counsel was ineffective, then the defendant suf-
fered prejudice when appellate counsel failed to bring such a
claim. We must then consider whether the appellate counsel’s
failure to bring the claim qualifies as a deficient performance
under Strickland. In other words, whether the claim’s merit
was so compelling that appellate counsel’s failure to raise it
amounted to ineffective assistance of appellate counsel.29 If it
was, then the defendant suffered ineffective assistance of appel-
late counsel. If it was not, then the defendant was not denied
effective appellate counsel.
[20-22] thus, although Jackson’s claim that he received
ineffective assistance of trial counsel is procedurally barred,
we address the issue to determine whether he received ineffec-
tive assistance of appellate counsel. In assessing trial counsel’s
performance under Strickland’s two-prong test, there is a strong
presumption that poepsel acted reasonably.30 this court has
previously stated that trial counsel is afforded due deference to
formulate trial strategy and tactics.31 as such, when reviewing
26 McFarland, supra note 17.
27 Id.
28 see Williams, supra note 13. see, also, Al-Zubaidy, supra note 13.
29 McFarland, supra note 17.
30 see Al-Zubaidy, supra note 13.
31 see id. (citing State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994)).

an ineffective assistance of counsel claim, we will not second-
guess reasonable strategic decisions made by counsel.32
(i) Trial Counsel Was Not Ineffective for
Failing to Present Miller’s Testimony
Jackson argues that poepsel was ineffective for failing to
investigate and present evidence by Jackson’s former girlfriend,
Miller. Jackson claims that he told poepsel that Miller would
provide an alibi. Miller would testify that Jackson was at
Miller’s home around the time the shooting occurred. Moreover,
Jackson claims that had poepsel inquired, Miller would have
testified that Jackson did not have blood on his clothing.
regarding the alibi theory, Miller testified for the postcon-
viction hearing that Jackson came to her residence around
9 o’clock on the night of the shootings. she stated that he stayed
anywhere from 45 to 90 minutes. but other evidence under-
mines Miller’s alibi testimony.
the evidence shows the shooting was reported to the police
dispatcher around 8:33 p.m. and Jackson appeared at Miller’s
residence around 9 or 9:15 p.m. Miller also testified that
Jackson was wearing the same clothes—tan jacket, tan shirt,
jeans, and a knit hat—that she had seen him wearing hours
before. However, the distance between the location where
the shooting occurred and Miller’s house is about 1.8 miles.
obviously, Jackson would have had ample time to travel from
the scene of the shooting to Miller’s house in the 30-plus min-
utes that elapsed between the shooting and Jackson’s arrival at
Miller’s home. thus, Miller’s testimony that Jackson arrived at
her residence around 9 p.m. would not have provided Jackson
with an alibi.
Jackson also claims that poepsel was ineffective for failing
to elicit testimony from Miller whether she observed blood on
Jackson’s clothing that night. In a deposition taken after the
trial, Miller stated that she did not see any blood on Jackson’s
clothing. poepsel conceded that he did not ask Miller about this
when preparing for trial. but the stain consisted of a few light
smudges near the coat’s bottom edge, toward the back. Miller’s
32 see id.
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446 	275 Nebraska reports
testimony that she did not see blood on Jackson would not have
shown that it was not there. she could have simply failed to
notice the stain or failed to recognize that the stain was blood.
she specifically testified that she would not have been looking
at the back of his coat and did not know if there even had been
an opportunity for her to see it. so Miller’s testimony would
not have conflicted with DNa evidence linking the victim’s
blood to Jackson’s coat. We conclude that Jackson has failed to
show a reasonable probability that eliciting Miller’s testimony
would have changed the outcome. thus, poepsel’s failure to
present Miller’s testimony did not prejudice Jackson.
(ii) Trial Counsel Was Not Ineffective for Failing
to Present Welch-Brown’s Testimony
Jackson argues that poepsel was ineffective for failing to
present potentially exculpatory testimony from Welch-brown.
Welch-brown is the unwed mother of children born to Jackson’s
brother. Jackson claims that Welch-brown would also have
provided an alibi. Welch-brown, who lived at the Jackson resi-
dence, told police that she briefly saw Jackson there at about
9 o’clock on the evening of the shooting.
the Jackson residence is one-half mile southeast of where
the shooting occurred. obviously, Jackson would have had
time to cover that distance in the approximate one-half hour
between the shooting and when Welch-brown saw Jackson.
Welch-brown’s testimony leaves Jackson with a loose-fitting
alibi. He ignores that Welch-brown’s testimony places him a
few blocks from the murder scene with 30 to 45 minutes unac-
counted for. so, Miller and Welch-brown’s testimony does
nothing to refute the possibility that Jackson could have traveled
the short distance to his home, stayed there briefly, then traveled
the 1.65 miles to Miller’s residence. poepsel’s failure to present
Welch-brown’s testimony did not prejudice Jackson.
(iii) Trial Counsel Was Not Ineffective for
Failing to Undermine Iler’s Testimony
Jackson argues that poepsel was ineffective for failing to
focus the jury’s attention on Iler. He contends poepsel should
have emphasized that Iler (1) testified the shooter wielded
a gun in his left hand even though Jackson is right handed,

(2) initially told police that the shooter wore lime-green pants,
and (3) could not identify Jackson as the shooter when shown a
photographic lineup.
poepsel concedes that he did not ask Jackson whether he
was right handed or present such evidence to the jury. the
question is whether poepsel’s failure to do so prejudiced
Jackson’s defense.
as poepsel stated at his deposition, he did not believe Iler’s
testimony was critical because the state had DNa evidence
linking the victim’s blood to the clothing recovered from a
vehicle used by Jackson. Miller testified that she saw Jackson
wearing the same jacket within one-half hour of the shootings.
Finally, one of the victims, brewer, testified that Jackson shot
thornton from the back seat of the vehicle she was riding in
and then chased her down the street. In light of such rock-
hard evidence, it is unlikely that Iler’s belief that the shooter
was left handed would have impressed the jury. poepsel’s
failure to specifically undermine Iler’s testimony did not preju-
dice Jackson.
(iv) Trial Counsel Was Not Ineffective for
Failing to Object to .38-Caliber Bullets
Jackson argues that poepsel was ineffective in allowing the
state to introduce two .38-caliber bullets and a gun case that
police found while searching Jackson’s bedroom. poepsel did
file a pretrial motion seeking to suppress the items, ostensibly
because they were seized illegally. the trial court denied the
motion. poepsel renewed this motion at trial, which the court
overruled. Jackson now argues that poepsel also should have
objected to the evidence on relevancy grounds. specifically,
Jackson argues that the police reports show that the .38-caliber
bullets recovered from Jackson’s house do not match the bullet
fragments found at the scene.
the police reports show that officers compared bullet frag-
ments test-fired from a .44-caliber handgun with the bullet
fragments recovered from the crime scene. the record does not
reflect why this test was performed. but the police report was
inconclusive as to whether the .44-caliber ammunition matched
the bullet fragments at the scene. Inconclusive means that the
state v. JaCksoN 	447
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448 	275 Nebraska reports
police could not conclude the killer used a .44-caliber handgun
in the shootings of thornton and brewer.
obviously, an inconclusive comparison between the frag-
ments recovered from the test-fired .44-caliber bullets and the
fragments at the scene does nothing to disturb the inference
that Jackson used a .38-caliber gun to commit the crime. only
a conclusive match would have supported Jackson’s claim that
the .38-caliber bullets were irrelevant. as such, in contrast to
Jackson’s claims, there is no inherent inconsistency in admit-
ting the .38-caliber bullets found in Jackson’s home. because
we conclude poepsel was not ineffective, Hart was not ineffec-
tive for failing to raise the above issues.
3. proSecutioN’S alleged failure to diScloSe
poteNtially exculpatory evideNce
Jackson next argues that he is entitled to a new trial because
the prosecution failed to disclose potentially exculpatory evi-
dence. specifically, Jackson points to four police reports in
which several members of a drug conspiracy indicated that
Donald Hughes, the conspiracy’s ringleader, wanted thornton
killed. thornton apparently owed a large debt to Hughes, and
as a result, Hughes ordered thornton’s murder.
In the report, andrew adams, an inmate at the Douglas
County Correctional Center, overheard a telephone conversa-
tion between Hughes and an individual named “Jason,” which
is thornton’s first name. an argument ensued during which
Hughes demanded repayment of money and threatened “Jason.”
adams stated that “Jason” hung up on Hughes. Hughes then
retrieved a telephone number from his jail cell and placed a call
to an individual identified as “Mike,” a derivative of Jackson’s
first name. adams overheard Hughes direct “Mike” to “‘go
ahead and take care of that business.’” after getting off the
telephone, Hughes allegedly explained to adams that he had
fronted thornton cocaine which thornton had refused to pay
for. thornton was shot and killed shortly thereafter. Days later,
Hughes and adams were watching a news report about the
shooting death of thornton, after which Hughes told adams,
“‘I told you that’s how I take care of business, I told you he
would be buried with it.’” Jackson argues that the prosecution’s

failure to disclose these reports violated his right to exculpa-
tory evidence under the Due process Clause and Nebraska
statutory law.
(a) Due process analysis
[23-25] Under Brady v. Maryland,33 a prosecutor who fails to
turn over evidence “favorable to an accused upon request vio-
lates due process where the evidence is material . . . to guilt.”
the Court expanded this rule in United States v. Bagley.34 Under
Bagley, prosecutors have a duty to present material exculpatory
evidence even if defense counsel never requests the evidence.35
Favorable evidence is material if there is a reasonable prob-
ability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.36 a reason-
able probability of a different result is shown when the state’s
evidentiary suppression undermines confidence in the outcome
of the trial.37 this standard is identical to the prejudice prong of
the Strickland test for ineffective assistance of counsel.38
poepsel testified that he did not see the reports before trial.
the question is whether the state’s failure to supply poepsel
with the four police reports violated Jackson’s due process
rights. the reports contain statements indicating that Jackson
was one of several individuals who bought and sold drugs
from a kingpin named “Hughes.” they indicate that Hughes
called a man named “Mike” and ordered him to “‘take care of
that business,’” referring to thornton, and that thornton was
shot and killed a day later. the only other individual named
“Michael” in Hughes’ circle of drug dealers was incarcerated
33 Brady v. Maryland, 373 U.s. 83, 87, 83 s. Ct. 1194, 10 L. ed. 2d 215
(1963).
34 United States v. Bagley, 473 U.s. 667, 105 s. Ct. 3375, 87 L. ed. 2d 481
(1985).
35 see, State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 (2006) (citing Bagley,
supra note 34).
36 see id.
37 Id.
38 see supra note 24 and accompanying text.
state v. JaCksoN 	449
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450 	275 Nebraska reports
in the Douglas County Correctional Center along with Hughes
when the shootings occurred.
although Jackson claims that these reports open up the
possibility that another individual named “Mike” was hired to
kill thornton, he ignores that the reports strongly suggest that
Hughes hired Jackson to kill thornton. as such, the reports
not only fail to exculpate him, they provide the state with
a motive.
beyond the reports, Jackson repeatedly refers to the pos-
sibility that a search of Hughes’ jail cell may have revealed a
telephone number to other individuals, any of whom may have
been the individual Hughes ordered to kill thornton. such evi-
dence would have been more likely to be material under Bagley
than the police reports themselves. but there is no evidence that
the police found any telephone numbers when they searched
Hughes’ cell. the police report shows that police conducted a
search of Hughes’ cell; however, there is no indication that they
found any useful information.
(b) statutory analysis
[26] Jackson also claims that the prosecution’s failure to
disclose the police reports violated his right to exculpatory
evidence under Nebraska statutory law. In State v. Castor,39 we
held that Nebraska’s disclosure statute40 is more exacting than
federal due process requirements. In particular, we held that
whether a prosecutor’s failure to disclose such evidence
results in prejudice to the accused “depends on whether
the information sought is material to the preparation
of the defense, meaning that there is a strong indica-
tion that such information will play an important role in
uncovering admissible evidence, aiding preparation of
witnesses, corroborating testimony, or assisting impeach-
ment or rebuttal.”41
39 State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
40 Neb. rev. stat. § 29-1912 (reissue 1995).
41 Castor, supra note 39, 257 Neb. at 585, 599 N.W.2d at 211 (emphasis omit-
ted) (quoting State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997)).

the standard under § 29-1912 for exculpatory evidence is
slightly different from the due process standard announced in
Bagley. both standards require a showing that the nondisclosure
prejudiced the defendant by preventing him or her from acquir-
ing material evidence. Nebraska law, however, defines material-
ity more broadly to apply to evidence which strongly indicates
it would play an important role in preparing a defense.42 Brady
did not focus on the defendant’s ability to prepare for trial,
because Brady was not a rule for discovery.43
It is plausible that having the police reports at trial might
have prompted Jackson to request production of any telephone
numbers or other evidence the police obtained from their search
of Hughes’ jail cell. If true, then arguably, the police reports
would have played an important role in uncovering admissible
evidence. Yet, Jackson has not shown that the police recovered
any such evidence from Hughes’ cell. so while disclosure of
the police reports may have piqued Jackson’s interest in any
evidence found in Hughes’ cell, at present, the record fails to
show that officers did, in fact, find anything useful to Jackson’s
case. so Jackson has failed to carry his burden to show that the
state withheld any material exculpatory evidence.
4. alleged erroNeouS ruliNgS by trial court
related to Jackson’s claim of prosecutorial misconduct is
Jackson’s postconviction request that the district court compel
the state to produce (1) evidence the police might have found
in the search of Hughes’ jail cell and (2) records of Hughes’
telephone calls and visitors while he was in the Douglas
County Correctional Center. Jackson believes that this informa-
tion may uncover evidence that Hughes called or was visited by
the individual whom he hired to kill thornton. If true, Jackson
believes that such information might strengthen his claim of
prosecutorial misconduct and ultimately lead to a new trial.
[27] the state objected to Jackson’s request on relevancy
grounds, and the court overruled Jackson’s motion. the trial
court has broad discretion in granting discovery requests and
42 see State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998)
43 see State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
state v. JaCksoN 	451
Cite as 275 Neb. 434

452 	275 Nebraska reports
errs only when it abuses its discretion.44 Whether the court
erred in denying Jackson’s discovery request presents a more
difficult issue than the propriety of the court’s refusal to grant
Jackson’s request for a new trial.
[28,29] We believe the information Jackson sought to dis-
cover is relevant. We stated in State v. Oliva45 that evidence
is relevant if it tends in any degree to alter the probability of
a material fact.46 In other words, relevancy requires only that
“the degree of probativeness be something more than noth-
ing.”47 evidence that Hughes may have been in contact with
other individuals before thornton was shot directly relates to
the identity of the person he apparently hired to kill thornton.
obviously, this is a material fact. evidence that Hughes con-
tacted other individuals makes it slightly more probable that
one of those individuals was the shooter. More important, such
evidence may well lead to other, more probative evidence. as
such, this evidence is relevant.
Nevertheless, a question exists as to whether Jackson can
request this evidence. In State v. Thomas,48 we questioned
whether a defendant could request discovery in a postconviction
motion. We stated that we knew of no precedent that permits a
defendant, in a postconviction proceeding, to request additional
discovery which would facilitate making that same postconvic-
tion claim.49 this suggests that the Nebraska postconviction act
merely gives a defendant the right to present evidence he already
possesses.50 If true, then Jackson’s requests would be barred.
but a procedural rule, which prevented prisoners from seek-
ing any discovery at the postconviction stage, would make
Nebraska unique among american jurisdictions. Numerous
jurisdictions allow discovery requests at the postconviction
44 see State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990).
45 State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988).
46 see id.
47 see id. at 189, 422 N.W.2d at 55.
48 Thomas, supra note 44.
49 Id.
50 Id.

stage so long as the request concerns relevant evidence.51 other
jurisdictions allow postconviction discovery more or less at the
trial court’s discretion.52 a number of courts are more exacting
and permit prisoners to seek discovery at the postconviction
stage on a showing of good cause.53 Montana and the federal
government, by statute and rule, respectively, also require
a showing of good cause for discovery at the postconvic-
tion stage.54
[30,31] the Nebraska postconviction act looks unfavorably
on any attempts to rehash issues at the postconviction stage
which were—or could have been—raised and disposed of at
trial or on direct appeal.55 thus, prisoners cannot seek discov-
ery at the postconviction stage if the requested evidence could
have been obtained at trial. but when a postconviction discov-
ery request is for evidence that the defendant would not have
known to request until after the trial, the postconviction stage is
the prisoner’s first opportunity to make such a request.
such a circumstance could exist when a prosecutor with-
held evidence before trial that, although not exculpatory on its
own, might have led to the defendant’s discovery of exculpa-
tory evidence. perhaps there should be a limited exception to
51 see, e.g., DeJesus v. State, 897 p.2d 608 (alaska app. 1995); People v.
Rodriguez, 914 p.2d 230 (Colo. 1996); Gibson v. U.S., 566 a.2d 473 (D.C.
1989); State v. Ferguson, 20 s.W.3d 485 (Mo. 2000); State v. Jensen, 333
N.W.2d 686 (N.D. 1983); State v. Ziebart, 268 Wis. 2d 468, 673 N.W.2d 369
(Wis. app. 2003).
52 see, e.g., Marshall v. State, No. sC05-2379, 2007 WL 4258618 (Fla. Dec.
6, 2007); Raudebaugh v. State, 135 Idaho 602, 21 p.3d 924 (2001); Varney v.
State, 475 N.W.2d 646 (Iowa app. 1991); Com. v. Daniels, 445 Mass. 392,
837 N.e.2d 683 (2005) (construing Mass. r. Crim. p. 30(c) (2006)).
53 see, e.g., Ex parte Land, 775 so. 2d 847 (ala. 2000); Dawson v. State, 673
a.2d 1186 (Del. 1996); Com. v. Carson, 590 pa. 501, 913 a.2d 220 (2006);
Personal Restraint of Gentry, 137 Wash. 2d 378, 972 p.2d 1250 (1999).
54 see, Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001); Mont. Code ann.
§ 46-21-201 (2007).
55 see, e.g., State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v.
Pratt, 224 Neb. 507, 398 N.W.2d 721 (1987); State v. Bean, 224 Neb. 278,
398 N.W.2d 104 (1986).
state v. JaCksoN 	453
Cite as 275 Neb. 434

454 	275 Nebraska reports
Thomas56 for discovery requests concerning evidence which the
prosecution withheld from the defendant at trial when there is
a reasonable possibility that the requested evidence, if it exists,
could have resulted in a different outcome at trial.
Nevertheless, the district court properly overruled Jackson’s
discovery request even assuming such an exception to Thomas.
the best that Jackson could hope for with his discovery request
is evidence that Hughes had information for a different “Mike”
who was known to do contract killings for Hughes. but even
in this best-case scenario, such evidence would not be able
to overcome the direct proof—DNa evidence and eyewitness
testimony—linking Jackson to these crimes. as such, Jackson’s
prosecutorial misconduct claim would not have undermined
confidence in the outcome even if he obtained the evidence he
sought from the prosecution. therefore, while we might allow
an exception to Thomas in the future, this is not the case.
V. CoNCLUsIoN
Jackson’s claim that he received ineffective assistance of
trial counsel is procedurally barred because he failed to raise
that claim on direct appeal. Moreover, it appears that Jackson
was not prejudiced by any of poepsel’s allegedly deficient
actions at the trial stage. this forecloses the possibility that
Hart, Jackson’s appellate counsel, was ineffective for failing
to bring an ineffective assistance of trial counsel claim on
direct appeal.
Jackson’s claim that his defense was prejudiced by the
prosecution’s failure to disclose several police reports is also
meritless. Jackson has failed to provide any support for his
belief that the prosecution had material evidence which it with-
held from him. He also failed to show that having those police
reports at the trial stage would have led to other material excul-
patory evidence.
there is no merit to Jackson’s claim that the district court
abused its discretion when it denied Jackson’s request for any
evidence the police may have recovered regarding Hughes.
While this information is relevant to Jackson’s claim that
56 Thomas, supra note 44.

he was the victim of prosecutorial misconduct, the result of
Jackson’s trial would not change even if Jackson was able to
obtain and present the evidence he seeks from the prosecution.
therefore, the request was properly denied.
Finally, we have considered Jackson’s other assignments of
error and arguments and conclude that none of those issues
have sufficient merit to warrant further discussion.
affirMed .
heavicaN, C.J., not participating.
dorothy caguioa , iNdividually aNd aS S pecial adMiNiStrator
of the eState of N icoSio caguioa , deceaSed , aNd aS guardiaN
of J ade caguioa , a MiNor , appellaNt , v . thoMaS fellMaN
aNd M artiN M eyerS, doiNg buSiNeSS aS fellMaN
M eyerS boat veNtureS, appelleeS.
747 N.W.2d 623
Filed april 18, 2008. 	No. s-06-1055.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
2. Trial: Evidence: Appeal and Error. In determining the admissibility of evidence,
the exercise of judicial discretion is implicit in determinations of relevancy and
admissibility, and the trial court’s decision will not be reversed absent an abuse
of discretion.
3. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
4. Negligence: Words and Phrases. ordinary negligence is defined as the doing of
something that a reasonably careful person would not do under similar circum-
stances or the failing to do something that a reasonably careful person would do
under similar circumstances.
5. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, a plaintiff must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proximately caused by the
failure to discharge that duty.
6. Rules of Evidence: Expert Witnesses. Four preliminary questions must be
answered in order to determine whether an expert’s testimony is admissible:
(1) whether the witness qualifies as an expert pursuant to Neb. evid. r. 702,
CaGUIoa v. FeLLMaN 	455
Cite as 275 Neb. 455