State v. Nolan

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NOLAN
Cite as 322 Neb. 525
State of Nebraska, appellee, v.
Joshua W. Nolan, appellant.
___ N.W.3d ___
Filed October 9, 2026. 	No. S-25-134.
1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary hearing on a motion for postconviction relief, the trial judge,
as the trier of fact, resolves conflicts in the evidence and questions of
fact. An appellate court upholds the trial court’s findings unless they are
clearly erroneous.
2. Judgments: Appeal and Error. When reviewing a question of law,
an appellate court reaches a conclusion independent of the lower
court’s ruling.
3. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact.
4. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
To establish a right to postconviction relief based on a claim of inef-
fective counsel, the defendant has the burden to show that counsel’s
performance was deficient; that is, counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal law. The
defendant must also show that counsel’s deficient performance preju-
diced the defense in his or her case.
6. Effectiveness of Counsel: Proof. In a claim of ineffective assistance
of counsel, a court may examine performance and prejudice in any
order and need not examine both prongs if a defendant fails to demon-
strate either.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:31 AM CDT

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Nebraska Supreme Court Advance Sheets
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STATE v. NOLAN
Cite as 322 Neb. 525
7. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different.
8. Effectiveness of Counsel: Appeal and Error. In determining whether
there is a reasonable probability that any deficient performance of trial
counsel would have resulted in a different outcome in the proceeding,
an appellate court may properly consider the strength of the admissible
evidence relating to the controverted issues in the case.
9. Effectiveness of Counsel: Trial: Appeal and Error. When review-
ing claims of alleged ineffective assistance of counsel, trial counsel is
afforded due deference to formulate trial strategy and tactics.
10. Effectiveness of Counsel: Evidence. In making the prejudice determi-
nation under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury.
11. Effectiveness of Counsel. Counsel’s failure to raise novel legal theories
or arguments or to make novel constitutional challenges in order to
bring a change in existing law does not constitute deficient performance.
12. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
of ineffective assistance of appellate counsel which could not have been
raised on direct appeal may be raised on postconviction review.
13. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel failed to bring a claim on appeal
that actually prejudiced the defendant. That is, courts begin by assessing
the strength of the claim appellate counsel failed to raise.
14. ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal.
15. ____: ____. 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 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), test. If trial counsel was not ineffective, then the defend-
ant suffered no prejudice when appellate counsel failed to bring an inef-
fective assistance of trial counsel claim.
16. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
17. Trial: Attorneys at Law: Effectiveness of Counsel: Witnesses. The
decision to interview witnesses must be evaluated in light of whatever
trial strategy reasonably competent counsel devised in the context of the

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Nebraska Supreme Court Advance Sheets
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STATE v. NOLAN
Cite as 322 Neb. 525
particular case. Counsel need not interview every possible witness to
have performed proficiently.
18. Trial: Attorneys at Law: Effectiveness of Counsel. Defense counsel’s
strategic choices made after a less than complete investigation are rea-
sonable under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), to the extent that reasonable professional judg-
ments support the limitations on investigation.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Michael J. Wilson, of Berry Law, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Funke, C.J., Cassel, Stacy, Papik, and Vaughn, JJ., and
Hall and Smith, District Judges.
Vaughn, J.
I. INTRODUCTION
Joshua W. Nolan appeals from an order of the district court
for Douglas County, Nebraska, denying his motion for post-
conviction relief following an evidentiary hearing. Nolan chal-
lenges the denial of two of his ineffective assistance of counsel
claims. For the reasons set forth herein, we affirm.
II. BACKGROUND
1. District Court Proceedings
The events underlying Nolan’s convictions and sentences
involve the shooting death of Justin Gaines. Our opinion in
Nolan’s direct appeal sets forth the relevant facts as follows:
The events leading up to Gaines’ death began on the
morning of September 19, 2009, the day of the shooting.
Joshua Kercheval testified that at around 11:30 a.m. that
day, [Trevelle J.] Taylor and Nolan had shown up at his
house and that Kercheval drove Taylor and Nolan around
Omaha. . . . But as they approached the intersection of

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NOLAN
Cite as 322 Neb. 525
45th and Vernon Streets, Taylor told Kercheval to stop
the car and Nolan and Taylor both got out. At that point,
Kercheval parked the car and was sitting in the car texting
on his telephone when he heard a few gunshots.
Meanwhile, at around 1 p.m., Gaines had driven
past a home near 45th Street and Curtis Avenue and
had seen Catrice Bryson, a close family friend, in the
driveway. Bryson was at the house visiting a friend and
her baby, but had stepped outside to smoke a cigarette.
Gaines pulled into the driveway, parked right behind
Bryson’s car, and greeted Bryson with a hug. Bryson
and Gaines began talking; Gaines sat back in his car, on
the driver’s side, one foot in, one foot out, with the car
door open. . . . Toward the end of their conversation,
Bryson went to get a pen from her car to give Gaines her
telephone number.
When 	Bryson 	turned 	back 	around, 	she 	saw 	two
individuals with guns behind Gaines’ car and she heard
shooting. The two shooters were on each side of Gaines’
car, angled toward each other. Bryson described the
shooter on the passenger’s side of Gaines’ car as a black
male in his early twenties with a beard and goatee and
shoulder-length hair in braids, wearing a “do-rag.” Bryson
identified the shooter on the passenger’s side of Gaines’
car as Nolan.
Gaines, while still sitting in the driver’s-side seat of
his car, was shot in the back. Once Gaines had been hit,
the shooters made their escape, each fleeing in opposite
directions on Curtis Avenue. At that point, Bryson began
screaming for help. Several people responded, and the
police arrived quickly thereafter. Gaines was transported
to a nearby hospital, but never regained consciousness
and was pronounced dead.
Several eyewitnesses to the aftermath of the shooting
testified at trial. Heather Riesselman, at the time of the
shooting, lived close to the house where the shooting

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NOLAN
Cite as 322 Neb. 525
took place. On the day of the shooting, at approximately
1:40 p.m., Riesselman was outside on her porch with her
daughter. At that time, Riesselman saw a young black
man “jogging down the street.” Riesselman described
him as being roughly 5 feet 10 inches tall, medium build,
medium complexion, with his hair in braids and with a
long, thin goatee. Riesselman identified the man, in court,
as Nolan.
Carrie Schlabs was Riesselman’s next-door neighbor.
At approximately 1:30 p.m. on the day of the shooting,
Schlabs was at home with her husband and two friends
when they heard gunshots and dove to the floor. Once
the gunfire ceased, Schlabs heard screaming, so she got
to her feet and ran out to her front porch. Once outside,
Schlabs started running toward the screams on Curtis
Avenue, to the south, and she saw a young man running
to the north. Schlabs saw the young man holding his left
side, which made her think that he had been shot. Schlabs
ran up to him, getting to within a foot of him, and asked
if he needed help. In response, the individual just smiled
at Schlabs. At that point, Schlabs continued on toward
the screams. While Schlabs could not remember any
specific details of the young man’s physical appearance or
clothing, she remembered his face. Schlabs identified the
man, in court, as Nolan.
Kercheval testified that after he had heard the gunshots,
he had started the car, getting ready to drive off. But then
Kercheval saw Nolan approaching the car and waited
until Nolan jumped into the back passenger seat. Once
Nolan was in the car, he told Kercheval to “Drive. Go.”
State v. Nolan, 283 Neb. 50, 53-55, 807 N.W.2d 520, 529-30
(2012).
At the time of Nolan’s arrest, he had a .44-caliber gun in
his waistband. See id. While a .44-caliber gun was used to
kill Gaines, the gun found on Nolan could not be definitively
labeled as the murder weapon. See id.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NOLAN
Cite as 322 Neb. 525
Prior to trial, Nolan filed a motion to suppress eyewitness
identifications. See id. After the hearing, which addressed
the identifications made by Heather Riesselman and Carrie
Schlabs, Nolan’s motion to suppress was denied. After a
jury trial, Nolan was convicted of first degree murder and
use of a deadly weapon to commit a felony, and he was sen-
tenced. Nolan appealed, and new counsel was appointed for
the appeal.
2. Direct Appeal
On direct appeal, one of the errors Nolan assigned was
trial counsel’s failure to consult or call a fingerprint expert
or identification expert to rebut the State’s testimony. See id.
This court found the record insufficient to review this claim on
direct appeal. See id. Nolan filed a petition for writ of certio-
rari, and it was denied. See Nolan v. Nebraska, 568 U.S. 844,
133 S. Ct. 158, 184 L. Ed. 2d 78 (2012).
3. First Postconviction Proceeding
Nolan filed a motion for postconviction relief that was
denied without an evidentiary hearing, and Nolan appealed.
See State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015). On
his postconviction appeal, this court determined that the district
court erred when it denied Nolan relief without an evidentiary
hearing on three of his claims and remanded the cause for an
evidentiary hearing on the three claims. See id.
On remand, Nolan withdrew one of his three claims. The
two remaining claims were addressed at an evidentiary hearing.
Nolan’s first remanded claim asserted that trial counsel was
ineffective for failing to consult with and call an eyewitness
identification expert. See id. Nolan’s second remanded claim
asserted that trial counsel was ineffective for failing to call
Gwendolyn Anderson to testify on Nolan’s behalf. See id. This
claim was a layered claim and, thus, also asserted that appel-
late counsel was deficient for not raising this issue on direct
appeal. See id.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. NOLAN
Cite as 322 Neb. 525
4. Postconviction Proceedings
After Remand
An evidentiary hearing was held on Nolan’s motion for
postconviction relief and motion for supplemental claim. The
district court took judicial notice of the court file, including
the bill of exceptions from the prior proceedings.
Exhibits 500 (the deposition of Anderson), 501 (the deposi-
tion of trial counsel), 502 (the deposition of Brian Bornstein,
Ph.D.), and 503 (Bornstein’s report with cited sources) were
offered at the hearing. Exhibits 500, 501, and 502 were received
with the understanding that the district court would rule on
deposition objections in its order after the parties submitted
written arguments. The district court stated it would “consider
[exhibit] 503 in terms of the objections that the State is raising
in connection with [exhibit] 502 itself, and then will make that
ruling at the — at that time.”
The district court issued a judgment styled as an order deny-
ing Nolan’s postconviction motion (2025 Order). The 2025
Order referred to exhibits 501 and 502’s being received into
evidence, but none of the other exhibits or objections are spe-
cifically referenced or discussed. Nolan appeals.
Additional background facts will be discussed below with
respect to each assignment of error.
III. ASSIGNMENTS OF ERROR
Nolan assigns, restated, that the district court erred in deny-
ing postconviction relief because (1) his trial counsel was inef-
fective for failing to call an eyewitness identification expert
and (2) his appellate counsel was ineffective for failing to
assign on direct appeal that Nolan’s trial counsel failed to suf-
ficiently investigate and present the testimony of Anderson.
IV. STANDARD OF REVIEW
[1,2] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. State v. Newman,
310 Neb. 463, 966 N.W.2d 860 (2021). An appellate court

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Nebraska Supreme Court Advance Sheets
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STATE v. NOLAN
Cite as 322 Neb. 525
upholds the trial court’s findings unless they are clearly erro-
neous. Id. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s
ruling. State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
[3,4] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. Newman, supra.
When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower
court for clear error. Id. With regard to the questions of coun-
sel’s performance or prejudice to the defendant as part of the
two-pronged test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appel-
late court reviews such legal determinations independently of
the lower court’s decision. Newman, supra.
V. ANALYSIS
We first set forth the standards regarding claims of ineffec-
tive assistance of counsel applicable to all such assignments of
error and then separately analyze each of Nolan’s claims.
1. Legal Principles Governing Ineffective
Assistance of Counsel
[5,6] To establish a right to postconviction relief based on
a claim of ineffective counsel, the defendant has the burden to
show that counsel’s performance was deficient; that is, coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. See State v. Benzel, 269 Neb.
1, 689 N.W.2d 852 (2004). The defendant must also show
that counsel’s deficient performance prejudiced the defense
in his or her case. Id. A court may examine performance and
prejudice in any order and need not examine both prongs if
a defendant fails to demonstrate either. State v. Kruger, 320
Neb. 361, 27 N.W.3d 398 (2025).
[7,8] To show prejudice, the defendant must demonstrate
a reasonable probability that, but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. Id. A reasonable probability is a probability sufficient

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STATE v. NOLAN
Cite as 322 Neb. 525
to undermine confidence in the outcome. Id. In determining
whether there is a reasonable probability that any deficient
performance of trial counsel would have resulted in a different
outcome in the proceeding, an appellate court may properly
consider the strength of the admissible evidence relating to the
controverted issues in the case. Id.
[9] When reviewing claims of alleged ineffective assistance
of counsel, trial counsel is afforded due deference to formulate
trial strategy and tactics. Id. There is a strong presumption
that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions. Id. Ultimately, the
Constitution guarantees criminal defendants only a fair trial
and a competent attorney. Id.
[10] In making the prejudice determination under Strickland,
a court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury. See State v.
Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). Some of the
factual findings will have been unaffected by the errors, and
factual findings that were affected will have been affected in
different ways. Id. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Id.
[11] We have held that counsel’s failure to raise novel legal
theories or arguments or to make novel constitutional chal-
lenges in order to bring a change in existing law does not
constitute deficient performance. State v. Kipple, 310 Neb. 654,
968 N.W.2d 613 (2022).
2. Nolan’s Claims
(a) Failure to Call Eyewitness
Identification Expert
(i) Postconviction Allegations
Nolan assigned that trial counsel was ineffective for fail-
ing to call an eyewitness identification expert to testify at the

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STATE v. NOLAN
Cite as 322 Neb. 525
hearing on his motion to suppress in-court identifications and
at trial. Nolan asserts that an eyewitness identification expert
was necessary because the identifications by Riesselman,
Schlabs, and Catrice Bryson suffered from impairing factors
that required expert explanation. Nolan argues that with-
out expert, peer-reviewed scientific research, the jury could
not accurately assess the reliability of the critical eyewit-
ness identification testimony. Nolan also argues that trial
counsel’s cross-examination and arguments did not offer the
same psychological concepts testified to by Bornstein in his
deposition. Nolan argues that the expert testimony would
have explained why the identifications could be incorrect,
inaccurate, or untruthful. Nolan argues that there is a reason-
able likelihood the jury would have acquitted Nolan had trial
counsel called an expert.
(ii) Additional Background
a. Identifications by Riesselman and Schlabs
Four days after the shooting, Riesselman identified Nolan,
after examining a photographic lineup for 10 to 15 minutes, as
the individual she saw running. In addition, Riesselman wrote
on the lineup she was “80% positive” of the identification.
Prior to the suppression hearing, Riesselman attended a
meeting at the prosecutor’s office. Schlabs attended the meet-
ing to support Riesselman. At the meeting, while the photo-
graphic lineup was being passed to Riesselman to confirm
her handwriting, Schlabs saw Nolan’s photograph in the
lineup and recognized him as the “shooter,” stating, “Oh my
God, that’s him. That’s who I ran up to.” Schlabs testified
at the suppression hearing that she did not see the handwrit-
ing on the lineup. Prior to this identification, Schlabs had
not made any statements to law enforcement about having
encountered or witnessed the man, despite law enforcement’s
having been at her house to interview another person about
the incident.

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STATE v. NOLAN
Cite as 322 Neb. 525
At 	the 	suppression 	hearing, 	Riesselman 	and 	Schlabs
both identified Nolan as the individual they saw the day of
the shooting and Riesselman testified she was sure of her
identification.
As to Schlabs, the district court’s order denying the motion
to suppress stated that “[t]here was nothing in the identification
process as it relate[d] to [Schlabs] that [was] unduly or imper-
missibly suggestive or [showed] that a substantial likelihood
of misidentification existed” and that Schlabs subsequently
made an in-court identification, which had the indicia of reli-
ability based on the factors in State v. Faust, 269 Neb. 749,
696 N.W.2d 420 (2005). As to Riesselman’s identification, the
district court stated that “[i]t is possible that [Schlabs’] reac-
tion could have influenced [Riesselman] into the certainty of
identification she expressed at the hearing.” The district court
stated that “even if the [c]ourt were to find that there were
impermissible pretrial suggestions with respect to [Nolan’s]
identity the [c]ourt believe[d] that this taint, if any, was
removed by [Riesselman’s] subsequent in-court identification
of [Nolan].” After applying the Faust factors, coupled with
Riesselman’s 80 percent initial identification, the court found
that her identification had “the indicia of reliability which
would remove any taint that may have been present at the
meeting with [Schlabs].”
As stated above, at trial, Riesselman and Schlabs identified
Nolan as the individual they saw the day of the shooting.
b. Identification by Bryson
Bryson failed to identify Nolan in a photographic lineup 3
days after the shooting, instead identifying a “filler.” She testi-
fied at trial that she had been informed that she had not picked
out Nolan from the lineup. Bryson also testified that after the
lineup, she saw Nolan in a news report about his arrest for
the shooting. As stated above, at trial, Bryson identified Nolan
as one of the shooters.

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STATE v. NOLAN
Cite as 322 Neb. 525
c. Deposition of Trial Counsel Regarding
Eyewitness Identification Expert
At trial counsel’s deposition, trial counsel testified he did
not consult or consider consulting an eyewitness identification
expert. He testified that it was not a trial strategy not to con-
sult or call an eyewitness identification expert but that, at the
time of trial, he was not aware of anyone that had called an
eyewitness identification expert in Douglas County and it was
“[n]ot really something anyone talked about.”
However, he agreed it was fair to say that he was aware
eyewitness identification was becoming something that was
being focused on nationwide. Trial counsel was aware there
was some academic discussion about the existence of experts
in the field of eyewitness identification—specifically, the
reliability of eyewitness identifications under a variety of
circumstances—but testified that he was unaware of an actual
person who had testified about it.
Trial counsel testified that his trial strategy was to attack
the credibility of Riesselman and Schlabs but just “not from
a scientific or psychological angle.” Trial counsel testified he
also attacked the credibility of Bryson.
d. Deposition of Bornstein
At his November 2019 deposition, Bornstein, a professor
emeritus in the department of psychology at the University
of Nebraska, testified he had a roughly 20- to 25-year sub-
specialty focusing on eyewitness memory and identification.
Bornstein specifically recalled testifying to eyewitness iden-
tification issues in two criminal trials and giving deposition
testimony in another case. The first criminal trial was in South
Dakota in the early 2000s. He testified that the deposition
testimony was in an Iowa case “more than ten years ago, prob-
ably.” He also stated that 7 or 8 years prior to his deposition
in this case, he testified about eyewitness identification in the
Douglas County District Court. He further testified there have

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STATE v. NOLAN
Cite as 322 Neb. 525
been many cases where he has reviewed documents and written
reports but was not required to testify.
Bornstein testified that his review of documents related to
this case suggested that several variables could have compro-
mised the reliability of the eyewitnesses in this case. Among
the variable categories were (1) “post-identification feedback,”
(2) “unconscious transference,” (3) “arousal or stress along
with weapon focus,” (4) “cross-race effect,” (5) eyewitnesses’
levels of confidence at identification, (6) fairness of lineup
procedures, and (7) decision processes employed by the eye-
witnesses. Bornstein concluded that to a reasonable degree of
scientific certainty, the “system and estimator variables” dimin-
ished the reliability of the eyewitnesses’ memory in Nolan’s
case. However, he conceded that he did not really know if
those factors did influence the eyewitnesses.
(iii) 2025 Order
After a hearing, the district court denied Nolan’s request
for postconviction relief. In the 2025 Order, the district court
stated that Nolan’s trial counsel was unaware of “any expert
testimony in this area, though there was some growing discus-
sion of the issue of eyewitness testimony nationally at the time
of trial.” The district court went on to state that trial counsel
testified that such testimony did not occur in Douglas County
at the time of trial and that trial counsel was not aware of
such experts being used by prominent local criminal defense
attorneys. The district court stated that Nolan’s trial counsel
utilized other tools, such as cross-examination, to execute
the trial strategy of impeaching the credibility of the eyewit-
nesses. Ultimately, the district court held that it could not
“say that hiring an expert was a necessary tool for counsel to
effectively execute this strategy” and that Nolan’s trial counsel
“adequately raised the issues to the jury.”
The district court also stated:
Even though a newer statute states that such experts are
admissible, older case law indicates that issues around

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STATE v. NOLAN
Cite as 322 Neb. 525
eyewitness testimony are within the realm of laypeople’s
understanding and that these issues are best left for juries
to resolve. Compare Neb. Rev. Stat. § 27-707 (Cum.
Supp. 2020) with State v. George, 264 Neb. 26, 42, 645
N.W.2d 777, 790 (2002).
The district court stated that while trial counsel did not use
psychological terms to attack the eyewitnesses’ credibility, the
record “clearly shows” that trial counsel’s attacks spoke to
the same psychological concepts that Bornstein discussed in
his deposition. The district court stated that “[t]he simple fact
that potential expert testimony could reduce the credibility
of these witnesses does not ipso facto call into question the
jury’s verdict. Even after fully cross-examining these wit-
nesses, a jury resolved their credibility issues in favor of the
State . . . .” Finally, the district court held that Nolan had not
shown that additional impeachment evidence could change the
jury’s verdicts and, as such, could not meet his burden.
(iv) Resolution
Neb. Rev. Stat. § 27-707 (Cum. Supp. 2024), which went
into effect in November 2020, states, “The testimony of an
expert witness regarding eyewitness identification and memory
may be admitted in any criminal or civil proceeding pursuant
to the rules governing admissibility of evidence set forth in the
Nebraska Evidence Rules.”
However, trial in this matter was held in August 2010. Thus,
we must consider the law and circumstances in place at that
time to determine whether Nolan’s trial counsel was deficient
for failing to call an eyewitness identification expert. Three
decisions inform our understanding.
First, in State v. Ammons, 208 Neb. 812, 814-15, 305 N.W.2d
812, 814 (1981), we held that expert testimony on the reliabil-
ity of eyewitness identifications was unnecessary and stated:
The 	general 	rule 	is 	that 	expert 	testimony 	is
admissible only if it will be of assistance to the jury in
its deliberations and relates to an area not within the

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STATE v. NOLAN
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competency of ordinary citizens. If scientific, technical,
or other specialized knowledge will assist the trier of fact
to understand the evidence or determine a fact in issue,
expert testimony may be admissible. . . . The accuracy
or inaccuracy of eyewitness observation is a common
experience of daily life. Such testimony would invade the
province of the jury.
Second, in State v. Sardeson, 231 Neb. 586, 437 N.W.2d
473 (1989), the district court refused to admit the testimony
of an expert that the in-court identification of a witness who
was shown two photographs of one person in two different
arrays was, as a result, really an identification of the photo-
graphs the witness had been shown. On appellate review, this
court stated:
Recently, in State v. Trevino, 230 Neb. 494, 432
N.W.2d 503 (1988), this court reaffirmed the rule of
State v. Ammons, 208 Neb. 812, 305 N.W.2d 812 (1981),
that it is not for an expert to suggest to a jury how
a witness’ testimony shall be weighed or evaluated.
(See, also, State v. Beermann, ante p. 380, 436 N.W.2d
499 (1989), concerning the general impropriety of one
witness’ testifying about the weight to be given another’s
testimony.)
Sardeson, 231 Neb. at 602, 437 N.W.2d at 485. This court went
on to state that not only was the decision not to admit the evi-
dence far from an abuse of discretion, it was “the only correct
ruling possible.” Id.
Third, in State v. George, 264 Neb. 26, 645 N.W.2d 777
(2002), a defendant alleged a layered ineffective assistance of
counsel claim predicated on trial counsel’s failure to request a
specific jury instruction concerning the reliability of eyewit-
ness evidence where the defendant alleged there were problems
with the eyewitness identifications. This court, quoting State v.
Sanders, 235 Neb. 183, 455 N.W.2d 108 (1990), stated:
“[I]t is the jury’s function to determine the credibility of
the eyewitness. [The defendant’s] jury was instructed on

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credibility, the State’s burden of proof, and the substan-
tive elements of the crimes involved. These instructions
allowed the jury to properly evaluate the credibility of
the witnesses’ identification testimony. . . . Therefore,
[the defendant’s] attorney was not deficient in failing to
request such a jury instruction [on eyewitness evidence
reliability].”
George, 264 Neb. at 40-41, 645 N.W.2d at 789. Ultimately this
court held that the assignment was without merit, explaining
that “the record here shows that in both trials, the jury was
instructed on credibility, the State’s burden of proof, and the
substantive elements of the crimes for which [the defendant in
George] was convicted.” Id. at 41, 645 N.W.2d at 789.
In George, the defendant also claimed that the district court
erred in overruling his motion to appoint an expert witness
concerning the reliability of eyewitness identification. Relying
on Ammons, this court ultimately found no merit in the claim.
See George, supra.
This court’s decisions in Ammons, Sardeson, and George
make it clear that prior to the enactment of § 27-707, not only
would the failure to call an eyewitness identification expert not
constitute ineffective assistance of counsel, it would not have
been permissible.
Nolan argues that even if the expert testimony would not
have been admissible at trial, it would have changed the out-
come of the motion to suppress hearing. We find this argu-
ment unpersuasive, given Bornstein’s deposition testimony
where he was asked, “[B]ut you can’t testify, and you don’t
really know if those factors did influence these witnesses do
you?” To which he responded, “I do not.” Thus, we cannot
conclude there is a reasonable probability that any deficient
performance of trial counsel would have resulted in a different
outcome in the proceeding. See State v. Kruger, 320 Neb. 361,
27 N.W.3d 398 (2025).
For these reasons, we agree with the district court’s deter-
mination that trial counsel’s performance did not fall below

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the level required of him and that, even if it did, Nolan was
not prejudiced.
(b) Failure to Investigate and Present
Testimony of Anderson
(i) Postconviction Allegations
Nolan alleges a layered claim that appellate counsel was
ineffective for failing to raise on direct appeal trial counsel’s
failure to sufficiently investigate and present the testimony
of Anderson.
Nolan asserts that Anderson’s description of the individual
she saw running the day of the shooting was inconsistent with
the descriptions given by Riesselman, Schlabs, and Bryson.
Thus, independently interviewing and calling Anderson would
have assisted in attacking the credibility of their identifica-
tions, and Nolan argues that the loss of this testimony was
prejudicial to him. Specifically, Nolan points to Anderson’s
describing seeing an individual wearing a baseball cap, foot-
ball jersey, and jean shorts; Riesselman’s describing seeing
an individual with approximately shoulder-length “cornrow”
braids wearing a long white T-shirt and jean shorts with color-
ful embroidery; and Bryson’s recalling seeing an individual
with braids “with a do-rag on top.”
Nolan acknowledges that trial counsel pointed out in clos-
ing arguments “a couple of the obvious problems” with the
eyewitness identifications, see brief for appellant at 43, such as
Riesselman’s change in certainty, Schlabs’ identification occur-
ring only after the meeting in the prosecutor’s office, Joshua
Kercheval’s inconsistency, and Bryson’s description of a red
basketball 	jersey 	and 	inconsistent 	identification. 	However,
Nolan argues that the loss of Anderson’s testimony cost Nolan
valuable support for his misidentification defense. Further,
Nolan argues that had this assignment been raised on direct
appeal, it would have changed the result of the direct appeal or
preserved the claim for postconviction proceedings.

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(ii) Additional Background
a. Deposition of Trial Counsel
Regarding Anderson
At his November 2019 deposition, trial counsel testified
that he was aware of Anderson, but based on the information
she provided to law enforcement, he made the decision not to
call her as a witness. He testified he did not believe he ever
spoke with Anderson, other than during a conversation about
why she was not being called to testify, in which he informed
her the State would contact her if the State was going to
call her.
Trial counsel testified that Anderson lived on the street one
of the shooters allegedly ran down after the shooting and that
Anderson told law enforcement during her initial interview
that she heard shots and yelling and then looked out her win-
dow to see a “light skinned” black male in his early 20s run-
ning down the street past her house while “holding his pants.”
Trial counsel testified that Anderson described the individual
she saw running as being “about 5 foot 10, skinny, [and]
wearing a football jersey [and] blue jean shorts.”
Trial 	counsel 	testified 	that 	when 	later 	interviewed 	by
a detective, Anderson described the individual as “a light
skinned black male with a football jersey and jean shorts.”
Trial counsel testified that she described the top of the indi-
vidual’s pants as being below the hip and told the detective the
individual “could barely run because his pants were too low.”
According to trial counsel, Anderson described the individual
to the detective as being 5 foot 8 inches or 5 foot 9 inches tall
and “skinny looking but wearing big clothes” with a backward
hat. However, according to trial counsel, Anderson could not
remember the color of the hat and was unable to make an iden-
tification from a photographic lineup.
In describing his reasoning for not calling Anderson as a
witness, trial counsel testified that prior to trial, Bryson’s iden-
tification of Nolan had not occurred, and that both Riesselman

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and Schlabs had described the individual they observed as
wearing loose-fitting jean shorts or jeans; being barely able
to run; and holding onto his waist, waistband, or something
in his waistband. Trial counsel testified that “to some extent
[that is] what Anderson told the police, as well.”
Trial counsel went on to testify that although Anderson
could not identify Nolan and some other aspects of her
description did not fit with Riesselman’s and Schlabs’, he
decided that, strategically speaking, it could “cut both ways”
because some of what Anderson told law enforcement could
be seen as corroborating what Riesselman and Schlabs told
law 	enforcement. 	Trial 	counsel 	testified 	that Anderson’s
description also fit with the State’s theory that Nolan was
running down the street concealing a firearm, making it
difficult for him to run. Trial counsel did not feel that he
needed to call Anderson as part of his trial strategy and testi-
fied that he “was really afraid that it might end up hurting
[the defense].”
b. Deposition of Anderson
At her May 2019 deposition, Anderson testified that the
day of the shooting, she did not hear gunshots; however,
she did look out her door and saw a male running down
“Vernon Street.” She testified she did not see his face, only
“the back of him.” Anderson testified that she couldn’t really
tell how old he was but that he was a “young guy” and “had
on, looked like, jeans that these young kids wear, you know,
down by their waist or butt, somewhere, and then a big shirt.”
She testified that the big shirt went past his buttocks and that
he “[c]ouldn’t hardly run because his pants were down too
low.” She testified that he wore a backward cap, was skinny,
and looked like he might have been about 5 foot 7 inches tall
and that she did not see anything in his hands.
Anderson testified that after he disappeared down the
street, she went outside and saw a man lying in the grass.
Anderson also testified that law enforcement talked to her that

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same day but that she was never shown a photographic lineup
and had no other contact with anyone until she heard from
Nolan’s trial counsel about a month prior to the deposition.
(iii) 2025 Order
In denying postconviction relief, the district court deter-
mined that Anderson’s testimony cuts both ways. It acknowl-
edged that Anderson’s testimony could have helped Nolan
in that it had some contrast to the identifications made by
Riesselman, Schlabs, and Bryson. However, the district court
went on to explain that the State’s theory was that Nolan was
concealing a firearm in his shorts as he fled from the scene.
The district court further stated that Nolan’s trial counsel indi-
cated that the decision not to call Anderson, without interview-
ing her about what she saw and “only relying on the police
reports, was driven by her similar description to the State’s
theory.” The district court reasoned that trial counsel’s deci-
sion was “clearly a decision of trial strategy,” which it found
reasonable and declined to second-guess.
(iv) Resolution
[12] A claim of ineffective assistance of appellate counsel
which could not have been raised on direct appeal may be
raised on postconviction review. State v. Huston, 291 Neb. 708,
868 N.W.2d 766 (2015).
[13,14] 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 actu-
ally prejudiced the defendant. Id. That is, courts begin by
assessing the strength of the claim appellate counsel failed to
raise. Id. Counsel’s failure to raise an issue on appeal could be
ineffective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of
the appeal. Id.
[15] When a case presents layered ineffectiveness claims,
we determine the prejudice prong of appellate counsel’s

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performance by focusing on whether trial counsel was inef-
fective under the Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test. Huston, supra. If
trial counsel was not ineffective, then the defendant suffered
no prejudice when appellate counsel failed to bring an inef-
fective assistance of trial counsel claim. Id. Thus, we must
consider Nolan’s argument that trial counsel was ineffective
for refraining from calling Anderson to testify without inde-
pendently interviewing her.
[16-18] A defense attorney has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. State v. Newman, 310
Neb. 463, 966 N.W.2d 860 (2021). A reasonable strategic
decision to present particular evidence, or not to present par-
ticular evidence, will not, without more, sustain a finding of
ineffective assistance of counsel. Id. The decision to interview
witnesses must be evaluated in light of whatever trial strategy
reasonably competent counsel devised in the context of the
particular case. Id. Counsel need not interview every possible
witness to have performed proficiently. Id. In every case, trial
lawyers could have done something more or something differ-
ent. Id. The issue is only what is constitutionally compelled.
Id. Defense counsel’s strategic choices made after a less than
complete investigation are reasonable under Strickland to the
extent that reasonable professional judgments support the limi-
tations on investigation. See Newman, supra.
The deposition testimony of trial counsel shows that he was
aware of Anderson and that, in his decision not to call her as
a witness, he considered her descriptions to law enforcement
of the individual she saw running. More specifically, trial
counsel considered, and was concerned about, the consisten-
cies in Anderson’s descriptions with the State’s theory of the
case. We agree with the district court’s determination that
trial counsel’s decision not to call Anderson as a witness,
even without speaking to her personally, was a reasonable
decision of trial strategy and that thus, trial counsel was not

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ineffective. As such, Nolan suffered no prejudice when appel-
late counsel failed to bring this ineffective assistance of trial
counsel claim on direct appeal, as it would not have changed
the result. For these reasons, the decision of the district court
is affirmed.
VI. CONCLUSION
For each of the foregoing reasons, the judgment of the dis-
trict court is affirmed.
Affirmed.
Freudenberg and Bergevin, JJ., not participating.