State v. Ely
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/20/2017 08:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ELY
Cite as 295 Neb. 607
State of Nebraska, appellee, v.
Nicholas J. Ely, appellant.
___ N.W.2d ___
Filed January 20, 2017. No. S-16-471.
1. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusion.
3. Affidavits: Appeal and Error. A district court’s denial of in forma
pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) is
reviewed de novo on the record based on the transcript of the hearing or
written statement of the court.
4. Postconviction: Right to Counsel: Appeal and Error. Failure to
appoint counsel in a postconviction proceeding is not error in the
absence of an abuse of discretion.
5. Judges: Recusal: Appeal and Error. A motion to recuse for bias or
partiality is initially entrusted to the discretion of the trial court, and the
trial court’s ruling will be affirmed absent an abuse of that discretion.
6. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
7. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
8. Postconviction: Effectiveness of Counsel: Appeal and Error. When a
defendant was represented both at trial and on direct appeal by the same
counsel, the defendant’s first opportunity to assert ineffective assistance
of counsel is in a motion for postconviction relief.
9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
When a district court denies postconviction relief without conducting
an evidentiary hearing, an appellate court must determine whether the
petitioner has alleged facts that would support a claim of ineffective
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assistance of counsel and, if so, whether the files and records affirma-
tively show that he or she is entitled to no relief.
10. ____: ____: ____: ____. To establish a right to postconviction relief
because of counsel’s ineffective assistance, the defendant has the bur-
den, in accordance with Strickland v. Washington, 466 U.S. 668,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984), to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. Next, the defendant
must show that counsel’s deficient performance prejudiced the defense
in his or her case. To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. A court may address
the two prongs of this test, deficient performance and prejudice, in
either order.
11. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and
Error. Determining whether defense counsel was ineffective in failing
to object to prosecutorial misconduct requires an appellate court to first
determine whether the petitioner has alleged any action or remarks that
constituted prosecutorial misconduct.
12. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that
does not mislead and unduly influence the jury does not consti-
tute misconduct.
13. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw infer-
ences from the evidence in presenting his or her case, and such infer-
ences generally do not amount to prosecutorial misconduct.
14. Jury Instructions. In construing an individual jury instruction, the
instruction should not be judged in artificial isolation but must be
viewed in the context of the overall charge to the jury considered as
a whole.
15. Effectiveness of Counsel: Jury Instructions. Defense counsel is
not ineffective for failing to object to jury instructions that, when
read together and taken as a whole, correctly state the law and are
not misleading.
16. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
17. Attorney and Client: Conflict of Interest: Words and Phrases. The
phrase “conflict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another or where a lawyer’s repre-
sentation of one client is rendered less effective by reason of his or her
representation of another client.
18. 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.
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STATE v. ELY
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19. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the defend
ant. That is, courts begin by assessing the strength of the claim appellate
counsel failed to raise.
20. Constitutional Law: Right to Counsel: Waiver. A criminal defendant
has a constitutional right to waive the assistance of counsel and conduct
his or her own defense under the Sixth Amendment and Neb. Const.
art. I, § 11.
21. ____: ____: ____. In order to waive the constitutional right to counsel,
the waiver must be made knowingly, voluntarily, and intelligently.
22. Right to Counsel: Waiver. A waiver of counsel need not be prudent,
just knowing and intelligent.
23. Rules of Evidence: Presumptions. References to “presumptions” in
Neb. Rev. Stat. § 27-303 (Reissue 2016) necessarily include “inferences.”
24. Constitutional Law: Trial: Witnesses. The right to confrontation is
not unlimited, and only guarantees an opportunity for effective cross-
examination, not examination that is effective in whatever way and to
whatever extent the defense may wish.
25. Trial: Testimony. When the object of the cross-examination is to col-
laterally ascertain the accuracy or credibility of the witness, the scope of
the inquiry is ordinarily subject to the discretion of the trial court.
26. Postconviction: Justiciable Issues: Right to Counsel. When the
defendant’s petition presents a justiciable issue to the district court for
postconviction determination, an indigent defendant is entitled to the
appointment of counsel.
27. Judges: Recusal: Appeal and Error. A motion requesting a judge to
recuse himself or herself on the ground of bias or prejudice is addressed
to the discretion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or prejudice as a
matter of law.
28. Judges: Recusal. A trial judge should recuse himself or herself when
a litigant demonstrates that a reasonable person who knew the circum-
stances of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual bias or
prejudice is shown.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Brian S. Munnelly for appellant.
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STATE v. ELY
Cite as 295 Neb. 607
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
I. INTRODUCTION
Nicholas J. Ely appeals from an order denying his motions
for postconviction relief, appointment of counsel, leave to
proceed in forma pauperis, and recusal of the trial judge. The
district court determined that Ely’s postconviction claims were
procedurally barred. We agree that some were barred. And the
files and records affirmatively show that Ely was entitled to
no relief on many of the other claims. But two claims were
not barred and warranted an evidentiary hearing. This, in turn,
drives our disposition of the other issues on appeal.
II. BACKGROUND
Ely was involved in an attempted robbery with several
other individuals in which the target of the robbery was killed.
Because of his involvement, Ely was ultimately convicted
by a jury of first degree murder (felony murder) and use of
a deadly weapon to commit a felony. He was sentenced to
life in prison on the murder conviction and to a consecutive
sentence of 5 to 5 years’ imprisonment on the use of a deadly
weapon conviction. The circumstances which led to Ely’s
convictions and sentences may be found in our opinion on
direct appeal.1
1. Direct A ppeal
On direct appeal, represented by the same counsel as he was
at trial, Ely assigned that (1) there was insufficient evidence to
sustain the guilty verdicts, (2) the district court erred in sus-
taining the State’s motion in limine and excluding evidence of
1
State v. Ely, 287 Neb. 147,841 N.W.2d 216
(2014).
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STATE v. ELY
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prior illegal conduct by a codefendant, and (3) the district court
erred in giving a “flight” instruction to the jury. We affirmed
his convictions and sentences, modifying only his credit for
time served by applying it to the use of a deadly weapon sen-
tence.2 Ely has since filed a motion and an amended motion
for postconviction relief and now appeals from the denial of
his motions.
2. Postconviction Proceeding
Ely filed his first pro se motion for postconviction relief
and alleged numerous claims of ineffective assistance of trial
counsel, several claims of district court error, and numer-
ous claims of ineffective assistance of appellate counsel. He
stated in his motion for postconviction relief that his counsel
on direct appeal was the same counsel he had at trial. Ely also
filed a motion for appointment of counsel, a motion for leave
to proceed in forma pauperis, and a poverty affidavit in support
of his motions.
While his first motion was pending and before the State
filed a response, Ely filed a motion for leave to file an
amended motion for postconviction relief. He additionally filed
a motion for the court to recuse itself from his postconviction
proceeding and his amended motion for postconviction relief.
In his amended motion, Ely again alleged numerous claims of
ineffective assistance of trial counsel, several claims of district
court error, and numerous claims of ineffective assistance of
appellate counsel. Comparing the amended motion to the origi-
nal motion, Ely did not allege any new claims and did not state
any new facts in support of his claims. The district court ruled
on both the original and the amended motions for postconvic-
tion relief. The 29 errors assigned in the amended motion are
summarized and reordered as follows:
(1) The district court abused its discretion by (a) deny-
ing Ely’s request to dismiss counsel and proceed pro se,
2
Id.
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Cite as 295 Neb. 607
(b) sustaining the State’s oral motion in limine to prevent Ely
from cross-examining codefendants about the possible life
sentences they faced, (c) denying Ely’s motion to have per-
sonal access to his discovery, and (d) denying Ely his privilege
to depose the State’s witnesses.
(2) Ely was denied effective assistance of trial counsel
when trial counsel (a) failed to advise Ely of his right to tes-
tify in his own behalf; (b) failed to object to testimony con-
cerning prior bad acts; (c) failed to suppress the search of a
cell phone linked to Ely, due to an illegal search warrant; (d)
failed to inform the jury of Nicholas Palma’s deal to testify
for the State; (e) failed to object to or move to strike Palma’s
prejudicial testimony after it did not fulfill what the State
said it would; (f) failed to make reasonable investigations
involving defense witnesses; (g) failed to object to the State’s
prejudicial remarks during closing arguments; (h) failed to
object and/or add to the jury instruction regarding intent; (i)
failed to object to jury instruction No. 20, regarding “accom-
plice testimony,” for leaving out certain language; (j) failed
to object to jury instruction No. 17 for leaving out language
that would pertain to Ely; (k) failed to depose witnesses Ely
had asked them to depose; (l) failed to cross-examine State
witnesses efficiently; (m) failed to object to or move to strike
Jacob Wilde’s testimony after it was discovered Wilde did not
know about Ely’s involvement in the robbery and homicide;
(n) failed to go over all the evidence with Ely before trial;
(o) failed to adequately explain Ely’s defense during opening
statements and closing arguments; and (p) had a conflict of
interest with Ely.
(3) Ely was denied effective assistance of counsel on direct
appeal when appellate counsel (a) failed to argue that the dis-
trict court erred by denying Ely his right to proceed pro se,
(b) argued on appeal a jury instruction that did not reflect the
instruction given at trial, (c) failed to argue relevant issues
pertaining to the prejudicial “flight” instruction given at trial,
(d) failed to argue Ely’s confrontation rights were violated,
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Cite as 295 Neb. 607(e) failed to argue that evidence was ruled admissible pursu- ant toNeb. Rev. Stat. § 27-404
(Reissue 2016) in a codefend
ant’s first trial but inadmissible in Ely’s trial, (f) failed to
argue that Palma’s testimony did not fulfill what the State said
it would, (g) failed to argue that the district court erred by
denying Ely’s motion to have personal access to his discovery,
(h) failed to argue that the district court erred by denying Ely
his privilege to depose the State’s witnesses, and (i) had a
conflict of interest with Ely.
The district court, without holding an evidentiary hearing,
denied Ely’s motions, finding that the issues raised in the
motions for postconviction relief “were known and/or know-
able at the time of his direct appeal and, therefore, the motions
. . . should be overruled and denied.” The court denied Ely’s
other motions for appointment of counsel, to proceed in forma
pauperis, and for recusal. The court’s order denying Ely’s
motions did not state that Ely had failed to allege sufficient
facts to demonstrate a violation of his constitutional rights
or that the record and files affirmatively showed that he was
entitled to no relief. The order instead seems to rest entirely
on the court’s finding that the issues raised in the motion for
postconviction relief were procedurally barred.
Ely timely appeals.
III. ASSIGNMENTS OF ERROR
Ely assigns, restated, renumbered, and reordered, that the
district court erred in (1) denying his motion for postconviction
relief without an evidentiary hearing, (2) denying his motion to
proceed in forma pauperis, (3) denying his motion for appoint-
ment of counsel, and (4) denying his motion for recusal.
IV. STANDARD OF REVIEW
[1,2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.3 When reviewing
3
State v. Harris, 294 Neb. 766,884 N.W.2d 710
(2016).
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Cite as 295 Neb. 607questions of law, an appellate court resolves the questions inde- pendently of the lower court’s conclusion.4 [3] A district court’s denial of in forma pauperis status underNeb. Rev. Stat. § 25-2301.02
(Reissue 2016) is reviewed de
novo on the record based on the transcript of the hearing or
written statement of the court.5
[4] Failure to appoint counsel in a postconviction proceeding
is not error in the absence of an abuse of discretion.6
[5] A motion to recuse for bias or partiality is initially
entrusted to the discretion of the trial court, and the trial court’s
ruling will be affirmed absent an abuse of that discretion.7
V. ANALYSIS
1. Motion for Postconviction R elief
[6,7] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity.8 Therefore, a motion for postconviction relief cannot
be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.9 Ely
alleged claims of district court error that, as he notes in his
other assignments of error, were known and could have been
litigated on direct appeal by his appellate counsel. Accordingly,
Ely’s claims of district court error were procedurally barred
and the district court did not err in denying postconviction
relief on the basis of those claims.
[8] We reach a different conclusion concerning Ely’s claims
of ineffective assistance of trial counsel and appellate counsel.
When a defendant was represented both at trial and on direct
4
Id.
5
State v. Carter, 292 Neb. 16,870 N.W.2d 641
(2015).
6
State v. Robertson, 294 Neb. 29,881 N.W.2d 864
(2016).
7
State v. Kofoed, 283 Neb. 767,817 N.W.2d 225
(2012).
8
State v. Parnell, 294 Neb. 551,883 N.W.2d 652
(2016).
9
Id.
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appeal by the same counsel, the defendant’s first opportunity
to assert ineffective assistance of counsel is in a motion for
postconviction relief.10 As the State concedes, the record shows
that Ely was represented by the same counsel on direct appeal
as he was at trial. Therefore, Ely’s motion for postconviction
relief was his first opportunity to assert such a claim. For this
reason, Ely’s claims of ineffective assistance of counsel are not
procedurally barred.
[9] When a district court denies postconviction relief with-
out conducting an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would
support a claim of ineffective assistance of counsel and, if so,
whether the files and records affirmatively show that he or she
is entitled to no relief.11 We shall address each allegation of
ineffective assistance of counsel in turn.
(a) Ineffective Assistance
of Trial Counsel
[10] To establish a right to postconviction relief because
of counsel’s ineffective assistance, the defendant has the bur-
den, in accordance with Strickland v. Washington,12 to show
that counsel’s performance was deficient; that is, counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.13 Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in
his or her case.14 To show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
10
See State v. Armendariz, 289 Neb. 896,857 N.W.2d 775
(2015).
11
State v. Robertson, supra note 6.
12
Strickland v. Washington, 466 U.S. 668,104 S. Ct. 2052
,80 L. Ed. 2d 674
(1984).
13
State v. Sellers, 290 Neb. 18,858 N.W.2d 577
(2015).
14
Id.
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different.15 A court may address the two prongs of this test,
deficient performance and prejudice, in either order.16
(i) Failure to Advise Ely
of Right to Testify
Ely alleged that trial counsel “failed to provide objectively
reasonable advice” so that he could waive his right to testify.
His motion included reference to specific testimony that he
would have given, had trial counsel properly advised him
of his right to testify. As the State concedes, these allega-
tions are sufficient to raise a factual issue of whether a Sixth
Amendment violation occurred and the files and records do not
affirmatively show Ely is entitled to no relief. Accordingly, an
evidentiary hearing is warranted on this claim.
(ii) Allegations Concerning
Text Message Evidence
Ely asserted two allegations of inefficiency of trial counsel
related to text messages entered into evidence. First, he alleged
that trial counsel failed to object to testimony concerning text
messages sent to and from his cell phone the day before the
robbery. Ely asserted that the text messages were prior bad
acts testimony and inadmissible pursuant to § 27-404(2). He
additionally asserted that the State improperly used the text
messages to show his intent and that the text messages were
prejudicial to the outcome of his trial.
One of the text message exchanges read: “‘Wsup wita lick
bro.’ [“Lick” is slang for a robbery.] ‘Don’t know man. I’m
not out and about that much.’ ‘Me either but I need some $$.’”
Another text message, sent from Ely’s cell phone, read: “‘and
shit hard cuz being broke aint fun, bills gotta be paid and I aint
trying to go to prison for robbing but I feel like there aint many
other choices.’”
15
Id.
16
Id.
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Second, he alleged that trial counsel failed to suppress
the same text messages as the product of a search of his cell
phone obtained from an illegal search warrant. He argued that
there was no probable cause to search the cell phone or the
“SIM” memory card. He also argued that the search warrant
was improper because it applied to six other individuals’ cell
phones and did not specify, with particularity, the place to be
searched. The record shows that the investigating sergeant
obtained the cell phone records for Ely’s cell phone directly
from his cell phone provider by submitting a search warrant
to the company. A separate data download was performed on
Ely’s cell phone, but all the evidence was provided by the cell
phone provider.
In reviewing the record and these text messages, it is clear
that they were properly admitted and were not improper prior
bad acts testimony used to prove Ely’s character. The text mes-
sages were obtained from the cell phone provider. And Ely did
not allege that the search warrant to the cell phone provider
was illegal. Furthermore, the testimony concerning the text
messages was properly admissible to show proof of motive,
intent, and a plan. Therefore, the files and records affirmatively
show that Ely is entitled to no relief on this claim.
(iii) Allegations Concerning
Palma’s Testimony
Ely alleged that trial counsel failed to inform the jury that the
State promised Palma that the “mother of his child” would not
have to testify if he testified. He argued that this weighed on
Palma’s credibility as a witness when Palma initially refused to
testify, because the State “broke” the deal. Ely also alleged that
trial counsel later failed to object to Palma’s testimony after he
did not testify to knowing why Ely left Omaha, Nebraska, and
went to Sioux City, Iowa, after the robbery. We find that Ely
has failed to allege facts that would support either claim and
that the files and records affirmatively show that he is entitled
to no relief on either claim.
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First, the record shows that the State made the identified
deal with Palma to testify as a witness at a codefendant’s trial,
but that the deal did not continue to Ely’s trial. Thus, the deal
in the previous trial was irrelevant. Furthermore, when Palma
eventually testified, trial counsel elicited testimony that he
had been granted immunity in exchange for his testimony.
This was confirmed by the State outside of the presence of
the jury. Palma additionally testified that the State threatened
to charge him with accessory to murder if he did not testify.
This deal would certainly weigh on the witness’ credibility to
testify truthfully—more so than a deal that was not relevant to
Ely’s trial.
Second, Palma testified that Ely told him “they had gone
to do a robbery . . . and things went wrong.” Palma also testi-
fied that sometime after this conversation, Ely called him and
said that he was getting ready to leave Omaha. This evidence
goes directly to the occurrence of a crime and Ely’s volun-
tary flight after the occurrence of a crime—evidence of Ely’s
consciousness of guilt. Therefore, the testimony was proper
and Ely’s trial counsel had no grounds on which to object to
Palma’s testimony.
(iv) Allegation Concerning Failure to
Investigate Defense Witnesses
Ely alleged that trial counsel failed to make reasonable
investigations involving defense witnesses. Ely argued that
trial counsel should have investigated Steve Kaiser and Taylor
Sporven as possible defense witnesses and that their testimony
would have changed the outcome of the trial. Ely alleged that
if Kaiser had been called to testify, he would have testified
that Ely was not the one who texted him, “‘Wsup wita lick
bro.’” And, if Sporven had been called to testify, she would
have testified that Ely’s text message stating, “‘I aint trying
to go to prison for robbing but I feel like there aint many
other choices,’” was simply “venting” and did not actually
communicate intent to commit the robbery the next day. Ely
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also argued that trial counsel failed to present the full text
message conversation with Sporven and that had it been pre-
sented, it would have established that the conversation was
merely venting.
Ely never suggested at trial that the text messages sent from
his cell phone the day before the robbery were not from him.
Accordingly, he has not alleged sufficient factual allegations
to amount to ineffective assistance concerning the investiga-
tion of Kaiser as a possible witness. Additionally, Ely cannot
demonstrate prejudice in failing to have Sporven testify or
introduce additional text messages, because, even if he was
venting, it does not change the fact that he texted her about
committing a robbery 1 day before he was involved in a
deadly robbery.
(v) Allegation Concerning
Prosecutorial Misconduct
[11,12] Ely alleged that trial counsel failed to object to three
incidents of prosecutorial misconduct during closing argu-
ments. Determining whether defense counsel was ineffective
in failing to object to prosecutorial misconduct requires an
appellate court to first determine whether the petitioner has
alleged any action or remarks that constituted prosecutorial
misconduct.17 A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.18 We
therefore turn to the incidents that Ely has described as pros-
ecutorial misconduct.
First, Ely argued that the State’s comments that “if you
believe that Emily [G.] and Drake Northrop [two testifying
codefendants] were involved in this robbery and are guilty of a
robbery, then you have to find . . . Ely guilty as well” and that
“if based on the testimony you’ve heard today from Northrop
and [Emily G.] and if you think, yeah, those two are in the
17
State v. Iromuanya, 282 Neb. 798,806 N.W.2d 404
(2011).
18
State v. McSwine, 292 Neb. 565,873 N.W.2d 405
(2016).
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thick of it, those two are guilty, than so is [Ely]” were mislead-
ing and amounted to prosecutorial misconduct.
Second, Ely argued that the State’s comments concerning
the text messages as evidence of Ely’s intent were prejudi-
cial and amounted to prosecutorial misconduct, because the
text messages “had no relevance to this case.” The prosecutor
stated at closing arguments, “You don’t have to look into his
mind because he flat out tells you what his intent was from
text messages that he sent out.” He continued and said, “At
8:00 p.m. he sends a text message to . . . Kaiser, asks about a
lick . . . because he needs some money. The idea about doing
a robbery is already in . . . Ely’s mind before . . . they leave to
go to [the victim’s] house.”
Third, Ely argued that the State’s comments concerning his
alleged flight and guilty conscience were prejudicial, unsup-
ported by the evidence, and thus amounted to prosecuto-
rial misconduct.
[13] The jury was instructed that the “attorneys may draw
legitimate deductions and inferences from the evidence.” It
is clear that the prosecutor’s comments did not amount to
prosecutorial misconduct, because the prosecutor was entitled
to draw inferences from the evidence in presenting his or her
case, and such inferences generally do not amount to prosecu-
torial misconduct.19 The inferences were not unduly mislead-
ing, because the jury was properly instructed in the use of
these inferences. Because we find no prosecutorial misconduct,
Ely’s trial counsel could not be ineffective in failing to object
to the State’s closing argument.
(vi) Allegation Concerning Jury
Instruction No. 13 (Intent)
Ely alleged that trial counsel failed to object to or add to
the jury instruction concerning intent. The instruction given
read: “Intent is an element of the crimes charged against the
19
See, id.; State v. Dubray, 289 Neb. 208,854 N.W.2d 584
(2014).
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defendant. In deciding whether the defendant acted with intent
you should consider his words and acts and all the surrounding
circumstances.” Ely argued in his motion for postconviction
relief that the instruction did not adequately define “intent,”
because it left out the following language found in other first
degree murder trials:
“Intent is a material element of the crime charged
against the Defendant. Intent is a mental process, and
it therefore generally remains hidden within the mind
where it is conceived. It is rarely —if ever— susceptible
of proof by direct evidence. It may, however, be inferred
from the words and acts of the Defendant and from the
facts and circumstances surrounding his conduct. But
before that intent can be inferred from such circumstantial
evidence alone, it must be of such character as to exclude
every reasonable conclusion except that the Defendant
had the required intent. It is for you to determine from
all the facts and circumstances in evidence whether or not
Defendant committed the acts complained of and whether
at such time he had the criminal intent. If you have any
reasonable doubt with respect to either, you must find
Defendant not guilty.”
Ely argued that this language explained that the State must
prove intent beyond a reasonable doubt and that without it, the
jury was never informed that they must find the State proved
intent beyond a reasonable doubt. This argument misstates the
record, because, at the end of each instruction concerning the
material elements of the crimes charged against Ely, the jury
was instructed that “[t]he burden of proof is always on the
State to prove beyond a reasonable doubt all of the material
elements of the crime charged, and this burden never shifts.”
And intent is a material element in each charge. The jury was
also given the definition of “reasonable doubt” in a separate
instruction. Accordingly, the files and records affirmatively
show that Ely is entitled to no relief on this claim.
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(vii) Allegation Concerning Jury Instruction
No. 20 (Accomplice Testimony)
Ely alleged that trial counsel failed to object to the jury
instruction concerning accomplice testimony for leaving out
certain language. The instruction given at trial read: “There
has been testimony from Emily [G.] and Drake Northrop,
claimed accomplices of [Ely]. You should closely examine his
or her testimony for any possible motive he or she might have
to testify falsely.” Ely argued that the instruction should have
included language stating: “‘You should hesitate to convict
[Ely] if you decide that Emily [G.] or Drake Northrop testified
falsely about an important matter and that there is no other evi-
dence to support his/her testimony.’” He states this language is
necessary “[w]hen [Ely] is being tried solely on the word of an
accomplice . . . .”
[14,15] In construing an individual jury instruction, the
instruction should not be judged in artificial isolation but must
be viewed in the context of the overall charge to the jury con-
sidered as a whole.20 Defense counsel is not ineffective for
failing to object to jury instructions that, when read together
and taken as a whole, correctly state the law and are not mis-
leading.21 Instruction No. 19 instructed the jury: “You are the
sole judges of the credibility of the witnesses and the weight
to be given to their testimony.” The instruction listed a number
of criteria the jury was to consider in determining the weight
of testimony. These criteria included, among others: “Their
interest in the result of the suit, if any”; “[t]he extent to which
they are corroborated, if at all, by circumstances or the testi-
mony of credible witnesses”; and “[a]ll other evidence, facts,
and circumstances proved tending to corroborate or contradict
such witnesses.” In reviewing the jury instructions as a whole,
it is clear that the instructions correctly stated the law, were not
misleading, and addressed the same issues in Ely’s proposed
20
State v. Sellers, 279 Neb. 220,777 N.W.2d 779
(2010).
21
State v. Iromuanya, supra note 17.
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instruction. Accordingly, the files and records affirmatively
show that Ely is entitled to no relief on this claim.
(viii) Allegation Concerning Jury
Instruction No. 17 (Flight)
[16] Ely alleged that trial counsel failed to object to the
jury instruction concerning the voluntary flight of a person for
leaving out language that would pertain to him. This court has
already upheld this specific jury instruction on direct appeal.22
And, as a matter of law, counsel cannot be ineffective for fail-
ing to raise a meritless argument.23 Therefore, the files and
records affirmatively show that Ely is entitled to no relief on
this claim.
(ix) Allegations Concerning
State’s Witnesses
Ely alleged that trial counsel failed to depose three State
witnesses that he had asked his counsel to depose. He argued
that, had trial counsel deposed the witnesses, counsel “would
have been able to prove [Ely’s] mere acquiescence, instead of
encouragement.” However, Ely did not allege how the wit-
nesses’ testimony would have shown his “mere acquiescence”
rather than encouragement. He also failed to demonstrate prej-
udice in light of the other evidence showing his involvement as
beyond “mere acquiescence.”
Ely additionally alleged that trial counsel failed to cross-
examine witnesses efficiently. Specifically, he alleged trial
counsel erred by (1) not questioning a State witness as to why
a codefendant was texting from other people’s cell phones and
(2) not being able to provide a page number for the deposition
of codefendant Drake Northrop when impeaching him for a
prior inconsistent statement. He argued that no witnesses testi-
fied that he was the one who texted about a “lick” from his
22
See State v. Ely, supra note 1.
23
State v. Erpelding, 292 Neb. 351,874 N.W.2d 265
(2015).
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cell phone and that testimony of another codefendant texting
from other people’s cell phones would have made it so “the
state could not have efficiently used the texts to prove [Ely’s]
intent.” He also argued that counsel’s being unprepared in
impeaching Northrop caused the jury to believe he was a cred-
ible witness.
Ely has not alleged that anyone else ever used his cell
phone besides him. Instead, he only makes vague suggestions
that a jury could have concluded he was not the one who sent
the incriminating texts from his cell phone. Furthermore, Ely
did not demonstrate how he was prejudiced by trial counsel’s
not citing to an exact line and page number when attempt-
ing to impeach Northrop, despite trial counsel’s alerting the
jury to the prior inconsistent statement. As a result, Ely failed
to allege sufficient facts and he is entitled to no relief on
these claims.
(x) Allegation Concerning
Jacob Wilde’s Testimony
Ely alleged trial counsel failed to object to Wilde’s tes-
timony after Wilde testified that he did not know of Ely’s
involvement in the crimes charged. He argued that he was
prejudiced by Wilde’s testimony which only “‘speculates’”
that he was involved in the robbery. Ely points to the follow-
ing exchange during the cross-examination of Wilde to support
his argument:
[Defense counsel:] Was it your understanding [Ely]
was not a participant in it — in the robbery?
[State:] I’ll object to that on foundation. He doesn’t
know what . . . Ely’s involvement was, other than what
. . . Ely told him.
[Court:] I’m uncomfortable with him understanding,
so sustained.
We note that on redirect, Wilde then testified to what Ely told
him about the plan for the robbery. According to Wilde, Ely
said he and the others “were supposed to go in, and the kid
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wasn’t supposed to put up a fight, and they were going to get
the weed and leave.”
Ely admits that “Wilde is allowed to testify to what he got
out of the conversation between him and [Ely].” However, we
find that Wilde testified to what Ely said was the plan for the
robbery and not what “he got out of the conversation”; there-
fore, his testimony is admissible nonhearsay. As such, Ely’s
counsel had no grounds on which to object to Wilde’s testi-
mony and the files and records affirmatively show that Ely is
entitled to no relief on this claim.
(xi) Allegation Concerning Failure
to Review Evidence
Ely alleged trial counsel failed to review all the evidence
with him before trial. He asserted that counsel neither prepared
a defense with him nor showed him all of the evidence that was
used against him before trial. He argued that if counsel had, he
would have accepted the State’s initial plea bargain and pled
guilty to second degree murder. Despite making this argument,
Ely admitted that the State offered him a second plea bargain
at trial after the evidence was introduced. And, the second
plea bargain differed from the initial plea bargain in only one
respect—it also required a plea of use of a deadly weapon. He
voluntarily did not accept that plea bargain.
The record reflects that prior to trial, Ely attempted to dis-
miss his counsel and proceed pro se, because he had not seen
his discovery in a year. Trial counsel responded that counsel
had gone over all the discovery with Ely and had shared all
the information disclosed by the State. Moreover, Ely’s own
postconviction motion includes a letter from his trial counsel
in response to an apparent bar complaint filed by Ely against
counsel. That letter states that trial counsel “spent an inordi-
nate amount of time going through . . . Ely’s entire discov-
ery file with him on more than one occasion.” The files and
records affirmatively show that he is entitled to no relief on
this claim.
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(xii) Allegation Concerning Failure to Explain
Defense During Opening Statements
and Closing Arguments
Ely alleged that trial counsel failed to adequately explain
his defense during opening statements and closing arguments.
Ely argued that trial counsel attempted to assert the defense
that Ely only acquiesced to the robbery but failed to define
acquiescence, because the jury had to ask for the definition
during its deliberation. The record shows that the court gave a
supplemental jury instruction defining acquiescence as “con-
duct recognizing the existence of a transaction, and intended,
in some extent at least, to carry the transaction or permit it to
be carried into effect.” The record also reflects that the jury
was instructed on “acquiescence” during the trial.
During opening statements, Ely’s trial counsel clearly stated
that “[m]ere presence and acquiescence at the time a crime
occurs is not enough for a conviction of guilty.” Counsel
also asserted that Ely was not active in the robbery. Then, at
closing argument, trial counsel stated that “mere presence,
that mere acquiescence or silence does not meet the State’s
highest burden in this case. The State must prove intentional
encouragement or intentional assistance.” Trial counsel also
asserted that Ely’s “hanging out with these people, being
around these people, being present and going along with what
these people were planning to do is much different than inten-
tionally participating or intentionally planning to participate
in a robbery.”
We find that trial counsel effectively explained Ely’s defense.
That the defense was unsuccessful does not amount to ineffec-
tive assistance. For these reasons, the files and records affirm
atively show that Ely is entitled to no relief on this claim.
(xiii) Allegation Concerning
Conflict of Interest
[17] Ely alleged that trial counsel and he had a conflict of
interest because he had attempted to dismiss his counsel on two
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prior occasions. He argued that the conflict of interest was born
out of his claiming trial counsel failed to do counsel’s job, that
counsel lied to him, and that the client-attorney trust had been
broken. However, Ely failed to allege any actual conflict. The
phrase “conflict of interest” denotes a situation in which regard
for one duty tends to lead to disregard of another or where a
lawyer’s representation of one client is rendered less effective
by reason of his or her representation of another client.24 Ely
did not allege, and the record does not reflect, that trial counsel
had any divided loyalties or acted against Ely’s interests. As
such, Ely made insufficient factual allegations and is entitled
to no relief on this claim.
(b) Ineffective Assistance
of Appellate Counsel
[18,19] A claim of ineffective assistance of appellate coun-
sel which could not have been raised on direct appeal may be
raised on postconviction review.25 When analyzing a claim of
ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel actually prejudiced
the defendant. That is, courts begin by assessing the strength
of the claim appellate counsel failed to raise.26
(i) Allegation Concerning
Right to Proceed Pro Se
[20-22] Ely alleged that appellate counsel failed to argue that
the district court erred when it denied his right to proceed pro
se. He argued that his Sixth Amendment rights were violated
“by being forced into trial with unwanted counsel.” A criminal
defendant has a constitutional right to waive the assistance
of counsel and conduct his or her own defense under the
24
State v. McGuire, 286 Neb. 494,837 N.W.2d 767
(2013).
25
State v. Starks, 294 Neb. 361,883 N.W.2d 310
(2016).
26
Id.
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Sixth Amendment and Neb. Const. art. I, § 11.27 In order to
waive the constitutional right to counsel, the waiver must be
made knowingly, voluntarily, and intelligently.28 A waiver of
counsel need not be prudent, just knowing and intelligent.29
The record shows that Ely moved to dismiss counsel on
two separate occasions before trial and that both motions were
denied. In denying his first motion to dismiss counsel and pro-
ceed pro se, the trial court observed: “I don’t see — quite hon-
estly, I don’t see any benefit to you proceeding pro se between
now and [the trial] without the advice of counsel. It is a serious
— or these are serious charges. And I still think you need the
advice of counsel.”
Given the seriousness of the constitutional rights at issue,
the denial is not subject to harmless error review.30 We con-
clude that the failure to argue the denial is likewise not subject
to harmless error review. And, the files and records do not
affirmatively show Ely is entitled to no relief. Accordingly,
as the State concedes, an evidentiary hearing is warranted on
this claim.
(ii) Allegations Concerning
“Flight” Instruction
Ely alleged that appellate counsel was ineffective in argu-
ing on appeal against the “flight” jury instruction in three
ways. First, he alleged that appellate counsel argued a jury
instruction that did not reflect the instruction given at trial. He
argued that he was prejudiced when appellate counsel raised
issues concerning the “flight” instruction that did not pertain
to his case.
27
See State v. Hessler, 282 Neb. 935,807 N.W.2d 504
(2011).
28
State v. Delgado, 269 Neb. 141,690 N.W.2d 787
(2005).
29
State v. Figeroa, 278 Neb. 98,767 N.W.2d 775
(2009).
30
See McKaskle v. Wiggins, 465 U.S. 168,104 S. Ct. 944
,79 L. Ed. 2d 122
(1984).
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Cite as 295 Neb. 607Second, he alleged that appellate counsel failed to argue that the “flight” instruction given at trial was prejudicial, because there must have been “unexplained” circumstances that evidenced his consciousness of guilt. He argued that his alleged flight was explained by evidence that he left Omaha to “catch up on old times” and not out of consciousness of guilt. [23] Third, Ely alleged that appellate counsel failed to argue that the “flight” instruction amounted to a presumption and that the jury should have received an instruction on presump- tions in criminal cases pursuant toNeb. Rev. Stat. § 27-303
(Reissue 2016). The instruction given at trial stated:
You are instructed that the voluntary flight of a person
immediately or soon after the occurrence of a crime is
a circumstance . . . which the jury may consider in con-
nection with all the other evidence in the case to aid you
in determining the question of the guilt or innocence of
such person.
We note that this instruction does not create a presumption—at
most it created an inference. However, references to “presump-
tions” in § 27-303 necessarily include “inferences.”31
In addressing the first two allegations, we note that Ely is
correct that appellate counsel did argue against certain lan-
guage in the “flight” instruction that was not included in the
instruction at trial. However, after noting this mistake on direct
appeal, we nonetheless reviewed the entire instruction and
found no error.32 On direct appeal, we also determined that
the evidence given at trial necessitated the “flight” instruc-
tion, thereby inferring there were unexplained circumstances.33
Therefore, Ely has failed to demonstrate prejudice on these
first two claims.
31
See State v. Parks, 245 Neb. 205,511 N.W.2d 774
(1994).
32
See State v. Ely, supra note 1.
33
See id.
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In addressing the third allegation, we find that to the extent
that § 27-303 applies to the “flight” instruction, the failure to
comply with the statute is harmless error. First, as a “circum-
stance for consideration,” the instruction “simply inform[ed]
the jury concerning correct use of circumstantial evidence.”34
Second, the court also instructed the jury that all material
elements of the crimes charged were to be proved beyond a
reasonable doubt and that Ely was presumed innocent until he
has been proved guilty beyond a reasonable doubt. Thus, in
reading the jury instructions as a whole, we find that they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and the evidence. The
files and records affirmatively show that Ely is entitled to no
relief on this claim.
(iii) Allegation Concerning Violation
of Confrontation Rights
Ely alleged that appellate counsel failed to argue that his
confrontation rights were violated when the court prohibited
cross-examination of Emily G. and Northrop concerning the
possible life sentences they faced if they did not testify. At
trial, Ely’s counsel timely objected to this limitation on the
scope of cross but the objection was overruled. Ely argued
that, had such cross-examination been allowed, the jury “would
have received a significantly different impression of the wit-
ness’ credibility.”
[24,25] We addressed a nearly identical assignment of error
concerning the same restriction on cross-examining Emily and
Northrop in a codefendant’s direct appeal.35 In that case, we
held that the right to confrontation is not unlimited, and only
guarantees an opportunity for effective cross-examination, not
examination that is effective in whatever way and to whatever
extent the defense may wish.36 And, when the object of the
34
See State v. Jasper, 237 Neb. 754, 763,467 N.W.2d 855, 861
(1991).
35
See State v. Patton, 287 Neb. 899,845 N.W.2d 572
(2014).
36
See id.
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cross-examination is to collaterally ascertain the accuracy or
credibility of the witness, the scope of the inquiry is ordinarily
subject to the discretion of the trial court.37
Both Emily and Northrop testified that they were charged
with first degree murder and that they hoped for leniency in
exchange for testifying. Even without knowing the specific
penalty for first degree murder, a reasonable juror would
understand from this testimony that the testifying codefend
ants were hoping to obtain a substantial benefit from their
cooperation with the prosecution. Therefore, there is no preju-
dice and the files and records affirmatively show that Ely is
entitled to no relief on this claim.
(iv) Allegation Concerning Failure to
Argue Issue of Evidence Admitted
Pursuant to § 27-404
Ely alleged that appellate counsel failed to argue that evi-
dence was ruled admissible pursuant to § 27-404 in a codefend
ant’s first trial but inadmissible in his trial. In our review of
that codefendant’s appeal, we note that the evidence was not
admitted; rather, the defense had made an offer of proof and
appealed the court’s order.38 We found no error in the court’s
ruling that evidence was inadmissible pursuant to § 27-404 in
that case,39 and, therefore, appellate counsel could not have
been ineffective for failing to make such an argument in this
case. The files and records affirmatively show that Ely is enti-
tled to no relief on this claim.
(v) Remaining Assignments of Ineffective
Assistance of Appellate Counsel
Ely’s remaining four assignments of ineffective assistance
of appellate counsel essentially restate earlier arguments of
ineffective assistance of trial counsel. We have already found
37
Id.
38
See id.
39
See id.
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that the files and records affirmatively show Ely is entitled to
no relief on those claims. Because his trial counsel and appel-
late counsel are the same, we also conclude that he is entitled
to no relief on these claims.
2. Motion to Proceed
In Forma Pauperis
Ely assigns and argues that the district court erred when
it denied his motion to proceed in forma pauperis. An appli-
cation to proceed in forma pauperis shall be granted unless
there is an objection that the party filing the application has
sufficient funds to pay costs, fees, or security, or is asserting
legal positions which are frivolous or malicious.40 Here, there
was no objection from the State but the court objected on its
own motion. In so doing, the court was required to provide a
written statement of its reasons, findings, and conclusions for
denial of the application.41 The court failed to do so, and we
review the denial de novo on the record.
Ely filed an affidavit of poverty with his motion to proceed
in forma pauperis, and the record does not show that he has
any other funds to pay costs, fees, or security. If Ely’s motion
for postconviction relief had stated no claims requiring an evi-
dentiary hearing, the court’s denial of his motion to proceed
informa pauperis would have been moot. But, as stated above,
the record shows that two of Ely’s claims warranted an evi-
dentiary hearing and were therefore not frivolous or malicious.
Because we have no written statement from the district court
of any other reasons for denial of the application, we conclude
that it was error to deny Ely’s application.
3. Motion to A ppoint Counsel
[26] Ely assigns and argues that the district court erred when
it denied his motion for appointment of counsel. When the
40
§ 25-2301.02.
41
See id.
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defendant’s petition presents a justiciable issue to the district
court for postconviction determination, an indigent defendant
is entitled to the appointment of counsel.42 As we have noted,
Ely has alleged two claims that warranted an evidentiary hear-
ing. Therefore, he was entitled to the appointment of counsel
and the district court’s denial of his motion was an abuse
of discretion.
4. Motion to R ecuse
Finally, Ely assigns and argues that the district court erred
in denying his motion asking the court to recuse itself from the
case. Ely argues that the district court judge “has been preju-
diced against him since before trial, when the Court denied
Ely’s motion to dismiss counsel and to proceed Pro Se.”43 He
additionally argues that the district court judge has become
biased and prejudiced against him, because Ely has argued
multiple claims of district court error in his motion for post-
conviction relief.
[27,28] A motion requesting a judge to recuse himself or
herself on the ground of bias or prejudice is addressed to
the discretion of the judge, and an order overruling such a
motion will be affirmed on appeal unless the record estab-
lishes bias or prejudice as a matter of law.44 A trial judge
should recuse himself or herself when a litigant demonstrates
that a reasonable person who knew the circumstances of the
case would question the judge’s impartiality under an objec-
tive standard of reasonableness, even though no actual bias
or prejudice is shown.45 Ely has not demonstrated, nor does
the record show, actual bias or prejudice, or that a reasonable
person would question the judge’s impartiality. Therefore,
42
State v. Phelps, 286 Neb. 89,834 N.W.2d 786
(2013).
43
Brief for appellant at 12.
44
Kalkowski v. Nebraska Nat. Trails Museum Found., 290 Neb. 798,862 N.W.2d 294
(2015).
45
Blaser v. County of Madison, 285 Neb. 290,826 N.W.2d 554
(2013).
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the district court did not abuse its discretion in denying Ely’s
motion to recuse.
VI. CONCLUSION
For the reasons set forth above, we conclude that Ely was
entitled to an evidentiary hearing on his claims that (1) his
trial counsel was ineffective in failing to advise him of his
right to testify and (2) his appellate counsel was ineffective in
failing to argue that the district court erred in denying him the
right to proceed pro se. We therefore reverse, and remand with
directions that an evidentiary hearing be held on these two
claims. We also direct the district court to grant Ely’s motions
to proceed in forma pauperis and for appointment of counsel.
In all other respects, we affirm the district court’s order.
A ffirmed in part, and in part reversed
and remanded with directions.
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