State v. Bazer

judgment of the court of appeals, this court will not reverse
a judgment which it deems to be correct simply because its
reasoning differs from that employed by the court of appeals.7
the court of appeals also reversed moore’s conviction because
of its conclusion that the trial court had erred in giving the jury
instruction no. 0—a decision that is not challenged by the cur-
rent petition. the judgment of the court of appeals, reversing
moore’s conviction and remanding the cause for a new trial, is
therefore affirmed.
affIrMeD.
7 Mumin v. Dees, 266 neb. 20, 663 n.W.2d 25 (2003).
S tate of N ebraSka , appellee , v .
C hrIStopher e. bazer , appellaNt .
75 n.W.2d 69
filed July 3, 2008. 	no. s-07-36.
. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law. When reviewing
a question of law, an appellate court resolves the question independently of the
lower court’s conclusion.
2. Effectiveness of Counsel: Appeal and Error. appellate review of a claim of inef-
fective assistance of counsel is a mixed question of law and fact. When reviewing
a claim of ineffective assistance of counsel, an appellate court reviews the factual
findings of the lower court for clear error. With regard to the questions of counsel’s
performance or prejudice to the defendant as part of the two-pronged test articu-
lated in Strickland v. Washington, 466 u.s. 668, 04 s. ct. 2052, 80 L. ed. 2d 674
(984), an appellate court reviews such legal determinations independently of the
lower court’s decision.
3. Postconviction: Constitutional Law. postconviction relief is a very narrow cat-
egory of relief, available only to remedy prejudicial constitutional violations.
4. Pleas: Effectiveness of Counsel. When a defendant pleads guilty, he is limited
to challenging whether the plea was understandingly and voluntarily made and
whether it was the result of ineffective assistance of counsel.
5. Postconviction: Appeal and Error. a defendant cannot secure postconviction
review of issues which were or could have been litigated on direct appeal.
6. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. in order to
establish a right to postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden first to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a lawyer
state v. bazer 	7
cite as 276 neb. 7
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

with ordinary training and skill in criminal law in the area. next, the defendant
must show that counsel’s deficient performance prejudiced the defense in his or
her case.
7. Effectiveness of Counsel: Presumptions. the entire ineffectiveness analysis is
viewed with the strong presumption that counsel’s actions were reasonable.
8. Effectiveness of Counsel: Proof. When reviewing a claim of ineffective assistance
of counsel, an appellate court will not second-guess reasonable strategic decisions
by counsel.
9. Pleas. a voluntary plea of guilty intelligently made in the light of the then-
applicable law does not become vulnerable because later judicial decisions indicate
that the plea rested on a faulty premise.
0. Trial: Effectiveness of Counsel. the fact that a calculated trial tactic or strategy
fails to work out as planned will not establish that counsel was ineffective.
. Pleas: Attorneys at Law. a plea of guilty will be found to be freely and vol-
untarily entered upon the advice of counsel if that advice is within the range of
competence demanded of attorneys in criminal cases.
2. Postconviction. under the nebraska postconviction act, the district court has
discretion to adopt reasonable procedures for determining what the motion and the
files and records show, and whether any substantial issues are raised, before grant-
ing a full evidentiary hearing.
3. ____. even if appropriate allegations are made in the motion for postconviction
relief, an evidentiary hearing should be denied if the trial records and files affirma-
tively show that the defendant is entitled to no relief.
appeal from the district court for douglas county: gary b.
raNDall, Judge. affirmed.
brian s. munnelly for appellant.
Jon bruning, attorney General, and erin e. Leuenberger
for appellee.
heavICaN, 	c.J., 	wrIght, 	C oNNolly, 	gerrarD, 	S tephaN,
MCC orMaCk, and MIller -lerMaN, JJ.
MCC orMaCk, J.
nature of case
christopher e. bazer appeals the dismissal of his motion for
postconviction relief from his conviction, pursuant to a plea
agreement, of first degree felony murder. bazer argues that his
guilty plea was compelled by his counsel’s unreasonable trial
strategy. he further argues that his plea was involuntary because
the trial court failed to advise him of his right against self-
incrimination. We affirm.
8 	276 nebraska reports

backGround
trIal reCorD: pretrIal DISCovery
on march , 988, bazer was charged with one count of first
degree felony murder and one count of use of a firearm to com-
mit a felony, in connection with the death of mary G. Jirsak.
there was no dispute from the evidence procured during pretrial
discovery that bazer had, either intentionally or accidentally,
shot and killed Jirsak after robbing her candy store. there was
some dispute as to the extent of bazer’s intoxication at the time
of the robbery and shooting. bazer was 9 years old at the time
of the shooting.
dale Lee demont testified in his deposition that he had driven
the getaway car the day of the robbery. demont stated that on
the morning of february 8, 988, he picked up bazer and their
friend, phillip bowen, and that bowen told him to “‘head down
toward 3th street.’” the candy store was located on 3th street
in omaha, nebraska. When they got there, bowen and bazer
told demont to wait in the car while they went to rob someone.
bowen and bazer explained to demont that they needed money
to get out of town. demont testified that when bowen and bazer
returned to the vehicle, bazer told him that they had robbed a
woman and that when she ran for the door, bazer grabbed her by
the hair and shot her. demont stated that while driving, he saw
bazer pull a gun out of his waistband and place it briefly on the
seat next to demont. bazer eventually directed him to take them
to Vicky strunk’s house.
Vicky testified in her deposition that bazer and bowen had
stayed at her house the night before the robbery. at approxi-
mately  a.m., on february 8, 988, bazer woke her up and
told her something about a woman running out the door and that
he had pulled her by the hair and shot her. according to police
reports, Vicky’s husband, Gary strunk, was also present at the
house that morning. Gary gave a taped statement to the police
in which he described how bazer had told him that bazer had
robbed Jirsak and, when she started screaming and tried to run
out the door, grabbed her and shot her. Gary was listed as a wit-
ness for the state in the information filed against bazer.
state v. bazer 	9
cite as 276 neb. 7

omaha police officers arrived at Vicky’s home at approxi-
mately 2:0 p.m. on february 8, 988. a police report indi-
cates that the officers were directed to Vicky’s home after mack
riggs, an acquaintance of bazer and bowen, went to the scene
of the crime. riggs reported that during the previous 2 weeks,
bazer and bowen had asked him if he wanted to help them
rob Jirsak’s candy store. riggs was also listed as a witness in
the information.
Vicky gave the officers permission to search her home. the
officers testified that they located bazer inside the home and that
after bazer was informed of his Miranda rights, he voluntarily
admitted to the robbery and shooting of Jirsak. bazer told the
officers that certain individuals had threatened him because he
owed them money. according to the officers’ depositions and
police reports, bazer told them that he had pulled Jirsak by
the hair and had pointed the gun at her head when she tried to
escape. bazer claimed that he had thought the safety was on and
that the gun had discharged accidentally, killing Jirsak. at the
time he was making these statements, bazer denied being intoxi-
cated, and the officers did not believe bazer to be intoxicated at
that time. bazer did not make a taped confession.
before leaving Vicky’s house, bazer led the officers to the
location of the gun he had used. this gun was later found by
the crime laboratory to be in good operating condition. but an
expert hired by bazer’s trial counsel opined that the gun was in
a condition such that the user could think the safety was in a
safe position, when, in reality, it was not. tests also found that
the gun matched a cartridge casing found at the scene of the
shooting. the actual bullet found in the victim was broken into
several pieces and was unidentifiable.
oN- the -reCorD C olloquy of S trategy
bazer’s counsel made a motion to suppress bazer’s con-
fessions to the police, but the motion was denied by the trial
court. nevertheless, a plea agreement offered by the state was
rejected by bazer, and the defense’s intent was to proceed to
trial. before voir dire, the court reporter recorded a conversa-
tion between bazer and his trial cocounsel. in this conversation,
bazer affirmed that they had spent considerable time discussing
0 	276 nebraska reports

trial strategy and that he agreed with trial counsel’s strategy
to tell the jury “right from day one” that bazer did, in fact,
“fire that weapon that killed miss Jirsak.” during this colloquy,
trial counsel explained that all the other evidence already sup-
ported this conclusion and that it was not something the jury
was “going to have trouble with anyway.” instead, trial counsel
explained that by bazer’s admitting that he held the gun that had
discharged and killed Jirsak, it was cocounsel’s strategy to focus
the jury’s inquiry on whether bazer had the requisite intent to
commit the underlying crime of robbery. trial counsel further
stated that because cocounsel believed that bazer lacked such
intent, they would be asking the court to instruct the jury on a
lesser offense such as manslaughter or second degree murder.
S tateMeNtS to J ury D urINg voIr DIre
during voir dire, bazer’s trial counsel accordingly explained
to the jury that he was not denying that the case involved a
“senseless waste of life.” furthermore, he was “not going to
hide” from the jury the fact that bazer “held the gun that—that
fired a shot that struck the back of her head and killed mary
Jirsak.” counsel stated that whether bazer caused Jirsak’s death
was not an issue. instead, the issue in the case was whether
bazer had intended to commit the robbery that formed the basis
of the felony murder charge. trial counsel made reference to
possible evidence that the gun had misfired, and he explained
to the jury that in order for the state to prove felony murder,
it would have to prove, beyond a reasonable doubt, that bazer
intended to commit the underlying robbery.
in this regard, counsel stated that he expected the jury to be
presented with evidence that bazer had consumed large amounts
of alcohol and other controlled substances prior to the incident.
Without objection, trial counsel told the jury that it would be
presented with expert testimony that a person’s ability to think,
and to form the goal-directed thought process of intent, could
be affected by the consumption of alcohol and other substances.
trial counsel also mentioned fears in bazer’s mind “because of
what other people were trying to do to him at that time.” counsel
told the jury that he was not denying that bazer committed some
type of crime and deserved some form of punishment. however,
state v. bazer 	
cite as 276 neb. 7

counsel explained that the question with which the jury was
presented was whether bazer had the intent to commit the crime
of felony murder.
DISCuSSIoN wIth trIal C ourt about
leSSer -offeNSe INStruCtIoN
When trial counsel went further and suggested to the jury that
it could find bazer guilty of a lesser offense, the state initiated
an off-the-record sidebar discussion with the court, and bazer’s
trial counsel did not continue this line of discussion. the next
day, during the state’s voir dire, when the state explained to
the jury that it made no difference whether the killing was acci-
dental, bazer’s trial counsel requested a sidebar discussion. the
record shows that the jury was then briefly dismissed so that the
parties could discuss the unresolved issue of whether the court
would allow instruction on a lesser offense.
bazer’s trial counsel argued that the state’s voir dire was
prejudicing the jury against a possible instruction on a lesser
offense. the court responded that it had cautioned bazer’s
counsel the day before that there was no guarantee such an
instruction would be given, but it would hear “whatever argu-
ments you have right now as to why i should deviate from what
the supreme court has said over and over and over again on
the felony murder charge. there is no lesser-included offense.”
trial counsel argued that if bazer did not formulate the requisite
intent to commit the underlying crime of felony murder, then a
manslaughter instruction would still be appropriate.
trial counsel explained to the court that he was “very famil-
iar” with nebraska case law that holds that “[o]rdinarily it is not
error for the court not to instruct for lesser-included when it’s
felony murder.” still, trial counsel quoted State v. Montgomery,
in which we said: “this is not to say . . . there might not occur
a set of facts under which an instruction on the lesser offenses
of second degree murder or manslaughter might not be appro-
priate.” counsel argued that the facts of this case justified such
an exception. counsel argued that there was a delay between
the assault and the robbery such that the death was not “‘“in
 State v. Montgomery, 9 neb. 470, 473, 25 n.W.2d 88, 884 (974).
2 	276 nebraska reports

the perpetration”’” of the robbery, as that language is used in
the felony murder statute. trial counsel further cited Beck v.
Alabama2 and Enmund v. Florida3 for the argument that due pro-
cess and equal protection demanded that lesser offenses should
be presented to the jury.
after 	hearing 	the 	state’s 	argument 	on 	this 	point, 	the
court concluded:
i don’t have to decide on lesser-included until such
time as we have an instruction conference. i think that
i can almost predict, though, that unless the evidence is
something that is completely different than i anticipate it
to be, there will be no lesser-included. i will make that
decision at the proper time when we have our instruc-
tion conference.
i find nothing objectionable in [the state’s] statement
that [t]he state has no obligation and no duty to prove an
intentional killing in this case.
the court went on to again caution bazer’s counsel that it was
“highly improbable” that the jury would get any instructions
other than felony murder and the use of a firearm in the com-
mission of a felony. the court explained that if bazer could
not form the intent to commit the robbery, then the court could
not see how bazer could form the intent of any other criminal
act—and there was no evidence of a sudden quarrel that would
support an instruction on manslaughter.
plea
trial counsel then asked for a moment to consult with bazer
because “[t]his is a critical situation that we talked about before
. . . .” Less than an hour later, bazer entered a plea of guilty to
the charge of first degree murder.
in exchange for bazer’s plea of guilty to the felony murder
charge, the state agreed to dismiss the use of a firearm charge.
before accepting the plea, the court reviewed with bazer vari-
ous constitutional rights that he would be waiving by making
2 Beck v. Alabama, 447 u.s. 625, 00 s. ct. 2382, 65 L. ed. 2d 392 (980).
3 Enmund v. Florida, 458 u.s. 782, 02 s. ct. 3368, 73 L. ed. 2d 40
(982).
state v. bazer 	3
cite as 276 neb. 7

the plea and bazer affirmed that he understood. With regard to
bazer’s fifth amendment right against self-incrimination, the
court stated:
at the trial you’d have a right to take the witness stand and
testify in your own defense if you wanted to. no one could
force you to testify; and, if you chose to remain silent, the
jury could in no way construe your silence as evidence of
guilt. by pleading guilty you do waive the opportunity to
testify at a trial if you so desired . . . .
before accepting bazer’s plea, the court heard bazer describe to
the court how he had gone to the candy store to rob Jirsak and
how, when Jirsak started running, bazer had grabbed her and
then “the gun went off.”
the court did not make any promises as to the sentence that
would be imposed on the felony murder charge. trial counsel
did explain to the court that although bazer was aware that the
death penalty was a possibility, they were confident, given the
review of the aggravating and mitigating circumstances, that
bazer would not be given the death penalty. indeed, at the sen-
tencing hearing, the state argued to the court that the evidence
did not suggest aggravating circumstances that would justify
the death penalty. the court found no aggravating or mitigating
circumstances and sentenced bazer to life imprisonment. no
appeal was filed from the conviction.
M otIoN for poStCoNvICtIoN relIef
on January 4, 2004, bazer filed a pro se motion for post-
conviction relief. thereafter, he was appointed counsel. in his
operative motion, bazer stated that before trial counsel’s state-
ments to the jury during voir dire, bazer had rejected the state’s
offer to enter into a plea agreement wherein the weapons charge
would be dropped. however, when trial counsel admitted to the
jury that bazer was the person who held the gun that shot and
killed Jirsak, this admission of guilt left bazer no other choice
but to accept trial counsel’s recommendation that bazer accept
the state’s renewal of its plea bargain. bazer alleged that but
for counsel’s admission of his guilt, he would not have pleaded
guilty and that, therefore, his plea was not knowingly, intelli-
gently, and voluntarily entered.
4 	276 nebraska reports

bazer explained in his motion that he had agreed to the strat-
egy of admitting he had shot Jirsak based on his trial cocounsel’s
incorrect and objectively unreasonable advisement that they
would be able to get a lesser-included offense instruction before
the jury. bazer’s motion does not explicitly call into question
his trial cocounsel’s strategy to show that bazer did not form
the requisite intent to commit robbery because of his levels of
intoxication at the time of the incident.
as an alternative ground for postconviction relief, bazer’s
motion asserted that the trial court failed to properly explain
bazer’s waiver of his privilege against self-incrimination, as
required by Boykin v. Alabama.4
a hearing on bazer’s motion for an evidentiary hearing was
set for october , 2006. at the hearing on october , bazer’s
postconviction counsel clarified that the hearing was not an evi-
dentiary hearing, but was a hearing on whether an evidentiary
hearing would be granted. nevertheless, postconviction counsel
entered into evidence the deposition testimony of both bazer
and one of his trial counsel in relation to their trial strategy and
trial counsel’s decision to plead guilty. the state then made an
oral motion to dismiss the motion for postconviction relief. the
proceedings ended with the court noting that prior to completing
the hearing, the parties discussed and agreed that the appropriate
procedure would be for bazer’s postconviction counsel to offer
the bill of exceptions from the trial at that time. the trial record
was offered and accepted without objection. no further hear-
ing was held, and the trial court eventually granted the state’s
motion to dismiss on february 26, 2007.
orDer of poStCoNvICtIoN C ourt
on february 26, 2007, the trial court granted the state’s
motion to dismiss bazer’s motion for postconviction relief. as
a result, the court explained, bazer’s request for an evidentiary
hearing would not be considered further.
the court found, after a complete review of the trial record,
that the record did not support bazer’s allegations that trial
4 Boykin v. Alabama, 395 u.s. 238, 89 s. ct. 709, 23 L. ed. 2d 274 (969).
see, also, e.g., State v. Jones, 264 neb. 67, 650 n.W.2d 798 (2002).
state v. bazer 	5
cite as 276 neb. 7

counsel was unaware of the law of felony murder, that he had
inappropriately advised bazer on the ability to obtain an instruc-
tion on lesser offenses, or that trial counsel’s action in admitting
bazer’s actions to the jury in voir dire amounted to ineffective
assistance of counsel. instead, the court found that “the record
supports [that trial] counsel chose a trial strategy which [bazer]
agreed to . . . , that the defense would attempt to establish a new
precedent in the law in nebraska since [bazer] wanted to go to
trial and he had virtually no other options in terms of a defense.”
moreover, the court also found that the statement made to the
jury that bazer had fired the gun which caused the death of
Jirsak, “[i]f for no other purpose . . . [,] was merely the strategy
that the jury would ultimately hear of these acts . . . and . . . the
jury would best hear it from defense counsel, as there was no
basis to deny [bazer’s] actions.”
the court found that bazer’s allegations concerning improper
plea advisements were procedurally barred. the court reasoned
that the advisement given to bazer was necessarily known to
him when a direct appeal could have been filed, but he did not
file a direct appeal.
bazer appeals the order granting the state’s motion to dismiss
his motion for postconviction relief.
assiGnments of error
in this appeal, bazer asserts that because of the alleged inef-
fective assistance of counsel and failure of the trial court to
inform him of his privilege against self-incrimination, the post-
conviction court erred in not granting an evidentiary hearing on
his motion for postconviction relief.
standard of reVieW
[] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court resolves the question inde-
pendently of the lower court’s conclusion.5
[2] appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. When reviewing
5 State v. Mata, 273 neb. 474, 730 n.W.2d 396 (2007).
6 	276 nebraska reports

a claim of ineffective assistance of counsel, an appellate court
reviews the factual findings of the lower court for clear error.
With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington,6 an appellate court reviews such legal
determinations independently of the lower court’s decision.7
anaLYsis
[3,4] postconviction relief is a very narrow category of relief,
available only to remedy prejudicial constitutional violations.8
and, for any purpose, a plea of guilty generally embodies a
waiver of every defense to the charge, whether procedural,
statutory, or constitutional.9 When a defendant pleads guilty, he
is limited to challenging whether the plea was understandingly
and voluntarily made and whether it was the result of ineffective
assistance of counsel.0
[5] bazer alleges both that his plea was involuntary and that it
was a result of ineffective assistance of counsel. While the plea
itself did not waive issues relating to whether he entered into
the plea voluntarily, on postconviction relief, a defendant cannot
secure review of issues which were or could have been litigated
on direct appeal. Whether the trial court gave bazer the proper
admonitions before accepting his guilty plea was a matter con-
cerning the on-the-record pretrial proceedings. accordingly, this
issue could have been raised in a direct appeal. bazer’s counsel
did not file such an appeal, and bazer does not argue that coun-
sel was ineffective for failing to do so. therefore, we do not
address bazer’s claim relating to the court’s alleged failure to
6 Strickland v. Washington, 466 u.s. 668, 04 s. ct. 2052, 80 L. ed. 2d 674
(984).
7 State v. Benzel, 269 neb. , 689 n.W.2d 852 (2004).
8 State v. Barnes, 272 neb. 749, 724 n.W.2d 807 (2006).
9 State v. Mason, 87 neb. 675, 93 n.W.2d 576 (972).
0 see, id.; State v. Barnes, supra note 8.
 see, State v. Lyman, 24 neb. 9, 492 n.W.2d 6 (992), disapproved on
other grounds, State v. Canbaz, 270 neb. 559, 705 n.W.2d 22 (2005).
state v. bazer 	7
cite as 276 neb. 7

ascertain whether he understood and waived his privilege against
self-incrimination.2
We will, however, address bazer’s claim that his plea of
guilty was the result of the ineffective assistance of trial counsel.
When a defendant was represented both at trial and on direct
appeal by the same lawyers, the defendant’s first opportunity
to assert ineffective assistance of trial counsel is in a motion
for postconviction relief.3 the same is true where trial counsel
elects not to file a direct appeal at all.4 the current postconvic-
tion action, in which bazer was appointed counsel different from
his trial counsel, is bazer’s first opportunity to challenge trial
counsel’s effectiveness.
[6-8] in order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the defend-
ant has the burden first 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 in the
area. next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.5 the
entire ineffectiveness analysis is viewed with the strong pre-
sumption that counsel’s actions were reasonable.6 and, when
reviewing a claim of ineffective assistance of counsel, an appel-
late court will not second-guess reasonable strategic decisions
by counsel.7
We conclude that the trial records and files affirmatively show
that bazer’s plea was not the result of ineffective assistance of
counsel.8 bazer’s claim is that his guilty plea derived from trial
counsel’s unreasonable and erroneous strategy of trying to get
2 see, Lopez v. Singletary, 634 so. 2d 054 (fla. 993); People v. Stewart,
23 ill. 2d 368, 528 n.e.2d 63, 23 ill. dec. 927 (988).
3 see State v. McHenry, 268 neb. 29, 682 n.W.2d 22 (2004).
4 see State v. Barnes, supra note 8.
5 State v. Smith, 269 neb. 773, 696 n.W.2d 87 (2005).
6 State v. Lyman, supra note . see, also, e.g., State v. Benzel, supra
note 7.
7 State v. Benzel, supra note 7.
8 see, State v. Soukharith, 260 neb. 478, 68 n.W.2d 409 (2000); State v.
Jones, supra note 4.
8 	276 nebraska reports

a lesser-related offense instruction before the jury. according
to bazer, because he believed that such an instruction would be
given, he agreed that counsel could “admit bazer’s guilt” to the
jury during voir dire.9 but once it became clear that the lesser-
related offense instruction would not be given, bazer had no
choice, given this admission, but to plead guilty.
We begin by noting that the record clearly demonstrates that
bazer’s trial counsel did not, as bazer suggests, “admit bazer’s
guilt.” trial counsel told the venire that he was “not going to
hide” the fact that bazer held the gun that misfired and killed
Jirsak, but counsel explained that the charge of felony murder
required that the state prove bazer intended the underlying
robbery. counsel suggested that bazer was too intoxicated to
formulate such an intent, and that therefore, he was not guilty of
the crime charged.
as the recorded trial strategy discussion between bazer and
his counsel reflects, the decision to admit, from the beginning,
that bazer fired the gun that killed Jirsak was based on the
overwhelming evidence against bazer. several people witnessed
bazer’s admissions that he had shot Jirsak. in addition, bazer
confessed to the police that he had shot Jirsak, although he
claimed that the gun fired accidentally. bazer’s motion to sup-
press these statements to the police had been overruled. casings
from the scene of the crime matched the gun that bazer led
the police to on the day of his arrest. in the recorded strategy
conference, counsel explained to bazer that the jury was not
going to have any trouble reaching the conclusion that bazer
shot Jirsak.
the strategy of admitting bazer shot Jirsak stemmed from
counsel’s determination that bazer would be better off deal-
ing frankly with the evidence and focusing the jury instead on
a theory that might have had a better chance for acquittal. in
light of the evidence that was going to be presented against
bazer, such a strategy was reasonable. as the u.s. supreme
court has explained, “[c]ounsel’s concern is the faithful repre-
sentation of the interest of his client, and such representation
frequently involves highly practical considerations . . . . often
9 brief for appellant at 42.
state v. bazer 	9
cite as 276 neb. 7

the interests of the accused are not advanced . . . by contesting
all guilt . . . .”20
bazer’s ineffective assistance claim focuses exclusively on
what he considers trial counsel’s unreasonable belief that the
jury should have been instructed as to a lesser-related offense.
he claims that the decision to admit that he had fired the gun was
related to this false belief and not to any other strategy. contrary
to bazer’s allegation, the record demonstrates that the strategy of
obtaining a lesser-related offense instruction was merely another
way that counsel sought in order to increase bazer’s chance of
being acquitted on the felony murder charge.
but even if bazer’s plea was a direct result of counsel’s
pursuit of a lesser-related offense instruction, bazer is simply
wrong in concluding that seeking such an instruction was, at that
time, an unreasonable and ineffective trial strategy. in a recorded
sidebar discussion with the trial court, bazer’s counsel explained
that he was well aware that, traditionally, nebraska cases had
held that there was no lesser-included offense to felony mur-
der, but counsel noted that in State v. Montgomery,2 this court
seemingly left the door open to lesser-related instructions under
certain circumstances, and counsel cited Beck v. Alabama22 for
the proposition that due process and equal protection demanded
such instructions when the death penalty was in issue. in Beck,
the u.s. supreme court held that it was error not to instruct
the jury on the lesser-included offenses to the capital crime of
“‘[r]obbery or attempts thereof when the victim is intentionally
killed by the defendant.’”23 the court reasoned, in part, that
the “unavailability of the third option of convicting on a lesser
included offense may encourage the jury to convict for an imper-
missible reason—its belief that the defendant is guilty of some
serious crime and should be punished.”24
20 Tollett v. Henderson, 4 u.s. 258, 268, 93 s. ct. 602, 36 L. ed. 2d 235
(973).
2 State v. Montgomery, supra note .
22 Beck v. Alabama, supra note 2.
23 Id., 447 u.s. at 627.
24 Id., 447 u.s. at 642.
20 	276 nebraska reports

bazer correctly points out that our law has always been clear
that there is no lesser-included offense to felony murder.25 but
this is beside the point. the question was whether bazer had
a right to have the jury instructed on lesser-related offenses
of second degree murder or manslaughter. a lesser-included
offense is one in which its elements are fully embraced by the
greater crime.26 in contrast, a lesser-related offense is one that
shares a common factual ground with the greater offense, but
not a commonality in statutory elements.27 trial counsel’s argu-
ment was that regardless of whether second degree murder or
manslaughter were technically lesser-included offenses, under
the reasoning of Beck, the jury should be instructed on these
offenses because it should not be forced to choose between put-
ting bazer to death or setting him free.
indeed, at the time of bazer’s trial, the law was unclear about
the extent to which the principles articulated in Beck were appli-
cable to cases involving felony murder—a crime to which, under
nebraska law, there is no lesser-included offense. many courts
have held that lesser-related instructions were mandated by the
principles articulated in Beck.28 in 996, in Reeves v. Hopkins,29
the eighth circuit affirmed habeas corpus relief to the defendant
convicted under nebraska’s felony murder statute because the
trial court had refused to instruct the jury on the lesser-related
offenses of second degree murder and manslaughter.
at the time of bazer’s trial, we had not specifically addressed
the applicability of Beck to lesser-related offenses and felony
murder. We had said only that it was “ordinarily” error to
instruct the jury in a felony murder case that it could find the
25 see, e.g., State v. Hubbard, 2 neb. 53, 39 n.W.2d 6 (982); State v.
McDonald, 95 neb. 625, 240 n.W.2d 8 (976); Morgan v. State, 5 neb.
672, 7 n.W. 788 (897).
26 see State v. Shiffbauer, 97 neb. 805, 25 n.W.2d 359 (977).
27 see, e.g., State v. Thomas, 87 n.J. 9, 900 a.2d 797 (2006).
28 see, generally, annot., 50 a.L.r.4th 08 (986).
29 Reeves v. Hopkins, 02 f.3d 977 (8th cir. 996).
state v. bazer 	2
cite as 276 neb. 7

defendant guilty of second degree murder or manslaughter.30
in Montgomery, we elaborated that there might occur a set of
facts under which an instruction on the lesser offenses of second
degree murder or manslaughter might be appropriate.
it was not until 994 that, in State v. Masters,3 we first
addressed and rejected the applicability of Beck to felony murder
and its lesser-related offenses. and it was not until 998 that the
u.s. supreme court finally resolved this issue when it reversed
the eighth circuit’s decision in Reeves v. Hopkins.32 in Hopkins
v. Reeves,33 the u.s. supreme court explained that mandating
a lesser-related offense instruction was “unworkable” and that
because in nebraska, capital sentencing was in the hands of the
judge, the jury was not presented with the stark choice described
in Beck.34
[9-] “[a] voluntary plea of guilty intelligently made in the
light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on
a faulty premise.”35 furthermore, the fact that a calculated trial
tactic or strategy fails to work out as planned will not establish
that counsel was ineffective.36 a plea of guilty will be found to
be freely and voluntarily entered upon the advice of counsel if
that advice is within the range of competence demanded of attor-
neys in criminal cases.37 We conclude that based on the law as
it existed at the time bazer made his plea and given the strength
30 see, e.g., State v. Ruyle, 234 neb. 760, 452 n.W.2d 734 (990); State v.
Massey, 28 neb. 492, 357 n.W.2d 8 (984); State v. Hubbard, supra
note 25.
3 State v. Masters, 246 neb. 08, 524 n.W.2d 342 (994). see, also, State v.
Price, 252 neb. 365, 562 n.W.2d 340 (997).
32 Reeves v. Hopkins, supra note 29.
33 Hopkins v. Reeves, 524 u.s. 88, 8 s. ct. 895, 4 L. ed. 2d 76 (998).
34 Id., 524 u.s. at 97. see, also, State v. Moore, 256 neb. 553, 59 n.W.2d 86
(999).
35 Brady v. United States, 397 u.s. 742, 757, 90 s. ct. 463, 25 L. ed. 2d 747
(970).
36 State v. Journey, 207 neb. 77, 30 n.W.2d 82 (98).
37 State v. Silvers, 255 neb. 702, 587 n.W.2d 325 (998); State v. Escamilla,
245 neb. 3, 5 n.W.2d 58 (994).
22 	276 nebraska reports

of the state’s case against bazer, it is apparent from the files and
records that bazer’s trial counsel demonstrated no incompetence
in attempting to procure instructions of second degree murder
and manslaughter.
[2,3] under the nebraska postconviction act, the district
court has discretion to adopt reasonable procedures for deter-
mining what the motion and the files and records show, and
whether any substantial issues are raised, before granting a full
evidentiary hearing.38 even if appropriate allegations are made,
an evidentiary hearing should be denied if the trial records
and files affirmatively show that the defendant is entitled to no
relief.39 in this case, the trial records and files affirmatively show
that based upon the allegations made in bazer’s motion, bazer
is entitled to no relief. the trial court was correct in dismissing
the motion.
affIrMeD.
38 State v. McLeod, 274 neb. 566, 74 n.W.2d 664 (2007); State v. Dean, 264
neb. 42, 645 n.W.2d 528 (2002).
39 see, State v. Jones, supra note 4; State v. Soukharith, supra note 8.
lIberty D evelopMeNt C orporatIoN, a N ebraSka CorporatIoN,
appellee aND CroSS- appellaNt , v . M etropolItaN utIlItIeS
DIStrICt of oMaha , a MuNICIpal CorporatIoN aND
polItICal SubDIvISIoN of the S tate of N ebraSka ,
appellaNt aND CroSS- appellee .
75 n.W.2d 608
filed July 3, 2008. 	no. s-07-582.
. Judgments: Jurisdiction: Appeal and Error. a jurisdictional question that does
not involve a factual dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determination made by the
court below.
2. Trial: Expert Witnesses. it is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to give his opinion
about an issue in question.
3. Trial: Expert Witnesses: Appeal and Error. a trial court’s ruling in receiving
or excluding an expert’s opinion which is otherwise relevant will be reversed only
when there has been an abuse of discretion.
LibertY deV. corp. v. metropoLitan utiL. dist. 	23
cite as 276 neb. 23