State v. Jim

so inflammatory that an admonition to the jury cannot remove
the contamination.11
The prosecutor’s questions regarding Goynes’ prior gun
ownership came after the State had called 14 witnesses and
rested. In addition, the court instructed the jury not to specu-
late on answers to questions that the court had overruled. But
more important, the jury was aware from other testimony that
through his gang, Goynes had previously been associated with
guns. After the prosecutor’s cross-examination of Goynes, in
rebuttal, a police officer testified that Goynes told him that he
was a member of the “38th Street Bloods” gang, that he asso-
ciated with other gangs, and that he and other gang members
“hang out” in Kountze Park, where “they hide their firearms in
the trash can.” Thus, the jury was aware that Goynes had con-
tact with guns before the Lofton shooting.
Although the prosecutor should have retreated from his ques-
tioning sooner, in the grand scheme of things, we believe the
jury would have little noted or long remembered the exchange.
In sum, the prosecutor’s conduct did not infect the jury. And
so, despite the court’s sustaining all objections to the State’s
questions regarding Goynes’ previous gun ownership, the jury
knew that Goynes had a gun before the Lofton shooting.
We conclude that the district court did not err in denying
Goynes’ motion for a mistrial.
A ffirmed.
11 See Beeder, supra note 9. See, also, State v. Pierce, 231 Neb. 966, 439
N.W.2d 435 (1989).
StAte of NebrASkA, Appellee , v.
rickey l. Jim , AppellANt.
768 N.W.2d 464
Filed July 31, 2009. 	No. S-08-953.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous.
238 	278 NeBrASKA rePorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

2. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. An appellate court reviews inef-
fective assistance of counsel claims under the two-prong inquiry mandated
by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d
674 (1984).
4. ____: ____. In applying the two-prong test for ineffective assistance of coun-
sel claims, an appellate court reviews the lower court’s factual findings for
clear error.
5. ____: ____. Whether counsel’s performance was deficient and whether that defi-
ciency prejudiced the defendant are legal determinations that an appellate court
resolves independently of the lower court’s decision.
6. ____: ____. When analyzing a claim of ineffective assistance of appellate coun-
sel, courts usually begin by determining whether appellate counsel failed to bring
a claim on appeal that actually prejudiced the defendant.
7. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal.
8. ____: ____. When a case presents layered ineffectiveness claims, an appellate
court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674 (1984).
9. ____: ____. Under the test in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. ed. 2d 674 (1984), a court determines (1) whether counsel’s
performance was deficient and (2) whether the deficient performance actually
prejudiced the defendant in making his or her defense.
10. ____: ____. If trial counsel was not ineffective, then the defendant suffered no
prejudice when appellate counsel purportedly failed to bring an ineffective assist-
ance of trial counsel claim.
11. Effectiveness of Counsel: Proof. In demonstrating prejudice, a defendant claim-
ing ineffective assistance of counsel must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding would
have been different.
12. Effectiveness of Counsel: Presumptions. When considering whether trial coun-
sel’s performance was deficient, there is a strong presumption that counsel
acted reasonably.
13. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial
counsel is afforded due deference to formulate trial strategy and tactics. When
reviewing a claim of ineffective assistance of counsel, an appellate court will not
second-guess reasonable strategic decisions by counsel.
Appeal from the District Court for Douglas County: pAtriciA
A. lAmberty, Judge. Affirmed.
Deborah D. Cunningham for appellant.
STATe v. JIm 	239
Cite as 278 Neb. 238

Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck, and miller-lermAN, JJ.
miller-lermAN, J.
NATUre oF THe CASe
Appellant, rickey L. Jim, appeals the decision of the district
court for Douglas County which denied postconviction relief.
Because we find no error in the district court’s conclusion that
Jim was not denied effective assistance of appellate counsel,
we affirm.
STATemeNT oF FACTS
Jim was convicted by a jury in the district court for Douglas
County of the crime of child abuse resulting in death and
sentenced to 40 to 50 years in prison. Jim’s conviction was
affirmed by the Court of Appeals on direct appeal in State v.
Jim, 13 Neb. App. 112, 688 N.W.2d 895 (2004) (Jim I).
At trial, Jim was represented by the public defender, and
on direct appeal, Jim was represented by different counsel. In
Jim I, we recited the evidence at trial. The evidence showed
that on the evening of may 7, 2001, Candice Bryan left for
work and left her son, Layne Bryan Banik, and daughter, Sara
Bryan Banik, in the care of Jim. Bryan returned from work
around 11 p.m. but did not check on Layne or Sara, because
the doors to their rooms were closed. The next morning, Bryan
found Layne in his bed with his face completely in the pillow.
When she turned Layne over, his face was blue and he was
stiff. After attempting to perform mouth-to-mouth resuscitation
on Layne, Bryan called the 911 emergency dispatch service.
After being told by the 911 operator to place Layne on a flat
surface, Bryan moved him to the floor, placing him on his
back, and she again attempted to resuscitate Layne. Her efforts
were unsuccessful. An autopsy indicated that Layne had been
dead for many hours.
During the trial, portions of a 31⁄2-hour videotaped interview
that the police conducted with Jim were presented to the jury.
Trial counsel and the prosecutor had agreed to redact portions
240 	278 NeBrASKA rePorTS

of the interview in which Jim mentioned bone fractures that
Layne had sustained prior to the incident which caused his
death. However, when the videotaped testimony was presented
to the jury, it included the following statement by Jim to police
officers: “Well now that you guys tell me his arm is broke, it’s
something you know, maybe I did pull his arm too hard or you
know, I’ve, if, if something like that happened, I didn’t mean
for it to happen you know.” The remainder of the statements
by Jim concerning the three previous bone fractures were prop-
erly redacted.
Defense counsel objected to the introduction into evidence
of the above-quoted portion of the videotape and moved for a
mistrial. The district court denied the motion for mistrial but
agreed to give the following statement instructing the jury with
respect to the evidence:
During the course of the interrogation you heard state-
ments made by the police officers to the defendant, includ-
ing statements attributed to third parties. These statements
are not offered for the truth of the matter contained in
those statements and shall not be considered by you for
that purpose. They’re admitted solely to demonstrate the
method of interrogation of the defendant and to put his
statements in context.
Defense counsel did not request additional admonishment
regarding the statements.
At trial, there was also testimony by the doctor who con-
ducted Layne’s autopsy. He testified that during the external
examination, he observed blunt force trauma injuries in the
form of abrasions and contusions on the lower part of Layne’s
nose, the upper and lower lips, the gums, both sides of the neck,
the back of the scalp, and the back of the left shoulder.
Further, the doctor testified that in the examination of
Layne’s body cavity organs, there were focal areas of small
pinpoint hemorrhages present on the lining of Layne’s heart
and both lungs, which hemorrhages are often seen in deaths
caused by asphyxiation.
The doctor testified that based upon his experience and
training, and his post mortem examination of Layne’s body, his
opinion to a reasonable degree of medical certainty regarding
STATe v. JIm 	241
Cite as 278 Neb. 238

the cause of death was “asphyxiation secondary to smother-
ing.” The doctor testified that in his opinion based on a rea-
sonable degree of medical certainty, the abrasions to Layne’s
nose, lips, and gums were caused by his neck’s being forced
into a pillow or bedding until he died, and that the injuries
were consistent with those produced by a struggling child who
is having his face and mouth covered by being pushed into a
pillow or bedding.
on appeal, Jim assigned as error, inter alia, that the district
court erred in overruling his motion for mistrial based on the
inadvertent admission of the unredacted comment in the video-
taped testimony. In addressing this issue, the Court of Appeals
reviewed the statement and concluded that “[a]lthough the
objectionable testimony should have been redacted along with
the other portions of Jim’s interview with police relating to
long bone fractures, . . . no substantial miscarriage of justice
actually occurred in this case, nor was a fair trial prevented.”
Jim I, 13 Neb. App. at 131, 688 N.W.2d at 912. A petition for
further review to this court was denied.
Jim filed a verified motion for postconviction relief on
April 7, 2006. In his motion, Jim alleged that his appellate
counsel was ineffective for failing to raise on appeal that
his trial counsel was ineffective for (1) failing to file certain
motions, (2) failing to call an expert witness, (3) failing to
file a motion to withdraw as requested by defendant, and (4)
allowing into evidence the unredacted comment in the video-
taped testimony. Without conducting an evidentiary hearing,
the district court ordered a new direct appeal on the issue
of the admission of the unredacted portion of the video-
taped testimony.
on appeal, this court reversed that order and remanded the
cause for further proceedings, stating that on remand, the dis-
trict court should determine the sufficiency of Jim’s factual
allegations in his postconviction motion and whether the files
and records of the case affirmatively show that he is entitled
to no relief. State v. Jim, 275 Neb. 481, 747 N.W.2d 410
(2008). We stated that if the factual allegations are sufficient
and are not refuted by the files and records, the court should
conduct an evidentiary hearing and make findings of fact and
242 	278 NeBrASKA rePorTS

conclusions of law with respect to the merits of Jim’s postcon-
viction claims. Id.
on July 17, 2008, the district court held an evidentiary hear-
ing on Jim’s motion for postconviction relief. At the evidentiary
hearing, the district court received into evidence Jim’s depo-
sition testimony, trial counsel’s deposition testimony, appellate
counsel’s deposition testimony, and the bill of exceptions of
the trial.
Trial counsel testified that the parties agreed that they would
not introduce evidence of Layne’s three older fractures. Trial
counsel testified that he had received a copy of Jim’s 31⁄2-hour
videotaped statement, and the transcription of the videotape,
and had marked the portions that needed to be redacted based
on this agreement. Trial counsel testified that he had reviewed
his copy of the redacted tape before it was played and that he
did not know whether the one statement remained unredacted
because he missed it or because a different copy was played to
the jury.
Trial counsel testified that his initial response to the play-
ing of the tape was to move for a mistrial. He stated that when
the motion was overruled, in considering what cautionary
instruction should be given, he concluded that because the
tape would not go to the jury room, he would request a “rather
bland” instruction. He testified that he believed it unwise to
request a limiting instruction which would highlight the unre-
dacted statement and that he thought a general instruction
would cover the statement without drawing further attention to
the statement.
Appellate counsel stated in his deposition testimony that in
bringing the appeal, he ruled out assigning as error ineffective
assistance of counsel based on the inadvertent playing of the
unredacted comment in the videotape. Appellate counsel stated
that he did not feel trial counsel’s performance was ineffective
and that assigning error on those grounds would have been a
frivolous issue. Appellate counsel testified that he talked with
Jim and informed him that in all likelihood, he would not raise
any issue of ineffective assistance of trial counsel in connection
with the inadvertent playing of the videotaped comment, and
that Jim did not request that he raise the issue.
STATe v. JIm 	243
Cite as 278 Neb. 238

on August 8, 2008, the district court entered an order reject-
ing Jim’s ineffective assistance of counsel claim and denying
Jim’s motion for postconviction relief. The district court con-
cluded that Jim’s appellate counsel was not ineffective for not
raising an ineffective assistance of trial counsel claim on direct
appeal, because counsel’s decision not to request a more spe-
cific admonishment after the inadvertent playing of the com-
ment was trial strategy, and that Jim had not demonstrated that
there was a reasonable probability that but for the damaging
statement made in the videotape, the result of the proceeding
would have been different. Jim appeals.
ASSIGNmeNT oF error
In his brief, Jim asserts his sole assignment of error as fol-
lows: “The District Court erred in finding that Jim had not
demonstrated that there was a reasonable probability but for
the admission of [the] damaging statement in the video that
the result would have been different and that other questioned
actions by counsel were reasonable, strategic decisions.”
STANDArDS oF reVIeW
[1-5] A defendant requesting postconviction relief must
establish the basis for such relief, and the district court’s find-
ings will not be disturbed unless they are clearly erroneous.
State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008). A
claim that defense counsel provided ineffective assistance pre-
sents a mixed question of law and fact. Id. We review ineffec-
tive assistance of counsel claims under the two-prong inquiry
mandated by Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. ed. 2d 674 (1984). Under this inquiry, we
review the lower court’s factual findings for clear error. State v.
Jackson, supra. Whether counsel’s performance was deficient
and whether that deficiency prejudiced the defendant are legal
determinations that we resolve independently of the lower
court’s decision. Id.
ANALYSIS
Upon synthesizing Jim’s assignment of error and the argu-
ments in his brief, we understand Jim claims that trial coun-
sel’s failure to ensure the objectionable comment was excluded
244 	278 NeBrASKA rePorTS

from the videotape, and his actions taken in response to the
inadvertent playing of the comment, amounted to ineffective
assistance of counsel and that appellate counsel was ineffec-
tive when he did not assign these purported errors in Jim’s
direct appeal. Jim’s assignment of error to this court is that
the district court erred when it concluded Jim did not receive
ineffective appellate counsel and, therefore, denied postconvic-
tion relief.
[6-10] When analyzing a claim of ineffective assistance of
appellate counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that actually
prejudiced the defendant. State v. Jackson, supra. In doing so,
courts begin by assessing the strength of the claim appellate
counsel purportedly failed to raise. Counsel’s failure to raise
an issue on appeal could be ineffective assistance only if there
is a reasonable probability that inclusion of the issue would
have changed the result of the appeal. Id. When, as here, the
case presents layered ineffectiveness claims, we determine
the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the
Strickland test. State v. Jackson, supra. Under the Strickland
test, a court determines (1) whether counsel’s performance was
deficient and (2) whether the deficient performance actually
prejudiced the defendant in making his or her defense. See
State v. Jackson, supra. If trial counsel was not ineffective,
then the defendant suffered no prejudice when appellate coun-
sel purportedly failed to bring an ineffective assistance of trial
counsel claim. Id.
As an initial matter, the State directs our attention to the
Court of Appeals’ opinion on direct appeal in which the sub-
stance of many of Jim’s current claims was considered and
rejected. The State urges us to affirm, suggesting that certain
claims are not properly before this court. While we do not
agree with the State’s analysis, we agree that Jim’s claims are
without merit.
Jim now claims that trial counsel was deficient when he
failed to ensure all matter intended to be excluded from the
videotape was in fact excluded and that Jim was prejudiced
thereby. As the State notes, the Court of Appeals considered
STATe v. JIm 	245
Cite as 278 Neb. 238

the playing of the unredacted comment in connection with its
consideration of Jim’s unsuccessful argument on direct appeal
wherein he claimed that the trial court had erred when it denied
his motion for mistrial based on the inadvertent playing of
the objectionable comment. In Jim I, the Court of Appeals
acknowledged that “the objectionable testimony should have
been redacted,” 13 Neb. App. at 131, 688 N.W.2d at 912, but
after the examination of the entire cause, concluded that no
substantial miscarriage of justice occurred and that a mistrial
was not indicated.
Unlike his focus in his direct appeal on the trial court’s
ruling on the motion for mistrial, as rephrased in the current
appeal, Jim claims that trial counsel’s failure to ensure that
the objectionable comment was excluded was deficient and
prejudicial, thus amounting to ineffective assistance of counsel,
and that direct appeal counsel was ineffective for failing to
raise this issue. In the present context, we observe that under
the two-prong test in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. ed. 2d 674 (1984), Jim must establish
both a deficiency and prejudice in order to succeed on his inef-
fective assistance of counsel claim. As explained below, we
conclude that there was no prejudice at trial, and because trial
counsel was not ineffective, we agree with the district court
that appellate counsel was not ineffective. our determination
that no prejudice resulted from the playing of the objection-
able testimony is consistent with the Court of Appeals’ opinion
noted above.
[11] In demonstrating prejudice, a defendant claiming inef-
fective assistance of counsel must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. See State
v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004). We have
repeatedly observed that it is unlikely that the outcome of the
proceedings would have been different where properly intro-
duced evidence against a defendant is overwhelming. See, e.g.,
State v. Hunt, 254 Neb. 865, 580 N.W.2d 110 (1998).
In this case, the record, recited in greater detail above,
established that Jim was the sole caregiver at the time of
Layne’s death, that Layne struggled and was injured thereby,
246 	278 NeBrASKA rePorTS

and that Layne’s death was caused by “asphyxiation secondary
to smothering.” The inadvertent reference to one of Layne’s
three prior injuries was incidental compared to the properly
received evidence at trial regarding the event causing Layne’s
death. Because the properly introduced evidence against Jim
was overwhelming, he failed to demonstrate a reasonable prob-
ability that but for the performance by his trial counsel, the
outcome of his trial would have been different. Jim has not
established the prejudice prong of his ineffective assistance of
counsel claim, and we find no merit to his argument regarding
the inadvertent playing of the remark in the videotape. There
is no reasonable probability that inclusion of this issue would
have changed the result of the appeal. See State v. Jackson,
275 Neb. 434, 747 N.W.2d 418 (2008). Appellate counsel was
therefore not ineffective when he did not raise this issue.
[12,13] With respect to Jim’s claim that trial counsel failed
to take the required steps after the objectionable comment
was admitted, based on reasonable trial strategy, we find no
deficiency, and therefore, trial counsel’s actions in this regard
were not ineffective. When considering whether trial counsel’s
performance was deficient, there is a strong presumption that
counsel acted reasonably. See State v. Hudson, 277 Neb. 182,
761 N.W.2d 536 (2009). Furthermore, trial counsel is afforded
due deference to formulate trial strategy and tactics. When
reviewing a claim of ineffective assistance of counsel, an
appellate court will not second-guess reasonable strategic deci-
sions by counsel. State v. Lotter, 266 Neb. 245, 664 N.W.2d
892 (2003).
In this case, the district court found that trial counsel’s deci-
sions after the inadvertent playing of the unredacted videotaped
testimony involved reasonable trial strategy and were not inef-
fective. The record shows that in response to the playing of the
testimony, trial counsel’s immediate reaction was to ask for a
mistrial. Trial counsel testified in this postconviction case that
after the motion was denied, in requesting an admonishment,
he attempted to address the objectionable testimony without
highlighting the testimony. Based on this record, the district
court’s finding that trial counsel’s actions were “reasonable,
strategic decisions” was not clearly erroneous. The district
STATe v. JIm 	247
Cite as 278 Neb. 238

court did not err when it concluded that trial counsel’s actions
did not constitute deficient performance, and therefore, appel-
late counsel was not ineffective when he did not raise this pur-
ported error on direct appeal.
CoNCLUSIoN
Because Jim did not establish that his trial counsel was inef-
fective, he failed to establish that his appellate counsel was
ineffective. The district court did not err when it denied Jim’s
motion for postconviction relief based on the claim that he
was denied effective assistance of appellate counsel. We there-
fore affirm.
A ffirmed.
StAte of NebrASkA, Appellee , v.
l.t. tHomAS, AppellANt.
769 N.W.2d 357
Filed July 31, 2009. 	No. S-08-1177.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. A defendant moving for postconvic-
tion relief must allege facts which, if proved, constitute a denial or violation of
his or her rights under the Nebraska or U.S. Constitution.
3. Postconviction: Judgments: Appeal and Error. 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 reaches a conclusion independent
of the lower court’s ruling.
4. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
5. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective 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 perform-
ance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
6. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues that were known to the defendant and could have
been litigated on direct appeal.
248 	278 NeBrASKA rePorTS