State v. Lotter

would have been due under the policy if it had been obtained
by the agent.37
In the present case, coverage is excluded under the Tudor
policy based on Mortgage Express’ failure to satisfy the condi-
tions precedent to coverage, specifically that it must have no
knowledge of the negligent act giving rise to a claim prior to
the effective date of the policy. As such, we need not deter-
mine whether the transaction constituted “professional ser-
vices” because even if it does, coverage would still be denied.
Therefore, Peterson is not liable to Mortgage Express based
upon claims that it failed to obtain adequate insurance. The
district court properly entered summary judgment in favor of
Peterson based on Mortgage Express’ claim that Peterson failed
to procure proper insurance.
We note that Mortgage Express did not assign as error the
district court’s grant of summary judgment in favor of Peterson
based on its failure to procure insurance under the Cincinnati
policy. As such, we do not need to address this issue.38
VI. CONCLUSION
In sum, we conclude that the record discloses no genuine
issues of material facts and that Tudor, Cincinnati, and Peterson
were entitled to judgment as a matter of law.
A ffirmed.
37 Broad v. Randy Bauer Ins. Agency, 275 Neb. 788, 749 N.W.2d 478
(2008).
38 See Suburban Air Freight v. Aust, 262 Neb. 908, 636 N.W.2d 629 (2001).
StAte of NebrASkA, Appellee , v.
JohN l. lotter , AppellANt.
771 N.W.2d 551
Filed September 4, 2009. 	Nos. S-08-449 through S-08-451.
1. Postconviction. Whether a claim raised in a postconviction proceeding is pro-
cedurally barred is a question of law.
2. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
466 	278 NEbrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

3. Postconviction. States are not obligated to provide a postconviction relief
procedure.
4. Postconviction: Constitutional Law. The Nebraska Postconviction Act, Neb.
rev. Stat. § 29-3001 et seq. (reissue 2008), provides a defendant in custody
with a civil procedure by which, at any time, the defendant can present a motion
alleging there was such a denial or infringement of the rights of the prisoner as
to render the judgment void or voidable under the Constitution of this state or the
Constitution of the United States.
5. Postconviction. Postconviction relief under Neb. rev. Stat. § 29-3001 (reissue
2008) is a very narrow category of relief.
6. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the movant’s rights
under the Nebraska or federal Constitution.
7. Constitutional Law: Due Process: Trial. A fair trial before a fair and impar-
tial jury is a basic requirement of constitutional due process guaranteed by the
Constitutions of the United States and the State of Nebraska.
8. Criminal Law: Testimony. Where the testimony is in any way relevant to a case,
the knowing use of perjured testimony by the prosecution deprives a criminal
defendant of his or her right to a fair trial.
9. Due Process: Witnesses. When the reliability of a given witness may be determi-
native of guilt or innocence, nondisclosure of evidence affecting credibility vio-
lates due process, irrespective of the good faith or bad faith of the prosecution.
10. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
11. Postconviction: Appeal and Error. It is fundamental that a motion for post-
conviction relief cannot be used to secure review of issues which were known to
the defendant and could have been litigated on direct appeal.
12. ____: ____. An appellate court will not entertain a successive motion for
postconviction relief unless the motion affirmatively shows on its face that the
basis relied upon for relief was not available at the time the movant filed the
prior motion.
13. Witnesses: Collateral Attack. Perjury per se is not a ground for collateral attack
on a judgment.
14. Due Process: Trial: Verdicts. The Due Process Clause guarantees a procedurally
fair trial, but does not guarantee that the verdict will be factually correct.
15. Constitutional Law: Postconviction: Motions for New Trial. Unlike post-
conviction relief, relief under Neb. rev. Stat. § 29-2103 (reissue 2008) is not
strictly limited to constitutional claims.
16. Postconviction: Motions for New Trial: Time: Evidence. A motion for post-
conviction relief cannot be used to obtain, outside of the 3-year time limitation
under Neb. rev. Stat. § 29-2103 (reissue 2008), what is essentially a new trial
based on newly discovered evidence.
17. Convictions: Presumptions. Once a defendant has been afforded a fair trial and
convicted of the offense for which the defendant was charged, the presumption of
innocence disappears.
18. Constitutional Law: Criminal Law: Homicide: Death Penalty. Even if a
defendant has not actually killed a victim, substantial participation in the felony
STATE v. LOTTEr 	467
Cite as 278 Neb. 466

committed, combined with reckless indifference to human life, is sufficient to
satisfy the constitutional culpability requirement for a conviction of first degree
murder and to support a constitutional application of the death penalty.
19. Trial: Due Process: Prosecuting Attorneys. It is prosecutorial misconduct and
a violation of a defendant’s due process right to a fair trial to obtain testimony
through violence.
20. Constitutional Law: Criminal Law: Witnesses: Death Penalty. A witness’
testimony is not the result of unconstitutional coercion simply because it is moti-
vated by a legitimate fear of a death sentence.
21. Witnesses: Immunity: Plea Bargains. It is permissible for the State to make
promises of immunity or pardon to witnesses in return for testimonial confessions
and to make promises of reduced charges or reduced sentences tendered to defend-
ants and potential defendants by plea bargains in return for judicial admission
of guilt.
Appeals from the District Court for richardson County:
dANiel e. bryAN, Jr ., Judge. Affirmed.
Andre r. barry, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellant.
Jon bruning, Attorney General, and J. kirk brown for
appellee.
heAvicAN, 	c.J., 	coNNolly, 	G errArd, 	StephAN, 	and
mccormAck, JJ., and iNbody, Chief Judge, and cArlSoN,
Judge.
mccormAck, J.
I. NATUrE OF CASE
John L. Lotter was convicted of three counts of first degree
murder and sentenced to death. The evidence at trial was that
Thomas M. Nissen, also known as Marvin T. Nissen, and
Lotter planned the murders together, but Nissen testified that
it was Lotter who actually killed the victims. Fourteen years
after the crimes were committed, Nissen signed an affidavit
stating that he committed perjury at Lotter’s trial and that he,
not Lotter, actually killed the victims. Lotter appeals from the
district court’s order denying his second pro se motion for post-
conviction relief.
II. bACkGrOUND
In May 1995, Lotter was convicted of three counts of first
degree murder, three counts of use of a weapon to commit
468 	278 NEbrASkA rEPOrTS

a felony, and one count of burglary in connection with the
December 1993 deaths of Teena brandon, Lisa Lambert,
and Phillip DeVine in richardson County, Nebraska. Lotter
was sentenced to death for each count of first degree murder
and to incarceration on the burglary and use of a weapon
convictions.
before Lotter’s trial, Nissen was convicted in a separate
trial of first degree murder in the death of brandon and second
degree murder in the deaths of Lambert and DeVine.1 While
Nissen’s sentencing hearing was pending, Nissen entered into
a plea agreement with the State. The agreement provided that
Nissen would testify truthfully against Lotter at Lotter’s trial
and that, in exchange, the State would not pursue the death
penalty against Nissen for brandon’s murder.
At Lotter’s trial, Nissen testified that he and Lotter traveled
to Lambert’s house, where they knew brandon was staying, in
order to kill brandon. Nissen and Lotter had previously raped
brandon, and they were angry that she had reported the rape
to the police. Nissen testified that he and Lotter agreed they
would also kill anyone else they found there. Nissen testified
that he stabbed brandon, but that Lotter fired the shots that
killed all three victims.
In addition to Nissen’s testimony, other evidence at trial
established that on the night of the murders, Lotter stole the
gun used to murder the victims and that Lotter obtained the
knife and the yellow work gloves worn during the crimes. Just
before the killings, both Nissen and Lotter were seen wearing
gloves. The evening of the murders, Lotter told a witness he
wanted to kill someone. And after the murders, Nissen and
Lotter sought to obtain alibis from Nissen’s wife and Lotter’s
girlfriend. Finally, there was evidence indicating that Lotter
had traveled to Lincoln, Nebraska, looking for brandon in
order to murder her.
Lotter testified in his own defense and denied any participa-
tion in either the planning or the perpetration of the murders.
Lotter stated he was not present when the murders were com-
mitted. He testified that Nissen had not been truthful in his
1 See State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
STATE v. LOTTEr 	469
Cite as 278 Neb. 466

testimony regarding Lotter’s involvement in the crimes and that
other witnesses who gave incriminating testimony against him
were either lying or mistaken.
In sentencing Lotter to the death penalty, the sentencing
panel found the following aggravating circumstances to be
applicable. For Lambert and DeVine, the panel found in each
case that “‘[t]he murder was committed in an apparent effort
. . . to conceal the identity of the perpetrator of a crime’”2 and
that “‘[a]t the time the murder was committed, the offender also
committed another murder.’”3 As to the murder of brandon, the
panel found that at the time the murder was committed, the
offender also committed another murder4 and that “‘[t]he crime
was committed to disrupt or hinder . . . the enforcement of
the laws.’”5
When comparing Lotter’s and Nissen’s participation in the
homicides, the sentencing panel stated that the evidence, based
largely upon Nissen’s testimony, was that Lotter fired all the
shots that killed the three victims. but the panel explained
that even if it was Nissen, and not Lotter, who actually killed
brandon by stabbing her, “there is no appreciable difference in
degree of culpability between these Co-Defendants during the
actual commission of the homicides.”6 In comparing the actions
of Nissen and Lotter after the commission of the crimes, how-
ever, the sentencing panel stated that Nissen’s statements to
investigators, as well as Nissen’s agreement to testify against
Lotter at trial, distinguished his conduct from Lotter’s.
Lotter’s convictions were affirmed on direct appeal.7 Lotter
then moved for postconviction relief, was appointed counsel,
2 State v. Lotter, 266 Neb. 758, 771, 669 N.W.2d 438, 448 (2003). See, also,
Neb. rev. Stat. § 29-2523(1)(b) (reissue 2008).
3 State v. Lotter, supra note 2, 266 Neb. at 771, 669 N.W.2d at 448. See,
also, § 29-2523(1)(e).
4 See id.
5 State v. Lotter, supra note 2, 266 Neb. at 771, 669 N.W.2d at 448. See,
also, § 29-2523(1)(h).
6 State v. Lotter, supra note 2, 266 Neb. at 772, 669 N.W.2d at 449.
7 State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial
of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).
470 	278 NEbrASkA rEPOrTS

and was granted an evidentiary hearing in 1999. In this motion,
Lotter alleged that Nissen, not Lotter, had shot and killed the
three victims and that the State knew or should have known
Nissen’s testimony was perjured. In support of this assertion,
Lotter relied on an affidavit of Jeff Haley, an inmate incarcer-
ated with Nissen. Haley averred that Nissen told him that he
had fired the shots and that, as Nissen shot the victims, Lotter
was “‘freaking out and running around,’” saying “‘What are
you doing?’”8 According to Haley, Nissen stated that he should
have shot Lotter as well and then there would have been no
witnesses. Lotter also filed a motion for writ of error coram
nobis and a motion for new trial based on the statements alleg-
edly made by Nissen to Haley.
At the evidentiary hearing, Nissen pled the Fifth Amendment
and refused to answer any questions. The district court con-
cluded that Haley’s testimony as to what Nissen had allegedly
said to him was inadmissible hearsay. And the district court
found that the inadmissible hearsay did not fall within the
penal interest exception to the hearsay rule,9 because there
were no corroborating circumstances clearly indicating the
trustworthiness of the testimony.10
Having no admissible evidence before it to support Lotter’s
claims, the district court denied all relief, and we affirmed. We
agreed that the district court properly excluded Haley’s testi-
mony and that thus, such statements could not form the basis
of any claim that Nissen’s trial testimony was perjured. Since
Lotter failed to present any other evidence that was unavailable
during direct appeal that could show the State knew Nissen’s
testimony was perjured, we held that the court properly denied
postconviction relief. For similar reasons, we concluded that
the court was correct to deny Lotter’s motions for new trial and
writ of error coram nobis.
In 2001, Lotter filed a pro se motion for postconviction
DNA testing pursuant to the DNA Testing Act.11 Evidence at
8 State v. Lotter, 266 Neb. 245, 252, 664 N.W.2d 892, 902 (2003).
9 See Neb. rev. Stat. § 27-804(2)(c) (reissue 2008).
10 State v. Lotter, supra note 8.
11 See Neb. rev. Stat. § 29-4116 et seq. (reissue 2008).
STATE v. LOTTEr 	471
Cite as 278 Neb. 466

Lotter’s trial had indicated that the yellow work gloves worn by
Nissen at the time of the crime contained two areas that tested
positive for blood. The blood had never been subjected to DNA
testing. Lotter claimed that if the blood on the gloves and other
clothing worn by Nissen that night was shown to be caused by
high-velocity blood spatter from brandon, as opposed to blood
from stabbing, or if the blood was shown to be from Lambert
and/or DeVine, then it would establish that Nissen was not in
the locations he testified he was in during the crime and that
Nissen was the shooter, not Lotter.
We upheld the district court’s decision to deny the motion.12
We explained that there would be no way to establish the
manner in which the blood had been deposited on the cloth-
ing, as opposed to whose blood it was. And since there were
any number of ways in which the victims’ blood could have
been deposited on Nissen’s clothing during the crime, whose
blood it was would not be probative of whether Nissen was the
shooter. Thus, the testing would not result in noncumulative,
exculpatory evidence relevant to the claim that he was wrong-
fully convicted, as required by the DNA Testing Act.13
We also rejected Lotter’s claim that the DNA evidence could
produce noncumulative, exculpatory evidence relevant to the
claim that Lotter was wrongfully sentenced, explaining: “As
the sentencing panel correctly concluded, the record is barren
of any evidence that Lotter was merely an accomplice or that
his participation was relatively minor. There was no appre-
ciable difference in the degree of culpability between Nissen
and Lotter during the actual commission of the murders.”14
And we stated, again, that the presence of the victims’ DNA
on the items sought to be tested would not be inconsistent with
Nissen’s testimony and could not indicate whether Lotter was
the shooter.15
12 See State v. Lotter, supra note 2.
13 See § 29-4120.
14 State v. Lotter, supra note 2, 266 Neb. at 773, 669 N.W.2d at 449.
15 See id.
472 	278 NEbrASkA rEPOrTS

In 2007, Nissen signed an affidavit averring that his testi-
mony in Lotter’s trial regarding “who fired the gun” was false.
Nissen stated that he, and not Lotter, shot brandon, Lambert,
and DeVine. Nissen did not recant any other portion of his tes-
timony concerning Lotter’s involvement in the murders.
Lotter then filed a second pro se motion for postconviction
relief, which is the subject of this appeal. The second post-
conviction motion alleged that Nissen was a critical witness
for the State and that during Lotter’s trial, Nissen “testified
falsely that it was [Lotter] who conceived the idea of killing
Lambert, brandon, and DeVine, and that [Lotter] shot all three
of them.”
Lotter alleged that his constitutional rights were violated
because the State knew or should have known that Nissen was
lying at trial. In particular, Lotter alleged that the State was in
possession of evidence that Nissen was a “‘world class liar’”
and a “‘con artist.’” In particular, the State was aware of a prior,
unrelated incident in which it was documented that Nissen had
lied to authorities. The motion further alleged that the State had
asked Nissen to take a polygraph test in connection with the
plea agreement, but that Nissen had refused. This information
indicating Nissen’s reputation as a liar was allegedly withheld
from Lotter “until after the conclusion of his trial.”
Citing Ortega v. Duncan,16 Lotter also asserted that the
State’s use of Nissen’s perjured testimony, regardless of its
knowledge that it was perjured, violated Lotter’s constitutional
rights because without Nissen’s testimony, Lotter “most likely
would not have been convicted or sentenced to death.”
Finally, citing Brown v. Mississippi,17 Lotter asserted that the
use of Nissen’s testimony violated Lotter’s constitutional rights
because Nissen’s testimony was procured by threat of death by
electrocution, a punishment this court has deemed cruel and
unusual in State v. Mata.18
16 Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003).
17 Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936).
18 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
STATE v. LOTTEr 	473
Cite as 278 Neb. 466

Attached to the second motion for postconviction relief was
Nissen’s affidavit, the aforementioned affidavit of his cellmate
Haley, statements to police by a family member describing
Nissen as a liar, and police reports relating to an incident
in 1989 where Nissen cut himself with a razor and blamed
someone else so the accused would get arrested. Also attached
was a newspaper article detailing Nissen’s previous run-ins
with the police and descriptions of Nissen’s reputation as a
liar. The district court concluded that no evidentiary hearing
was warranted by any of the allegations made by Lotter, and
Lotter appeals.
III. ASSIGNMENTS OF ErrOr
Lotter asserts that the district court erred in failing to grant
him a new trial or, at a minimum, hold an evidentiary hearing
to determine (1) whether Nissen gave perjured testimony at
Lotter’s trial and (2) whether the prosecution knew or should
have known about Nissen’s perjury at the time of Lotter’s trial.
Lotter asserts that the district court also erred in not granting
postconviction relief on the ground that his testimony was
coerced by the threat of cruel and unusual punishment.
IV. STANDArD OF rEVIEW
[1] Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law.19
[2] The determination of whether the procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law.20
V. ANALYSIS
[3-5] States are not obligated to provide a postconviction
relief procedure.21 Nevertheless, the Nebraska Postconviction
Act22 provides a defendant in custody with a civil procedure
by which, “at any time,” the defendant can present a motion
19 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
20 State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
21 See State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).
22 Neb. rev. Stat. § 29-3001 et seq. (reissue 2008).
474 	278 NEbrASkA rEPOrTS

alleging “there was such a denial or infringement of the rights
of the prisoner as to render the judgment void or voidable
under the Constitution of this state or the Constitution of the
United States.”23 Although there is no time limit to bringing
the motion, postconviction relief under § 29-3001 is a very
narrow category of relief, available only to remedy prejudi-
cial constitutional violations.24 Absent a factual circumstance
whereby the judgment is void or voidable under the state or
U.S. Constitution, the court has no jurisdiction to grant post-
conviction relief.25
[6] An evidentiary hearing on a motion for postconviction
relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution.26
but, this court has consistently required that a defendant make
specific allegations instead of mere conclusions of fact or law
in order to receive an evidentiary hearing for postconviction
relief.27 And postconviction relief without an evidentiary hear-
ing is properly denied when the files and records affirmatively
show that the prisoner is entitled to no relief.28
1. A lleGed perJured teStimoNy
Lotter’s primary focus for this postconviction claim is the
allegation that Nissen’s trial testimony against him was per-
jured. Specifically, Lotter alleged in his motion that Nissen
“testified falsely that it was [Lotter] who conceived the idea
23 § 29-3001.
24 See, State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Ryan,
257 Neb. 635, 601 N.W.2d 473 (1999).
25 State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007). See, also,
Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859
(2008); State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981); State v.
Whited, 187 Neb. 592, 193 N.W.2d 268 (1971); State v. Reizenstein, 183
Neb. 376, 160 N.W.2d 208 (1968).
26 State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
27 Id.
28 § 29-3001. See, also, State v. Dean, supra note 26; State v. Sims, supra
note 19.
STATE v. LOTTEr 	475
Cite as 278 Neb. 466

of killing Lambert, brandon, and DeVine, and that [Lotter]
shot all three of them.” The fact that Nissen was lying at trial
would presumably have been known to Lotter at the time of
the trial, and this issue was previously the subject of motions
for a new trial, writ of error coram nobis, and postconviction
relief. but Lotter points out that this is his first opportunity to
actually prove the perjury by virtue of Nissen’s partial recanta-
tion. Lotter argues that the use of the perjured testimony at his
trial violated due process of law and that his convictions and
sentences should be rendered void.
(a) Prosecutorial Misconduct
[7] We first address Lotter’s assertion that his right to a fair
trial was violated because, at the time of trial, the State knew
or should have known that Nissen’s testimony was perjured. A
fair trial before a fair and impartial jury is a basic requirement
of constitutional due process guaranteed by the Constitutions
of the United States and the State of Nebraska.29
[8,9] Where the testimony is in any way relevant to a case,
the knowing use of perjured testimony by the prosecution
deprives a criminal defendant of his or her right to a fair trial.30
Also, when the reliability of a given witness may be determi-
native of guilt or innocence, nondisclosure of evidence affect-
ing credibility violates due process, irrespective of the good
faith or bad faith of the prosecution.31 For, if evidence proba-
tive of innocence is in the prosecutor’s file, then the prosecutor
should be presumed to recognize its significance even if he or
29 U.S. Const. amend. XIV, § 1; Neb. Const. art. I, § 11. See, also, State v.
Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993); State v. Menuey, 239 Neb.
513, 476 N.W.2d 846 (1991); Simants v. State, 202 Neb. 828, 277 N.W.2d
217 (1979).
30 Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
See, also, United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed.
2d 342 (1976); Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d
9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791
(1935); State v. Ford, 187 Neb. 353, 190 N.W.2d 787 (1971).
31 See, Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972); Napue v. Illinois, supra note 30.
476 	278 NEbrASkA rEPOrTS

she actually overlooked it.32 The requirements of due process
are not satisfied by mere notice and hearing if a state has
contrived a conviction through the pretense of a trial which
in truth is but used as a means of depriving a defendant of
liberty through a deliberate deception.33 And the nondisclosure
of exculpatory evidence corrupts the truth-seeking function of
the trial process and helps shape a trial that bears heavily on
the defendant.34
but in this case, the recently discovered recantation by
Nissen is in no way probative of whether the State knew or
should have known Nissen’s testimony was perjured at the time
of Lotter’s trial or whether it failed to disclose exculpatory evi-
dence with regard to Nissen’s testimony. In fact, Lotter’s alle-
gation that the State knew or should have known of Nissen’s
perjury at the time of trial stems not from the recantation
affidavit, but from information known to the State that Nissen
had lied several times in the past and had refused the State’s
request that he take a lie detector test before testifying.
The problem is that Lotter fails to allege that this evidence
was unavailable before any of the numerous challenges already
made to his convictions and sentences. None of the facts
alleged in the current motion could prove the State knowingly
used perjured testimony against Lotter. And, even assuming
that a due process claim can rest on the State’s negligent fail-
ure to know that testimony is perjured,35 Lotter is procedurally
barred from raising his current allegations.
32 United States v. Agurs, supra note 30; Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See, also, State v. Boppre, supra note
29.
33 United States v. Agurs, supra note 30.
34 See Mooney v. Holohan, supra note 30. See, also, United States v. Agurs,
supra note 30; Brady v. Maryland, supra note 32.
35 See, U.S. v. Perkins, 94 F.3d 429 (8th Cir. 1996); People v. Cornille, 95
Ill. 2d 497, 448 N.E.2d 857, 69 Ill. Dec. 945 (1983). See, also, Giglio v.
United States, supra note 31. but see Smith v. Black, 904 F.2d 950 (5th
Cir. 1990), abrogated on other grounds, Stringer v. Black, 503 U.S. 222,
112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992).
STATE v. LOTTEr 	477
Cite as 278 Neb. 466

[10-12] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity.36 Therefore, it is fundamental that a motion for post-
conviction relief cannot be used to secure review of issues
which were known to the defendant and could have been
litigated on direct appeal.37 Similarly, an appellate court will
not entertain a successive motion for postconviction relief
unless the motion affirmatively shows on its face that the basis
relied upon for relief was not available at the time the movant
filed the prior motion.38 On its face, Lotter’s motion for post-
conviction relief failed to affirmatively show that he could not
have raised these issues either on direct appeal or during prior
motions for new trial and postconviction relief.
(b) Perjury Per Se
We next address Lotter’s claim that the mere presence of
perjured testimony, regardless of the State’s knowledge that it
was perjured, violated his rights to due process. Since this is
the first time that admissible evidence is available regarding
Nissen’s recantation, such a claim is arguably not procedurally
barred. However, we hold that Nissen’s recantation, even if
proved true, does not present a constitutional claim amendable
to postconviction relief. Therefore, postconviction relief on this
basis was properly denied without an evidentiary hearing.
[13,14] Perjury per se is not a ground for collateral attack
on a judgment. The guilt or innocence determination in a
procedurally fair trial is “‘a decisive and portentous event.’”39
The Due Process Clause guarantees a procedurally fair trial,
but does not guarantee that the verdict will be factually cor-
rect.40 The U.S. Supreme Court, while holding that affirmative
prosecutorial involvement in perjured testimony may interfere
36 State v. Sims, supra note 19.
37 State v. Ryan, supra note 24.
38 State v. Sims, supra note 19.
39 Herrera v. Collins, 506 U.S. 390, 401, 113 S. Ct. 853, 122 L. Ed. 2d 203
(1993).
40 Herrera v. Collins, supra note 39.
478 	278 NEbrASkA rEPOrTS

with the fairness of the trial process,41 has never held that the
prosecution’s unknowing reliance at trial on perjured testimony
violates any constitutional right.42
Other courts, more directly confronted with the issue, have
concluded that perjury itself, absent prosecutorial misconduct
surrounding the perjury, does not constitute an independent
constitutional claim.43 For instance, the court in Luna v. Beto44
rejected the defendant’s claim that a conviction on perjured
testimony was a constitutional violation even absent state com-
plicity, explaining that the unknowing use of perjured testi-
mony is simply an evidentiary mistake. In Luna v. Beto, the
court stated:
[F]or an otherwise valid state conviction to be upset years
later on federal habeas, surely something more than an
evidentiary mistake must be shown. If mistake is enough,
then never, simply never, will the process of repeated,
prolonged, postconviction review cease. For in every trial,
or at least nearly every trial, there will be, there are bound
to be, some mistakes.45
We agree. A defendant has a due process right to a trial
process in which the truth-seeking function has not been cor-
rupted. but it is axiomatic that the truth-seeking process is
not defective simply because not all evidence weighed by the
trier of fact was actually true. The protections of a “fair trial”
granted the defendant in the criminal process are there pre-
cisely because some of the evidence against the defendant may
be disputed.
41 See, e.g., Napue v. Illinois, supra note 30; United States v. Agurs, supra
note 30; Alcorta v. Texas, supra note 30; Mooney v. Holohan, supra note
30.
42 See Jacobs v. Scott, 513 U.S. 1067, 115 S. Ct. 711, 130 L. Ed. 2d 618
(1995) (Stevens, J., dissenting from denial of certiorari; Ginsburg, J.,
joins).
43 See, e.g., Black v. United States, 269 F.2d 38 (9th Cir. 1959). See, also,
Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975).
44 Luna v. Beto, 395 F.2d 35 (5th Cir. 1968).
45 Id. at 40 (brown, C.J., concurring specially; Gewin, bell, Thornberry,
Coleman, Ainsworth, Simpson, and Clayton, Circuit Judges, join).
STATE v. LOTTEr 	479
Cite as 278 Neb. 466

Lotter relies on Ortega v. Duncan,46 wherein the U.S. Court
of Appeals for the Second Circuit held that regardless of pros-
ecutorial knowledge of the perjury, due process is violated
when a court is left with the firm belief that but for a wit-
ness’ perjured testimony, the defendant would most likely not
have been convicted. In Ortega v. Duncan, the defendant was
granted habeas relief when a key witness placing the defendant
at the scene of the murder later recanted.
The majority of the federal circuits, however, reject the
Second 	Circuit’s 	conclusion 	that 	affirmative 	prosecutorial
involvement is not a necessary element of a due process viola-
tion based on perjured testimony.47 While some state courts
allow such a claim, many do so under postconviction relief
statutes that do not limit relief to constitutional claims render-
ing the judgment void or voidable.48
[15,16] In Nebraska, postconviction relief is strictly pre-
scribed. In a different statute, the Legislature has provided
defendants with the ability to file a motion for new trial based
on newly discovered evidence showing that the defendant
was wrongfully convicted.49 Unlike postconviction relief, relief
under § 29-2103 is not strictly limited to constitutional claims.
but a motion under § 29-2103 must be filed within 3 years of
the date of the verdict.50 We have repeatedly held that a motion
for postconviction relief cannot be used to obtain, outside of
the 3-year time limitation, what is essentially a new trial based
46 Ortega v. Duncan, supra note 16.
47 See, Smith v. Gibson, 197 F.3d 454 (10th Cir. 1999); Reddick v. Haws, 120
F.3d 714 (7th Cir. 1997); Jacobs v. Singletary, 952 F.2d 1282 (11th Cir.
1992); Smith v. Black, supra note 35; Stockton v. Com. of Va., 852 F.2d 740
(4th Cir. 1988); Burks v. Egeler, supra note 43; White v. Hancock, 355 F.2d
262 (1st Cir. 1966); United States v. Maroney, 271 F.2d 329 (3d Cir. 1959);
Pina v. Cambra, 171 Fed. Appx. 674 (9th Cir. 2006); Billman v. Warden,
197 Md. 683, 79 A.2d 540 (1951).
48 See, e.g., In re Carpitcher, 47 Va. App. 513, 624 S.E.2d 700 (2006); State
v. Workman, 111 S.W.3d 10 (Tenn. Crim. App. 2002); Downes v. State, 771
A.2d 289 (Del. 2001).
49 Neb. rev. Stat. § 29-2103 (reissue 2008).
50 Id. See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
480 	278 NEbrASkA rEPOrTS

on newly discovered evidence.51 This can be no less true for
a recently discovered recantation than for any other newly
discovered evidence material to the defendant. It has been
said that there is no form of proof so unreliable as recanting
testimony.52 “‘The opportunity and temptation for fraud are so
obvious that courts look with suspicion upon such an asserted
repudiation of the testimony of a witness for the prosecution,
and this is so even though the repudiation be sworn to.’”53
“‘Society’s resources have been concentrated at [the time of
trial] in order to decide, within the limits of human fallibility,
the question of guilt or innocence of one of its citizens.’”54 We
will not set aside that decision more than a decade after it was
made based only on the recent recantation of some portion of
a key witness’ testimony against Lotter. The 3-year limitation
of § 29-2103 reflects the fact that with the passage of time and
the erosion of memory and the dispersion of witnesses, there
is no guarantee that the truth-seeking function of a new trial
would be any more exact than the first trial.55 We do not grant
postconviction relief in the absence of a constitutional viola-
tion, and the presence of perjury by a key witness does not, in
and of itself, present a constitutional violation.
(c) Actual Innocence
[17] Nevertheless, in State v. El-Tabech,56 it was observed
that in the “rare case of actual innocence,” there might be a
claim that the continued incarceration of such an innocent
person, without affording an opportunity to present newly dis-
covered compelling evidence, is a denial or infringement of a
51 See, id.; State v. Dabney, 183 Neb. 316, 160 N.W.2d 163 (1968).
52 People v. Shilitano, 218 N.Y. 161, 112 N.E. 733 (1916). See, also, Dobbert
v. Wainwright, 468 U.S. 1231, 105 S. Ct. 34, 82 L. Ed. 2d 925 (1984)
(brennan, J., dissenting; Marshall, J., joins); Hysler v. Florida, 315 U.S.
411, 62 S. Ct. 688, 86 L. Ed. 932 (1942).
53 Fout v. Commonwealth, 199 Va. 184, 192, 98 S.E.2d 817, 823 (1957).
54 Herrera v. Collins, supra note 39, 506 U.S. at 401.
55 See id.
56 State v. El-Tabech, supra note 50, 259 Neb. at 529, 610 N.W.2d at 750
(Gerrard, J., concurring).
STATE v. LOTTEr 	481
Cite as 278 Neb. 466

constitutional right that would render the judgment void or
voidable. The U.S. Supreme Court, in Herrera v. Collins,57
while noting the “elemental appeal” of the premise that the
Constitution prohibits the execution of an innocent person,
concluded that such execution was not an independent constitu-
tional violation. However, the Court recognized that it was not
actually presented with the “truly persuasive demonstration of
‘actual innocence,’”58 which, assuming any such constitutional
claim could exist, would be required. For, the Court explained,
once a defendant has been afforded a fair trial and convicted of
the offense for which the defendant was charged, the presump-
tion of innocence disappears.59
[18] Since Herrera, some state courts have held that depriva-
tion of life or liberty, in the face of persuasive evidence of the
person’s actual innocence, violates fundamental concepts of
either procedural or substantive due process of law.60 but we
need not decide in this case whether and how a claim of actual
innocence is cognizable under Nebraska’s postconviction relief
statutes, because Nissen’s recantation fails to present an issue
of Lotter’s actual innocence. According to Lotter, Nissen’s
affidavit proves he lied about who fired the shots that killed
the victims and who “conceived” the idea of killing them. but
even if a defendant has not actually killed a victim, substantial
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the constitu-
tional culpability requirement for a conviction of first degree
murder61 and to support a constitutional application of the
death penalty.62
57 Herrera v. Collins, supra note 39, 506 U.S. at 398.
58 Id., 506 U.S. at 417.
59 See id.
60 See, e.g., In re Bell, 42 Cal. 4th 630, 170 P.3d 153, 67 Cal. rptr. 3d 781
(2007); People v. Washington, 171 Ill. 2d 475, 665 N.E.2d 1330, 216 Ill.
Dec. 773 (1996).
61 See Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982).
62 Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987);
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Ryan,
supra note 24.
482 	278 NEbrASkA rEPOrTS

Nothing in the allegations presented by the postconviction
motion, even if true, refutes the evidence at trial that Nissen
and Lotter, wearing gloves, traveled to Lambert’s house in
order to kill brandon and anyone else they found there. The
recantation does not refute the evidence that Lotter stole the
gun used to murder the victims and that Lotter obtained the
knife and the gloves worn during the crimes. It does not refute
the testimony of a witness that on the evening of the murders,
Lotter told the witness he desired to kill someone and that after
the murders, Lotter sought to obtain an alibi. As we indicated
in Lotter’s appeal from the denial of his motion for DNA
testing,63 because of the joint participation in the felony and
the reckless indifference to human life, it is irrelevant to the
degree of culpability by whose hand the victims actually died.
And certainly, determination of this question does not make a
showing of actual innocence of the crimes for which Lotter was
convicted and sentenced. As such, postconviction relief based
upon Nissen’s recent recantation was properly denied without
an evidentiary hearing.
2. coercioN by threAt of electrocutioN
Finally, Lotter alleges that he should have been granted post-
conviction relief, because Nissen’s testimony against him was
coerced by the threat of death by electrocution. In this regard,
Lotter argues that there are no issues of fact in dispute and that
the court simply should have granted postconviction relief with
or without an evidentiary hearing.
[19] It is prosecutorial misconduct and a violation of a
defendant’s due process right to a fair trial to obtain testimony
through violence.64 recently, in State v. Mata, we considered
evolving standards of decency and concluded that death by
electrocution resulted in “‘unnecessary pain, suffering, and
torture’ for some condemned prisoners” and was unconsti-
tutional.65 Lotter derives from this that Nissen’s testimony
63 State v. Lotter, supra note 2.
64 Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895
(1966); Brown v. Mississippi, supra note 17.
65 State v. Mata, supra note 18, 275 Neb. at 65, 745 N.W.2d at 277.
STATE v. LOTTEr 	483
Cite as 278 Neb. 466

pursuant to a plea bargain, wherein the State agreed not to pur-
sue the death penalty (at that time, through electrocution), was
unconstitutionally coerced by the threat of torture.
[20,21] A witness’ testimony is not the result of unconstitu-
tional coercion simply because it is motivated by a legitimate
fear of a death sentence.66 True promises of leniency are not
proscribed when made by persons authorized to make them.67
Thus, it is permissible for the State to make promises of immu-
nity or pardon to witnesses in return for testimonial confessions
and to make promises of reduced charges or reduced sentences
tendered to defendants and potential defendants by plea bar-
gains in return for judicial admission of guilt.68 At the time of
Nissen’s plea agreement with the State, death by electrocution
was considered constitutional69 and the State’s promise not to
pursue that punishment was thus a legitimate promise of leni-
ency. And, at trial, Lotter was permitted to thoroughly cross-
examine Nissen regarding his motivation to testify against him,
including his fear of death by electrocution. We find no merit
to Lotter’s argument that Nissen’s testimony was unconstitu-
tionally coerced.
VI. CONCLUSION
Even if we assume the allegations of Lotter’s second motion
for postconviction relief are true, he has failed to present any
claim that is not procedurally barred and which presents a con-
stitutional violation rendering the judgment against him void
or voidable. Therefore, the district court did not err in denying
relief without an evidentiary hearing.
A ffirmed.
WriGht and miller-lermAN, JJ., not participating.
66 Poindexter v. Wolff, 403 F. Supp. 723 (D. Neb. 1975). See, also, U.S. v.
Vest, 125 F.3d 676 (8th Cir. 1997).
67 People v. Andersen, 101 Cal. App. 3d 563, 161 Cal. rptr. 707 (1980).
68 Id.
69 State v. Ryan, supra note 24.
484 	278 NEbrASkA rEPOrTS