State v. Duncan

have inspected the roof and that the condition of it would have
been obvious had he done so.
CONCLUSION
Ordinary prudence is a factor in determining whether a
plaintiff is justified in relying upon a defendant’s represen-
tations. The district court did not err as a matter of law in
applying an ordinary prudence standard to Lucky 7’s negligent
misrepresentation claim. We also conclude the court’s factual
findings were not clearly wrong. The district court looked at
the context and type of transaction, and Beard’s knowledge,
experience, and access to pertinent information. Based upon
those factors, the district court found that Beard was not justi-
fied in relying on THT’s representations. We agree.
A ffirmed.
StAte of NebrASkA, Appellee , v.
dAryle m. duNcAN, AppellANt.
775 N.W.2d 922
Filed December 4, 2009. 	No. S-08-1308.
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. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s conclusion.
3. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To estab-
lish a right to postconviction relief because of counsel’s ineffective assistance,
the defendant has the burden, under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of a lawyer with ordi-
nary 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. To
show prejudice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would have been
different. A court may address the two prongs of this test, deficient performance
and prejudice, in either order.
4. Rules of Evidence: Hearsay. Hearsay requires a statement made by an out-of-
court declarant, and the statement requires an oral or written assertion.
1006 	278 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

5. Constitutional Law: Criminal Law: Trial: Witnesses. The Confrontation
Clauses of U.S. Const. amend. VI and Neb. Const. art. I, § 11, guarantee defend-
ants the right to confront and cross-examine the witnesses against them.
6. Trial: Evidence: Appeal and Error. An erroneous admission of evidence is con-
sidered prejudicial to a criminal defendant unless the State demonstrates that the
error was harmless beyond a reasonable doubt.
7. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
8. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial counsel
is different from his or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. Otherwise, the issue will be pro-
cedurally barred.
9. ____: ____. When claims of a trial counsel’s performance are procedurally
barred, an appellate court examines claims regarding trial counsel’s performance
only if the defendant assigns as error that appellate counsel was ineffective for
failing to raise trial counsel’s performance.
10. Appeal and Error. An appellate court does not consider errors which are argued
but not assigned.
Appeal from the District Court for Douglas County: J ruSSell
derr, Judge. Affirmed.
Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck , and miller-lermAN, JJ.
coNNolly, J.
SUMMAry
The State convicted Daryle M. Duncan of first degree mur-
der and use of a deadly weapon to commit a felony for the
December 4, 1999, death of Lucille Bennett. He received
consecutive sentences of life in prison for first degree murder
and 19 to 20 years’ imprisonment for use of a deadly weapon
to commit a felony. We affirmed his convictions and sentences
STATE v. DUNCAN 	1007
Cite as 278 Neb. 1006

on direct appeal.1 Duncan now appeals the district court’s order
denying his motion for postconviction relief. We affirm.
BACkGrOUND
The facts underlying Duncan’s convictions are set forth in
State v. Duncan,2 and we summarize those facts which relate to
this postconviction proceeding.
In April 2001, Duncan was convicted of killing 87-year-old
Bennett. Shortly before 10:30 a.m. on Sunday, December 5,
1999, Bennett’s body was found in her home. Bennett died of
a stab wound to the right side of the neck, which penetrated
two major arteries. The State charged Duncan with first degree
murder and use of a deadly weapon to commit a felony. A
jury found Duncan guilty of both charges. After retaining new
counsel, Duncan appealed his convictions and sentences, and
we affirmed.3
One issue Duncan raised on direct appeal was ineffective
assistance of trial counsel for failing to object to testimony
regarding Crimestoppers telephone calls. Omaha police officer
Steven Henthorn was the lead investigator and testified gener-
ally as to the investigation of Bennett’s murder. The specific
portions of Henthorn’s testimony on direct examination and
redirect examination at issue are set forth below.
Q. Let me ask you, on December 5th or December 6th
— and I don’t want you to tell me anything about what
was said — but on December 5th or 6th of 1999, were
there Crime Stoppers reports coming in to the police
department about this murder?
[Defense]: I’ll object on relevance. Calls for a hear-
say response.
[State]: I’m not asking him what was in them. I just
wanted to know if they were coming in.
[Defense]: relevance.
THE COUrT: you may answer.
[A.] No, we were not.
1 State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
2 Id.
3 Id.
1008 	278 NEBrASkA rEpOrTS

. . . .
Q. . . . On the 7th of December, did Crime Stoppers
calls — did you have any Crime Stoppers calls?
[Defense]: 	Objection, 	relevance. 	Calls 	for 	hearsay
response.
[State]: Not what was in them.
THE COUrT: Crime Stoppers calls in connection
with what?
[State]: regarding the murder of Lucille Bennett.
THE COUrT: you may answer.
[A.] yes, we did.
Q. . . . About what time was that?
A. I believe it was about 9:30 in the morning.
Q. Okay. And at some point in time did you begin
investigating Mr. Duncan?
A. yes.
Q. When was that?
A. About 9:30 in the morning —
Q. Okay.
A. — on the 7th of December.
Q. Okay. Did — what did you do after — at some point
in time you got some information that Mr. Duncan — you
started looking at him?
A. yes.
. . . .
Q. . . . And did you get — in this particular case, did
you get Crime Stoppers reports before — how many
Crime Stoppers reports did you get before the 10th
of December?
[Defense]: Objection, relevance, foundation.
THE COUrT: you may answer.
[A.] Two.
On direct appeal, we determined that the district court
properly overruled Duncan’s hearsay objections but that the
court erred in overruling Duncan’s relevance objections.4 We
concluded, however, that Duncan’s convictions were “surely
4 Id.
STATE v. DUNCAN 	1009
Cite as 278 Neb. 1006

unattributable to this error.”5 On direct appeal, Duncan also
argued that his counsel provided ineffective assistance for fail-
ing to object to some Crimestoppers questions on different
specified grounds.6 But, we did not address this issue because
we concluded it necessitated an evidentiary hearing.7
So Duncan, through new counsel, filed the present motion
for postconviction relief.8 In his operative motion, Duncan
alleged that trial counsel was ineffective for many reasons,
including failing to object to the above Crimestoppers testi-
mony. He also alleged that his appellate counsel was ineffective
for failing to raise the issue of trial counsel’s ineffective assist-
ance on direct appeal.
After an evidentiary hearing, the district court concluded
that trial counsel was not deficient; thus, it implicitly concluded
that Duncan’s claims regarding appellate counsel’s ineffective
assistance were without merit.
ASSIGNMENTS OF ErrOr
On appeal to this court, Duncan assigns six errors regarding
trial counsel’s performance. But he does not assign that the dis-
trict court erred in failing to find his appellate counsel provided
ineffective assistance. Duncan assigns the court erred in failing
to find that trial counsel was ineffective for failing to (1) object
to the Crimestoppers testimony in violation of his rights under
U.S. Const. amends. VI and XIV; Neb. Const. art. I, § 11; and
Nebraska Evidence rules; (2) call a necessary witness; (3)
object to the trial court’s limiting his cross-examination of a
witness in violation of U.S. Const. amend. VI; (4) effectively
cross-examine a witness; (5) not allow Duncan to testify; and
(6) call witnesses on Duncan’s behalf.
STANDArD OF rEVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the
5 Id. at 418, 657 N.W.2d at 631.
6 Duncan, supra note 1.
7 Id.
8 Neb. rev. Stat. § 29-3001 et seq. (reissue 2008).
1010 	278 NEBrASkA rEpOrTS

district court will not be disturbed unless they are clearly erro-
neous.9 When reviewing a question of law, we resolve the ques-
tion independently of the lower court’s conclusion.10
ANALySIS
[3] Duncan’s assigned errors all raise issues of his trial
counsel’s ineffective assistance. To establish a right to post-
conviction relief because of counsel’s ineffective assistance,
the defendant has the burden, under Strickland v. Washington,11
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.12 Next,
the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case.13 To show prejudice,
the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the pro-
ceeding would have been different.14 A court may address the
two prongs of this test, deficient performance and prejudice, in
either order.
iSSueS rAiSed oN direct A ppeAl
We first address arguments raised by Duncan on direct
appeal that we determined needed an evidentiary hearing.
Duncan alleges that the trial counsel was ineffective for failing
to object to the State’s questions regarding the Crimestoppers
testimony. As noted, Duncan’s trial counsel objected twice
to this line of questioning. But Duncan claims that his trial
counsel should have objected to all questions the State asked
Henthorn regarding the Crimestoppers call. Duncan argues that
trial counsel’s failure to object violated his rights under U.S.
9 State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
10 See, State v. Dunster, ante p. 268, 769 N.W.2d 401 (2009); State v. Bazer,
276 Neb. 7, 751 N.W.2d 619 (2008).
11 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
12 See State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).
13 Id.
14 Id.
STATE v. DUNCAN 	1011
Cite as 278 Neb. 1006

Const. amends. VI and XIV; Neb. Const. art. I, § 11; and Neb.
Evid. r. 401, 403, 801, and 802.15 Duncan also claims his trial
counsel was ineffective for failing to move for a mistrial based
on this testimony.
On direct appeal, we concluded that the district court prop-
erly overruled Duncan’s hearsay objections because the two
questions he objected to asked whether and when the police
received any Crimestoppers calls. We determined that because
the questions did not call for an oral or written assertion made
by an out-of-court declarant and the content of those calls was
never explicitly divulged, there was no hearsay.16
[4] Similarly, for the questions trial counsel did not object
to, there was no statement which would implicate a hearsay
issue.17 Hearsay requires a statement made by an out-of-court
declarant, and the statement, as relevant here, requires an oral
or written assertion.18 The questions Duncan’s trial counsel
did not object to do not require Henthorn to reiterate an oral
or written assertion made by an out-of-court declarant, and
he did not divulge any of the information contained in the
Crimestoppers calls.19 Trial counsel was not deficient for fail-
ing to object on hearsay grounds.
[5] Furthermore, the Confrontation Clauses of U.S. Const.
amend. VI and Neb. Const. art. I, § 11, guarantee defend-
ants the right to confront and cross-examine the witnesses
against them.20 And, as noted, Henthorn did not testify about
what the Crimestoppers caller said. Henthorn mentioned the
Crimestoppers call only to explain why he had investigated
Duncan. Because the prosecutor never presented a statement
15 Neb. rev. Stat. §§ 27-401, 27-403, 27-801, and 27-802 (reissue 2008).
16 Duncan, supra note 1.
17 See Neb. Evid. r. 801 to 805, Neb. rev. Stat. §§ 27-801 to 27-805
(reissue 2008).
18 rule 801(1) and (3).
19 See rule 801(3).
20 U.S. Const. amend. VI. See State v. Sheets, 260 Neb. 325, 618 N.W.2d 117
(2000), disapproved on other grounds, State v. McCulloch, 274 Neb. 636,
742 N.W.2d 727 (2007).
1012 	278 NEBrASkA rEpOrTS

from the Crimestoppers caller to the jury, the Confrontation
Clauses are not implicated; there was no statement, so no right
to confront the maker of it was implicated.21
Duncan also argues that Henthorn’s testimony was unneces-
sary and prejudicial and that the court should have excluded it
under rule 403. He argues that the “testimonial and scientific
evidence of [Duncan’s] guilt was not overwhelming” and that it
was “highly probable that this error contributed to the verdict,
and was thus, not harmless.”22 On direct appeal, we concluded
that the district court erred in overruling Duncan’s relevance
objections but concluded that the erroneous admission of the
evidence was harmless because his conviction was unattribut-
able to the error.23
[6,7] An erroneous admission of evidence is considered
prejudicial to a criminal defendant unless the State demon-
strates that the error was harmless beyond a reasonable doubt.24
Harmless error review looks to the basis on which the jury
actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely
have been rendered, but, rather, whether the actual guilty ver-
dict rendered in the questioned trial was surely unattributable
to the error.25
As we noted on direct appeal, the State presented evidence
from Duncan’s ex-wife, along with two other witnesses, which
established that Duncan was privy to the details of Bennett’s
murder before Bennett’s body was discovered and reported
to the police. Duncan also told his ex-wife that he murdered
Bennett. We conclude that any failure of Duncan’s trial coun-
sel to object to Henthorn’s testimony was not prejudicial. The
evidence supports Duncan’s convictions and renders the court’s
erroneous admission of Henthorn’s testimony harmless.
21 See U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004).
22 Brief for appellant at 38.
23 Duncan, supra note 1.
24 Sheets, supra note 20.
25 State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).
STATE v. DUNCAN 	1013
Cite as 278 Neb. 1006

clAimS of iNeffective ASSiStANce
of A ppellAte couNSel
[8,9] Duncan’s remaining assignments of error all concern
the actions of trial counsel that were not raised on direct
appeal. When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform-
ance which is known to the defendant or is apparent from the
record.26 Otherwise, the issue will be procedurally barred.27 All
of Duncan’s remaining postconviction claims of trial counsel’s
ineffective assistance were available to him on direct appeal.
Because he did not raise those claims, they are procedurally
barred. His claim that his appellate counsel provided ineffective
assistance by failing to raise these issues on direct appeal is not
procedurally barred.28 But on appeal, Duncan has not assigned
that the postconviction court erred in failing to find that his
appellate counsel provided ineffective assistance. When claims
of a trial counsel’s performance are procedurally barred, we
examine claims regarding trial counsel’s performance only if
the defendant assigns as error that appellate counsel was inef-
fective for failing to raise trial counsel’s performance.29
[10] The district court addressed Duncan’s claims regarding
trial counsel’s performance, and found them all to be merit-
less. On appeal before us, Duncan has failed to raise an issue
regarding appellate counsel’s performance. Because he has
failed to assign this as error, we do not examine whether appel-
late counsel was ineffective for failing to raise trial counsel’s
performance. We do not consider errors which are argued but
not assigned.30 Having examined the record, we conclude that
Duncan’s assignments of error have no merit.
A ffirmed.
26 See Dunster, supra note 10.
27 Id.
28 See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
29 See id.
30 State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007); State v. King, 272
Neb. 638, 724 N.W.2d 80 (2006); State v. Hernandez, 268 Neb. 934, 689
N.W.2d 579 (2004).
1014 	278 NEBrASkA rEpOrTS