State v. McKinney

State of NebraSka , appellee , v.
lora l. MckiNNey, appellaNt.
777 N.W.2d 555
Filed January 22, 2010. 	No. S-09-311.
1. 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.
2. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents 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 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 indepen-
dently of the lower court’s decision.
3. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), provides that postconviction relief is available to a prisoner
in custody under sentence who seeks to be released on the ground that there was
a denial or infringement of his constitutional rights such that the judgment was
void or voidable.
4. Postconviction: Appeal and Error. A motion for postconviction relief is not a
substitute for an appeal.
5. ____: ____. A motion for postconviction relief cannot be used to secure review
of issues which were known to the defendant and could have been litigated on
direct appeal.
6. ____: ____. A postconviction argument is not procedurally barred if it was raised
on direct appeal, but neither expressly nor necessarily decided on the merits.
7. Appeal and Error. An appellate court has discretion to overlook the State’s fail-
ure to argue that an error is harmless.
8. ____. Whether an assigned error was prejudicial, requiring reversal, is at issue in
every appeal.
9. Postconviction: Appeal and Error. The remedy provided by the Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008), is cumula-
tive and is not intended to be concurrent with any other remedy existing in the
courts of this state, and the phrase “any other remedy” encompasses a direct
appeal when the issue raised in the postconviction proceeding can be raised in the
direct appeal.
10. Postconviction: Effectiveness of Counsel: Appeal and Error. Although a
motion for postconviction relief cannot be used to secure review of issues which
were or could have been litigated on direct appeal, when a defendant was repre-
sented both at trial and on direct appeal by the same lawyer, the defendant’s first
opportunity to assert ineffective assistance of counsel is in a motion for postcon-
viction relief.
STATE v. mckiNNEy 	297
Cite as 279 Neb. 297
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

11. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. in order
to establish a right to postconviction relief based on a claim of ineffective assist-
ance of counsel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show
that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defense in his or her case. in order to show prejudice, the defend-
ant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. The two
prongs of this test, deficient performance and prejudice, may be addressed in
either order.
12. 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, but an evidentiary hearing may be
denied when the records and files affirmatively show that the defendant is entitled
to no relief.
Appeal from the District Court for Seward County: alaN G.
G leSS, Judge. Affirmed.
Sean J. Brennan, of Brennan & Nielsen Law Offices, P.C.,
for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
WriGht, coNNolly, G errard, StephaN, MccorMack, and
M iller-lerMaN, JJ.
G errard, J.
Lora L. mckinney was convicted in 2005 of first degree
murder for the killing of Harold kuenning and sentenced
to life imprisonment. We affirmed mckinney’s conviction
and sentence in State v. McKinney (McKinney I),1 finding
that although the trial court erred in admitting mckinney’s
DNA into evidence, the error was harmless. mckinney filed
a motion for postconviction relief, which the district court
denied without an evidentiary hearing. The primary argument
in mckinney’s brief on appeal is that we erred in McKinney I
by finding harmless error even though the State did not argue
it. We find that each of mckinney’s arguments is either
1 See State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
298 	279 NEBRASkA REPORTS

meritless or procedurally barred, and we affirm the judgment
of the district court.
BACkGROUND
The evidence against mckinney was detailed in McKinney I,
and we summarize it here only to the extent necessary. The
State’s theory of the case was that on January 5, 1998, kuenning
took mckinney, his former girlfriend, to his rural cabin, where
mckinney shot him and stole several guns from him, then
drove his van back to Lincoln. mckinney’s theory was that
others were responsible for the killing; specifically, Terri Fort,
with whom mckinney alleged kuenning had a relationship,
and Joseph Walker, mckinney’s former boyfriend.
mckinney’s theory was bolstered by the fact that Fort and
Walker stayed in a hotel in Lincoln shortly after the killing, and
a gun registered to kuenning that may have been the murder
weapon was found in their room. But mckinney’s fingerprints
were found on a purse and a cigarette pack at kuenning’s
cabin, and her DNA was found on several items in the cabin.
mckinney admitted to stealing a .44 magnum revolver from
kuenning, and according to one witness, she later exchanged
a .44 magnum revolver for crack cocaine. Fort testified that
mckinney and kuenning left Lincoln together on the evening
of January 5, 1998, and that mckinney did not return until the
next morning. Walker testified that mckinney told him that she
had killed kuenning and needed help disposing of some guns.
And mckinney lied to police during their investigation into
kuenning’s killing.
Based on that evidence, mckinney was convicted of first
degree murder. But on direct appeal, we concluded that evi-
dence of mckinney’s DNA should not have been admitted.2 We
held that probable cause was required to take a DNA sample
from mckinney, and the State had not challenged the district
court’s finding that at the time the sample was collected, police
did not have probable cause to believe mckinney had commit-
ted the crime. We found, however, that when the evidence set
2 See id.
STATE v. mckiNNEy 	299
Cite as 279 Neb. 297

forth above was considered, any error in admitting the DNA
evidence was harmless.3
mckinney had also sought DNA samples in the original trial
proceedings from Fort, Walker, and three others. mckinney’s
intent was to bolster her theory of the case by comparing
the DNA samples she obtained to unknown DNA found at
kuenning’s cabin. But the district court refused to issue the
subpoenas mckinney requested, and on appeal, we found
that the district court had not erred. We explained that the
circumstances did not require invading the witnesses’ constitu-
tional rights.4
Accordingly, we affirmed mckinney’s conviction and sen-
tence and denied her motion for rehearing. mckinney then
filed a motion for postconviction relief in the district court.
mckinney alleged that we had violated her constitutional rights
by finding harmless error in McKinney I, because the State had
not argued that the error was harmless. mckinney also alleged
that we had applied the wrong legal standards in evaluating
whether the error was harmless. mckinney alleged that we had
erred in holding that she had no right to obtain DNA samples
from other potential suspects. And she alleged ineffective assist-
ance of counsel.
The district court rejected each of these contentions. The
court found that we have the authority to raise harmless error
sua sponte and that, in any event, the issue was procedur-
ally barred. The court found that mckinney’s other claims of
error in McKinney I were procedurally barred. And the court
found that mckinney was not prejudiced by the alleged inef-
fectiveness of her trial counsel. The district court dismissed
mckinney’s motion without an evidentiary hearing.
ASSiGNmENTS OF ERROR
mckinney assigns, restated, that the district court erred
in (1) concluding that issues relating to our harmless error
review in McKinney I were procedurally barred, (2) concluding
that the issue relating to mckinney’s attempt to obtain DNA
3 See id.
4 See id.
300 	279 NEBRASkA REPORTS

samples from Fort and Walker was procedurally barred, and (3)
refusing to conduct an evidentiary hearing on the effectiveness
of mckinney’s counsel.
STANDARD OF REviEW
[1] 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 inde-
pendent of the lower court’s ruling.5
[2] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact. When review-
ing 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
articulated in Strickland v. Washington,6 an appellate court
reviews such legal determinations independently of the lower
court’s decision.7
ANALySiS
[3-5] Before discussing mckinney’s arguments in detail,
it will be helpful to review some of the basic propositions of
law that are applicable to cases of this kind. The Nebraska
Postconviction Act8 provides that postconviction relief is avail-
able to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement
of his constitutional rights such that the judgment was void or
voidable.9 But a motion for postconviction relief is not a substi-
tute for an appeal.10 So, a motion for postconviction relief can-
not be used to secure review of issues which were known to the
5 State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).
6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
7 State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
8 Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008).
9 State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).
10 State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).
STATE v. mckiNNEy 	301
Cite as 279 Neb. 297

defendant and could have been litigated on direct appeal—such
issues are procedurally barred.11
harMleSS error iN Mc K inney i
mckinney’s first assignment of error relates to our finding
in McKinney I that the trial court’s error in admitting evidence
of mckinney’s DNA was harmless. mckinney’s fundamental
claim is that we erred in considering, sua sponte, whether the
error was harmless. But first, she contends that the district court
erred in concluding that her claim is procedurally barred.
The problem, according to mckinney, is that she was
unaware of the possibility of harmless error until our opin-
ion was issued, so her only means of arguing that we erred
was in a motion for rehearing. And because we did not issue
an opinion explaining our denial of mckinney’s motion for
rehearing, there is no way of knowing why we denied it. So,
mckinney concludes, we may not have decided her motion for
rehearing on the merits of her argument, and it is not procedur-
ally barred.
[6] The rule in that regard, however, is that a postconviction
argument is not procedurally barred if it was raised on direct
appeal, but neither expressly nor necessarily decided on the
merits.12 Our authority to consider harmless error sua sponte
may not have been expressly discussed in our opinion or in
denying mckinney’s motion for rehearing. But it was necessar-
ily decided, both in our denial of the motion for rehearing and
implicitly with our finding of harmless error in McKinney I.13
[7] And our decision was correct. it is well established that
an appellate court has discretion to overlook the State’s failure
to argue that an error is harmless.14 The unique function of the
11 See State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
12 See State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007).
13 See id.
14 See, e.g., U.S. v. McLaughlin, 126 F.3d 130 (3d Cir. 1997); U.S. v. Rose,
104 F.3d 1408 (1st Cir. 1997); U.S. v. Crowell, 60 F.3d 199 (5th Cir. 1995);
U.S. v. Langston, 970 F.2d 692 (10th Cir. 1992); Lufkins v. Leapley, 965
F.2d 1477 (8th Cir. 1992); U.S. v. Pryce, 938 F.2d 1343 (D.C. Cir. 1991);
U.S. v Giovannetti, 928 F.2d 225 (7th Cir. 1991); Randolph v. U.S., 882
A.2d 210 (D.C. 2005); Heuss v. State, 687 So. 2d 823 (Fla. 1996).
302 	279 NEBRASkA REPORTS

harmless error rule is to conserve judicial labor by holding
harmless those errors which, in the context of the case, do not
vitiate the right to a fair trial and, thus, do not require a new
trial.15 To preclude application of the test merely because the
State failed to make the argument would elevate form over
substance and hamper the goal of efficient use of judicial
resources.16 As the Seventh Circuit has explained,
while we are not required to scour a lengthy record on
our own, with no guidance from the parties, for indica-
tions of harmlessness, we are authorized, for the sake of
protecting third-party interests including such systemic
interests as the avoidance of unnecessary court delay,
to disregard a harmless error even though through some
regrettable oversight harmlessness is not argued to us.
if it is certain that the error did not affect the outcome,
reversal will not help the party arguing for reversal
beyond such undeserved benefits as he may derive from
delay. . . . And reversal will hurt others: not merely the
adverse party, whose failure to argue harmlessness for-
feits his right to complain about the injury, but innocent
third parties, in particular other users of the court sys-
tem, whose access to that system is impaired by addi-
tional litigation.17
Those concerns are illustrated in this case. The case against
mckinney was complex, and a retrial would have expended
significant prosecutorial and judicial resources. it would be
inconsistent with our responsibilities to require the public
to bear that expense when it is unnecessary to vindicate
mckinney’s right to a fair trial.
[8] 	mckinney 	complains 	that 	her 	constitutional 	rights
were violated because, according to her, she was not noti-
fied that harmless error was at issue. This, according to
mckinney, denied her rights to counsel and due process of
law. But mckinney could and did argue that the error was
15 Heuss, supra note 14.
16 Id.
17 Giovannetti, supra note 14, 928 F.2d at 226 (citation omitted).
STATE v. mckiNNEy 	303
Cite as 279 Neb. 297

not harmless in her motion for rehearing. And whether an
assigned error was prejudicial, requiring reversal, is at issue
in every appeal.18
mckinney also argues that we erred in McKinney I by not
applying the harmless error standard of Chapman v. California.19
But we did apply Chapman. in Chapman, the U.S. Supreme
Court explained that “[a]n error . . . which possibly influ-
enced the jury adversely to a litigant cannot . . . be conceived
of as harmless.”20 The Court explained that the question was
“‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction’” and
held that “before a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”21 And in McKinney I, we
stated that
[i]n a jury trial of a criminal case, an erroneous eviden-
tiary ruling results in prejudice to a defendant unless the
State demonstrates that the error was harmless beyond
a reasonable doubt. Harmless error exists when there
is some incorrect conduct by the trial court which, on
review of the entire record, did not materially influence
the jury’s verdict adversely to a defendant’s substantial
right. in a harmless error review, we look at the evidence
upon which the jury 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 guilty verdict rendered in the trial was surely
unattributable to the error.22
And consistent with those principles, in the end we concluded
“from the entire record that the jury’s verdict was surely
18 See Neb. Rev. Stat. § 29-2308 (Reissue 2008).
19 Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967).
20 Id., 386 U.S. at 23-24. See, also, Fahy v. Connecticut, 375 U.S. 85, 84 S.
Ct. 229, 11 L. Ed. 2d 171 (1963).
21 Chapman, supra note 19, 386 U.S. at 24, citing Fahy, supra note 20.
22 McKinney I, supra note 1, 273 Neb. at 358-59, 730 N.W.2d at 87.
304 	279 NEBRASkA REPORTS

unattributable to the erroneous admission of mckinney’s DNA,
and that error was therefore harmless.”23
mckinney’s Chapman argument may take issue, not with
the propositions of law that we stated in McKinney I, but with
our application of that law to the facts—in other words, that
our conclusion was wrong. And mckinney argues separately
that our harmless error review was factually incorrect. Stated
generally, she argues that the evidence we relied upon in our
review was not persuasive or credible on several points.
[9] These claims, however, are plainly procedurally barred.
The remedy provided by the Nebraska Postconviction Act is
cumulative and is not intended to be concurrent with any other
remedy existing in the courts of this state.24 And the phrase
“any other remedy” encompasses a direct appeal when the
issue raised in the postconviction proceeding can be raised in
the direct appeal.25 Thus, a motion for postconviction relief
cannot be used as a substitute for an appeal or to secure a fur-
ther review of issues already litigated on direct appeal.26
Whether the erroneous admission of mckinney’s DNA
was actually harmless was, obviously, decided in McKinney I.
The Nebraska Postconviction Act does not permit relitigation
of issues that were expressly decided in a previous appeal.
Therefore, we do not consider mckinney’s attempt to chal-
lenge our reasoning in McKinney I. The purpose of affording
postconviction relief is not to permit the defendant endless
appeals on matters already decided.
in sum, we find no merit to mckinney’s arguments regard-
ing our harmless error review in McKinney I. The district court
did not err in refusing to hold an evidentiary hearing on these
arguments and finding them to be without merit.
authority to obtaiN dNa SaMpleS froM third partieS
mckinney also takes issue with our conclusion in McKinney I
that the trial court had not erred in denying her motion to obtain
23 Id. at 360, 730 N.W.2d at 88.
24 § 29-3003.
25 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
26 See id.
STATE v. mckiNNEy 	305
Cite as 279 Neb. 297

DNA samples. mckinney claims, contrary to our express con-
clusion in McKinney I, that this was the “‘“rare instance”’”
where justice required an invasion of a third party’s constitu-
tional rights.27
But 	obviously, 	we 	reached 	the 	opposite 	conclusion
in 	McKinney 	I. 	And 	as 	explained 	above, 	the 	Nebraska
Postconviction Act does not permit relitigation of issues that
were expressly decided in a previous appeal. The district court
did not err in finding this argument to be procedurally barred.
iNeffective aSSiStaNce of couNSel
[10] mckinney’s final argument is that the district court
should have held an evidentiary hearing on her allegations
of ineffective assistance of counsel. These allegations are not
procedurally barred, because mckinney was represented by the
same counsel at trial and on direct appeal. Although a motion
for postconviction relief cannot be used to secure review
of issues which were or could have been litigated on direct
appeal, when a defendant was represented both at trial and on
direct appeal by the same lawyer, the defendant’s first oppor-
tunity to assert ineffective assistance of counsel is in a motion
for postconviction relief.28
[11] in order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
defendant has the burden, in accordance with Strickland v.
Washington,29 to show that counsel’s performance was defi-
cient and that counsel’s deficient performance prejudiced the
defense in his or her case. in order to show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different. The two prongs of this test,
deficient performance and prejudice, may be addressed in
either order.30
27 McKinney I, supra note 1, 273 Neb. at 362, 730 N.W.2d at 90.
28 State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).
29 Strickland, supra note 6.
30 See State v. Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
306 	279 NEBRASkA REPORTS

The only specific instance in which mckinney argues that
her trial counsel was ineffective is in failing to object to a
remark the State made during its closing statement. During
closing, the State argued:
And we know that Lora mckinney was acting alone
when she murdered Harold kuenning. There wasn’t any
other DNA at this crime scene, any other fingerprint
evidence that would suggest that anyone else was pres-
ent at that cabin besides the defendant and the victim.
And there’s also very — one other very revealing fact.
And as you can see, there are no fingerprints along the
passenger’s side of [kuenning’s] van. members of the
jury, there’s not even a smudge. No one went with Lora
mckinney and Harold kuenning out to that cabin and the
murderer left alone. No one went with her. No one got
out of the passenger’s side of that van when it came to its
final resting place.
mckinney argues that trial counsel should have objected to the
claim that there was not other DNA at the crime scene, because
there was unidentified DNA found—the DNA that formed
the basis for mckinney’s unsuccessful attempt to get DNA
samples from Fort and Walker. And mckinney argues that an
evidentiary hearing was necessary on this claim.
But we conclude, as did the district court, that mckinney was
not prejudiced by counsel’s failure to object. The objectionable
remark was, when read in context, largely inconsequential. And
more important, evidence had been presented of the unknown
DNA found at the scene. instead of objecting, mckinney’s
counsel used his closing statement to argue that the unknown
DNA provided a basis for reasonable doubt. When the record
is considered as a whole, there is no reasonable probability that
the jury was misled by the State’s misstatement during its clos-
ing statement.
[12] 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.31
31 State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
STATE v. mckiNNEy 	307
Cite as 279 Neb. 297

But an evidentiary hearing may be denied when the records
and files affirmatively show that the defendant is entitled to
no relief.32 in this case, the record affirmatively demonstrates
that mckinney was not prejudiced by trial counsel’s failure to
object to the State’s closing statement.
mckinney also suggests, in passing, that she was denied
effective assistance of counsel because her counsel on direct
appeal did not argue that the erroneous admission of her
DNA was not harmless. But mckinney was not prejudiced by
the omission, because, as noted above, those arguments were
presented in her motion for rehearing. And it is certainly not
clear, given our review of the record in McKinney I, what her
appellate counsel could have argued that would have affected
our decision.
in short, we find no error in the district court’s conclusion
that mckinney was not prejudiced by the instances of ineffec-
tive assistance of counsel that she alleged.
CONCLUSiON
Each of mckinney’s arguments is either procedurally barred
or without merit. We affirm the district court’s judgment deny-
ing her motion for postconviction relief.
affirMed.
heavicaN, C.J., not participating.
32 See id.
308 	279 NEBRASkA REPORTS