State v. Nesbitt

that he wanted to discover whether the defendants had made
other defamatory statements in Nebraska that might not have
been in a privileged context.
Kocontes refers to an affidavit submitted in support of his
request. But the only indication of other communications in
the affidavit is the following: “At the hearing I attended before
the Nebraska Pardons Board in March 2008, the Nebraska
Attorney General commented that he would be speaking to
. . . McQuaid about me, apparently at . . . McQuaid’s request.”
We find no reason why such a communication would not also
be covered by the privilege. Although not written, it clearly
involves communications with the Board of Pardons relevant
to its ongoing proceedings. The district court apparently con-
cluded the same.
[19] The party asserting error in a discovery ruling bears the
burden of showing that the ruling was an abuse of discretion.83
We find no abuse of discretion in this case.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
H eAvicAn, C.J., not participating.
83 In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).
StAte of nebrASkA, Appellee , v.
tHomAS edwArd neSbitt, AppellAnt.
777 N.W.2d 821
Filed January 29, 2010. 	No. S-09-350.
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. 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
STATe v. NeSBITT 	355
Cite as 279 Neb. 355
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

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. Effectiveness of Counsel: Proof. Nebraska follows the two-prong test for deter-
mining whether a criminal defendant received ineffective assistance of counsel.
The first prong is whether counsel performed deficiently, that is, counsel did not
perform at least as well as a criminal lawyer with ordinary training and skill in
the area. The second prong is whether the deficient performance actually preju-
diced the criminal defendant in making his or her defense.
4. ____: ____. The prejudice prong of the ineffective assistance of counsel test
requires that the criminal defendant show a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding in question would
have been different.
5. ____: ____. The two-prong ineffective assistance of counsel test need not be
addressed in order. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed.
6. Effectiveness of Counsel: Presumptions. When considering whether trial coun-
sel’s performance was deficient, there is a strong presumption that counsel
acted reasonably.
7. 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: JoSepH
S. troiA, Judge. Affirmed.
Clarence e. Mock and Matthew M. Munderloh, of Johnson
& Mock, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAn, 	c.J., 	wrigHt, 	connolly, 	gerrArd, 	StepHAn,
mccormAck, and miller-lermAn, JJ.
mccormAck, J.
NATURe OF CASe
Thomas edward Nesbitt appeals from an order of the dis-
trict court denying his motion for postconviction relief. See
State v. Nesbitt (Nesbitt II).1 After a hearing, the district court
denied Nesbitt’s postconviction relief on the issue of whether
Nesbitt was denied effective assistance of counsel when his
1 State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
356 	279 NeBRASKA RePORTS

trial counsel failed to assert objections to the prosecutor’s use
of Nesbitt’s postarrest, post-Miranda silence to infer guilt.
BACKGROUND
The facts of this case are fully set forth in the direct appeal
from Nesbitt’s conviction, State v. Nesbitt (Nesbitt I),2 and in
Nesbitt II and will not be repeated herein except as necessary.
In 1986, a jury found Nesbitt guilty of first degree murder
for the death of Mary Kay Harmer. In Nesbitt I, his conviction
was affirmed.3 In Nesbitt II, this court considered the district
court’s denial of postconviction relief without an evidentiary
hearing. We affirmed the district court’s order denying postcon-
viction relief without a hearing on all but one issue: whether
trial counsel was ineffective for failing to make objections
under Doyle v. Ohio4 to statements made by the prosecutor on
cross-examination and in closing arguments. The following
facts set forth Nesbitt’s claim that his trial counsel was ineffec-
tive for failing to make Doyle objections to certain statements
made by the prosecution:
During Nesbitt’s murder trial, Nesbitt was questioned on
direct examination about prearrest statements he made to
police in 1975, just after Harmer’s disappearance. On direct
examination, Nesbitt admitted that he told police that Harmer
had been at his home on the night of November 30 but left the
next morning. At trial, Nesbitt testified to a different version
of events.
Nesbitt testified at trial that he and Harmer, along with one
or two other persons at various times, were in his home on the
night of November 30, 1975. He testified that all persons in the
home were using controlled substances. According to Nesbitt’s
testimony, Harmer excused herself to go to the bathroom, and
when she did not return a short time later, he went to the bath-
room and found her lying on the floor in a pool of vomit. He
testified that after determining that she was dead, he cleaned
her body and disposed of it, first wrapping it in carpet and
2 State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987).
3 Id.
4 Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. ed. 2d 91 (1976).
STATe v. NeSBITT 	357
Cite as 279 Neb. 355

placing it in a garage, and then, on the following day, placing
the body in a manhole at a housing development near Carter
Lake, Iowa. He assumed that Harmer died of a drug overdose
and denied killing her.
Nesbitt explained that he did not report Harmer’s death to
authorities because he did not trust them. Nesbitt further testi-
fied that he had had a similar conversation a few days later
with other officers who had contacted a female acquaintance
of Nesbitt’s concerning Harmer’s disappearance. Several days
after these conversations, Nesbitt left Omaha, Nebraska, and
moved to Chicago, Illinois, where he assumed a new identity.
He testified that in 1978, law enforcement officials located him
in Illinois, ascertained his true identity, and questioned him
about Harmer’s disappearance.
On cross-examination, Nesbitt again admitted that he origi-
nally told law enforcement authorities in 1975 that Harmer left
his home while he was asleep. Later in the cross-examination,
he was asked:
Q Did you ever tell the story that you told this jury
today to anyone who was investigating this case or any-
one involved in law enforcement?
A This is not a story; this is what happened.
Q I ask you have you ever told this to anyone who was
investigating the case or anybody who involved [sic] in
law enforcement before today?
A No.
Counsel did not object to these questions. In his closing
argument, the prosecutor made the following statements:
The first time anybody heard Mr. Nesbitt say that, [refer-
ring to his testimony that Harmer died of a drug overdose]
that’s involved in law enforcement or had anything to do
with the case, other than he says his attorneys, was yes-
terday morning.
. . . .
. . . To talk real briefly about his testimony, of course,
he is the last person to testify. He has had access to every
report, every deposition — he sat in on some — and he is
going to get on the stand and he’s going to be real straight-
forward with you and tell you what happened . . . .
358 	279 NeBRASKA RePORTS

. . . .
. . . When the defendant testified, and [defense counsel]
apparently thought I was trying to be a comic or it was
a ridiculous cross examination, was the first time I ever
talked to him in my life . . . .
. . . .
. . . There wasn’t one time — and I think this offends
me more than about anything else about this case — there
wasn’t one time from November 30th on, until today, that
Mr. Nesbitt couldn’t have told the Harmers where their
daughter’s body was anytime. And he didn’t have to do it
himself, but he sure could have let them know.
In Nesbitt II, after carefully reviewing the trial testimony,
we concluded that the questions asked on cross-examination
and the statements made in closing arguments were not clearly
limited to Nesbitt’s silence before he had received Miranda
warnings. And we stated that the questions asked on cross-
examination and the closing statements could reasonably be
interpreted to refer to Nesbitt’s post-Miranda silence. As such,
we concluded that the prosecution’s questions and statements
violated Doyle5 insofar as they were not limited to Nesbitt’s
prearrest, pre-Miranda contacts with the Omaha police in the
days following Harmer’s death. However, the record before us
was insufficient to affirmatively establish that trial counsel made
a conscious, strategic decision not to assert a Doyle objection.
Thus, we held that Nesbitt pled facts sufficient to entitle him to
an evidentiary hearing on his postconviction claim that his trial
counsel was ineffective in not asserting Doyle objections to the
prosecutor’s questions and statements.
Nesbitt and his trial counsel testified at the evidentiary hear-
ing. Counsel answered questions about his strategy for defense
and his knowledge of Doyle. He explained that he was familiar
with the Doyle opinion and that “the thought came to [his]
mind” that the broad statements made by the prosecutor might
be subject to a Doyle objection. But the way he “looked at it
was that there was no discussion about — specifically about
post-arrest, post-Miranda silence.” And he “thought the jury
5 Doyle v. Ohio, supra note 4.
STATe v. NeSBITT 	359
Cite as 279 Neb. 355

could be taking it as . . . basically they already knew [Nesbitt]
talked to the cops a couple times, and he gave them this story
about [Harmer] left.”
Further, trial counsel explained that he thought objecting to
the statements would be like objecting to part of his defense
strategy. He stated: “Part of the defense was that the reason
no police were called was because we can’t trust them to tell
them anything because the end result will be [Nesbitt] getting
in trouble.” When asked whether it would have made sense
to make a Doyle objection, counsel stated, “[U]pon reflec-
tion, I could have made an objection.” But he explained that
he did not think the objection would have been sustained in
its entirety. Counsel testified that he did not ask for a mistrial
because he thought he and Nesbitt “were winning the case.”
Nesbitt testified that he knew what Miranda warnings were
and that he had been given Miranda warnings on at least four
different occasions in 1978 by authorities in Illinois and in 1984
in Indiana. Nesbitt testified that he was again given Miranda
warnings in Omaha in 1984 by an officer of the Omaha Police
Department. each time Nesbitt was read his rights, he exercised
his right to remain silent. Nesbitt testified that trial counsel was
aware that he had been given Miranda warnings.
Nesbitt also testified about his discussions with trial counsel
concerning trial strategy. Nesbitt testified that he knew he was
going to take the stand from “day one” and that he knew he
was going to have to explain his prearrest behavior. Nesbitt
claimed that he and trial counsel never specifically discussed
trial strategy.
According to trial counsel, he and Nesbitt had several
conversations during voir dire regarding which jurors they
liked and disliked. Counsel testified that he did not discuss
with Nesbitt any specific trial strategy he had about allow-
ing the prosecution to make comments regarding Nesbitt’s
post-Miranda silence. However, counsel testified that he and
Nesbitt discussed generally what kind of questions the pros-
ecutor would ask Nesbitt and that they discussed the approach
the prosecutor would take. The “question of Doyle per se was
never discussed” because counsel did not think it was going to
be an issue.
360 	279 NeBRASKA RePORTS

Following the evidentiary hearing, the district court entered
an order denying Nesbitt’s motion for postconviction relief.
In its order, the district court found that there was insufficient
evidence to establish that Nesbitt had received Miranda warn-
ings in 1984 by the Omaha police officer. The district court
also concluded that regardless of whether Nesbitt had received
Miranda warnings, he failed to prove that he received ineffec-
tive assistance of counsel. In so concluding, the district court
found that trial counsel was sufficiently aware of Doyle and
that his decision not to object was reasonable. The district
court explained that Nesbitt was going to testify about his dis-
trust of police and that he purposefully told law enforcement
nothing. Thus, the district court found Nesbitt failed to prove
both that his trial counsel’s performance was deficient and that
he was prejudiced by counsel’s performance.
Following the district court’s order, Nesbitt filed a motion
for new trial arguing that the district court was clearly wrong in
finding that he did not receive Miranda warnings. The district
court overruled Nesbitt’s motion for a new trial. The district
court reiterated its finding that trial counsel’s performance was
not ineffective because counsel’s trial strategy was reasonable
and because Nesbitt was not prejudiced by trial counsel’s per-
formance. From this order, Nesbitt appeals.
ASSIGNMeNT OF eRROR
Nesbitt assigns that the district court erred in denying his
request for postconviction relief, concluding in its order that
trial counsel was not ineffective for not making Doyle objec-
tions to statements made by the prosecution during cross-
examination and during closing arguments referring to Nesbitt’s
post-Miranda silence.
STANDARD OF ReVIeW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.6
6 State v. Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
STATe v. NeSBITT 	361
Cite as 279 Neb. 355

[2] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.7 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,8 an appellate court
reviews such legal determinations independently of the lower
court’s decision.9
ANALYSIS
Nesbitt had the same counsel at trial as he did on direct
appeal. Nesbitt alleges that his trial counsel was ineffective
for failing to object when the prosecution impeached his trial
testimony both on cross-examination and during closing argu-
ments by referring to his post-Miranda silence, in violation of
Doyle.10 Nesbitt alleges that his counsel acted below all objec-
tive standards of reasonableness in his profession by failing to
object to the prosecution’s remarks. He alleges that this failure
was prejudicial because the impeachment offered by the State
was a “blanket” attack on his credibility as a witness and that
Doyle violations are so inherently prejudicial that reversal of
the judgment is mandated in this case.
As discussed above, in Nesbitt II, we held that Nesbitt had
pled facts sufficient to entitle him to a postconviction hearing
on the issue of whether his trial counsel was ineffective for fail-
ing to object to the statements made during cross-examination
and in closing insomuch as those statements were not limited to
Nesbitt’s pre-Miranda statements. Our reasoning for remanding
the cause for an evidentiary hearing was that the record before
us was insufficient to establish whether trial counsel made a
conscious, strategic decision to not object.
7 Id.
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674
(1984).
9 State v. Glover, supra note 6.
10 Doyle v. Ohio, supra note 4.
362 	279 NeBRASKA RePORTS

[3-5] Nebraska follows the two-prong test for determining
whether a criminal defendant received ineffective assistance
of counsel.11 The first prong is whether counsel performed
deficiently, that is, counsel did not perform at least as well
as a criminal lawyer with ordinary training and skill in the
area. The second prong is whether the deficient performance
actually prejudiced the criminal defendant in making his or
her defense.12 The prejudice prong requires that the criminal
defendant show a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding in question
would have been different.13 The two-prong test need not be
addressed in order. If it is easier to dispose of an ineffective-
ness claim on the ground of lack of sufficient prejudice, that
course should be followed.14
[6,7] When considering whether trial counsel’s performance
was deficient, there is a strong presumption that counsel acted
reasonably.15 Furthermore, trial counsel is afforded due def-
erence to formulate trial strategy and tactics. When review-
ing a claim of ineffective assistance of counsel, an appel-
late court will not second-guess reasonable strategic decisions
by counsel.16
After reviewing counsel’s testimony at the postconviction
hearing, we conclude counsel acted reasonably by not object-
ing to the prosecution’s statements. At the evidentiary hearing,
counsel explained that part of Nesbitt’s defense was that he
was afraid that the police would frame him for Harmer’s mur-
der, and that as such, Nesbitt refused to make any statements
to law enforcement regarding Harmer’s disappearance. Nesbitt
himself testified that he knew he was going to have to take the
stand and explain that the statements he made to officers in
1975 were incorrect. Nesbitt testified that he was going to take
11 See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
12 See id.
13 Id.
14 See id.
15 State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009).
16 Id.
STATe v. NeSBITT 	363
Cite as 279 Neb. 355

the stand and testify because “the truth had to be said.” Nesbitt
also testified that he did not talk to the police about what really
happened to Harmer because he believed the police would
frame him for her murder. Certainly, it was reasonable for trial
counsel not to object to statements he interpreted as coinciding
with his defense strategy.
Moreover, Nesbitt has failed to show that he was preju-
diced by the prosecution’s comments. We follow the approach
to the prejudice inquiry outlined by the Court in Strickland
v. Washington:
In making this determination, a court hearing an inef-
fectiveness claim must consider the totality of the evi-
dence before the judge or jury. Some of the factual find-
ings will have been unaffected by the errors, and factual
findings that were affected will have been affected in dif-
ferent ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming
record support. Taking the unaffected findings as a given,
and taking due account of the effect of the errors on the
remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have
been different absent the errors.17
It is undisputed that Nesbitt told officers a different story
from the exculpatory story he told at trial. Nesbitt was admit-
tedly a member of the Hell’s Angels, which is a group that
distrusted all law enforcement personnel. Nesbitt was fully
aware that he was going to have to explain to the jury why
he made prior inconsistent statements. And part of this expla-
nation included explaining that the reason for his pretrial
behavior was that he feared the police would frame him for
murder because of his membership in the Hell’s Angels, so he
kept quiet. Nesbitt himself pointed out his silence before and
17 Strickland v. Washington, supra note 8, 466 U.S. at 695-96.
364 	279 NeBRASKA RePORTS

after arrest during his own testimony. Thus, we fail to see how
Nesbitt was prejudiced by the prosecution’s comments regard-
ing his silence.
CONCLUSION
Based on the evidence presented at the postconviction
evidentiary hearing, we conclude that the district court’s find-
ing is not clearly erroneous and that trial counsel’s perform-
ance was not ineffective. We therefore affirm the district
court’s ruling.
A ffirmed.
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Cite as 279 Neb. 355