State v. Haas

State of NebraSka , appellee , v.
raS D. H aaS, appellaNt.
782 N.W.2d 584
Filed May 7, 2010. 	No. S-09-424.
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. DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the
discretion of the trial court, and unless an abuse of discretion is shown, the trial
court’s determination will not be disturbed.
4. ____: ____. In an appeal from a proceeding under the DNA Testing Act, Neb.
Rev. Stat. §§ 29-4116 through 29-4125 (Reissue 2008), the trial court’s findings
of fact will be upheld unless such findings are clearly erroneous.
5. Equal Protection: Jurors: Discrimination. The Equal Protection Clause of the
14th Amendment forbids prosecutors from using peremptory challenges to strike
potential jurors solely on account of their race.
6. Jurors: Discrimination: Prosecuting Attorneys: Proof. The trial court’s first
step in evaluating whether a party has used a peremptory challenge in a racially
discriminatory manner is to determine whether the defendant made a prima
facie showing that the prosecutor exercised a peremptory challenge on the basis
of race.
7. Postconviction: Appeal and Error. An appellate court will not consider as an
assignment of error a question not presented to the district court for disposition
through a defendant’s motion for postconviction relief.
8. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To estab-
lish ineffective assistance of counsel in accordance with Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must 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.
Next, the defendant must show that the deficient performance prejudiced the
defendant in his or her case.
9. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, there is a strong presumption that such counsel
acted reasonably.
10. Pleadings. The decision to grant or deny an amendment to a pleading rests in the
discretion of the court.
812 	279 NEbRASkA REPoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

Appeal from the District Court for Lancaster County: paul
D. M erritt, Jr ., Judge. Affirmed.
James R. Mowbray and Jerry L. Soucie, of Commission on
Public Advocacy, and Susan L. kirchmann for appellant.
Jon bruning, Attorney General, and Erin E. Tangeman for
appellee.
H eavicaN, 	c.J., 	WrigHt, 	coNNolly, 	gerrarD, 	StepHaN,
MccorMack, and M iller-lerMaN, JJ.
WrigHt, J.
NATURE oF CASE
Ras D. Haas was convicted of two counts of sexual assault
on a child and was sentenced to 20 to 30 years’ imprisonment
on each count, to be served consecutively. The Nebraska Court
of Appeals affirmed the convictions and sentences in State v.
Haas, A-05-804, 2006 WL 996535 (Neb. App. Apr. 18, 2006)
(not designated for permanent publication). In this action, Haas
seeks postconviction relief on the grounds that trial counsel
provided ineffective assistance because counsel failed to pre-
serve a challenge to a juror pursuant to Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (Batson), and
failed to seek DNA testing of biological evidence.
SCoPE oF REVIEW
[1] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. State v. York, 273
Neb. 660, 731 N.W.2d 597 (2007). When reviewing a question
of law, an appellate court reaches a conclusion independent of
the lower court’s ruling. Id.
[2] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact. State v. Dunster,
278 Neb. 268, 769 N.W.2d 401 (2009). When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. Id. 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
STATE v. HAAS 	813
Cite as 279 Neb. 812

L. Ed. 2d 674 (1984), an appellate court reviews such legal
determinations independently of the lower court’s decision.
Dunster, supra.
[3,4] A motion for DNA testing is addressed to the discre-
tion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed.
State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007). In
an appeal from a proceeding under the DNA Testing Act, Neb.
Rev. Stat. §§ 29-4116 through 29-4125 (Reissue 2008), the
trial court’s findings of fact will be upheld unless such find-
ings are clearly erroneous. State v. Lotter, 266 Neb. 758, 669
N.W.2d 438 (2003).
FACTS
In 2005, a jury convicted Haas of two counts of sexual
assault on a child. one victim, D.W., was 15 years old in April
2004. She testified that on April 12, 2004, she and S.S., a 14-
year-old girl, decided to run away from home and ended up at
Haas’ apartment. They smoked marijuana, drank alcohol, spent
the night, and then left the next morning.
D.W. testified she had sexual intercourse with Haas three
times while at his apartment. D.W. claimed she agreed to
have sex with Haas because S.S. told her that if “any of [the
men at the apartment] wanted to do anything,” she should
do so, “otherwise [the girls] wouldn’t have a place to stay.”
S.S. testified that she also had sexual intercourse with Haas.
D.W. reported the sexual contact with Haas to police in late
April 2004.
on May 7, 2004, police obtained a search warrant for Haas’
apartment. officers seized a comforter and sheets found on
Haas’ bed. Semen was located on some of the bedding; how-
ever, DNA testing was not performed, because the bedding
was seized approximately a month after the alleged assaults
had occurred and both D.W. and S.S. testified that the bed-
ding was not the same as what was on Haas’ bed at the time of
the assaults.
At trial, Haas called two witnesses to testify on his behalf.
The first witness, a psychiatrist who treated D.W. in March
and April 2004, had given D.W. a number of medications to
814 	279 NEbRASkA REPoRTS

treat “depression anxiety.” The psychiatrist testified that these
medications combined with alcohol could cause enhanced
sedation, confusion, disorientation, and delirium.
The second witness has a daughter with Haas. She testi-
fied that she lived in Illinois, but that from April 11 through
14, 2004, she and her daughter were in Lincoln and stayed
at Haas’ apartment. She denied that anyone other than her
and her daughter stayed overnight at Haas’ apartment during
that time.
Haas was convicted and sentenced to 20 to 30 years’ imprison-
ment on each count, to be served consecutively. Haas appealed
and was represented by different counsel on appeal. Appellate
counsel argued that Haas received ineffective assistance of
trial counsel. The Court of Appeals determined that the record
was not sufficient to adequately review Haas’ ineffective assist-
ance of counsel claims and therefore did not address them. It
affirmed his convictions and sentences.
on March 5, 2007, Haas moved for postconviction relief.
He did not allege that counsel was ineffective for failing to
preserve a Batson challenge or for failing to request DNA tests
prior to trial. Haas was granted leave to amend his motion to
add the ineffective assistance of counsel claim related to the
Batson issue.
on August 11, 2008, Haas filed a pro se motion for DNA test-
ing and a request for the appointment of Nebraska’s Commission
on Public Advocacy. The commission was appointed to repre-
sent Haas on the DNA issue.
on August 26, 2008, the district court ordered an evidentiary
hearing on Haas’ postconviction claim that trial and appellate
counsel were ineffective for failing to raise and preserve a
Batson challenge. The court appointed different counsel to rep-
resent Haas on this specific issue but denied the remainder of
his postconviction claims without an evidentiary hearing. Haas
did not appeal from the district court’s order.
on February 24, 2009, Haas, through postconviction coun-
sel, sought to amend his postconviction motion to add the
claim that his trial counsel was ineffective for failing to secure
DNA testing. The district court denied this motion. Also
STATE v. HAAS 	815
Cite as 279 Neb. 812

on February 24, an evidentiary hearing was held on Haas’
Batson claims.
on March 24, 2009, the district court denied Haas’ motion
for postconviction relief on the Batson issue. The court found
that there was no evidence in the record of the race of a
potential juror and that even if the potential juror was African-
American, there was no evidence from which an inference
could be made that the State struck the juror on the basis
of race. Even setting aside these deficiencies, the court con-
cluded there was no showing that Haas’ attorney’s actions
prejudiced Haas. on April 13, the court determined that DNA
testing was not unavailable due to ineffective assistance of
counsel. It denied an evidentiary hearing and denied relief on
the issue.
Haas appeals the denial of his motion to add the claim that
his trial counsel was ineffective for failing to secure DNA
testing, the denial of an evidentiary hearing on his motion for
DNA testing, and the denial of his motion for postconviction
relief with respect to the Batson issue.
ASSIGNMENTS oF ERRoR
Haas alleges, summarized and restated, that the district court
erred in (1) finding there was insufficient evidence to show that
a juror was African-American, (2) failing to address the State’s
strike of a juror who had an African-American child, (3) find-
ing Haas had to prove he suffered prejudice as a result of these
two jurors’ being stricken, (4) denying Haas leave to amend
his motion for postconviction relief to add the additional claim
of ineffective assistance of counsel for failure to secure DNA
testing, and (5) denying Haas an evidentiary hearing on his
allegation that DNA testing was effectively unavailable at the
time of his trial.
ANALYSIS
Haas claims the district court erred in finding there was insuf-
ficient evidence to show that a juror referred to as “D.A.k.”
was African-American. D.A.k. became a prospective juror after
another juror was dismissed for cause. Following voir dire, the
State used its first peremptory challenge to strike D.A.k. Haas’
trial counsel did not raise a Batson objection.
816 	279 NEbRASkA REPoRTS

[5,6] In Batson, the U.S. Supreme Court held that the Equal
Protection Clause of the 14th Amendment forbids prosecutors
from using peremptory challenges to strike potential jurors
solely on account of their race. See, also, State v. Gutierrez,
272 Neb. 995, 726 N.W.2d 542 (2007). The trial court’s first
step in evaluating whether a party has used a peremptory
challenge in a racially discriminatory manner is to determine
whether the defendant made a prima facie showing that the
prosecutor exercised a peremptory challenge on the basis of
race. See id. If the defendant makes the requisite showing, the
burden shifts to the prosecutor to present a race-neutral expla-
nation for striking the juror in question. Finally, the trial court
must determine whether the defendant carried his or her burden
of proving purposeful discrimination. See id.
on postconviction, Haas claimed his trial counsel’s failure
to make a Batson objection was ineffective assistance of coun-
sel. Haas offered the transcript of voir dire and the clerk’s jury
list as evidence but did not call any witnesses. Reviewing the
evidence, the district court found that there was no evidence
of D.A.k.’s race and concluded that trial counsel’s perform-
ance was not deficient. Haas claims the court erred in find-
ing there was insufficient evidence to show that D.A.k. was
African-American.
We agree with the district court that the record does not
establish D.A.k.’s race or the race of any other juror. As
evidence of D.A.k.’s race, Haas relies entirely on his allega-
tion in his motion for postconviction relief that D.A.k. was
African-American. Despite Haas’ claim, the court did not
err in finding there was insufficient evidence to show that
D.A.k. was African-American. Thus, Haas has not established
the first step of a Batson challenge, that the prosecution has
exercised a peremptory challenge on the basis of race. See
Gutierrez, supra.
[7] Haas also claims that the district court erred in failing
to address the State’s strike of an alternate juror who had an
African-American child. The record does not establish that this
issue was raised in the district court. An appellate court will not
consider as an assignment of error a question not presented to
the district court for disposition through a defendant’s motion
STATE v. HAAS 	817
Cite as 279 Neb. 812

for postconviction relief. State v. Watkins, 277 Neb. 428, 762
N.W.2d 589 (2009). Since this issue was not raised in the court
below, we will not consider it here.
[8,9] Haas next alleges that the district court erred in finding
that he was required to prove he was prejudiced by potential
juror D.A.k.’s being stricken from the panel. Haas raises the
Batson challenges in the form of an ineffective assistance of
counsel claim. To establish ineffective assistance of counsel in
accordance with Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must show
that counsel’s performance was deficient; that is, counsel’s per-
formance did not equal that of a lawyer with ordinary training
and skill in criminal law in the area. Next, the defendant must
show that the deficient performance prejudiced the defendant
in his or her case. See State v. Dunster, 278 Neb. 268, 769
N.W.2d 401 (2009). In determining whether a trial counsel’s
performance was deficient, there is a strong presumption that
such counsel acted reasonably. State v. Thomas, 278 Neb. 248,
769 N.W.2d 357 (2009). Haas failed to establish that a Batson
challenge was appropriate and, therefore, did not establish that
his counsel was deficient in failing to raise the issue at trial.
because Haas did not satisfy the first prong of Strickland, we
need not determine whether the court erred in finding that Haas
was required to prove prejudice. This assignment of error is
without merit.
Haas also claims the district court erred because it did not
allow him to amend his pleading to add the DNA testing claim
to his motion for postconviction relief. Through postconviction
counsel, Haas sought to add the allegation that he received
ineffective assistance of counsel due to his trial and appellate
counsel’s failure to secure DNA testing of the bedding. The
court denied his request, noting that the DNA testing claim had
not been raised in his earlier petition for postconviction relief
and that, except for his Batson claim, the court had denied
Haas’ request for an evidentiary hearing and denied his request
for postconviction relief on the non-Batson issues on August
26, 2008.
[10] The decision to grant or deny an amendment to a plead-
ing rests in the discretion of the court. State v. Silvers, 260
818 	279 NEbRASkA REPoRTS

Neb. 831, 620 N.W.2d 73 (2000). The district court had already
issued an order on Haas’ postconviction claims, reserving only
the Batson claim for further consideration. Furthermore, the
bedding for which Haas sought DNA testing was not the bed-
ding on which the sexual assaults occurred. The court did not
abuse its discretion in denying Haas’ motion for leave to amend
to include the DNA testing claim.
Finally, Haas claims the district court should have granted
him an evidentiary hearing on his claim that DNA testing
was effectively unavailable because he received ineffective
assistance of counsel. Under the DNA Testing Act, a court is
required to order DNA testing if it finds that (1) testing was
effectively not available at the time of the trial, (2) the bio-
logical material has been retained under circumstances likely
to safeguard the integrity of its original physical composition,
and (3) such testing may produce noncumulative, exculpatory
evidence relevant to the defendant’s claim that he or she was
wrongfully convicted. § 29-4120(5). We conclude that Haas
has not met the requirements of the act.
The district court found that current methods of DNA testing
were available at the time of Haas’ trial. Haas now attempts to
argue that DNA testing was effectively not available because
his counsel was ineffective in failing to request DNA testing.
The DNA Testing Act gives inmates access to evolving sci-
entific technology and was not intended to be an alternative
vehicle for raising claims of ineffective assistance of counsel.
See § 29-4118. Evidence which was available but not pursued
is not considered to have been unavailable.
In addition, there is no basis to conclude that testing the
biological evidence on the bedding seized from Haas’ apart-
ment would produce exculpatory evidence. Police officers
seized white, patterned sheets from Haas’ apartment nearly
a month after the sexual assaults occurred and found semen
on them. both victims testified that Haas had red sheets on
his bed the night of the assaults and that the sheets which
were seized were not the same sheets. It is obvious that test-
ing the bedding would not produce noncumulative, exculpa-
tory evidence relevant to Haas’ claim that he was wrong-
fully convicted.
STATE v. HAAS 	819
Cite as 279 Neb. 812

A motion for DNA testing under the DNA Testing Act is
addressed to the discretion of the trial court, and unless an
abuse of discretion is shown, the determination of the trial
court will not be disturbed on appeal. State v. Lotter, 266 Neb.
758, 669 N.W.2d 438 (2003). The current methods of DNA
testing were available at the time of Haas’ trial. We conclude
that the district court did not abuse its discretion in refusing
DNA testing.
CoNCLUSIoN
We find that the district court did not err in denying Haas
postconviction relief and denying DNA testing. Haas did not
establish whether D.A.k. was African-American and, there-
fore, did not establish that the prosecution exercised peremp-
tory challenges on the basis of race. The issue of whether
striking a juror based on the race of the juror’s child is subject
to a Batson challenge was not raised before the lower court;
therefore, we do not consider it on appeal. We also conclude
that the district court did not abuse its discretion in denying
Haas’ motion to amend his postconviction motion to allege
ineffective assistance of counsel for failing to secure DNA test-
ing and that Haas did not establish a basis that would require
DNA testing pursuant to the DNA Testing Act.
For the reasons set forth herein, we affirm the judgment of
the district court.
affirMeD.
State of NebraSka , appellee , v.
aNtHoNy a. caSillaS, appellaNt.
782 N.W.2d 882
Filed May 7, 2010. 	No. S-09-660.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
820 	279 NEbRASkA REPoRTS