State v. Poe

750 	284 NEBRASKA REPORTS
CONCLUSION
Because Watkins did not allege that the competency-related
issues he raised in his second motion for postconviction relief
were not available previously or could not have been raised
either on direct appeal or in his first postconviction proceeding,
the claims are procedurally barred. We affirm the judgment of
the district court.
A ffirmed.
StAte of NebrASkA, Appellee, v.
ryAN l. poe, AppellANt.
822 N.W.2d 831
Filed November 30, 2012. 	No. S-12-141.
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. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact.
3. ____: ____. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error.
4. ____: ____. With regard to the questions of counsel’s performance or preju-
dice 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 independently of the lower
court’s decision.
5. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hear-
ing 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, causing the judgment
against the defendant to be void or voidable.
6. Postconviction. An evidentiary hearing is not required when a motion for post-
conviction relief alleges only conclusions of fact or law.
7. Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes
sufficient allegations of a constitutional violation which would render a judg-
ment void or voidable, an evidentiary hearing on a motion for postconviction
relief may be denied only when the records and files affirmatively show that the
defendant is entitled to no relief.
8. Constitutional Law: Trial: Due Process. The Due Process Clause of the U.S.
Constitution guarantees every defendant the right to a trial comporting with basic
tenets of fundamental fairness.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. POE 	751
Cite as 284 Neb. 750
9. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct may so
infect the trial with unfairness as to make the resulting conviction a denial of
due process.
10. ____: ____: ____. To constitute a due process violation, the prosecutorial mis-
conduct must be of sufficient significance to result in the denial of a defendant’s
right to a fair trial.
11. 	Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance
test, deficient performance and prejudice, may be addressed in either order.
12. Effectiveness of Counsel: Presumptions. When considering whether trial coun-
sel’s performance was deficient, there is a strong presumption that counsel acted
reasonably.
13. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate
trial strategy and tactics.
14. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. An
appellate court will not second-guess reasonable strategic decisions by counsel.
15. Effectiveness of Counsel: Proof. To show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
16. Proof: Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Appeal from the District Court for Douglas County: GAry
b. rANdAll, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
WriGht, C oNNolly, StephAN, mCC ormACk, miller-lermAN,
and CASSel, JJ., and moore, Judge.
mCC ormACk, J.
NATURE OF CASE
Ryan L. Poe was convicted of first degree felony murder
and use of a deadly weapon to commit a felony. His convic-
tions were affirmed on direct appeal to this court.1 He now
appeals from the dismissal of his motion for postconviction
relief without an evidentiary hearing. Poe claims he was preju-
diced by prosecutorial misconduct stemming from the presen-
tation of inconsistent theories as to a key witness’ involvement
1 State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).

752 	284 NEBRASKA REPORTS
in the crimes. He also claims that he was deprived of his
right to effective assistance of counsel because counsel did
not present certain evidence concerning Poe’s financial situa-
tion, a telephone call made near the time of the crimes, a leg
injury affecting his ability to carry out the crimes, and an
inconsistent statement allegedly made by the State’s key wit-
ness. We affirm as to all matters except the alleged inconsist-
ent statement.
BACKGROUND
Poe was charged with first degree felony murder and use
of a deadly weapon in connection with the killing of Trever
Lee during a robbery of Lee’s townhouse on November 11,
2004. Lee lived with two roommates who survived, one of
whom called the 911 emergency dispatch service at 10:57
a.m. They testified that the robbery was committed by three
masked individuals.
One of the roommates, Jeff Connely, supplied marijuana to
a friend of Poe’s, Antwine Harper. Harper was a key witness
against Poe at trial. Harper testified that Poe had asked him for
permission to rob Connely and that Poe had confessed to the
crimes in great detail a few days after they were committed.
There was no physical evidence linking Poe to the crime.
opeNiNG StAtemeNtS
During opening statements, defense counsel introduced the
theory that Harper, not Poe, was one of the perpetrators of
the robbery and murder. Defense counsel also pointed out that
Harper implicated Poe only after the investigators interrogated
him for hours and threatened him with criminal charges of con-
spiracy to deliver marijuana.
The State emphasized for the jury that Harper was not the
robber. When Poe suggested the robbery to Harper, Harper had
told Poe it was “completely out of the question.” Harper relied
on his supplier for his livelihood. Several weeks after that con-
versation, Poe called Harper and told him he had “sent your
boy to Texas.” Harper had been at the hospital all day for the
birth of his child. The State explained to the jury that “Harper
will tell you he immediately doesn’t recognize what that means

STATE v. POE 	753
Cite as 284 Neb. 750
until he sees the news later that day and sees there’s been a
shooting in the area [where his supplier lives].”
ANtWiNe hArper
Harper testified at trial that Poe had once driven him to
Lee’s townhouse and waited in the car while he purchased
marijuana from Connely. Thus, Poe became aware of the loca-
tion of a potential robbery victim. Several weeks before the
robbery and murder, Poe asked Harper if he could rob Connely.
Harper testified that he emphatically told Poe he could not,
because Harper paid his bills and supported his family by sell-
ing the marijuana he obtained from Connely.
Harper testified that the morning of the robbery and murder,
he was at the hospital with his wife for the birth of their sec-
ond child. Harper’s wife had been scheduled to be induced the
morning of November 11, 2004, but she went into labor the
night before. While at the hospital on November 11, shortly
before noon, Poe called Harper and said, “I just sent your dude
to Texas.” Harper testified that that was a street term for hav-
ing killed somebody. Harper testified that he was not “fully
aware,” however, that a homicide had occurred until he saw it
on the 5 o’clock news.
According to Harper, 2 or 3 days later, when he and his
wife arrived home from the hospital, Poe visited Harper and
described how Poe, Kashaun Lockett, and Donte Reed, who
is Harper’s cousin, had carried out the robbery. Poe said that
he had kicked in the front door of the townhouse and that they
went directly upstairs, where Poe kicked open the first bed-
room door they encountered. After asking the resident of that
bedroom where “the bud” was at, they moved on to another
bedroom where Lee was sleeping. A struggle ensued with Lee
in the hallway. In the course of that struggle, Poe, Lockett, and
Reed all fired shots at Lee, killing him. During the struggle,
Lockett lost a shoe and Poe dropped a magazine clip from
his gun.
On cross-examination, defense counsel emphasized Harper’s
familiarity with the layout of the townhouse and with the
schedule of its tenants—a familiarity Poe, Lockett, and Reed
lacked. Defense counsel also questioned how Harper could

754 	284 NEBRASKA REPORTS
know certain details about the crime that were not released to
the public.
Harper’s wife confirmed Harper’s alibi that Harper was at
the hospital at the time of the robbery. Their child was born at
approximately 7 a.m. On cross-examination, however, Harper’s
wife admitted that Harper was not in the room at all times; he
would occasionally leave to go down to the cafeteria or talk on
the telephone.
evideNCe from SCeNe
Police officers discovered a shoe at the townhouse that
matched the DNA profile of Lockett. They also found a dis-
carded magazine clip, but the guns used in the robbery were
never found. The witnesses’ descriptions of each robber’s
height, weight, and skin color generally matched the physical
characteristics of Poe, Lockett, and Reed.
motive
The State adduced evidence that Poe did not have a job
at the time of the robbery and was experiencing some finan-
cial difficulty. Harper testified that Poe did not own his own
vehicle. Other evidence demonstrated that the apartment where
Poe lived was sparsely furnished. The State introduced receipts
showing that Poe pawned and repawned several items from
October 18 to December 14, 2004.
miChelle hAyeS
Michelle Hayes was Poe’s live-in girlfriend and the mother
of his child. She testified that when she woke up around 11 or
12 o’clock on the morning of November 11, 2004, she saw Poe
walking in. On cross-examination, Hayes confirmed her and
Poe’s home telephone number and the number of Poe’s father
and explained that Poe often spoke with his father on the tele-
phone. Telephone records demonstrated that at 10:19 a.m., a
call approximately 3 minutes in duration was made from Poe
and Hayes’ landline to Poe’s father’s landline. Other evidence
showed it took about 20 minutes to drive from Poe and Hayes’
residence to the townhouse where Lee was killed. Hayes also
testified on cross-examination that Poe received Social Security
benefits because of an injury to his leg.

STATE v. POE 	755
Cite as 284 Neb. 750
iNtervieW videotApe ANd
C roSS-exAmiNAtioN
The trial court denied defense counsel’s motion to introduce
the videotaped portion of Harper’s interview with investigators
wherein he implicated Poe. The videotape was not transcribed.
In his direct appeal to this court, Poe asserted that the trial
court denied his right to a complete defense by refusing to
allow him to play the 2-hour videotape for the jury.2 Poe fur-
ther asserted that the trial court violated his right to confronta-
tion by limiting defense counsel’s cross-examination of Harper
and of the police officers who interviewed him.
We rejected both arguments. We explained that defense
counsel had viewed the videotape and repeatedly asked the
witnesses about its contents. We said that defense counsel was
permitted “extensive cross-examination of all witnesses con-
cerning the police interview of Harper”3 and that the jury heard
the evidence concerning “all aspects of Harper’s interview with
the officers.”4
For example, Harper admitted on cross-examination that
he implicated Poe only after the officers told him he had an
arrest warrant for marijuana charges. In previous communi-
cations with the police and during the first few hours of the
last interview, Harper had said he knew nothing about the
robbery. But when threatened with arrest, Harper broke down
and cried because the officers “‘tried to take me away from
my family.’”5
Harper testified he believed he was only being threatened
with drug-related charges. But Harper admitted on cross-
examination that he was getting the feeling the officers were
putting him “‘in the mix’”6 for the robbery and murder. One of
the interviewing officers told Harper that Lee’s murder could
have the death penalty associated with it and that people can
get 50 years in prison on drug charges. Defense counsel was
2 Id.
3 Id. at 268, 754 N.W.2d at 402.
4 Id. at 270, 754 N.W.2d at 403.
5 Id. at 265, 754 N.W.2d at 400.
6 Id. at 265, 754 N.W.2d at 399.

756 	284 NEBRASKA REPORTS
even able to elicit Harper’s interview statement that he would
tell the officers “‘what [they] want[ed] to hear.’”7
Defense counsel again obtained Harper’s admission that he
“‘told [the officers] what they wanted to hear so [he] wouldn’t
have to go to jail.’”8 And one of the interviewing officers tes-
tified on cross-examination that they told Harper they would
“‘go to bat’” for Harper if he cooperated.9 Harper testified it
was his understanding that the charges against him would be
dismissed if he cooperated.
C loSiNG A rGumeNtS
During closing arguments, the State told the jury that it
“boil[ed] down to” whether the jury believed Harper was
“being honest about his involvement and what he knows and
how he knows it.” The State spoke about Harper’s lack of
motive to rob his only supplier and the fact that Harper did not
remotely fit the weight and height descriptions of the assail-
ants. The State argued that the idea that Harper planned a rob-
bery the same day his wife was scheduled to deliver their baby
was “ridiculous.” The State argued instead that this was that
“exceptional” gang-related case where someone “despite his
fears, his trepidation, [came] forward, helped officers to solve
this crime.”
Defense counsel in closing arguments suggested that Harper
was the perpetrator and pointed out “the irony” that “the person
who is responsible is [the State’s] witness.” Defense coun-
sel also argued that Harper’s testimony could not be trusted
because it was obtained by threats and as a “trad[e]” for drop-
ping charges that could have resulted in 50 years in prison and
even the death penalty.
Defense counsel pointed out that Poe, because of his injured
leg, would not be able to efficiently kick through doors. Finally,
defense counsel argued it was almost impossible for Poe to
have rushed to the townhouse to commit the robbery and mur-
der right after speaking with his father on the telephone from
7 Id. at 266, 754 N.W.2d at 400.
8 Id. at 269, 754 N.W.2d at 402.
9 Id.

STATE v. POE 	757
Cite as 284 Neb. 750
his landline. Defense counsel explained that it had to have been
Poe on the telephone shortly before the robbery because Hayes
could not have been speaking with Poe’s father while she was
asleep. The jury found Poe guilty.
hArper AS C oCoNSpirAtor?
Before Poe’s trial, the parties had discussed whether Poe
and Lockett would be tried jointly. Both Poe’s attorney and
Lockett’s attorney opposed joinder, and the court ultimately
ruled against joinder. One of the issues discussed in the pre-
trial hearing was whether Harper’s testimony concerning Poe’s
hearsay statements would be admissible in Lockett’s trial. The
State indicated it would attempt to show the statements by Poe
were in furtherance of a conspiracy and thus would be allowed
as nonhearsay.
After Poe’s trial, during pretrial proceedings for the State’s
case against Lockett, the State filed a brief in opposition to
Lockett’s motion to suppress Poe’s statements to Harper as
inadmissible hearsay. The State asserted that the statements
should be allowed under Neb. Rev. Stat. § 27-801(4)(b)(v)
(Reissue 2008). The State argued that Harper participated in a
conspiracy with Poe, Lockett, and Reed. It explained Harper
had numerous contacts with the perpetrators and knew what
was being planned. The State explained that a person who
acts in “‘confederation’” with others to violate the law “may
be liable as a principal under the theory of conspiracy.” And
“Harper’s involvement in the robbery and murder in question is
more than a passive observer.” The State also emphasized that
Harper did nothing to stop the robbery. Then, after the robbery,
when Poe called Harper at the hospital and said he “sent your
dude to Texas,” Harper knew that meant they had killed some-
one. But Harper did nothing to report the crime, and he initially
“aided in the cover-up by not being forthright with the police.”
Lockett’s case was dismissed before trial.
motioN for poStCoNviCtioN relief
Poe filed a petition for postconviction relief. Simultaneously,
Poe filed a 57-page “Verified Motion to Vacate and Set Aside
Judgment of Conviction and Sentence,” elaborating on his
postconviction claims. Poe alleged that the State had engaged

758 	284 NEBRASKA REPORTS
in prosecutorial misconduct by presenting inconsistent and
irreconcilable 	theories 	as 	to 	Harper’s 	involvement 	in 	the
crimes. Poe focused on inconsistencies as to whether Harper
was involved in planning the robbery or instead tried to stop it,
whether Harper immediately understood what Poe meant when
he said he “sent your dude to Texas,” and whether Harper was
an innocent and cooperative witness versus a coconspirator in
a coverup. Poe argued, among other things, that our decision
on direct appeal concerning the admissibility of the video-
tape and the confrontation of witnesses against him should
be reconsidered in light of this newly discovered evidence of
prosecutorial misconduct. Poe further alleged that the State’s
successful objections to defense counsel’s cross-examination
of Harper and to the admission of the videotape constituted a
manipulation of the evidence in furtherance of its inconsist-
ent theories.
Poe alleged that his trial counsel was ineffective in failing to
contact and interview witnesses, investigate all the facts, fully
develop proper trial strategy, and call Poe as a witness. In sup-
port of these allegations, Poe attached the affidavit of Hayes,
wherein she stated that Harper had told her Poe did not commit
the robbery and murder. Hayes stated that Harper told her he
was being pressured to lie at Poe’s trial. Hayes averred that she
relayed this conversation to Poe’s trial counsel.
Poe also presented the affidavit of Poe’s father, who averred
that Poe was not in need of money at the time of the robbery
because he provided Poe with money whenever Poe needed it.
Poe’s father further stated that he was willing to testify at Poe’s
trial and would have testified that he spoke with Poe on the
telephone shortly before the robbery.
Finally, 	Poe 	submitted 	his 	own 	affidavit 	in 	which 	he
asserted that trial counsel failed to sufficiently consult with
him. Poe claimed, among other things, that trial counsel was
ineffective in advising Poe not to testify. If Poe would have
testified, Poe would have told the jury that he spoke with his
father on the telephone from his landline shortly before the
robbery and murder. He would have also testified that the
injury to his right leg made it impossible for him to kick open
a locked door. Finally, Poe averred he would have testified

STATE v. POE 	759
Cite as 284 Neb. 750
that his father gave him all that he needed financially and
that his father had purchased furniture which had not yet been
moved into Poe and Hayes’ apartment at the time of the rob-
bery and murder.
The trial court granted the State’s motion to dismiss Poe’s
motion for postconviction relief without an evidentiary hear-
ing. Poe appeals.
ASSIGNMENTS OF ERROR
Poe asserts that the trial court erred in dismissing his motion
for postconviction relief without an evidentiary hearing because
Poe alleged facts that, if proved, would show (1) prosecutorial
misconduct, (2) a violation of his right to present a complete
defense, and (3) ineffective assistance of counsel.
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.10
[2-4] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.11 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,12 an appellate court
reviews such legal determinations independently of the lower
court’s decision.13
ANALYSIS
[5-7] 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,
10 State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
11 State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
12 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
13 State v. Davlin, supra note 11.

760 	284 NEBRASKA REPORTS
causing the judgment against the defendant to be void or void-
able.14 An evidentiary hearing is not required when the motion
alleges only conclusions of fact or law.15 If the defendant
makes sufficient allegations of a constitutional violation which
would render the judgment void or voidable, an evidentiary
hearing may be denied only when the records and files affirma-
tively show that the defendant is entitled to no relief.16
proSeCutoriAl miSCoNduCt
Poe first alleges that the trial court erred in dismissing his
claim for postconviction relief because he raised sufficient alle-
gations of prosecutorial misconduct stemming from the use of
inconsistent theories in two different proceedings for different
defendants charged with the same crimes.
[8-10] The Due Process Clause of the U.S. Constitution
guarantees every defendant the right to a trial comporting
with basic tenets of fundamental fairness.17 The U.S. Supreme
Court has recognized that prosecutorial misconduct may so
infect the trial with unfairness as to make the resulting con-
viction a denial of due process.18 To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant’s right to
a fair trial.19
Thus, the U.S. Supreme Court has said that the prosecution
violates due process by knowingly or recklessly presenting
false testimony.20 The prosecution also violates due process
by failing to disclose evidence favorable to the accused.21 But
14 See, State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005); State v.
Dean, supra note 10.
15 State v. Dean, supra note 10.
16 See State v. Marshall, supra note 14.
17 Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153,
68 L. Ed. 2d 640 (1981).
18 Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987).
19 Id.
20 Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).
21 United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481
(1985).

STATE v. POE 	761
Cite as 284 Neb. 750
the U.S. Supreme Court has declined to squarely address the
issue of whether a prosecutor’s use of inconsistent theories
can violate due process. We likewise have never addressed
this issue.
In 	Calderon 	v. 	Thompson 	(Thompson 	II),22 	the 	U.S.
Supreme Court reversed a Ninth Circuit opinion, Thompson
v. Calderon (Thompson I),23 that had recalled its previous
mandate denying habeas relief. In a plurality opinion, the
court in Thompson I had concluded that the prosecutor pur-
sued “fundamentally inconsistent theories”24 which violated
Thomas Martin Thompson’s due process rights and prejudiced
Thompson because the inconsistent theory formed the basis
for the special circumstance justifying the imposition of the
death penalty.25
The prosecution had presented different witnesses in each
trial of separately convicted accomplices concerning the extent
of each defendant’s involvement in the murder. In the trial of
Thompson, the prosecution argued that Thompson alone com-
mitted the murder, which he committed to cover up a rape, and
that his accomplice only assisted in hiding the body when he
discovered the murder thereafter. The prosecution called two
jailhouse informants who testified as to Thompson’s confes-
sion consistent with that theory. But in a subsequent trial of
the codefendant, the prosecution argued that the codefendant,
not Thompson, was the mastermind of the murder. The vic-
tim was getting in the way of the codefendant’s efforts to
reconcile with his ex-wife. Thompson had merely assisted
in carrying out the murder. In support of this new theory in
the trial of the codefendant, the prosecution called numerous
defense witnesses from Thompson’s trial, including jailhouse
informants who testified as to entirely different confessions
than the confessions testified to by the jailhouse informants in
Thompson’s trial. When defense counsel in the codefendant’s
22 Calderon v. Thompson, 523 U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728
(1998).
23 Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997).
24 Id. at 1056.
25 Thompson I, supra note 23.

762 	284 NEBRASKA REPORTS
trial attempted to argue Thompson had murdered the victim by
himself, the prosecution characterized this theory as “absurd
and incredible.”26
The Ninth Circuit concluded that the prosecution’s manipu-
lation of evidence and witnesses and its argument of incon-
sistent motives, which essentially ridiculed the prosecution’s
theory used to obtain a conviction and death sentence at
Thompson’s trial, violated due process.27 The U.S. Supreme
Court reversed, holding that the Ninth Circuit abused its dis-
cretion in recalling the mandate in which it had previously
denied habeas relief.28 The Court explained that finality is
essential to the law. Absent clerical error, fraud, or a stay, a
court that sua sponte recalls its mandate abuses its direction
unless there has been a miscarriage of justice concerning
“‘actual as compared to legal innocence.’”29 In terms of a
petitioner who challenges his death sentence, the petitioner
must show by clear and convincing evidence that no reason-
able juror would have found him eligible for the death penalty
in light of the new evidence.30 This standard was not met
by Thompson.31
In Bradshaw v. Stumpf (Stumpf II),32 the U.S. Supreme
Court came a bit closer to opining on the viability of prosecu-
torial misconduct claims based on inconsistent theories. The
Court granted certiorari to address a claim that was primar-
ily concerned with whether the defendant’s plea was know-
ing, voluntary, and intelligent.33 After reversing habeas relief
on that issue, the Court stated it would be “premature” to
resolve the merits of the defendant’s sentencing claim based
26 Id. at 1057.
27 Thompson I, supra note 23.
28 Thompson II, supra note 22.
29 Id., 523 U.S. at 559.
30 Thompson II, supra note 22.
31 Id.
32 Bradshaw v. Stumpf, 545 U.S. 175, 125 S. Ct. 2398, 162 L. Ed. 2d 143
(2005).
33 See Stumpf v. Mitchell, 367 F.3d 594 (6th Cir. 2004).

STATE v. POE 	763
Cite as 284 Neb. 750
on prosecutorial misconduct.34 It remanded that claim to the
lower court.
The prosecutorial misconduct claim was premised on the
fact that the panel which sentenced John David Stumpf to
death specifically found that he was the “‘principal offender’”
in the aggravated murder.35 This was founded on the pros-
ecution’s argument during the penalty phase of Stumpf’s trial
that Stumpf had shot and killed the victim. In the subsequent
trial of the accomplice, however, the prosecution argued the
opposite—that it was the accomplice who fired the fatal shots.
Apparently, a new jailhouse informant had come forward. After
the accomplice’s trial, the State went back to its original theory
and argued in a hearing on Stumpf’s motion to withdraw his
plea that Stumpf was the primary shooter. At that hearing, the
prosecution discredited the very testimony which the prosecu-
tion had presented in the accomplice’s trial. Throughout these
three proceedings, the prosecution argued as an alternative
basis for the death penalty that the defendants acted as accom-
plices with a specific intent to cause death.
The U.S. Supreme Court explained that the Court of Appeals’
opinion had been unclear as to whether it had addressed this
prosecutorial misconduct claim. The Court of Appeals should
have the opportunity to consider the question in the first
instance before the U.S. Supreme Court considered it.36 Justice
Souter concurred, with Justice Ginsburg joining, to clarify that
the matter remanded was the question of whether Stumpf’s
“death sentence may not be allowed to stand when it was
imposed in response to a factual claim that the State necessarily
contradicted in subsequently arguing for a death sentence in the
case of a codefendant.”37 Justice Souter summarized that “[a]t
the end of the day, the State was on record as maintaining that
Stumpf and [the accomplice] should both be executed on the
ground that each was the triggerman, when it was undisputed
34 Stumpf II, supra note 32, 545 U.S. at 187.
35 Id., 545 U.S. at 180.
36 Stumpf II, supra note 32.
37 Id., 545 U.S. at 189 (Souter, J., concurring; Ginsburg, J., joins).

764 	284 NEBRASKA REPORTS
that only one of them could have been.”38 Justice Souter noted
“‘[t]he heightened need for reliability in capital cases.’”39 He
wrote that at some point in a given case, the state’s interest is
transcended by its interest that justice shall be done.40 Thus,
Stumpf’s argument to be considered on remand was whether
“sustaining a death sentence in circumstances like those here
results in a sentencing system that invites the death penalty ‘to
be . . . wantonly and . . . freakishly imposed.’”41
Justice Thomas wrote a concurring opinion, joined by Justice
Scalia, questioning whether a due process claim can arise from
inconsistent theories as opposed to the use of evidence known
to be false. Justice Thomas opined that the U.S. Supreme
Court “has never hinted, much less held, that the Due Process
Clause prevents a State from prosecuting defendants based
on inconsistent theories.”42 Rather, the guarantee of “vigorous
adversarial testing of guilt and innocence” and the requirement
of “conviction only by proof beyond a reasonable doubt” “are
more than sufficient to deter the State from taking inconsistent
positions; a prosecutor who argues inconsistently risks under-
mining his case, for opposing counsel will bring the conflict to
the factfinder’s attention.”43
On remand, the Sixth Circuit held in Stumpf v. Houk
(Stumpf III)44 that the defendant’s due process rights were
violated and that the sentencing panel likely would not have
sentenced the defendant to death “had the state not persisted in
its efforts at duplicity.” The court said:
If we are to take seriously the responsibility of ensur-
ing reliable sentencing determinations in capital cases,
we cannot allow the prosecution to play so fast and
38 Id.
39 Id.
40 Stumpf II, supra note 32, citing Berger v. United States, 295 U.S. 78, 55 S.
Ct. 629, 79 L. Ed. 1314 (1935).
41 Id., 545 U.S. at 190.
42 Id., 545 U.S. at 190 (Thomas J., concurring; Scalia, J., joins).
43 Id., 545 U.S. at 191-92.
44 Stumpf v. Houk, 653 F.3d 426, 439 (6th Cir. 2011).

STATE v. POE 	765
Cite as 284 Neb. 750
loose with the facts and with its theories. To allow
a prosecutor to advance irreconcilable theories with-
out adequate explanation undermines confidence in the
fairness and reliability of the trial and the punishment
imposed and thus infringes upon the petitioner’s right to
due process.45
The court concluded that the prosecutor had played “a flip-
pant, macabre game of chance with people’s lives.”46 And
while a prosecutor must prosecute with “‘earnestness and vigor
and “may strike hard blows, he is not at liberty to strike foul
ones.”’”47 The dissent in Stumpf III argued, however, that the
substantive right relied on by the majority was one “of [its]
own invention.”48
In addition to the Sixth Circuit and Ninth Circuit decisions
in Stumpf III and Thompson I, other state and federal courts
have recognized that inconsistent prosecutorial theories can,
in certain circumstances, violate due process. Those cases
almost exclusively involve the death penalty, although at least
one involves a sentence of life imprisonment.49 The kind of
inconsistencies courts have found in violation of due process
concern “the core of the State’s case”50 and often are “essential
in order to prosecute the individual in question.”51 “In other
words, the Government in those subsequent cases could not
have prosecuted the remaining individual for the same crime
had the Government maintained the theory or facts argued in
the earlier trial.”52 In addition, inconsistencies which courts
have found to rise to the level of the denial of a fundamentally
45 Id. at 437.
46 Id. at 438.
47 Id. at 439. See, also, Berger v. United States, supra note 40; United States
v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
48 Stumpf III, supra note 44, 653 F.3d at 440 (Boggs, Judge, dissenting).
49 See Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000).
50 E. Sifrit v. State, 383 Md. 77, 106, 857 A.2d 65, 82 (2004). See, also, Clay
v. Bowersox, 367 F.3d 993 (8th Cir. 2004).
51 U.S. v. Dickerson, 248 F.3d 1036, 1043-44 (11th Cir. 2001).
52 Id. at 1044.

766 	284 NEBRASKA REPORTS
fair trial have involved a manipulation of the evidence in order
to support the different theories.
For instance, in In re Sakarias,53 the prosecution argued in
two separate trials that each defendant struck all the particu-
larly gruesome hatchet blows to the victim’s head and that the
other used a knife. Apparently, the scenario “best supported by
all the evidence”54 was that Peter Sakarias used the knife in the
initial attack and only struck the victim with the hatchet after
the victim was already dead and had been dragged into another
room. Each defendant was sentenced to death. In order to sup-
port the theory in Sakarias’ trial that Sakarias struck all the
hatchet blows, including the fatal one, the prosecution inten-
tionally avoided eliciting certain testimony which the prosecu-
tion had presented in the accomplice’s trial.
The court held that the prosecution violated Sakarias’ due
process rights by “intentionally and without good faith justi-
fication arguing inconsistent and irreconcilable factual theo-
ries in the two trials, attributing to each [defendant] in turn
culpable acts that could have been committed by only one
person.”55 The court reasoned that, when prejudicial, the pros-
ecution achieves through such tactics a false conviction or
increased punishment on a “false factual basis” for one of
the accused.56
For similar reasons, in Smith v. Groose,57 the Eighth Circuit
granted habeas relief by vacating the conviction and sentence
of five life terms of imprisonment for Jon Keith Smith, who
had been a juvenile at the time of the alleged crimes. The
case involved the unfortunate and unusual circumstance in
which the victims’ home was the object of two different
gangs of robbers that had entered the home at separate, but
overlapping times. Smith’s gang had arrived while the rob-
bery of the other gang was in progress. A member of Smith’s
53 In re Sakarias, 35 Cal. 4th 140, 106 P.3d 931, 25 Cal. Rptr. 3d 265 (2005).
54 Id. at 147, 106 P.3d at 936, 25 Cal. Rptr. 3d at 272.
55 Id. at 145, 106 P.3d at 934, 25 Cal. Rptr. 3d at 270.
56 Id. at 156, 106 P.3d at 942, 25 Cal. Rptr. 3d at 278.
57 Smith v. Groose, supra note 49.

STATE v. POE 	767
Cite as 284 Neb. 750
gang had told police that the victims were already dead when
they arrived. But he had briefly changed his story to the
police and later said he saw a member of Smith’s gang killing
the victims.
The prosecution asserted in Smith’s trial that a member of
Smith’s gang had killed the victims. The witness from Smith’s
gang testified for the defense that the victims had been killed
by the other gang before they arrived. The prosecution suc-
cessfully impeached this testimony and obtained a conviction
against Smith for felony murder by using the witness’ second
statement to the police. In the subsequent trial of a robber from
the other gang, however, the prosecution relied on the witness’
first statement to police that the other gang had killed the vic-
tims before Smith’s gang arrived.
The Eighth Circuit explained, “In short, what the State
claimed to be true in Smith’s case it rejected in [the other]
case, and vice versa,” successfully proving beyond a reason-
able doubt in two different trials that the victims were mur-
dered at two different times.58 The court said that prosecutors
are not bound to present precisely the same evidence and
theories in trials for different defendants.59 But “diametrically
opposed testimony” “at the core of the prosecutor’s cases
against defendants for the same crime,” renders the convic-
tions infirm.60
In contrast to diametrically opposed inconsistencies at the
core of the case accompanied by manipulation of the evidence,
courts have found that “[d]iscrepancies based on rational infer-
ences from ambiguous evidence will not support a due process
violation provided the two theories are supported by consistent
underlying facts.”61 Courts have also held that the use of incon-
sistent theories will not rise to a due process violation when
those theories concern a tangential issue.62 It is acceptable that
58 Id. at 1050.
59 Smith v. Groose, supra note 49.
60 Id. at 1052.
61 E. Sifrit v. State, supra note 50, 383 Md. at 106, 857 A.2d at 82.
62 State v. Bodden, 190 N.C. App. 505, 661 S.E.2d 23 (2008).

768 	284 NEBRASKA REPORTS
“evidence presented at multiple trials is going to change to an
extent based on relevancy to the particular defendant and other
practical matters.”63
Courts have accordingly found no due process violation
stemming from inconsistent arguments as to who was the
killer in the relatively common circumstance where each
defendant can be held equally guilty as an aider and abettor
upon the same inconclusive evidence.64 In a case decided the
same year as Smith, the Eighth Circuit found no due process
violation when, at two separate trials, the prosecution argued
that the death penalty was appropriate for each defendant
because each was the killer in the jointly executed armed
robbery.65 Although the prosecution made inconsistent argu-
ments, the court noted that the evidence presented to the trier
of fact was the same. It was impossible to determine from the
evidence which gun caused the fatal wound. The prosecution
thus did not use evidence that was “factually inconsistent
and irreconcilable.”66
Similarly, in State v. Bodden,67 where the underlying theory
of guilt remained the same, the court held that the prosecution
did not violate the defendant’s due process rights by arguing
in the defendant’s trial that the victim knew he was dying
when he identified the defendant, and in the accomplice’s trial
arguing that the victim did not know he was dying. The court
noted that the evidence of the victim’s hearsay statements
was admitted and was identical in both trials. The prosecution
merely adopted differing “permissible inferences interpreting
the same evidence.”68 The court observed that in each case,
whatever the prosecution’s theory, the trial court would have
63 E. Sifrit v. State, supra note 50, 383 Md. at 106, 857 A.2d at 82.
64 See, Drake v. Francis, 727 F.2d 990 (11th Cir. 1984); Council v.
Commissioner of Correction, 114 Conn. App. 99, 968 A.2d 483 (2009).
See, also, Nguyen v. Lindsey, 232 F.3d 1236 (9th Cir. 2000).
65 U.S. v. Paul, 217 F.3d 989 (8th Cir. 2000).
66 Id. at 998.
67 State v. Bodden, supra note 62.
68 Id. at 516, 661 S.E.2d at 30.

STATE v. POE 	769
Cite as 284 Neb. 750
been free, upon that same evidence, to make a different infer-
ence.69 Furthermore, a due process violation would not stem
from inconsistencies pertaining to “a tangential issue such as
admission of a hearsay statement.”70
In State v. Pearce,71 the court found no due process viola-
tion after the prosecution changed its position about the cred-
ibility of a key witness when the underlying factual allegations
remained the same. The witness was one of a group of three
men and one woman who kidnapped, robbed, and attempted
to kill the victim. In the first trial, the witness identified the
defendant, who was another of the three men, as one of the
perpetrators and stated that Sarah Kathleen Pearce was not
the woman involved. In a retrial of that defendant, the witness
again incriminated the defendant, but this time said he did not
know whether Pearce was the woman involved. At both trials,
the prosecution vouched for the witness’ credibility and dis-
credited defense counsel’s attempt to impeach the witness due
to his inconsistent testimony.
But at Pearce’s trial, when the witness testified that he did
not think Pearce was the woman involved, the prosecution
impeached the witness’ credibility. In doing so, the prosecution
used essentially the same instances of dishonesty relied on by
the defense in the other defendant’s trial.
The court explained that not every prosecutorial variance
amounts to a due process violation.72 Merely changing posi-
tion about the credibility of a witness—even a key wit-
ness—is fundamentally distinct from inconsistencies which
rise to a due process violation. The underlying theory of guilt
in the trial of Pearce and her coconspirators remained the
same. The court said that forcing the prosecution to accept
the witness’ testimony at Pearce’s trial “and abstain from
impeachment, simply because it had bolstered his credibility
when it previously used a different portion of his testimony,
69 See id.
70 Id. at 517, 661 S.E.2d at 30.
71 State v. Pearce, 146 Idaho 241, 192 P.3d 1065 (2008).
72 Id.

770 	284 NEBRASKA REPORTS
would essentially strip the State of an important tool in its
trial arsenal.”73
The Supreme Court of Iowa has said that there is only a
“narrow exception to the right of the prosecution to rely on
alternative theories in criminal prosecutions albeit that they
may be inconsistent.”74 That narrow exception it limited to the
“selective use of evidence by the prosecution in order to estab-
lish inconsistent factual contentions in separate criminal pros-
ecutions for the same crime [which is] so egregious and lack-
ing in good faith as to constitute a denial of due process.”75 The
court explained: “There is, after all, a safeguard against abuse
as a result of the prosecution’s burden to prove any theory it
asserts by evidence beyond a reasonable doubt.”76
In this appeal from Poe’s denial of postconviction relief, we
find it unnecessary to precisely define the kind of inconsist-
encies that perhaps could, in different circumstances, violate
the defendant’s right to a fundamentally fair trial. The incon-
sistencies alleged in Poe’s motion for postconviction relief
clearly do not give rise to a due process claim.
Poe and the State seem to disagree as to what level of
coconspirator involvement the State actually alleged in the
Lockett brief. The State argues that it only asserted Harper
was part of the coverup, while Poe reads the Lockett brief as
alleging more. Regardless, the State does not fundamentally
contradict the evidence it presented in Poe’s trial. And, because
the Lockett prosecution never went to trial, there could be no
manipulation of the underlying evidence presented to support
the inconsistent theories.
Harper testified at Poe’s trial that he asked Poe not to rob his
supplier. The State did not later argue this was untrue. Harper
testified at Poe’s trial that he did not otherwise try to stop the
robbery and did not report the crime. The State said in Poe’s
trial this was because Harper was scared for his family’s safety.
73 Id. at 249, 192 P.2d at 1073.
74 State v. Watkins, 659 N.W.2d 526, 532 (Iowa 2003).
75 Id.
76 Id.

STATE v. POE 	771
Cite as 284 Neb. 750
In the Lockett proceedings, however, this failure to act was
evidence of a conspiracy.
Harper testified at Poe’s trial that he knew that “sen[ding]
your dude to Texas” was street talk for having killed some-
one, but that he did not fully understand what had happened
until he saw the news. The State in Poe’s trial emphasized
that Harper was surprised and confused when he received that
message, thereby emphasizing his innocence. In the Lockett
brief this was instead further evidence of Harper’s “collabora-
tion, cooperation, and failure to act on the information that
he had.”
The State drew different inferences from the evidence and
emphasized the same evidence in different ways. But either
view of Harper’s involvement as innocent or somewhat less
so is consistent with the evidence and may be reasonably
inferred therefrom. These are not irreconcilable or diametri-
cally opposed theories. Furthermore, the extent of Harper’s
involvement in the crime is tangential to the underlying theory
of Poe’s involvement in the crime. The State did not take an
inconsistent view as to Harper’s credibility and did not contest
the core facts of Poe’s alleged confession to Harper.
We also note that before Poe’s trial, the prosecution had
told defense counsel it would be pursuing a coconspirator
exception to the hearsay rule if Lockett were tried separately.
Although the details of the conspiracy theory were not entirely
clear, to that extent, the prosecution did not change its theory
at all.
Poe argues that, like in Thompson I,77 the prosecution ridi-
culed the very theory the prosecution later used in the Lockett
hearing. The State said in closing arguments that it would be
“ridiculous” for Harper to have planned the robbery the same
day his wife was scheduled to give birth. But the State was
attempting to address Poe’s theory of defense that Harper, not
Poe, was one of the robbers. It was not ridiculing the idea later
proposed in the Lockett proceeding that Harper was acting in
“confederation” with Poe from the safety of his wife’s hospital
room. And the State’s critique of Poe’s theory of defense was
77 Thompson I, supra note 23.

772 	284 NEBRASKA REPORTS
professional in tone. Standing alone, such critique will not
form the basis for a due process claim.
In conclusion, the prosecution did not strike “foul blows”78
in its pursuit of Poe’s convictions. The State did not present
different evidence and theories in order to wantonly manipulate
the criminal justice system. The prosecution merely presented
different permissible inferences based on the same evidence.
It did so in order to account for the different circumstances of
the different proceedings—in this case, for different eviden-
tiary hurdles. Such a change in arguments and strategy “based
on relevancy to the particular defendant and other practical
matters”79 is permissible and does not violate due process.
Whatever inconsistencies the State pursued in the short-lived
proceedings against Lockett, they certainly do not call into
question the truth or falsity of the core facts upon which Poe’s
convictions rest.
The facts alleged by Poe’s motion for postconviction relief
pertaining to prosecutorial misconduct do not undermine our
confidence in the fairness and reliability of Poe’s trial or the
punishment imposed. We therefore affirm the trial court’s
denial of Poe’s motion for postconviction relief relating to
those allegations.
iNeffeCtive ASSiStANCe of C ouNSel
We next address Poe’s ineffective assistance of counsel
claims. Poe alleged trial counsel failed to present testimony
that counsel was aware of before trial and which would have
strengthened Poe’s defense in several respects. Poe alleged that
but for this deficient performance, the result of the trial would
have been different.
First, Poe asserts that had he and his father been called
to testify, they would have undermined the State’s case for
motive. The State presented evidence that the apartment was
sparsely furnished and that Poe was in need of cash. Poe and
his father allegedly would have testified that Poe had furniture
78 See Stumpf III, supra note 44, 653 F.3d at 439. See, also, Berger v. United
States, supra note 40; United States v. Agurs, supra note 47.
79 E. Sifrit v. State, supra note 50, 383 Md. at 106, 857 A.2d at 82.

STATE v. POE 	773
Cite as 284 Neb. 750
ready to be transported to the apartment and that Poe’s father
provided for all of Poe’s financial needs.
Second, Poe asserts that had he and his father been called
to testify, they would have lent more concrete support to the
theory that Poe was on the telephone with his father shortly
before the murder, by testifying as such. Otherwise, the tele-
phone records and Hayes’ testimony that she was asleep at the
time was the only evidence that Poe and his father were speak-
ing from their respective landlines at the time reflected in the
telephone records.
Third, had Poe been advised to testify, he would have
explained that he was physically incapable of kicking in the
front door and the bedroom door, as Harper claimed Poe
described in his confession. Without Poe’s testimony, there
was only Hayes’ testimony that Poe was receiving disability
benefits for an injury to his leg. Hayes did not describe with
specificity the nature of that injury.
Finally, Poe asserts that trial counsel failed to impeach
Harper’s testimony by presenting him with his prior statement
to Hayes that Poe did not commit the crimes. Harper also had
allegedly told Hayes that “the police were trying to get him to
say something that was not true.”
The trial court reviewed the files and records of Poe’s case
and denied Poe’s motion without conducting an evidentiary
hearing. Under the postconviction statutes, a court is not obli-
gated to hold an evidentiary hearing if the files and records
of the case affirmatively show that the prisoner is entitled to
no relief.80 While we agree with the trial court with respect to
most of Poe’s allegations, we conclude that the trial court erred
in denying Poe an evidentiary hearing concerning Harper’s
alleged statement to Hayes.
[11] To prevail on a claim of ineffective assistance of
counsel under Strickland,81 the defendant must first show
that counsel’s performance was deficient and second, that
this deficient performance actually prejudiced his or her
80 State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
81 Strickland v. Washington, supra note 12.

774 	284 NEBRASKA REPORTS
defense.82 The two prongs of the ineffective assistance test,
deficient performance and prejudice, may be addressed in
either order.83
[12-14] When considering whether trial counsel’s perform-
ance was deficient, there is a strong presumption that counsel
acted reasonably.84 Trial counsel is afforded due deference to
formulate trial strategy and tactics.85 An appellate court will
not second-guess reasonable strategic decisions by counsel.86
But, in this case, there was no evidentiary hearing. We have
no evidence concerning trial counsel’s strategy. Under these
circumstances, trial counsel’s strategy is a matter of conjec-
ture. We conclude that the records and files in this case are
insufficient to determine whether trial counsel’s performance
was deficient.
[15,16] To show prejudice, the defendant must demonstrate
a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent.87 A reasonable probability is a probability sufficient
to undermine confidence in the outcome.88 We follow the
approach to the prejudice inquiry outlined by the U.S. Supreme
Court in Strickland:
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
82 State v. Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007).
83 State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
84 State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
85 See id.
86 See id.
87 See State v. Davlin, supra note 11.
88 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).

STATE v. POE 	775
Cite as 284 Neb. 750
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.89
The testimony of Poe and his father would have had, at
most, an isolated effect on relatively trivial matters. The
averred statements do not involve facts negating Poe’s guilt
or culpability.
As to the proposed testimony that Poe’s father provided for
Poe’s financial needs, robberies are not necessarily motivated
by financial need. Furthermore, financial need is emphasized
rather than minimized by showing financial dependence on
someone else. Thus, the evidence would have done little to
negate the State’s case for motive.
As to the proposed testimony that Poe’s father was talking
to Poe on the telephone shortly before the murder, defense
counsel emphasized at closing arguments the reasons why this
must have been the case. The proposed testimony would have
added little to that argument. More importantly, the telephone
call was indisputably ended with ample time to reach the town-
house before the robbery and murder occurred. The call ended
38 minutes before the 911 call from the townhouse, and offi-
cers testified it took about 20 minutes to get from Poe’s house
to the townhouse. The State did attempt to argue Poe was not
on the telephone, but rested its case instead on the fact that Poe
had time to reach the townhouse after the call. The telephone
call was a relatively trivial matter.
Either of the other two accomplices could have kicked down
the doors instead of Poe. Defense counsel adequately argued
that because of the injury to Poe’s leg, it would have been dif-
ficult for Poe to have kicked down the doors. And, again, the
State did not dispute that point. Thus, additional evidence of
89 Strickland v. Washington, supra note 12, 466 U.S. at 695-96. Accord State
v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).

776 	284 NEBRASKA REPORTS
whether Poe could kick down doors would have had a trivial
effect on any conclusion as to this issue, and the question of
who kicked down the doors was of trivial significance to the
outcome of the trial.
But the allegations concerning the unrealized impeachment
of Harper are neither of trivial effect nor of a trivial matter.
In denying postconviction relief without an evidentiary hear-
ing, the trial court focused on the fact that Harper had been
heavily cross-examined. The court also concluded that the
hearsay statement would have been inadmissible. While Poe
did not address the hearsay rule as such, Poe asserted that the
statement could have come in for impeachment purposes. We
agree that it would have been admissible as a prior, inconsist-
ent statement.90 And, although Harper may have been heavily
cross-examined, he was not confronted with an inconsistent
statement of this nature. Harper’s alleged prior statement was
that Poe did not commit the crimes and that Harper was being
coerced to lie and say otherwise.
It bears repeating that the State’s case against Poe was
entirely based on circumstantial evidence. As the State indi-
cated in closing arguments, its case against Poe depended on
whether the jury believed Harper was telling the truth. Harper
explained how Poe had once driven Harper to the townhouse
and thereby knew of its location. Harper testified that Poe
asked him if he could rob his “plug.” Harper testified as to
Poe’s statement that he had “sent [his] dude to Texas.” Harper
gave the details of Poe’s alleged confession to him. We cannot
say, as a matter of law, that had defense counsel confronted
Harper with his inconsistent assertion that Poe was completely
innocent of the crimes and Harper was being asked to lie, the
result would not have been different.
It is, of course, entirely possible that defense counsel had
a reason for not pursuing this avenue of impeachment of
Harper’s testimony. As stated, trial strategy is given great
deference. We therefore remand the matter for the limited pur-
pose of conducting an evidentiary hearing on Poe’s claim of
90 See Neb. Rev. Stat. § 27-806 (Reissue 2008). See, also, e.g., State v.
Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

STATE v. POE 	777
Cite as 284 Neb. 750
ineffective assistance of trial counsel relating to the allegation
that counsel failed to utilize Harper’s alleged inconsistent state-
ment to Hayes that Poe was innocent.
CONCLUSION
We affirm the judgment of the trial court in all respects
except for the denial of an evidentiary hearing on the issue of
whether defense counsel was ineffective for failing to pursue
impeachment of Harper with his alleged inconsistent statement.
We reverse in part, and remand with directions to conduct an
evidentiary hearing on this issue.
A ffirmed iN pArt, ANd iN pArt reverSed
ANd remANded With direCtioNS.
heAviCAN, C.J., not participating.