State v. Poindexter

existence of a written warranty when purchasing the windows.
They did not have a contract with a builder for the house as a
whole, but instead purchased the windows separately. We find
that under these circumstances, the windows purchased by the
Wilsons were “consumer products” as a matter of law.
CONCLUSION
The purpose of the MMWA is to protect consumers and
to give consumers a remedy for enforcing written warranties.
We find that under these facts, the Wilsons were consumers
who purchased the windows as consumer products in a sale
“over the counter” as defined by the MMWA. We therefore
reverse the district court’s order granting a directed verdict to
SEMCO on the Wilsons’ claim under the MMWA. We remand
the cause to the district court for proceedings consistent with
this opinion.
R eveRsed and Remanded.
WRight, J., not participating.
state of nebRaska , appellee , v.
edWaRd poindexteR, appellant.
766 N.W.2d 391
Filed June 19, 2009. 	No. S-07-1075.
1. Postconviction. Whether a claim raised in a postconviction proceeding is proce-
durally barred is a question of law.
2. Postconviction: Appeal and Error. On appeal from a proceeding for postconvic-
tion relief, the lower court’s findings of fact will be upheld unless such findings
are clearly erroneous.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Jurisdiction: Time: Appeal and Error. Failure to timely appeal from a final
order prevents an appellate court’s exercise of jurisdiction over the claim dis-
posed of in the order.
5. Postconviction: Final Orders: Appeal and Error. An order granting an eviden-
tiary hearing on some issues presented in a postconviction motion but denying
a hearing on others is a final order. Such an order affects a substantial right
in a special proceeding and is thus final and appealable under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008).
936 	277 NEBRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

6. Postconviction: Final Orders. An order denying an evidentiary hearing on a
postconviction claim is a final judgment as to such claim under Neb. Rev. Stat.
§ 29-3002 (Reissue 2008).
7. Actions: Words and Phrases. A “claim for relief” under Neb. Rev. Stat.
§ 25-1315 (Reissue 2008) is not synonymous with an “issue” or “theory of recov-
ery,” but, rather, is equivalent to a separate “cause of action.”
8. Postconviction. A postconviction motion presents a single cause of action, and
the various facts alleged as evidence that the defendant is entitled to postconvic-
tion relief are but multiple theories of recovery.
9. Postconviction: Evidence. Issues of credibility are for the postconviction court.
10. Effectiveness of Counsel: Presumptions: Proof: Appeal and Error. A defend-
ant claiming ineffective assistance of counsel must show that counsel’s repre-
sentation fell below an objective standard of reasonableness. There is a strong
presumption that counsel acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions.
11. Effectiveness of Counsel. The ineffectiveness of counsel will not be judged
by hindsight.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. Russell boWie iii, Judge. Affirmed.
Robert F. Bartle, of Bartle & Geier, Beth Little Hamilton,
and John C. Vanderslice, of the Federal public Defender’s
Office, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Amy A. Miller, for amicus curiae American Civil Liberties
Union Foundation of Nebraska.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
mccoRmack, J.
I. NATURE OF CASE
Edward poindexter and David L. Rice were convicted of
first degree murder for the death of an Omaha police officer.
poindexter’s and Rice’s convictions were affirmed on direct
appeal.1 Two petitions for writ of habeas corpus by poindexter
1 State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972).
STATE v. pOINDExTER 	937
Cite as 277 Neb. 936

have since been denied.2 poindexter now appeals from a denial
of his motion for postconviction relief. The motion alleged
prosecutorial 	misconduct 	at 	trial, 	ineffective 	assistance 	of
trial and appellate counsel, and constitutional error stemming
from the unitary procedure used at trial. We find no merit to
poindexter’s arguments and affirm the judgment.
II. BACkGROUND
1. tRial
poindexter and Rice were tried in a joint trial before a jury
in 1971. The jury considered all of the evidence and deter-
mined both guilt and punishment in the same proceeding,
in a “unitary trial procedure.” The general facts presented at
poindexter’s trial were as follows:
On August 17, 1970, a caller to the 911 emergency dispatch
service reported hearing a woman or girl screaming for help
from a vacant house in Omaha, Nebraska. Several officers,
including Officer Larry D. Minard, Sr., responded to the call
and entered the house. When Minard inspected a suitcase lying
on its side near the doorway, an explosion occurred, killing
Minard and injuring other officers in the house.
The suitcase contained a bomb of ammonia dynamite that
had been set to explode when moved. The bomb also contained
copper wires, pieces of which were apparently blown next door
by the force of the explosion.
Duane peak, age 16 at the time of trial, testified that the
bombing was part of a scheme devised by poindexter and Rice.
peak, Rice, and poindexter were all members of the National
Committee to Combat Fascism (NCCF), an affiliate of the
Black panther party. poindexter was the head of the NCCF, and
Rice was the “Deputy Minister of Information” for the NCCF.
peak testified that poindexter and Rice assembled the bomb
at Rice’s home and that he was operating under their instruc-
tions when he planted the suitcase and made the false report to
the 911 dispatch. peak testified that during the call, he made
his voice sound deeper than normal.
2 Poindexter v. Wolff, 403 F. Supp. 723 (D. Neb. 1975); Poindexter v.
Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
938 	277 NEBRASkA REpORTS

During cross-examination, peak was questioned about the
fact that his original confession did not implicate poindexter or
Rice and about inconsistencies in his account of events. peak
denied having struck any deal with the prosecution in exchange
for his testimony, but he did state that he felt things would go
easier for him if he cooperated. Sometime after poindexter and
Rice’s trial, peak pleaded guilty to charges in juvenile court.
No issue was presented to the jury as to whether it had been
peak who made the 911 call, and the tape recording of the call
was not entered into evidence. Defense counsel, instead of dis-
puting that peak was involved with the crime, generally denied
that poindexter and Rice had in any way joined the scheme.
The State presented evidence physically tying poindexter
and Rice to the crime, although the probative value of the
evidence was questioned by defense counsel. Expert testi-
mony demonstrated that metal particles found on a pair of
long-nosed pliers seized from Rice’s house generally matched
copper wire found blown next door from the explosion. Other
testimony established that toolmarks found on the copper wire
matched the pliers found in Rice’s basement. Sticks of ammo-
nia dynamite were found in Rice’s basement. Ammonia dyna-
mite residue was found in poindexter’s jacket pocket the day
he was arrested.
Several NCCF newsletter articles were admitted into evi-
dence over objection from defense counsel. These articles were
mostly written by either poindexter or Rice for the NCCF
newsletter and were generally derogatory toward police offi-
cers. Many advocated violence against the police force.
The jury found poindexter and Rice guilty of first degree
murder and sentenced them to life imprisonment.
2. diRect appeal and habeas
poindexter was represented at trial and on direct appeal by
lawyers from the same public defender’s office. His conviction
was affirmed on direct appeal.3 poindexter did not challenge
the unitary trial procedure, nor did he raise prosecutorial mis-
conduct on direct appeal.
3 State v. Rice, supra note 1.
STATE v. pOINDExTER 	939
Cite as 277 Neb. 936

Among the errors he did assign was the admission into evi-
dence of the NCCF newsletter articles. We held that most of
the newsletters, containing expressions of hatred for the Omaha
police and advocating the use of violence against them, were
properly admitted to show intent, malice, or motive. We con-
cluded that the trial court erred in admitting three of the arti-
cles, but we concluded that their admission was not prejudicial.
We reasoned that the properly admitted articles were “far more
virulent,”4 that there were relevant cautionary instructions, and
that the other properly admitted evidence against poindexter
was relatively strong.
After his direct appeal, poindexter petitioned for a federal
writ of habeas corpus, which was denied after an eviden-
tiary hearing.5 Among other things, poindexter’s habeas action
asserted constitutional error stemming from the newsletter
articles, the unitary trial procedure, and the allegedly coerced
or perjured testimony of peak.
The U.S. District Court rejected the idea that the admis-
sion of any of the newsletter articles was so prejudicial as to
amount to a denial of due process. It also rejected any claim
that there was constitutional error stemming from jointly trying
poindexter and Rice.
And the court concluded that there was no evidence of
any physical mistreatment or unduly preferential treatment
of peak that would lead to the conclusion that his testimony
was unconstitutionally coerced or otherwise inadmissible.6 The
court recognized that peak was originally unwilling to testify
against poindexter and Rice in the preliminary hearing and that
he came back after a break visibly nervous and finally willing
to implicate poindexter and Rice. The court also observed that
the police had “undoubtedly” mentioned the possibility of the
death penalty to peak and that the police had generally treated
peak very well prior to trial.7 But these facts did not show
4 Id. at 751, 199 N.W.2d at 494.
5 Poindexter v. Wolff, supra note 2.
6 See id.
7 Id. at 733.
940 	277 NEBRASkA REpORTS

coercion. They were known to defense counsel and instead per-
tained to peak’s credibility.
In 2006, poindexter petitioned for a writ of habeas corpus
in state court, pertaining to matters not relevant to this appeal.
The writ was denied.8
3. postconviction
(a) procedural History of Unitary Trial Claim
poindexter’s motion for postconviction relief was filed in
2003. In his original motion, poindexter raised three basic
claims: (1) ineffective assistance of counsel regarding counsel’s
alleged failure to properly investigate, present exculpatory facts,
and cross-examine various witnesses; (2) infringement upon
poindexter’s right to a fair and impartial jury, because the jury
was instructed to determine poindexter’s guilt and sentence in
a unitary proceeding; and (3) prosecutorial misconduct at trial.
Central to poindexter’s allegations of prosecutorial misconduct
was his claim that the State had concealed the tape recording
of the 911 call and that the recording allegedly revealed that it
was not peak who made the call.
In November 2003, the postconviction court denied relief
without an evidentiary hearing on poindexter’s allegations
concerning the unitary trial proceeding. The postconviction
court reasoned that the issue was procedurally barred, because
it was known to trial counsel and could have been raised on
direct appeal. The court granted poindexter an evidentiary
hearing on the ineffective assistance and prosecutorial miscon-
duct claims.
No appeal was taken from the November 2003 order. Instead,
poindexter filed an amended postconviction motion seeking
review of the unitary trial under ineffective assistance and plain
error arguments. In July 2005, the court issued an order deny-
ing an evidentiary hearing on either of these new characteriza-
tions of the unitary trial procedure issue and dismissed these
claims. The court explained that the unitary trial procedure of
which poindexter complained had been in effect for 59 years
8 Poindexter v. Houston, supra note 2.
STATE v. pOINDExTER 	941
Cite as 277 Neb. 936

at the time of his trial and that it was not until 1973 that the
Nebraska Legislature began to mandate bifurcated proceedings.
poindexter did not appeal from the July 2005 order.
Almost a year later, in June 2006, poindexter asked the court
to reconsider its dismissal of the claims relating to the unitary
trial proceedings. The court denied poindexter’s motion for
reconsideration, because it was not filed in the same term as
the order poindexter sought to revisit. The court alternatively
stated that the merits were properly disposed of in the July
2005 order and that there was no reason to reconsider them.
poindexter did not appeal from the June 2006 denial of his
motion to reconsider.
poindexter filed a second amended petition for postcon-
viction relief after having been granted permission to amend
his allegations of ineffective assistance to include the alleged
failure to request a copy of the 911 tape. The second amended
petition is the operative pleading for this appeal.
As relevant to this appeal, poindexter alleged that trial coun-
sel was ineffective in failing to (1) effectively cross-examine
witnesses peak, Sgt. Jack Swanson, and Sgt. Robert pfeffer, (2)
inquire into missing police reports of peak’s interrogations, (3)
offer evidence to discredit the State’s expert testimony identi-
fying dynamite particles on poindexter’s clothing and copper
on pliers, and (4) investigate and present evidence concerning
the 911 tape recording. He alleged that appellate counsel was
ineffective for failing to raise any of the alleged deficiencies of
trial counsel.
poindexter next alleged prosecutorial misconduct in (1) fail-
ing to disclose the existence of the 911 tape recording and (2)
failing to disclose promises of leniency or threats of prosecu-
tion made to peak in return for his testimony.
poindexter also continued to allege that his right to a fair
and impartial jury was violated by virtue of the unitary trial
procedure and that his right to effective assistance of counsel
was violated when counsel failed to request a bifurcated trial
or argue this issue as plain error on appeal. The court did not,
however, reconsider its prior rulings regarding the unitary trial
procedure, noting that those allegations had been dismissed by
written order in July 2005.
942 	277 NEBRASkA REpORTS

(b) Evidence presented at postconviction Hearing
The court considered the record of the original trial, along
with the record of Rice’s postconviction proceedings, intro-
duced into evidence at poindexter’s evidentiary hearing. Rice
had raised allegations concerning the 911 tape and promises or
threats to peak, similar to poindexter’s.9 We held that Rice had
failed to prove those claims. But poindexter submitted further
depositions and testimony in the hope that he would be suc-
cessful where Rice had not. poindexter particularly relied on
the fact that, unlike Rice, he was able to obtain a voice exem-
plar from peak and an expert opinion that the voice on the 911
tape did not belong to peak.
(i) 911 Tape
It was undisputed that a copy of the 911 tape had resurfaced
by 1980, but the parties disputed whether poindexter’s counsel
had been aware of the tape recording prior to trial. poindexter
asserted that the State had failed to disclose the tape.
The depositions of coprosecutor Samuel W. Cooper were
admitted into evidence. Cooper testified that defense counsel
was aware of a 911 tape before trial and that the tape had
always been available to defense counsel if they wanted to
examine or copy it. Cooper had testified at Rice’s hearing that
he played the tape for both defense counsel prior to trial.
Cooper testified that there was no reason for anyone to ques-
tion that it was peak’s voice on the tape. peak admitted that
he had made the call. In addition, although peak testified that
he tried to disguise his voice when he made the call, several
witnesses who knew peak well, including peak’s brother and
grandfather, had positively identified peak’s voice on the tape.
No one ever came forward asserting that it was not peak’s
voice. Cooper stated that poindexter’s counsel was well aware
of the witnesses’ identifications of peak’s voice.
Thomas kenney and Frank Morrison were the public defend-
ers representing poindexter. Both kenney and Morrison were
deceased by the time of poindexter’s postconviction evidentiary
hearing. During kenney’s opening statement at poindexter’s
9 See State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).
STATE v. pOINDExTER 	943
Cite as 277 Neb. 936

trial, kenney had referred to the fact that “the police have a
Voicegram; in other words, every call that is placed to the
emergency number at the police station is recorded.” It is
unclear what kenney meant by a “Voicegram,” and when
poindexter deposed kenney in 2004, he did not ask him any
questions about his knowledge of a 911 tape.
poindexter testified that he had no knowledge of the tape
until he saw a documentary in the 1990’s making reference
to it. poindexter deposed Morrison in 2003, when Morrison
was 98 years old. Morrison testified that he did not think he
had been aware of a 911 tape recording during the time of
poindexter’s trial. Cocounsel for Rice, David Herzog, testified
at the postconviction hearing that he was sure he had never
been made aware of the existence of a 911 tape. And Herzog
believed that a “Voicegram” referred simply to a time and date
stamp for the 911 call.
poindexter introduced a copy of internal Federal Bureau of
Investigation (FBI) communications indicating that the Omaha
police had originally asked the FBI to conduct a voice analysis
of the taped 911 call; poindexter was apparently attempting
to show that the prosecution knew the tape was exculpatory.
The request for the analysis had been made on the day of the
murder and reflects that a copy of the tape was sent to the FBI
at that time. The letter demonstrates that the plan was for the
FBI to conduct an analysis of the tape and then compare it to
tape recordings of suspects. The FBI informed the police that
the analysis would be “strictly informal,” “for lead purposes
only,” and that “the FBI could not provide any testimony in
the matter.” A later communication submitted into evidence by
poindexter reads in part:
Assistant [chief of police] GLENN GATES, Omaha
pD, advised that he feels that any use of tapes of this call
might be prejudicial to the police murder trial against two
accomplices of pEAk and, therefore, has advised that he
wishes no use of this tape until after the murder trials . . .
has [sic] been completed.
Cooper explained the context of the correspondence with
the FBI. He testified that at the time of poindexter’s trial,
voice print analysis was in its infancy and was not considered
944 	277 NEBRASkA REpORTS

admissible in court. For that reason, any analysis would be
for lead purposes only. Cooper explained that the request for
a voice analysis was withdrawn as soon as it became clear
that there was no real issue as to whose voice was on the tape.
Cooper specifically denied that the request for a voice analy-
sis was withdrawn for fear that it was not peak who made the
call. Cooper explained that once peak was arrested and he and
other witnesses said he made the call, there was no genuine
argument that it was not peak’s voice on the tape. As such, the
prosecution did not see any benefit in opening the door to a
battle of experts and withdrew the request for a voice analysis
from the FBI.
Lt. James perry, the head of the investigation for the Minard
slaying, testified in a 1980 deposition that he was unaware of
any request to have the tape tested but that he recalled discus-
sion of the possibility before the police department knew who
had made the call. perry testified that once peak admitted to
making the 911 call, the department considered the tape of that
call a relatively worthless piece of evidence.
poindexter attempted to show that the tape was not so worth-
less. poindexter located peak and obtained a voice exemplar
as part of the discovery process in his postconviction proceed-
ing. He then employed Thomas Owen, a forensic consultant,
to conduct a comparative voice analysis of the tape. Although
the original 911 tape had been destroyed, Owen used a copy
of the original. The postconviction court had allowed the copy
into evidence, but noted that it was uncertain at what time and
with what equipment the copy was made, whether it was in the
same condition as when it was made, and whether the equip-
ment from which it was made was capable of reproducing an
accurate voice tone or quality. These facts, the court explained,
bore on the relevance and probative value of the tape, but not
its authenticity and admissibility.
Based on the examination of a digital spectrogram, Owen
opined that it was “highly probable within a reasonable degree
of scientific certainty” that the voice on the tape was not
peak’s. Digital spectrograms were not available at the time
of poindexter’s trial. Nevertheless, Owen explained that the
analog spectrogram that would have been available in 1971
STATE v. pOINDExTER 	945
Cite as 277 Neb. 936

had the same information as the digital spectrogram, only
without the clarity and ability to qualify and quantify various
numbers related to the placement of the formats on them. Both
methods, according to Owen, show a visual comparison of the
spectrograms, and under both methods, an examiner listens to
the tapes and notes pitch, quality of speech, rate of speech,
amplitude, and syllable coupling. Owen also opined that the
911 caller did not disguise his voice when he made the call.
poindexter and Herzog both testified they were familiar with
peak’s voice and that the voice on the 911 tape was not peak’s.
The State did not employ expert analysis of the tape.
(ii) Leniency or Threats to Peak
Donald 	knowles, 	the 	county 	attorney 	at 	the 	time 	of
poindexter’s trial, testified at Rice’s postconviction hearing
that peak was still under the charge of first degree murder
at the time of poindexter’s trial. knowles testified that while
peak’s attorney may have “broached the subject” of the pos-
sibility of a plea in juvenile proceedings prior to his testimony
in poindexter’s trial, knowles made “no commitment” and
“didn’t really comment on it, no discussions as such back and
forth.” knowles stated that to his knowledge, neither he nor
anyone else made any promises to peak concerning the ulti-
mate charges against him. knowles testified that a plea bargain
was never struck and that the decision to prosecute peak as a
juvenile took place sometime after poindexter’s trial.
knowles was also questioned about the fact that peak had
originally refused to implicate poindexter at the preliminary
hearing. knowles remembered that the preliminary hearing was
in a very small room that was filled with a lot of people. He
stated that he did not have any discussions with peak’s attor-
ney during the recess. knowles said that peak’s attorney might
have said something to him at the door of the courtroom, but
that he did not recall.
Arthur O’Leary was the special prosecutor working under
the direction of knowles in 1971. O’Leary similarly testified
at the Rice hearing that there had been no promises of leni-
ency made to peak in exchange for his testimony. O’Leary
explained that when peak’s attorney had asked him what he
946 	277 NEBRASkA REpORTS

would do for peak, he replied that he “would do whatever I
could to help him if he cooperated with us.” O’Leary stated
he did not have the authority to enter into a plea bargain
agreement and so peak’s attorney “knew better than to ask
specifically and I knew better than to answer specifically.”
O’Leary also stated that a deal would not have been entered
into without his knowledge and that, to his knowledge, no deal
had been made.
O’Leary generally testified that the county attorney’s office
and the police fully disclosed any evidence pertaining to the
case, including police reports and physical evidence. O’Leary
testified: “We never tried to make a game out of a criminal
case.” Cooper testified that he was privy to all the police
reports in the case and that to his knowledge, the State had
not struck any deal with peak prior to trial in exchange for
his testimony.
kenney testified that he and Herzog had suspected a deal
and “tried everything we could think of to uncover if there was
a deal” between peak and the prosecution. kenney testified,
however, that the prosecution and peak always denied that there
was a deal and that he was never able to establish that there
was one. kenney noted that “it was no secret” that the police
had taken peak to eat in “a fancy restaurant at the airport” at
least one time, allegedly as part of keeping peak isolated from
other prisoners, including poindexter and Rice.
(iii) Pliers and Dynamite
poindexter presented expert testimony at the postconvic-
tion hearing pertaining to the dynamite residue and the cop-
per found next door in an effort to show that his trial counsel
was ineffective in failing to pursue its own expert testimony
at trial. Robert Webb, an expert in materials analysis, testified
at the postconviction hearing that the testimony presented by
the prosecution’s experts on these points was very general. In
particular, the prosecution’s experts identified the dynamite
on poindexter’s clothing and the dynamite from the bomb as
belonging to the most general category of ammonia dynamite.
The experts did not analyze the more specific forms of dyna-
mite and whether those matched.
STATE v. pOINDExTER 	947
Cite as 277 Neb. 936

Morrison testified as to why experts were not employed
to refute the prosecution’s case. Morrison testified that they
suspected 	someone 	had 	planted 	the 	dynamite 	residue 	in
poindexter’s pocket and that they were afraid it might in fact
match the more specific subcategory of dynamite. Morrison
stated that if “we had done a scientific analysis and prove[d]
that it was the same explosive that was used it would’ve been
the nail in poindexter’s coffin.”
kenney elaborated that they were well aware that the prose-
cution’s testimony regarding the dynamite match was very
general. The cross-examination of the State’s witnesses reflects
this. kenney noted he was more concerned at that time with
the fact that the tool markings on the copper wire matched the
pliers found in Rice’s basement.
(c) District Court’s Order
The court denied poindexter’s motion for postconviction
relief. The court found that poindexter had failed to prove the
existence of any deal between the prosecution and peak in
exchange for peak’s testimony. As for the 911 tape, the district
court concluded that poindexter’s counsel knew of the tape and
did not specifically request a copy of the tape and that the tape
was not considered exculpatory evidence. The court also noted
that poindexter had failed to show that Owen’s opinion, had it
been presented at the 1971 trial, would have changed the result.
The court found that trial counsel were not ineffective in their
investigation or their cross-examination of peak or the State’s
experts. As a necessary result of these findings, the court con-
cluded that appellate counsel was not ineffective for failing to
raise these issues on direct appeal.
III. ASSIGNMENTS OF ERROR
poindexter asserts that the district court erred in (1) failing
to find that the unitary trial procedure in place in 1971 was
“plain structural error”; (2) failing to find that poindexter’s
trial and appellate counsel were ineffective in failing to chal-
lenge the unitary trial process, failing to present and preserve
critical evidence, and failing to effectively rebut prosecutorial
evidence; and (3) not giving appropriate weight to significant
instances of prosecutorial misconduct.
948 	277 NEBRASkA REpORTS

IV. STANDARD OF REVIEW
[1] Whether a claim raised in a postconviction proceeding is
procedurally barred is a question of law.10
[2] On appeal from a proceeding for postconviction relief,
the lower court’s findings of fact will be upheld unless such
findings are clearly erroneous.11
V. ANALYSIS
1. unitaRy tRial pRoceduRe and neWsletteR aRticles
We first address poindexter’s assignments of error pertaining
to the unitary trial procedure. poindexter asserts that the uni-
tary trial caused the jury to be exposed to inflammatory news-
letter articles that should have been appropriate only for sen-
tencing. Although we specifically determined on direct appeal
that there was no prejudicial error derived from the admission
of the newsletters, poindexter believes this holding is no longer
valid when considered in the context of a unitary trial chal-
lenge and the newly discovered evidence pertaining to the 911
tape. poindexter also argues that the unitary trial procedure
forced trial counsel into a conflict by having to argue inno-
cence and mercy for sentencing at the same time. poindexter
asserts that although counsel did not preserve the alleged error
at trial or on appeal, we should recognize it now as plain error.
Alternatively, poindexter alleges ineffective assistance of coun-
sel in failing to object to the unitary trial procedure during trial
or on appeal.
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.12 It is clear that we have
no jurisdiction over any of poindexter’s unitary trial claims.
poindexter failed to appeal from the postconviction court’s
determination in November 2003 that poindexter’s unitary trial
claims were procedurally barred. poindexter again failed to
appeal from the postconviction court’s determination in July
2005 that poindexter’s plain error and ineffective assistance
10 State v. Sims, ante p. 192, 761 N.W.2d 527 (2009).
11 State v. Watkins, ante p. 428, 762 N.W.2d 589 (2009).
12 State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
STATE v. pOINDExTER 	949
Cite as 277 Neb. 936

characterizations of his unitary trial claim lacked merit. Failure
to timely appeal from a final order prevents our exercise of
jurisdiction over the claim disposed of in the order.13
[5,6] An order granting an evidentiary hearing on some
issues presented in a postconviction motion but denying a
hearing on others is a final order.14 Such an order affects a
substantial right in a special proceeding and is thus final and
appealable under Neb. Rev. Stat. § 25-1902 (Reissue 2008).15
In addition, an order denying an evidentiary hearing on a post-
conviction claim is a final judgment as to such claim under
Neb. Rev. Stat. § 29-3002 (Reissue 2008).16
[7,8] poindexter asserts that his postconviction motion pre-
sented multiple “claim[s] for relief” and that thus, the November
2003 and July 2005 denials of his unitary trial “claim[s] for
relief” cannot be final, appealable orders pursuant to Neb. Rev.
Stat. § 25-1315 (Reissue 2008). We have already addressed and
rejected this argument in State v. Harris.17 A “claim for relief”
under § 25-1315 is not synonymous with an “issue” or “theory
of recovery,” but, rather, is equivalent to a separate “cause of
action.”18 A postconviction motion presents a single cause of
action, and the various facts alleged as evidence that the defend-
ant is entitled to postconviction relief are but multiple theories
of recovery.19 We have no jurisdiction over poindexter’s unitary
trial theories of recovery, which were disposed of during the
postconviction proceedings long before the final judgment cur-
rently before us.
13 See, e.g., In re Interest of B.M.H., 233 Neb. 524, 446 N.W.2d 222 (1989).
14 See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004). See, also, State
v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007); State v. Jackson, 15 Neb.
App. 523, 730 N.W.2d 827 (2007).
15 See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
16 State v. Hudson, supra note 14.
17 State v. Harris, supra note 14.
18 See id. See, also, State v. Hudson, supra note 14; Bailey v. Lund-Ross
Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003); Keef v. State,
262 Neb. 622, 634 N.W.2d 751 (2001); Pioneer Chem. Co. v. City of North
Platte, 12 Neb. App. 720, 685 N.W.2d 505 (2004).
19 See id.
950 	277 NEBRASkA REpORTS

2. 911 tape
We next consider poindexter’s assignments of error regard-
ing the 911 tape. poindexter argues that it was prosecutorial
misconduct for the State to fail to inform him of the 911
tape. Alternatively, poindexter asserts that it was ineffective
assistance of trial counsel to fail to obtain the tape and use
it at trial to impeach peak’s testimony that he had made the
911 call.
The district court found that the State did not, deliberately
or negligently, withhold the 911 tape from poindexter. In
other words, regardless of whether the tape was exculpatory,
requiring the prosecution to disclose the tape, the court con-
cluded that it actually had been disclosed. The district court
did not clearly err in making this finding. Cooper testified
on at least two separate occasions that poindexter’s counsel
was aware of the tape and that Cooper had even played it for
them. knowles generally denied hiding any evidence from
defense counsel. poindexter never questioned his lead coun-
sel on the subject, despite his having made a reference to
a “Voicegram” at trial, and cocounsel Morrison’s testimony
seemed not entirely certain.
[9] While Rice’s cocounsel stated emphatically that he was
unaware of a 911 tape, his testimony is not directly probative
of what poindexter’s counsel knew. More importantly, issues of
credibility are for the postconviction court.20 Because the tape
was disclosed, we agree with the district court’s conclusion that
there was no prosecutorial misconduct concerning the tape, and
we need not discuss the district court’s alternative reasons for
this conclusion.
[10] We also agree with the district court that poindexter’s
trial counsel was not ineffective for failing to pursue voice
analysis of the tape to prove that peak was not the caller. A
defendant claiming ineffective assistance of counsel must show
that counsel’s representation fell below an objective standard
of reasonableness.21 There is a strong presumption that counsel
20 See, e.g., State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
21 See State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006).
STATE v. pOINDExTER 	951
Cite as 277 Neb. 936

acted reasonably, and an appellate court will not second-guess
reasonable strategic decisions.22
[11] The district court specifically found that defense coun-
sel knew that several witnesses had identified the voice on the
tape to be peak’s. Given peak’s admission and several witness
identifications of his voice on the tape, it was not unreasonable
for counsel to assume the voice was peak’s. Moreover, defense
counsel’s strategy was not to exculpate peak as the 911 caller
and thus argue that peak had falsely admitted to leading an
officer to his death in an effort to save himself or others from
conviction of a more serious crime. Instead, the defense theory
appeared to be that peak did not act alone, but that poindexter
and Rice were not the ones who helped him. Even assum-
ing that Owen’s opinion is correct and that the technology
available in 1971 could have produced a similar result, that
information does not make poindexter’s trial counsel ineffec-
tive for failing to pursue such an analysis. This is especially
true when, as the State points out, expert voice identification
evidence was generally considered inadmissible at the time of
poindexter’s trial.23 The ineffectiveness of counsel will not be
judged by hindsight.24
3. missing inteRRogations and pRomises of leniency
Similar to his allegations regarding the 911 tape, poindexter
alleged the State failed to disclose certain interrogations of
peak and an arrangement that had been made in exchange for
22 See State v. Rhodes, ante p. 316, 761 N.W.2d 907 (2009).
23 See, United States v. McDaniel, 538 F.2d 408 (D.C. Cir. 1976); State v.
Gortarez, 141 Ariz. 254, 686 p.2d 1224 (1984); People v. Kelly, 17 Cal.
3d 24, 549 p.2d 1240, 130 Cal. Rptr. 144 (1976) (superseded by statute
as stated in People v. Wilkinson, 33 Cal. 4th 821, 94 p.3d 551, 16 Cal.
Rptr. 3d 420 (2004)); Cornett v. State, 450 N.E.2d 498 (Ind. 1983); Reed
v. State, 283 Md. 374, 391 A.2d 364 (1978); People v Tobey, 401 Mich.
141, 257 N.W.2d 537 (1977); Commonwealth v. Topa, 471 pa. 223, 369
A.2d 1277 (1977); State v. Free, 493 So. 2d 781 (La. App. 1986); People
v. Collins, 94 Misc. 2d 704, 405 N.Y.S.2d 365 (1978). See, also, Sharon E.
Gregory, Voice Spectrography Evidence: Approaches to Admissibility, 20
U. Rich. L. Rev. 357 (1986).
24 State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992).
952 	277 NEBRASkA REpORTS

peak’s testimony. Alternatively, poindexter alleged that trial
counsel was ineffective in failing to adequately investigate
these matters. The district court found that poindexter failed to
prove that any undisclosed interrogations actually took place or
that any undisclosed deal was struck. We agree with the district
court’s conclusions.
poindexter’s evidence on this subject consists almost entirely
of inferences he makes upon the trial record. poindexter
infers that undisclosed interrogations must have taken place,
because peak changed his story between his August 28 and
31, 1970, interrogations. He also claims that peak made refer-
ence during the preliminary hearing to his being interrogated
at times not reflected by the police reports turned over to the
defense, although poindexter admits that peak’s testimony
was “somewhat confusing.”25 poindexter infers that a plea
bargain agreement was entered into before trial, because peak
received special treatment while in custody and ultimately
ended up serving a lenient sentence as a juvenile. poindexter
also infers such an agreement from peak’s behavior at the pre-
liminary hearing.
With regard to the preliminary hearing, peak admitted that
he had “a conversation” with his attorney that indicated that
he “didn’t have a chance.” But he specifically denied having
a conversation with the prosecution. When asked to explain
what he was afraid of, peak stated that twice during his origi-
nal interrogations with police officers, they had mentioned the
electric chair. Specifically, the officers had told him he “was
sitting in the electric chair so [he] had better tell the truth.”
Any new evidence presented at the postconviction eviden-
tiary hearing on whether a deal was struck or coerced was
unfavorable to poindexter’s claim. knowles, O’Leary, and
Cooper all testified that there were no promises of leniency in
exchange for peak’s testimony and that there was no agreement
whatsoever. As for threats, O’Leary specifically denied ever
threatening anyone with the electric chair.
Because poindexter failed to prove the alleged agreement
took place, the postconviction court properly concluded that no
25 Brief for appellant at 42.
STATE v. pOINDExTER 	953
Cite as 277 Neb. 936

prosecutorial misconduct or ineffective assistance of counsel
claims arose from the failure to disclose or to investigate it.
4. plieRs maRkings and dynamite R esidue
poindexter challenges the postconviction court’s determina-
tion that trial counsel was not ineffective in failing to present
expert testimony challenging the State’s evidence of dynamite
found in poindexter’s pocket and copper remnants found in pli-
ers found in Rice’s home.
At trial, the prosecution’s expert, kenneth Snow, testified
that the particles found in poindexter’s jacket pocket were
ammonia dynamite, the same general type of dynamite as used
in the bomb. Expert testimony was also presented that copper
residue in pliers found in Rice’s basement was of the same
general composition as the copper wire found in the base-
ment of an abandoned house next door to the bombing. At the
postconviction hearing, Webb, the materials analysis expert for
poindexter, testified that the expert testimony as to the match-
ing dynamite residue and the copper was very general. Webb
noted particularly that there were scientific methods available
at that time that could have identified what subcategory the
ammonia dynamite belonged to.
The record supports the district court’s conclusions that the
failure to retain independent expert witnesses was a matter
of trial strategy and that defense counsel were not deficient
in their performance. Not only could further investigation
have produced an unfavorable result, as was explained by
Morrison, but it is clear that expert witnesses were not nec-
essary for poindexter’s defense counsel to illustrate for the
jury the inadequacies of the prosecution’s expert testimony.
The cross-examination of Snow, for instance, spanned 2 days.
Defense counsel focused on the fact that dynamite was found
only in one pocket of poindexter’s jacket and that not even the
“minutest particle” of dynamite was found anywhere else on
poindexter’s body or clothing. Even swabs under poindexter’s
fingernails found no traces of dynamite.
Most of the cross-examination focused on illustrating for
the jury how general the “matches” really were. Counsel ques-
tioned Snow about how broad a category “ammonia dynamite”
954 	277 NEBRASkA REpORTS

was, and Snow admitted that ammonia dynamite was the most
common type of dynamite available to the general public and
best for all-around general use. Snow specifically admitted
that it was unknown whether the dynamite residue found in
poindexter’s pocket was from the dynamite used for the bomb
or from some other ammonia dynamite used for some other
purpose. Snow conceded that his analysis did not identify
whether the dynamite residue in poindexter’s pocket was the
same brand of dynamite used in the bomb.
Snow also conceded that he did not know whether the
dynamite residue had been deposited in the pocket recently or
several months before. And he admitted he had no idea how
the dynamite particles got into poindexter’s pocket. Snow testi-
fied that the small amounts of dynamite found in poindexter’s
pocket could have been deposited there by a handkerchief,
a pencil, or package of cigarettes that had touched ammonia
dynamite and contained some residue.
Cross-examination of Snow regarding the copper particles
on the pliers was conducted in a similar vein. Snow admit-
ted that copper wire was very common and that his analysis
did not show the copper remnants on the pliers were from the
same wire used in the bomb. All Snow could say was that the
wire used in the bomb was copper wire and that the pliers
found in Rice’s basement had copper residue on them. Snow
admitted that copper was a common element and that there
was nothing remarkable to distinguish the copper found on
the pliers “from other copper that exists in mankind.” Snow
further admitted it was reasonably probable that the pliers had
been used to cut some other common copper wire found at any
electric store.
We agree with the district court’s conclusion that poindexter
was 	not 	deprived 	of 	effective 	assistance 	of 	counsel 	on
this issue.
5. sWanson’s and pfeffeR’s testimony
poindexter alleges that trial counsel was ineffective, because
counsel 	inadequately 	cross-examined 	Swanson 	and 	pfeffer
about where and how they found the dynamite in Rice’s home.
The district court found no merit to poindexter’s allegations
STATE v. pOINDExTER 	955
Cite as 277 Neb. 936

in this regard, which the court stated were tied to poindexter’s
implied, but unsubstantiated, accusation that the officers had
planted the dynamite in Rice’s home. The district court stated
further that it may have been that defense counsel did not pur-
sue the inconsistencies as a matter of trial strategy “rather than
hammer home to the jury that dynamite was found in Rice’s
house.” We find no merit to poindexter’s assertion that he was
deprived of effective assistance of counsel because of the man-
ner in which Swanson and pfeffer were cross-examined.
At trial, Swanson testified that he found dynamite in Rice’s
basement and that pfeffer was also in the basement when the
dynamite was found. pfeffer, on the other hand, testified at
trial that he never went to the basement and that he did not
see the dynamite until Swanson carried it up from the base-
ment. Trial counsel did not spend time exploring who was
really in the basement when the dynamite was found, and this
was reasonable given that the particulars of who found the
dynamite and who was with that person at the time are rela-
tively insignificant.
6. peak
Finally, poindexter asserts that trial counsel was ineffective
in the cross-examination of peak. poindexter admits that trial
counsel confronted peak with the inconsistencies in his ver-
sion of the events leading up to Minard’s death. But poindexter
asserts his constitutional right to effective assistance of counsel
was violated, because the confrontation did not go far enough
and counsel should have more forcefully asked leading ques-
tions to emphasize the impossibility of all the various claims
made by peak. We find no error in the district court’s conclu-
sion that peak was adequately cross-examined.
The court noted that peak was a “boy who had never been
in a courtroom before” and that the jury might not have looked
favorably upon a more vigorous cross-examination. But, in
fact, we observe from the record that the cross-examination of
peak was quite extensive. The cross-examination of peak by
poindexter’s and Rice’s trial counsel spanned over 100 pages
in the bill of exceptions. peak was questioned about the fact
that in his original confession to the police on August 28, 1970,
956 	277 NEBRASkA REpORTS

neither poindexter nor Rice was implicated. peak was ques-
tioned about the fact that he had originally said that an anony-
mous letter had directed him to leave the suitcase in an alley
and to wait in a telephone booth where an unknown woman
called him and told him to call the police. Defense counsel
pointed out in detail how, when peak finally made a statement
implicating poindexter and Rice, the details of that account
were significantly different from those testified to at trial, and
how, in the preliminary hearing, he originally refused to testify
against poindexter and Rice.
peak was also questioned regarding his motivation for his
testimony against poindexter. peak admitted to the jury that
in his interrogations, the police mentioned the possibility of
his being sentenced to death and that he was scared. peak also
admitted that after implicating poindexter and Rice, he was
treated very well by the police and had been taken on outings
to restaurants for dinner and to visit family. He admitted that
his attorney had told him there was a possibility he would be
allowed to plead to a lesser offense than the first degree murder
he was charged with. Reviewing the trial record in this case,
we determine there were clearly no constitutional deficiencies
in defense counsel’s cross-examination of peak.
VI. CONCLUSION
For all the reasons stated above, we affirm the judgment of
the district court denying poindexter’s motion for postconvic-
tion relief.
affiRmed.
CINGLE v. STATE 	957
Cite as 277 Neb. 957
colleen cingle , special administRatoR of the estate of
daniel luethke , deceased, appellant, v.
state of nebRaska , appellee .
766 N.W.2d 381
Filed June 19, 2009. 	No. S-08-386.
1. Tort Claims Act: Appeal and Error. A district court’s findings of fact in a pro-
ceeding under the State Tort Claims Act will not be set aside unless such findings
are clearly erroneous.