State v. Robinson

394 	285 NEBRASKA REPORTS
accrued in this case, we reverse the judgment and remand the
cause for further proceedings.
CONCLUSION
We do not reach the constitutionality of the ordinance in
this appeal. The harm to Lindner’s rights allegedly occurred
when appellees declined to pay for the offstreet parking facili-
ties through special assessments and instead paid for the costs
through a general property tax levy or sales tax revenues drawn
from municipal general funds. Because we cannot tell from
the face of Lindner’s complaint when that decision was made
or when it was implemented and, thus, when Lindner’s cause
of action accrued for purposes of the running of the statute of
limitations, we reverse the judgment of the district court and
remand the cause for further proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
state of nebRaska, appellee, v.
edwaRd Robinson, JR., appellant.
827 N.W.2d 292
Filed March 8, 2013. 	No. S-12-135.
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. A petitioner’s claim that his or her defense counsel
provided ineffective assistance presents a mixed question of law and fact.
3. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of
counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
4. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or
her counsel’s performance was deficient and that this deficient performance actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
5. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), the petitioner must demonstrate a reasonable probability that but for his
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

STATE v. ROBINSON 	395
Cite as 285 Neb. 394
or her counsel’s deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
6. Motions for New Trial: Juror Misconduct: Proof. In order for a new trial to
be granted because of a juror’s use of extraneous information, the party claiming
the misconduct has the burden to show by a preponderance of the evidence that
prejudice has occurred.
7. Jury Misconduct: Proof. Extraneous material or information considered by a
jury can be prejudicial without proof of actual prejudice if (1) the material or
information relates to an issue submitted to the jury and (2) there is a reasonable
possibility that it affected the jury’s verdict to the challenger’s prejudice.
8. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call,
a particular witness, made by counsel as a matter of trial strategy, even if that
choice proves unproductive, will not, without more, sustain a finding of ineffec-
tiveness of counsel.
9. Effectiveness of Counsel. A counsel’s duty to investigate is the duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all the circum-
stances, applying a heavy measure of deference to counsel’s judgments.
10. Postconviction: Effectiveness of Counsel: Appeal and Error. Although a
motion for postconviction relief cannot be used to secure review of issues which
were or could have been litigated on direct appeal, when a defendant was repre-
sented both at trial and on direct appeal by the same lawyer, the defendant’s first
opportunity to assert ineffective assistance of counsel is in a motion for postcon-
viction relief.
11. 	Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate
trial strategy and tactics.
Appeal from the District Court for Douglas County: gRegoRy
m. schatz, Judge. Affirmed.
Sarah M. Mooney, of Mooney Law Office, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
wRight, connolly, stephan, mccoRmack, milleR-leRman,
and cassel, JJ., and mooRe, Judge.
wRight, J.
I. NATURE OF CASE
Edward Robinson, Jr., was charged with and convicted of
first degree murder and use of a deadly weapon to commit a

396 	285 NEBRASKA REPORTS
felony. He was sentenced to life in prison on the first degree
murder conviction and, as a habitual criminal, to 10 years’
imprisonment on the conviction of the use of a deadly weapon
to commit a felony, with the sentences to be served consecu-
tively. He appealed the convictions and sentences to this court,
and we affirmed. State v. Robinson, 272 Neb. 582, 724 N.W.2d
35 (2006) (Robinson I), abrogated, State v. Thorpe, 280 Neb.
11, 783 N.W.2d 749 (2010). Robinson brought this action for
postconviction relief based upon his claims relating to inef-
fective assistance of his trial and appellate counsel. After an
evidentiary hearing, the district court denied postconviction
relief. He now appeals from the order denying postconvic-
tion relief.
II. SCOPE 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.
State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
[2] A petitioner’s claim that his or her defense counsel pro-
vided ineffective assistance presents a mixed question of law
and fact. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680
(2012). We review factual findings for clear error. Id. Whether
the defense counsel’s performance was deficient and whether
the petitioner was prejudiced by that performance are ques-
tions of law that we review independently of the lower court’s
decision. Id.
III. FACTS
The facts underlying Robinson’s convictions are set forth in
detail in our opinion resolving his direct appeal and need not
be fully reiterated here. We summarize only those facts from
Robinson I and the record which relate directly to this postcon-
viction proceeding.
1. death of heRbeRt fant
Herbert Fant is the victim in this case, and his wife and
Robinson’s wife are cousins. On February 24, 2003, Fant
became agitated with his domestic situation. After an argu-
ment with his wife, Fant attempted to contact Robinson’s wife.

STATE v. ROBINSON 	397
Cite as 285 Neb. 394
He went to Robinson’s wife’s house, argued with her, and
then left.
Robinson was informed that his wife and Fant had been in
an argument, and he began looking for Fant. Both men ended
up at a fast-food restaurant around 10 p.m. They were fight-
ing in the parking lot when Robinson, who had obtained a
gun, shot Fant. Fant tried to get into his vehicle, but Robinson
followed him and continued shooting. Police apprehended
Robinson a few hours later at an automobile body shop.
Robinson’s nephew was also found at the shop. His nephew
was wearing “a black leather type coat with a hood on it” lined
with a synthetic fur, which matched eyewitness descriptions of
apparel worn by the individuals who were present at the scene
of the shooting.
2. muRdeR tRial
An amended information charged Robinson with one count
of first degree murder, one count of use of a deadly weapon to
commit a felony, and being a habitual criminal.
Testimony was offered by both sides regarding the vehicles
driven by Fant and Robinson. Fant’s vehicle was a green
Chevrolet Caprice that had been painted orange. However,
it was identified by a State witness as a Chevrolet Impala.
Robinson’s vehicle was a cream-colored GMC Yukon Denali,
but an eyewitness testified that it was a white Cadillac Escalade.
Robinson filed a pretrial motion in limine to exclude the use
of cellular telephone evidence, which motion the court over-
ruled. At trial, numerous objections to the cellular telephone
evidence were overruled. During closing argument, the State
referred to cellular telephone evidence in an attempt to show
when and where Robinson used his cellular telephone on the
night of the murder. This evidence was used to place him in
certain locations based on the cellular telephone tower utilized
to make the call.
The State made several comments during closing argu-
ment, informing the jury that the cellular telephone records
were unimpeachable third-party independent evidence that pin-
pointed a person’s exact location and time. Robinson claims
the State also made generalizations that were not in evidence

398 	285 NEBRASKA REPORTS
or supported by the evidence. Robinson’s counsel objected on
several occasions but did not move for mistrial.
During the trial, two jurors were dismissed. Juror No. 3
knew Fant’s wife, who had waved at juror No. 3. Later, juror
No. 3 informed the court she felt uncomfortable serving on the
jury because she knew Fant’s wife, and when asked to be dis-
missed, she was excused. Juror No. 22 was excused after being
given a general admonishment because he was sleeping during
key witness testimony.
The State had offered in evidence a coat that matched the
description given by witnesses as the coat worn by the shooter
the night Fant was killed. Robinson’s nephew had been wear-
ing this coat when the two were arrested. During deliberations,
the bailiff was called into the jury room and informed that the
jury had found a marijuana cigarette in a pocket of the coat.
The marijuana cigarette had not been offered into evidence by
either party, and presumably neither party knew it was there.
There was conflicting evidence as to what persons the bailiff
informed of the discovery, but both parties’ attorneys were
notified. The jury continued to deliberate and shortly thereafter
announced its guilty verdict.
Robinson was found guilty of first degree murder and use
of a deadly weapon to commit a felony. His motion for new
trial was overruled. He was sentenced to life in prison on the
conviction of first degree murder and, as a habitual criminal,
to 10 years’ imprisonment on the conviction of the use of a
deadly weapon to commit a felony, with the sentences to be
served consecutively.
3. diRect appeal
Robinson appealed, and we affirmed his convictions and
sentences. See Robinson I. He was represented by the same
counsel during trial and his direct appeal.
In his direct appeal, Robinson claimed, among other things,
that the trial court erred when it (1) admitted the evidence
of the cellular telephone records, (2) overruled his objection
to the coat found in the possession of his nephew, (3) failed
to find that the State committed misconduct during closing
argument in regard to the cellular telephone evidence and

STATE v. ROBINSON 	399
Cite as 285 Neb. 394
the identification of Fant’s and Robinson’s vehicles, and (4)
delayed the removal of the juror who knew Fant’s wife and the
juror who slept during the trial.
We held that the cellular telephone records were properly
admitted under the business records exception to the hearsay
rule and that Robinson had the opportunity to cross-examine
all the communication company witnesses.
The State offered the fur-lined leather coat because it
matched the descriptions given by witnesses and was found on
Robinson’s nephew at the time of the arrests that occurred only
a few hours after the shooting. We concluded that the evidence
regarding the coat was relevant and that this evidence was not
unfairly prejudicial.
Robinson claimed that certain statements made by the State
during closing argument constituted prosecutorial misconduct.
After reviewing the State’s closing argument, we determined
that the State did not misstate the law, did not act improperly,
and did not mislead the jury.
As to the two jurors who were removed, we found the trial
court did not abuse its discretion in removing jurors Nos. 3
and 22.
4. postconviction evidentiaRy heaRing
Robinson’s motion for postconviction relief alleged that
he was denied effective assistance of counsel when counsel
failed to (1) request a mistrial after she was informed that the
jury found a marijuana cigarette in an exhibit, (2) call a wit-
ness to establish an alibi defense, (3) enter evidence regarding
the makes and models of Fant’s and Robinson’s vehicles, (4)
investigate a Crimestoppers telephone call, (5) challenge the
cellular telephone evidence, (6) move for mistrial during the
State’s closing argument or the conduct of two jurors, and (7)
timely move for rehearing in Robinson’s direct appeal.
At the evidentiary hearing on postconviction, the court
took judicial notice of the bill of exceptions, the exhibits, and
the entire file, including our opinion in Robinson I. Robinson
also offered the deposition testimony of the trial judge’s bail-
iff and Robinson’s trial counsel, in addition to Robinson’s
testimony.

400 	285 NEBRASKA REPORTS
(a) Marijuana Cigarette
In analyzing the claim regarding the marijuana cigarette
found in the coat, the court concluded that both the pros-
ecution and the defense had argued that the coat belonged to
Robinson’s nephew. It found there was “no evidence that the
jury could have reasonably presumed that the coat belonged to
[Robinson]” or that he “had anything to do with the improper
extrinsic evidence discovered by” the jury. Robinson’s trial
counsel testified that she had not moved for mistrial because
she did not think it would have affected the outcome of the
trial. Based on the totality of the evidence presented to the
jury regarding guilt, the court concluded that Robinson failed
to show there was a reasonable probability the outcome of the
trial would have been different but for trial counsel’s failure
to move for mistrial or to include this issue in a motion for
new trial.
(b) Identification of Vehicles
The court determined that Robinson failed to show why the
outcome of his trial would have been different had his counsel
obtained copies of the registrations of the vehicles identified
inconsistently at trial.
(c) Crimestoppers Tip and Witness
The court determined that Robinson failed to show the result
would have been different if a Crimestoppers tip would have
been pursued or why he was prejudiced because counsel did
not call a particular witness for the defense.
(d) Cellular Telephone Records
The court concluded that Robinson did not show preju-
dice from his counsel’s failure to challenge cellular telephone
records as irrelevant and unduly prejudicial, or why counsel
should have offered an alternative expert opinion to refute the
cellular telephone evidence.
(e) Closing Argument, Removal
of Jurors, and Rehearing
The court determined that Robinson failed to show he was
prejudiced by his counsel’s failure to move for mistrial regard-
ing the prosecution’s closing argument, to move for removal

STATE v. ROBINSON 	401
Cite as 285 Neb. 394
of the two jurors, or to timely move for rehearing on direct
appeal.
Because Robinson could not show deficient performance,
prejudice, or a reasonable probability that the outcome of his
trial would have been different, the court denied postconvic-
tion relief.
IV. ASSIGNMENTS OF ERROR
Robinson claims, restated, that the postconviction court
erred when it ruled that his counsel was not ineffective because
she (1) did not request a mistrial or inform Robinson that
the jury had discovered a marijuana cigarette in an exhibit,
(2) failed to call a specific defense witness or investigate a
Crimestoppers telephone call, (3) did not properly handle the
cellular telephone evidence, (4) failed to establish the impor-
tance of the vehicle identification, and (5) did not move for
mistrial or timely file a motion for rehearing in Robinson’s
direct appeal.
V. ANALYSIS
All of Robinson’s postconviction claims are based upon
alleged ineffective assistance of counsel. Because Robinson’s
trial counsel was also his appellate counsel, this is his first
opportunity to assert his claims relating to ineffective assist-
ance of his trial and appellate counsel. See State v. Edwards,
284 Neb. 382, 821 N.W.2d 680 (2012).
[3,4] Whether the defense counsel’s performance was defi-
cient and whether the petitioner was prejudiced by that per-
formance are questions of law that we review independently
of the lower court’s decision. Id. An ineffective assistance of
counsel claim alleges a violation of the fundamental consti-
tutional right to a fair trial. Id. To prevail on a claim of inef-
fective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually preju-
diced the defendant’s defense. Id. An appellate court may
address the two prongs of this test, deficient performance and
prejudice, in either order. Id.

402 	285 NEBRASKA REPORTS
[5] We address whether Robinson was prejudiced by his
counsel’s performance at trial and on direct appeal. In address-
ing the “prejudice” component of the Strickland test, we focus
on whether a trial counsel’s deficient performance renders the
result of the trial unreliable or the proceeding fundamentally
unfair. Id. To show prejudice under the prejudice component
of the Strickland test, the petitioner must demonstrate a rea-
sonable probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been dif-
ferent. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
1. maRiJuana cigaRette found
in coat pocket of exhibit
[6] Robinson claims his trial counsel should have moved
for mistrial when the jury found a marijuana cigarette in the
coat pocket. In order for a new trial to be granted because of
a juror’s use of extraneous information, the party claiming the
misconduct has the burden to show by a preponderance of the
evidence that prejudice has occurred. State v. Williams, 253
Neb. 111, 568 N.W.2d 246 (1997).
During jury deliberations, at least one juror, and probably
all the jurors, became aware of the marijuana cigarette in the
pocket of the coat worn by someone at the scene on the night
of Fant’s death. The juror alerted the bailiff, who informed the
attorneys of the discovery. Shortly thereafter, the jury returned
a guilty verdict. Robinson’s trial counsel did not include the
discovery of the marijuana cigarette in a motion for mistrial
or motion for new trial and did not include this claim on
direct appeal.
[7] Extraneous material or information considered by a jury
can be prejudicial without proof of actual prejudice if (1) the
material or information relates to an issue submitted to the
jury and (2) there is a reasonable possibility that it affected the
jury’s verdict to the challenger’s prejudice. State v. Thorpe, 280
Neb. 11, 783 N.W.2d 749 (2010). The extraneous information
was a marijuana cigarette found in a pocket of a coat match-
ing the description of a coat worn by someone at the scene of

STATE v. ROBINSON 	403
Cite as 285 Neb. 394
the shooting on the night of the murder. Robinson was on trial
for first degree murder. He was not on trial for possession of
illegal drugs. The extraneous information found by the jury
was not related to the charges Robinson was facing. Therefore,
prejudice cannot be presumed in this situation.
The postconviction court found that a verdict was announced
shortly after the bailiff was alerted to the discovery of the mari-
juana cigarette, which indicated that “a verdict had been deter-
mined by the jury prior to the question of the juror regarding
the contents of the coat.” It concluded that based on the total-
ity of the evidence presented to the jury on Robinson’s guilt,
Robinson had failed to show that there was a reasonable prob-
ability that the outcome of his trial would have been any dif-
ferent had his attorney moved for mistrial or made the extrinsic
evidence part of a motion for new trial.
Robinson has the burden to prove prejudice, which means
that but for his counsel’s ineffective assistance, the outcome
of the trial would have been different. There were numerous
facts in evidence that pointed toward his guilt. Robinson had a
motivation for the killing, he pursued Fant, and they were argu-
ing at the time of the shooting. And one eyewitness identified
Robinson as the killer.
Robinson did not show there was a reasonable probability
that the discovery of the marijuana cigarette affected the jury’s
determination of his guilt of first degree murder. And we agree
with the district court’s determination that Robinson has not
shown the discovery of the marijuana cigarette was prejudicial.
Robinson failed to carry his burden to show the outcome would
have been different but for his attorney’s failure to move for
mistrial. The court did not err in rejecting Robinson’s ineffec-
tive assistance of counsel claim on this issue.
2. tRial counsel did not infoRm Robinson of
discoveRy of maRiJuana cigaRette
until afteR diRect appeal
Because we have concluded there was no error regarding the
discovery of the marijuana cigarette, there can be no error in
not informing Robinson of the discovery until after his appeal.

404 	285 NEBRASKA REPORTS
Robinson cannot prove that but for the failure to inform him
of the discovery of the marijuana cigarette, the outcome of the
trial or appeal would have been different.
3. calling specific witness
Robinson claimed that trial counsel was ineffective for not
calling Shamika Brown as a witness. Brown was Robinson’s
brother’s fiance. She would have testified that she was not at
the murder scene the night Fant was shot. She stated that she
was with Robinson’s brother at his house on the night Fant
died. This would have disputed the testimony of the prosecu-
tion eyewitness who testified that Brown was present at the
shooting of Fant. Brown would have testified that this witness
was upset with the Robinson family and that in her opinion, the
witness “pretty much had it out for them.”
Brown was arrested for witness tampering in connection
with the case. Those charges were eventually dropped against
her, but they may have been pending during Robinson’s trial.
Robinson’s trial counsel testified that she did not call Brown as
a witness because she did not think her testimony would have
added anything.
[8] The decision to call, or not to call, a particular witness,
made by counsel as a matter of trial strategy, even if that choice
proves unproductive, will not, without more, sustain a finding
of ineffectiveness of counsel. State v. Thomas, 278 Neb. 248,
769 N.W.2d 357 (2009). Robinson has not shown that calling
Brown as a witness would have changed the result.
4. investigation of cRimestoppeRs
telephone call
The court concluded that Robinson had not set forth specific
allegations regarding the testimony of a witness who should
have been called or how the information from a Crimestoppers
tip might have been received in evidence at his trial.
[9] A counsel’s duty to investigate is the duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary. See State
v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999). In any
ineffectiveness case, a particular decision not to investigate

STATE v. ROBINSON 	405
Cite as 285 Neb. 394
must be directly assessed for reasonableness in all the circum-
stances, applying a heavy measure of deference to counsel’s
judgments. Id.
The record indicates that the Crimestoppers telephone call
was an anonymous call, in which the caller claimed to have
overheard a young girl on a schoolbus say that her mother’s
boyfriend had killed Fant. No other information was provided
to prove the accuracy or credibility of the statements, and
no other reports came in through the hotline. At the hearing,
Robinson did not produce any evidence regarding the girl on
the schoolbus or what course of investigation trial counsel
could have pursued. Under these circumstances, Robinson can-
not show that the testimony from an unknown person would
have changed the result.
5. assignments of eRRoR addRessed
on diRect appeal
[10] Although a motion for postconviction relief cannot
be used to secure review of issues which were or could have
been litigated on direct appeal, when a defendant was repre-
sented both at trial and on direct appeal by the same lawyer,
the defendant’s first opportunity to assert ineffective assistance
of counsel is in a motion for postconviction relief. State v.
McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010). Robinson
had the same attorney for his trial and direct appeal. Therefore,
his postconviction motion is his first opportunity to raise some
of his claims of ineffective assistance of counsel. However,
we will not readdress issues we have already decided on his
direct appeal. He raises four such claims in his postconviction
motion. We address each in turn.
(a) Cellular Telephone
Evidence at Trial
At the trial, the State introduced evidence related to the
use of cellular telephones in an attempt to place Robinson
and Fant in the same area at the time of the murder by using
signals from different cellular telephone towers. On direct
appeal, we concluded that the records were properly admitted,
because nothing indicated the cellular telephone records were

406 	285 NEBRASKA REPORTS
not trustworthy. Thus, this part of the claim was previously
decided on direct appeal.
Counsel also claimed the records should have been excluded
as irrelevant and unduly prejudicial. However, on direct appeal,
we refused to consider the argument because counsel had not
properly preserved it by objection at trial.
[11] Trial counsel is afforded due deference to formulate
trial strategy and tactics. See State v. Timmens, 282 Neb. 787,
805 N.W.2d 704 (2011). Robinson’s trial counsel objected to
the cellular telephone evidence on numerous occasions and on
different grounds, and the objections were overruled. Robinson
claims that because counsel did not object to the evidence as
irrelevant and unduly prejudicial, he was prejudiced. However,
he has not shown that the evidence was not relevant or that it
was unfairly prejudicial. He has not shown that the outcome of
the trial would have been different if trial counsel had objected
to the admission of the telephone records as irrelevant and
unduly prejudicial.
(b) Identification of Vehicles
On direct appeal, we did not specifically address the impor-
tance of vehicle identification. We discussed the identification
of the vehicles in the context of the prosecutor’s comments
made during closing argument. Although the prosecutor went
beyond the facts in his closing argument by mentioning that
Robinson’s vehicle was customized, we did not find that a mis-
carriage of justice occurred as a result of the State’s objection-
able references to the customization of Robinson’s vehicle. We
concluded that because there was no miscarriage of justice and
because Robinson did not make a timely motion for mistrial
based on prosecutorial misconduct, his assignment of error was
without merit.
We are left to determine whether Robinson was unfairly
prejudiced because his counsel did not offer certified copies
of the titles or registrations of the vehicles at issue in trial so
that counsel could then object when witnesses misidentified
the vehicles as a Chevrolet Impala instead of a Caprice and a
Cadillac Escalade instead of a GMC Yukon Denali. Robinson
argues that his trial counsel should have offered certified copies

STATE v. ROBINSON 	407
Cite as 285 Neb. 394
of the titles or registrations of Fant’s and Robinson’s vehicles
so as to prevent the State from referring to the vehicles as dif-
ferent models. Robinson has not shown how the outcome of
his trial could have been different if the makes and models
of the vehicles were in evidence. He has failed to show how
he was prejudiced because his trial counsel did not offer the
vehicle registrations.
(c) Motions for Mistrial During
Closing Argument
Robinson’s trial counsel objected to parts of the prosecu-
tion’s closing argument, and two of those objections were
overruled. On direct appeal, we rejected Robinson’s claim of
prosecutorial misconduct. We concluded that the prosecutor
did not misstate the law and did not mislead the jury. Because
trial counsel did not move for mistrial after these statements
were made, absent plain error, we would not consider the
assignments on direct appeal. Robinson I. In his postconvic-
tion claim, Robinson argues that because counsel did not make
a motion for mistrial, he was prejudiced. This assignment has
been decided on direct appeal.
Robinson’s trial counsel objected to certain parts of the
prosecutor’s closing argument and did not object to other
parts. Trial counsel did not make any motions for mistrial after
the prosecution’s closing argument. We rejected Robinson’s
claim of prosecutorial misconduct on direct appeal. Therefore,
Robinson’s claim on this issue is procedurally barred.
(d) No Motion for Mistrial
for Jury Misconduct
There were separate issues regarding two jurors during
the course of the trial. Juror No. 3 knew Fant’s wife through
church, eventually told the trial court she felt uncomfortable
serving on the jury, and said she wanted to be removed from
the jury. Her request was granted. Juror No. 22 fell asleep dur-
ing portions of the trial. The jury was given a general admon-
ishment, but the juror continued to fall asleep and was removed
from the jury. Both jurors were removed from the jury before
the case was submitted to the jury.

408 	285 NEBRASKA REPORTS
On direct appeal, we concluded that in respect to juror
No. 3, the record did not suggest that there was any miscon-
duct on the juror’s part, much less prejudicial misconduct.
We concluded the record did not suggest Robinson was preju-
diced by the removal of the juror who slept during parts of
the testimony.
On direct appeal, we concluded the court did not abuse its
discretion in removing the two jurors. Robinson is procedurally
barred from reasserting this claim.
6. motion foR R eheaRing
on diRect appeal
Robinson claims his counsel was ineffective by not timely
filing a motion for rehearing after we affirmed Robinson’s con-
victions and sentences on direct appeal. Motions for rehearing
are discretionary with this court. On postconviction, Robinson
has not shown that we would have granted his motion for
rehearing or that if the motion had been granted, we would
have changed our opinion and granted him redress.
VI. CONCLUSION
Because 	Robinson 	cannot 	establish 	that 	he 	was 	preju-
diced by his counsel’s representation, we find no merit to his
assignments of error. We affirm the district court’s denial of
Robinson’s motion for postconviction relief.
affiRmed.
heavican, C.J., not participating.
butleR county daiRy, l.l.c., appellant, v. butleR county,
nebRaska, and township of R ead, butleR county,
nebRaska, appellees, and township of summit,
butleR county, nebRaska, inteRvenoR-appellee.
827 N.W.2d 267
Filed March 8, 2013. 	No. S-12-173.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.