State v. Iromuanya

State of NebraSka , appellee , v.
lucky I. I romuaNya , appellaNt.
806 N.W.2d 404
Filed December 9, 2011. 	No. S-09-075.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. Under the two-pronged test for
determining ineffective assistance of counsel set out in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
reviews counsel’s performance and whether the defendant was prejudiced inde-
pendently of the lower court’s decision.
3. Postconviction: Constitutional Law: Proof. A court must grant an evidentiary
hearing on a postconviction motion when the motion contains factual allegations
which, if proven, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution.
4. Constitutional Law: Criminal Law: Right to Counsel. A defendant has a con-
stitutional right to be represented by an attorney in all critical stages of a criminal
prosecution.
5. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of
counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
6. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law—or if the records and files in the case affirmatively show that the
movant is entitled to no relief—no evidentiary hearing is required.
7. Postconviction: Constitutional Law: Effectiveness of Counsel: Proof. To
establish a right to postconviction relief for counsel’s ineffective assistance, the
petitioner must show that counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the petitioner’s defense. An appellate court
may address the two prongs of this test, deficient performance and prejudice, in
either order.
8. Criminal Law: Effectiveness of Counsel. Counsel’s performance was deficient
if it did not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
9. Effectiveness of Counsel: Presumptions. In determining whether trial counsel’s
performance was deficient, courts give counsel’s acts a strong presumption of
reasonableness.
10. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When
reviewing claims of ineffective assistance, an appellate court will not second-
guess trial counsel’s reasonable strategic decisions.
11. ____: ____: ____: ____. Appellate courts must assess trial counsel’s performance
from counsel’s perspective when counsel provided the assistance. An appellate
court will not judge an ineffectiveness of counsel claim in hindsight.
12. Effectiveness of Counsel: Proof: Appeal and Error. In addressing the “preju-
dice” component of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
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2052, 80 L. Ed. 2d 674 (1984), an appellate court focuses on whether counsel’s
deficient performance renders the result of the trial unreliable or the proceed-
ing fundamentally unfair. To show prejudice, the petitioner must demonstrate
a reasonable probability that but for counsel’s deficient performance, the result
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.
13. Effectiveness of Counsel: Appeal and Error. When a case presents layered inef-
fectiveness claims, an appellate court determines the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel was ineffective under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
If trial counsel was not ineffective, then the petitioner suffered no prejudice when
appellate counsel failed to bring an ineffective assistance of trial counsel claim.
14. Effectiveness of Counsel: Presumptions. A trial counsel’s lack of relevant expe-
rience is a factor a court can consider, but it does not create a presumption of
ineffective assistance of counsel.
15. Trial: Effectiveness of Counsel: Proof. Unless the defendant demonstrates that
counsel failed to function in any meaningful sense as the prosecution’s adversary,
the defendant can make out a claim of ineffective assistance only by pointing to
specific errors made by trial counsel.
16. Right to Counsel: Plea Bargains. The plea bargaining process presents a critical
stage of a criminal prosecution to which the right to counsel applies.
17. Trial: Attorney and Client: Effectiveness of Counsel: Plea Bargains. A trial
counsel’s failure to communicate a plea offer to a defendant is deficient perform-
ance as a matter of law.
18. Trial: Constitutional Law: Testimony. A defendant has a fundamental constitu-
tional right to testify.
19. Trial: Attorney and Client: Testimony: Waiver. The right to testify is personal
to the defendant and cannot be waived by defense counsel’s acting alone.
20. ____: ____: ____: ____. A trial court does not have a duty to advise the defend-
ant of his or her right to testify or to ensure that the defendant waived this right
on the record. Instead, defense counsel bears the primary responsibility for
advising a defendant of his or her right to testify or not to testify, of the strategic
implications of each choice, and that the choice is ultimately for the defendant
to make.
21. ____: ____: ____: ____. The competence and soundness of defense counsel’s
tactical advice is crucial to whether counsel has presented sufficient information
to the defendant to permit a meaningful voluntary waiver of the right to testify.
22. Trial: Attorney and Client. The decision whether to testify, plead guilty, or
waive a jury trial involves basic trial decisions for which the defendant has the
ultimate authority.
23. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: Waiver.
Defense counsel’s advice to waive the right to testify can present a valid claim of
ineffective assistance in two instances: if the defendant shows that counsel inter-
fered with his or her freedom to decide to testify or if counsel’s tactical advice to
waive the right was unreasonable.
24. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error.
Determining whether defense counsel was ineffective in failing to object to
STATE v. IromUANyA 	799
Cite as 282 Neb. 798

prosecutorial misconduct requires an appellate court to first determine whether
the petitioner has alleged any action or remarks that constituted prosecutorial
misconduct.
25. ____: ____: ____: ____. When a criminal defendant claims his or her trial coun-
sel was ineffective in failing to object to prosecutorial misconduct, an appellate
court will focus on the “prejudice” component of the test under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), unless the
prosecutorial misconduct was so blatantly improper and highly prejudicial that
even a minimally competent defense counsel would have objected.
26. Trial: Prosecuting Attorneys: Due Process. prosecutorial misconduct prejudices
a defendant’s right to a fair trial when the misconduct so infected the trial that the
resulting conviction violates due process.
27. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. In
determining whether defense counsel’s failure to object to prosecutorial miscon-
duct rendered the trial unreliable or unfair, an appellate court considers whether
the defendant’s right to a fair trial was prejudiced because of the prosecutorial
misconduct.
28. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does not mis-
lead and unduly influence the jury does not constitute misconduct.
29. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the context of the trial as a whole.
30. ____: ____. The following factors are relevant to determining whether prosecu-
torial misconduct prejudiced the defendant’s right to a fair trial: (1) the degree
to which the prosecutor’s conduct or remarks tended to mislead or unduly influ-
ence the jury; (2) whether the conduct or remarks were extensive or isolated;
(3) whether defense counsel invited the remarks; (4) whether the court pro-
vided a curative instruction; and (5) the strength of the evidence supporting the
conviction.
31. Juror Qualifications. Voir dire examination of prospective jurors requires the
trial court to give each of the parties the right, within reasonable limits, to put
pertinent questions to each and all of the prospective jurors for the purpose of
ascertaining whether or not there exist sufficient grounds for challenge for cause
and also to aid each of the parties in the exercise of the statutory right of peremp-
tory challenge.
32. Constitutional Law: Juror Qualifications. Voir dire plays a critical function in
assuring the criminal defendant that his or her constitutional right to an impartial
jury will be honored.
33. Juror Qualifications: Parties. The extent to which parties may examine jurors as
to their qualifications rests largely in the discretion of the trial court.
34. ____: ____. A court should permit parties to ask prospective jurors questions
about whether they can fulfill their duties impartially.
35. ____: ____. parties may generally ask hypothetical questions designed to deter-
mine whether prospective jurors’ preconceived attitudes or biases would prevent
them from following the law or applying a legal theory or defense.
36. Juror Qualifications: Attorneys at Law. Counsel may not use voir dire to pre-
view prospective jurors’ opinions of the evidence that will be presented. Nor may
counsel secure in advance a commitment from prospective jurors on the verdict
800 	282 NEbrASkA rEporTS

they would return, given a state of hypothetical facts. parties may not use voir
dire to impanel a jury with a predetermined disposition or to indoctrinate jurors
to react favorably to a party’s position when presented with particular evidence.
37. Criminal Law: Trial: Prosecuting Attorneys. prosecutors have a duty to con-
duct criminal trials in a manner that provides the accused with a fair and impartial
trial. They may not inflame the jurors’ prejudices or excite their passions against
the accused. This rule includes intentionally eliciting testimony from witnesses
for prejudicial effect.
38. Juries: Prosecuting Attorneys. prosecutors should not make statements or elicit
testimony intended to focus the jury’s attention on the qualities and personal
attributes of the victim.
39. Trial: Prosecuting Attorneys. prosecutors should not remark on evidence of
questionable admissibility in an opening statement.
40. Criminal Law: Trial: Prosecuting Attorneys: Appeal and Error. A criminal
conviction is not to be lightly overturned on the basis of a prosecutor’s comments
standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor’s conduct affected the fair-
ness of the trial.
41. Trial: Prosecuting Attorneys: Jury Instructions: Appeal and Error. Not every
variance between a prosecutor’s advance description and the actual presentation
constitutes reversible error, when a proper limiting instruction has been given and
the remarks are not crucial to the State’s case.
42. Rules of Evidence: Witnesses: Juries. Under Neb. Evid. r. 607, Neb. rev. Stat.
§ 27-607 (reissue 2008), the credibility of a witness may be attacked by any
party, including the party calling the witness. but a party may not use the rule
as an artifice for putting before the jury substantive evidence that is otherwise
inadmissible.
43. Trial: Witnesses. Evidence of a witness’ bias is substantive, and a party can pre-
sent it on direct or cross-examination.
44. Trial: Effectiveness of Counsel. That a calculated trial tactic or strategy fails to
work out as planned will not establish that counsel was ineffective.
45. Constitutional Law: Trial. The right to a fair trial is a fundamental liberty
secured by the 14th Amendment.
46. Trial: Presumptions. The presumption of innocence presents an essential safe-
guard of a fair trial.
47. Trial: Evidence: Presumptions: Proof. Under the presumption of innocence,
the State must establish guilt solely through the probative evidence introduced
at trial.
48. Trial: Courts: Verdicts. The right to a fair trial requires courts to be alert to
courtroom practices that undermine the fairness of the factfinding process. The
jury’s verdict must rest on a dispassionate consideration of the evidence.
49. Trial: Courts. Where reason, principle, and common human experience indicate
a probability of deleterious effects on fundamental rights, then a particular court-
room practice calls for close judicial scrutiny.
50. Trial. Certain procedures, such as compelling the defendant to attend trial in
visible shackles, gagged, or in recognizable prison clothing, are inherently preju-
dicial to the defendant’s right to a fair trial and, thus, subject to close scrutiny.
STATE v. IromUANyA 	801
Cite as 282 Neb. 798

51. Criminal Law: Trial: Courts: Jury Instructions. The wearing of victim memo-
rial buttons by spectators at a criminal proceeding could prejudice a defendant’s
right to a fair trial. but this conduct is not per se inherently prejudicial. Instead,
the issues are whether the memorial displays rise to the level of creating an unac-
ceptable threat to a fair trial and whether the threat can be cured by the court’s
admonitions and instructions to juries.
52. Criminal Law: Trial: Courts: Juries. To avoid potential prejudice from victim
memorial displays, trial courts must act promptly to protect jurors from even
a suspicion of bias or prejudice resulting from spectators’ conduct in a crimi-
nal trial.
53. ____: ____: ____: ____. After receiving any information that spectators are
displaying victim memorials—regardless of whether defense counsel has moved
to prohibit such conduct—a trial court should immediately determine, out of the
presence of the jury, who, if anyone, is displaying the memorials, and what mes-
sage, if any, that the displays convey.
54. Jury Instructions. Whether a jury instruction is correct presents a question
of law.
55. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
56. Criminal Law: Due Process: Proof. Due process requires the prosecution
to prove, beyond a reasonable doubt, every fact necessary to constitute the
crime charged.
57. Criminal Law: Homicide: Presumptions. The absence of a provocation is not
an element of second degree murder, and no element of the charge is presumed.
58. Effectiveness of Counsel: Jury Instructions. Defense counsel is not ineffective
for failing to object to jury instructions that, when read together and taken as a
whole, correctly state the law and are not misleading.
59. Constitutional Law: Discrimination: Prosecuting Attorneys. The Constitution
prohibits racially biased prosecutorial arguments.
Appeal from the District Court for Lancaster County: JohN
a. colborN, Judge. Affirmed.
robert W. kortus, of Nebraska Commission on public
Advocacy, for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heavIcaN, 	c.J., 	WrIght, 	coNNolly, 	gerrard, 	StephaN,
mccormack , and mIller-lermaN, JJ.
coNNolly, J.
In this postconviction proceeding, Lucky I. Iromuanya alleged
multiple claims of ineffective assistance of counsel directed at
802 	282 NEbrASkA rEporTS

his trial and appellate counsel. The district court overruled his
motion without an evidentiary hearing. because Iromuanya
has either failed to allege facts showing his counsel’s deficient
assistance or failed to allege facts showing that he was preju-
diced by his counsel’s alleged deficiencies, we affirm.
I. bACkGroUND
In 	State 	v. 	Iromuanya 	(Iromuanya 	I),1 	we 	affirmed
Iromuanya’s convictions for attempted second degree mur-
der, second degree murder, and two related counts of use of
a weapon. We modified his life-to-life sentence for second
degree murder to not less than 50 years’ imprisonment nor
more than life imprisonment.
1. factual backgrouNd
We summarize the facts from Iromuanya I. Iromuanya fired
a single shot from a handgun that wounded Nolan Jenkins
and killed Jenna Cooper. The shooting occurred at Cooper’s
residence during a party at which the guests were drinking.
Iromuanya was dating one of the guests, margaret rugh.
rugh had invited Iromuanya and Aroun phaisan, a friend of
Iromuanya, to the party. About 1:30 a.m., one of the guests,
Nathanial buss, informed Cooper’s roommate, Lindsey Ingram,
that a male, whom he knew but did not name, had stolen some
shot glasses. buss pointed the person out, and Ingram went out
to confront him. meanwhile, buss also informed Cooper of the
theft, and Cooper went outside, followed by buss. Iromuanya
and phaisan decided to leave because they thought someone
would accuse them.
Ingram saw Iromuanya and phaisan leaving and told them
that no one could leave until the shot glasses were returned.
At this point, Jenkins went outside also. once outside, Jenkins
immediately grabbed Iromuanya’s sweatshirt with both hands,
pushed him backward, and asked if he had stolen anything.
Iromuanya stated that he had not done anything and tried
to push Jenkins away. The two scuffled for about 5 seconds
before they were separated. As they were being separated,
1 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
STATE v. IromUANyA 	803
Cite as 282 Neb. 798

Iromuanya punched Jenkins. phaisan stepped between them,
and Jenkins’ friend placed Iromuanya in a bear hug to keep him
away from Jenkins.
After being separated, buss informed Jenkins that Iromuanya
had not taken the shot glasses. Ingram attempted to calm
Iromuanya several times, but he remained agitated and focused
on Jenkins. After Ingram and Jenkins walked away to retrieve
the shot glasses, Cooper and buss also tried to talk to Iromuanya,
but he was still agitated.
About 5 minutes after the initial confrontation, Jenkins
walked toward Iromuanya to apologize. Another guest saw
that Iromuanya was becoming more agitated and yelled to
him that Jenkins was trying to apologize. Some witnesses
testified that Jenkins had his hand outstretched to shake
hands. Jenkins approached within a step of Iromuanya, and
Iromuanya shoved him, knocking Jenkins backward. phaisan
and another guest stepped in front of Iromuanya to restrain
him. but Iromuanya took the handgun from his trousers and
shot at Jenkins, who was 5 feet away. The bullet entered
Jenkins’ left temple, exited above his left ear, and pierced
Cooper’s neck, killing her. Iromuanya and phaisan fled in
phaisan’s vehicle.
rugh was in the house during the shooting. She spoke to
Iromuanya shortly after the shooting on her cellular telephone.
He told her to say that she did not know him and that his name
was “Charles Allen.” Later, in police interviews, including one
shortly after the shooting, rugh told officers that when she told
Iromuanya he had shot a girl, he asked, “‘Not a guy?’” The
police arrested Iromuanya later that evening.
At trial, the court admitted his videotaped statement and
handwritten statement into evidence. Iromuanya did not testify
or present evidence. The same counsel represented him at trial
and on direct appeal. The district court appointed different
counsel for this postconviction proceeding.
2. poStcoNvIctIoN motIoN aNd order
In his postconviction motion, Iromuanya alleged a list of
ineffective assistance claims. He alleged that his trial counsel
804 	282 NEbrASkA rEporTS

provided 	ineffective 	assistance 	at 	several 	stages. 	He 	also
claimed that his appellate counsel was ineffective for failing
to raise each claim regarding trial counsel’s ineffectiveness on
direct appeal.
Iromuanya alleged that during plea negotiations, he would
have pleaded to a lesser offense if counsel had adequately
advised him of the prosecution’s offers. regarding the jury
selection process, he alleged that trial counsel failed to suf-
ficiently use juror questionnaires and individual voir dire to
determine and counter the effects of pretrial publicity on jurors.
And he claimed that trial counsel failed to object to the jury
selection process and failed to create a record of the commu-
nity’s ethnic and racial makeup. He alleged that persons of his
race, and members of ethnic and racial minorities generally,
were underrepresented in the jury pool.
Iromuanya alleged that trial counsel lacked the experience to
defend against four major felonies and handle the pretrial pub-
licity and complex issues presented at the trial and on appeal.
And he claimed that trial counsel was ineffective in advising
him whether he should testify.
more specifically, Iromuanya alleged that trial counsel failed
to object to the prosecutor’s remarks to jurors during jury selec-
tion, his opening statements, and his improper questioning of a
witness. He also alleged that trial counsel failed to sufficiently
object to memorial buttons that the victims’ family members
had worn and to create an adequate record for appellate review;
effectively examine or cross-examine witnesses; and object to a
witness’ inadmissible testimony.
Next, Iromuanya alleged that trial counsel failed to present a
coherent and comprehensible defense in closing argument and
also failed to challenge erroneous jury instructions. Further,
Iromuanya alleged that appellate counsel failed to challenge
these instructions on direct appeal. Finally, he alleged that
trial counsel failed to argue that Iromuanya was entitled to a
self-defense instruction under Neb. rev. Stat. § 28-1409(4)
(reissue 2008).
As noted, the court overruled his motion without an eviden-
tiary hearing.
STATE v. IromUANyA 	805
Cite as 282 Neb. 798

II. ASSIGNmENT oF Error
Iromuanya assigns that the court erred in failing to grant an
evidentiary hearing on all of the above claims of ineffective
assistance of trial counsel and appellate counsel.
III. STANDArD oF rEVIEW
[1,2] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.2 Under
the two-pronged test set out in Strickland v. Washington,3 we
review counsel’s performance and whether the defendant was
prejudiced independently of the lower court’s decision.4
IV. ANALySIS
[3-6] The core issue is whether the court erred in dismiss-
ing Iromuanya’s postconviction motion without an evidentiary
hearing. A court must grant an evidentiary hearing on a post-
conviction motion when the motion contains factual allegations
which, if proven, constitute an infringement of the movant’s
rights under the Nebraska or federal Constitution.5 A defendant
has a constitutional right to be represented by an attorney in
all critical stages of a criminal prosecution.6 An ineffective
assistance of counsel claim alleges a violation of the funda-
mental constitutional right to a fair trial.7 but if a postconvic-
tion motion alleges only conclusions of fact or law—or if the
records and files in the case affirmatively show that the movant
is entitled to no relief—no evidentiary hearing is required.8
1. goverNINg prINcIpleS
[7] because the same attorneys represented Iromuanya at
trial and on direct appeal, his postconviction motion is his first
2 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
4 See McGhee, supra note 2.
5 See id.
6 See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
7 State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
8 See McGhee, supra note 2.
806 	282 NEbrASkA rEporTS

opportunity to assert trial counsel’s ineffectiveness.9 To estab-
lish a right to postconviction relief for counsel’s ineffective
assistance, the petitioner must show that counsel’s performance
was deficient and that counsel’s deficient performance preju-
diced the petitioner’s defense. An appellate court may address
the two prongs of this test, deficient performance and preju-
dice, in either order.10
[8-11] Counsel’s performance was deficient if it did not
equal that of a lawyer with ordinary training and skill in crimi-
nal law.11 In determining whether trial counsel’s performance
was deficient, courts give counsel’s acts a strong presump-
tion of reasonableness.12 When reviewing claims of ineffective
assistance, we will not second-guess trial counsel’s reason-
able strategic decisions.13 And we must assess trial counsel’s
performance from counsel’s perspective when counsel provided
the assistance.14 An appellate court will not judge an ineffec-
tiveness of counsel claim in hindsight.15
[12] 	In 	addressing 	the 	“prejudice” 	component 	of 	the
Strickland test, we focus on whether counsel’s deficient perform-
ance renders the result of the trial unreliable or the proceeding
fundamentally unfair.16 To show prejudice, the petitioner must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result would have been different.17
9 See id.
10 See id.
11 See, State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010); State v. Zarate,
264 Neb. 690, 651 N.W.2d 215 (2002), quoting Hill v. Lockhart, 474 U.S.
52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
12 See Haas, supra note 11.
13 See State v. Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010).
14 See State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990), quoting
Strickland, supra note 3.
15 State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992).
16 See, Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
17 See McGhee, supra note 2.
STATE v. IromUANyA 	807
Cite as 282 Neb. 798

A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.18
[13] Furthermore, when a case presents layered ineffective-
ness claims, we determine the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel
was ineffective under the Strickland test.19 obviously, if trial
counsel was not ineffective, then the petitioner suffered no
prejudice when appellate counsel failed to bring an ineffective
assistance of trial counsel claim.20
2. trIal couNSel’S lack of experIeNce
[14,15] We will not decide in a vacuum whether Iromuanya’s
trial counsel lacked the experience to defend his case.21 It is
true that a trial counsel’s lack of relevant experience is a fac-
tor a court can consider, but it does not create a presumption
of ineffective assistance of counsel.22 Unless the defendant
“demonstrate[s] that counsel failed to function in any meaning-
ful sense as the [prosecution’s] adversary,” the defendant can
“make out a claim of ineffective assistance only by pointing
to specific errors made by trial counsel.”23 Iromuanya did not
claim that his trial counsel’s performance was so inadequate
as to constitute a breakdown in the adversarial process. So we
focus on his allegations of specific errors.
3. plea NegotIatIoNS
Iromuanya argues that the court erred in rejecting his claim
that he would have pleaded to a lesser offense if counsel had
adequately advised him of the prosecution’s plea offers.
18 Gonzalez-Faguaga, supra note 16, citing Strickland, supra note 3.
19 See State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009).
20 See id.
21 See Joubert, supra note 14, quoting Strickland, supra note 3.
22 See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d
657 (1984).
23 Id., 466 U.S. at 666.
808 	282 NEbrASkA rEporTS

[16,17] The plea bargaining process presents a critical stage
of a criminal prosecution to which the right to counsel applies.24
And a trial counsel’s failure to communicate a plea offer to a
defendant is deficient performance as a matter of law.25
Iromuanya takes it one step further. He argues that a court
should grant an evidentiary hearing whenever a postconviction
motion alleges trial counsel’s failure to communicate a plea
offer. but even assuming that such allegations might require an
evidentiary hearing in some circumstances—an issue we do not
reach—they did not warrant a hearing here.
As the court noted, at Iromuanya’s sentencing hearing, his
trial counsel stated that (1) he had sent a letter to the prosecu-
tion extending Iromuanya’s offer to plead guilty to manslaugh-
ter; and (2) if the prosecutor had accepted the offer, Iromuanya
would have pleaded guilty. but Iromuanya’s argument lacks
a critical antecedent—he does not allege that the prosecutor
offered him a plea agreement. Under this record, Iromuanya’s
allegations are insufficient to overcome the presumption that
his trial counsel acted reasonably.
4. Jury SelectIoN proceSS
Iromuanya argues that the court erred in rejecting his claims
that his trial counsel failed to preserve his right to a fair and
impartial jury. regarding Iromuanya’s argument about the eth-
nic and racial makeup of the jury, the court concluded that he
had not alleged sufficient facts to show that African-American
and other ethnic groups were available within the randomly
selected jury pool. As we know, an evidentiary hearing is not
required if a postconviction motion alleges only conclusions
of fact or law. We conclude that Iromuanya failed to allege
sufficient facts to support his claim that minorities were under-
represented in the jury pool.
Iromuanya also alleged that his trial counsel failed to coun-
ter the effects of pretrial publicity. but the record affirmatively
24 See, Hill, supra note 11; State v. Lopez, 274 Neb. 756, 743 N.W.2d 351
(2008); Zarate, supra note 11.
25 See Lopez, supra note 24.
STATE v. IromUANyA 	809
Cite as 282 Neb. 798

refutes Iromuanya’s allegations. During jury selection, the trial
judge stated that he knew from the jurors’ questionnaires that
most of them had already heard something about the case. rather
than risk having jurors learn from another juror’s response to
questioning something about the case that they did not know,
the judge decided that counsel could individually question the
potential jurors. And he emphasized that they must return a
verdict solely on the evidence. The record reflects that counsel
individually questioned the potential jurors. Iromuanya’s claim
lacks merit.
5. advISemeNt Whether to teStIfy
Iromuanya claimed that trial counsel was ineffective in
advising him whether he should testify. He alleged that if his
attorney had given him reasonable advice, he would not have
waived his right to testify. The court determined that because
Iromuanya waived his right to testify, this claim was refuted.
We disagree that Iromuanya’s waiver resolves the advisement
issue. but we conclude that the record shows that the trial
court did not err in denying Iromuanya postconviction relief on
this claim.
[18-21] A defendant has a fundamental constitutional right
to testify.26 The right to testify is personal to the defendant and
cannot be waived by defense counsel’s acting alone.27 but a
trial court does not have a duty to advise the defendant of his
or her right to testify or to ensure that the defendant waived
this right on the record.28 Instead, “defense counsel bears the
primary responsibility for advising a defendant of his or her
right to testify or not to testify, of the strategic implications of
each choice, and that the choice is ultimately for the defendant
26 See Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37
(1987).
27 See, Goff v. Bagley, 601 F.3d 445 (6th Cir. 2010); U.S. v. Ward, 598 F.3d
1054 (8th Cir. 2010); Owens v. U.S., 483 F.3d 48 (1st Cir. 2007); U.S. v.
Mullins, 315 F.3d 449 (5th Cir. 2002); U.S. v. Manjarrez, 258 F.3d 618
(7th Cir. 2001); Chang v. U.S., 250 F.3d 79 (2d Cir. 2001); Sexton v.
French, 163 F.3d 874 (4th Cir. 1998); U.S. v. Joelson, 7 F.3d 174 (9th Cir.
1993); U.S. v. Teague, 953 F.2d 1525 (11th Cir. 1992).
28 See State v. El-Tabech, 234 Neb. 831, 453 N.W.2d 91 (1990).
810 	282 NEbrASkA rEporTS

to make.”29 In discussing this responsibility, the 11th Circuit
has explained the important role counsel’s advice plays in
securing a defendant’s right to testify or not:
This advice is crucial because there can be no effec-
tive waiver of a fundamental constitutional right unless
there is an “intentional relinquishment or abandonment
of a known right or privilege.” . . . moreover, if counsel
believes that it would be unwise for the defendant to tes-
tify, counsel may, and indeed should, advise the client in
the strongest possible terms not to testify. The defendant
can then make the choice of whether to take the stand
with the advice of competent counsel.30
The competence and soundness of defense counsel’s tactical
advice is crucial to whether counsel has presented sufficient
information to the defendant to permit a meaningful voluntary
waiver of the right to testify.31
[22] Iromuanya’s claim that he would have testified but for
his trial counsel’s advice mirrors a defendant’s claim that he or
she would not have pleaded guilty or waived a jury trial but for
trial counsel’s advice. These decisions also involve basic trial
decisions for which the defendant has the ultimate authority.32
And we have recognized that a defendant can base an ineffec-
tive assistance of counsel claim on trial counsel’s unreason-
able tactical advice in making these decisions.33 In reviewing
a defendant’s waiver of a jury trial, we have explicitly stated
that counsel’s advice to waive a jury trial can be the source of
a valid claim of ineffective assistance when the advice is unrea-
sonable or when counsel interferes with a client’s freedom to
decide to waive a jury trial.34
29 See State v. White, 246 Neb. 346, 351, 518 N.W.2d 923, 926 (1994), citing
Teague, supra note 27. Accord Florida v. Nixon, 543 U.S. 175, 125 S. Ct.
551, 160 L. Ed. 2d 565 (2004).
30 Teague, supra note 27, 953 F.2d at 1533 (emphasis in original).
31 See Lema v. U.S., 987 F.2d 48 (1st Cir. 1993).
32 See Nixon, supra note 29.
33 State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010); State v. Glover,
278 Neb. 795, 774 N.W.2d 248 (2009).
34 Seberger, supra note 33.
STATE v. IromUANyA 	811
Cite as 282 Neb. 798

[23] We have implicitly applied the same ineffective assist-
ance rule to a defendant’s decision to waive his or her right
to testify. Defense counsel’s advice to waive the right to tes-
tify can present a valid claim of ineffective assistance in two
instances: (1) if the defendant shows that counsel interfered
with his or her freedom to decide to testify or (2) if counsel’s
tactical advice to waive the right was unreasonable.35
It is true that federal appellate courts disagree whether a
defendant’s voluntary waiver may be inferred from the defend-
ant’s failure to testify at trial or failure to alert the trial court
to his or her desire to testify.36 but we need not decide whether
a defendant’s conduct or silence can constitute a waiver of his
or her right to testify. Here, the record shows that at the close
of the State’s evidence, Iromuanya waived his right to testify
and present witnesses. In response to the court’s questions, he
stated that he had discussed whether to testify with his attorney;
he confirmed that he had freely and voluntarily decided not to
testify. He specifically stated that he knew that the decision
was his regardless of his attorney’s advice. because the record
shows defense counsel did not interfere with Iromuanya’s deci-
sion not to testify, the only issue is whether counsel’s advice
was unreasonable and prevented Iromuanya from meaningfully
waiving his right to testify.
Iromuanya alleged that if he had received reasonable advice,
he would have testified that he had not intentionally fired a
shot at Jenkins; the shooting occurred during a sudden quar-
rel; Jenkins was the aggressor; and Iromuanya was restrained
against his will. but the jurors heard his statements to this
effect when they viewed his videotaped statements and when a
witness read his written statement. Trial counsel again played
a part of the videotaped statement during closing argument.
We conclude that because the record shows that the jury heard
35 See, White, supra note 29; State v. Carter, 241 Neb. 645, 489 N.W.2d 846
(1992); El-Tabech, supra note 28; State v. Journey, 207 Neb. 717, 301
N.W.2d 82 (1981). Accord Lema, supra note 31.
36 Compare Chang, supra note 27, with Goff, supra note 27; Frey v. Schuetzle,
151 F.3d 893 (8th Cir. 1998); and Joelson, supra note 27.
812 	282 NEbrASkA rEporTS

Iromuanya’s statement of events from his police interview, he
was not prejudiced by his trial counsel’s alleged failure to rea-
sonably advise him to testify.37
6. proSecutorIal mIScoNduct
Iromuanya contends that the court erred in rejecting his
claims that counsel was ineffective by failing to object to the
following alleged instances of prosecutorial misconduct: (1)
making improper remarks to jurors during voir dire; (2) making
improper remarks about the victims during the opening state-
ment; and (3) eliciting testimony from two witnesses that was
intended to elicit the jurors’ sympathy for the victims.
(a) Standard for reviewing Ineffective
Assistance Claims based on
prosecutorial misconduct
[24] Determining whether defense counsel was ineffective in
failing to object to prosecutorial misconduct obviously requires
an appellate court to first determine whether the petitioner has
alleged any action or remarks that constituted prosecutorial
misconduct.38 but even when a prosecutor’s conduct or remarks
are misconduct, defense counsel might have made a sound tac-
tical decision in not objecting: “It is not beyond comprehension
to envision an instance where a surely winnable objection may
still hurt the defense in the eyes of the jury.”39 Alternatively,
trial counsel may decide that the prosecutor’s remarks support
the defense’s position or are not worth distracting the jury from
a more important point.
[25-27] We give defense counsel’s decision not to object
to a prosecutor’s conduct or remark a strong presumption of
reasonableness. We will not lightly conclude that counsel was
ineffective for failing to object to every instance of prosecuto-
rial misconduct. Unless the prosecutorial misconduct was so
blatantly improper and highly prejudicial that even a minimally
37 See U.S. v. Walters, 163 Fed. Appx. 674 (10th Cir. 2006).
38 See, e.g., State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).
39 Ayers v. State, 802 A.2d 278, 283 (Del. 2002).
STATE v. IromUANyA 	813
Cite as 282 Neb. 798

competent defense counsel would have objected,40 we will
focus on the “prejudice” component of the Strickland test. The
prejudice component focuses on whether defense counsel’s
performance rendered the trial unreliable or the proceeding
fundamentally unfair.41 prosecutorial misconduct prejudices a
defendant’s right to a fair trial when the misconduct so infected
the trial that the resulting conviction violates due process.42 So
in determining whether defense counsel’s failure to object to
prosecutorial misconduct rendered the trial unreliable or unfair,
we consider whether the defendant’s right to a fair trial was
prejudiced because of the prosecutorial misconduct.43
(b) relevant Factors for Evaluating Whether
prosecutorial misconduct prejudiced a
Defendant’s right to a Fair Trial
[28-30] A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.44
Whether prosecutorial misconduct is prejudicial depends largely
on the context of the trial as a whole.45 When a prosecutor’s
conduct was improper, we adopt the following factors in deter-
mining whether the conduct prejudiced the defendant’s right
to a fair trial: (1) the degree to which the prosecutor’s conduct
or remarks tended to mislead or unduly influence the jury; (2)
whether the conduct or remarks were extensive or isolated; (3)
whether defense counsel invited the remarks; (4) whether the
40 See Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000).
41 See, Lockhart, supra note 16; Gonzalez-Faguaga, supra note 16.
42 See, Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d
144 (1986); State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009); State
v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on other
grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
43 See, Graves v. Ault, 614 F.3d 501 (8th Cir. 2010); Land v. Allen, 573 F.3d
1211 (11th Cir. 2009); Latchison v. Felker, 382 Fed. Appx. 542 (9th Cir.
2010); State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
44 See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on
other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
45 See id.
814 	282 NEbrASkA rEporTS

court provided a curative instruction; and (5) the strength of the
evidence supporting the conviction.46
(c) Analysis
(i) Remarks to Jurors During Voir Dire
The prosecutor asked prospective jurors to think of how a
person’s intent can be inferred and reasons that a person might
lie about his or her intent after committing an act. He also
explained the theory of transferred intent and asked whether
anyone thought the theory was unfair as applied to a hypo-
thetical example. Later, he asked whether any potential jurors
had training in the use of firearms and whether they had been
trained to fire a warning shot. When a prospective juror stated
that his work protocol called for firing a warning shot, the
prosecutor responded that he thought it was “probably a pretty
good idea, too.” The prosecutor’s questions about what weight
jurors would give to evidence were limited to asking whether
jurors believed they could give the same weight to circumstan-
tial evidence as to direct evidence. He made no reference to the
facts of the case.
The postconviction court concluded that the prosecutor had
properly questioned potential jurors about their views on intent,
whether they could apply the theory of transferred intent, and
their familiarity with firearm safety. It further concluded that
the prosecutor’s comments on the necessity of firing a warn-
ing shot did not prejudice Iromuanya. The court stated that at
trial, it had instructed jurors that they should not consider com-
ments made during voir dire as evidence and again instructed
the jury at the close of evidence that counsel’s comments were
not evidence.
46 See, Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed.
2d 431 (1974); U.S. v. Reid, 625 F.3d 977 (6th Cir. 2010); U.S. v. Bell, 624
F.3d 803 (7th Cir. 2010); Graves, supra note 43; U.S. v. Whitten, 610 F.3d
168 (2d Cir. 2010); U.S. v. Davis, 609 F.3d 663 (5th Cir. 2010); Hein v.
Sullivan, 601 F.3d 897 (9th Cir. 2010); U.S. v. Lopez, 590 F.3d 1238 (11th
Cir. 2009); U.S. v. McElroy, 587 F.3d 73 (1st Cir. 2009); U.S. v. Portillo-
Quezada, 469 F.3d 1345 (10th Cir. 2006); U.S. v. Scheetz, 293 F.3d 175
(4th Cir. 2002).
STATE v. IromUANyA 	815
Cite as 282 Neb. 798

In his postconviction appeal, Iromuanya argues that in ques-
tioning the jurors, the prosecutor impermissibly presented evi-
dence and his personal opinion on whether a warning shot
was required before shooting a firearm in the direction of a
person. He also argues that the prosecutor improperly argued
transferred intent and improperly solicited information on the
weight potential jurors would give to circumstantial evidence
and the type of circumstantial evidence that they believed
would show intent.
[31] In questioning prospective jurors, a court should allow
attorneys reasonable leeway to ask questions relevant to exer-
cising a party’s peremptory challenges:
[V]oir dire examination of prospective jurors “requires
the trial court to give each of the parties the right, within
reasonable limits, to put pertinent questions to each and
all of the prospective jurors for the purpose of ascertain-
ing whether or not there exists [sic] sufficient grounds
for challenge for cause and also to aid each of the par-
ties in the exercise of the statutory right of peremptory
challenge.”47
[32,33] Although this statement is correct, voir dire also
“‘plays a critical function in assuring the criminal defendant
that his [constitutional] right to an impartial jury will be hon-
ored.’”48 Nonetheless, the extent to which parties may examine
jurors as to their qualifications rests largely in the discretion
of the trial court.49 but there are, of course, limits to a court’s
discretion.
[34-36] A court should permit parties to ask prospective jurors
questions about whether they can fulfill their duties impar-
tially.50 So parties may generally ask hypothetical questions
47 State v. Shipps, 265 Neb. 342, 349, 656 N.W.2d 622, 629 (2003), quoting
Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958), citing Neb. rev. Stat.
§ 25-1106 (reissue 1943).
48 Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d
492 (1992), quoting Rosales-Lopez v. United States, 451 U.S. 182, 101
S. Ct. 1629, 68 L. Ed. 2d 22 (1981) (plurality opinion). Accord Wilson v.
Sirmons, 536 F.3d 1064 (10th Cir. 2008).
49 See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
50 See Morgan, supra note 48.
816 	282 NEbrASkA rEporTS

designed to determine whether prospective jurors’ preconceived
attitudes or biases would prevent them from following the
law or applying a legal theory or defense.51 but counsel may
not use voir dire to preview prospective jurors’ opinions of
the evidence that will be presented. Nor may counsel secure
in advance a commitment from prospective jurors on the ver-
dict they would return, given a state of hypothetical facts.52
Summed up, the parties may not use voir dire to impanel a
jury with a predetermined disposition or to indoctrinate jurors
to react favorably to a party’s position when presented with
particular evidence.53
Applying these standards, we conclude that the prosecutor’s
questions and remarks about transferred intent were intended
to ensure that prospective jurors could apply this legal theory
impartially. He asked if any of them considered the theory of
transferred intent unfair. He did not ask them if they could
convict a defendant based upon a set of hypothetical facts
that the State intended to prove. These questions fall short of
misconduct.
but the prosecutor improperly remarked and questioned
prospective jurors about what type of circumstantial evidence
would show a person’s intent and whether a warning shot is
required before firing a gun in the direction of a person. He did
not limit his questions on circumstantial evidence to whether
prospective jurors could infer a person’s intent from indirect
evidence. Instead, his questions about why persons might lie
about their intent and his remarks about warning shots were
clearly intended to persuade prospective jurors to the State’s
viewpoint of the evidence before they heard it.
51 See, e.g., Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); State v. Moore, 122
N.J. 420, 585 A.2d 864 (1991); Wells v. State, 848 N.E.2d 1133 (Ind. App.
2006).
52 See, People v. Abilez, 41 Cal. 4th 472, 161 p.3d 58, 61 Cal. rptr. 3d
526 (2007); Hoskins v. State, 965 So. 2d 1 (Fla. 2007); State v. Taylor,
875 So. 2d 58 (La. 2004); State v. Jones, 347 N.C. 193, 491 S.E.2d 641
(1997); Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001); State v.
Frederiksen, 40 Wash. App. 749, 700 p.2d 369 (1985).
53 People v. Bowel, 111 Ill. 2d 58, 488 N.E.2d 995, 94 Ill. Dec. 748 (1986);
State v. Clark, 981 S.W.2d 143 (mo. 1998).
STATE v. IromUANyA 	817
Cite as 282 Neb. 798

As explained, voir dire is not the time for closing argu-
ment. yet, we cannot conclude that the prosecutor’s remarks
prejudiced Iromuanya’s right to an impartial jury. before voir
dire, the court advised prospective jurors that the attorneys’
statements and arguments were not evidence. And Iromuanya’s
trial counsel produced ample evidence and argument to rebut
the State’s viewpoint. He forcefully argued in closing that
Iromuanya did not shoot at Jenkins with an intent to kill, and
he played Iromuanya’s statement to the police in closing argu-
ments specifically to bolster that argument. because of the
court’s instruction and trial counsel’s countervailing arguments,
the prosecutor’s comments during voir dire did not prejudi-
cially influence the jury.
(ii) Improper Appeal to Jurors’ Sympathies
Iromuanya contends that during opening statements, the
prosecutor made improper statements about the personal attri-
butes of the victims. He argues that these statements prejudiced
his right to an impartial jury and that the prosecutor could
not have reasonably believed that they would be supported by
admissible evidence. Iromuanya also contends that the prosecu-
tor improperly used Jenkins’ testimony to display his emotions
upon learning of Cooper’s death at the hospital.
At the beginning of his opening argument, the prosecutor
stated that Cooper had been studying mechanical engineer-
ing, was named a “First Team All big 12” soccer player, was
voted most valuable player, and would have led her team into
the National Collegiate Athletic Association tournament if
she had not been killed. regarding Jenkins, he listed Jenkins’
high school athletic endeavors and stated that Jenkins had
earned a regents Scholarship and would be receiving a nurs-
ing degree.
[37-39] In deciding this issue, we are guided by the follow-
ing principles. prosecutors have a duty to conduct criminal
trials in a manner that provides the accused with a fair and
impartial trial.54 They may not inflame the jurors’ prejudices or
54 See State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved
on other grounds, McCulloch, supra note 42.
818 	282 NEbrASkA rEporTS

excite their passions against the accused.55 This rule includes
intentionally eliciting testimony from witnesses for prejudi-
cial effect.56 As relevant here, prosecutors should not make
statements or elicit testimony intended to focus the jury’s
attention on the qualities and personal attributes of the vic-
tim. These facts lack any relevance to the criminal prosecu-
tion57—and they have the potential to evoke jurors’ sympathy
and outrage against the defendant.58 prosecutors also should
not remark on evidence of questionable admissibility in an
opening statement.59
[40,41] but “a criminal conviction is not to be lightly over-
turned on the basis of a prosecutor’s comments standing alone,
for the statements or conduct must be viewed in context; only
by so doing can it be determined whether the prosecutor’s con-
duct affected the fairness of the trial.”60 “[N]ot every variance
between [a prosecutor’s] advance description and the actual
presentation constitutes reversible error, when a proper limiting
instruction has been given” and the remarks are not crucial to
the State’s case.61
As noted, the court orally instructed prospective jurors
before trial that the attorney’s statements and arguments were
55 See id.
56 See, e.g., U.S. v. Conrad, 320 F.3d 851 (8th Cir. 2003); U.S. v. Hands, 184
F.3d 1322 (11th Cir. 1999); U.S. v. Vaulin, 132 F.3d 898 (3d Cir. 1997);
United States v. Millen, 594 F.2d 1085 (6th Cir. 1979). See, also, Annot.,
19 A.L.r.4th 368 (1983).
57 See Iromuanya I, supra note 1.
58 See, Clark v. Com., 833 S.W.2d 793 (ky. 1991); State v. Rodriguez, 365
N.J. Super. 38, 837 A.2d 1137 (2003).
59 See, U.S. v. Valencia, 600 F.3d 389 (5th Cir. 2010); U.S. v. Brassard, 212
F.3d 54 (1st Cir. 2000); U.S. v. Adams, 74 F.3d 1093 (11th Cir. 1996); U.S.
v. Novak, 918 F.2d 107 (10th Cir. 1990); United States v. Hernandez, 779
F.2d 456 (8th Cir. 1985); Occhicone v. State, 570 So. 2d 902 (Fla. 1990);
State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994), disapproved on
other grounds, State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998).
60 United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 84 L. Ed. 2d 1
(1985).
61 Frazier v. Cupp, 394 U.S. 731, 736, 89 S. Ct. 1420, 22 L. Ed. 2d 684
(1969).
STATE v. IromUANyA 	819
Cite as 282 Neb. 798

not evidence. And the prosecutor’s improper remarks in his
opening statement were followed by a long trial. many wit-
nesses testified on Iromuanya’s intent in firing the shot at
Jenkins that wounded Jenkins and killed Cooper. As we stated
in Iromuanya I,62 whether Iromuanya fired the shot with the
intent to kill Jenkins was the critical issue. The court’s writ-
ten instructions informed the jurors that they must not decide
the case on sympathy or prejudice. In attempting to extol the
victims, the prosecutor stepped out of bounds. but we conclude
that the prosecutor’s opening statement did not so influence the
jurors that they could not follow the court’s instruction to dis-
passionately weigh all the evidence that followed on the issue
of intent.63
For the same reason, we conclude that the prosecutor’s ques-
tioning of Jenkins did not deny Iromuanya a fair and impartial
trial. The prosecutor asked Jenkins to recall what he remem-
bered from being in the hospital and when he had learned that
Cooper had died. This questioning elicited Jenkins’ emotional
testimony that while he was still in the hospital, he was wheeled
down to see Cooper and held her hand but did not realize that
she had died. He stated that he learned of her death the next
day when he asked Ingram how Cooper was doing and Ingram
started crying. When trial counsel finally objected and moved
for a mistrial, the court overruled the motion as untimely. In his
affidavit accompanying the motion for a new trial, trial counsel
stated that by the time he understood where the questioning
was going, he saw at least two jurors crying and the rest staring
intently at Jenkins.
obviously, evidence showing that Jenkins was shot in the
head was relevant to whether Iromuanya intended to kill him.
but even if Jenkins’ mental functioning at the hospital had
been relevant to Iromuanya’s intent to kill, no proper purpose
existed for the prosecutor’s questions to Jenkins about when he
learned of Cooper’s death. Those questions could only elicit
irrelevant testimony, and the prosecutor should have known
62 Iromuanya I, supra note 1.
63 See Frazier, supra note 61.
820 	282 NEbrASkA rEporTS

that the questions would elicit highly emotional testimony. We
conclude that the questioning was improper.
but on this record, we conclude that even if Iromuanya’s
trial counsel had timely objected to this questioning or testi-
mony, no reasonable probability exists that the jury would have
acquitted Iromuanya. This testimony was only a small part of
the State’s evidence. Like the emotional testimony of Cooper’s
mother that we discussed in Iromuanya I, Jenkins’ testimony,
“[w]hile legally irrelevant, . . . had no prejudicial bearing on
the issue of intent.”64 Here, the State’s evidence on intent was
strong and the court instructed the jury not to decide the case
on sympathy or prejudice. So while the prosecutor’s appeal
to jurors’ sympathies was improper, the prejudicial effect was
tempered by the strength of the evidence and the court’s
instructions. We conclude that the improper questioning did not
deprive Iromuanya of a fair trial.
(iii) Prosecutor’s Impeachment
of State’s Witness
Iromuanya also argues that the prosecutor’s impeachment
of 	phaisan 	constituted 	prosecutorial 	misconduct. 	First, 	he
argues that phaisan’s testimony in response to the prosecutor’s
impeachment questions prejudiced him. phaisan testified that
he lived with a woman who was the sister of a woman with
whom Iromuanya had fathered out-of-wedlock children.
The record shows that after the prosecutor established that
Iromuanya and phaisan were longtime friends, Iromuanya’s
trial counsel asked to approach the bench. He moved in limine
to exclude from evidence facts about Iromuanya’s out-of-
wedlock children. He argued that the court should exclude the
evidence under Neb. Evid. r. 40365 and that it was improper
character evidence. The court overruled that motion, conclud-
ing that the evidence was admissible on phaisan’s credibil-
ity. Trial counsel repeated his objections during the prosecu-
tor’s questioning.
64 Iromuanya I, supra note 1, 272 Neb. at 198, 719 N.W.2d at 284.
65 Neb. rev. Stat. § 27-403 (reissue 2008).
STATE v. IromUANyA 	821
Cite as 282 Neb. 798

Despite Iromuanya’s claim that this questioning was pros-
ecutorial misconduct that his trial counsel failed to address,
the record affirmatively shows that his trial counsel did object
to this line of questioning. because this claim fails to show
ineffective assistance, it is without merit in this postconvic-
tion appeal.
Iromuanya also claims that his trial counsel failed to object
to the prosecutor’s improper questioning of phaisan on redirect
examination about the number of times that he had visited
Iromuanya in jail. Iromuanya’s trial counsel did not object to
this questioning, but we conclude that it was not prosecuto-
rial misconduct.
[42,43] Under Neb. Evid. r. 607,66 the credibility of a wit-
ness may be attacked by any party, including the party calling
the witness.67 but a party may not use the rule as an artifice for
putting before the jury substantive evidence that is otherwise
inadmissible.68 Evidence of a witness’ bias, however, is substan-
tive, and a party can present it on direct or cross-examination.69
Showing bias appears to have been the prosecutor’s purpose
in this questioning. because the evidence was admissible to
show bias, the questioning did not constitute prosecutorial
misconduct.
Summing up, we conclude that Iromuanya has either failed
to allege facts that show prosecutorial misconduct or, under
our balancing test, has failed to allege facts that show that the
prosecutorial misconduct prejudiced Iromuanya’s right to a fair
trial. because he has failed to allege facts showing that any
prosecutorial misconduct deprived him of a fair trial, he can-
not show prejudice from his trial counsel’s alleged ineffective
assistance regarding these claims.
66 Neb. rev. Stat. § 27-607 (reissue 2008).
67 See State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).
68 See, e.g., State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984); Brehmer,
supra note 67.
69 See, e.g., U.S. v. Green, 617 F.3d 233 (3d Cir. 2010), citing United States
v. Fusco, 748 F.2d 996 (5th Cir. 1984). Compare U.S. v. Dunson, 142 F.3d
1213 (10th Cir. 1998).
822 	282 NEbrASkA rEporTS

7. INeffectIve Q ueStIoNINg of WItNeSSeS
[44] We also reject Iromuanya’s claims that trial counsel
was ineffective in his questioning of two of the State’s wit-
nesses: Nathaniel buss and margaret rugh. He argues that trial
counsel should not have attempted to impeach the credibility
of these witnesses. We have reviewed the record and conclude
that these claims involve issues of trial strategy that we will
not second-guess. That a calculated trial tactic or strategy fails
to work out as planned will not establish that counsel was
ineffective.70
8. SpectatorS’ memorIal buttoNS
In Iromuanya I, we affirmed the trial court’s denial of a new
trial for spectator misconduct. We stated that trial counsel had
moved in limine before the second day of voir dire started to
preclude spectators from wearing memorial buttons “‘with
Jenna Cooper’s face or photo or something like that.’”71 but
the court took the objection under advisement, and its ruling
was not part of the record. We noted that trial counsel had
submitted an affidavit with his motion for a new trial. In that
motion, he stated that on the third day of trial, the court had
instructed spectators not to wear the buttons in court. In deny-
ing Iromuanya’s motion for a new trial, the court stated that
there was no evidence any juror saw the buttons or was influ-
enced by them.
on appeal, we concluded that trial counsel had failed to cre-
ate an adequate record to determine that the court had abused
its discretion. We stated that the record failed to show how
many people wore buttons, where they sat, the size and con-
tents of the buttons, or the precise reason for the court’s ruling
on the motion in limine. We distinguished these facts from
the evidence presented in Musladin v. Lamarque.72 There, “[a]
divided panel of the Ninth Circuit Court of Appeals held that
70 See State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).
71 See Iromuanya I, supra note 1, 272 Neb. at 199, 719 N.W.2d at 284.
72 Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005), overruled sub
nom. Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482
(2006).
STATE v. IromUANyA 	823
Cite as 282 Neb. 798

the defendant was entitled to a writ of habeas corpus because
the wearing of the buttons created an unacceptable risk that
impermissible factors came into play, which was inherently
prejudicial.”73 In Iromuanya I, we stated that trial counsel could
not fail to timely move for a mistrial, gamble on a favorable
result, and then assert a previously waived error.
In his postconviction motion, Iromuanya claimed his trial
counsel was ineffective in failing to (1) timely object to the
victims’ family members’ wearing of memorial buttons, (2)
demand an immediate ruling on his objection or a mistrial,
and (3) make an adequate record for appellate review. In
denying Iromuanya postconviction relief for this claim, the
district court concluded that the presence of memorial but-
tons did not prejudice Iromuanya because (1) “what little
evidence there is” suggested that the buttons were worn only
during jury selection; (2) Iromuanya had not alleged that
any juror was exposed to the buttons; and (3) the court had
instructed jurors not to permit sympathy or prejudice to influ-
ence their decision.
Iromuanya contends that the district court erred in denying
him postconviction relief on the ground that the record was
insufficient to show that jurors were exposed to the memo-
rial buttons. He argues that his claim is based on his trial
counsel’s failure to create an adequate record to evaluate
prejudice. but this argument ignores Iromuanya’s burden to
allege how his trial counsel’s alleged deficient performance
prejudiced his defense. We conclude that he has not satisfied
this burden.
[45-49] The right to a fair trial is a fundamental liberty
secured by the 14th Amendment.74 The presumption of inno-
cence presents an essential safeguard of a fair trial.75 Under the
presumption of innocence, the State must establish guilt solely
73 See Iromuanya I, supra note 1, 272 Neb. at 201, 719 N.W.2d at 286, cit-
ing Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126
(1976).
74 State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008), citing Estelle, supra
note 73.
75 See id., citing Estelle, supra note 73.
824 	282 NEbrASkA rEporTS

through the probative evidence introduced at trial.76 The right
to a fair trial requires courts to be alert to courtroom practices
that undermine the fairness of the factfinding process.77 The
jury’s verdict must rest on a dispassionate consideration of the
evidence.78 “[W]here ‘reason, principle, and common human
experience’ indicate a ‘probability of deleterious effects on
fundamental rights,’ then the procedure ‘calls for close judi-
cial scrutiny.’”79
[50] As we have recognized, “certain procedures, such as
compelling the defendant to attend trial in visible shackles,
gagged, or in recognizable prison clothing, [are] ‘inherently
prejudicial’ to the defendant’s right to a fair trial and, thus, sub-
ject to close scrutiny.”80 In these cases, the scene presented to
the jurors simply poses an unacceptable threat of “‘“impermis-
sible factors coming into play”’” in the jury’s determination
of guilt.81
In Musladin,82 the case we distinguished in Iromuanya I,
the Ninth Circuit granted habeas relief on an unfair trial claim
connected to memorial buttons worn by the victim’s family
members. There, the defendant’s murder trial lasted 14 days.
At least on some days of the trial, some members of the
victim’s family, who were sitting in the front row of the gal-
lery, wore buttons with the victim’s photograph. before open-
ing statements, the trial court had denied defense counsel’s
motion to order the family members not to wear the buttons
during trial.83
76 See id., citing Coffin v. United States, 156 U.S. 432, 15 S. Ct. 394, 39 L.
Ed. 481 (1895).
77 See id., quoting Estelle, supra note 73.
78 See id., quoting Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).
79 Id. at 668, 757 N.W.2d at 15, quoting Estelle, supra note 73.
80 Id., citing Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d
953 (2005).
81 Id. at 669, 757 N.W.2d at 15, quoting Holbrook v. Flynn, 475 U.S. 560,
106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).
82 Musladin, supra note 72.
83 See Carey, supra note 72.
STATE v. IromUANyA 	825
Cite as 282 Neb. 798

relying on the U.S. Supreme Court’s decision in Holbrook
v. Flynn,84 a California Court of Appeal concluded that the
practice should be discouraged because the displays constituted
an impermissible factor coming into play. but it concluded
that because the jurors in the defendant’s case were unlikely to
have interpreted the buttons as anything but a sign of normal
grief—the buttons did not brand the defendant with an unmis-
takable mark of guilt.85
In granting the state inmate habeas relief, the Ninth Circuit
in Musladin determined that the state court’s requirement that
the spectators’ conduct brand the defendant with a mark of
guilt was an unreasonable application of clearly established
federal law. It held that when a court concludes that courtroom
conduct allows an impermissible factor to come into play,
the “inherent prejudice” test is satisfied. It relied on its deci-
sion in Norris v. Risley,86 an earlier case applying Supreme
Court precedent on prejudicial courtroom practices to specta-
tor conduct.
In overruling Musladin, the Supreme Court stated that only
its holdings constituted clearly established federal law in decid-
ing whether to grant habeas relief from a state court decision.
It acknowledged that it had previously stated that the test
for “inherent prejudice” is “‘whether “an unacceptable risk
is presented of impermissible factors coming into play.”’”87
but it distinguished its earlier cases as dealing only with
“government-sponsored practices.”88 It also noted that state
courts had diverged widely on whether memorial displays by
spectators prejudiced a defendant’s right to a fair trial. because
the prejudicial effect of spectators’ memorial displays was still
an open question in the Court’s jurisprudence, the state court’s
decision was neither contrary to nor an unreasonable applica-
tion of its holdings.
84 Holbrook, supra note 81.
85 See Carey, supra note 72.
86 Norris v. Risley, 918 F.2d 828 (9th Cir. 1990).
87 Carey, supra note 72, 549 U.S. at 75.
88 Id.
826 	282 NEbrASkA rEporTS

yet, in a well-reasoned concurrence, Justice Souter con-
cluded that the Court’s unacceptable risk standard did reach the
conduct of courtroom visitors and clearly applied to spectators’
memorial displays:
Nor is there any reasonable doubt about the pertinence
of the standard to the practice in question; one could not
seriously deny that allowing spectators at a criminal trial
to wear visible buttons with the victim’s photo can raise a
risk of improper considerations. The display is no part of
the evidence going to guilt or innocence, and the buttons
are at once an appeal for sympathy for the victim (and
perhaps for those who wear the buttons) and a call for
some response from those who see them. on the jurors’
part, that expected response could well seem to be a ver-
dict of guilty, and a sympathetic urge to assuage the grief
or rage of survivors with a conviction would be the para-
digm of improper consideration.89
but he concluded that the issue was whether the risk in each
case was unacceptable and declined to embrace a per se rule of
inherent prejudice for the presence of memorial buttons in any
criminal trial. We agree.
[51] We implicitly concluded in Iromuanya I that the wear-
ing of victim memorial buttons by spectators at a criminal
proceeding could prejudice a defendant’s right to a fair trial.
but under the Supreme Court’s decision in Carey v. Musladin,90
which overruled the Ninth Circuit’s decision, this conduct is
not per se inherently prejudicial.91 That is, this type of spectator
conduct is not on the same level as state-sponsored procedures
showing a probable deleterious effect on fundamental rights
and calling for close judicial scrutiny. Instead, we view the
issues as whether the memorial displays rise to the level of
creating an unacceptable threat to a fair trial and whether the
threat can be cured by the court’s admonitions and instructions
to juries. many courts have adopted the “unacceptable risk”
89 Id., 549 U.S. at 82-83 (Souter, J., concurring in the judgment).
90 Carey, supra note 72.
91 See, e.g., U.S. v. Farmer, 583 F.3d 131 (2d Cir. 2009).
STATE v. IromUANyA 	827
Cite as 282 Neb. 798

standard for spectator conduct. They have frequently concluded
that spectators’ wearing of memorial buttons or shirts did not
pose an unacceptable threat to a fair trial, especially when they
were worn for only a short period and the trial court stopped
the practice shortly after being informed of it.92
We disagree with the district court that the evidence indi-
cated the buttons were worn only during jury selection. As
stated, in his affidavit in support of a new trial, Iromuanya’s
counsel stated that sometime on the third day of trial, the court
ordered spectators not to wear the buttons. but we agree with
other courts that the jurors were likely to have viewed the but-
tons as signs of grief instead of a collective call for Iromuanya’s
conviction. And the record does show that spectators only wore
the buttons for the first 2 to 3 days of a 9-day trial. Also, at the
hearing for a new trial, Iromuanya’s counsel did not dispute the
prosecutor’s statement that no witnesses had taken the stand
while wearing a button. Finally, the court instructed jurors
not to allow sympathy or prejudice to influence their verdict.
Under these facts, we will not presume juror partiality. We con-
clude that there is no reasonable probability that the spectators’
wearing of memorial buttons created an unacceptable threat to
Iromuanya’s right to a fair trial.
[52,53] but our conclusion here does not mean that spec-
tators’ memorial displays could never reach such a level. To
avoid potential prejudice from victim memorial displays, we
admonish trial courts to act promptly to protect jurors from
even a suspicion of bias or prejudice resulting from spectators’
conduct in a criminal trial.93 After receiving any information
that spectators are displaying victim memorials—regardless
of whether defense counsel has moved to prohibit such con-
duct—a trial court should immediately determine, out of the
presence of the jury, who, if anyone, is displaying the memo-
rials, and what message, if any, that the displays convey. The
92 See Carey, supra note 72 (citing cases). Accord, e.g., People v. Zielesch,
179 Cal. App. 4th 731, 101 Cal. rptr. 3d 628 (2009); Allen v. Com., 286
S.W.3d 221 (ky. 2009); State v. Lord, 161 Wash. 2d 276, 165 p.3d 1251
(2007).
93 See State v. Polinski, 230 Neb. 43, 429 N.W.2d 725 (1988).
828 	282 NEbrASkA rEporTS

court should make a record of its findings and immediately
prohibit such conduct. If the court concludes that jurors would
have been exposed to the displays, it should inquire of jurors
whether the displays would affect their ability to be impartial
and admonish them to disregard any displays to which they
might have been exposed.
9. Jury INStructIoNS oN attempted
SecoNd degree murder
(a) Additional Facts
(i) Trial Proceedings
Jury instruction No. 3 set out the elements for attempted sec-
ond degree murder of Jenkins. The instruction informed jurors
that they could find Iromuanya guilty or not guilty and did not
have a lesser-included offense.
Jury instruction No. 5 set out the elements for the charge of
second degree murder of Cooper. It did have a lesser-included
offense of manslaughter and informed jurors that they could
find Iromuanya guilty of murder in the second degree, or guilty
of manslaughter, or not guilty. If the jury found that the State
had failed to prove second degree murder, the instruction stated
that it must acquit Iromuanya of that charge and consider the
crime of manslaughter.
The manslaughter elements in instruction No. 5 required
the State to prove that Iromuanya killed Cooper without mal-
ice upon (1) a sudden quarrel or (2) “unintentionally while in
the commission of an unlawful act, to wit: recklessly causing
bodily injury to Jenna Cooper.”
Instruction No. 7 explained the doctrine of transferred intent.
It informed jurors that if they found Iromuanya intended to kill
Jenkins, the element of intent was satisfied for Cooper even if
Iromuanya did not intend to kill her. Instruction No. 10 defined
“sudden quarrel” and explained the provocation issues relevant
to the charge of manslaughter:
“Sudden quarrel” is a legally recognized and sufficient
provocation which causes a reasonable person to lose
normal self control. The phrase “sudden quarrel” does
not necessarily mean an exchange of angry words or an
altercation contemporaneous with an unlawful killing and
STATE v. IromUANyA 	829
Cite as 282 Neb. 798

does not require a physical struggle or other combative
corporal contact between [Iromuanya] and Nolan Jenkins.
In considering the offense of manslaughter, you should
determine whether [Iromuanya] acted under the impulse
of sudden passion suddenly aroused which clouded rea-
son and prevented rational action, whether there existed
reasonable and adequate provocation to excite the pas-
sion of [Iromuanya] and obscure and disturb his power
of reasoning to the extent that he acted rashly and from
passion, without due deliberation and reflection, rather
than from judgment, and whether, under all the facts and
circumstances as disclosed by the evidence, a reason-
able time had elapsed from the time of provocation to
the instant of the killing for the passion to subside and
reason resume control of the mind. you should determine
whether the suspension of reason, if shown to exist, aris-
ing from sudden passion, continued from the time of
provocation until the very instant of the act producing
death took place.
During the jury’s deliberations, jurors sent this question to
the court: “Can a ‘sudden quarrel’ be a consideration when
making a decision of not guilty or guilty in the charge of
attempted murder in the 2nd degree?” After receiving this
question, the court held a teleconference with counsel. Defense
counsel agreed with the prosecutor that the jury could not con-
sider a sudden quarrel for attempted second degree murder, and
that is how the court instructed the jury.
(ii) Postconviction Proceedings
Iromuanya alleged three claims regarding jury instructions.
First, he alleged that trial counsel failed to challenge errone-
ous jury instructions on the following issues: provocation,
sudden quarrel, and transferred intent. Second, he alleged that
trial counsel was ineffective in failing to object to the court’s
erroneous negative response when the jury asked if “sudden
quarrel” could be considered for attempted second degree mur-
der. Third, he claimed that trial counsel should have argued
that the court should give a self-defense instruction under
§ 28-1409(4). That statute justifies the use of deadly force
830 	282 NEbrASkA rEporTS

in specified circumstances, including when the actor believes
such force is necessary to protect himself from kidnapping. He
also claimed that trial counsel should have asserted that self-
defense is not mutually exclusive to a sudden quarrel or lack of
requisite intent defense.
The court concluded that the jury instructions as a whole,
and its response to the jurors’ question, correctly stated the
law. It stated that jury instruction No. 3 correctly informed
jurors that they could find Iromuanya either guilty or not
guilty of attempted second degree murder. And it stated that
the only charge for which the jurors could consider the sudden
quarrel provocation was manslaughter. regarding the self-
defense claim, the court stated that in Iromuanya’s direct
appeal, we had upheld its decision not to give a self-defense
instruction because there was no evidence which would have
supported such instruction. So it concluded that trial counsel
was not deficient for failing to request the instruction under
§ 28-1409(4).
(b) Analysis
In this appeal, Iromuanya assigns that the court erred in
failing to find that trial counsel was ineffective for failing to
(1) properly challenge jury instructions and (2) object to the
court’s response to the jurors’ question during deliberations.
[54,55] Whether a jury instruction is correct presents a ques-
tion of law.94 When reviewing questions of law, we resolve the
questions independently of the lower court’s conclusions.95
Iromuanya argues that the transferred intent instruction and
the court’s response to the jurors’ question precluded the
jury from deciding a critical issue: whether Iromuanya “acted
intentionally but by the provocation of a sudden quarrel.”96
As noted, the court instructed the jurors that they could not
consider a sudden quarrel provocation in deciding Iromuanya’s
intent for attempted second degree murder of Jenkins. That
94 Thorpe, supra note 44.
95 Id.
96 brief for appellant at 24.
STATE v. IromUANyA 	831
Cite as 282 Neb. 798

response was correct under the governing law at the time of
Iromuanya’s trial.
Neb. rev. Stat. § 28-305(1) (reissue 2008) provides that
“[a] person commits manslaughter if he kills another without
malice, either upon a sudden quarrel, or causes the death of
another unintentionally while in the commission of an unlawful
act.” In State v. Jones,97 we specifically held that “there is no
requirement of an intention to kill in committing manslaughter.
The distinction between second degree murder and manslaugh-
ter upon a sudden quarrel is the presence or absence of an
intention to kill.”
So under Jones, the district court correctly instructed the
jurors that they could not consider a sudden quarrel provoca-
tion in deciding whether Iromuanya was guilty or not guilty of
attempted second degree murder for shooting at Jenkins.98 It is
true that we have recently overruled our decision in Jones and
held that sudden quarrel manslaughter is an intentional kill-
ing.99 but this decision was issued well after Iromuanya’s trial
and direct appeal. The failure to anticipate a change in existing
law does not constitute deficient performance.100 We conclude
that Iromuanya’s trial counsel was not ineffective for failing to
object to the court’s response to the jury.
Instruction No. 10 informed jurors that they should consider
whether the conflict between Iromuanya and Jenkins was a
sufficient provocation for the charge of manslaughter. because
manslaughter was only a lesser-included offense as to Cooper,
the instruction informed the jury that the sudden quarrel provo-
cation was relevant to Iromuanya’s killing of Cooper.
[56,57] We reject Iromuanya’s argument that the instructions
relieved the State of its burden to prove beyond a reasonable
97 State v. Jones, 245 Neb. 821, 830, 515 N.W.2d 654, 659 (1994), over-
ruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31
(1998).
98 See, State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002); State v.
Al-Zubaidy, 5 Neb. App. 327, 559 N.W.2d 774 (1997), reversed on other
grounds 253 Neb. 357, 570 N.W.2d 713.
99 See State v. Smith, ante p. 720, 806 N.W.2d 383 (2011).
100 See State v. Billups, 263 Neb. 511, 641 N.W.2d 71 (2002).
832 	282 NEbrASkA rEporTS

doubt that the attempt to cause death was not committed during
a sudden quarrel provocation. Due process requires the pros-
ecution to prove, beyond a reasonable doubt, every fact neces-
sary to constitute the crime charged.101 Here, the instruction for
attempted second degree murder of Jenkins informed the jury
that the State had to prove Iromuanya’s intent to kill beyond a
reasonable doubt. The absence of a provocation is not an ele-
ment of second degree murder, and no element of the charge is
presumed.102 If the jurors had believed that Iromuanya did not
intend to kill Jenkins, the instructions required them to find
him not guilty of attempted second degree murder.
We also reject Iromuanya’s claim that his trial counsel was
ineffective in failing to argue that the court should give a self-
defense instruction under § 28-1409(4). We quoted this statute
in Iromuanya I and concluded that there was no circumstance
“reflected in the record [that] would warrant a reasonable or
good faith belief in the necessity of using deadly force.”103
[58] Defense counsel is not ineffective for failing to object
to jury instructions that, when read together and taken as a
whole, correctly state the law and are not misleading.104 We
conclude that Iromuanya’s trial counsel was not ineffective for
failing to object to the jury instructions.
10. cloSINg argumeNtS
Iromuanya contends that trial counsel failed to present a
coherent and comprehensible closing argument. He alleged that
trial counsel failed to argue that the shooting occurred during
a sudden quarrel, despite evidence to support that theory. He
further alleged that trial counsel never explained what crime
served as the predicate act for manslaughter committed unin-
tentionally during the commission of an unlawful act. And he
101 See State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003), citing In re
Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
102 See, State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992); State v. Reeves,
234 Neb. 711, 453 N.W.2d 359 (1990), vacated and remanded on other
grounds 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).
103 Iromuanya I, supra note 1, 272 Neb. at 208, 719 N.W.2d at 290.
104 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
STATE v. IromUANyA 	833
Cite as 282 Neb. 798

claimed that trial counsel’s argument that the only appropri-
ate crime for conviction was involuntary manslaughter was
improper and confusing for the following reasons: (1) The jury
instructions did not permit the jurors to convict for involuntary
manslaughter; (2) “involuntary” was not defined for jurors,
so the term was both confusing and contrary to the evidence;
and (3) sudden quarrel was the more appropriate manslaugh-
ter argument.
Iromuanya also claimed that trial counsel improperly injected
race into closing arguments by asking jurors if they would have
been frightened if they had been the only white person there
with 20 black people encroaching: “It scares the shit out of me,
I’m not going to kid you. I’m sorry, Lucky, but that puts a little
bit of fear into me.” Iromuanya is African-American.
The court concluded that any alleged deficiencies in trial
counsel’s 	closing 	argument 	did 	not 	prejudice 	Iromuanya
because the jury found him guilty of second degree murder. It
stated that a sudden quarrel is only relevant to manslaughter.
It further found that trial counsel’s discussion of race was a
reasonable strategic decision to get jurors to put themselves in
Iromuanya’s place and understand his fear.
[59] “The Constitution prohibits racially biased prosecuto-
rial arguments.”105 but defense counsel’s reference to race
here was legitimate and obviously distinguishable from the
prosecutor’s appeal to racial prejudices in the case on which
Iromuanya relies.106 Iromuanya had the burden to allege that
trial counsel’s closing argument was deficient and prejudiced
his defense.107 We agree that trial counsel’s discussion of race
in closing arguments was a reasonable attempt to get jurors to
view the evidence from Iromuanya’s perspective and not inef-
fective assistance.
Further, as discussed above, because the jurors concluded
that Iromuanya intended to kill Jenkins, that intent necessar-
ily transferred to his killing of Cooper under the doctrine of
105 McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 S. Ct. 1756, 95 L. Ed. 2d
262 (1987); U.S. v. Doe, 903 F.2d 16 (D.C. Cir. 1990).
106 See State v. Rogan, 91 Haw. 405, 984 p.2d 1231 (1999).
107 See McGhee, supra note 2.
834 	282 NEbrASkA rEporTS

transferred intent. Trial counsel was not ineffective for failing
to argue otherwise. For the same reason, Iromuanya cannot
show prejudice from counsel’s failure to better explain invol-
untary manslaughter in closing arguments.
It is true that trial counsel could have argued that according
to Iromuanya’s statement, the predicate act for Iromuanya’s
unintentional killing of Cooper was his unlawful shooting at
Jenkins to scare him away. but even if trial counsel had bet-
ter explained involuntary manslaughter, the result would not
have been different. because the jurors found that Iromuanya
intended to kill Jenkins, that intent transferred to his killing of
Cooper. because his intent transferred, there was no basis for
finding that he killed Cooper unintentionally.
V. CoNCLUSIoN
The district court did not err in dismissing Iromuanya’s
motion for postconviction relief without an evidentiary hear-
ing. For all of his claims, Iromuanya has either failed to allege
facts that show his counsel’s deficient performance or failed
to allege facts that show he was prejudiced by his counsel’s
alleged deficiencies.
affIrmed.
bASSINGEr v. NEbrASkA HEArT HoSp. 	835
Cite as 282 Neb. 835
JeNNIfer baSSINger , appellee aNd croSS-appellaNt,
v. NebraSka heart hoSpItal , appellaNt
aNd croSS-appellee .
806 N.W.2d 395
Filed December 9, 2011. 	No. S-10-653.
1. Workers’ Compensation: Appeal and Error. on appellate review of a workers’
compensation award, the trial judge’s factual findings have the effect of a jury
verdict and will not be disturbed unless clearly wrong.
2. Courts: Appeal and Error. An appellate court independently decides questions
of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments. The interpretation and meaning of a prior opinion present a question
of law.
5. Courts: Appeal and Error. Generally, when a party raises an issue for the
first time in an appellate court, the court will disregard it because a lower court