State v. Allen, 314 Neb. 663

Background

On May 22, 2020, Keith L. Allen shot and killed Brett Torres from the passenger side of Allen’s sedan; nine shell casings and nine retained projectiles were recovered. Allen claimed self-defense; prosecution argued premeditated murder.
Beall (driver and eyewitness) did not testify at trial; her recorded police interview was admitted through Officer Erickson. Hovden (passenger in Torres’s SUV) and local witnesses testified about the encounter and yelling before the shooting.
Forensic pathologist Dr. Erin Linde (who did not perform the autopsy) reviewed autopsy reports/photos and testified as to cause of death; defense objected but the court allowed her opinion and autopsy photos (the written autopsy report was withdrawn).
During deliberations a juror later averred that jurors discussed the Torres family’s reputation and speculated the jurors might be “in danger” if they did not convict; that juror’s affidavit (exhibit 300) was excluded under Neb. Rev. Stat. § 27-606(2) as intradeliberational.
Trial court held an evidentiary hearing on the new-trial motion, received a limited foundation affidavit (exhibit 301), denied admission of the juror affidavit, and overruled Allen’s motion for a new trial. Allen was convicted of first-degree murder and use of a weapon and sentenced to life plus 20–30 years.
On appeal Allen challenged (1) sufficiency of the evidence (self-defense/sudden quarrel), (2) denial of a new trial for alleged juror misconduct and exclusion of exhibit 300, and (3) ineffective assistance of trial counsel for not calling Beall and not objecting to the pathologist’s testimony. The Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Allen)	Held
Sufficiency of evidence: murder vs. self-defense	Evidence (messages, Allen’s statements, witness testimony, shots fired while Torres partially exiting) supports purposeful killing with premeditated malice	Allen acted in reasonable and good-faith self-defense or under sudden quarrel provocation	Conviction affirmed; viewing evidence in prosecution’s favor, a rational juror could find deliberate, premeditated murder (self-defense rejected)
Juror misconduct / extraneous information exception (§ 27-606(2))	Juror comments about the Torres family were intradeliberational/internal prejudices, not extraneous information	Juror affidavit showed extraneous, prejudicial information (fear of Torres family) that should be admissible and warrant a new trial	Exhibit 300 was not extraneous information under § 27-606(2); exclusion proper and no new trial warranted
Court’s postverdict inquiry / recall of jurors	Court provided an opportunity to present evidence at the new-trial hearing and was not required to recall jurors absent admissible proof of serious misconduct	Trial court should have recalled jurors and further investigated after juror affidavit suggested intimidation	No abuse of discretion: defense offered no admissible evidence of serious misconduct and did not request juror recall; court’s denial of new trial upheld
Ineffective assistance of counsel (failure to call Beall; no objection to pathologist)	Counsel’s choices were reasonable or record is insufficient to evaluate strategy on direct appeal; pathologist’s testimony was admissible	Counsel erred by not calling Beall (key eyewitness) and not objecting to Linde’s testimony and autopsy photos	On record: objection to Linde lacked merit (experts may rely on autopsy reports/photos); failure-to-call-Beall claim cannot be resolved on direct appeal (record insufficient); no reversible ineffective-assistance error found

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)
Pena‑Rodriguez v. Colorado, 580 U.S. 206 (2017) (racial‑bias juror statements exception to no‑impeachment rule)
Tanner v. United States, 483 U.S. 107 (1987) (policy reasons for protecting jurors’ deliberative privacy)
U.S. v. Krall, 835 F.2d 711 (8th Cir. 1987) (juror’s speculative fear of outside retaliation is internal, not extraneous)
State v. Steinmark, 201 Neb. 200 (1978) (juror’s pretrial personal knowledge relevant to factual dispute can be extraneous)
State v. Stricklin, 290 Neb. 542 (2015) (trial court’s obligations on juror‑misconduct allegations and hearings)