State v. Armstrong, 290 Neb. 991

Background

Philip Armstrong was convicted of sexual assault of two girls he babysat; convictions affirmed on direct appeal, then he filed for postconviction relief alleging ineffective assistance of trial counsel.
Pretrial orders permitted defense counsel (and an expert) to view Project Harmony videotaped interviews of the child victims; defense counsel provided copies to Armstrong, who shared them with family (wife, daughter, son-in-law, granddaughter, etc.).
At trial the son-in-law disclosed he had viewed the interviews; the State argued this violated Neb. Rev. Stat. § 29-1926 and moved (with defense counsel’s agreement) to strike the son-in-law’s testimony and exclude testimony of other family witnesses; the jury was told to disregard the son-in-law’s testimony and never heard the wife or daughter.
Defense counsel testified he made the agreement without researching whether a violation or sanction was legally required, believing a mistrial would likely be granted and that excluded witnesses would be barred on retrial; counsel felt threatened by possible criminal/ethical exposure and did not seek a continuance.
The postconviction court found counsel’s conduct deficient and that Armstrong was prejudiced because the missing wife and son-in-law testimony was central to credibility and not merely cumulative; it vacated convictions and ordered a new trial.
The Nebraska Supreme Court affirmed, holding counsel’s uninformed agreement to strike/exclude witnesses (and failure to seek a continuance or research the law) was ineffective assistance and caused prejudice undermining confidence in the verdict.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was defense counsel ineffective for agreeing to strike/exclude family witnesses after disclosure they viewed interviews?	State: counsel’s choice was reasonable strategic decision given novel circumstances and risk of mistrial.	Armstrong: counsel acted without researching law, capitulated under threat, abandoning strategy.	Held: Counsel was deficient for failing to research or seek continuance; agreement was not a reasonable strategy.
Did counsel have a conflict of interest that affected performance?	State: no actual conflict shown; actions were tactical.	Armstrong: counsel’s interest in avoiding criminal/ethical exposure conflicted with client’s right to witness testimony.	Held: An actual conflict (counsel’s self-protective interest) adversely affected performance.
Was Armstrong prejudiced by exclusion/striking of witnesses?	State: excluded testimony would have been cumulative to granddaughter and thus trivial.	Armstrong: wife and son-in-law would have significantly bolstered credibility and reduced opportunity to commit acts.	Held: Prejudice shown; excluded testimony was central to credibility and not merely cumulative — reasonable probability of different outcome.
Did Armstrong waive ineffective-assistance claim by accepting judge’s colloquy and proceeding?	State: implied waiver of objections.	Armstrong: waiver invalid because advice was deficient and he relied on counsel’s poor advice.	Held: No waiver — acceptance was based on ineffective counsel’s advice and not an informed waiver.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
Mickens v. Taylor, 535 U.S. 162 (2002) (presumed prejudice where actual conflict of interest adversely affects performance)
State v. Poe, 284 Neb. 750 (2012) (prejudice inquiry and assessment of effect of errors on outcome)
State v. Canbaz, 270 Neb. 559 (2005) (standard for reviewing mixed questions in postconviction ineffective-assistance claims)