State v. Custer
298 Neb. 279
| Neb. | 2017Background
- On Nov. 3, 2012, Jason Custer shot and killed Adam McCormick after prior threats and text exchanges; Custer claimed self-defense at trial.
- Custer was convicted by a jury of first-degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person; sentenced to consecutive prison terms, and convictions affirmed on direct appeal.
- Custer filed a pro se postconviction motion alleging multiple instances of ineffective assistance of trial counsel and sought appointment of counsel; the State moved to dismiss without an evidentiary hearing.
- The district court denied postconviction relief without an evidentiary hearing and denied appointment of counsel; Custer appealed that denial.
- The primary alleged deficiencies: counsel’s cross-examination of witnesses (a pathologist, the main eyewitness Fields, and Officer Bush), failure to call a former counsel (Breen), failure to object at critical points (including closing arguments and impeachment questions), and errors in jury instructions and verdict forms.
Issues
| Issue | Custer's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance for cross-examining pathologist (Schilke) | Counsel highlighted that toxicology levels were below reported violent ranges and thus harmed self-defense theory | Schilke’s testimony still supported that methamphetamine can cause violent behavior at lower levels; questioning helped self-defense theory | No deficient performance; no relief granted |
| Ineffective assistance for attacking witness Fields (credibility) | Counsel’s impeachment led Custer to change his testimony and prejudiced defense | Any deficiency did not prejudice outcome; knife incident predated shooting and did not establish fear at shooting time | No prejudice shown; claim fails |
| Failure to call prior counsel (Breen) as witness | Breen would have corroborated Custer’s original self-defense account and shown trial counsel caused him to change testimony | Custer alleged only conclusions and did not specify Breen’s expected testimony | Allegations insufficient; no relief |
| Failure to object to prosecutorial statements and other trial errors | Counsel failed to object to purported misconduct and evidentiary errors that undermined defense | Prosecutor’s remarks were permissible inferences; many claims were not pleaded or lacked merit; some were addressed on direct appeal | No deficient performance or no prejudice; prosecutorial remarks not misconduct |
| Jury instructions & verdict form errors | Counsel failed to secure proper self-defense instruction and verdict forms, and misdefined premeditation | Jury instructions adequately presented self-defense and applicable law; many instruction claims not raised below | Instructions sufficient; no justiciable error |
| Denial of appointment of postconviction counsel | Postconviction proceeding is a critical stage necessitating counsel | No constitutional right to counsel in state postconviction; appointment discretionary and unnecessary when petition has no justiciable issues | No abuse of discretion in denying counsel |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- State v. Custer, 292 Neb. 88 (2015) (direct appeal opinion describing facts and addressing some trial issues)
- State v. Gonzales, 294 Neb. 627 (2016) (standards for assessing prosecutorial comments and whether they express personal belief vs. evidence-based inference)
- State v. Miller, 281 Neb. 343 (2011) (discussing self-defense instruction principles)