State v. Custer
298 Neb. 279
| Neb. | 2017Background
- In 2012, Jason Custer shot and killed Adam McCormick; 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; sentences were affirmed on direct appeal (State v. Custer).
- Custer filed a pro se postconviction motion asserting multiple ineffective-assistance-of-counsel claims and requesting appointed counsel.
- Alleged failures by trial counsel included: improper cross-examination of the State’s pathologist (Dr. Peter Schilke), mishandling credibility attacks on State witness Billy Fields, inadequate cross of Officer James Bush regarding weapons at a third party's residence, failure to call prior attorney Kelly Breen, failure to object at critical points (including prosecutorial statements), and defective jury instructions on self-defense and related verdict forms.
- The district court dismissed Custer’s motion without an evidentiary hearing, concluding his allegations were either conclusory or failed to show prejudice under Strickland.
- Custer appealed the denial of postconviction relief and the denial of appointment of counsel; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Custer) | Defendant's Argument (State/District Court) | Held |
|---|---|---|---|
| 1) Cross-exam of Dr. Schilke (toxicology testimony) | Counsel improperly highlighted that McCormick’s meth level was lower than levels tied to violent behavior, prejudicing self-defense theory | The testimony that methamphetamine can cause violent behavior even at lower levels supported Custer’s self-defense theory; counsel’s questioning was reasonable | No deficient performance; no relief granted |
| 2) Handling of Billy Fields and other witness impeachment | Counsel’s attempts to discredit Fields and other witnesses led to contradicted testimony and harmed Custer’s defense | Any alleged deficiency did not prejudice outcome because the disputed events did not materially alter the self-defense timeline and relevant evidence was before the jury | No prejudice shown; ineffective-assistance claims fail |
| 3) Jury instructions and verdict form (self-defense, manslaughter, premeditation) | Counsel failed to propose correct self-defense instruction, omitted self-defense option on the verdict form, and used incorrect definitions | Jury instructions included self-defense language (NJI2d Crim. 7.3 material) and allowed acquittal if State failed to prove element; specifics not pleaded or shown to be prejudicial | Instructions were adequate; no relief granted |
| 4) Appointment of postconviction counsel | Postconviction stage was a critical stage entitling Custer to counsel | No constitutional right to counsel in state postconviction proceedings; appointment discretionary and unnecessary where claims lack merit | Denial of appointed counsel was not an abuse of discretion |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Custer, 292 Neb. 88 (direct appeal affirming convictions)
- State v. Watson, 295 Neb. 802 (postconviction pleading and review standard)
- State v. Starks, 294 Neb. 361 (postconviction relief standards)
- State v. Phelps, 286 Neb. 89 (when evidentiary hearing is required in postconviction proceedings)
- State v. Miller, 281 Neb. 343 (instructions / self-defense-related principles)
- State v. Gonzales, 294 Neb. 627 (limits on prosecutor argument and review of context)