State v. DeJong, 292 Neb. 305

Susan M. DeJong was convicted by a jury of first‑degree murder and using a deadly weapon; sentenced to life plus 50–50 years consecutively. Her convictions and sentences were affirmed on direct appeal (State v. DeJong).
Facts at trial: Tom DeJong suffered extensive blunt‑force injuries; medical testimony concluded homicide. Blood evidence, hammers in Susan’s truck with mixed DNA, instant messages expressing hatred toward Tom, and Susan’s hospital/police statements supported the State’s theory.
Pretrial rulings: the district court suppressed some statements but admitted others; it also admitted limited prior‑bad‑acts evidence under Neb. Rev. Stat. §27‑404(2). The direct appeal found some suppression errors harmless and upheld convictions.
Postconviction: Susan (pro se) filed a motion claiming ineffective assistance of counsel (failure to investigate/cross‑examine and to raise insufficiency on appeal), erroneous admission of prior‑bad‑acts and other evidence, actual innocence, and error denying a new trial. The district court denied relief without an evidentiary hearing.
This appeal challenges the denial of postconviction relief and whether an evidentiary hearing was required.

Issue	DeJong's Argument	State's Argument	Held
Ineffective assistance — failure to investigate/cross‑examine witnesses	Counsel failed to investigate and to ask key questions that would show inconsistencies and portray DeJong sympathetically	Allegations are speculative; DeJong did not identify facts that would likely change outcome	Denied — claims speculative; no factual allegations showing deficient performance or prejudice requiring a hearing
Ineffective assistance — failure to raise insufficiency on direct appeal	Counsel failed to argue evidence was insufficient to support convictions	Record and direct appeal already considered sufficiency; voluminous evidence supports convictions	Denied — record affirmatively shows no prejudice; no relief warranted
Admission of prior‑bad‑acts evidence at trial	Admission violated due process, presumption of innocence, fair trial and privacy	Issue was litigated on direct appeal and deemed harmless error	Procedurally barred on postconviction review; direct appeal considered and held any error harmless
Actual innocence claim	No eyewitnesses and allegedly weak DNA/physical evidence; therefore actually innocent	Convincing cumulative evidence (forensic, medical, physical, statements, motive, opportunity) disproves claim	Denied — did not meet extraordinarily high threshold for actual innocence; no hearing required

Strickland v. Washington, 466 U.S. 668 (establishing two‑part test for ineffective assistance of counsel)
Herrera v. Collins, 506 U.S. 390 (describing the extraordinarily high standard for actual‑innocence claims)
State v. DeJong, 287 Neb. 864 (2014) (direct‑appeal opinion affirming convictions and addressing evidentiary and Miranda issues)
State v. Thorpe, 290 Neb. 149 (discussing standards for ineffective‑assistance review and procedural matters)
State v. Huston, 291 Neb. 708 (postconviction pleading and hearing standards)
State v. Crawford, 291 Neb. 362 (ineffective assistance and right to fair trial principles)
State v. Vanderpool, 286 Neb. 111 (speculative allegations insufficient for postconviction relief)
State v. Fox, 286 Neb. 956 (first opportunity rules when same counsel handled trial and appeal)
State v. Phelps, 286 Neb. 89 (actual innocence and postconviction considerations)