State v. Foster, 300 Neb. 883

Background

In 2008, Victor Henderson was fatally shot and four others wounded outside an Omaha bar; Jeremy D. Foster and co-defendant Darrin D. Smith were tried together and convicted of first-degree murder, multiple counts of assault, and use of a deadly weapon; both received life plus lengthy consecutive terms.
The evidence was disputed as to which defendant fired the fatal shots; multiple witnesses implicated Foster, others implicated Smith, and some pointed to third parties.
On direct appeal this Court affirmed Foster’s convictions and rejected claims that joinder and waiver of jury sequestration were reversible error.
Foster filed a postconviction motion (represented by the same counsel from trial and appeal) alleging numerous instances of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, jury instruction error, and trial error; the district court denied relief without an evidentiary hearing.
Foster appealed the denial, arguing trial and appellate counsel were deficient and that the court should have granted an evidentiary hearing; the Nebraska Supreme Court affirmed the denial.

Issues

Issue	Plaintiff's Argument (Foster)	Defendant's Argument (State)	Held
Ineffective assistance of trial counsel for failing to call/interview listed witnesses	Counsel failed to secure testimony that would have supported defense and changed the outcome	Foster’s allegations were vague; he did not specify the proposed testimony or show reasonable probability of a different result	Denied — claims conclusory; no specific factual allegations, so no hearing warranted
Ineffective assistance re: plea offer communication	Counsel failed to communicate Foster’s acceptance before the offer expired, depriving him of plea benefits	Foster did not allege the terms/benefits of the plea offer or compare them to trial outcome	Denied — insufficient specificity to show prejudice
Jury instruction errors (Instruction No. 9 and failure to give "mere presence")	Instruction No. 9 misstated presumption of innocence; counsel should have requested a mere-presence instruction	Instructions read as whole correctly stated law; mere-presence not supported by evidence	Denied — instruction adequate under precedent; mere-presence not supported by evidence
Ineffective assistance of appellate counsel for not raising various trial errors on appeal	Appellate counsel omitted severance, limiting-instruction parity, State impeachment, burden-shift, and instruction issues	Most issues were either raised on direct appeal, insufficiently pled, or would not have produced a different outcome	Denied — layered claims fail because trial counsel was not shown ineffective and no reasonable probability of a different outcome

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-part test)
State v. Foster, 286 Neb. 826 (direct appeal affirming convictions)
State v. Collins, 299 Neb. 160 (postconviction standard: motion and record may show entitlement to no relief)
State v. Dubray, 294 Neb. 937 (postconviction pleading requirements for evidentiary hearing)
State v. Henry, 292 Neb. 834 (jury-instruction analysis and precedent approving similar presumption-of-innocence language)
State v. McCurry, 296 Neb. 40 (mistrial and prejudice standards)