State v. Foster
300 Neb. 883
Neb.2018Background
- Foster and codefendant Darrin D. Smith were tried jointly for the November 2008 shootings at the American Legion; Victor Henderson was killed and others wounded. The State argued Foster was the shooter and Smith aided and abetted; evidence as to the shooter was conflicted.
- After a 2-week jury trial, both defendants were convicted of first degree murder, multiple assaults, and weapons counts; Foster received life plus lengthy consecutive terms.
- Foster’s direct appeal was denied by this court, which held the joint trial and jury-sequestration waiver were proper.
- Foster filed a counseled postconviction motion alleging numerous instances of ineffective assistance of trial and appellate counsel, prosecutorial error, and trial-court error; the district court denied relief without an evidentiary hearing.
- On appeal from the denial of postconviction relief, Foster argued (pro se) that trial and appellate counsel were deficient in multiple respects and that the court erred by refusing an evidentiary hearing. The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for failing to call/interview witnesses and preserve/raise objections | Foster: counsel did not investigate or call key alibi/identification witnesses and failed to object/preserve issues, request "mere presence" instruction, or move mistrial | State/District Court: counsel reasonably pursued cross-examination strategy; Foster’s allegations are conclusory and fail to specify testimony or demonstrate prejudice | Held: No deficient performance shown; allegations lack the required specificity and do not establish a reasonable probability of a different outcome |
| Trial counsel ineffective regarding plea-offer communication | Foster: counsel failed to communicate acceptance of a plea offer before it expired | State: Foster failed to allege the terms or comparative benefit of the plea offer | Held: Insufficient detail about the offer; no hearing required |
| Jury instruction No. 9 (presumption of innocence) and failure to give "mere presence" instruction | Foster: instruction wording undermined presumption of innocence; counsel should have requested "mere presence" instruction | State: instruction read as a whole correctly stated the law; evidence did not support a mere-presence instruction | Held: Instruction proper and covered substance of standard NJI language; mere-presence instruction not warranted by evidence |
| Ineffective assistance of appellate counsel for not raising various trial errors on direct appeal | Foster: appellate counsel failed to raise severance, limiting-instruction parity, improper impeachment of State witnesses, burden-shifting, instruction No. 9, and mere-presence instruction | State: most issues were raised or lack merit; where not raised, the underlying trial-counsel claims were not shown to be ineffective, so no prejudice from appellate counsel | Held: No reasonable probability the outcome would differ; layered ineffective-assistance claims fail because trial counsel was not shown to be ineffective |
| Denial of evidentiary hearing under Neb. Rev. Stat. § 29-3001 | Foster: district court abused discretion in refusing a hearing; postconviction counsel failed to object | State: Foster’s claims are conclusory, lack specificity, and postconviction counsel’s alleged failure to object caused no prejudice | Held: Denial affirmed because Foster failed to allege facts that, if proved, would establish constitutional violations under Strickland |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance test)
- State v. Henry, 292 Neb. 834 (Neb. 2016) (addresses propriety of presumption-of-innocence instruction)
- State v. Duncan, 265 Neb. 406 (Neb. 2003) (approves instruction identical to instruction No. 9)
- State v. Dominguez, 290 Neb. 477 (Neb. 2015) (limits use of prior inconsistent statements for impeachment when used as subterfuge to introduce substantive evidence)
- State v. McCurry, 296 Neb. 40 (Neb. 2017) (standards for mistrial and jury instruction review)