State v. Glass, 905 N.W.2d 265

Background

Greg A. Glass was convicted in 1999 of second-degree murder and use of a firearm for the 1998 killing of his former employer; the jury returned guilty on murder and firearm counts.
At trial the jury was given a “step” instruction: it first considered second-degree murder and, if convinced beyond a reasonable doubt, was not required to consider sudden‑quarrel (voluntary) manslaughter.
Glass filed a postconviction motion (2012, amended) arguing (1) the step instruction violated due process under this court’s later decision in State v. Ronald Smith and (2) trial and appellate counsel were ineffective for several omissions (not calling a character witness, not retaining a ballistics/autopsy expert, and failing to convey a plea offer; appellate counsel failed to raise these claims on direct appeal).
The district court held an evidentiary hearing, found the Teague/Schriro retroactivity framework applied, concluded Ronald Smith announced a procedural (not substantive) rule and therefore was not retroactive on collateral review, and rejected the ineffective‑assistance claims as without prejudice.
The Nebraska Supreme Court affirmed: it held Ronald Smith announced a procedural jury‑instruction rule (not a new substantive constitutional rule or watershed procedural rule), Glass’s murder conviction was supported by sufficient evidence, and trial/appellate counsel were not shown to have rendered prejudicially deficient performance.

Issues

Issue	Glass’s Argument	State’s Argument	Held
Retroactive application of State v. Ronald Smith on collateral review	Ronald Smith announced a new rule that must be applied retroactively, invalidating the step instruction used at Glass’s trial	Ronald Smith announced a procedural rule; under Teague/Schriro it is not retroactive to final convictions	Not retroactive: Ronald Smith is a procedural jury‑instruction rule and does not apply on collateral review to final convictions
Due process / faulty jury instruction	The step instruction (requiring acquittal of murder before considering sudden‑quarrel manslaughter) and the manslaughter definition deprived Glass of due process	Even if the instruction was later deemed faulty, Glass’s conviction of second‑degree murder was supported by sufficient evidence and the instruction did not violate due process	No due process violation: sufficient proof supported the murder conviction despite the later‑deemed faulty instruction
Ineffective assistance — failure to call character witness	Trial counsel failed to call a witness to show victim’s violent character, which would have supported a manslaughter/self‑defense theory	The proposed witness would have been cumulative and not outcome‑determinative; counsel’s choices were reasonable	No prejudice: omission was not deficient in a way that undermines confidence in outcome
Ineffective assistance — expert, plea, and appellate counsel (layered claims)	Trial counsel failed to retain a ballistics/autopsy expert and failed to convey a plea offer; appellate counsel was ineffective for not raising these on direct appeal	No reasonable need shown for a defense expert; no credible evidence a plea offer existed; because trial counsel was not shown to be ineffective, appellate counsel’s failure to raise these claims caused no prejudice	Claims rejected: no deficient or prejudicial performance by trial counsel; therefore appellate counsel not prejudicially ineffective

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
Teague v. Lane, 489 U.S. 288 (retroactivity framework for new rules on collateral review)
Schriro v. Summerlin, 542 U.S. 348 (distinguishing substantive vs. procedural new rules; watershed exception narrow)
Montgomery v. Louisiana, 136 S. Ct. 718 (substantive rules apply retroactively; discussion of retroactivity principles)
State v. Smith, 282 Neb. 720 (State v. Ronald Smith) (clarified manslaughter intent and condemned step instruction practice)
State v. Trice, 286 Neb. 183 (applied Ronald Smith on direct review)
State v. Burlison, 255 Neb. 190 (pre‑Ronald Smith precedents on murder/malice/ provocation)
State v. Harrison, 293 Neb. 1000 (Ronald Smith did not create a new constitutional claim for tolling/timeliness under postconviction statutes)
State v. Mantich, 287 Neb. 320 (adopted Teague/Schriro retroactivity test in Nebraska)
State v. Dubray, 294 Neb. 937 (layered ineffective‑assistance framework: appellate ineffectiveness assessed after trial counsel’s effectiveness)