State v. Johnson, 298 Neb. 491

Background

Craig A. Johnson was tried and convicted by a jury of first-degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person for the killing of his girlfriend, April Smith; physical evidence included April’s blood on a knife, Johnson’s fingerprint on a trash bag used on the body, and April’s blood on Johnson’s clothing and shoes.
Johnson was arrested in Michigan driving April’s van; investigators found stained clothing and shoes with April’s DNA and a fingerprint matching Johnson on a trash bag; autopsy indicated stab wound and/or strangulation contributed to death.
At trial Johnson did not testify; he was sentenced to consecutive lengthy prison terms. On direct appeal the Nebraska Supreme Court rejected most claimed errors, found one evidentiary error harmless, and otherwise affirmed.
Johnson filed a verified postconviction motion alleging multiple instances of ineffective assistance of trial and appellate counsel (voir dire, directed verdict, closing argument, deprivation of right to testify, appellate counsel’s handling of photo issue) and a speedy-trial claim.
The district court denied postconviction relief without an evidentiary hearing, finding the motion failed to allege facts showing constitutional violations and that the record affirmed no relief was due. Johnson appealed.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (State)	Held
Trial counsel ineffective for failing to object during voir dire to prosecutor remarks	Prosecutor’s comments (e.g., no "gun play," not seeking death penalty, evidence "not pretty," defendant has "obligation" to test evidence) were improper and counsel should have objected	Remarks were appropriate, contextual, based on evidence and trial logistics, and jury instructions cured any risk	Not ineffective; remarks were not improper and any objection would not have changed outcome
Counsel ineffective for failing to argue directed verdict	Counsel failed to press legal argument after moving for directed verdict on counts II & III	Sufficient evidence existed (statements, fight prior, thuds heard, autopsy, DNA, fingerprints, bloodstains, Johnson found in van with evidence) so argument would be futile	Not ineffective; evidence supported submission to jury so no prejudice from lack of argument
Counsel ineffective for failing to object to prosecutor’s closing arguments	Closing unfairly inflamed jury and improperly attacked defense tactics/shifted focus	Prosecutor’s remarks were reasonable inferences from evidence and reiterated permissible arguments; jury was properly instructed	Not ineffective; remarks were grounded in evidence and did not constitute misconduct
Counsel deprived Johnson of his right to testify	Johnson asserts he would have testified to innocence and explained travel to Michigan but counsel waived/blocked his testimony	Allegations are conclusory; record shows no specific facts that counsel interfered or that failure to testify was unreasonable strategy	Not entitled to hearing; claims are general conclusions and fail to show prejudice
Appellate counsel ineffective for mischaracterizing photo issue on direct appeal	Appellate counsel raised cumulative, gruesome autopsy photo claim but argued crime-scene photos instead, preserving an arguable error	Autopsy photos were necessary to explain pathologist testimony and cause of death; issue lacked merit	Not ineffective; preserving/raising the claim would not likely have changed appeal outcome
Speedy-trial violation	Delay violated constitutional speedy-trial right	Claim could and should have been raised on direct appeal; failure to raise bars postconviction	Procedurally barred; cannot raise on postconviction review

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
Batson v. Kentucky, 476 U.S. 79 (1986) (prohibition on racial discrimination in juror strikes)
State v. Dubray, 289 Neb. 208 (2014) (standards on summation and permissible inferences; counsel’s summation tactics analyzed)
State v. Vela, 297 Neb. 227 (2017) (postconviction standards for evidentiary hearings and claims review)
State v. Betancourt-Garcia, 295 Neb. 170 (2016) (directed verdict standard and appellate review of sufficiency)