State v. Johnson, 298 Neb. 491

Background

Craig A. Johnson was 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 2011 killing of his girlfriend, April Smith; physical and forensic evidence (blood on a knife and on Johnson’s clothing and shoes, Johnson’s fingerprint on a trash bag, and his possession of April’s van) supported the conviction.
Johnson did not testify at trial and was sentenced to consecutive prison terms, including life for murder.
On direct appeal the Nebraska Supreme Court rejected several claims, found one evidentiary error harmless, and affirmed the convictions.
Johnson filed a verified postconviction motion (his first opportunity to raise ineffective-assistance claims because same counsel represented him at trial and on appeal) alleging multiple instances of ineffective assistance of trial and appellate counsel and a speedy-trial violation.
The district court denied the motion without an evidentiary hearing, finding Johnson’s allegations insufficient and the record affirmatively showing no entitlement to relief; Johnson appealed and the Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (State)	Held
Ineffective assistance during voir dire (failure to object to prosecutor’s comments)	Prosecutor’s remarks (no gun play, not seeking death penalty, evidence “not pretty,” defendant has “obligation” to test State’s evidence) were improper; counsel should have objected	Remarks were not improper or were harmless given context and jury instructions; counsel not deficient	Held: No ineffective assistance — remarks were proper or not prejudicial; no reasonable probability of different outcome given overwhelming evidence
Failure to argue motion for directed verdict	Counsel moved but did not argue; Johnson says counsel was ineffective	Record contained sufficient evidence on essential elements; argument would have been futile	Held: No ineffective assistance — evidence supported submission to jury, so lack of additional argument caused no prejudice
Failure to object to prosecutor’s closing (alleged inflammatory/blame-the-victim argument)	Closing arguments inflamed jury and diverted attention from insufficiency of evidence; counsel should have objected	Prosecutor’s inferences were supported by evidence and within permissible argument; jury instructions mitigated any risk	Held: No ineffective assistance — comments were reasonable inferences from evidence and not misconduct
Denial of right to testify (counsel prevented Johnson from testifying)	Johnson would have testified to deny guilt and explain travel to Michigan; counsel prevented/test tactics unreasonably waived right	Johnson’s motion contained only conclusory assertions without specific proffer of testimony; no showing of interference or prejudice	Held: No ineffective assistance — allegations were conclusory; no reasonable probability outcome would differ
Ineffective assistance on direct appeal (failure to raise autopsy-photograph/cumulative-photograph claim)	Appellate counsel assigned/grieved wrong photographs; failure to press cumulative/gruesome-photographs claim prejudiced appeal	Autopsy photographs were necessary to explain pathologist’s testimony and cause of death; claim lacked merit	Held: No ineffective assistance — issue lacked a reasonable probability of changing appeal outcome
Speedy-trial violation	Johnson alleges constitutional speedy-trial infringement	Claim could and should have been raised on direct appeal; procedurally barred in postconviction proceeding	Held: Procedurally barred — cannot raise on postconviction when available on direct appeal

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Batson v. Kentucky, 476 U.S. 79 (prohibition on race-based peremptory strikes)
State v. Vela, 297 Neb. 227 (standards for postconviction review and when evidentiary hearing required)
State v. Dubray, 289 Neb. 208 (prosecutorial argument and appellate counsel issues)
State v. Betancourt-Garcia, 295 Neb. 170 (directed verdict standard and evidence viewed in State’s favor)
State v. Nolan, 292 Neb. 118 (prosecutorial misconduct in closing-argument analysis)
State v. Iromuanya, 282 Neb. 798 (defendant’s right to testify and counsel’s advisory role)