State v. Lessley
978 N.W.2d 620
Neb.2022Background
- Lessley was convicted after a 5-day jury trial of first-degree (felony) murder, two counts of using a deadly weapon to commit a felony, first-degree assault, and possession of a firearm by a prohibited person based on DNA on a bat/laptop, a matching shoeprint, GPS records for his Suburban, witness descriptions, and other physical evidence.
- The State removed the premeditated murder theory at trial and proceeded on felony murder; jury convicted on the charged counts; original sentences were later corrected on direct appeal and remanded for resentencing consistent with the original terms.
- Lessley filed a timely, verified motion for postconviction relief asserting multiple claims: ineffective assistance of trial counsel (waiver of speedy trial, failure to investigate/interview alibi witnesses, preventing Lessley from testifying about an alleged affair and altercation, failure to present experts, failure to object to amendment), ineffective assistance of appellate counsel, and trial-court errors (search warrant/suppression, jury selection, jury instructions, and sufficiency of evidence).
- The district court denied the postconviction motion without an evidentiary hearing, finding most claims procedurally barred, insufficiently pleaded, or affirmatively refuted by the record.
- On appeal, the Nebraska Supreme Court reviewed de novo whether the verified motion alleged facts that, if proved, would entitle Lessley to relief or whether the record affirmatively shows no relief was warranted, and it affirmed the denial.
Issues
| Issue | Lessley’s Argument | State/Respondent’s Argument | Held |
|---|---|---|---|
| Whether district court erred denying appointment of postconviction counsel or ruling without allowing the State to respond | Lessley argued court should appoint counsel and that the State needed to respond so the record would be complete | The State had no obligation to respond before the court independently determines whether a hearing is warranted under § 29-3001(2) | Not considered/denied — court may rule without ordering State response; appellant bears the burden to present a complete record |
| Whether district court erred by denying an evidentiary hearing on postconviction claims | Lessley contended his motion alleged facts meriting a hearing on multiple IAC and trial-error claims | Court and State maintained the motion alleged only conclusions, was procedurally barred on issues that could have been raised earlier, or was refuted by the record | Denied — allegations were either procedurally barred, conclusory/insufficient, or affirmatively refuted |
| IAC — failure to investigate/interview alibi witness (Cordell Westbrook) | Westbrook would have testified he was with Lessley from 1:30–4:30 a.m., which would support acquittal | Allegation lacked specifics (no location) and did not establish an alibi inconsistent with the crimes; pleading was conclusory | Denied — insufficiently specific; not shown to be exculpatory/alibi evidence |
| IAC — counsel prevented Lessley from testifying about affair and altercation | Lessley claimed counsel refused to let him testify about an extramarital affair and an altercation that would explain circumstantial evidence | No factual allegations showing counsel interfered with his right to testify or that advice was unreasonable; lack of detail about proposed testimony | Denied — failed to plead facts showing deficient performance or prejudice |
| IAC — failure to present serology/forensic expert | Lessley claimed an expert would have shown mixed blood/identified flaws in State testing and undermined evidence | Many assertions were not pleaded in the verified motion; even as pleaded, it was not shown how such testimony would have changed the outcome | Denied — either not raised in motion or insufficient to show prejudice |
| IAC — failure to object to amendment of information on first day of trial | Lessley argued amendment prejudiced him by giving no time to prepare for new charges | Amendment removed the premeditation theory; it did not add new charges or alter defenses; record shows no prejudice | Denied — record affirmatively refutes prejudice from the amendment |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
- State v. Cullen, 311 Neb. 383 (2022) (standards for postconviction motions and de novo review when hearings are denied)
- State v. Jaeger, 311 Neb. 69 (2022) (postconviction pleading specificity and when evidentiary hearings are required)
- State v. Munoz, 309 Neb. 285 (2021) (witness-testimony allegations must be specific to warrant a hearing)
- State v. Stricklin, 300 Neb. 794 (2018) (adequately pleaded alibi with corroborating details can require an evidentiary hearing)
- State v. Burries, 310 Neb. 688 (2022) (State is not required to respond before court determines whether a postconviction hearing is warranted)
- State v. Lessley, 301 Neb. 734 (2018) (Lessley direct appeal affirming convictions and addressing sentencing error)