State v. Parnell, 305 Neb. 932

Background

Tracy Parnell was convicted by a jury of first‑degree murder, attempted first‑degree murder, two counts of use of a deadly weapon, and possession of a weapon by a prohibited person; he received life plus consecutive lengthy terms.
Victim testimony (Nakia Johnson) tied the shooting to a blue Nissan Altima; Jasmine Nero (owner’s acquaintance and mother of Parnell’s child) later admitted lying to police and the car contained an item with Parnell’s thumbprint.
The State’s expert (FBI analyst William Shute) testified from call detail records that Parnell’s phone was in an overlap area of towers 201 and 729 at the shooting time.
Defense consultant Michael O’Kelly told police a drive test was needed for precise mapping and later performed one, opining the towers did not overlap and placing the phone within 1–2 miles of the scene; O’Kelly did not testify at trial, but emails between O’Kelly and prosecutors existed.
On direct appeal the Nebraska Supreme Court rejected Brady and new‑evidence/new‑trial claims and held trial counsel was not ineffective for not calling O’Kelly because his opinions still placed Parnell near the scene.
In postconviction proceedings Parnell alleged prosecutorial misconduct and ineffective assistance of trial and appellate counsel (including that appellate counsel failed to raise trial counsel’s failure to introduce the emails); the district court dismissed as procedurally barred and this Court affirmed, finding one appellate‑ineffectiveness claim not barred but denying relief on the merits.

Issues

Issue	Parnell's Argument	State's Argument	Held
Are Parnell’s postconviction claims procedurally barred?	Most claims cannot be raised in postconviction; but appellate‑counsel ineffectiveness claims may be raised now.	Claims were known or knowable on direct appeal and therefore barred.	Most claims were procedurally barred; one appellate‑ineffectiveness claim (failure to raise trial counsel’s failure to submit emails) was not barred.
Was appellate counsel ineffective for failing to raise trial counsel’s failure to introduce the emails?	Appellate counsel should have raised that trial counsel failed to introduce emails showing O’Kelly’s data more reliable, which might have changed the outcome.	Even if not raised, no prejudice: trial counsel was not ineffective and the emails would not have produced a reasonable probability of a different outcome.	Not procedurally barred, but rejected on the merits for lack of prejudice.
Was trial counsel ineffective for not calling O’Kelly or introducing the emails?	Failure to call O’Kelly and submit emails deprived Parnell of exculpatory expert evidence.	O’Kelly’s opinions still placed Parnell near the scene and would have incriminated him; strategic decision to avoid calling O’Kelly was reasonable.	Trial counsel was not ineffective; decision was strategic and calling O’Kelly likely would not have produced a different result.
Did the prosecution commit Brady violation or prosecutorial misconduct by allowing Shute to testify despite O’Kelly’s contrary views?	Prosecutors knew Shute’s testimony was inaccurate and withheld exculpatory material (emails/opinions).	Disclosure was timely (one week before trial), emails were not exculpatory in Brady sense, and any dispute was not outcome‑determinative.	Brady/ misconduct claims were procedurally barred (or without merit on direct appeal); timely disclosure and witness testimony did not warrant relief.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance and prejudice)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory evidence)
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016) (direct appeal resolving O’Kelly/Shute disputes and rejecting trial‑counsel ineffectiveness)
State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002) (procedural bar principles when different counsel on appeal)
State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017) (appellate‑counsel ineffectiveness may be raised postconviction when not available on direct appeal)