State v. Poe, 292 Neb. 60

Ryan L. Poe was convicted of first-degree felony murder and use of a deadly weapon for the 2004 killing of Trever Lee; the State’s case relied principally on accomplice Antwine Harper; no physical evidence tied Poe to the crime.
At trial Harper testified Poe admitted and described the killing; Harper initially denied involvement and said he identified Poe after police threatened arrest.
Poe claimed postconviction that trial counsel Thomas Riley was ineffective for failing to impeach Harper with a statement Harper allegedly made to Poe’s then-girlfriend, Michelle Hayes, that Poe was innocent.
On direct appeal and initial postconviction proceedings, the Nebraska Supreme Court remanded for an evidentiary hearing to resolve whether Hayes told Riley that Harper said Poe was innocent.
At the remand hearing, Hayes testified she told Riley Harper said Poe was innocent; Riley denied remembering that statement and said he would have followed up if told; Poe submitted an affidavit from his mother, Velma, recounting Hayes’ statement, but the court sustained the State’s hearsay objection to the portion reciting Harper’s alleged statement.
The district court found Hayes did not tell Riley the alleged statement and denied relief; the Nebraska Supreme Court affirmed, holding any error in excluding Velma’s hearsay did not prejudice Poe and the court’s factual finding was not clearly erroneous.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Velma’s affidavit paragraph recounting Hayes’ report of Harper’s statement	Velma’s paragraph was offered not for truth but to show Riley knew Harper told Hayes Poe was innocent (nonhearsay purpose)	The paragraph is hearsay and the court properly excluded it	Exclusion harmless: substantially similar testimony (Hayes, Poe) was admitted; no prejudice
Whether Riley was ineffective for failing to use Hayes’ alleged report to impeach Harper	Poe: Riley performed deficiently by not impeaching Harper with Hayes’ account; this prejudiced the defense	State: Riley did not receive such information; no deficient performance or prejudice	Court: Finding that Hayes did not tell Riley is not clearly erroneous; no ineffective assistance shown

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two-prong test for ineffective assistance of counsel)
State v. Poe, 276 Neb. 258 (Neb. 2008) (direct appeal affirming convictions)
State v. Poe, 284 Neb. 750 (Neb. 2012) (remanding for evidentiary hearing on ineffective-assistance claim)
State v. Armstrong, 290 Neb. 991 (Neb. 2015) (appellate standard for review of factual findings in postconviction evidentiary hearings)
State v. Hale, 290 Neb. 70 (Neb. 2015) (definition and admissibility principles for hearsay)
State v. Crawford, 291 Neb. 362 (Neb. 2015) (application of Strickland in Nebraska)