State v. Taylor, 300 Neb. 629

Background

Taylor was convicted of first-degree murder and use of a deadly weapon; after a direct-appeal remand and retrial he was resentenced to 40–40 years for murder (he was a juvenile at the time of the offense).
Taylor filed a pro se postconviction motion alleging ineffective assistance of trial counsel in three respects: (1) failure to preserve/suppress evidence from an alleged unconstitutional stop/arrest; (2) failure to timely object to hearsay about the general location where a gun was found; and (3) failure to object to several alleged prosecutorial improprieties in closing argument.
At trial officers observed a man matching a broadcast description near a car; the man ran, discarded a brown shirt later identified by a witness, was chased and arrested, and the shirt and other evidence were admitted.
On direct appeal (Taylor I and Taylor II) some issues were previously litigated: a Miranda statement and coerced DNA were suppressed pretrial; the trial court denied suppression of the stop/arrest; admission of testimony identifying the precise location of the gun was held harmless error on direct appeal.
The district court denied postconviction relief without an evidentiary hearing and refused to appoint counsel; Taylor appealed. The Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument (Taylor)	Defendant's Argument (State)	Held
1) Suppression of evidence from detention/arrest	Trial counsel was ineffective for failing to object/preserve suppression of evidence obtained after an unconstitutional stop and arrest.	Trial court correctly ruled stop/arrest constitutional; suppression motion would have failed on appeal, so no prejudice.	Held: No ineffective assistance; stop/arrest lawful, no prejudice.
2) Hearsay re: location of gun	Counsel was ineffective for not objecting earlier to Copeland’s testimony about the general location where the gun was found.	Copeland’s general-location testimony was cumulative and other independent evidence supported the verdict; no reasonable probability of a different result.	Held: No ineffective assistance; admission did not undermine confidence in verdict.
3) Prosecutor’s closing arguments	Counsel was ineffective for not objecting/moving for mistrial based on five alleged improprieties (personal belief, misstating ID, asserting defendant held gun while running, vouching, Golden Rule-type argument).	Prosecutor drew reasonable inferences; comments did not mislead or unduly influence jury and were not vouching or Golden Rule misconduct.	Held: No prosecutorial misconduct; counsel not ineffective for failing to object.
4) Appointment of postconviction counsel	Court erred in denying appointment of counsel for indigent defendant.	Appointment is discretionary; where claims are without merit, denial is not an abuse of discretion.	Held: Denial of appointed counsel was not an abuse of discretion.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing deficient-performance and prejudice test for ineffective assistance)
Miranda v. Arizona, 384 U.S. 436 (Miranda warnings and suppression of statements taken in custodial interrogation)
State v. Taylor, 282 Neb. 297 (Taylor I) (direct-appeal decision addressing pretrial rulings)
State v. Taylor, 287 Neb. 386 (Taylor II) (direct-appeal decision addressing hearsay/location and other issues)
State v. Vela, 297 Neb. 227 (postconviction standards requiring factual allegations that, if proven, show constitutional infringement)
State v. Botts, 299 Neb. 806 (two-part review of suppression rulings: factual findings for clear error, constitutional application de novo)