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CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Wright, J., participating on briefs.
State of Nebraska, appellee, v.
Terrell T. Thorpe, appellant.
___ N.W.2d ___
Filed February 13, 2015. No. S-14-495.
1. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
3. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error.
5. ____: ____. With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an
appellate court reviews such legal determinations independently of the lower
court’s decision.
6. Postconviction: Appeal and Error. An appellate court will not consider as an
assignment of error a question not presented to the district court for disposition
through a defendant’s motion for postconviction relief.
7. Postconviction: Collateral Attack: Appeal and Error. A defendant cannot use
a motion for postconviction relief to collaterally attack issues that were decided
against him or her on direct appeal.
8. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues which were or could have been litigated on direct
appeal, no matter how those issues may be phrased or rephrased.
9. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
of counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
10. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
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11. ____: ____: ____. To show prejudice under the prejudice component of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), test, the petitioner must demonstrate a reasonable probability that but for
his or her counsel’s deficient performance, the result of the proceeding would
have been different.
12. Proof: Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
13. Postconviction: Constitutional Law: Proof. A court must grant an eviden-
tiary hearing to resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
14. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required to grant an eviden-
tiary hearing.
15. Criminal Law: Aiding and Abetting. Aiding and abetting is simply another
basis for holding an individual liable for the underlying crime.
16. ____: ____. By its terms, Neb. Rev. Stat. § 28-206 (Reissue 2008) provides that
a person who aids or abets may be prosecuted and punished as if he or she were
the principal offender.
17. Aiding and Abetting: Proof. Aiding and abetting requires some participation in
a criminal act and must be evidenced by some word, act, or deed.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Terrell T. Thorpe, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
Terrell T. Thorpe appeals the order of the district court
which overruled his amended motion for postconviction relief
without an evidentiary hearing. We affirm the judgment of the
district court.
II. SCOPE OF REVIEW
[1,2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. State v. Phelps, 286
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Neb. 89, 834 N.W.2d 786 (2013). When reviewing questions of
law, an appellate court resolves the questions independently of
the lower court’s conclusion. Id.
[3-5] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State
v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to the questions of counsel’s
performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the
lower court’s decision. Robinson, supra.
III. FACTS
1. Trial P roceedings and
Direct Appeal
After a jury trial, Thorpe was convicted of two counts
of first degree murder and two counts of use of a weapon
to commit a felony for his involvement with the shooting
deaths of Kevin Pierce and Victor Ford. Thorpe was sentenced
to life imprisonment without parole on each count of first
degree murder and 30 to 40 years’ imprisonment and 40 to
50 years’ imprisonment on the counts of use of a weapon to
commit a felony. All four of his sentences were ordered to be
served consecutively.
On direct appeal, we affirmed Thorpe’s convictions and
sentences on the weapons charges and his convictions on
the murder charges. See State v. Thorpe, 280 Neb. 11, 783
N.W.2d 749 (2010). But we vacated Thorpe’s sentences of life
imprisonment without parole for the murder charges, because
life imprisonment without parole was not a valid sentence for
first degree murder in Nebraska. See id. We remanded the
cause with directions to “sentence Thorpe to life imprison-
ment on both murder charges.” See id. at 27, 783 N.W.2d
at 763.
Thorpe was represented by the same attorney at trial and on
direct appeal.
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2. Postconviction P roceedings
In December 2011, Thorpe filed an amended pro se motion
for postconviction relief. He claimed ineffective assistance of
trial counsel, prosecutorial misconduct, convictions based on
insufficient evidence, abuse of discretion by the trial court, and
ineffective assistance of appellate counsel.
Thorpe alleged his trial counsel was ineffective for (1) not
obtaining an independent forensic pathologist expert to rebut
the testimony of the State’s forensic pathologist expert, (2)
not requesting a scientific evaluation of all latent fingerprints,
(3) not requesting independent forensic testing of the physical
evidence, (4) not requesting independent DNA testing of three
pieces of physical evidence, (5) not interviewing and investi-
gating certain named individuals who might have been called
as witnesses, (6) not investigating the possibility that someone
other than Thorpe committed the murders, (7) not objecting
to or moving to quash counts I and III of the second amended
information, and (8) not objecting to jury instructions Nos. 4,
6, and 14.
Thorpe alleged that certain comments made by the State
during opening and closing arguments amounted to prosecuto-
rial misconduct. He claimed that his convictions were based on
insufficient evidence, because the State “failed to prove that
the Manner of Deaths were Certified as Homicides.” And he
claimed that the trial court abused its discretion in instructing
the jury and in not rendering a “judgment of guilt.” Finally,
Thorpe alleged that his appellate counsel was ineffective for
failing to raise on direct appeal the aforementioned claims
of ineffective assistance of trial counsel, prosecutorial mis-
conduct, insufficient evidence, and abuse of discretion by the
trial court.
On May 15, 2013, the State moved to dismiss Thorpe’s
amended motion without an evidentiary hearing. The State was
given 30 days to submit a brief, and Thorpe had 45 days from
his receipt of the State’s brief to submit his own brief. The
State did not submit a brief.
In February 2014, Thorpe filed a “Motion in Opposition
to Plaintiff[’]s Motion to Dismiss Amended Motion for
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Postconviction Relief and Request for Default Judgment.” He
asked the district court to consider two additional ineffec-
tive assistance of trial counsel claims that were not included
in his amended motion for postconviction relief. These new
claims related to trial counsel’s alleged failure to request the
appointment of a special prosecutor and to “challenge the state-
ments and testimony of [Taiana] Matheny.” (Taiana Matheny
participated in the murders and was one of the State’s wit-
nesses at Thorpe’s trial.) Thorpe also requested that the court
“enter a judgment of default against the plaintiff, for failure to
respond as instructed by the Court.” Although Thorpe claims
that he requested a hearing on his motion, the record does
not show that he did. The court did not explicitly rule on
Thorpe’s motion.
3. Denial of Postconviction R elief
On May 15, 2014, the district court denied Thorpe’s amended
motion for postconviction relief without an evidentiary hear-
ing. It concluded that Thorpe’s ineffective assistance of trial
counsel claims failed to allege prejudice.
[Thorpe’s] claims of ineffective assistance of counsel
do not include a single fact or allegation with regard to
prejudice actually occurring. Rather than provide specific
facts as to how the outcome of the trial would have been
different, [Thorpe] makes conclusory statements that if
trial counsel would have done the things as set forth
above, the jury would have found him not guilty.
[Thorpe] fails to provide any information as to how
these alleged deficiencies would have change[d] the out-
come of the jury verdicts of guilty. [Thorpe] just lists
a number of things that he felt his trial counsel should
have done.
The district court concluded that the State had not engaged in
prosecutorial misconduct and that the trial court had not abused
its discretion in the ways alleged by Thorpe. It found no merit
to Thorpe’s claim that in the absence of proof that the deaths
were certified as homicides, the evidence was insufficient to
convict him. And the court determined that Thorpe’s appellate
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counsel was not ineffective, because there was no merit to the
allegations of ineffective assistance of trial counsel. Thorpe
timely appeals.
IV. ASSIGNMENTS OF ERROR
Thorpe assigns, restated, that (1) the trial court erred by
failing to allow certain hearsay testimony by an Omaha police
officer; (2) trial counsel was ineffective for failing to move
the trial court to allow certain hearsay testimony by that same
officer; (3) the trial court erred by giving jury instruction
No. 14, despite State v. Taylor, 282 Neb. 297, 803 N.W.2d
746 (2011); (4) trial counsel was ineffective for failing to
object to jury instruction No. 14; (5) the trial court erred by
failing to instruct the jury on felony murder; (6) the district
court erred by failing to determine that his trial counsel was
ineffective for failing to interview and call several witnesses
to testify; (7) the trial court erred by allowing the State to
vouch for the credibility of its witnesses; (8) the prosecu-
tion engaged in misconduct by making false and misleading
statements about one of the State’s witnesses during closing
arguments; (9) the trial court erred by failing to instruct the
jury about jailhouse informants; (10) trial counsel was inef-
fective for failing to propose a jury instruction on jailhouse
informants; (11) the trial court erred by convicting Thorpe on
insufficient evidence; and (12) the district court erred in fail-
ing to consider Thorpe’s motion in opposition to the State’s
motion to dismiss when rendering its decision to deny post-
conviction relief.
V. ANALYSIS
Thorpe’s amended motion for postconviction relief con-
tains numerous claims which he does not raise on appeal.
The claims to which Thorpe does not assign error include the
claims of ineffective assistance of trial counsel for not obtain-
ing an independent forensic pathologist expert; not requesting
the independent scientific evaluation, forensic testing, or DNA
testing of latent fingerprints and physical evidence; not inves-
tigating the possibility that someone other than Thorpe com-
mitted the murders; not interviewing and investigating certain
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individuals; and not moving to quash counts I and III of the
second amended information. Thorpe does not assign error to
his claims of ineffective assistance of appellate counsel or to
his claim that the trial court erred in not rendering a “judgment
of guilt.”
To be considered by an appellate court, an appellant
must both assign and specifically argue any alleged error.
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
Accordingly, our consideration of Thorpe’s amended motion
for postconviction relief is limited to those claims for relief
which Thorpe assigns as error and argues on appeal. We
address these claims in the order in which they are raised by
Thorpe in his brief.
1. First and Second Assignments
Error
of
[6] Thorpe assigns that the trial court erred in failing to
allow certain hearsay testimony by an Omaha police officer
and that his trial counsel was ineffective for failing to move
the trial court to allow this testimony. But Thorpe did not raise
either of these claims in his amended motion for postconvic-
tion relief. An appellate court will not consider as an assign-
ment of error a question not presented to the district court for
disposition through a defendant’s motion for postconviction
relief. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
Therefore, we do not consider these allegations.
2. Third Assignment
of Error
[7] Thorpe alleges that the trial court erred by giving jury
instruction No. 14. He raised this identical claim on direct
appeal, and we explicitly found that the trial court “did not
err in giving instruction No. 14.” See State v. Thorpe, 280
Neb. 11, 25, 783 N.W.2d 749, 762 (2010). A defendant “can-
not use a motion for postconviction relief to collaterally
attack issues that were decided against him on direct appeal.”
See State v. Dunster, 278 Neb. 268, 278, 769 N.W.2d 401,
410 (2009). Therefore, Thorpe’s third assignment of error is
without merit.
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3. Fourth Assignment
of Error
Thorpe alleges that his trial counsel was ineffective for fail-
ing to object to jury instruction No. 14. Although as raised,
this claim is not procedurally barred, Thorpe is not entitled
to relief. The record affirmatively shows that during the jury
instruction conference, Thorpe’s trial counsel objected to jury
instruction No. 14. Furthermore, on direct appeal, we found
that there was sufficient evidence to support the giving of jury
instruction No. 14. See Thorpe, supra. We find no merit to this
assignment of error.
4. Fifth Assignment
of Error
[8] Thorpe alleges that the trial court erred by failing to
instruct the jury on felony murder. Because this claim is
based on actions or inactions that occurred in open court,
Thorpe would have known of such claim at the time the jury
instructions were given and could have raised the claim on
direct appeal. A motion for postconviction relief cannot be
used to secure review of issues which were or could have
been litigated on direct appeal, no matter how those issues
may be phrased or rephrased. State v. Boppre, 280 Neb. 774,
790 N.W.2d 417 (2010). Therefore, this assignment of error
lacks merit.
5. Sixth Assignment
of Error
Thorpe assigns that the district court erred by failing to
determine that his trial counsel was ineffective for not inter-
viewing and calling 10 witnesses to testify: James Pierce,
Brandi Ford, Tiffany Ross, Orlando Cortez Burries, Aries
Rosario, Teara Holman, Joshua Smithhistler, Maurice Gresham,
Robert Laney, and Jamme Alexander.
There are allegations in Thorpe’s amended motion for post-
conviction relief which correspond to nine of these witnesses.
However, Thorpe’s amended motion did not allege that his trial
counsel was ineffective for failing to call Gresham. As noted
previously, we will not consider “a question not presented to
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the district court for disposition through a defendant’s motion
for postconviction relief.” See Haas, 279 Neb. at 817-18, 782
N.W.2d at 589. Therefore, under this assignment of error, we
consider Thorpe’s allegations with respect to only those nine
witnesses which were included both in his amended motion
and in his brief on appeal.
[9-12] In considering Thorpe’s claims as to these nine wit-
nesses, we apply well-known legal principles. A proper ineffec-
tive assistance of counsel claim alleges a violation of the fun-
damental constitutional right to a fair trial. State v. Baker, 286
Neb. 524, 837 N.W.2d 91 (2013). To prevail on a claim of inef-
fective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defendant’s defense. Baker, supra. To show
prejudice under the prejudice component of the Strickland test,
the petitioner must demonstrate a reasonable probability that
but for his or her counsel’s deficient performance, the result of
the proceeding would have been different. See id. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. Id.
[13,14] A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the Nebraska or
federal Constitution. State v. Phelps, 286 Neb. 89, 834 N.W.2d
786 (2013). If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief,
the court is not required to grant an evidentiary hearing. Id.
Thus, in a postconviction proceeding, an evidentiary hearing
is not required (1) when the motion does not contain factual
allegations which, if proved, constitute an infringement of the
movant’s constitutional rights; (2) when the motion alleges
only conclusions of fact or law; or (3) when the records and
files affirmatively show that the defendant is entitled to no
relief. See id.
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(a) Thorpe’s Allegations
In Thorpe’s amended motion for postconviction relief, he
alleged how James Pierce, Brandi Ford, Ross, Burries, Rosario,
Holman, Smithhistler, Laney, and Alexander would have testi-
fied if they had been called as witnesses. With regard to each
witness, Thorpe alleged that his or her testimony “likely would
have resulted in [Thorpe’s] acquittal.”
(i) James Pierce
Thorpe alleged that James Pierce “had information that
there was a possibility that Pacedeon Birge ‘Pacey,’ rather than
[Thorpe] committed the murder of Kevin Pierce.” James Pierce
would have testified that “‘Pacey’ was the type of person that
would do something like this . . . in order to exact revenge on
[James Pierce] for shooting [Pacey’s] brother.”
(ii) Brandi Ford
Thorpe alleged that Brandi Ford “had information that there
was a possibility that ‘Pacey’ rather than [Thorpe], commit-
ted the murder of Kevin Pierce.” Specifically, Ford would
have testified that she “had heard on the streets that ‘Pacey’
was telling people that it was going to be a ‘Brother for
Brother’ eversince [sic] ‘Pacey’s[’] brother had been killed by
James Pierce.” Ford also had heard from her friend “Travis”
that another individual once threatened “to have Pacey shoot
[Travis] in the head, like [Pacey] did Kevin Pierce.”
(iii) Tiffany Ross
Thorpe alleged that Ross “had information that there was
a possibility that ‘Pacey’ rather than [Thorpe], committed
the murder of Kevin Pierce.” Ross would have testified that
Kevin Pierce told her about two separate instances in which
Pacey told Kevin Pierce that “he was going to kill him.”
Ross also would have testified that Kevin Pierce told her that
“‘Pacey’ was out to get him and would kill him” and that
“the animosity between ‘Pacey’ and [Kevin] Pierce, was that
[Kevin] Pierce’s brother James [Pierce], had killed Pacey’s
younger brother.”
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(iv) Orlando Cortez Burries
Thorpe alleged that Burries “had information that there was
a possibility that ‘Pacey,’ rather than [Thorpe], committed the
murder of Kevin Pierce.” Burries would have testified that “a
party named ‘Pacey’ had called [Kevin Pierce’s] cellphone
approximately three years ago and told him ‘just like James
[Pierce] killed my little brother, I’m gonna kill the youngest[’]”
and that “Pacey also told James [Pierce] that he was going to
do that.”
(v) Aries Rosario
Thorpe alleged that Rosario “had information that there
was a possibility that ‘Pacey,’ rather than [Thorpe], commit-
ted the murder of Kevin Pierce.” Rosario would have testi-
fied that “Pacey told her, ‘I want James [Pierce] because I’am
[sic] going to do James [Pierce] like he did me” and that
“Pacey then started talking about killing [James Pierce’s] little
brother.” Rosario also would have testified that she “remem-
bered a statement Pacey made to her as ‘somebody is going,
going to die. I’m going to kill somebody.’”
(vi) Teara Holman
Thorpe alleged that Holman “had information that there
was a possibility that ‘Duall’ (Charles Brooks) rather than
[Thorpe], committed the murder of Victor Ford.” Holman
would have testified that Ford “had been fighting with ‘Duall’”
and that she “believed that ‘Duall’ may have had something to
do with Ford’s death.”
(vii) Joshua Smithhistler
Thorpe alleged that Smithhistler “had information that
there was a possibility that [Kevin Pierce’s girlfriend’s] moth-
er’s boyfriend, rather than [Thorpe] committed the murder.”
Smithhistler would have testified that at various times, Kevin
Pierce stated that he got a “bite mark on his neck” from “his
girlfriend” and that “his girlfriend was holding a knife on
him.” Smithhistler also would have testified that on separate
occasions, he observed Pierce arguing with “his girlfriend”
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and with an individual that Pierce “said was his girlfriend’s
mother’s boyfriend.”
(viii) Robert Laney
Thorpe alleged that Laney “made phone contact with a
party who had information that there was a possibility that
Charles Brooks ‘Doall’, rather than [Thorpe], committed the
murder of Victor Ford.” Thorpe claimed that Laney had spo-
ken with James Pierce, Brandi Ford, Ross, Burries, Rosario,
Holman, and Smithhistler, and that they told Laney the infor-
mation which we described above when discussing each of
these witnesses.
(ix) Jamme Alexander
Thorpe alleged that Alexander “would have negated
Matheny’s testimony.”
(b) Analysis
Of these nine witnesses, Thorpe alleged that all of them
except Alexander would have testified to the “possibility”
that someone other than Thorpe committed the murders for
which he was convicted. Even if we were to assume, without
deciding, that Thorpe’s trial counsel was deficient for failing
to present the testimony of these eight witnesses, Thorpe can-
not establish that he was prejudiced by that failure. To show
prejudice, the defendant must demonstrate reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different. State v. Morgan,
286 Neb. 556, 837 N.W.2d 543 (2013).
Thorpe was convicted on the theory that he aided and abet-
ted Terry Sellers and Matheny. The State’s evidence established
that Matheny shot Kevin Pierce and that Sellers shot Victor
Ford. The evidence showed that in both cases, the victim was
shot and killed during an armed robbery.
[15-17] Aiding and abetting is simply another basis for
holding an individual liable for the underlying crime. State v.
Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). “By its terms,
[Neb. Rev. Stat.] § 28-206 [(Reissue 2008)] provides that a
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person who aids or abets may be prosecuted and punished as if
he or she were the principal offender.” State v. McGuire, 286
Neb. 494, 520, 837 N.W.2d 767, 790 (2013). We have stated
that aiding and abetting requires some participation in a crimi-
nal act and must be evidenced by some word, act, or deed. Id.
Mere encouragement or assistance is sufficient. Id.
At trial, Matheny testified that Thorpe participated in
the robberies and murders of Kevin Pierce and Victor Ford.
Matheny stated that Thorpe helped to develop the plan to rob
Pierce, that Thorpe supplied a rifle and revolver to use in the
robbery, and that he loaded the gun which Matheny used to
shoot Pierce. When Pierce arrived to meet up with Matheny,
Thorpe approached Pierce with a firearm and led Pierce to
the location where he was shot. After Matheny shot Pierce,
Thorpe drove Pierce’s vehicle away from the scene and later
removed the wheel rims from the vehicle.
Matheny testified that the following night, she, Sellers,
and Thorpe engaged in a similar scheme to rob Victor Ford.
She stated that Thorpe talked to Ford on a cell phone and
that Thorpe drove Sellers and Matheny to the location where
they were supposed to meet Ford. As was the case with Kevin
Pierce, Thorpe provided the gun which was used to shoot Ford
and was present when Sellers shot Ford. After they took Ford’s
vehicle, Thorpe instructed Matheny to wipe it clean of finger-
prints. And once they abandoned Ford’s vehicle, Thorpe drove
Sellers and Matheny back to their hotel.
Given this powerful direct evidence against Thorpe, there is
not a reasonable probability that the result of his trial would
have been different if his trial counsel had called James Pierce,
Brandi Ford, Ross, Burries, Rosario, Holman, Smithhistler, and
Laney to testify. These eight witnesses allegedly would have
testified to the “possibility” that someone other than Thorpe
committed the murders of Kevin Pierce and Victor Ford. In
other words, their testimony would have been speculative as
to any connection between another individual and the murders.
As set forth, much of the testimony would have been hearsay
or hearsay within hearsay. None of these witnesses would
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have given direct evidence that someone other than Thorpe
committed the murders. Such testimony would not be able to
overcome the direct evidence and eyewitness testimony that
Thorpe was involved in the robberies and murders of Kevin
Pierce and Victor Ford.
Thorpe cannot show that he was prejudiced by his trial
counsel’s failure to call James Pierce, Brandi Ford, Ross,
Burries, Rosario, Holman, Smithhistler, and Laney. Therefore,
Thorpe’s claims as to these eight witnesses did not contain
factual allegations which, if proved, would entitle Thorpe to
postconviction relief for ineffective assistance of counsel. The
district court did not err in denying relief on these claims with-
out an evidentiary hearing.
As to the ninth witness, Thorpe alleged that Alexander
“would have negated Matheny’s testimony.” Thorpe did not
allege what testimony Alexander would have given if called or
what part of Matheny’s testimony would have been negated.
In assessing postconviction claims that trial counsel was inef-
fective for failing to call a particular witness, we have upheld
the dismissal without an evidentiary hearing where the motion
did not include specific allegations regarding the testimony
which the witness would have given if called. State v. Marks,
286 Neb. 166, 835 N.W.2d 656 (2013). Therefore, Thorpe was
not entitled to an evidentiary hearing or postconviction relief
on this claim.
The district court did not err in denying relief, without an
evidentiary hearing, on Thorpe’s claims of ineffective assist
ance of counsel for failure to call certain witnesses. Thorpe’s
sixth assignment of error lacks merit.
6. Seventh Assignment
of Error
Thorpe assigns that the trial court erred by allowing the
State to vouch for the credibility of its witnesses. This claim
is procedurally barred, because Thorpe could have raised it on
direct appeal. See State v. Boppre, 280 Neb. 774, 790 N.W.2d
417 (2010).
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7. Eighth Assignment
of Error
Thorpe argues that the prosecution engaged in misconduct
by making false and misleading statements about one of the
State’s witnesses during closing arguments. Thorpe could have
raised this issue on direct appeal. Therefore, this claim is pro-
cedurally barred. See id.
8. Ninth and Tenth Assignments
of Error
At Thorpe’s trial, the jury was not instructed about jail-
house informants. In the instant appeal, Thorpe claims that the
trial court erred by failing to do so and that his trial counsel
was ineffective for failing to propose such an instruction.
Neither of these claims were raised in Thorpe’s amended
motion for postconviction relief. An appellate court will not
consider as an assignment of error a question not presented
to the district court for disposition through a defendant’s
motion for postconviction relief. State v. Haas, 279 Neb. 812,
782 N.W.2d 584 (2010). Accordingly, we do not consider
these allegations.
9. Eleventh Assignment
of Error
Thorpe alleges that the trial court erred by convicting him
on insufficient evidence. Thorpe could have raised sufficiency
of the evidence on direct appeal, but he did not. This claim is
procedurally barred. See Boppre, supra.
10. Twelfth Assignment
of Error
Thorpe assigns that the district court erred in failing to
consider his motion in opposition to the State’s motion to
dismiss when rendering its decision to deny postconviction
relief. The claims raised in Thorpe’s motion in opposition
were not pleaded in his amended motion for postconvic-
tion relief, which was the operative pleading before the
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164 290 NEBRASKA REPORTS
court. Therefore, the court did not err in denying postconvic-
tion relief without considering the claims raised in Thorpe’s
motion in opposition.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court which denied Thorpe’s amended motion for post-
conviction relief without an evidentiary hearing.
Affirmed.
State ofNebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. David C. Holcomb, respondent.
___ N.W.2d ___
Filed February 13, 2015. No. S-14-692.
Original action. Judgment of public reprimand.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
This case is before the court on the conditional admission
filed by David C. Holcomb, respondent, on November 13,
2014. The court accepts respondent’s conditional admission
and enters an order of public reprimand.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on October 14, 2008. At all relevant times, he was
engaged in the practice of law in Omaha, Nebraska.
On July 31, 2014, the Counsel for Discipline of the Nebraska
Supreme Court filed formal charges against respondent. The
formal charges consist of one count against respondent. With
respect to the one count, the formal charges state that on or
about November 6, 2013, respondent posted on a Web site