State v. Poe

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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

State of Nebraska, appellee, v.
Ryan L. Poe, appellant.
___ N.W.2d ___

Filed November 6, 2015. No. S-14-1106.

 1. Postconviction: Evidence. In an evidentiary hearing on a motion for
postconviction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact.
 2. Postconviction: Evidence: Appeal and Error. An appellate court
upholds the trial court’s findings in an evidentiary hearing on a motion
for postconviction relief unless the findings are clearly erroneous. An
appellate court independently resolves questions of law.
 3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to exclude
evidence on hearsay grounds.
 4. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
to prove the truth of the matter asserted.
 5. Rules of Evidence: Hearsay. Hearsay is not admissible unless other-
wise provided for in the Nebraska Evidence Rules or elsewhere.
 6. Hearsay. A statement is not hearsay if the proponent offers it to show
its impact on the listener and the listener’s knowledge, belief, response,
or state of mind after hearing the statement is relevant to an issue in
the case.
 7. Appeal and Error. Error that does not prejudice the appellant is not a
ground for relief on appeal.
 8. Trial: Evidence: Appeal and Error. The exclusion of evidence is ordi-
narily not prejudicial if the court admits substantially similar evidence
without objection.
 9. Effectiveness of Counsel: Proof: Appeal and Error. To prevail
on a claim of ineffective assistance of counsel under Strickland v.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

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.

Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Affirmed.
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro,
L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Wright, Connolly, McCormack, Miller-Lerman, Cassel,
and Stacy, JJ.
Connolly, J.
SUMMARY
Ryan L. Poe moved for postconviction relief from his con-
victions for first degree murder and use of a deadly weapon to
commit a felony. After the district court overruled the motion,
we remanded the cause for an evidentiary hearing on one of
Poe’s ineffective assistance of counsel claims. Specifically, we
directed the court to decide if Poe’s trial counsel should have
impeached the State’s key witness with a statement the witness
made to Poe’s girlfriend to the effect that Poe was innocent.
On remand, the district court found that Poe’s girlfriend did not
tell his trial counsel about such a statement. The district court
again overruled Poe’s postconviction motion. Poe appeals,
arguing that the court erroneously excluded certain out-of-court
statements on hearsay grounds. We affirm.
BACKGROUND
Trial
The State charged Poe with first degree felony murder and
use of a deadly weapon for the killing of Trever Lee. Lee died
during a robbery of his townhouse in 2004.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

One of Lee’s roommates sold marijuana to a friend of Poe’s,
Antwine Harper. Harper was the State’s key witness at Poe’s
trial. The State produced no physical evidence linking Poe to
the crime.
Harper testified that Poe had asked him for permission to
rob Lee’s roommate and that Poe later confessed to the crime
in great detail. Poe’s attorney, Thomas Riley, extensively cross-
examined Harper. Harper admitted that he initially denied
knowing anything about the shooting and identified Poe as
the killer only after the police threatened to arrest him. Harper
acknowledged that he cried after the officers made the threat.
He said that the officers told him that he would not “go to jail
today” if he talked to them about the shooting.
A jury convicted Poe of first degree murder and use of a
deadly weapon to commit a felony. The court sentenced him
to life imprisonment and a consecutive term of 10 to 20 years’
imprisonment for use of a deadly weapon. We affirmed Poe’s
convictions on his direct appeal.1
First Postconviction
Poe moved for postconviction relief in 2011. He alleged that
the prosecutor had committed misconduct, that exculpatory
evidence came to light after the trial, and that Riley, his trial
counsel, was ineffective. Poe alleged that Harper told Poe’s
girlfriend, Michelle Hayes, that Poe was innocent. Poe faulted
Riley for not impeaching Harper with this statement.
The district court overruled Poe’s postconviction motion
without an evidentiary hearing. Poe appealed. We remanded
the cause with directions to “conduct[] an evidentiary hear-
ing on Poe’s claim of ineffective assistance of trial coun-
sel relating to the allegation that counsel failed to utilize
Harper’s alleged inconsistent statement to Hayes that Poe
was innocent.”2

 1
State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
 2
State v. Poe, 284 Neb. 750, 776-77, 822 N.W.2d 831, 850 (2012).
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

Second Postconviction
On remand, Poe offered four exhibits at the evidentiary
hearing: (1) a deposition of Hayes; (2) a deposition of Riley;
(3) an affidavit of his mother, Velma Poe (Velma); and (4) his
own affidavit.
Hayes testified that she was working as a cashier when
Harper walked up to her register a couple of days before
Poe’s trial. Hayes knew Harper because he once dated her
sister. According to Hayes, Harper greeted her and then said,
“‘[D]on’t worry about it, [Poe] is going to get out. I’m not
going to show up to court. They are making me do something
that’s not true. He didn’t do it. Don’t worry about it, he’s going
to get out.’”
Hayes told Poe’s parents about her encounter with Harper,
and Poe’s father suggested that she talk with Riley. She and
Velma met with Riley a day or two before the trial. Hayes said
that she “told [Riley] everything,” but that he did not seem
interested and did not take any notes.
Riley recalled meeting with Hayes, but remembered the sub-
stance of their exchange differently. According to Riley,
the focus of what she was telling me was that [Harper]
had apologized, he felt bad that he was doing what he
was doing, and that he told her he wasn’t coming to
court. I do not recall her saying anything about him say-
ing [Poe] didn’t commit this crime or didn’t shoot him . .
. . [H]er purpose, as I perceived it, was primarily saying,
hey, Harper says he’s not coming to court, what happens
if he doesn’t come to court.
Riley stated several times that he did not remember Hayes tell-
ing him that Harper told her that Poe was innocent.
Riley said that he went through “six boxes of stuff” before
his deposition and “couldn’t find anything.” He talked to
several of the other attorneys who worked on Poe’s case, and
they could not recall such a statement either. Riley said that
he would have asked “follow-ups” if Hayes had told him that
Harper said that Poe was innocent.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

In her affidavit, Velma, Poe’s mother, averred that she and
Hayes met with Riley a couple of days before Poe’s trial. In the
second paragraph, Velma stated:
I heard [Hayes] tell Riley that Harper came through her
checkout line at Wal-Mart. [Hayes] told Riley that Harper
said he was not going to show up for trial. [Hayes] told
Riley that Harper told her the police were trying to make
him lie, and that [Poe] did not commit the crime.
The State objected to the second paragraph of Velma’s
affidavit on hearsay grounds. Poe responded that he was “not
offering it for the truth of the matter asserted by either [Hayes]
or the truth of the matter asserted by . . . Harper.” Instead, he
offered Velma’s affidavit “solely to corroborate deposition tes-
timony from . . . Hayes that she told Riley these things.” The
court sustained the State’s hearsay objection.
After the evidentiary hearing, the court overruled Poe’s
motion for postconviction relief. It emphasized Riley’s testi-
mony that he could not recall Hayes telling him that Harper
told her Poe was innocent or that the police were trying to
make him lie. The court found that “the allegation that Counsel
failed to utilize Harper’s alleged inconsistent statement to
Hayes that Poe was innocent was in fact not an accurate reflec-
tion of any conversation between . . . Hayes and . . . Riley.”
ASSIGNMENTS OF ERROR
Poe assigns that the court erred by (1) sustaining the State’s
hearsay objection to the second paragraph of Velma’s affidavit
and (2) determining that he did not receive ineffective assist­
ance of counsel.
STANDARD OF REVIEW
[1,2] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact.3 An appellate

 3
State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

court upholds the trial court’s findings unless they are clearly
erroneous.4 In contrast, an appellate court independently
resolves questions of law.5
[3] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the fac-
tual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on
hearsay grounds.6

ANALYSIS
Hearsay
Poe argues that the court erred by excluding the second
paragraph of Velma’s affidavit on hearsay grounds. He con-
tends that he did not offer it for the truth of the matter
asserted. Instead, he states that he offered it to show that
Riley knew Harper had made a statement to the effect that Poe
was innocent.
[4,5] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered to
prove the truth of the matter asserted.7 Hearsay is not admis-
sible unless otherwise provided for in the Nebraska Evidence
Rules or elsewhere.8
[6] Of course, an out-of-court statement is not hearsay if
the proponent offers it for a purpose other than proving the
truth of the matter asserted.9 For example, a statement is not
hearsay if the proponent offers it to show its impact on the
listener and the listener’s knowledge, belief, response, or state

 4
Id.
 5
Id.
 6
See Arens v. NEBCO, Inc., 291 Neb. 834, ___ N.W.2d ___ (2015).
 7
State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
 8
Id.
 9
State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

of mind after hearing the statement is relevant to an issue in
the case.10
[7,8] But we need not decide if the second paragraph of
Velma’s affidavit is admissible as evidence of Riley’s knowl-
edge, because its exclusion did not prejudice Poe. Error that
does not prejudice the appellant is not a ground for relief on
appeal.11 The exclusion of evidence is ordinarily not prejudi-
cial if the court admits substantially similar evidence without
objection.12 Hayes repeatedly testified that she told Riley that
Harper said that he was lying and that Poe was innocent. Poe
himself stated in his affidavit that he told Riley that he had
“reason to believe . . . Harper had recently admitted lying to
detectives about my involvement.” The second paragraph of
Velma’s affidavit was substantially similar to other evidence
that the court received. Its exclusion therefore did not preju-
dice a substantial right of Poe.
Ineffective Assistance of Counsel
Poe argues that the court was clearly wrong in finding that
Hayes did not tell Riley about Harper’s inconsistent state-
ment. Poe contends that Riley did not testify “on personal
knowledge.”13 Instead, Riley’s “basis for his conclusion that
Hayes did not tell him is his belief that he would have asked
more follow-up questions,” which Poe believes is “an unten-
able basis for the district court’s finding.”14 Because of its

10
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). See, State v.
Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v. Reinhart, 283
Neb. 710, 811 N.W.2d 258 (2012); State v. Hansen, 252 Neb. 489, 562
N.W.2d 840 (1997); State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638
(1977); 2 McCormick on Evidence § 249 (Kenneth S. Broun et al. eds.,
7th ed. 2013).
11
See Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
12
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
13
Brief for appellant at 15.
14
Id.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. POE
Cite as 292 Neb. 60

mistaken factual finding, Poe argues that the court’s legal con-
clusion was also faulty.
[9] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,15 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense.16 A court may address the two prongs of this test, defi-
cient performance and prejudice, in either order.17
We conclude that the court’s finding that Hayes never told
Riley about Harper’s inconsistent statement is not clearly
wrong. Riley testified that he did not believe Hayes told him
about the statement, because he could not remember Hayes
telling him about the statement. Whether a person can have any
other type of “personal knowledge” of an event that did not
occur is a question for a metaphysician, not a court. Poe argues
that Riley testified in “less specific terms” than Hayes,18 but it
is not our role to reweigh the credibility of witnesses or resolve
conflicts in the evidence.19
CONCLUSION
The court’s exclusion of the second paragraph of Velma’s
affidavit did not prejudice Poe and is therefore not a basis
for relief on appeal. The court’s finding that Hayes did not
inform Riley of Harper’s inconsistent statement is not clearly
wrong. So, the court did not err by concluding that Riley did
not perform deficiently by failing to impeach Harper with the
inconsistent statement.
A ffirmed.
Heavican, C.J., not participating.

15
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
16
State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
17
Id.
18
Brief for appellant at 14.
19
See State v. Armstrong, supra note 3.