State v. Wynne

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)

STATE V. WYNNE

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,
V.

MITCHELL Q. WYNNE, APPELLANT.

Filed January 25, 2022. No. A-21-199.

Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.
Affirmed.
Mitchell Q. Wynne, pro se.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

MOORE, ARTERBURN, and WELCH, Judges.
MOORE, Judge.
INTRODUCTION
Mitchell Q. Wynne appeals from the order of the district court for Douglas County, which
denied his motion for postconviction relief without an evidentiary hearing. For the reasons set forth
herein, we affirm.
STATEMENT OF FACTS
Following a jury trial in 2015, Wynne was convicted of first degree murder and use of
deadly weapon (firearm) to commit a felony. Wynne was 17 years old at the time the offense was
committed. The district court sentenced him to 40 to 100 years’ imprisonment for first degree
murder and to a consecutive term of 10 to 20 years’ imprisonment for the use of a weapon
conviction. On direct appeal, Wynne claimed that the court erred in admitting certain text messages
into evidence and in denying his motion for mistrial based on prosecutorial misconduct during the

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State’s closing argument. He also claimed that the evidence was insufficient to sustain his
conviction for first degree murder. This court found no error or abuse of discretion by the trial
court, found that the evidence was sufficient to sustain the first degree murder conviction, and
affirmed Wynne’s convictions and sentences. See State v. Wynne, 24 Neb. App. 377, 887 N.W.2d
515 (2016). We note that Wynne was represented at trial and on direct appeal by the same attorney.
On January 16, 2018, Wynne filed a pro se motion for postconviction relief, setting forth
numerous claims of ineffective assistance of trial counsel. He later retained counsel, and on April
21, 2020, through his attorney, filed an amended motion for postconviction relief. The district
court entered an order, requesting the State to file a response to Wynne’s amended motion. The
State subsequently filed its response, asking the court to dismiss Wynne’s motion without an
evidentiary hearing.
On February 18, 2021, the district court entered an order, denying Wynne’s motion for
postconviction relief without an evidentiary hearing. The court addressed each of Wynne’s claims,
and it determined that they were either refuted by the record or did not otherwise warrant an
evidentiary hearing. After perfecting the present appeal from the court’s February 2021 order,
Wynne’s postconviction counsel withdrew, and his appellant brief and reply brief were filed
pro se.
ASSIGNMENTS OF ERROR
Wynne asserts, restated, that the district court erred in overruling his motion for
postconviction relief because his trial counsel was ineffective in (1) “allowing prejudicial
cellphone text message evidence exhibit #178-179” to be admitted, (2) failing to challenge the
admissibility of prejudicial testimony about DNA testing results with no statistical significance,
(3) advising him not to testify at trial, (4) failing to challenge the admissibility of a surveillance
video, (5) failing to call “favorable witnesses to the defense,” and (6) “failing to challenge the
admissibility of prejudicial finger print evidence Exhibit #170 as an error on direct appeal and at
trial adequately.” Brief for appellant at 6-7.
STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021). When reviewing a question of law,
an appellate court reaches a conclusion independent of the lower court’s ruling. Id.
ANALYSIS
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. State v. Britt, supra. Thus, in a motion for
postconviction relief, the defendant must allege facts which, if proved, constitute a denial or

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violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against
the defendant to be void or voidable. State v. Britt, supra.
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. Newman, 310 Neb. 463,
966 N.W.2d 860 (2021). In a postconviction proceeding, an evidentiary hearing is not required
when (1) the motion does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights, rendering the judgment void or voidable; (2)
the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and
files affirmatively show that the defendant is entitled to no relief. State v. Stelly, supra.
Wynne assigns that the court erred by overruling his motion for postconviction relief,
arguing that he received ineffective assistance of trial counsel in various regards. This is Wynne’s
first opportunity to assert ineffective assistance of counsel, because the same counsel represented
Wynne at trial and on direct appeal.
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. State v. Newman, supra. To show that counsel’s performance was deficient
under Strickland v. Washington, supra, the defendant must show counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Newman,
supra. To show prejudice under the prejudice component of the Strickland v. Washington, supra,
test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been different. State v. Newman,
supra. A reasonable probability does not require that it be more likely than not that the deficient
performance altered the outcome of the case; rather, the defendant must show a probability
sufficient to undermine confidence in the outcome. Id. A court may examine the two prongs of the
ineffective assistance of counsel test, deficient performance and prejudice, in any order and need
not examine both prongs if a defendant fails to demonstrate either. Id.
Cell Phone Text Message Evidence.
On appeal, Wynne asserts that his trial counsel was ineffective for failing to exclude from
evidence exhibit 178 (a table containing incoming, outgoing, and missed calls exchanged by the
victim’s cell phone and Wynne’s cell phone and by the victim’s cell phone and a third telephone
between certain dates) and exhibit 179 (a table containing incoming and outgoing text messages,
including the actual content of the text messages, exchanged by the victim’s cell phone and
Wynne’s cell phone between certain times on the date of the crime in which Wynne agreed to
purchase marijuana from the victim). He argues that his counsel was ineffective by allowing these
two exhibits to be used against him “by conceding with the prosecution . . . that [his] hearsay claim
is contingent upon defense counsel’s authentication claim.” Brief for appellant at 12. He also
argues that these exhibits were inadmissible hearsay and that their admission violated his rights
under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I,
§ 11, of the Nebraska Constitution.

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 This assignment of error on appeal most closely corresponds to the fifth claim raised in
Wynne’s motion. In that claim he argued that his trial counsel should have filed a motion in limine
to address the admissibility of “the cellular phone calls and text messages.” He also argued that
the fact that “this evidence” was not addressed until trial allowed the district court to admit into
evidence “the content of the text messages from the cell phone alleged to be . . . Wynne’s to the
victim.” In his motion, he cited to the ruling admitting exhibit 179 at trial. Wynne did not reference
exhibit 178 in the fifth claim set forth in his amended postconviction motion.
The admission of exhibit 179 (both the foundation for its admissibility and whether the text
messages in question were inadmissible hearsay) was raised by Wynne’s counsel and considered
by this court on direct appeal. We concluded that there was sufficient evidence of authentication
and that the district court did not abuse its discretion in overruling Wynne’s foundational objection
to the exhibit. The fact that Wynne’s counsel did not persuade the trial court or this court regarding
the admissibility of the exhibit does not equate with deficient performance. And he has not shown
how the outcome would have been different had his trial counsel first challenged the admissibility
of exhibit 179 through a pretrial motion in limine.
More importantly, the error assigned and argued in Wynne’s brief on appeal differs from
the claim he raised in his amended postconviction motion. In addition to arguing in his fifth claim
for relief that his trial counsel should have filed a motion in limine to challenge the admissibility
of exhibit 179 before trial, Wynne also argued that his trial counsel was ineffective for (1) failing
to present at trial evidence about cellphone towers and the location at the time of the murder of the
user of the phone linked to Wynne that was presented at a preliminary hearing and which “could
have been very relevant” to Wynne’s trial defense, (2) failing to obtain an expert witness to testify
as to the unreliability of cellphone evidence, and (3) failing to conduct his own independent
cellphone data retrieval. Beyond what we have discussed above, the arguments Wynne raises on
appeal about his counsel’s concessions at trial with respect to text message authentication issues
and any Confrontation Clause issues were not raised in his amended motion for postconviction
relief. Appellate courts do not generally consider arguments and theories raised for the first time
on appeal. State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021), cert. denied ___ U.S. ___, 142
S. Ct. 370, 211 L. Ed. 2d 197. In an appeal from the denial of postconviction relief, an appellate
court will not consider for the first time on appeal claims that were not raised in the verified motion.
Id. Accordingly, we do not address this assignment of error further.
DNA Testing Evidence.
Wynne asserts that his trial counsel was ineffective for failing to challenge, through a
motion in limine, the admissibility of prejudicial testimony about DNA testing results with no
statistical significance. He relies on State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015),
wherein the Nebraska Supreme Court held that DNA testing results generally must be
accompanied by statistical evidence or a probability assessment that explains whether the results
tend to include or exclude the individual as a potential source. We note that the crime laboratory
technician who testified at trial about the State’s DNA evidence provided the statistics necessary
to allow the jury to assess the probative value of that evidence. See State v. Wynne, 24 Neb. App.
377, 887 N.W.2d 515 (2016).

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 The error assigned and argued in Wynne’s brief on appeal differs from the claim raised in
his amended postconviction motion about his counsel’s ineffectiveness with respect to the DNA
evidence. In his postconviction motion, Wynne claimed that his trial counsel was ineffective for
failing to object to the DNA finger swab testing evidence without having a hearing to exclude the
evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993) (Daubert). He also argued in his motion, that if unsuccessful in
excluding the DNA evidence through a Daubert hearing, his attorney should have retained his own
expert to attack the credibility of the State’s DNA evidence. The district court found that the
allegations in Wynne’s motion with respect to this claim did not warrant an evidentiary hearing.
Daubert motions and motions in limine serve different purposes. Under the framework of
Daubert and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court
acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. State
v. Simmer, 304 Neb. 369, 935 N.W.2d 167 (2019). The purpose of the gatekeeping function is to
ensure that the courtroom door remains closed to “junk science” that might unduly influence the
jury, while admitting reliable expert testimony that will assist the trier of fact. Id. On the other
hand, a motion in limine is a procedural step to prevent prejudicial evidence from reaching the
jury. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020). It is not the office of a motion in
limine to obtain a final ruling upon the ultimate admissibility of the evidence. Id. Therefore, when
a court overrules a motion in limine to exclude evidence, the movant must object when the
particular evidence is offered at trial in order to predicate error before an appellate court. Id.
Wynne’s claim on appeal that his trial counsel was ineffective for failing to file a motion
in limine to challenge the admissibility of testimony about the DNA testing results does not appear
in his amended motion for postconviction relief. See State v. Munoz, 309 Neb. 285, 959 N.W.2d
806 (2021), cert. denied ___ U.S. ___, 142 S. Ct. 370, 211 L. Ed. 2d 197 (in appeal from denial of
postconviction relief, appellate court will not consider for first time on appeal claims that were not
raised in verified motion). Accordingly, we do not address this assignment of error further.
Wynne’s Decision Not to Testify.
A defendant has a fundamental constitutional right to testify. State v. Ely, 306 Neb. 461,
945 N.W.2d 492 (2020). The right to testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). Defense
counsel bears the primary responsibility for advising a defendant of his or her right to testify or
not to testify, of the strategic implications of each choice, and that the choice is ultimately for the
defendant to make. State v. Ely, supra.
Defense counsel’s advice to waive the right to testify can present a valid claim of
ineffective assistance of counsel in two instances: (1) if the defendant shows that counsel interfered
with his or her freedom to decide to testify or (2) if counsel’s tactical advice to waive the right was
unreasonable. State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
Wynne does not claim that his trial counsel interfered with his freedom to decide whether
to testify, arguing instead that his counsel’s advice not to testify was unreasonable. In his amended
postconviction motion, Wynne alleged that he wanted to testify on his behalf, that he advised his
trial counsel of his desire to do so, and that his decision not to testify was based solely on advice
received from counsel. He argued that if called to testify, he would have testified that he had prior

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drug dealings with the victim and that this information explains the telephone records connecting
him to the victim, his palmprint found in the victim’s vehicle, and the DNA evidence from finger
swabs of the victim from which Wynne could not be excluded as a contributor. Wynne did not
explain in his motion how this testimony would have changed the outcome of the trial or why his
trial counsel’s advice not to testify was unreasonable. Various witnesses testified at trial that they
were unaware of any prior acquaintance between Wynne and the victim, and Wynne does not
explain how interjecting evidence about such a connection, especially a drug-related connection,
would have changed the outcome of the trial. His allegations are insufficient to show a reasonable
probability that the outcome would have been different but for the failure to call him as a witness.
The district court did not err in denying an evidentiary hearing on this claim.
Surveillance Video Evidence.
One of the exhibits received during Wynne’s trial was a surveillance video from an
automotive repair business located across the street from where the crime occurred, which captured
footage from the timeframe surrounding the homicide. Wynne’s attorney did not object to the offer
of the video at trial. As we described in our opinion following Wynne’s direct appeal, the video
showed the occurrence of the murder, including a view of the hair and clothing of the shooter;
however, facial features were not discernable on the video. See State v. Wynne, 24 Neb. App. 377,
887 N.W.2d 515 (2016).
In his amended postconviction motion, Wynne claimed that his trial counsel was
ineffective both for refusing to file a motion in limine seeking to exclude the video and for failing
to object to its admission at trial. In support of this claim, Wynne argued that the quality of the
video was too poor to allow a viewer to identify any meaningful characteristics of the individuals
depicted in it. Referencing Neb. Rev. Stat. § 27-403 (Reissue 2016), he argued that the minimal
probative value of the video was substantially outweighed by its prejudice to him. He alleged that
he discussed the video with his trial counsel, that he asked his counsel to file a motion to exclude
the video from evidence, and that his counsel refused to do so.
Other than his reference to § 27-403, Wynne has not shown how his trial counsel would
have been successful in excluding the video from evidence. Although the surveillance video was
prejudicial to Wynne, it was also relevant; the quality of the video goes to its weight rather than
its admissibility. Most, if not all, evidence offered by a party is calculated to be prejudicial to the
opposing party. State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019). Only evidence tending
to suggest a decision on an improper basis is unfairly prejudicial. See id. Defense counsel is not
ineffective for failing to raise an argument that has no merit. State v. Martinez, 302 Neb. 526, 924
N.W.2d 295 (2019). The district court did not err in denying relief on this claim without an
evidentiary hearing.
Failure to Call Witnesses.
Wynne asserts that his trial counsel was ineffective in failing to call “favorable witnesses
to the defense.” Brief for appellant at 7. This assignment of error relates to the seventh and eighth
claims raised in Wynne’s amended postconviction motion wherein he asserted his counsel was
ineffective for failing to investigate or call at trial certain witnesses, including witnesses Wynne
alleged could have provided him with an alibi defense. The district court rejected both of these

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claims, finding that Wynne’s assertions were generic, did not state what exculpatory evidence
could have been gathered, or what specific testimony these witnesses could have provided. The
court concluded that Wynne’s conclusory allegations were insufficient to warrant an evidentiary
hearing. We direct our analysis to the portions of Wynne’s seventh and eighth postconviction
claims for relief that he argues in his brief on appeal.
In his seventh claim for relief, Wynne alleged that his trial counsel was ineffective for
failing to call his girlfriend’s father as a witness. Wynne argued that the father, who saw Wynne
on the day in question at a point after the crime, could have testified that Wynne was “wearing
church clothes,” as opposed to the clothing worn by one of the men who approached the victim’s
vehicle in the moments leading up to crime. He also alleged in his motion that his counsel was
ineffective for failing to question the girlfriend, who he claimed could have also testified that he
was wearing “church clothes” that day at a point after the murder occurred. The proposed
testimony of these witnesses does not account for Wynne’s presence at the time of the murder, and
the fact that he was wearing different clothing at a later point in the day is inconsequential. We
also note that both the girlfriend and Wynne’s mother suggested in their testimony that Wynne
was at the girlfriend’s house at the time of the murder. The jury rejected this evidence in favor of
other evidence implicating Wynne in the crime. Wynne cannot show that his counsel’s
performance was deficient or that he was prejudiced by his counsel’s failure to call the father as a
witness or to elicit testimony from his girlfriend about the clothing she observed him wearing. The
district court did not err in denying Wynne’s seventh claim for relief without an evidentiary
hearing.
In his eighth claim for relief, Wynne alleged that his trial counsel was ineffective for failing
to call “Fat Man,” as a defense alibi witness. He noted in his amended postconviction motion that
his girlfriend testified at trial that when she returned from work on the day in question, Wynne and
her “cousin Fat Man” were there. Wynne argued that his trial counsel should have asked the
girlfriend if she knew what time Wynne arrived at her home that day (counsel did not
cross-examine the girlfriend). He argued further that counsel’s failure to depose or call “Fat Man”
as a witness was objectively unreasonable because “his testimony could have provided . . . Wynne
with an alibi which would have been exculpatory evidence.” Wynne did not allege in his motion,
however, what the testimony of “Fat Man” would have been. In a motion for postconviction relief,
a defendant is required to specifically allege what the testimony of potential witnesses would have
been if they had been called at trial in order to avoid dismissal without an evidentiary hearing.
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021), cert. denied ___ U.S. ___, 142 S. Ct. 370,
211 L. Ed. 2d 197. Absent specific allegations, a motion for postconviction relief effectively
becomes a discovery motion to determine whether evidence favorable to a defendant’s position
actually exists. Id. The district court did not err in denying the eighth claim for relief set forth in
Wynne’s amended postconviction motion without an evidentiary hearing.
Fingerprint Evidence.
Wynne asserts on appeal that his trial counsel was ineffective in “failing to challenge the
admissibility of prejudicial finger print evidence Exhibit #170 as an error on direct appeal and at
trial adequately.” Brief for appellant at 7. Wynne raised claims of ineffective assistance of trial

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counsel relating to fingerprint evidence in the second and twelfth claims of his amended motion
for postconviction relief.
In the second claim of his amended postconviction motion, Wynne alleged that his trial
counsel was ineffective for failing to file a Daubert motion and failing to call his own fingerprint
expert. In denying Wynne’s motion for postconviction relief, the district court wrote a detailed
analysis of both of these assertions and concluded that Wynne’s allegations did not warrant an
evidentiary hearing on the second claim set forth in his motion. To the extent Wynne’s assignment
of error is directed to the court’s denial of an evidentiary hearing on the second claim raised in his
postconviction motion, he has not specifically argued it as required for this court to consider it. In
the argument portion of his brief, Wynne repeats the district court’s analysis, essentially word for
word, only changing the conclusion to state that the allegations with respect to the second claim in
his postconviction motion “now warrant an evidentiary hearing.” Brief for appellant at 30. An
alleged error must be both specifically assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court. State v. Britt, 310 Neb. 69, 963 N.W.2d
533 (2021). See, also, State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019) (argument that
does little more than restate assignment of error does not support assignment, and appellate court
will not address it).
In the twelfth claim of his amended postconviction motion, Wynne alleged that his
appellate counsel was ineffective for failing to assign as error on direct appeal that the fingerprint
evidence should have been excluded at trial pursuant to a pretrial motion in limine filed by counsel
based on the late disclosure of fingerprint evidence from the State. In denying Wynne’s amended
postconviction motion, the district court did not directly discuss Wynne’s twelfth claim, but it
concluded at the end of its order that Wynne’s postconviction motion should be denied without an
evidentiary hearing. On appeal, Wynne does direct specific arguments to his claim that counsel
should have appealed the trial court’s denial of his pretrial motion in limine to exclude the State’s
fingerprint evidence; however, Wynne has not shown that his counsel performed deficiently or
that he was prejudiced.
Wynne’s trial counsel filed a motion in limine based on the late disclosure of fingerprint
evidence by the State, requesting that the fingerprint evidence be excluded at trial due to the late
disclosure (which included the fact that the Omaha Police Department crime laboratory had been
involved in the misidentification of a fingerprint in 2012 and that the employee who verified the
identification of Wynne’s print in the present case was one of the individuals involved in the 2012
misidentification). The issues raised in the motion in limine were addressed at a hearing before the
district court in January 2015, and the court concluded that the proper remedy for the State’s late
disclosure was a continuance of the trial, rather than exclusion of the fingerprint evidence. The
district court’s conclusion that a continuance was a proper remedy for the State’s late disclosure
of the fingerprint evidence in this case is consistent with Nebraska law. See State v. Case, 304
Neb. 829, 937 N.W.2d 216 (2020) (stating preference for continuance rather than exclusion of
evidence at trial in situations where party has failed to disclose evidence).
Here, Wynne’s attorney would not have been successful had he raised the issue on direct
appeal. The district court did grant a continuance based on the State’s late disclosure of the
fingerprint evidence. Further, Wynne’s attorney could not have raised the issue of the court’s
ruling on the motion in limine on direct appeal because he did not renew his motion in limine at

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trial. Because overruling a motion in limine is not a final ruling on admissibility of evidence and,
therefore, does not present a question for appellate review, a question concerning admissibility of
evidence which is the subject of a motion in limine is raised and preserved for appellate review by
an appropriate objection to the evidence during trial. State v. Martinez, 306 Neb. 516, 946 N.W.2d
445 (2020). Although Wynne’s counsel did not renew his motion in limine at trial, he did conduct
a vigorous cross-examination of the crime lab witness called by the State to admit the fingerprint
evidence. And, as noted in our opinion on direct appeal, considerable time was spent at trial
exploring the collection and analysis of fingerprint evidence, the qualifications of those who
collected and analyzed the evidence in this case, and the mishandling of fingerprint evidence (not
associated with this case) in 2012. See State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).
Wynne has now shown that his trial counsel performance was deficient with respect to the
fingerprint evidence or that he was prejudiced by it. The district court did not err in denying without
an evidentiary hearing Wynne’s claim concerning the late disclosure of fingerprint evidence.
CONCLUSION
Wynne’s claims of ineffective assistance of trial counsel did not warrant an evidentiary
hearing. We affirm the order of the district court.
AFFIRMED.

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