dissenting.
I respectfully dissent. In State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845 (1985), we affirmed defendant’s conviction, holding, among other things, that the trial court did not abuse its discretion in refusing defendant a continuance for the purpose of seeking additional expert medical testimony. Now, we hold that defendant should be granted postconviction relief because an additional expert witness was not called by defendant’s counsel. It appears we are now furnishing relief that we earlier denied, on the basis of counsel’s conduct rather than the system’s decisions.
We have held, as set out in the majority opinion, that the findings of the trial court in a proceeding for postconviction relief will be upheld on appeal unless clearly erroneous. State v. Rubek, 225 Neb. 477, 406 N.W.2d 130 (1987). In its order denying p'ostconviction relief, the trial court found:
Trial counsel testified that he was not prepared for trial prior to February 29, 1984, however, by March 5, 1984 he was prepared. The record in this case reflects that he performed at least as well as any other criminal defense attorney in the Omaha area and was prepared with Dr. *350McKinney’s deposition and had talked to Dr. Golden by the evening of March 5, 1984, the opening day of trial. Defendant did not have to present evidence until 1:30 p.m. on March 8, 1984 and did not rest until the morning of March 9, 1984. Therefore, there was sufficient time to have conferred with Golden as to his testimony and presented same if counsel had desired to present it during the trial rather than saving it for the Motion for New Trial if he lost.
Effectiveness of counsel is not to be judged by hindsight. The record indicates a conscientious effort on trial counsel’s part to protect the interests of the defendant.
(Emphasis in original.)
The victim in this case was severely injured. In reviewing trial counsel’s actions, we must not lose sight of defense counsel’s thoughts in choosing to call, or not call, a particular witness. Counsel must have been concerned about a possible adverse effect on the jury if the victim were subjected to further attacks on her credibility by producing a medical witness whose testimony, in effect, says the victim is not testifying from her memory but from subsequent suggestion. Earlier testimony was received which indicated the victim originally thought she had been struck by a hit-and-run car. The point was before the jury, although not buttressed directly by medical testimony. At some point, a jury will say “enough,” and such additional testimony becomes counterproductive to the purposes for which it is offered.
Defense counsel had seen the victim testify at the motion to transfer the case to juvenile court and at a suppression hearing, both courtroom settings, so to speak. Additionally, counsel had interviewed the victim. Apparently, counsel was convinced of the effective way in which the victim presented her testimony, as evidenced by the fact counsel did not cross-examine the victim during the trial (after he explained the matter to defendant and his parents and received their permission to so act). The gist of the trial court’s finding is that defense counsel could have called Dr. Golden, if he wished.
Our “Monday-morning quarterbacking” of defense counsel *351may result in the victim’s again being put through a very difficult procedure. I believe the record supports the trial court’s finding that defendant’s counsel “performed at least as well as any other criminal defense attorney in the Omaha area.. ..” I would affirm.
Shanahan, J., and Colwell, D.J., Retired, join in this dissent.