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                                                        - 802 -
                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                  STATE v. WATSON
                                                  Cite as 295 Neb. 802




                                        State of Nebraska, appellee, v.
                                           Jerry Watson, appellant.
                                                    ___ N.W.2d ___

                                        Filed February 10, 2017.   No. S-16-335.

                1.	 Postconviction: Constitutional Law: Judgments. 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.
                2.	 Postconviction: Constitutional Law: Proof. In a motion for postcon-
                     viction relief, the defendant must allege facts which, if proved, consti-
                     tute a denial or violation of his or her rights under the U.S. or Nebraska
                     Constitution, causing the judgment against the defendant to be void
                     or voidable.
                 3.	 ____: ____: ____. 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 defend­
                     ant’s rights under the Nebraska or federal Constitution.
                4.	 Postconviction: Proof. 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.
                5.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective
                     assistance of counsel claim alleges a violation of the fundamental con-
                     stitutional right to a fair trial.
                6.	 Effectiveness of Counsel: Proof: Words and Phrases: 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 per-
                     formance was deficient and that this deficient performance actually
                     prejudiced the defendant’s defense. To show prejudice under the preju-
                     dice component of the Strickland test, the defendant must demonstrate
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. WATSON
                              Cite as 295 Neb. 802

     a reasonable probability that but for his or her counsel’s deficient
     perform­ance, the result of the proceeding would have been different. 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 confi-
     dence in the outcome.
 7.	 Homicide. Malice is not an element of second degree murder.
 8.	 Homicide: Jury Instructions. A defendant convicted of first degree
     murder under a step instruction cannot be prejudiced by any error in
     the instructions on second degree murder or manslaughter, because
     under the step instruction, the jury would not have reached those levels
     of homicide.
 9.	 Constitutional Law: Motions to Suppress: Search and Seizure.
     Motions to suppress are designed to remedy unlawful acts, such as an
     unconstitutional search and seizure.
10.	 Evidence. Assertions concerning the chain of custody go to the weight
     to be given to the evidence presented rather than to the admissibility of
     that evidence.

   Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
   Matthew Richard Kahler, of Finley & Kahler Law Firm,
P.C., L.L.O., for appellant.
   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
      Heavican, C.J.
                     INTRODUCTION
   Jerry Watson was convicted of first degree murder and use
of a weapon to commit a felony. Watson was sentenced to life
imprisonment for the murder conviction and an additional 10
to 20 years’ imprisonment on the use conviction. This court
affirmed Watson’s convictions and sentences.1 Watson later

 1	
      State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
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          Nebraska Supreme Court A dvance Sheets
                  295 Nebraska R eports
                       STATE v. WATSON
                       Cite as 295 Neb. 802

sought postconviction relief. His motion was denied without
an evidentiary hearing. He appeals. We affirm.

                   FACTUAL BACKGROUND
    In 2011, Watson was convicted of the murder of Carroll
Bonnet. Bonnet was killed in October 1978. The Omaha Police
Department’s cold case homicide unit began further investiga-
tion into Bonnet’s murder in 2009. In connection with that
investigation, certain evidence was subjected to new scientific
testing, and from that testing, Watson became a suspect in
Bonnet’s murder.
    Bonnet was a 61-year-old man living in Omaha, Nebraska.
Bonnet was found in his apartment by the manager of Bonnet’s
apartment complex, lying naked and face down with a stab
wound to his abdomen. Bonnet’s telephone cord had been sev-
ered, his wallet was missing, and three towels containing fecal
matter and hair were found near Bonnet’s body. Beer cans
were found in the kitchen sink and in the trash can. According
to the record, a note believed to be written by the killer was
also found in Bonnet’s apartment. Bonnet’s car was located
shortly thereafter in Cicero, Illinois. Stolen Illinois license
plates were on the car.
    Scientific testing was conducted on a beer can, cigarette
butts found in Bonnet’s apartment and car, the contents of the
living room and kitchen wastebaskets, the severed telephone
cord, and fingerprints found in the apartment and car. Prints
belonging to Bonnet and Watson, as well as to other uniden-
tified individuals, were found in Bonnet’s apartment. Prints
belonging to Bonnet and another unidentified individual were
found in Bonnet’s car. DNA on cigarette butts found both in
the apartment and in the car were a match to Watson. A hair
found on one of the towels located near Bonnet’s body was
from Watson; the other hair and the fecal matter were a match
to Bonnet.
    In addition, further investigation showed that Watson was
originally from Cicero. The investigation revealed that Watson
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            Nebraska Supreme Court A dvance Sheets
                    295 Nebraska R eports
                        STATE v. WATSON
                        Cite as 295 Neb. 802

had a relative that lived in Omaha “at some point” and that
Watson had visited Omaha in the fall of 1978.
   Watson was charged in November 2010. Following a jury
trial, he was found guilty of first degree murder and use of
a weapon to commit a felony. Watson was sentenced to life
imprisonment plus 10 to 20 years’ imprisonment. He appealed.
This court affirmed, holding that (1) the preindictment delay
of 33 years did not violate Watson’s confrontation or due proc­
ess rights, (2) the evidence was sufficient to support the first
degree murder conviction, and (3) the prosecutor’s comment
made during defense counsel’s examination of a witness did
not necessitate a mistrial. A more complete recitation of the
facts surrounding Watson’s conviction can be found in our
prior opinion.2
   In March 2014, Watson filed a motion seeking postconvic-
tion relief. He alleged that his trial counsel was ineffective in
failing (1) to obtain a DNA expert, (2) to investigate another
suspect, (3) to file a motion to quash, (4) to object to the sec-
ond degree murder instruction, (5) to object to testimony by a
member of law enforcement, (6) to investigate a handwritten
note left at the scene, (7) to file a motion to suppress DNA
evidence, (8) to properly advise him during plea negotiations,
and (9) to obtain a fingerprint expert.
   The district court dismissed Watson’s motion without an
evidentiary hearing. Watson appeals.

               ASSIGNMENT OF ERROR
  On appeal, Watson assigns that the district court erred
in denying his motion for postconviction relief without a
hearing.

                STANDARD OF REVIEW
  In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant

 2	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                               STATE v. WATSON
                               Cite as 295 Neb. 802

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.3
                          ANALYSIS
   [1,2] On appeal, Watson argues that the district court
erred in denying his motion for postconviction relief with-
out a hearing. 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 void-
able.4 Thus, in a motion for postconviction relief, the defend­
ant must allege facts which, if proved, constitute a denial
or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to
be void or voidable.5
   [3,4] 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.6 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.7
   Watson’s postconviction claims center on the alleged inef-
fective assistance provided by his trial counsel. That counsel
represented Watson at trial and again on direct appeal; as such,
Watson’s claims in this postconviction proceeding are not pro-
cedurally barred.

 3	
      State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
 4	
      Neb. Rev. Stat. § 29-3001 (Reissue 2016).
 5	
      State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).
 6	
      Id.
 7	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                               STATE v. WATSON
                               Cite as 295 Neb. 802

   [5,6] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to
a fair trial.8 To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,9 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense.10 To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different.11 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.12

DNA Expert.
   In Watson’s motion for postconviction relief, he first alleged
that his counsel was ineffective for failing to obtain a DNA
expert to conduct independent DNA testing and analyze the
State’s results.
   Watson identified a specific witness whom he alleged would
have testified to the flaws in the State’s evidence. And Watson
identifies those flaws and how his expert would testify gener-
ally. But Watson does not allege how his expert would specifi-
cally testify with regard to the DNA profiles generated in this
case or to the statistics generated for the profiles for which
Watson could not be excluded as a contributor.

 8	
      Id.
 9	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
10	
      State v. Starks, supra note 5.
11	
      Id.
12	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. WATSON
                              Cite as 295 Neb. 802

   The State directs us to State v. Edwards.13 In Edwards, we
found that the trial record affirmatively showed that defense
counsel’s strategies were reasonable in not retaining a DNA
expert. We concluded that counsel in Edwards was reasonable
in effectively cross-examining the State’s witnesses to plant the
seed of doubt in jurors’ minds as to that evidence rather than
call an expert to propose an “improbable theory.”14
   Counsel in this case extensively and thoroughly cross-­
examined the DNA experts who testified for the State. Given
that Watson’s allegations attack that testimony, but fail to
allege his expert’s own opinions on those same matters, we
must conclude that Watson’s allegations are insufficient to sup-
port the granting of postconviction relief.
   There is no merit to Watson’s first alleged basis for postcon-
viction relief.
Investigate Other Suspects.
   In his second allegation, Watson argued that his trial counsel
was ineffective for failing to investigate other suspects, specifi-
cally George Kirby, primarily so that a DNA sample could be
obtained from Kirby to compare to the results of the testing
that was performed.
   The district court noted that the record shows counsel
attempted to locate these suspects, including Kirby, and was
unable to do so such that these individuals were found to
be unavailable. Evidence at trial showed that Kirby, at least,
was deceased. And evidence at trial also showed that a DNA
sample from Kirby had been obtained at the time of the origi-
nal investigation.
   We cannot conclude that counsel was deficient for failing to
obtain something that had already been obtained—in this case,
a DNA sample—or in failing to find witnesses who were later
found to be unavailable.

13	
      State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
14	
      Id. at 412, 821 N.W.2d at 705.
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                              STATE v. WATSON
                              Cite as 295 Neb. 802

   The district court was correct in concluding that Watson’s
second allegation was without merit.
Motion to Quash.
   In his third allegation, Watson contended that his trial coun-
sel was ineffective in failing to file a motion to quash. Watson
contended that the information filed against him charged a
violation of first degree murder under Neb. Rev. Stat. § 28-303
(Reissue 1979), when he should have been charged under Neb.
Rev. Stat. § 28-401 (Reissue 1975).
   In rejecting this allegation, the district court noted that the
language setting forth the elements of first degree murder was
identical in both § 28-303 and § 28-401 and that this language
was used in the information charging Watson with first degree
murder. As such, the district court concluded that Watson suf-
fered no prejudice.
   The district court did not err in finding this allegation to
be without merit. For the reasons the court noted, Watson was
given notice of the elements of the charged crime and could
not have been prejudiced by an error in the statutory citation.
   More importantly, however, the information’s statutory
citation was not erroneous. Bonnet was killed in October
1978. Nebraska’s criminal code was revamped in 1977, with
an operative date of July 1, 1978.15 As of the date this crime
was committed, the relevant citation was, as it is today,
§ 28-303. Because any motion to quash would have been
denied, we cannot find that counsel was deficient for failing
to file one.
Second Degree Murder Instructions.
   In his fourth allegation, Watson contended that the instruc-
tions at his trial defining second degree murder were incorrect.
Specifically, Watson contended that counsel was ineffective
for failing to object to the omission of the term “malice.”

15	
      See 1977 Neb. Laws, L.B. 38, § 325.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                               STATE v. WATSON
                               Cite as 295 Neb. 802

   [7,8] As we have found previously, malice is not an element
of second degree murder.16 Moreover, any error in his second
degree murder instructions would not have prejudiced Watson,
because he was convicted of first degree murder pursuant to
a step instruction. We noted in State v. Alarcon-Chavez,17 that
“a defendant convicted of first degree murder under a step
instruction cannot be prejudiced by any error in the instructions
on second degree murder or manslaughter because under the
step instruction, the jury would not have reached those levels
of homicide.”
   Accordingly, the district court did not err in finding Watson’s
fourth allegation in his postconviction motion to be with-
out merit.

Law Enforcement Testimony.
   In his fifth allegation, Watson argued that his counsel was
ineffective for failing to object to law enforcement testimony
regarding a description given to police of a person seen with
Bonnet in the days prior to his death and to that officer’s tes-
timony that this description matched a photograph of Watson.
   But Watson failed to allege how he was prejudiced by this
testimony. Given that Watson’s fingerprint and DNA were
found in Bonnet’s apartment and car, the jury was aware
that Bonnet and Watson were acquainted. Thus, no prejudice
could have resulted from testimony placing Bonnet and Watson
together in the days prior to Bonnet’s death.
   There is no merit to Watson’s fifth allegation.

Investigate Handwritten Note
Left in Bonnet’s Apartment.
   In his sixth allegation, Watson argued that counsel was inef-
fective in various particulars with respect to a note, apparently

16	
      See State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).
17	
      State v. Alarcon-Chavez, 284 Neb. 322, 335, 821 N.W.2d 359, 368 (2012).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                               STATE v. WATSON
                               Cite as 295 Neb. 802

left by Bonnet’s killer, found in Bonnet’s apartment. Watson
contended that counsel failed to obtain a copy of the report
prepared by the U.S. Secret Service regarding handwriting
analysis on the note, because those test results would show
either that Watson wrote the note or that he did not. Watson
stated that this was particularly important because the note had
been lost.
   The district court rejected this allegation, contending that
Watson was not a suspect at the time the note was originally
tested and that thus, the handwriting analysis would be irrel-
evant as to him. The district court also observed that because
the original note no longer existed, it would not be possible to
conduct further testing on it.
   The district court did not err. It was correct in holding that
since the note is now missing, further testing would not be
possible, and also that the results are not relevant to Watson,
because his handwriting was not a subject of the report.
Moreover, there is at least some evidence in the record to
suggest that counsel did, in fact, have a copy of the report in
question, because counsel referred to it and had a law enforce-
ment witness read from it during cross-examination. For these
reasons, we cannot conclude that counsel was deficient. There
was no merit to Watson’s sixth allegation.

Motion to Suppress DNA Evidence.
   In his seventh allegation, Watson contended that his counsel
was ineffective in failing to file a motion to suppress DNA
evidence due to the lack of a chain of custody and the storage
of physical evidence.
   [9,10] Watson’s concern is with the chain of custody and
the storage of some of the physical evidence offered against
him. But motions to suppress are designed to remedy unlaw-
ful acts, such as an unconstitutional search and seizure.18

18	
      Neb. Rev. Stat. § 29-822 (Reissue 2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                               STATE v. WATSON
                               Cite as 295 Neb. 802

We held in State v. Bradley19 that assertions concerning the
chain of custody go to the weight to be given to the evidence
presented rather than to the admissibility of that evidence.
A review of the record shows that counsel consistently chal-
lenged the physical evidence collected at the time of the mur-
der on the basis of the storage of such items.
   Counsel was not deficient in failing to file a motion to
suppress, because the filing of a motion to suppress would
have been inappropriate in this case. The district court did not
err in concluding that Watson’s seventh allegation was with-
out merit.

Attorney’s Advisement Regarding
Plea Agreement.
   In his eighth allegation, Watson argued that his counsel
provided ineffective assistance in his advisement regarding the
State’s plea offer. According to Watson, the State offered to let
him plead guilty to manslaughter. Counsel informed Watson
that the maximum sentence for manslaughter was 20 years’
imprisonment; Watson now claims that counsel was ineffec-
tive, because the maximum sentence was actually 10 years’
imprisonment.
   For the same reasons there was no error with respect to
Watson’s allegations regarding the motion to quash, there was
no merit to this allegation. Prior to July 1, 1978, the maximum
punishment for manslaughter was 10 years.20 At the time of
Bonnet’s death in October 1978, manslaughter was a Class III
felony21 with a maximum punishment of 20 years’ imprison-
ment.22 Counsel’s advisement of 20 years’ imprisonment was
therefore correct and not deficient.

19	
      See State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
20	
      Neb. Rev. Stat. § 28-403 (Reissue 1975).
21	
      Neb. Rev. Stat. § 28-305 (Reissue 1979).
22	
      Neb. Rev. Stat. § 28-105 (Reissue 1979).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                        STATE v. WATSON
                        Cite as 295 Neb. 802

Fingerprint Expert.
   In his ninth allegation, Watson contended that his counsel
was ineffective in failing to call a fingerprint expert to refute
the evidence presented by the State.
   In his motion and supplemental facts, Watson directed
the district court to what he perceived to be weaknesses in
the fingerprint evidence presented by the State and argued
that his counsel should have retained a separate expert. But
Watson did not allege who that expert would be or, more
importantly, what that expert’s testimony would be. As such,
Watson’s allegations are insufficient to support the granting
of postconviction relief. Moreover, defense counsel did cross-
examine the State’s witnesses with respect to weaknesses in
their testimonies, thus revealing such potential weaknesses to
the jury.
   The district court was correct in finding that Watson’s ninth
and final allegation was without merit.
                      CONCLUSION
   The decision of the district court denying postconviction
relief is affirmed.
                                                 A ffirmed.
