                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. DELGADO


  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.

                                  JAMES DELGADO, APPELLANT.


                               Filed June 6, 2017.   No. A-16-662.


       Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.
Affirmed.
       Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
       INBODY, Judge.
                                       I. INTRODUCTION
        James Delgado appeals from the Scotts Bluff County District Court’s denial of his petition
for postconviction relief following an evidentiary hearing. For the reasons set forth herein, we
affirm.
                                  II. STATEMENT OF FACTS
       In 2007, Delgado was convicted of sexual assault of a minor and a jury trial was held,
during which he was represented by William Madelung. Delgado was sentenced to 24 to 36 years’
imprisonment.
       The district court’s factual background as set forth in its postconviction order states that:
              Monday, April 9, 2007, was a non-school day at Gering High School. At
       approximately 8:00 [a.m.] on that day Cheryl D[.] took her fifteen year old daughter [J.D.]



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       to stay with “Uncle Alfred” while Cheryl went to work. At the time Delgado was 54 years
       old and residing with Uncle Alfred. Later that same morning Delgado borrowed Uncle
       Alfred’s van and had [J.D.] drive him one or more times to a liquor store where he
       purchased beer and Southern Comfort. The two then drove around for part of the afternoon
       drinking the alcohol. At some point in time [J.D.] became quite drunk and vomited.
       Delgado took her to the Super 8 Motel where he rented a room. The motel manager
       confirmed that on April 9, 2007, between 1:00 [p.m.] and 1:45 [p.m.] she rented a room to
       Delgado. [J.D.]’s next memory was waking up in a motel bed wearing no pants or
       underwear. Delgado was also present in the motel room. According to [J.D.] Delgado told
       her they had had sex numerous times. She stated that he also “kept sticking his fingers
       inside of [her] and [she] kept pushing his hand away.” That same evening Cheryl [] tried
       numerous times to contact [J.D.] without success. She eventually contacted the police to
       report [J.D.] was missing. At approximately 7:00 [p.m.] [J.D.] returned to Uncle Alfred’s
       residence where she was contacted by Officer William Howton.
               The following morning Cheryl took [J.D.] to see Michelle Cheloha, M.D. As a
       standard practice Dr. Cheloha contacted law enforcement to report a possible sexual
       assault. Officer Joe Rohrer responded with a sexual assault kit.
               A warrant was eventually issued to arrest Delgado. He was arrested for sexual
       assault on April 10, 2007, at approximately 7:00 [p.m.] He was interviewed that same
       evening at the Scottsbluff Police Department by [Officer] Rohrer. Delgado initially stated
       [J.D.] drove him to Sidney and nothing more occurred. On further inquiry Delgado
       admitted that he provided alcohol to [J.D.]; that when they returned from Sidney [J.D.]
       went to Uncle Alfred’s home while he stayed with his friend Rubago; but that [J.D.] was
       not drunk. On further inquiry Delgado admitted getting a motel room because [J.D.] was
       drunk. He said he put her in bed and then sat in a chair while she slept. On further inquiry
       Delgado said [J.D.] puked on her pants so he took them off to clean them. Several times
       when [Officer] Rohrer took a break Delgado made attempts to leave the interview room or
       the police station. Delgado denied touching [J.D.] “in any inappropriate way”.
               Delgado did not testify at trial. [J.D.]’s claim that Delgado told her they had had
       sex was never expressly contradicted. It was unclear from the evidence when or why
       Delgado removed [J.D.]’s underwear in addition to her pants.
               On April 10, 2007, at approximately 1:30 [p.m.] the motel room was searched.
       Numerous empty beer cans, an empty 12-pack beer carton, and an empty Southern Comfort
       bottle were located and seized.

        On direct appeal, Delgado was represented by Leonard Tabor and contended that the
evidence was insufficient to support his conviction and that his sentence was excessive. The State
then filed a motion for summary affirmance, which we granted.
        Subsequently, Delgado filed a motion for postconviction relief, which he later amended.
In February 2016, the district court held an evidentiary hearing regarding Delgado’s amended
motion for postconviction relief. Delgado presented evidence via the following depositions: Dr.
Jenna Fiala, Madelung, Tabor, and Delgado. The district court also received the bill of exceptions



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of the trial proceedings in Delgado’s case. For brevity, the relevant evidence will be included in
the analysis portion of this opinion.
        Following the hearing, the district court ordered the parties to submit written briefs in
support of their positions. Upon review of the parties’ briefs, the district court denied Delgado’s
motion for postconviction relief.
                                  III. ASSIGNMENTS OF ERROR
        On appeal, Delgado’s assignments of error, consolidated and restated are that the district
court erroneously denied postconviction relief and that the district court erroneously held that his
Sixth Amendment right to effective assistance of trial counsel was not violated when trial counsel
failed to consult an expert medical witness to counter the State’s expert testimony, did not seek to
exclude or limit the State’s expert testimony, failed to object to a law enforcement officer’s
testimony regarding Delgado’s truthfulness during interrogation, and failed to offer favorable
DNA evidence at trial. Delgado also alleges the district court erroneously held that his Sixth
Amendment right to effective assistance of direct appeal counsel was not violated when his direct
appeal counsel failed to raise the challenges listed above on direct appeal.
                                   IV. STANDARD OF REVIEW
        A defendant requesting postconviction relief must establish the basis for such relief, and
the findings of the district court will not be disturbed unless they are clearly erroneous. In appeals
from postconviction proceedings, we review 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. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When reviewing questions
of law, an appellate court resolves the questions independently of the lower court’s conclusion.
State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
                                            V. ANALYSIS
        In order to establish a right to postconviction relief based on an ineffective assistance of
counsel claim, the defendant has the burden, in accordance with Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law. State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015). Next, the
defendant must show that counsel’s deficient performance prejudiced the defense in his or her
case. Id. To establish the prejudice element of the Strickland test, a defendant must show that the
counsel’s deficient performance was of such gravity to render the result of the trial unreliable or
the proceeding fundamentally unfair. State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
Such prejudice is shown by establishing that but for the counsel’s deficient performance, there is
a reasonable probability that the case’s outcome would have been different. Id. The two prongs of
this test, deficient performance and prejudice, may be addressed in either order. State v.
Armendariz, supra. The entire ineffective analysis is viewed with a strong presumption that
counsel’s actions were reasonable. Id.




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                                        1. TRIAL COUNSEL
        A motion for postconviction relief asserting ineffective assistance of trial counsel is
procedurally barred when: (1) the defendant was represented by different counsel on direct appeal
than at trial; (2) an ineffective assistance of trial counsel claim was not brought on direct appeal;
and (3) the alleged deficiencies in trial counsel’s performance were known to the defendant or
apparent from the record. State v. Williams, supra. A defendant cannot secure review of issues
which were or could have been litigated on direct appeal on a motion for postconviction relief. Id.
When claims of a trial counsel’s performance are procedurally barred, we examine claims
regarding trial counsel’s performance only if the defendant assigns as error that appellate counsel
was ineffective for failing to raise trial counsel’s performance. State v. Duncan, 278 Neb. 1006,
775 N.W.2d 922 (2009).
        In this instance, Delgado was represented by different counsel on direct appeal than at the
time of trial. On direct appeal, Delgado did not raise any ineffective assistance of trial counsel
arguments. All of Delgado’s allegations of ineffective assistance of trial counsel could have been
raised on direct appeal, as he had different appellate counsel than trial counsel. Consequently,
Delgado’s ineffective assistance of trial counsel claims are procedurally barred.
                                      2. APPELLATE COUNSEL
        When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced
the defendant. State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). That is, courts begin by
assessing the strength of the claim appellate counsel failed to raise. Id. Counsel’s failure to raise
an issue on appeal could be ineffective assistance only if there is a reasonable probability that
inclusion of the issue would have changed the appeal’s result. Id. When a case presents layered
ineffectiveness claims, we determine the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the Strickland standard. Id. If trial counsel
was not ineffective, then the defendant suffered no prejudice when appellant counsel failed to bring
an ineffective assistance of trial counsel claim. Id.
                          (a) Failure to Consult Expert Medical Witness
        Delgado contends the district court erroneously determined that his right to “effective
assistance of trial and direct appeal counsel was not violated in respect to whether said counsel
rendered constitutionally deficient performance by failing to consult with and secure the services
of an expert medical witness to counter the State’s expert testimony and the failure to properly
challenge this testimony at trial and on direct appeal.” Brief for appellant at 2-3.
        At the district court level during the postconviction proceedings, Delgado’s postconviction
counsel provided the deposition of Dr. Fiala, who reviewed Dr. Cheloha’s determinations. In its
order, the district court outlined Dr. Fiala’s testimony, including the similarities and differences
with Dr. Cheloha’s determinations. The district court noted the differences between the doctors’
testimonies and called attention to the fact that Dr. Cheloha personally examined the victim.
However, the district court ultimately concluded that Delgado’s trial counsel’s decision not to call
an expert witness was trial strategy.



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         When an appellate court reviews claims of alleged ineffective assistance of counsel, it
affords trial counsel due deference to formulate trial strategy and tactics. State v. Torres, 295 Neb.
830, ___ N.W.2d ___ (2017). There is a strong presumption that counsel acted reasonably, and an
appellate court will not second-guess reasonable strategic decisions. Id. The decision to call, or not
to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves
unproductive, will not, without more, sustain a finding of ineffectiveness of counsel. Id.
         Delgado’s trial counsel indicated the decision not to call an expert medical witness was a
matter of trial strategy. In a deposition following trial, Delgado’s trial counsel indicated that he
believed Dr. Cheloha was “unpersuasive,” that she exhibited less than “a fair attitude in regards to
the accusation,” which consequently caused him to think it was not “especially telling.” Trial
counsel stated his belief that he reviewed Dr. Cheloha’s deposition before trial and spoke with
Delgado regarding what the doctor mentioned, he was prepared to cross-examine the doctor at the
time of trial, and he believed Dr. Cheloha’s testimony would not be determinative. As a result of
these factors, Delgado’s trial counsel chose not to consult any other medical expert, particularly
because “if [Dr. Cheloha] was coming across in front of a jury the same way she was coming
across to me at the time of the deposition, I thought that would be helpful.” Trial counsel indicated
that he believed the jury would conclude that Dr. Cheloha was not objective. Additionally, trial
counsel stated that he did not consult a medical expert because he did not believe it was “a crucial
part of the case” and “did not wish to get into a battle of experts where the focus [was] going to be
. . . on the supposed injury.” Trial counsel stated his greater interest was in the reliability of the
victim’s testimony.
         The decision not to call the witness was a reasonable trial strategy by Delgado’s counsel at
trial. Delgado’s trial counsel performed as a lawyer possessing ordinary training and skill in
criminal law should by researching and preparing to cross-examine Dr. Cheloha at trial, reviewing
Dr. Cheloha’s medical reports, and deposing Dr. Cheloha. We agree with the district court’s
synopsis that trial counsel’s strategy was based on “a reasoned conclusion that Dr. Cheloha would
present herself as an advocate rather than an impartial medical professional and her testimony
would be unpersuasive.”
         As Delgado’s trial counsel was not ineffective for failing to call an expert medical witness,
Delgado’s appellate counsel was not ineffective for failing to raise the issue on direct appeal.
                     (b) Failure to Exclude or Limit Dr. Cheloha’s Testimony
        Delgado additionally claims the district court erroneously held that his “right to the
effective assistance of trial and direct appeal counsel was not violated in respect to whether trial
counsel rendered ineffective assistance of counsel by not seeking to exclude or limit the State’s
expert testimony under a Daubert/Schafersman challenge and direct appeal counsel failed to raise
this challenge on direct appeal.” Brief for appellant at 3. Delgado contends that trial counsel
rendered deficient performance by failing to recognize that portions of Dr. Cheloha’s testimony
were not scientifically valid.
        Similar to our analysis above, Delgado’s trial counsel’s decision not to attempt to limit Dr.
Cheloha’s testimony was trial counsel’s strategy. As mentioned previously, Delgado’s trial counsel
stated his belief that Dr. Cheloha was unpersuasive, non-objective, and that her testimony would
not be determinative. Trial counsel believed that Dr. Cheloha’s testimony and demeanor would


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actually be “helpful.” Further, trial counsel indicated that he chose not to challenge Dr. Cheloha
because of his belief that other factors at trial would weigh more importantly to the jury, including
the reliability of the victim.
        Because Delgado’s trial counsel was not ineffective for failing to limit Dr. Cheloha’s
testimony, Delgado’s appellate counsel was not ineffective for failing to raise the issue on direct
appeal.
                  (c) Failure to Object to Law Enforcement Officer’s Testimony
        Delgado contends the district court erroneously determined that his right to effective
assistance of counsel was not violated when counsel failed “to object to an officer’s testimony
about the truthfulness of [Delgado] during the custodial interrogation and on the part of direct
appeal counsel for failing to challenge the performance of trial counsel in this regard on direct
appeal.” Brief for appellant at 3.
        At trial, Officer Rohrer testified regarding his custodial interrogation of Delgado. Officer
Rohrer indicated at trial that when he was questioning Delgado, he inquired further about the
incident “because [he] knew [Delgado] wasn’t telling [him] the truth” and that he told Delgado
that he did not believe Delgado was telling the truth. Later, Officer Rohrer stated that he told
Delgado that he “still didn’t think [Delgado] was being truthful with [him].”
        Specifically, Officer Rohrer’s testimony was as follows:
                 Q. What did he say happened next?
                 A. He said that she went back to the - to Uncle Alfred’s and that he spent the night
        at a friend’s house, some guy named Rubago, and at that time [J.D.] wasn’t drunk when
        she dropped him off at Rubago’s.
                 Q. Did you inquire further?
                 A. Yes, sir, I did.
                 Q. Why?
                 A. Because I knew he wasn’t telling me the truth.
                 Q. What did you do next?
                 A. Well, I told him that - I said, I don’t believe that you’re telling me the truth
        because I know that yesterday you checked into the Super 8 Motel.
                 A. And he said, well, yeah, I did get a room because [J.D.] was drunk and I didn’t
        want her mom to see her that way so I was going to take care of her.
                 Q. Did you inquire further?
                 A. Yes, sir, I did.
                 Q. What did you ask?
                 A. I asked him why he would take her to the motel room, he said that he didn’t want
        her to get in trouble. And once they got into the motel room he put her on the bed, cleaned
        her face and then he just sat in the chair and drank beer while she was sleeping.
                 Q. What happened next?
                 A. Well, I told him that - well, I said [J.D.] woke up and her pants weren’t on and
        what happened there? And he said that she had puked on herself and in so doing so had
        puked on her pants. So he had taken her pants off and washed them in the shower and had



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       hung them up there. And I told him that I was working on a sexual assault case with [J.D.]
       and that I had talked with her doctor and the doctor believed -
               Mr. Madelung: Objection, hearsay.
               The court: Well, overruled. I don’t think it’s being offered as an assertion but as a
       question, try to listen and answer, so it will be overruled.
               A. And that Dr. Cheloha had told me that [J.D.] had some type of sexual activity
       the night before. And [Delgado] said, well, he said I didn’t touch her. He said I know that
       she has a boyfriend in Mexico and that she was walking around with him a couple of nights
       ago down in Gering, because she had told me that. Alls he had done was washed her pants
       and watched television. And I told him that I still didn’t think he was being truthful with
       me and he just kind of sat there and said, well, I can’t figure this out.

In the district court’s order regarding the postconviction proceedings, it determined that “[Officer]
Rohrer was not expressing an opinion as to Delgado’s general credibility--rather, it was focused
on the facts of this investigation. [Officer] Rohrer’s interview technique was a way to confront
Delgado to obtain the true facts of the incident.”
        The Nebraska Supreme Court recently held that “statements by law enforcement officials
on the veracity of the defendant or other witnesses, made within a recorded interview played for
the jury at trial, are to be analyzed under the ordinary rules of evidence.” State v. Rocha, 295 Neb.
716, 740, 890 N.W.2d 178, 199 (2017) (emphasis supplied). “If the defendant’s statement is itself
relevant, then we must consider whether the law enforcement statement is relevant to provide
context to the defendant’s statement.” Id. at 741, 890 N.W.2d at 200. “To do this, we consider
whether the defendant’s statement would be any less probative in the absence of the law
enforcement statement. If the law enforcement statement does not make the defendant’s statement
any more probative, it is not relevant.” Id. The Supreme Court’s decision regarding a law
enforcement officer’s opinion, particularly statements by a law enforcement officer calling into
question a defendant’s honesty and stating conclusions about a defendant’s guilt, is relevant
because it “carries with it the ‘imprimatur of the government’”, “can induce improper reliance by
a jury,” and “carries with it a risk of unfair prejudice.” Id. at 743, 890 N.W.2d at 201.
        We initially note the difference from Rocha in this instance, is that this is not a recorded
conversation between Delgado and Officer Rohrer, but the recitation of the conversation from
Officer Rohrer. In Rocha, the Supreme Court looked to various other jurisdictions regarding
whether credibility statements by law enforcement in a recorded interview are admissible, but not
a law enforcement officer’s own recitation of the conversation.
        Neb. Rev. Stat. § 27-106(1)(Reissue 2016) states that:
        When part of an act, declaration, conversation or writing is given in evidence by one party,
        the whole on the same subject may be inquired into by the other. When a letter is read, all
        other letters on the same subject between the same parties may be given. When a detached
        act, declaration, conversation or writing is given in evidence, any other act, declaration or
        writing which is necessary to make it fully understood, or to explain the same, may also be
        given in evidence.




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        We agree with the district court’s determination regarding Officer Rohrer’s testimony that
Officer Rohrer was not expressing his opinion about Delgado’s credibility, but using an interview
technique in a way to confront Delgado to obtain information about what occurred. Officer
Rohrer’s recitation of his conversation with Delgado provides context as to why Officer Rohrer
used such interrogation tactics by telling Delgado that he did not believe him and to obtain more
information on what transpired.
        In its Rocha analysis, the Supreme Court determined that the risk of unfair prejudice in that
case was “that the jury could have been influenced, based on [the law enforcement officer’s]
statements, into believing that Rocha did knowingly possess the methamphetamine and that he
was lying when he denied it, even though the statements were not admissible for that purpose.”
Rocha, 295 Neb. at 743-44, 890 N.W.2d at 201. The instant case is distinguishable from Rocha.
The Court in Rocha determined that the jury could have been influenced into believing that Rocha
knowingly possessed methamphetamine and was lying when he denied it, whereas Officer
Rohrer’s statements did not go directly to whether Delgado sexually assaulted a minor, and
therefore could not cause a risk of unfair prejudice that the jury could have been influenced into
believing that Delgado did sexually assault a minor.
        Consequently, Delgado’s trial counsel was not ineffective for failing to object to Officer
Rohrer’s testimony regarding Delgado’s truthfulness and Delgado’s appellate counsel was not
ineffective for failing to raise the issue on direct appeal.
                      (d) Failure to Offer Favorable DNA Evidence at Trial
        Delgado’s final assignment of error is that the district court erred in holding that his right
to effective assistance of counsel was not violated when trial counsel failed to offer favorable DNA
evidence at trial and direct appeal counsel failed to challenge trial counsel’s performance in this
regard. Delgado contends his trial counsel chose not to introduce DNA evidence to establish that
he was excluded “as the contributor to the sperm fragment located on the teal blanket on the bed
in the room he rented at the Super 8 Motel and that his DNA is not detected in any form in the
vaginal swabs taken during the SANE examination nor upon the panties of [the victim]”. Brief for
appellant at 46.
        The district court determined that the DNA evidence would have placed Delgado on the
motel bed where the victim passed out and that the DNA evidence would have been inconsistent
with his statements that after Delgado cleaned up the victim, he sat in a chair, and, therefore, his
trial counsel’s decision to not use DNA evidence was a tactical decision.
        When law enforcement investigated the motel room where Delgado and the victim stayed,
law enforcement seized a teal blanket, a pillowcase, and hairs found on the pillowcase, and
submitted them for DNA analysis. The DNA testing of the semen stain on the blanket excluded
Delgado as a contributor, but a blood stain on the blanket could not exclude Delgado as the single
contributor and there was a high probability he was the single contributor. Moreover, two of the
hairs in the DNA profile indicated that Delgado was not excluded as a single contributor and
showed a very high probability he was the single contributor. Additionally, when Delgado’s trial
counsel was later deposed about another man’s semen being found on the blanket, counsel stated
that he thought it did not help them in any way and “[t]he fact that in a motel room there’s other
sources of semen did not seem to be worth distracting the jury.”


                                                -8-
        Moreover, in reference to Delgado’s argument that trial counsel failed to present evidence
that his DNA was not detected in any form in the vaginal swabs or upon the victim’s panties, such
presentation would not have changed the proceeding’s result. When Delgado’s trial counsel was
questioned at the deposition why he chose not to use that evidence at trial, trial counsel responded
with “I would have discussed this with . . . Delgado” and that Delgado told him to “[j]ust do what
you think is best.”
        Additionally, we agree with the State’s reasoning that “just because [the victim] was
penetrated by Delgado does not mean his sperm would be found on the swabs [or] in her panties;
he would have to ejaculate to deposit his sperm, and if he did not, then the likelihood of finding
sperm is nil.” Brief for appellee at 28. Moreover, Neb. Rev. Stat. § 28-318(6) (Reissue 2016)
provides that “[s]exual penetration shall not require emission of semen” and the failure for trial
counsel to present the absence of semen or other DNA does not constitute ineffective assistance
of counsel.
        Delgado’s trial counsel’s decision regarding DNA evidence was a part of his trial strategy.
Delgado’s trial counsel was not ineffective for failing to offer favorable DNA evidence at trial,
and, thus, Delgado’s appellate counsel was not ineffective for failing to raise the issue on direct
appeal.
                                       VI. CONCLUSION
       For the reasons set forth above, we affirm the judgment of the district court.
                                                                                        AFFIRMED.




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