                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                       STATE V. GARDNER


  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.
                               STEVEN G. GARDNER, APPELLANT.


                              Filed April 1, 2014.   No. A-12-909.


        Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge. Affirmed in
part, and in part reversed and remanded for further proceedings.
       Joseph Kuehl, of Lefler & Kuehl Law Office, for appellant.
       Jon Bruning, Attorney General, and Carrie A. Thober for appellee.


       IRWIN, PIRTLE, and BISHOP, Judges.
       IRWIN, Judge.
                                      I. INTRODUCTION
        This is a postconviction appeal. In 2009, Steven G. Gardner was convicted by a jury of
robbery, attempted robbery, and two counts of use of a deadly weapon to commit a felony. As a
result of his convictions, he was sentenced to a total of 10 to 14 years’ imprisonment. On direct
appeal, this court summarily affirmed Gardner’s convictions and sentences.
        Gardner now appeals the district court’s dismissal of all of his claims for postconviction
relief without an evidentiary hearing. For the reasons set forth below, we reverse the district
court’s decision to deny Gardner an evidentiary hearing with regard to his allegation concerning
certain alibi testimony that could have been presented at trial. We affirm the district court’s
decision to deny Gardner an evidentiary hearing for all of the remaining allegations.
                                      II. BACKGROUND
       In May 2009, Gardner was charged by amended information with robbery, attempted
robbery, and two counts of use of a deadly weapon to commit a felony. The charges stem from


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an incident that occurred in September 2007, where two young women, Lindsay Wilson
(Lindsay) and Karla Dixon (Karla), reported that they were robbed at gunpoint while sitting in
Lindsay’s car outside of her home. Evidence presented at the jury trial revealed that Lindsay
immediately identified Gardner as the person who robbed her and Karla. Lindsay knew Gardner
because he lived “down the street” from her and would on occasion “bum[] a cigarette from
[her]” when she was outside smoking. In fact, Lindsay testified that before Gardner approached
her car that night, he identified himself to her as “Steve.”
        Karla testified that she did not know Gardner prior to the incident in September 2007.
However, she identified Gardner at trial as the man who robbed her and her friend, Lindsay.
        Gardner did not present any evidence in his defense.
        At the conclusion of the trial, the jury found Gardner guilty of all four of the charges
alleged in the amended information. He was sentenced to a total of 10 to 14 years’ imprisonment.
Gardner appealed from his convictions and sentences. By the time of his appeal, Gardner had
different counsel than his trial attorney.
        On direct appeal, Gardner alleged that there was insufficient evidence to support his
convictions and that his sentences were excessive. This court summarily affirmed Gardner’s
convictions and sentences on June 21, 2010, in case No. A-10-088.
        In September 2010, Gardner filed a pro se motion for postconviction relief. He was
appointed counsel, and an amended motion for postconviction relief was filed. The amended
motion alleged that Gardner’s trial counsel and his appellate counsel were ineffective in
numerous respects. Specifically, the motion alleged that trial counsel was ineffective in failing to
adequately prepare for trial; failing to pursue Gardner’s alibi defense; failing to adequately
attempt to discredit the testimony of the two victims; failing to suppress and/or discredit the
identification procedure used by police; failing to adequately attempt to discredit Karla’s
testimony with the use of social media; and failing to take the deposition of Lindsay’s boyfriend,
who was on the telephone with Lindsay during the robbery. In addition to these allegations, the
amended motion alleged that Gardner’s appellate counsel was ineffective for failing to raise any
of these issues on direct appeal.
        The district court denied Gardner’s motion without an evidentiary hearing. In its order,
the court stated, “[Gardner] has failed to state claims with specificity that show that either trial
counsel or appellate counsel were ineffective.”
        Gardner appeals.
                                III. ASSIGNMENTS OF ERROR
       On appeal, Gardner alleges, restated and consolidated, that the district court erred in
denying his motion for postconviction relief without an evidentiary hearing.
                                 IV. 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. Branch, 286 Neb. 83, 834 N.W.2d 604 (2013).




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        A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews the factual findings of the lower
court for clear error. Id. With regard to the questions of counsel’s performance or prejudice to the
defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations
independently of the lower court’s decision. State v. Golka, 281 Neb. 360, 796 N.W.2d 198
(2011).
                                          V. ANALYSIS
        Gardner appeals the district court’s decision to deny his motion for postconviction relief
without an evidentiary hearing. An evidentiary hearing on a motion for postconviction relief is
required on an appropriate motion containing factual allegations which, if proved, constitute an
infringement of the movant’s rights under the Nebraska or federal Constitution, causing the
judgment against the defendant to be void or voidable. State v. Branch, supra. An evidentiary
hearing is not required when the motion alleges only conclusions of fact or law. Id. If the
defendant makes sufficient allegations of a constitutional violation which would render the
judgment void or voidable, an evidentiary hearing may be denied only when the records and files
affirmatively show that the defendant is entitled to no relief. Id.
        In his brief on appeal, Gardner has narrowed his postconviction claims to four allegations
of ineffective assistance of trial counsel and four allegations of ineffective assistance of appellate
counsel. Specifically, he alleges that trial counsel was ineffective in failing to move to suppress
the victims’ out-of-court identification; failing to call Gardner’s mother as an alibi witness;
failing to depose Lindsay’s boyfriend, who was on the telephone with her at the time of the
robbery; and deposing Lindsay and Karla too close in time to trial. He also alleges that his
appellate counsel was ineffective in failing to raise each of these instances of ineffective
assistance of trial counsel on direct appeal.
                          1. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
         Gardner’s allegations that he received ineffective assistance of trial counsel are
procedurally barred. A motion for postconviction relief cannot be used to secure review of issues
that were known to the defendant and could have been litigated on direct appeal. State v. Hessler,
282 Neb. 935, 807 N.W.2d 504 (2011). Gardner was represented by different counsel than his
trial attorney on his direct appeal. As such, he could have, and should have, raised his allegations
of ineffective assistance of trial counsel at the time of his direct appeal. Because he did not raise
these allegations at that time, he is now procedurally barred from raising these issues in his
postconviction motion. Accordingly, the district court did not err in denying Gardner an
evidentiary hearing as to his allegations of ineffective assistance of trial counsel.
                       2. INEFFECTIVE ASSISTANCE OF 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. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). Appellate



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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 result of the appeal. Id.
When, as here, the 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 test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
        Under the Strickland test, the defendant has the burden to show that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the defendant.
State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). The two prongs of the ineffective
assistance of counsel test, deficient performance and prejudice, may be addressed in either order.
State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient performance, the result of
the proceeding would have been different. State v. McGhee, supra.
        We now turn to Gardner’s specific allegations of ineffective assistance of appellate
counsel.
                                  (a) Out-of-Court Identification
        Gardner alleges that his trial counsel was ineffective for failing to file a motion to
suppress Karla’s out-of-court identification of Gardner as the man who robbed her and that his
appellate counsel was ineffective for failing to raise this issue on direct appeal. In addition, he
alleges that trial counsel was ineffective when questioning Lindsay during cross-examination
about the out-of-court identification of Gardner and that his appellate counsel was ineffective for
failing to raise this issue on direct appeal. We will address each of Gardner’s assertions about the
out-of-court identification separately.
                              (i) Karla’s Out-of-Court Identification
        Gardner alleges that trial counsel should have filed a motion to suppress Karla’s
out-of-court identification of Gardner as the man who robbed her because such identification was
“tainted” and “influenced” by Lindsay’s out-of-court identification of Gardner. Brief for
appellant at 7. Specifically, Gardner alleges that the evidence revealed that Karla was in the same
room with Lindsay when Lindsay identified a photograph of Gardner as her neighbor and as the
person who robbed the two of them. Gardner asserts that it is clear that Karla did not previously
know Gardner and that, as such, her out-of-court identification of Gardner was based on
Lindsay’s out-of-court identification.
        Gardner’s assertion is without merit. There is no indication in the record that Karla ever
made an out-of-court identification of Gardner. Although she was apparently in the same room
with Lindsay when Lindsay identified a photograph shown to her as Gardner, there is no
evidence that Karla was asked anything by police or offered anything to police about the
photograph. As such, even if Gardner’s trial counsel had filed a motion to suppress Karla’s
out-of-court identification, such motion would not have been successful.
        In addition, we note that at trial, Karla did identify Gardner as the man who robbed her.
However, she clearly indicated that her in-court identification was based on her observations of
Gardner during the robbery. Karla testified that during the robbery, she was less than 5 feet away


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from Gardner, and that she looked at his face the entire time he was robbing her. She was able to
describe what Gardner looked like that night and how his appearance back then was different
than his appearance in court at the time of the trial. In addition, she testified that she was
“absolutely sure that [Gardner was] the one that robbed” her and Lindsay.
        An in-court identification may properly be received in evidence when it is independent of
and untainted by illegal pretrial identification procedures. State v. Smith, 269 Neb. 773, 696
N.W.2d 871 (2005); State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007). A primary
factor in determining whether an independent basis for an in-court identification exists is the
opportunity afforded the witness to observe the defendant in circumstances free from taint. State
v. Smith, supra; State v. Sanders, supra.
        We conclude that Gardner’s assertions concerning trial counsel’s failure to file a motion
to suppress Karla’s out-of-court identification of Gardner and appellate counsel’s failure to raise
this issue on direct appeal are without merit. The record does not provide any indication that
Karla ever made an out-of-court identification of Gardner. And, there is sufficient evidence to
demonstrate that Karla’s in-court identification of Gardner was based on her memories from the
night of the robbery and not from a photograph she saw at the police station. The district court
did not err in denying Gardner an evidentiary hearing on this issue.
                                 (ii) Cross-Examination of Lindsay
         Gardner alleges that trial counsel was ineffective in his cross-examination of Lindsay
about her out-of-court identification of Gardner. Specifically, Gardner alleges that there was no
valid reason for counsel to question Lindsay about her out-of-court identification of Gardner and
that, in fact, such is “the type of testimony that trial counsel . . . would want to avoid” because it
demonstrated that the victims were consistent in their identifications of Gardner. Brief for
appellant at 8.
         Gardner’s assertion has no merit. It is clear from our reading of counsel’s
cross-examination of Lindsay that counsel was attempting to demonstrate to the jury that Karla’s
identification of Gardner may have been tainted by Lindsay’s identification. Counsel asked
Lindsay if she and Karla were in the room together when police showed Lindsay the photograph.
In addition, counsel appeared to be pointing out to the jury that police showed the victims only
one photograph: the photograph of Gardner. It is clear that counsel’s rationale for this entire line
of questioning was to demonstrate the problems with the out-of-court identification of Gardner.
Thus, Gardner cannot show that counsel’s performance in this regard was deficient. Because
Gardner’s trial counsel’s performance was not deficient, Gardner’s appellate counsel was not
ineffective in failing to raise this issue on appeal. We affirm the decision of the district court to
deny Gardner an evidentiary hearing on this issue.
                                        (b) Alibi Testimony
        Gardner alleges that his trial counsel was ineffective for failing to present alibi evidence
in the form of his mother’s testimony and that his appellate counsel was ineffective for failing to
raise this issue on direct appeal. Specifically, Gardner alleges his mother would have testified
that, on the night of the robbery, she was at the home she shared with Gardner and that, although
she was asleep when the robbery allegedly took place, she is “a light sleeper [and] was sleeping


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near the exit that [Gardner] would have had to use” to leave the residence. Brief for appellant at
9. She also would have testified that “she never heard any[one],” including Gardner, leave the
house that night. Id. Gardner alleged in his brief that his trial counsel was aware of this potential
alibi defense. In fact, it is clear from the record that prior to trial, counsel filed a notice of alibi
with the district court, indicating his intent to offer evidence establishing an alibi for Gardner.
        Based on our reading of Gardner’s assertions regarding his potential alibi defense, it
seems clear that had Gardner’s mother been called to testify, she would have told the jury that
Gardner could not have committed the robbery because he was at home with her. It also appears
that Gardner’s trial counsel was aware of this testimony, but chose not to present it. Instead,
counsel rested without presenting any evidence in Gardner’s defense. What is not clear is why
counsel chose not to present this testimony.
        We do note that at trial, the State presented evidence which indicated that the police went
to Gardner’s home a short time after the robbery and “pounded on the front door, pounded on the
back door[,]” but no one answered. This evidence might suggest that neither Gardner nor his
mother were at home at the time of the robbery, contrary to the potential alibi testimony.
However, if Gardner’s mother had been called to testify, she may have, in fact, explained why
she did not answer the door when the police arrived. And, even if there was no explanation
offered, it would have been for the jury to decide on the credibility of the alibi testimony. See
State v. Brown, 213 Neb. 68, 70, 327 N.W.2d 107, 108 (1982) (“jurors are the judges of the
credibility of the witnesses and the weight to be given to the testimony, and they have the right to
credit or reject the whole or any part of the testimony in the exercise of their judgment”).
        Because there is no explanation for trial counsel’s failure to present the alibi testimony of
Gardner’s mother and because such testimony would have provided some evidence that Gardner
did not commit the robbery in question, we conclude that Gardner’s assertions regarding his
appellate counsel’s failure to raise this issue on direct appeal are sufficient to warrant the
granting of an evidentiary hearing. We reverse the district court’s decision to deny the
evidentiary hearing as to this issue.
                             (c) Failure to Depose Lindsay’s Boyfriend
        Gardner next alleges that his trial counsel was ineffective for failing to take the
deposition of Lindsay’s boyfriend and that his appellate counsel was ineffective for failing to
raise this issue on direct appeal. Specifically, Gardner alleges that Lindsay was on the telephone
with her boyfriend at the time of the robbery and that, as such, he is one of “four people with
knowledge of what happened that evening.” Brief for appellant at 10. Gardner goes on to allege,
“There is no doubt that this witnesses [sic] information would have been critical, given the fact
that he was on the phone while it was occurring and there was no other physical or corroborating
evidence offered by the State to convict [Gardner].” Id.
        Gardner’s assertion amounts to mere conclusions. He does not allege what Lindsay’s
boyfriend would have testified to at the deposition, nor does he allege how any such testimony
would have been beneficial to his defense or relevant to the case. In addition, he does not even
allege that Lindsay’s boyfriend was available to testify at a deposition. In fact, Gardner’s
assertion regarding his trial counsel’s failure to depose Lindsay’s boyfriend is really an assertion



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about the victims’ credibility, which issue was thoroughly examined by Gardner’s counsel at trial
and raised on direct appeal.
        Gardner did not meet his burden of alleging sufficient facts regarding trial counsel’s
failure to depose Lindsay’s boyfriend and any resulting prejudice to him. Essentially, Gardner’s
assertion, as stated in his brief on appeal, is insufficient to demonstrate either that his trial
counsel’s performance was deficient or that he was prejudiced by his counsel’s actions. Because
Gardner did not demonstrate that his trial counsel was ineffective in failing to depose the
boyfriend, he also cannot demonstrate that his appellate counsel was ineffective in failing to raise
this issue on direct appeal. The district court did not err in denying Gardner an evidentiary
hearing as to this issue.
                                 (d) Deposing Lindsay and Karla
                                       Too Close to Trial
        Finally, Gardner alleges that his trial counsel was ineffective for deposing Lindsay and
Karla only 3 days before trial and that his appellate counsel was ineffective for failing to raise
this issue on direct appeal. Specifically, Gardner alleges that because the victims were deposed
so close in time to the trial, “[t]rial counsel was stuck with whatever answers the victims
supplied during the deposition.” Brief for appellant at 11. And, further, “There was no time to
explore the veracity or do any outside investigations as to any of their statements with trial
looming just 3 days away.” Id.
        Again, Gardner’s assertion amounts to mere conclusions. He does not allege what, if
anything, either of the victims testified to during their depositions that required any further
investigation. He also does not allege what actions trial counsel should have taken after the
depositions that there was no time to complete because of the proximity of the depositions to
trial. Essentially, Gardner does not allege how the result of the trial would have been any
different had the victims’ depositions been completed at an earlier time.
        Accordingly, Gardner’s assertion, as stated in his brief on appeal, is insufficient to
demonstrate either that his trial counsel’s performance was deficient or that he was prejudiced by
his counsel’s actions. Because Gardner did not demonstrate that his trial counsel was ineffective
by deposing the victims 3 days before trial, he also cannot demonstrate that his appellate counsel
was ineffective in failing to raise this issue on direct appeal. The district court did not err in
denying Gardner an evidentiary hearing as to this issue.
                                       VI. CONCLUSION
         We reverse the district court’s denial of Gardner’s request for an evidentiary hearing
regarding appellate counsel’s alleged ineffectiveness in failing to raise on direct appeal the issue
of trial counsel’s decision not to present Gardner’s alibi testimony. We otherwise affirm the
district court’s decision to deny Gardner an evidentiary hearing on the issues raised in his motion
for postconviction relief. The judgment of the district court is affirmed in part and in part
reversed, and the cause is remanded for further proceedings.
                                                  AFFIRMED IN PART, AND IN PART REVERSED AND
                                                  REMANDED FOR FURTHER PROCEEDINGS.




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