Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/04/2017 01:08 AM CDT




                                                        - 227 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                   STATE v. VELA
                                                 Cite as 297 Neb. 227




                                        State of Nebraska, appellee, v.
                                           Erick F. Vela, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 21, 2017.    No. S-16-465.

                1.	 Constitutional Law: Appeal and Error. A constitutional issue not
                     presented to or passed upon by the trial court is not appropriate for con-
                     sideration on appeal.
                2.	 Postconviction: Constitutional Law: Appeal and Error. 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.
                3.	 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.
                4.	 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.
                 5.	 ____: ____: ____. 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.
                6.	 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.
                7.	 Postconviction: Effectiveness of Counsel: Appeal and Error. When a
                     defendant was represented both at trial and on direct appeal by the same
                                    - 228 -
             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
                                STATE v. VELA
                              Cite as 297 Neb. 227

     counsel, the defendant’s first opportunity to assert ineffective assistance
     of counsel is in a motion for postconviction relief.
 8.	 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.
 9.	 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 perform­
     ance was deficient and that this deficient performance actually preju-
     diced the defendant’s defense. To show prejudice under the prejudice
     component of the Strickland test, the defendant must demonstrate a rea-
     sonable probability that but for his or her counsel’s deficient perform­
     ance, the result of the proceeding would have been different. A reason-
     able 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.
10.	 Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
     of ineffective assistance of appellate counsel which could not have been
     raised on direct appeal may be raised on postconviction review.
11.	 Effectiveness of Counsel: Appeal and Error. When analyzing a claim
     of ineffective assistance of appellate counsel, courts usually begin by
     determining whether appellate counsel actually prejudiced the defend­
     ant. That is, courts begin by assessing the strength of the claim appellate
     counsel failed to raise.
12.	 ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
     fective assistance only if there is a reasonable probability that inclusion
     of the issue would have changed the result of the appeal.
13.	 Trial: Juries. The retention or rejection of a venireperson as a juror is a
     matter of discretion with the trial court.
14.	 Juries: Discrimination: Appeal and Error. An appellate court reviews
     de novo the facial validity of an attorney’s race-neutral explanation for
     using a peremptory challenge as a question of law.
15.	 Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
     An appellate court reviews for clear error a trial court’s factual deter-
     mination regarding whether a prosecutor’s race-neutral explanation is
     persuasive and whether the prosecutor’s use of a peremptory challenge
     was purposefully discriminatory.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
                               - 229 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                           STATE v. VELA
                         Cite as 297 Neb. 227

  Patrick P. Carney, of Carney Law, P.C., for appellant.
   Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
   Wright, Miller-Lerman, Cassel, Stacy, K elch, and Funke,
JJ., and Inbody, Judge.
  Miller-Lerman, J.
                      NATURE OF CASE
   Erick F. Vela appeals the order of the district court for
Madison County which overruled his motion for postconvic-
tion relief without an evidentiary hearing. He claims the dis-
trict court erred when it rejected six of his claims of ineffective
assistance of counsel. He also asks this court to consider an
additional claim that was not presented to or passed upon by
the district court. We affirm the district court’s order.
                   STATEMENT OF FACTS
   On June 12, 2003, Vela pled guilty to the murders of
Lisa Bryant, Lola Elwood, Jo Mausbach, Evonne Tuttle, and
Samuel Sun. The five victims had been killed during an
attempted bank robbery carried out by Vela and two other
men, Jorge Galindo and Jose Sandoval, in Norfolk, Nebraska,
on September 26, 2002. Vela pled guilty to five counts of first
degree murder and five counts of use of a deadly weapon to
commit a felony. He also pled guilty to counts of burglary,
robbery, and use of a deadly weapon to commit a felony
related to the forcible entry into a home and the theft of a
vehicle, which occurred after the men left the bank.
   The State sought the death penalty, and an aggravation hear-
ing was held in which a jury found the existence of five statu-
tory aggravating circumstances for each of the five murders.
After a sentencing hearing, a three-judge panel imposed the
death penalty for each of the five murders. We affirmed Vela’s
sentences on direct appeal. State v. Vela, 279 Neb. 94, 777
N.W.2d 266 (2010).
                              - 230 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

   On January 7, 2014, Vela filed an amended motion for
postconviction relief in the district court. Because Vela was
represented by the same counsel at trial and on direct appeal,
this postconviction proceeding was his first opportunity to
assert that he received ineffective assistance of counsel. Vela’s
motion raised numerous claims of ineffective assistance
of trial and appellate counsel. The district court overruled
Vela’s motion for postconviction relief without an eviden-
tiary hearing.
   Vela appealed the denial to this court in case No. S-14-557.
In a memorandum opinion, we concluded that the district court
had used an incorrect standard to determine whether an evi-
dentiary hearing was required on Vela’s postconviction claims.
State v. Vela, 290 Neb. xvii (No. S-14-557, May 8, 2015). We
therefore vacated the order and remanded the cause to the dis-
trict court for reconsideration of Vela’s motion using the cor-
rect standard.
   On remand, the district court filed an order on April 12,
2016, in which it recited a standard consistent with the stan-
dard set forth in our memorandum opinion. The district court
then considered and rejected each of Vela’s claims for postcon-
viction relief and concluded that no evidentiary hearing was
required on any of the claims. The court therefore overruled
Vela’s motion for postconviction relief and his request for an
evidentiary hearing.
   Vela appeals the district court’s order overruling his motion
for postconviction relief without an evidentiary hearing. In this
current appeal, Vela assigns error to the district court’s rejec-
tion of six of his claims. Further details regarding those six
claims, the facts related thereto, and the district court’s analy-
sis of those claims are set forth in our analysis below.

                ASSIGNMENTS OF ERROR
  Vela claims that the district court erred when it denied
postconviction relief without an evidentiary hearing on the fol-
lowing claims of ineffective assistance of trial and appellate
                                - 231 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                            STATE v. VELA
                          Cite as 297 Neb. 227

counsel: (1) Counsel deterred Vela from entering a guilty plea
early in the case; (2) counsel failed to timely discover and
adequately challenge the existence of a personal relationship
between a prosecutor and the presiding juror; (3) counsel failed
to assign error on direct appeal to the trial court’s overruling
of Vela’s challenges based on Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); (4) counsel failed to
allow the State’s expert to conduct testing on Vela to determine
his level of intellectual ability; (5) counsel failed to request that
a definition of malice be included in the jury instruction setting
forth aggravating circumstances; and (6) counsel failed to offer
evidence to negate a finding of malice.
   [1] In addition, Vela asks this court to consider a claim that,
he asserts, presents clear error. Vela claims that he received
ineffective assistance of counsel because counsel failed, both
at trial and on direct appeal, to challenge the constitutional-
ity of Nebraska’s capital sentencing statutory scheme on the
basis that it allows a panel of judges, rather than a jury, to
determine mitigating circumstances and to weigh aggravating
circumstances against mitigating circumstances. Vela’s argu-
ments in this regard are based in large part on the opinion of
the U.S. Supreme Court in Hurst v. Florida, ___ U.S. ___,
136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), which was filed
January 12, 2016. Vela acknowledges that this claim was not
raised in his motion for postconviction relief and was not
considered by the district court. A constitutional issue not pre-
sented to or passed upon by the trial court is not appropriate
for consideration on appeal. State v. Boche, 294 Neb. 912, 885
N.W.2d 523 (2016). We therefore do not consider this claim
in this appeal.

                  STANDARD OF REVIEW
   [2] In appeals from postconviction proceedings, an appel-
late 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
                              - 232 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

affirmatively show that the defendant is entitled to no relief.
State v. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017).

                           ANALYSIS
   Vela claims, generally, that the district court erred when
it denied his postconviction motion without an evidentiary
hearing and, specifically, when it rejected six of his claims.
Therefore, before reviewing the merits of Vela’s specific
claims, we review general standards relating to postconvic-
tion relief.
   [3-6] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
State v. Watson, supra. Thus, in a motion for postconviction
relief, the defendant must allege facts which, if proved, con-
stitute 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. Id. 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. Id. If a postcon-
viction 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 evidentiary hearing. Id.
   [7] Vela’s postconviction claims center on the alleged inef-
fective assistance provided by his trial counsel, who was also
his counsel on direct appeal. When a defendant was repre-
sented both at trial and on direct appeal by the same counsel,
the defendant’s first opportunity to assert ineffective assistance
of counsel is in a motion for postconviction relief. State v. Ely,
295 Neb. 607, 889 N.W.2d 377 (2017).
   [8,9] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair
                               - 233 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                           STATE v. VELA
                         Cite as 297 Neb. 227

trial. State v. Watson, supra. To prevail on a claim of inef-
fective 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 preju-
diced the defendant’s defense. Id. To show prejudice under the
prejudice component of the Strickland 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. Id. A reasonable probability does
not require that it be more likely than not that the deficient per-
formance altered the outcome of the case; rather, the defendant
must show a probability sufficient to undermine confidence in
the outcome. Id.
   [10-12] Vela claims that in certain respects counsel was
ineffective on direct appeal as well as at trial. A claim of inef-
fective assistance of appellate counsel which could not have
been raised on direct appeal may be raised on postconviction
review. State v. Ely, supra. When analyzing a claim of ineffec-
tive assist­ance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the
defendant. Id. 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 result of the appeal. State v. Starks,
294 Neb. 361, 883 N.W.2d 310 (2016).
   With these standards in mind, we review Vela’s spe-
cific claims.

First Claim: Timing of Plea.
   In his amended motion for postconviction relief, Vela
claimed that his counsel’s performance was deficient because
counsel failed to advise him to plead guilty to all counts at
an earlier stage of the proceedings against him. The infor-
mation against Vela was filed on October 31, 2002, and he
                              - 234 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

pled guilty on June 12, 2003. Vela asserted that he missed
out on various strategic advantages because he did not plead
guilty sooner.
   First, Vela stated that on November 22, 2002, the Governor
signed 2002 Neb. Laws, L.B. 1, which was enacted in response
to the U.S. Supreme Court’s decision in Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
Vela argued that if he had pled guilty prior to the effective
date of L.B. 1, he would not have been subject to the death
penalty, because Nebraska had no effective death penalty at
that time.
   Second, Vela noted that even after the enactment of L.B. 1,
which required, inter alia, that the prosecutor allege aggravat-
ing circumstances in the information charging first degree
murder, the prosecutor in this case did not actually amend the
information to allege aggravating circumstances until January
29, 2003. Vela argued that if he had pled guilty prior to the
amendment, the death penalty would not have been available,
because the information in effect at that time did not allege
aggravating circumstances.
   Finally, Vela noted that on March 17, 2003, the body of
Travis Lundell was found; Lundell was the victim of a sepa-
rate homicide in which Vela was involved. Vela contends
that the discovery of Lundell’s body and Vela’s implication
in the homicide disadvantaged him in two ways in regard
to capital sentencing. First, evidence of the Lundell homi-
cide supported the finding of the aggravating circumstance
set forth in Neb. Rev. Stat. § 29-2523(1)(a) (Reissue 2008),
that he had “a substantial prior history of serious assaultive
or terrorizing criminal activity,” upon which aggravating cir-
cumstance finding the three-judge panel placed substantial
importance when it sentenced him to death. Second, the three-
judge panel discounted the importance of Vela’s guilty plea as
a mitigating circumstance, because the panel determined that
one reason Vela entered his plea was because a codefendant
had cooperated with authorities in connection with the Lundell
                              - 235 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

homicide. Vela argued that if he had pled guilty before Lundell’s
body was found, evidence of the other homicide could not have
been used either to support an aggravating circumstance or to
diminish the mitigating effect of his guilty plea.
   Vela summarized this claim by arguing that if counsel had
advised or allowed him to plead guilty at an earlier stage of
the proceedings, the above-enumerated events, which occurred
prior to the entry of his plea, would not have disadvantaged
him with respect to the imposition of the death penalty.
   The district court rejected each aspect of Vela’s claim that
counsel was ineffective with regard to the timing of his plea.
With regard to the enactment of L.B. 1, the court noted that in
Vela’s direct appeal, we had rejected a similar argument and
stated that “the death penalty did not disappear from Nebraska
law during the approximately 5-month period between the deci-
sion in Ring and the enactment of L.B. 1.” State v. Vela, 279
Neb. 94, 109-10, 777 N.W.2d 266, 282 (2010). With regard to
the allegation of aggravating circumstances in the information,
the district court noted that we addressed the issue in the direct
appeal of one of Vela’s codefendants, determining that the
notice of aggravation was a procedural rule that did not apply
to pending litigation and that therefore, no error stemmed from
the fact the original information filed by the State did not con-
tain a notice of aggravation. See State v. Galindo, 278 Neb.
599, 774 N.W.2d 190 (2009).
   With regard to the discovery of Lundell’s body, the court
noted that it was mere speculation that Vela’s counsel knew
about Vela’s involvement in the Lundell homicide prior to the
discovery of the body. The court further noted that the jury
found five aggravating circumstances in connection with each
of the homicides in this case; the court determined that the
four other aggravating circumstances were sufficient to sup-
port imposition of the death penalty and that it would be mere
speculation to say that the death penalty would not have been
imposed if not for the aggravating circumstance supported by
evidence of the Lundell homicide.
                             - 236 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                         STATE v. VELA
                       Cite as 297 Neb. 227

   With regard to the importance of his plea as a mitigating
circumstance, the court similarly determined that it was mere
speculation as to whether counsel knew a codefendant would
cooperate with authorities in connection with the Lundell
homicide. The court also noted that there were other fac-
tors that diminished the value of Vela’s plea as a mitigating
circumstance.
   We agree with the district court’s reasoning. With regard
to Vela’s first two arguments, our holdings in State v. Vela,
supra, and State v. Galindo, supra, undermine Vela’s allega-
tion that he would not have been subject to the death penalty
if counsel had advised him to enter a plea at an earlier date.
In Vela, we rejected Vela’s argument that Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002),
effectively invalidated Nebraska’s death penalty scheme and
that Nebraska had no effective death penalty until L.B. 1 was
enacted. We stated instead that “[b]efore, during, and after
that period, Nebraska statutes provided that the maximum
penalty for first degree murder was death.” State v. Vela, 279
Neb. at 110, 777 N.W.2d at 282. In Galindo, we rejected the
defendant’s arguments that L.B. 1 required that the original
information contain a notice of aggravation and that because
the original information filed against him did not contain a
notice of aggravation, he could not be sentenced to death.
We noted that at the time the original information was filed
against the defendant in Galindo, the statutory scheme did
not require such notice and that the information was amended
after the enactment of L.B. 1. We concluded that the notice
of aggravation was a new procedural rule that had no retroac-
tive effect on steps taken in an action before the statute took
effect, and we therefore found “no error stemming from the
fact that the original information did not contain a notice
of aggravation.” State v. Galindo, 278 Neb. at 628, 774
N.W.2d at 219. Based on these holdings in Vela and Galindo,
we determine that Vela failed to demonstrate any prejudice
resulting from counsel’s failure to urge him to enter a plea
                              - 237 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

prior to the enactment of L.B. 1 or the filing of the amended
information against him.
   With regard to the discovery of Lundell’s body, we have
reviewed the record and note that the sentencing panel
relied on Vela’s killing of Lundell to establish the aggravat-
ing circumstance that he had “a substantial prior history
of serious assaultive or terrorizing criminal activity” under
§ 29-2523(1)(a) and that the sentencing panel stated that
such aggravating circumstance “should be given the greatest
weight, and it is of such a magnitude, that it alone is disposi-
tive and outweighs all of the non-statutory mitigating circum-
stances.” The sentencing panel also referred to certain facts
related to the Lundell killing as reasons it did not find remorse
to be a mitigating factor.
   The record indicates that the Lundell killing played an
important role in the panel’s decision to impose the death
penalty, and therefore, it is possible that the discovery of
Lundell’s body prejudiced Vela in this action. However, Vela
cannot show that his trial counsel’s performance was defi-
cient for failing to advise him to enter a plea before Lundell’s
body was discovered. As the district court noted, Vela’s claim
required speculation that counsel knew of Vela’s involve-
ment in Lundell’s killing before the body was discovered. A
conclusion that counsel’s performance was deficient would
also require counsel to somehow know that Lundell’s body
would be discovered and when it would be discovered and
to control the progress of the case to the extent that Vela
would be convicted and sentenced before the body was
discovered. Given the speculative nature of Vela’s claim
and the hypothetical circumstances just recited, we could
not say that counsel’s performance was deficient based on
a failure to convince Vela to enter a plea before the body
was discovered.
   We find no merit to this claim, and we therefore conclude
that the district court did not err when it rejected this claim
without an evidentiary hearing.
                              - 238 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

Second Claim: Relationship of
Prosecutor and Juror.
   In his amended motion for postconviction relief, Vela
claimed that his counsel’s performance was deficient because
counsel failed to timely discover and to adequately challenge
the existence of a personal relationship between a prosecutor
and the presiding juror in the aggravation phase of the trial.
Vela alleged that during jury voir dire, his counsel failed to ask
R.S., a member of the venire who would eventually become
the presiding juror, whether he knew any of the lawyers in the
case, and that it was not until R.S. submitted a question to the
court during jury deliberations that the prosecutor told Vela’s
defense counsel that R.S. was the prosecutor’s pastor. Vela
alleged that his counsel failed to move for a mistrial or for a
new trial on the basis of the relationship between the prosecu-
tor and the presiding juror and on the basis of the prosecutor’s
failure to timely disclose the relationship during jury selec-
tion. Vela further alleged that his counsel also failed to raise
the issue on direct appeal. Vela argued that these failures of
counsel prejudiced him, because if counsel had properly raised
a challenge, the trial court would have declared a mistrial or
granted a new trial or this court would have reversed his death
sentences on appeal.
   In its order denying postconviction relief, the district court
noted that during the jury voir dire, R.S. responded to the
court’s questions by indicating that he could take an oath to sit
as a fair and impartial juror and that he was not aware of any
bias or prejudice for or against either side. The district court
noted that R.S. had similarly responded to a question by the
prosecutor by indicating that he could listen to the evidence
and the law given by the judge. The court further noted that
Vela’s defense counsel had asked R.S., “‘because of the rela-
tionship you have with the community as a minister, whether
or not you would feel uncomfortable facing your congregation
or other members of the community if you were the one person
who said, no, the State didn’t meet [its] burden’” and whether
                              - 239 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

R.S. “‘would vote your conscious [sic] regardless of what the
rest of the pack had in mind.’” R.S. responded to defense coun-
sel’s questions by indicating that he would not feel uncomfort-
able in that situation and that he would do what he felt was
warranted. The postconviction court further noted that Vela did
not allege that defense counsel would have struck the potential
juror if counsel had known of the relationship nor did Vela
allege the extent of the pastoral relationship between the juror
and the prosecutor. The district court concluded that Vela was
not entitled to postconviction relief on this claim.
   [13] We agree that Vela’s allegations do not show preju-
dice as a result of counsel’s failure to challenge or strike the
juror. The retention or rejection of a venireperson as a juror is
a matter of discretion with the trial court, see State v. Banks,
278 Neb. 342, 771 N.W.2d 75 (2009), and Vela alleges noth-
ing more than the conclusion that R.S.’ pastoral relationship
to the prosecutor indicates that R.S. could not have been fair
and impartial. Given R.S.’ statements during voir dire that he
could be fair and impartial, that he was not aware of any bias
or prejudice on his own part, and that his role as a minister in
the community would not affect his decisions as a juror, the
court would not have abused its discretion if it had rejected a
challenge made against R.S. Furthermore, it is mere specula-
tion whether counsel would have used a peremptory strike on
R.S. rather than on other potential jurors if counsel had known
of the relationship, and it is further speculation whether a dif-
ferent juror would have changed the result of the trial. Vela has
not shown prejudice with respect to this claim.
   We find no merit to this claim, and we therefore conclude
that the district court did not err when it rejected this claim
without an evidentiary hearing.

Third Claim: Appeal of
Batson Rulings.
   In his amended motion for postconviction relief, Vela
claimed that his counsel’s performance was deficient because
                              - 240 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

counsel failed to assign error on direct appeal to the trial
court’s overruling of Vela’s Batson challenges. Vela alleged
that during peremptory strikes, the prosecutor struck the only
Hispanic juror and the only African-American juror on the
venire. Vela objected to the strikes on the basis of Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986) (holding that prosecutor’s privilege to strike individual
jurors through peremptory challenges is subject to commands
of Equal Protection Clause). Vela alleged that the prosecutor
gave reasons for both strikes and that the trial court overruled
defense counsel’s objections. Vela claimed that he was preju-
diced when counsel failed to challenge these rulings on direct
appeal because this court “would have reversed Vela’s death
sentences and remanded the case to the district court for a new
aggravation trial.”
   In its order denying postconviction relief, the district court
noted that after Vela had challenged the strikes and pointed out
that the potential jurors were, respectively, the only Hispanic
and the only African-American on the venire, the burden
shifted to the State to articulate race-neutral bases for striking
the jurors. The court determined that the reasons given by the
prosecutor, which the record shows generally went to personal-
ity traits and prior prosecutions of both potential jurors, met
this burden and that defense counsel had “‘no argument’”
in response. The postconviction court determined that “[i]n
the face of the race-neutral reason provided by the Madison
County Attorney,” it was not deficient performance for appel-
late counsel to not raise the issue on direct appeal and that
there was not a substantial probability that the appellate court
would have found error in the rulings. The district court con-
cluded that Vela was not entitled to postconviction relief on
this claim.
   [14,15] An appellate court reviews de novo the facial valid-
ity of an attorney’s race-neutral explanation for using a peremp-
tory challenge as a question of law. State v. Oliveira-Coutinho,
291 Neb. 294, 865 N.W.2d 740 (2015). An appellate court
                              - 241 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

reviews for clear error a trial court’s factual determination
regarding whether a prosecutor’s race-neutral explanation is
persuasive and whether the prosecutor’s use of a peremptory
challenge was purposefully discriminatory. Id. Given these
standards of review, the prosecutor’s race-neutral explanations,
and the trial court’s reasons for rejecting Vela’s Batson chal-
lenges, we conclude that there was not a reasonable probability
that inclusion of this issue in Vela’s direct appeal would have
changed the result of the appeal. Therefore, counsel’s failure
to raise the issue on appeal was not ineffective assistance. See
State v. Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).
   We find no merit to this claim, and we therefore conclude
that the district court did not err when it rejected this claim
without an evidentiary hearing.

Fourth Claim: Intellectual Functioning.
   In his amended motion for postconviction relief, Vela gen-
erally claimed that his counsel’s performance was deficient
because counsel failed to adequately present a case to show
that Vela was “mentally retarded,” which would have precluded
imposition of the death penalty. Among the specific failures of
which Vela complained, Vela alleged that his counsel failed
to allow the State’s expert to conduct testing on Vela to fully
determine his level of intellectual ability.
   Vela alleged that after testing showed that his IQ was 75,
which the trial court found established “the first statutory
element of mental retardation,” the State retained Dr. Leland
Zlomke to further evaluate Vela. Vela alleged that Zlomke
wanted to administer adaptive behavior testing but that Vela’s
counsel did not allow Zlomke to administer the test. Vela
alleged that although the trial court found the first prong of the
test for “mental retardation” was presented based on Vela’s IQ
of 75, the court was not warranted in finding that the second
prong, “limitations in adaptive functioning,” was not shown.
Vela alleged that if his counsel had allowed Zlomke to admin-
ister adaptive behavior testing, the results would have shown
                              - 242 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

that he had significant limitations in adaptive functioning in at
least two of the relevant skill areas and that the court would
have found that the second prong of the test for “mental retar-
dation” had been established.
   In its order denying postconviction relief, the district court
rejected Vela’s claims regarding counsel’s failure to utilize
experts to adequately establish his diminished mental capacity.
The district court reviewed the testing done by several experts,
including those retained at Vela’s request and those retained
at the State’s request. The district court specifically rejected
Vela’s allegation that his counsel had refused to allow Zlomke
to perform adaptive behavior testing on Vela. The court cited
to our opinion in Vela’s direct appeal and stated that the
“record reflects that Zlomke had the opinion that Vela’s over-
all adaptive behavior was appropriate for his age.” The court
concluded that this claim did not entitle Vela to postconvic-
tion relief.
   In one of the portions of our opinion in Vela’s direct appeal
that was cited by the district court, we stated:
      Utilizing two third-party informants who were acquainted
      with Vela for 2 to 3 months prior to his arrest, Zlomke
      administered a standardized test known as Scales of
      Independent Behavior-Revised to assess Vela’s adaptive
      behavior. As a result of this testing, Zlomke concluded
      that while Vela had limitations in certain adaptive skill
      areas, his overall adaptive behavior was appropriate for
      his age.
State v. Vela, 279 Neb. 94, 137, 777 N.W.2d 266, 299 (2010).
In another cited portion, we stated, “The district court’s find-
ing that Vela failed to prove significant deficits in adaptive
behavior is supported by substantial evidence. . . . Zlomke
administered a modified adaptive behavior test based on inter-
views with Vela’s acquaintances and concluded that Vela fell
within the average range of adaptive functioning.” Id. at
151-52, 777 N.W.2d at 308. These portions of our opinion in
Vela’s direct appeal show that even if Vela’s allegation that his
                             - 243 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                         STATE v. VELA
                       Cite as 297 Neb. 227

counsel prevented Zlomke from performing adaptive testing
on Vela is true, such action by counsel did not prejudice Vela,
because Zlomke was able to use alternative means to evaluate
Vela’s adaptive behavior and Zlomke concluded that Vela’s
overall adaptive behavior was appropriate.
   We note for completeness that during the pendency of this
appeal, the U.S. Supreme Court decided Moore v. Texas,
___ U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017), in
which it concluded that a state court had relied on superseded
medical standards when it evaluated the defendant’s adaptive
functioning as a factor in determining whether the defendant’s
IQ of 74 warranted a finding that he was intellectually dis-
abled. In the present case, Vela challenged the effectiveness
of counsel based on his allegation that counsel completely
prevented an evaluation of his adaptive functioning. Vela did
not challenge the appropriateness of specific standards or
methods that were used to evaluate his adaptive functioning,
and therefore, consideration of that question is not before us
in this appeal.
   We find no merit to this claim, and we therefore conclude
that the district court did not err when it rejected this claim
without an evidentiary hearing.

Fifth and Sixth Claims: Definition
of Malice and Evidence
to Negate Malice.
   In his amended motion for postconviction relief, Vela
claimed that his counsel’s performance was deficient because
counsel failed to request a jury instruction defining “malice”
in connection with the aggravating circumstance of Lundell’s
murder which served as evidence under § 29-2523(1)(a) which
generally concerns a defendant’s prior assaultive behavior and
terrorizing criminal activity. He also claimed that counsel’s
performance was deficient because counsel failed to present
evidence to negate a finding of malice with regard to such
aggravating circumstance.
                              - 244 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

   More particularly, Vela claimed that in support of the aggra-
vating circumstance set forth in § 29-2523(1)(a), the State
alleged that Vela had a history of serious assaultive or terror-
izing criminal activity and that it presented evidence of the
Lundell homicide to support that allegation. Vela claimed that
there was evidence available to defense counsel which would
show that Vela did not kill Lundell with malice and that instead
he was threatened and coerced by a codefendant. He also
alleged that evidence of his diminished intellectual function-
ing would negate any finding of malice in connection with the
killing of Lundell.
   The district court concluded that Vela was not entitled to
postconviction relief on either the claim related to a malice
instruction or the claim related to evidence to negate a find-
ing of malice. The district court stated that the aggravating
circumstance set forth in § 29-2523(1)(a) “involves a review
of [a] defendant’s past criminal and assaultive terrorizing his-
tory” but that “[i]t does not involve a review of whether or not
a defend­ant had the mental capacity to commit other crimes or
engage in assaultive or terrorizing activity in the past.”
   The court also noted that in Vela’s direct appeal, he had
claimed that the failure to instruct the jury on the definition
of malice in connection with the aggravating circumstance
was plain error. We rejected this claim in the direct appeal and
stated that “contrary to Vela’s argument, we find no evidence
in the record suggesting the absence of malice in the form
of legal justification or excuse for the Lundell killing.” State
v. Vela, 279 Neb. 94, 117, 777 N.W.2d 266, 287 (2010). We
further stated in our opinion in his direct appeal that Vela was
not on trial for the murder of Lundell and instead that “Vela’s
involvement in the Lundell murder was simply the evidence
by which the State sought to prove aggravating circumstance
§ 29-2323(1)(a), a ‘substantial prior history of serious or
assaultive terrorizing criminal activity’ prior to the five mur-
ders for which he had been convicted.” 279 Neb. at 118, 777
N.W.2d at 287.
                              - 245 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                          STATE v. VELA
                        Cite as 297 Neb. 227

   As the district court in this postconviction action reasoned,
even if the jury in this case had found that Vela did not kill
Lundell with malice, there was still evidence that Vela had
killed Lundell and was guilty of some lesser form of homi-
cide. Regardless of the degree of homicide, such evidence
supported a finding of the existence of the aggravating cir-
cumstance in § 29-2523(1)(a) of “a substantial prior history
of serious or assaultive terrorizing criminal activity.” Also,
there was no reason to think the sentencing panel would have
given less weight to the aggravating circumstance of Lundell’s
murder or would have decided against the death penalty if the
Lundell killing were found to be a lesser homicide. Therefore,
Vela’s allegations do not show how he was prejudiced by
counsel’s alleged failures to request an instruction on malice
and to present evidence to negate a finding of malice in con-
nection with Lundell’s murder which served as an aggravat-
ing circumstance.
   We find no merit to these claims, and we therefore conclude
that the district court did not err when it rejected these claims
without an evidentiary hearing.
                        CONCLUSION
   For the reasons set forth above, we determine that with
respect to each of Vela’s claims, the district court did not err
when it concluded that Vela failed to allege sufficient facts to
demonstrate a violation of his constitutional rights and that
the record and files affirmatively show that he is entitled to
no relief. We conclude that the district court did not err when
it overruled Vela’s motion for postconviction relief without an
evidentiary hearing. Accordingly, we affirm the order of the
district court.
                                                     A ffirmed.
   Heavican, C.J., not participating.
