Opinion
No. A-11-1051
11-06-2012
STATE OF NEBRASKA, APPELLEE, v. MARCO E. TORRES, JR., APPELLANT.
John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Hall County: JAMES D. LIVINGSTON, Judge. Affirmed.
John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges. MOORE, Judge.
INTRODUCTION
Marco E. Torres, Jr., appeals from an order of the district court for Hall County, which denied his motion for postconviction relief following an evidentiary hearing. Our independent review supports the determination that no Brady violation occurred and that Torres' trial counsel was not ineffective. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We also find no abuse of discretion in the receipt of other attorneys' testimony at the postconviction hearing. Accordingly, we affirm.
BACKGROUND
Information.
The State filed an information charging Torres with four Class II felonies--kidnapping, robbery, and two use of a deadly weapon to commit a felony--in connection with events occurring in February 2007.
Trial.
The evidence at the jury trial, held November 5 through 7, 2007, established that in February of that year, Billy Packer was actively involved in both buying and selling illegal drugs in and around Grand Island, Nebraska. At some point, Packer met Torres, who was a member of the Colombian cartel and had access to large amounts of cocaine. Torres proposed that he and Packer should start trading drugs--Torres would supply Packer with cocaine and, in turn, Packer would supply Torres with methamphetamine. Packer agreed and, in the meantime, found places for Torres to stay and provided Torres with free drugs. However, Packer soon changed his mind about the deal with Torres, because it appeared Torres was never going to provide the cocaine.
On February 13, 2007, Packer and Torres were at a location where several people were hanging out and doing drugs. Torres got into an argument with another individual, so Torres and Packer left, along with an individual named "Jimmy Taylor." The three of them left in Packer's car to go to Jose Cross' house. Packer drove, Taylor was in the front passenger seat, and Torres was in the back seat. On the way to Cross' house, Torres pulled out a gun, pointed it at Packer, and told him to stop the car. Packer stopped the car, and then Torres pointed the gun at Taylor and told him to get out. After Taylor exited the car, Torres told Packer to drive to Cross' house.
When they got to Cross' house, Packer and Torres exited the car and Cross came outside. Cross testified that when Torres exited, he had his hand inside of his coat as if he had a gun, and that Torres told Cross to go inside. Once they were inside Cross' house, Torres pulled out a gun. The three of them went upstairs to Cross' room, where Cross' girlfriend, Gina Padilla, was present. Torres handed Cross some duct tape and told him to tape up Packer. Cross did so. Then Torres explained that Packer was supposed to have found an ounce of methamphetamine for someone in Texas, that Packer had failed to do so, and that people in Texas were now upset with Torres, which had placed Torres' family in danger. Torres told Packer that as soon as Packer found the methamphetamine, Torres would take it and go to Texas. Torres had Packer make a number of calls to look for the methamphetamine, and then he had Packer call Torres' girlfriend in Texas and apologize for putting her and Torres' son in danger.
While Packer was making these telephone calls, Torres went through Packer's wallet and took approximately $800, as well as Packer's license and a picture of Packer's children. Torres also told Cross and Padilla to write down Packer's bank card number and then to go get food, which they did. When Cross and Padilla returned, they told Torres that he should let Packer go because Packer had to go to Kansas for court and that Packer could get the methamphetamine when he returned. Torres eventually agreed to let Packer go, but he kept Packer's telephone, as well as the other items that he had removed from Packer's wallet.
Torres released Packer sometime around midnight, but then about an hour later, Torres had Cross take him to a house in Wood River, where he suspected Packer went after being released. A car similar to Packer's was in the driveway, so Cross assumed that Packer was there and that Torres and Packer would resolve their problems. Cross dropped off Torres and then left.
The next morning, Torres returned to Cross' house. Torres told Cross that he needed to find Packer because Packer failed to do what he was supposed to do. Cross took Torres to a motel, and a few days later, he obtained some drugs for Torres. At that time, Cross told Torres that he would help him find a ride to Texas, but that he wanted no part of the dispute between Torres and Packer. Torres stayed in touch with Cross for 4 or 5 more days after that and continued to search for Packer. Torres began using Packer's telephone to call Packer's family and other people who knew him. According to Cross, when Torres made these calls, he would identify himself as a police officer and would state that he had recovered Packer's telephone and needed to contact Packer.
The trial record shows that after Packer's release, he went to Kansas to stay with his wife, who was living there because she and Packer were separated at that time. On the day before Packer arrived, his wife received a call from him. Packer was crying, and he said that someone had a gun to his head and that he needed money. Packer arrived in Kansas the next day, and his wife helped him find a place to hide in Kansas. She testified that she received a call from Packer's telephone a few days after the call from Packer and recognized the caller as Torres. Torres stated that he was a police officer, had recovered Packer's telephone, and needed to locate Packer. After receiving two additional calls from Torres asking where Packer was, Packer's wife shut off the cellular telephone service for Packer's telephone.
Investigators eventually located Torres in Pasadena, Texas, on March 26, 2007. Torres had a number of items in his possession at that time, including Packer's cellular telephone, a picture of Packer's children, and a piece of paper with Packer's personal identification information written on it. Torres first told investigators that Packer had given him the telephone, but he later said that Cross' brother had purchased the telephone for him. Torres acknowledged that he had been at Cross' house with Cross, Padilla, and Packer, but denied that he held Packer at gunpoint. Torres also acknowledged that a "deal" was supposed to have taken place in Texas, but that something went wrong, so Torres had to go to Texas to "make things right."
Investigators also spoke with Torres' ex-girlfriend in Texas. She testified that around Valentine's Day 2007, she received a call from an unknown man who apologized for putting her and her son in danger. During the call, Torres' ex-girlfriend could hear Torres in the background, telling the man to apologize. She testified that she later learned about Packer's kidnapping, and when she asked Torres about it, he told her it related to "a deal that had gone bad." Torres also told his ex-girlfriend that the kidnapping was related to the telephone call she had received from the unknown man.
Conviction and Sentence.
The jury convicted Torres of kidnapping, robbery, and two counts of use of a weapon to commit a felony. At that time, all four counts were Class II felonies, punishable by up to 50 years' imprisonment. The district court sentenced Torres to 25 to 40 years' imprisonment for the kidnapping conviction, 25 to 40 years' imprisonment for the associated weapons conviction, 20 to 30 years' imprisonment for the robbery conviction, and 20 to 30 years' imprisonment for the associated weapons conviction, all to be served consecutively.
Direct Appeal.
Torres' direct appeal, case No. A-08-131, was filed by his trial attorney (Attorney I). In the initial brief, filed by Attorney I, Torres alleged solely that the sentence imposed was excessive. Torres then filed a supplemental pro se brief, alleging that his trial counsel was ineffective for failing to conduct proper pretrial investigation, present exculpatory evidence, effectively cross-examine witnesses, call defense witnesses to rebut the State's case, and subject the State's case to meaningful adversarial testing. Attorney I subsequently filed a motion to withdraw, which was granted, and new appellate counsel (Attorney II) was appointed to represent Torres. On September 17, 2008, this court summarily affirmed Torres' convictions and sentences, also finding that the record was insufficient to address the claims of ineffective assistance of counsel raised by Torres in his supplemental brief. Attorney II filed a petition for further review, which was denied by the Nebraska Supreme Court.
Postconviction Proceedings.
On December 11, 2008, Torres filed a postconviction motion and request for an evidentiary hearing. Torres alleged that (1) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (2) Attorney I was ineffective for failing to properly investigate, present exculpatory evidence, effectively cross-examine the State's witnesses, and subject the State's case to adversarial testing; and (3) Attorney II was ineffective for representing Torres despite a conflict and failing to raise a Brady claim on appeal after receiving evidence that had been withheld by the State.
An evidentiary hearing was held on May 23 and July 6, 2011, in which the district court received the bill of exceptions from Torres' trial, discovery responses that the State sent to Attorney I prior to trial, copies of investigative reports that were in Attorney I's possession prior to trial, depositions of both Attorney I and Attorney II, copies of police reports that were received by Attorney II while the direct appeal was pending, a copy of testimony from a witness in a later trial of Torres for murder, and two depositions of Torres. The court took Torres' objections to the deposition of his counsel in the murder trial (Attorney III) under advisement. We have set forth details of the evidence received at the hearing as necessary in the analysis section below.
The district court entered an order on November 17, 2011, denying Torres' postconviction motion. The court found that Torres failed to show that a Brady violation had occurred and that even if one had occurred, there was not a reasonable probability the evidence in question would have changed the outcome of the trial. The court stated that the evidence in question was reviewed by Attorney II and Attorney III, who found that the evidence was not "game changing." The court concluded that Attorney I was not ineffective because Attorney I's strategy was reasonable and the additional information that could have been presented would not have changed the outcome of the trial. Torres subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Torres asserts that the district court erred in denying his motion for postconviction relief and (1) failing to find a Brady violation, (2) failing to find that Attorney I was ineffective for failing to investigate exculpatory evidence, and (3) considering opinion testimony of attorneys regarding whether evidence was "game changing."
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. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews factual findings of the trial court for clear error. Id. Determinations regarding whether counsel was deficient and whether this deficiency prejudiced the defendant are questions of law that an appellate court reviews independently of the lower court's decision. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
An appellate court's review of the trial court's admission or exclusion of expert testimony which is otherwise relevant will be for an abuse of discretion. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004).
ANALYSIS
Alleged Brady Violation.
Torres asserts that the district court erred in failing to find a Brady violation. Specifically, he argues that the State withheld material evidence concerning Packer and Cross. The State acknowledges that two particular exhibits were not provided to Torres prior to trial, but it argues that the failure to provide this information was not a Brady violation.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the U.S. Supreme Court held that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment." There are three components of a true Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). The Nebraska Supreme Court has stated that favorable evidence is material, and constitutional error results from its suppression by the State, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability of a different result is accordingly shown when the State's evidentiary suppression undermines confidence in the outcome of the trial. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).
Exhibits 19 and 20, which are the exhibits in question, were received into evidence by the district court during the postconviction evidentiary hearing. Exhibit 19 is a series of federal drug task force interview reports, which contain information relating to a proffer agreement between Packer and the U.S. Attorney's office. The reports in exhibit 19 contain details of and focus on Packer's involvement in dealing drugs. Exhibit 20 contains police reports from the Grand Island Police Department about a robbery that took place in March 2006. The victim of the robbery reported that Cross robbed him and used a handgun in the process. Cross was charged with robbery, burglary, use of a weapon to commit a felony, aiding and abetting, and carrying a concealed weapon for his involvement in the 2006 incident.
At the postconviction hearing, the district court also received into evidence the depositions of Attorney I and Attorney II. In Attorney I's deposition, he was asked whether during his representation of Torres he ever became aware of any exculpatory evidence that had been withheld by the prosecution. He testified that he later learned about certain proffer agreements with people who were witnesses against Torres but that these items were not provided to the defense prior to trial. Attorney II had some recollection of receiving discovery materials following trial, but he opined that they were not the type of materials to justify a motion for new trial, and at most, they might have been impeachment material.
Torres claims that exhibit 19 is significant because Packer's drug dealing may have given him a motive to fabricate the kidnapping as a cover for his own illegal activity. Details of Packer's involvement in dealing drugs, however, were brought forth during the kidnapping trial. Packer testified about selling drugs to several people, including Torres, Cross, Padilla, and a number of other individuals. Because the jury was aware of Packer's drug-related activities, it cannot be said that there is a reasonable probability that the outcome of the kidnapping trial would have been different had the jury been provided with further details. Torres also asserts that exhibit 19 would have been beneficial to his defense because it shows Packer's continued involvement in the drug trade after the kidnapping. Torres argues that this might have created reasonable doubt if the jury assumed that a reasonable person would have left the drug trade after being kidnapped. This is a tenuous assumption at best and not a reasonable probability. Torres' arguments with respect to exhibit 19 are without merit.
With respect to exhibit 20, Torres argues that if the jury heard about the 2006 robbery, the jurors may have concluded that the kidnapping and robbery of Packer in February 2007 was Cross' idea. Even though the jury did not hear the details of the 2006 robbery, it did hear that Cross had previously been charged with robbery and several other crimes, that he reached a plea agreement with the State, and that he pled guilty to robbery and burglary. It was not clear on the record at trial whether the charges to which Cross pled stemmed from his involvement in the present case or were related to his involvement in a different matter. Torres argues that it would have been useful for the jury to have heard specific details of Cross' robbery in 2006 so that it would have known he was familiar with how people react when robbed at gunpoint. Torres also suggests that if the jurors had known this, they might have concluded that Cross' familiarity with robberies inspired him to concoct a false robbery report and frame Torres. The specific details of the 2006 robbery would have been inadmissible, however, under Neb. Rev. Stat. § 27-609 (Reissue 2008) (impeachment by evidence of conviction of crime). See State v. Olsan, 231 Neb. 214, 436 N.W.2d 128 (1989) (under § 27-609, once prior conviction has been established, inquiry must end, and it is improper to inquire into nature of crime, details of offense, or time spent in prison). Even if the details of the 2006 robbery were admissible in the kidnapping trial, Torres has not shown a reasonable probability that the admission of that evidence would have changed the outcome.
Because Torres has not shown a reasonable probability that the result of the proceeding would have been different had exhibits 19 and 20 been disclosed to the defense, the district court did not err in failing to find a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Ineffective Assistance of Counsel.
Torres asserts that the district court erred in failing to find that Attorney I was ineffective for failing to investigate exculpatory evidence.
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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012). 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. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Torres identifies five potential witnesses who he claims could have revealed inconsistencies regarding Packer's kidnapping and led the jury to reach a different result--had they been called as witnesses in the kidnapping trial. We discuss the evidence received at the postconviction evidentiary hearing as to each of these individuals in turn below.
The first witness identified by Torres is Kori Ellis, who gave a statement to police in March 2007 explaining her knowledge of the kidnapping incident. According to Ellis, Torres, who was supposedly well-connected with the Colombian cartel, was in Nebraska to find a good methamphetamine supplier. Torres intended to take methamphetamine to Texas and then return to Nebraska with cocaine. Ellis indicated that she had been staying with Torres at various hotels while he was in Nebraska and that the last day she saw Torres was the day of the incident with Packer. Ellis explained to police that on the day of the incident, she and several others were at a trailer when Packer and Torres arrived. When Torres began arguing with Ellis, another individual told Torres to leave, and Torres did leave, along with Packer and Taylor. According to Ellis, Taylor returned to the trailer and told Ellis that Torres had forced him out of the car at gunpoint and had taken Packer. Ellis indicated that the occupants of the trailer received a call from Packer shortly after that, telling everyone to stay in the trailer because they would be shot if they left. The occupants of the trailer received a second call from Packer around 3:30 a.m., during which Packer advised them that Ellis needed to deliver an ounce of methamphetamine to Torres for free or Torres would shoot Packer. Ellis was supposed to bring the methamphetamine to the hotel where Torres was staying, and she was to deliver it personally and alone.
Torres argues that this information is significant because Ellis' statement about being instructed to take the ounce of methamphetamine to the hotel conflicted with the testimony at trial about Packer being held hostage at Cross' house. Ellis' statement, however, is actually consistent with the evidence at trial. The evidence at trial established that at about 1 a.m. after Packer had been released, Torres had Cross take him to a house in Wood River, where Packer might have gone. Cross testified that he simply dropped Torres off at the house and left. Although Cross did not wait to see if Packer was at the house, he saw a car that resembled Packer's parked at the house and assumed that Packer was there. Because the evidence at trial was consistent with Ellis' statement, Attorney I was not ineffective for failing to call Ellis as a witness.
The second individual identified by Torres is J.D. Henderson, who gave a statement to police in May 2007 in which he described a gun that he provided to Torres. Henderson explained to police that Torres and Packer came to his house one day and that Packer asked Henderson if he could obtain a gun for Packer. Henderson said he could, and then Packer left to tend to another matter. While Packer was gone, the gun was delivered to Henderson's house. Henderson gave the gun to Torres, who was still at Henderson's house, because Henderson was under the impression that Torres and Packer were working together. Henderson described the gun to police as a black .22-caliber revolver with a brown wooden handle.
Torres argues that this information is significant because, at trial, there were inconsistencies in the evidence about the gun Torres used during Packer's kidnapping. Torres notes certain inconsistencies in the descriptions of the gun at trial, and he suggests that Henderson's testimony would have been useful because it could have shown that Packer already knew what type of gun Torres had in his possession. In other words, Torres suggests that testimony from Henderson could have highlighted inconsistent descriptions of the gun and perhaps led the jury to question the basis of Packer's knowledge of the gun.
The problem with Torres' argument is that the inconsistent descriptions of the gun were clearly evident at trial. Taylor testified that the gun was a "semi-automatic pistol [resembling] a Desert Eagle," while Packer, Cross, and Padilla each described the gun as a revolver or an "older" type of gun. Attorney I showed pictures of a .22-caliber revolver and a "Desert Eagle" pistol to a couple of witnesses while questioning them about the gun they saw to highlight the difference between the two guns. The pictures were received into evidence. The State also focused on this issue, especially during the prosecutor's redirect examination of Taylor. Taylor acknowledged that the gun was approximately 6 inches from his face when he saw it, so the gun could have appeared larger than it really was.
Because inconsistent descriptions of the gun were given at trial, testimony from Henderson was not necessary to highlight the discrepancy and would have been cumulative of that from other witnesses. Torres' arguments do not demonstrate a reasonable probability that the outcome of the trial would have been different if Attorney I had presented Henderson's testimony.
The third witness identified by Torres is Jennifer Jo Parker, who gave a statement to police in April 2007, detailing her knowledge of Packer's kidnapping. Parker explained to police that she was at her residence with several other individuals when Torres got into an argument and was told to leave. Parker explained that Torres left with Packer and Taylor. Then Taylor returned and told those at Parker's residence that Torres had pulled a gun on Packer. Shortly thereafter, Parker received a call from Packer saying that he was being held hostage by Torres and needed someone to bring him drugs. Parker explained that the occupants of her residence did not initially take this seriously, because they thought Packer was just trying to get someone to front him some drugs. The next morning, Packer stopped by Parker's residence and "popped his head in [her] room." Parker had just woken up and was not fully awake when Packer did so. According to Parker, Packer did not act particularly worried at that time, so she was still not certain whether the kidnapping/robbery incident was serious. Parker did not realize that a kidnapping/robbery had actually occurred until several days later.
Torres argues that Parker's statement is significant because if the jury had heard that evidence, the jurors may have thought Packer's behavior the morning after the kidnapping was inconsistent with that of someone who had been kidnapped, and that Parker's statement would thus support Torres' theory that the kidnapping was a fabrication. There are other, perhaps even more, logical conclusions that the jurors might have drawn had such evidence been presented at trial. They might have assumed that Packer did not act worried the next morning because he had been released and was no longer being held hostage. The jurors might also give little or no attention to Parker's interaction with Packer the next morning, given that Parker had just woken up and apparently had no interaction with Packer beyond Packer's "popping his head" into her room. Torres has not shown a "reasonable probability" that the outcome of the kidnapping trial would have been different if Attorney I had called Parker as a witness. Accordingly, Attorney I was not ineffective for failing to do so.
The fourth witness identified by Torres is Andrew Weddle, who was one of the individuals at the trailer on the night Packer was kidnapped. Packer had previously sold drugs to Weddle. A copy of Packer's cellular telephone records was admitted both at trial and at the postconviction evidentiary hearing. Packer's telephone records show that between February 13 and 14, 2007, a number of calls were exchanged between Packer and Weddle. Torres focuses on a particular call that was placed at 7:37 a.m. on February 14, the day after the kidnapping, from Packer's cellular telephone to Weddle's telephone.
According to Torres, this call would support an inference that Packer still had control of his telephone the next morning and would refute the fact that Torres had taken Packer's cellular telephone during the kidnapping. But Torres does not show how testimony from Weddle would have made the jury more likely to draw such an inference, especially given the fact that the telephone records were admitted into evidence at trial. Torres' argument overlooks the evidence at trial which established that the day after the kidnapping, Torres wanted to find Packer again and was seen using Packer's cellular telephone to call Packer's contacts in an attempt to locate him. Torres also overlooks the fact that when Torres was found in Texas about a month after the kidnapping, he had items in his possession at the time that were reportedly taken from Packer during the kidnapping, including Packer's cellular telephone. Based on the evidence, a more likely inference to be drawn from Packer's cellular telephone records would have been that Torres, rather than Packer, was the one who made the call to Weddle and to various others of Packer's contacts. Torres has not shown that Weddle would have testified to receiving a telephone call from Packer the morning after the kidnapping. Torres has failed to show a reasonable probability that the outcome of his trial would have been different if Attorney I had called Weddle as a witness.
The fifth and final witness identified by Torres is Melanie Nance. With respect to Nance, Torres makes essentially the same argument that he made regarding Weddle. Packer's cellular telephone records admitted at trial do not show Nance as a "Person Called," but do show several "NO SUBSCRIBER" numbers that were called from Packer's telephone on February 13 and 14, 2007. Two exhibits admitted at the postconviction evidentiary hearing identify one of the "NO SUBSCRIBER" numbers shown on Packer's cellular telephone records as belonging to Nance. An excerpt from Nance's testimony in Torres' subsequent murder trial was also admitted at the evidentiary hearing. In that excerpt, Nance testified that she missed a couple of calls from Packer's cellular telephone early one morning during the spring of 2007, and when Nance made contact with Packer later that morning, she learned that Packer was planning to leave town. Torres claims that Nance would have given this same testimony if she had been called as a witness at his previous kidnapping trial, which would have demonstrated Packer still had possession of his cellular telephone after the kidnapping. Attorney I testified about this issue when he was deposed for Torres' postconviction proceeding. Attorney I testified that in his opinion, it had already been shown through Packer's telephone records and the contradictory testimony from the State's witnesses that Packer still had his cellular telephone after the kidnapping, so Nance's testimony would have been cumulative and was unnecessary. Attorney I explained that Nance would have simply added one more "who do you believe" witness into the equation, which Attorney I felt was unnecessary given the number of contradictions already made by the State's witnesses. Attorney I also testified about how he focused on this issue during closing arguments, when he used Packer's cellular telephone records to illustrate certain inconsistencies in the evidence at trial. Clearly, Attorney I's decision not to call Nance was a matter of trial strategy, which we will not second-guess. In determining whether trial counsel's performance was deficient, courts give counsel's acts a strong presumption of reasonableness. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). When reviewing claims of ineffective assistance, an appellate court will not second-guess trial counsel's reasonable strategic decisions. Id. Torres has not shown that Attorney I's strategy was defective with respect to Nance, nor has he shown that the outcome of the trial would have been different if Attorney I had called Nance as a witness.
As discussed above, Torres has not shown prejudice with respect to Attorney I's failure to call these five witnesses at trial. The evidence relating to each of these five witnesses was consistent with or cumulative of information developed at trial, and many of the connections Torres urges us to make are tenuous or insignificant. Because Torres has not shown a reasonable probability that the outcome would have been different had these witnesses been called at trial, his assignment of error is without merit.
Expert Testimony.
Finally, Torres asserts that the district court erred in considering the opinion testimony of attorneys regarding whether evidence was "game changing."
In his deposition, Attorney II testified that he received approximately 700 or 800 pages of additional discovery materials from the State after he was appointed to represent Torres due to a change in rules regarding jailhouse informants. Attorney II reviewed the materials and determined that while they might have had some impeachment value, there was nothing exculpatory in the materials that would justify a motion for new trial. He ultimately gave the materials to Attorney III, who represented Torres in a subsequent murder trial.
In his deposition, Attorney III confirmed that he obtained all of Attorney II's records from the kidnapping case. Attorney III testified that he reviewed the materials received from Attorney II and thought that they might have had some impeachment value in the kidnapping case, but he did not consider any of the evidence "game changing."
At the postconviction hearings, Torres objected when the State offered Attorney III's deposition. Torres' postconviction counsel argued that Attorney III's deposition contained opinion testimony as to the adequacy of Attorney I's representation and cited State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008), and State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990), which both provide that expert testimony is generally not admissible as proof that the assistance of counsel in a criminal case was ineffective.
The district court took Torres' objection under advisement and did not expressly rule in its postconviction order on the deposition's admissibility, but it is clear that the court considered Attorney III's deposition testimony at least with respect to the alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The court found no Brady violation based on its review of the evidence and then noted that the evidence in question "was also reviewed by [Attorney II and Attorney III,] who found that the evidence was not 'game changing.'"
Our review of the district court's order leads us to conclude that the court's consideration of the testimony of Attorney II and Attorney III was related to whether a Brady violation occurred, not to the ultimate determination of whether Attorney I was ineffective. The district court reviewed all of the evidence received at trial, as well as the evidence from the postconviction hearing, in making its independent determination of whether Torres received ineffective assistance of counsel. We find no merit to Torres' third assignment of error.
CONCLUSION
The district court did not err in denying Torres' motion for postconviction relief. The court did not err in failing to find a Brady violation or in finding that Torres' trial counsel was not ineffective. We find no abuse of discretion in the receipt of other attorneys' testimony at the postconviction hearing.
AFFIRMED.