State of Nebraska v. James M. Saylor

Sometime in 1984, the State charged Saylor with first degree

murder. The original information is not in the record for this

appeal. At that time, hiring the killing of another person was an

aggravating factor supporting the death penalty. Neb. Rev. Stat.

§ 29-2523(1)(c) (Reissue 1979) (repealed 2015 Neb. Laws,

L.B. 268, § 35).

Police had arrested Saylor in April 1984, immediately after

he made tape-recorded statements about Lena’s death to his

friends David Timm and Jeffrey Menard. On July 12, 1984,

Saylor filed a motion to dismiss, which was denied. On

December 7, Saylor filed a motion to suppress the tape recordings.

On February 6, 1985, the district court conducted a

hearing on that motion. Patrick Healey and Susan Jacobs

represented Saylor. Michael Heavican, the county attorney

at that time, had declared a conflict because he anticipated

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that he may be called as a witness, and Terry Dougherty was

appointed special prosecutor for the case.

While the motion to suppress was still under advisement,

Dougherty proposed that the parties resolve the matter by

agreement, and the parties negotiated. Ultimately, the parties

agreed to a stipulated trial to allow Saylor to contest the district

court’s ruling on his motion to suppress. We recount additional

details regarding the parties’ negotiations in the analysis

section below. On April 2, 1984, the district court denied the

motion to suppress.

On April 5, 1985, Saylor waived his right to a jury trial.

The district court confirmed that Saylor did so freely, voluntarily,

and knowingly. Next, Dougherty summarized the parties’

agreement for the record, which summary we quote in

the analysis portion of this opinion. Saylor’s counsel acknowledged

that Dougherty had correctly described the agreement,

and neither Saylor nor his counsel contradicted it.

Stipulated Benc h Trial

and Direct Appeal

On May 10, 1985, the State amended the charge to second

degree murder. The district court advised Saylor that he had

the right to be served with the amended copy of the information

and to wait 24 hours before appearing for arraignment,

and Saylor waived those rights. The district court proceeded

with the arraignment, and Saylor pled not guilty to

the amended charge. The district court then conducted the

stipulated bench trial. We summarize those proceedings in part

here and provide additional relevant details in other portions

of this opinion.

The 20-page written stipulation, signed by Dougherty,

Healey, and Saylor, set forth evidence that Saylor had hired

Sapp to kill Lena. In that document, the parties stipulated that

all items of evidence discussed and offered had an adequate

chain of custody. Along with the written stipulation, the parties

submitted other evidence by stipulation, including the tape

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recordings of the conversation between Saylor, Timm, and

Menard in April 1984. Saylor’s counsel renewed his motion to

suppress, which the district court again overruled.

Healey argued to the district court that the matter was submitted

with stipulated facts, but that this left “to the court the

question of whether the stipulated matter proves [Saylor’s]

guilt and if so, what offense.”

On May 20, 1985, the district court found Saylor guilty of

second degree murder. Saylor filed a motion for new trial. On

August 7, the district court overruled Saylor’s motion for new

trial and sentenced him to life in prison.

On direct appeal to this court, Saylor claimed that the district

court erred in overruling his motion to suppress the recorded

conversation. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789

(1986). Healey and Jacobs represented Saylor on appeal. This

court described the recordings as including “incriminating” and

“inculpatory” statements in which Saylor “indicated that he

had hired someone to kill his grandmother.” See id. at 697, 392

N.W.2d at 792. We affirmed.

Postconviction Proceedings

On August 22, 2012, Saylor filed a pro se motion for postconviction

relief; his new counsel filed a lengthy amended

motion for postconviction relief on February 7, 2013.

The district court granted an evidentiary hearing, but limited

its scope to ineffective assistance of trial and appellate counsel,

prosecutorial misconduct, and prejudicial conduct of the trial

judge. Saylor’s remaining claims were not permitted to proceed

to the evidentiary hearing. The district court specifically noted

that Saylor had addressed the ruling on the motion to suppress

on direct appeal and could not relitigate it.

Sometime prior to November 20, 2014, Saylor gave notice

of his intent to call an attorney to give expert testimony

at the evidentiary hearing regarding whether Saylor’s trial

counsel’s performance was deficient and whether Saylor was

prejudiced by such alleged deficiencies. The State responded

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with a motion to preclude the attorney’s testimony. After

reviewing the attorney’s proposed testimony, the district

court precluded it, finding that it would not have assisted the

trier of fact in understanding the evidence or determining a

factual issue.

The district court conducted the evidentiary hearing on

December 1 through 4, 2014, and January 6, February 17, and

March 11, 2015.

Saylor offered the clerk’s transcript from the stipulated

bench trial, which the district court received. The record contains

a photocopy of the front page of the clerk’s transcript,

with a notation that the original would be furnished by the

reporter upon request. The remainder of the clerk’s transcript

is not in the record.

Saylor testified that immediately before he entered his jury

waiver, Healey had advised him that the stipulated trial format

was the best way to resolve the matter because Saylor could

try the case and “not be found guilty of anything more than

second degree and would not receive the death sentence.”

Saylor said he understood that Healey would be able to include

facts in the stipulation that challenged the State’s case. Saylor

denied that either of his attorneys informed him that he could

withdraw his jury waiver if the parties could not agree on

the stipulation.

According to Saylor, between the jury waiver and the stipulated

trial, his counsel did not discuss the contents of the stipulation

with him. Saylor further testified that he did not see any

written version of the stipulation until immediately before the

stipulated bench trial and that he had less than 10 minutes to

review it. Saylor denied understanding the stipulation because

it was “very, very complicated.”

Dougherty testified that he waited to amend the charge until

after Saylor had waived the jury trial because he did not want

Saylor to receive the benefit of the bargain until after the parties

had agreed on the stipulated facts and submitted them to

the district court. Dougherty testified that had the parties not

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reached such agreement, he would have joined in Saylor’s

request to withdraw his jury waiver.

Healey, who acted as lead defense counsel, had died before

the postconviction proceedings. Cocounsel Jacobs testified that

defense counsel would have requested a jury trial if Saylor had

requested it at any time after waiving the jury trial and before

the verdict. She denied that Saylor ever told her he did not

want to enter into the stipulation. She admitted that she did

not recall many things about Saylor’s case, but she testified

that if he had indicated that he did not want to enter into the

stipulation, she thought she would remember, because “[t]hat’s

critical.” Jacobs testified that had she believed the stipulation

contained a material misrepresentation, she would have

informed the district court, but that she did not. Jacobs did not

recall requesting any discovery documents from the prosecution

that Saylor’s counsel did not receive.

Jacobs testified that the possibility of the death penalty

in Saylor’s case “always loomed large” and that Saylor’s

recorded statements to Timm and Menard would be very

persuasive evidence of Saylor’s guilt in the event of a trial

and would likely have been admitted. Saylor admitted that

he expressed concern about the death penalty to Healey and

Jacobs and that he agreed to the stipulated trial to avoid the

death penalty. Dougherty testified that had Saylor gone to trial,

he would have sought the death penalty, but that he was willing

to forgo the possibility in exchange for Saylor’s agreement to

the stipulated trial.

The record contains timesheet evidence that Dougherty had

contact with the county attorney’s office through short telephone

conferences throughout the case. In his 1984 deposition,

Gary Lacey, the chief deputy county attorney, testified

that he consulted with Dougherty on moving Saylor and Sapp,

witnesses for their cases, and the death qualification issue.

Lacey testified that Heavican and Dougherty met with the

director of the parole board about an inmate who wanted work

release in exchange for information he had received from

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Sapp. Dougherty testified that he communicated with Lacey

and Heavican, in part, because he did not have the authority to

make a binding deal with the inmate. Dougherty denied having

ex parte communications with the district court, and he denied

that Heavican was actively involved in directing him in the

prosecution of the case.

At the time of the postconviction proceedings, the tape

recordings of Saylor’s conversation with Timm and Menard

were inaudible, and the district court did not admit their verbatim

transcript due to authentication issues. However, the district

court received a synopsis of the tape recordings contained

in the deposition of Jim Peschong, who was one of the detectives

involved in the case. According to Peschong’s synopsis,

Saylor admitted to hiring someone to kill Lena. Peschong

documented that Saylor told Timm and Menard that the person

hired was someone they knew.

The stipulation had stated that Dr. Reena Roy, an expert in

forensic serology, tested a pillow obtained from the scene and

detected a substance that could have come from Lena’s saliva

on the pillow. According to the stipulation, Roy received

the pillow from the property room custodian of the Lincoln

Police Department. At the postconviction hearing, Dougherty

acknowledged that the property room custodian had given the

pillow to a third person who then gave it to Roy. Dougherty

testified that rather than recount the entire chain of custody,

he phrased the stipulation to show that the pillow “got from

the custodian in the property room to the person who tested

it and there was a chain of custody and this is the pillow.”

He denied attempting to mislead the district court in this

regard or with any facts in the stipulation and testified that he

had drafted the stipulation in good faith, believing the facts

were accurate.

The stipulation had included evidence attributed to Dr.

David Kutsch, who performed an autopsy on Lena on the

morning of her death. According to the stipulation, it was

Kutsch’s opinion that injuries to Lena’s face could have been

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caused by someone placing a hand or other object over Lena’s

face to smother her. Kutsch opined that Lena died at approximately

5 a.m.

The stipulation had stated that based on Kutsch’s examination

of the scene, the autopsy, and the information supplied by

police, Kutsch would testify at trial within a reasonable degree

of medical certainty that (1) the injuries occurred approximately

at the time of Lena’s death, (2) respiratory arrest caused

Lena’s death, and (3) although Lena could have died of natural

causes, smothering most likely caused respiratory arrest.

The stipulation had noted that Kutsch also testified in a

deposition on October 9, 1984, that it was “indeterminate as to

whether her demise was from natural causes or from smothering,”

but that he rendered that opinion before he knew the definition

of “‘reasonable degree of medical certainty.’”

At the postconviction hearing, Saylor presented the testimony

of two forensic pathologists. Upon a review of the

records in the case, they opined that Lena’s death was consistent

with chronic obstructive pulmonary disease and that

she died of natural causes. One pathologist opined that neither

smothering nor lung disease could be ruled out, but that based

on the autopsy alone, lung disease was the more probable

cause of death. The other pathologist agreed with Kutsch’s

1984 deposition opinion, cited in the stipulation, that it was

“indeterminate as to whether [Lena’s] demise was from natural

causes or from smothering.” Saylor presented additional

evidence attempting to call into question Kutsch’s qualifications,

conclusions, and handling of the evidence in Saylor’s

case. To further support the theory that Lena, age 83, was in

poor health and died of natural causes, Saylor presented evidence

from the scene of the crime, the autopsy, and Lena’s

medical history.

The district court also received evidence that on May 19,

1984, Saylor attempted to solicit the murders of Timm and

Menard via a letter to his brother, in an effort to prevent the use

of their recorded conversation with Saylor.

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Motion to Reopen

On December 17, 2014, Saylor filed a pro se “Verified

Motion to Reopen Case and Present Additional Evidence,”

which Saylor’s counsel later adopted. Saylor sought to present

exculpatory medical evidence of a scab and ecchymosis,

or bruising, near Lena’s right eye, which Kutsch opined were

incurred several hours to a day before Lena’s death. Saylor

further asserted that “incomplete, untrue, or outright false” evidence

in the stipulation was not brought to the district court’s

attention at the postconviction hearing. Saylor’s motion challenged

the same evidence and made similar claims as he had at

the postconviction hearing.

On January 8, 2015, the district court overruled Saylor’s

“Verified Motion to Reopen Case and Present Additional

Evidence.”

District Court’s Order Denying

Postconviction Relief

On March 17, 2015, the district court entered a detailed

order denying Saylor’s motion for postconviction relief. The

district court rejected Saylor’s claims that he had received

ineffective assistance of trial and appellate counsel. Further,

it found no prosecutorial misconduct and no improper conduct

by the trial court. The district court found that even if

Saylor had established improper or deficient conduct by any

of the participants involved in his case, he did not prove any

resulting prejudice. It stated, “[Saylor] has not presented

objective evidence showing a reasonable probability that he

would have insisted on going to trial or that the result would

have been different absent the claimed failings of his trial

counsel, the prosecutor and the trial judge.” The district court

observed that “significant facts” overwhelmed evidence of

prejudice, namely that Saylor had admitted to hiring someone

to kill Lena, that Sapp would likely testify against Saylor,

and that evidence that Saylor attempted to solicit the murders

of Timm and Menard may well have been admissible at

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trial under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)

(Reissue 1985).

ASSIGNMENTS OF ERROR

Saylor assigns, condensed and restated, that the district court

erred in (1) determining that Saylor was not prejudiced; (2)

precluding expert testimony by an attorney; (3) considering in

its prejudice analysis: (a) Saylor’s taped admissions, (b) a letter

to Saylor’s brother, and (c) possible testimony by Sapp; (4)

determining the benefits secured to Saylor by the agreement;

(5) making erroneous findings regarding medical evidence;

(6) finding that Saylor’s right to a speedy trial had not been

violated; (7) finding that Saylor had failed to prove prosecutorial

misconduct; (8) finding Saylor was not coerced in agreeing

to the stipulation; (9) finding that the trial court did not err in

failing to advise Saylor of his right to confrontation; and (10)

denying Saylor’s motion to reopen.

Saylor further assigns that the district court erred in (11)

failing to find that Saylor had received ineffective assistance

of trial and appellate counsel in that counsel either made the

following errors at trial or failed to raise them on appeal: (a)

failed to seek withdrawal of Saylor’s jury waiver, (b) prematurely

allowed Saylor’s jury waiver, (c) failed to include

exculpatory medical evidence regarding Lena in the stipulation,

(d) failed to object to portions of the stipulation and to

insist on evidentiary rulings, (e) failed to investigate Kutsch’s

change in testimony, (f) failed to consult an independent

medical expert, (g) failed to require production of medical

evidence, (h) failed to inquire as to the consequences of taking

or not taking prescribed medications, (i) failed to interview or

depose stipulation witnesses, (j) failed to invoke Saylor’s right

to a speedy trial, and (k) failed to raise ineffectiveness issues

on appeal.

STANDARD OF REVIEW

[1] In an evidentiary hearing on a motion for postconviction

relief, the trial judge, as the trier of fact, resolves

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conflicts in the evidence and questions of fact. An appellate

court upholds the trial court’s findings unless they are

clearly erroneous. In contrast, an appellate court independently

resolves questions of law. See State v. Poe, 292 Neb.

60, 870 N.W.2d 779 (2015).

[2] 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. Branch, 290 Neb. 523, 860 N.W.2d

712 (2015).

ANALYSIS

Ineffective Assistanc e

of Counsel

[3,4] Saylor assigns that the district court erred in failing

to find that he received ineffective assistance of counsel. To

prevail on a claim of ineffective assistance of counsel under

Strickland v. Washington, supra, the defendant must show

that his or her counsel’s performance was deficient and that

this deficient performance actually prejudiced the defendant’s

defense. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880

(2015). To show prejudice under the prejudice component of

the Strickland test, the petitioner must demonstrate a reasonable

probability that but for his or her counsel’s deficient

performance, the result of the proceeding would have been

different. State v. Thorpe, supra. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.

Id.

The majority of Saylor’s assignments of error relate to his

premise that he received no benefit when the State reduced his

charge from first degree murder to second degree murder and

that a stipulated trial meant he would be able to contest every

factual issue. However, the record shows that this argument is

not well founded.

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Initially, Dougherty sent a letter to Healey advising that

the State would reduce the charge of first degree murder to

second degree murder and that Saylor would plead guilty to

second degree murder but also testify against his codefendant,

Sapp. Ultimately, this initial offer morphed into the agreement

whereby the parties would compromise on a stipulated trial to

allow Saylor to contest the district court’s ruling on his motion

to suppress. In fact, in a letter to Healey dated May 7, 1985,

Dougherty advised:

Enclosed is a revised proposed stipulation for use in

. . . Saylor’s trial to the court. In getting your client’s

approval for this stipulation, please ask him to keep a

couple of things in mind.

My intention in having a stipulated trial was in effect

to allow your client to plead guilty without giving up

his right to appeal the Judge’s ruling on the motion to

suppress. I certainly did not intend to lower the charge

from first to second degree murder with the idea of

agreeing to a stipulation with facts that would not result

in a finding of guilty on the reduced felony. The stipulation

should be thought of as the equivalent of a factual

basis which would be recited by a prosecutor to support

a guilty plea by a defendant. Although I remain

available for discussion of some minor changes, if the

basic format of the revised document is not agreeable

to your client, we should consider petitioning the court

to set aside his jury waiver, and proceed to trial on first

degree murder.

Dougherty outlined the agreement to the trial court on April

5, 1985, at the hearing wherein Saylor waived his right to a

jury trial:

DOUGHERTY: Well, I think perhaps we should make

a record on the fact that this waiver of [the] jury is in

response to an agreement which the State has made with

. . . Saylor and his counsel that we will file an Amended

Information alleging the crime of murder in the second

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degree. That the counsel for the State and the counsel

for . . . Saylor will submit a stipulated set of facts to

the court. In essence, what we will do, we will have a

stipulated trial so that in the event at the conclusion of

that stipulated trial, . . . Saylor is found guilty, he can

preserve his rights to appeal and question the court’s ruling

on the motion to suppress.

I guess that is in the nature of some type of promise

that he has received as a result, that has been induced to

waive his right to jury trial.

Saylor’s counsel showed approval for this statement of the

agreement.

Saylor argues that, because the prosecutor did not agree to a

contested stipulated trial, he “exploited” Saylor’s counsel into

accepting “false testimony and other incriminating evidence.”

Brief for appellant at 81.

First, Saylor apparently bases this argument on a position

that he did not have to agree to any conditions in order for the

State to reduce the charge. In other words, he contends that

the State was locked into the charge of second degree murder

and that therefore, Saylor would still have the opportunity to

participate in a contested trial on that charge. Dougherty’s letter

reflects otherwise. If Saylor wanted the benefit of avoiding

the first degree murder charge, then he had to agree to sufficient

facts to support a conviction for second degree murder.

Naturally, such facts would be incriminating. Moreover,

Dougherty’s letter also allowed Saylor the option of withdrawing

his waiver and proceeding to trial on the charge of first

degree murder. Clearly, the parties attempted to compromise

in order to achieve the mutually beneficial resolution of a serious

criminal matter. Notably, Saylor does not argue that trial

counsel was ineffective in getting the charge reduced from first

degree murder to second degree murder. Nor does he explain

how his counsel could have forced the State to reduce the

charge to second degree murder and still agree to a contested

stipulated trial.

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Second, Saylor contends that his counsel were forced into

allowing Dougherty to set forth false evidence in the stipulation.

Again, this overlooks the benefit of the reduced charge.

But even ignoring that fact, Saylor has not shown there was

false evidence presented in 1985 nor that this allegedly false

evidence has the significance that Saylor attributes to it.

For example, Saylor points to the fact that Dougherty did

not include each person in the chain of custody of the pillow

tested by Roy. However, Dougherty expressly denied attempting

to mislead the district court and testified that he deliberately

phrased the stipulation to show that the pillow went from

the property room to the intended recipient without including

the entire chain of custody. Instead, the parties stipulated that

all items of evidence discussed and offered had an adequate

chain of custody. There is no support for Saylor’s contention

that the portion of the stipulation pertaining to the pillow was

somehow false or deceptive.

Additionally, Saylor claims that the stipulation attributed

false testimony to Kutsch, the pathologist. As the district

court noted, the stipulation set forth that Kutsch’s deposition

opinion differed from the opinion relied upon by the stipulated

facts.

Saylor’s brief is replete with examples such as these, but

they do not reflect falsified evidence. Rather, they involve

issues of fact and credibility, which were the province of the

district court to resolve. See State v. Lee, 290 Neb. 601, 861

N.W.2d 393 (2015) (conflicts in evidence, credibility of witnesses,

explanations, and weight of evidence presented are

within fact finder’s province for disposition). As such, Saylor’s

contentions in this regard do not support his claims of prosecutorial

misconduct or ineffective assistance of counsel.

Turning again to the benefit of the reduced charge, the

record does not support Saylor’s assertion that his counsel

was forced into accepting the stipulation. Instead, the evidence

shows that Saylor’s counsel carried out a calculated strategy

by agreeing to it. Rather than contest every issue, the record

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reflects that Healey preserved the ruling on the motion to suppress

for appeal and at the same time ensured that Saylor did

not face the death penalty, which, based on the record and

the timing of Saylor’s trial, was a realistic possibility. See

§ 29-2523(1)(c). See, also, State v. Reeves, 216 Neb. 206,

344 N.W.2d 433 (1984); State v. Moore, 210 Neb. 457, 316

N.W.2d 33 (1982); State v. Peery, 199 Neb. 656, 261 N.W.2d

95 (1977); State v. Simants, 197 Neb. 549, 250 N.W.2d 881

(1977), disapproved on other grounds, State v. Reeves, 234

Neb. 711, 453 N.W.2d 359 (1990); State v. Rust, 197 Neb.

528, 250 N.W.2d 867 (1977). Thus, contrary to Saylor’s

assigned error, the district court did not err in determining that

extinguishing the possibility of the death penalty was a major

benefit of the agreement.

Even with a stipulated trial, Healey still was able to contest

the evidence on Saylor’s behalf. For example, Healey

argued to the court, at trial, that the matter was submitted with

stipulated facts but that this left “to the court the question of

whether the stipulated matter proves [Saylor’s] guilt and if

so, what offense.” Healey further showed his strategy in the

following exchange after Dougherty offered the stipulation,

exhibit 8 of the 1985 trial:

HEALEY: Your Honor, I indicated that I had no objection

to the reception of Exhibit 8 and that is true. I

would just note in an abundance of caution that Exhibit

8, however, does contain with it some objections to

some of the material offered by the State as reflected

therein and I do not waive those objections and will

speak to those.

THE COURT: Perhaps I should ask . . . Saylor

whether he has read and is familiar with Exhibit 8, the

stipulation?

[Saylor]: Yes, sir, Your Honor, I have.

THE COURT: And you have signed that stipulation?

[Saylor]: I did sign it, Your Honor. I agree with the

admissibility of most of the things there. However,

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obviously not on the things considered in the motion to

suppress . . . .

THE COURT: But you agree with the stipulation and

you have signed the stipulation?

[Saylor]: Yes, sir.

THE COURT: As I said, Exhibit 8 is received.

. . . DOUGHERTY: At this time, I would offer what has

been marked as Exhibit No. 6 [the recordings of Saylor’s

conversation with Timm and Menard] as the stipulation

Exhibit 8 reflects.

. . . HEALEY: We have no foundational objections

but we do, as reflected by Exhibit 8 and for the record,

do at this time renew the motion to suppress previously

filed and briefed and argued to the court in relation to

Exhibit 6. We at this time, as the Exhibit 8 states, object

to the introduction of the recording for the reason stated

in that motion to suppress filing 19, but which will be

marked as an exhibit in this proceeding for each and

every reason set forth in the exhibit.

We further contend and allege and object that those

tapes and the conversations reflected therein were not in

fact or in law, voluntary but were the product of unlawful

and unconstitutional deprivation of [Saylor] in the

respect previously argued and briefed and as stated in

Exhibit No. 6.

We have the further agreement as Exhibit 8 states that

the evidentiary record which was made on the motions

to suppress that evidentiary record having been made I

believe on February 6, 1985, shall be incorporated by

reference in these proceedings and shall be considered to

be the basis for the ruling of the court upon the motion to

suppress renewal and the objections that [Saylor] is making

at this time.

We would ask that the court affirmatively direct that

the evidence presented at that motion to suppress hearing

be considered to be before the court at this proceeding

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for the purpose of the ruling on the Exhibit No. 6, in

relation to [Saylor’s] objection and motion to suppress,

on the grounds stated.

The record shows that Saylor’s counsel acted strategically

and not only preserved the issues in regard to the motion

to suppress, but also contested other evidence. Contrary to

Saylor’s contention, we find that his counsel performed effectively

in this respect.

Saylor also cites United States v. Cronic, 466 U.S. 648, 104

S. Ct. 2039, 80 L. Ed. 2d 657 (1984), for the proposition that

prejudice will be presumed where counsel fails to subject the

prosecution’s case to meaningful testing. Cronic further states:

“‘The very premise of our adversary system of criminal justice

is that partisan advocacy on both sides of a case will best

promote the ultimate objective that the guilty be convicted

and the innocent go free.’” 466 U.S. at 655, quoting Herring

v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593

(1975). Saylor alleges, “Omitting exculpatory evidence, especially

as to whether Lena[’s] death was natural, was presumptively

prejudicial.” Brief for appellant at 28. Saylor’s authority

does not fit the situation at hand, where a stipulated trial

was conducted. Again, trial counsel’s strategy to focus on the

motion to suppress and avoid the death penalty does not automatically

equate to “fail[ing] to subject the prosecution’s case

to meaningful adversarial testing.” United States v. Cronic,

466 U.S. at 659.

Saylor claims that he received ineffective assistance of

counsel in several other ways: (a) failing to seek withdrawal

of his jury waiver, (b) prematurely allowing Saylor’s jury

waiver, (c) failing to include exculpatory medical evidence

regarding the victim in the trial stipulation, (d) failing to

object to portions of the stipulation and to insist on evidentiary

rulings, (e) failing to investigate the change in Kutsch’s

testimony, (f) failing to consult an independent medical expert,

(g) failing to require production of medical evidence, (h) failing

to inquire as to the consequences of taking or not taking

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prescribed medications, and (i) failing to interview or depose

stipulation witnesses. However, these contentions either rely

on the assumption that the parties participated in a contested

trial or imply that a stipulated trial was not a prudent strategy.

We have concluded that Saylor’s counsel was not ineffective

by agreeing to a stipulated trial in an attempt to reduce the

first degree murder charge, avoid the possibility of the death

penalty, and preserve Saylor’s motions for appeal. Therefore,

we decline to consider the foregoing contentions because

they depend on a contested trial format that did not occur and

because the stipulated trial that did occur did not result from

ineffective assistance of counsel.

Right to Speedy Trial

Saylor contends that the district court erred in rejecting his

claims that his right to speedy trial was violated and that trial

counsel was ineffective for not raising that issue. Neb. Rev.

Stat. § 29-1207 (Cum. Supp. 2014), then as now, requires

discharge of a defendant whose case has not been tried within

6 months after the filing of the information. Therefore, to

determine whether trial counsel should have raised the issue,

we must review the record. The bill of exceptions reflects

that although Saylor offered and the district court received the

clerk’s transcript from the original trial, only a photocopy of

the front page is before us. Otherwise, the clerk’s transcript is

not part of the record.

[5,6] The party appealing has the responsibility of including

within the bill of exceptions matters from the record

which the party believes are material to the issues presented

for review. Neb. Rev. Stat. § 25-1140 (Reissue 2008); State

v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001); State v.

Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991); State v.

Schaneman, 235 Neb. 655, 456 N.W.2d 764 (1990); State

v. Isikoff, 223 Neb. 679, 392 N.W.2d 783 (1986). A bill of

exceptions is the only vehicle for bringing evidence before the

Supreme Court; evidence which is not made part of the bill of

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exceptions may not be considered. State v. Manchester, 213

Neb. 670, 331 N.W.2d 776 (1983); State v. Gingrich, 211 Neb.

786, 320 N.W.2d 445 (1982). Without the benefit of a proper

record, we will not consider this alleged error.

Prosecutorial Misconduct

[7] Saylor claims that the district court erred in finding no

prosecutorial misconduct. Generally, prosecutorial misconduct

encompasses conduct that violates legal or ethical standards

for various contexts because the conduct will or may undermine

a defendant’s right to a fair trial. State v. Nolan, 292

Neb. 118, 870 N.W.2d 806 (2015).

Saylor contends that he “proved” Dougherty misrepresented

Kutsch’s testimony. Brief for appellant at 47. The stipulation

acknowledged Kutch’s 1984 deposition opinion that

Lena’s cause of death was respiratory arrest but that it was

indeterminate as to whether such respiratory arrest resulted

from natural causes or from smothering. But the stipulation

states that at the time of the stipulation, dated May 10, 1985,

Kutsch had the opinion that “[a]lthough [Lena] could have

died of natural causes, the cause of her respiratory arrest

was most probably smothering.” This last statement was

supported by a letter from Kutsch to Dougherty dated May

6, 1985.

Saylor argues this was false testimony, because in Kutsch’s

deposition in 2014, he stated that he could not say that the

cause of death was “most probably smothering.” However,

Kutsch further testified that he could not recall the letter in

1985, because 30 years had passed. The district court found it

should give more weight to Kutsch’s statements in 1985 than

to his testimony 30 years later.

Saylor contends that Dougherty failed to turn over all discovery.

However, the record establishes otherwise. Jacobs did

not recall having the impression that she had requested evidence

she did not receive. Saylor failed to supply evidence that

the requested discovery was not provided.

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Saylor also claims the Lancaster County Attorney’s office had

continued contact with Dougherty after that office had recused

itself. His argument is based upon timesheets from Dougherty

and testimony by Lacey. However, Dougherty advised that he

contacted the Lancaster County Attorney’s office with questions

about the death penalty issues and in regard to potential

witnesses. And Lacey confirmed that the county attorney’s

office had contact with Dougherty concerning moving Saylor

and Sapp, witnesses for their cases, and the death qualification

issue. The district court concluded that normal contact had

occurred and that Saylor had not proved this claim.

[8] Like many of his other arguments, Saylor bases his allegations

concerning prosecutorial misconduct on determinations

of credibility. However, as we have already observed, an appellate

court does not resolve conflicts in the evidence, pass on

the credibility of witnesses, evaluate explanations, or reweigh

the evidence presented, which are within a fact finder’s province

for disposition. State v. Lee, 290 Neb. 601, 861 N.W.2d

393 (2015).

Additionally, Saylor asserts and assigns that the prosecutor

committed misconduct by coercing him into accepting the

stipulation. We have thoroughly examined this issue above, and

we reject Saylor’s assertion.

Based on the record before us, we conclude that the district

court was not clearly erroneous in finding no prosecutorial

misconduct.

Stipulated Benc h Trial

[9] Saylor assigns that the district court failed to inquire

regarding his right to confrontation before proceeding with the

stipulated trial, which he argues was tantamount to a guilty

plea. As pointed out by the district court, we settled this issue

in State v. Howard, 282 Neb. 352, 371-72, 803 N.W.2d 450,

467-68 (2011):

A stipulation entered by a defendant can be tantamount

to a guilty plea. But this is true only when the defendant

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stipulates either to his or her guilt or to the sufficiency of

the evidence. [The defendant] did not do so. Instead, he

merely stipulated to the admission of certain evidence,

and then the district court determined whether that evidence

was sufficient to convict him of the crime charged.

Simply stipulating to the admission of evidence is not

tantamount to a guilty plea. Moreover, it is clear from the

record that [the defendant] preserved all of the defenses

and arguments he raised in his motion to suppress. Where

the defendant has presented or preserved a defense, such

as the suppression of evidence, a stipulated bench trial is

not tantamount to a guilty plea.

(Citations omitted.)

In the instant matter, Saylor did not enter a plea of guilty

or no contest. Instead, he preserved his defense for appeal

and affirmatively agreed to the stipulated facts. In addition,

as discussed, he had the opportunity to proceed to trial on

the first degree murder charge if he disagreed with the stipulation.

The district court’s findings on this issue were not

clearly erroneous.

Prejudice

[10] Saylor contends that the district court erred in finding

that he had not shown how he was prejudiced by the performance

of his trial counsel. 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. A reasonable probability does not

require that it be more likely than not that the deficient performance

altered the outcome of the case; rather, the defendant

must show a probability sufficient to undermine confidence in

the outcome. State v. Armstrong, 290 Neb. 991, 863 N.W.2d

449 (2015). As previously discussed, Saylor is now secondguessing

a strategy to which he agreed to in 1985 in order

to avoid the possibility of the death penalty. Saylor agreed to

the waiver of jury trial and, at a later hearing, agreed to the

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stipulated facts on the record and even advised the district

court as to what facts he contested. What Saylor has shown

is that 30 years later, he and new counsel would have taken

a different approach. Saylor cannot show prejudice as to the

stipulated trial, because his alternative was a trial on the first

degree murder charge. No such trial occurred, therefore, at

best, he speculates he would have been found not guilty on a

charge of first degree murder.

Accordingly, we find no merit to any of Saylor’s assigned

errors pertaining to prejudice.

Expert Attorney Testimony

[11] Saylor contends that the district court erred in denying

his request that an expert attorney testify at the postconviction

hearing regarding allegedly deficient performance by counsel.

We reject this contention. As we have concluded, the record

shows that Saylor’s counsel was not ineffective. Moreover,

while Saylor’s present counsel and/or his expert counsel would

have chosen a different strategy, i.e., go to trial on a first

degree murder charge, they use hindsight to evaluate the

approach of Saylor’s attorneys. The effectiveness of counsel,

however, is not to be judged by hindsight. State v. Bartlett, 210

Neb. 886, 317 N.W.2d 102 (1982); State v. Bartlett, 199 Neb.

471, 259 N.W.2d 917 (1977); State v. Phillips, 186 Neb. 547,

184 N.W.2d 639 (1971).

Ineffective Assistanc e of

Appellate Counsel

[12,13] Saylor assigns that his appellate counsel, who were

the same as his trial counsel, provided ineffective assistance

by failing to raise claims of ineffectiveness of trial counsel on

appeal. However, claims of ineffective assistance of counsel

raised on direct appeal by the same counsel who represented

the defendant at trial are premature and will not be addressed

on direct appeal. State v. Dunster, 278 Neb. 268, 769 N.W.2d

401 (2009). Moreover, when analyzing a claim of ineffective

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assistance of appellate counsel, courts usually begin by determining

whether appellate counsel actually prejudiced the

defendant. That is, courts begin by assessing the strength of

the claim appellate counsel failed to raise. State v. Nolan,

292 Neb. 118, 870 N.W.2d 806 (2015). We have already concluded

that Saylor did not receive ineffective assistance of

trial counsel as he alleges. Therefore, we find no merit to this

assigned error.

Motion to Reopen

Postconviction Hearing

Saylor assigns that the district court erred in overruling the

pro se “Verified Motion to Reopen Case and Present Additional

Evidence” he filed after the close of evidence. The motion

simply set forth additional evidence to challenge the evidence

at the stipulated trial. Again, the parties participated in a stipulated

trial and not a contested trial. Accordingly, the district

court did not err in denying the motion to reopen, because the

additional evidence amounted to a repetition of his postconviction

claims.