State v. Elseman

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/02/2026 08:09 AM CDT - 412 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 State of Nebraska, appellee, v. Ryan M. Elseman, appellant. ___ N.W.3d ___ Filed October 2, 2026. No. S-24-816. 1. 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 dem- onstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. 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. 3. 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. 4. ____: ____: ____. The district 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 state or federal Constitution. 5. ____: ____: ____. An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. 6. Trial: Jurors: Presumptions: Proof. The competency of a juror is gen- erally presumed, and the burden is on the challenging party to establish otherwise.  - 413 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 7. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncor- rected, would result in damage to the integrity, reputation, and fairness of the judicial process. 8. Postconviction: Appeal and Error. In an appeal from the denial of postconviction relief, an appellate court will not consider for the first time on appeal claims that were not raised in the verified motion. 9. Effectiveness of Counsel: Proof. Generally, 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 performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 10. Effectiveness of Counsel: Proof: Words and Phrases. To show preju- dice in a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 11. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues that were or could have been litigated on direct appeal. 12. ____: ____. Plain error cannot be asserted in a postconviction proceed- ing to raise claims of error by the trial court. 13. Criminal Law: Due Process: Witnesses. The existence of an agree- ment to testify by a witness under threats or promises of leniency made by the prosecutor is relevant to the credibility of such witness, and failure to bring that to the attention of the jury denies the defendant due process of law. 14. Criminal Law: Witnesses. An expectation of leniency on the part of a witness, absent evidence of any expressed or implied agreement, need not be revealed to the jury. Appeal from the District Court for Douglas County: Derek R. Vaughn, Judge. Affirmed in part, and in part reversed and remanded with directions. Michael J. Wilson, of Berry Law, for appellant. Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.  - 414 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and Bergevin, JJ., and Mellor, District Judge. Papik, J. Ryan M. Elseman appeals the district court’s denial of his motion for postconviction relief without granting an eviden- tiary hearing. Elseman alleged in his motion that a person who served on his jury made statements during voir dire that revealed bias. Elseman’s trial counsel challenged the prospec- tive juror for cause, but the district court overruled the chal- lenge. Elseman asserted that thereafter, his counsel provided ineffective assistance by not using a peremptory strike and by not preserving and appealing the district court’s overrul- ing of the challenge for cause. Elseman also alleged that the State violated his constitutional rights by failing to disclose implied plea agreements with two of the witnesses who testi- fied against him. We find that Elseman was not entitled to an evidentiary hearing on his claims concerning the juror and on his claim alleging a failure to disclose an implied plea agree- ment with one witness. We find, however, that he was entitled to an evidentiary hearing on his claim regarding the alleged failure to disclose an implied plea agreement with another witness. We therefore affirm in part, and in part reverse and remand with directions. I. BACKGROUND 1. Trial and Direct Appeal Elseman was tried and convicted of first degree murder and use of a deadly weapon to commit a felony. Our opinion affirming Elseman’s convictions on direct appeal includes an extended discussion of the case’s facts and procedural history, see State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014), which we broadly summarize here. The State alleged that Elseman and a group of others, including Marqus Patton, Drake Northrop, and Emily G., were on their way to buy marijuana from Kristopher Winters when  - 415 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 they changed plans and decided to rob Winters instead. At trial, the State adduced evidence that the group carried out this scheme. Northrop and Emily testified that Emily first entered Winters’ house and then sent a text message to Elseman after which Elseman, Patton, and Northrop entered. Northrop testi- fied that after he and the other men entered, Elseman threat- ened Winters, a scuffle ensued, and Elseman shot Winters. The State does not dispute that Northrop provided the only testi- mony that Elseman shot Winters. Winters’ mother testified at trial that she saw the men who entered the house as they were running away and that she screamed at them. She identified the men as three black males. Elseman is a white male. Following his convictions, Elseman was sentenced to life imprisonment for the first degree murder conviction and 25 to 30 years’ imprisonment for the use of a deadly weapon to commit a felony conviction. After sentencing, Elseman, repre- sented by the same counsel who represented him at trial, filed a direct appeal. We affirmed. See id. 2. Motion for Postconviction Relief Elseman later filed a pro se motion for postconviction relief, along with a motion for the appointment of counsel. The district court granted the motion for appointment of coun- sel and granted Elseman leave to file an amended motion for postconviction relief. Elseman, with the aid of counsel, later filed an amended motion for postconviction relief, which is the operative motion for purposes of this appeal. Elseman’s motion for postconviction relief raised five claims, which we discuss in more detail in the following subsections. (a) Claims Regarding Challenged Juror Three of the claims in Elseman’s operative motion for post- conviction relief pertained to the seating of a juror Elseman alleged was biased. For ease of reference, we will refer to this individual as the “challenged juror.” During voir dire at Elseman’s trial, the district court asked prospective jurors  - 416 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 whether they had learned about Elseman or Patton from media coverage. The district court allowed Elseman’s trial counsel to separately examine those prospective jurors who responded affirmatively. After the challenged juror acknowledged seeing media coverage regarding the case, this exchange took place: THE COURT: All right. We’ve got [the challenged juror] here who indicated a few minutes ago that he thinks he might remember something about this incident; is that fair? [Challenged juror:] Yeah, that’s correct. THE COURT: Go ahead. Why don’t you tell us? [Challenged juror:] Well, I think I remember now the initial — when the alleged crime happened. I remember some media coverage about it. I can recall the — some pictures, I think, of some of the accomplices. And I just remember that it was a botched — or a robbery attempt and the murder. It’s just kind of coming back to me. I remember some of the faces from it. I remember thinking at the time, I think the media coverage stated there was some, that the gentleman who was killed, I just remember recollections of some of his neighbors or friends talking about what a great guy he was. I just kind of recall all of that. I remember thinking at the time it sure didn’t look like a good deal, but that’s the majority of it, I don’t know, that I recall. I do vaguely remember, also, I think, some of the previous trial that you had mentioned with one of the other people in here and — but I really can’t even recall that much about that. THE COURT: All right. And, of course, [Elseman’s] on trial. [Challenged juror:] Yes, correct. THE COURT: The question is: Knowing what you recall about the incident, can you set that aside, listen to the evidence in this case and make the State meet its burden as far as [Elseman’s] —  - 417 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 [Challenged juror:] I do believe that I can. I just thought it was important for me to let you know I do remember it. I remember my initial impulse that it was a very bad deal and I didn’t feel very good about it. .... [Defense counsel:] Ryan Elseman, what, if anything, do you remember about him, the stories, TV, if anything? [Challenged juror:] I think just from mostly, I believe it was in the Omaha World-Herald right after the story broke. I just remember that he was alleged to have used the gun to kill — to kill the drug dealer. .... [Defense counsel:] I need to know that you’re going to be fair and impartial on behalf of [Elseman]. [Challenged juror:] I believe that I can be. [Defense counsel:] I’m always concerned when I hear a lot of “I believe I can.” [Challenged juror:] That’s a good point. I guess I should say [when I heard the news coverage] I had a problem with the story. I had a problem, and I guess maybe I still do a little bit. I’m probably leaning a little bit more toward the State, if you will, but I realize they have to present the evidence. I think I can do that fairly, but I have to admit, based on the media coverage at the time . . . I remember thinking how heinous of a crime this was, how unnecessary it was for a murder to occur in a situation like this, based on what I read. [Defense counsel:] As we sit here today, do you believe [Elseman’s] more than likely guilty as charged? [Challenged juror:] I’d like to think of myself as being open-minded. [Defense counsel:] And I’m not saying that. I don’t want you to misread me. [Challenged juror:] I think that — I think it could be a problem. [Defense counsel:] For [Elseman]?  - 418 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 [Challenged juror:] Yes. [Defense counsel:] If you stayed on the jury? [Challenged juror:] Right. I mean, a possibility of it, yes. [Defense counsel:] All right. So — I’m going to phrase this — I don’t want to put words in your mouth — but would you agree with me, then, the way you’re feeling now is that [Elseman] could be at a distinct disadvantage in the event you were kept on the jury; is that a fair statement? [Challenged juror:] I am saying that, yes. [Defense counsel:] I appreciate your honesty. THE COURT: Wait a minute. Once again, you’ve heard no evidence. [Challenged juror:] That’s correct. .... THE COURT: So right now, you know that there’s a presumption of innocence, correct? [Challenged juror:] I do understand that, yes. THE COURT: And by “presumption” that means that’s something that can be rebutted, but not — it isn’t rebutted right now. So right now if I said to you, what would your verdict be, what would you say? [Challenged juror:] It would have to be innocent. THE COURT: You’re right, because there’s a presumption of innocence and he hasn’t — there’s no evidence to find him guilty. [Challenged juror:] Correct. THE COURT: That doesn’t mean that there’s something wrong with you changing your mind based upon what the State presents, see? [Challenged juror:] Right. Elseman’s trial counsel moved to strike the challenged juror for cause, and the district court overruled the motion. Elseman’s counsel did not use a peremptory strike on the challenged juror. He was seated and served on the jury as the foreperson.  - 419 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 In his operative motion for postconviction relief, Elseman alleged three separate claims concerning the seating of the challenged juror. Two of those claims alleged ineffective assist­ance of counsel. First, Elseman asserted his trial counsel should have used a peremptory challenge on the challenged juror. Second, he alleged his counsel provided ineffective assistance by failing to preserve and then appeal the district court’s decision to overrule his motion to strike the challenged juror for cause. Specifically, Elseman alleged that his counsel should have made a record demonstrating that he used all available peremptory challenges on other prospective jurors and the challenged juror was thus forced upon him. This, Elseman alleges, would have preserved for appeal an argument that the district court erred by denying his challenge for cause under our opinion in State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001), modified on denial of rehearing 261 Neb. 623, 633 N.W.2d 890. In addition to his claims of ineffective assistance of counsel, Elseman also raised a stand-alone claim of trial error concern- ing the seating of the juror. He asserted that because the juror demonstrated bias, the district court’s decision to seat him was “structural error.” Elseman claimed that a finding of structural error would require the district court to vacate his convictions and order a new trial. (b) Claims Regarding Alleged Implied Plea Agreements Elseman’s other two claims in his operative motion for post- conviction relief alleged that the State violated his constitu- tional rights by failing to disclose that Northrop and Emily had entered into implied plea agreements prior to their testimony at Elseman’s trial. At the time of Elseman’s trial, Northrop had also been charged with first degree murder for his role in Winters’ death. Northrop was asked at Elseman’s trial what he had been  - 420 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 promised in exchange for his testimony. He twice responded, “Nothing.” On cross-examination, he testified that he hoped he would be able to go home as soon as he could after the trial. He also admitted he was testifying because he thought it would help his chances, agreeing on two occasions that he would “do what- ever it took” to ensure he could get “out of this jam.” Emily, who was also charged with first degree murder but was 15 years old when Winters was killed, testified that she also hoped for leniency, specifically that her case would be moved to juvenile court, where the maximum penalty would be lower. She admitted she had spoken to the prosecutors about moving her case to juvenile court, and her motion to transfer her case there had been pending for over a year. Like Northrop, Emily testified that she had not been promised any- thing but agreed she would do “whatever it takes” to get her case moved to juvenile court. In its closing argument, the State mentioned the above testi- mony. The prosecutor said: No doubt great lengths will be talked about in [defense counsel’s] closing about the credibility of [Emily] and Northrop because of a deal they’re going to get. Do I want to make deals with people like [Emily] and Northrop? No. Again, this is the real world, and people aren’t going to do something for nothing, certainly not people like [Northrop] and Emily[.] No, they’re not coming in here, out of the goodness of their heart, and admitting to committing first degree murder, which is what the two of them did. On numerous occasions they have admitted to it. They both expect something in return. And what weight you give that towards their credibility is going to be up to you. Elseman’s motion for postconviction relief asserted that sev- eral facts indicated that Northrop and Emily reached implied plea agreements with the State. With respect to Northrop,  - 421 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 Elseman alleged that following his convictions, Northrop pled guilty to an amended charge and was sentenced to a term of 10 years’ incarceration. Elseman also alleged that in June 2016, Northrop’s former cellmate sent Patton’s counsel a let- ter stating that one day, Northrop returned from a meeting with his counsel “‘very happy’” and stated that “‘as long as he followed what the prosecutor had told him, they promised him no more than 10 years.’” Elseman also alleged that at an evi- dentiary hearing on Patton’s motion for postconviction relief, an employee of the public defender’s office testified that dur- ing a meeting with her, Northrop stated that his attorney “‘told me that he couldn’t promise me that I had a deal but that I had a deal.’” Elseman also alleged that Northrop’s former cell- mate testified at the evidentiary hearing on Patton’s motion for postconviction relief that Northrop told the cellmate that “‘as long as he followed what [the prosecutors] had told him, he would get a 10 to 15 or a 10 to 10, maybe, or something like that.’” Elseman alleged that the former cellmate further testified that Northrop said his attorney told him “he couldn’t admit he had a deal” and that he “‘wasn’t supposed to tell anybody that.’” As for Emily, Elseman alleged that after his convictions, Emily’s case was transferred to juvenile court. Elseman also alleged that at the evidentiary hearing on Patton’s motion for postconviction relief, Emily’s attorney testified that while there was no express agreement about transferring Emily’s case to juvenile court, the attorney was “‘confident’” that it would be done. 3. Denial of Motion for Postconviction Relief The district court denied the motion for postconviction relief without an evidentiary hearing. The district court found that each of the claims pertaining to the challenged juror were affirmatively refuted by the record. The district court concluded that there was no showing that the challenged  - 422 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 juror was partial or unable to set aside any pretrial opinions. Accordingly, the district court reasoned, Elseman could not show prejudice from trial counsel’s failure to use a peremp- tory strike on the challenged juror. And, for the same reason, the district court concluded that any appeal of the district court’s overruling of his motion to strike the challenged juror for cause would have been unsuccessful and thus, counsel was not deficient for failing to preserve and appeal that issue. The district court also found that Elseman’s stand-alone claim of trial error relating to the seating of the challenged juror failed because he could not show error. The district court further found that Elseman was not enti- tled to an evidentiary hearing on his claims relating to implied plea agreements with Northrop and Emily. For this finding, the district court cited several reasons. First, it concluded that Elseman could have raised the issue on direct appeal and thus, the claims were procedurally barred. Second, the district court concluded that Elseman had failed to allege facts demonstrat- ing that Northrop and Emily had actually reached plea agree- ments at the time of Elseman’s trial. Here, the district court specifically stated that Elseman’s claim regarding Northrop depended on allegations about what Northrop had said to the employee at the public defender’s office that conflicted with his testimony at Elseman’s trial; the district court likened Northrop’s statements to “recantation” and concluded “[s]uch evidence” was “suspect” under State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009). Finally, the district court concluded that even if Northrop and Emily failed to disclose implied plea agreements, that was, at most, harmless error. On this point, the district court reasoned that both Northrop and Emily were questioned at trial about their hopes for leniency and that the State acknowledged in its closing argument that “each of the witnesses was going to get a ‘deal.’” Elseman filed a timely appeal.  - 423 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 II. ASSIGNMENTS OF ERROR Elseman assigns five errors on appeal. Each of his assigned errors corresponds to one of his five claims for postconviction relief. With respect to each claim, he assigns that the district court erred by finding that he was not entitled to an eviden- tiary hearing. III. STANDARD OF REVIEW [1] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Trail, 319 Neb. 84, 21 N.W.3d 61 (2025). IV. ANALYSIS Elseman argues that he should have received an evidentiary hearing on each of his five claims for postconviction relief. Before analyzing his arguments with respect to each claim, we briefly review legal principles governing claims for postcon- viction relief. 1. Postconviction Legal Standards [2,3] 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. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). Thus, in a motion for postconviction relief, the defendant must allege facts which, if proved, constitute 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. [4,5] The district 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 state or fed- eral Constitution. Id. On the other hand, an evidentiary hearing  - 424 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitu- tional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without sup- porting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. Id. With these standards in mind, we turn to Elseman’s claims. 2. Claims Regarding Challenged Juror We first address Elseman’s various claims regarding the challenged juror, beginning with his claim that trial counsel should have preserved and appealed the district court’s over- ruling of his motion to excuse the challenged juror for cause. (a) Claim That Trial Counsel Should Have Appealed Elseman submits that reasonable trial counsel would have preserved and appealed the overruling of his motion to excuse the challenged juror for cause and that if his trial counsel had done so, his convictions would have been reversed by this court on direct appeal. We agree with the district court’s determination that this claim is refuted by the record. As we will explain, we find that even if counsel had appealed, such an appeal would not have been successful. At the heart of this claim is Elseman’s contention that the district court erred by overruling his motion to excuse the chal- lenged juror for cause. In particular, Elseman argues that by overruling his challenge and allowing the challenged juror to be seated, the district court violated federal and state consti- tutional guarantees, as well as a Nebraska statute. We address Elseman’s constitutional arguments first. (i) Constitutional Argument Regarding Challenged Juror [6] Both the 6th Amendment to the U.S. Constitution, applied to the states through the 14th Amendment, and article I, § 11,  - 425 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 of the Nebraska Constitution guarantee to criminal defendants the right to a speedy and public trial by an impartial jury. See State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998). This court has determined that while those constitutional provisions require that a juror be excused or a mistrial declared when a juror cannot be fair and impartial, “the competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.” Id. at 15, 573 N.W.2d at 775. We have also recognized that the task of determining whether a person on the venire should be dismissed for cause or whether a juror should be dismissed after commencement of the trial is largely entrusted to the discretion of the trial court. See Krutilek, supra. In Krutilek, we explained that the discretion afforded to trial courts in this area is consid- erable. We cited approvingly, for example, to decisions in which appellate courts deferred to trial courts’ resolutions of challenges for cause even when a juror or potential juror was equivocal about his or her ability to be impartial. We also noted that the appraisal of whether a juror can be fair or impartial may involve weighing factors not reflected in an appellate record. Applying those principles in Krutilek, we held that a trial court did not abuse its discretion by overruling a motion to strike for cause a juror who stated he would “‘do [his] best’” to be impartial despite knowing one of the witnesses. 254 Neb. at 16, 573 N.W.2d at 775. We distinguished these facts from an earlier case in which a juror expressly stated a belief that he could not be a fair and impartial juror. The juror in Krutilek did not unequivocally state he could be fair and impartial, nor did he state he could not be fair and impartial. Id. Even so, we determined that the trial court was in the best position to determine whether the juror could be fair and impartial. In the absence of “something specific in the record that would indicate otherwise,” we found no abuse of discretion. Id. at 18, 573 N.W.2d at 776.  - 426 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 We understand Krutilek and our other cases in this area to be consistent with U.S. Supreme Court decisions regarding the Sixth Amendment right to an impartial jury. The U.S. Supreme Court has said that when a juror’s impartiality is at issue, the relevant questions are whether the juror swore that “he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impar- tiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). But the U.S. Supreme Court has also recognized that the determination of whether a prospective juror can be impartial is not susceptible to stringent appellate review. See, Skilling v. United States, 561 U.S. 358, 386, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010) (“[r]eviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record . . .”); Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981) (comparing trial judge’s function at voir dire to function of juries at trial and observing that “[i]n neither instance can an appellate court easily second-guess the con- clusions of the decisionmaker who heard and observed the witnesses”). Accordingly, a trial court’s finding of juror impar- tiality may only be overturned for “manifest error.” Mu’Min v. Virginia, 500 U.S. 415, 428, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (internal quotation marks omitted). Elseman contends that the challenged juror’s affirmative response when asked if Elseman “could be at a distinct disad- vantage” if the challenged juror was kept on the jury was an unequivocal statement that he could not be fair and impartial. Because the challenged juror made an unequivocal statement that he could not be fair and impartial, Elseman argues, the district court was constitutionally obligated to sustain his motion to excuse the challenged juror for cause. We disagree that the challenged juror unequivocally stated that he could not be fair and impartial. We do not deny that  - 427 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 the challenged juror made several statements that merited additional inquiry. In addition to agreeing that Elseman “could be at a distinct disadvantage” if he was kept on the jury, the challenged juror also acknowledged reading about the case in media reports, learning that Elseman was the alleged shooter, forming an “initial impulse” that Winters’ death was a “very bad deal,” and thinking that this was a “heinous” and “unnec- essary” crime. Contrary to Elseman, however, we do not understand any of these statements, alone or taken together, to rise to the level of an unequivocal expression that the challenged juror could not be fair and impartial. Even if the challenged juror formed initial impressions based on media reports, it does not fol- low that he was incapable of setting those impressions aside and fairly deciding the case based on the evidence presented. Further, the challenged juror’s affirmative response to the question of whether Elseman “could be at a distinct disadvan- tage,” if the challenged juror was left on the jury was, by its terms, equivocal. (Emphasis supplied.) The word “could” is “used to indicate possibility.” See The New Oxford American Dictionary 389 (2001). So while the challenged juror perhaps acknowledged a possibility that his presence on the jury would place Elseman at a disadvantage, his answer to that precise question also left open the possibility that it would not. Furthermore, the challenged juror made several other state- ments suggesting that, notwithstanding the statements high- lighted above, he was, in fact, capable of serving as a fair and impartial juror. The challenged juror stated that he “believe[d]” he could set aside what he learned and require the State to carry its burden to prove Elseman’s guilt. He also stated that he “believe[d]” he could be “fair and impartial” to Elseman. And while he at one point said he was “leaning a lit- tle bit more toward the State,” he just moments later acknowl- edged that the State had to present evidence. When asked by Elseman’s counsel if he believed Elseman was more than likely guilty, the challenged juror refused to agree, saying he  - 428 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 “like[d] to think of [himself] as being open-minded.” Finally, after answering the question about whether Elseman could be at a disadvantage if the challenged juror was left on the jury, the challenged juror engaged in an exchange with the district court in which he demonstrated that he understood the pre- sumption of innocence and that he could not vote to convict Elseman in the absence of evidence proving his guilt. Summing up matters, even if Elseman’s trial counsel had preserved and appealed the district court’s overruling of his motion to excuse the challenged juror for cause, he would not have been able to identify an unequivocal statement by the challenged juror that he could not be fair and impartial. He also would have been forced to reckon with several other state- ments suggesting the challenged juror was capable of serving as a fair and impartial juror. Given this record and the consid- erable deference owed to trial courts in determining whether the dismissal of an allegedly biased juror is constitutionally required, we determine that any argument that the district court violated Elseman’s constitutional rights by overruling the motion to excuse the challenged juror for cause would not have been successful. (ii) Statutory Argument Regarding Challenged Juror In addition to arguing that the district court committed con- stitutional error by overruling his motion to excuse the chal- lenged juror for cause, Elseman also argues that the district court’s decision failed to comply with a statute, Neb. Rev. Stat. § 29-2006 (Cum. Supp. 2024). Section 29-2006 lists several circumstances in which jurors must be excused. Relevant to this case is subsection (2) of that statute. It provides that a juror who has “formed or expressed an opinion as to the guilt or innocence of the accused” should generally be excused, but it also sets out a process that, if followed, allows for the pos- sibility of such a juror to serve:  - 429 - Nebraska Supreme Court Advance Sheets 322 Nebraska Reports STATE v. ELSEMAN Cite as 322 Neb. 412 [I]f a juror or alternate juror shall state that he has formed or expressed an opinion as to the guilt or inno- cence of the accused, the court shall thereupon proceed to examine, on oath, such juror or alternate juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions or reading reports of their testimony or hear- ing them testify, and the juror or alternate juror shall say on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evi- dence, the court, if satisfied that such juror or alternate juror is impartial and will render such verdict, may, in its discretion, admit such juror or alternate juror as compe- tent to serve in such case. § 29-2006(2). Elseman argues that in this case, the challenged juror had formed or expressed an opinion as to Elseman’s guilt based on reading media reports. Elseman contends that, as a result, § 29-2006(2) permitted the challenged juror to serve only if he, under oath, made