NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Furnas County: James E. Doyle IV, Judge.
Brian J. Davis, of Berreckman & Davis, P.C., and, on brief, Jeffrey M. Wightman, of Wightman & Wightman, for appellant.
Jon Bruning, Attorney General, Erin E. Tangeman, and J. Kirk Brown for appellee.
Inbody, Chief Judge, and Moore and Riedmann, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Herchel Harold Huff was convicted of motor vehicle homicide, among other charges, in connection with the death of Kasey Jo Warner. Following his direct appeals, Huff filed a motion for postconviction relief. The claims for relief in this appeal relate to Huff's allegations that his trial counsel were ineffective for failing to investigate and call certain witnesses who may have provided testimony concerning the amount of alcohol he consumed and concerning his actions and demeanor on the day of the accident. The district court for Furnas County overruled these claims of ineffective assistance of counsel without an evidentiary hearing. Finding no error in the district court's conclusions, we affirm.
I. FACTUAL BACKGROUND
Huff spent the afternoon of October 3, 2007, at two different bars in Oxford, Nebraska. While he was driving back to his home in Holbrook, Nebraska, Huff's car hit and killed Warner while she was jogging on a country road. Huff pled guilty to manslaughter and was convicted at trial of motor vehicle homicide, refusal to submit to a chemical test, and tampering with a witness. On direct appeal to the Nebraska Supreme Court, Huff's conviction and sentence for manslaughter were vacated. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). His sentence for refusing a chemical test was also vacated, and he was resentenced on remand on that conviction. Huff's other convictions and sentences were affirmed. See id.
In this opinion, we focus only on the factual background as it relates to Huff's specific claims in his postconviction motion. These claims relate to the issue of whether Huff was driving under the influence of alcohol at the time of the accident, which was the underlying basis for the motor vehicle homicide charge. For a more extensive background of the underlying facts in this case, we direct the reader to the Nebraska Supreme Court's opinion on direct appeal. See id.
1. Evidence at Huff's Trial
At trial, there was conflicting evidence regarding how much alcohol Huff had consumed the day of the accident. Huff testified that he only had four drinks that day. He admitted drinking one beer during his first visit to the Wagon Wheel Inn, two Jägerbombs while he and Ryan Markwardt were at a second bar, Thelma Lou's, and part of another beer when he returned with Markwardt to the Wagon Wheel Inn. Dianna Wilhelms, a bartender at the Wagon Wheel Inn, testified that she served Huff only two beers and remembered that Huff did not finish the second.
Markwardt, on the other hand, testified that Huff had been drinking more than him that day. Markwardt testified that when he arrived at the Wagon Wheel Inn after finishing work for the day, Huff was already there with a beer in front of him. Markwardt estimated that Huff drank four to five beers while they were at the Wagon Wheel Inn the first time that afternoon. Markwardt claimed that after leaving the Wagon Wheel Inn, he and Huff walked to a second bar. Markwardt testified that they had a couple of beers and a couple of Jägerbombs at the second bar. Markwardt stated that after leaving the second bar, they stopped at a general store before returning to the Wagon Wheel Inn for a couple more beers and a cocktail. Markwardt's blood was tested that day, approximately 1½ hours after the accident, and his blood alcohol level was .13 grams of alcohol per 100 milliliters of blood.
A number of witnesses observed Huff's demeanor at the scene of the accident. Mike Pruitt was "cutting beans" in a nearby field at the time of the accident and responded to the scene soon after seeing Huff's vehicle go into the ditch. He stated that when Huff asked to use his telephone, there was an obvious smell of alcohol on Huff's breath. He also testified that Huff was "stumbling around" after the accident. Sgt. Lee Lozo of the Furnas County sheriff's office was the first officer to arrive on the scene. Lozo testified that he observed Huff to be "very upset" and could smell a strong odor of alcohol coming from Huff. Lozo arrested Huff for suspected driving under the influence (DUI) and arranged to have Huff transferred to a hospital for a blood draw. During his testimony, Lozo explained ...