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State v. Thorpe

Supreme Court of Nebraska

February 13, 2015

STATE OF NEBRASKA, APPELLEE,
v.
TERRELL T. THORPE, APPELLANT

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Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

Terrell T. Thorpe, Pro se.

Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 884

[290 Neb. 150] Wright, J.

I. NATURE OF CASE

Terrell T. Thorpe appeals the order of the district court which overruled his amended motion for postconviction relief without an evidentiary hearing. We affirm the judgment of the district court.

II. SCOPE OF REVIEW

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Phelps, 286 Neb. 89, [290 Neb. 151] 834 N.W.2d 786 (2013). When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion. Id.

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. 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. Robinson, supra.

III. FACTS

1. Trial Proceedings and Direct Appeal

After a jury trial, Thorpe was convicted of two counts of first degree murder and two counts of use of a weapon to commit a felony for his involvement with the shooting deaths of Kevin Pierce and Victor Ford. Thorpe was sentenced to life imprisonment without parole on each count of first degree murder and 30 to 40 years' imprisonment and 40 to 50 years' imprisonment on the counts of use of a weapon to commit a felony. All four of his sentences were ordered to be served consecutively.

On direct appeal, we affirmed Thorpe's convictions and sentences on the weapons charges and his convictions on the murder charges. See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). But we vacated Thorpe's sentences of life imprisonment without parole for the murder charges, because life imprisonment without parole was not a valid sentence for first degree murder in Nebraska. See id. We remanded the cause with directions to " sentence Thorpe to life imprisonment on both murder charges." See id. at 27, 783 N.W.2d at 763.

Thorpe was represented by the same attorney at trial and on direct appeal.

[290 Neb. 152] 2. Postconviction Proceedings

In December 2011, Thorpe filed an amended pro se motion for postconviction relief. He claimed ineffective assistance of trial counsel, prosecutorial misconduct, convictions based on insufficient evidence, abuse of discretion by the trial court, and ineffective assistance of appellate counsel.

Thorpe alleged his trial counsel was ineffective for (1) not obtaining an independent forensic pathologist expert to rebut the testimony of the State's forensic pathologist expert, (2) not requesting a scientific evaluation of all latent fingerprints, (3) not requesting independent forensic testing of the physical evidence, (4) not requesting independent DNA testing of three pieces of physical evidence, (5) not interviewing and investigating certain

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named individuals who might have been called as witnesses, (6) not investigating the possibility that someone other than Thorpe committed the murders, (7) not objecting to or moving to quash counts I and III of the second amended information, and (8) not objecting to jury instructions Nos. 4, 6, and 14.

Thorpe alleged that certain comments made by the State during opening and closing arguments amounted to prosecutorial misconduct. He claimed that his convictions were based on insufficient evidence, because the State " failed to prove that the Manner of Deaths were Certified as Homicides." And he claimed that the trial court abused its discretion in instructing the jury and in not rendering a " judgment of guilt." Finally, Thorpe alleged that his appellate counsel was ineffective for failing to raise on direct appeal the aforementioned claims of ineffective assistance of trial counsel, prosecutorial misconduct, insufficient evidence, and abuse of discretion by the trial court.

On May 15, 2013, the State moved to dismiss Thorpe's amended motion without an evidentiary hearing. The State was given 30 days to submit a brief, and Thorpe had 45 days from his receipt of the State's brief to submit his own brief. The State did not submit a brief.

In February 2014, Thorpe filed a " Motion in Opposition to Plaintiff[']s Motion to Dismiss Amended Motion for [290 Neb. 153] Postconviction Relief and Request for Default Judgment." He asked the district court to consider two additional ineffective assistance of trial counsel claims that were not included in his amended motion for postconviction relief. These new claims related to trial counsel's alleged failure to request the appointment of a special prosecutor and to " challenge the statements and testimony of [Taiana] Matheny." (Taiana Matheny participated in the murders and was one of the State's witnesses at Thorpe's trial.) Thorpe also requested that the court " enter a judgment of default against the plaintiff, for failure to respond as instructed by the Court." Although Thorpe claims that he requested a hearing on his motion, the record does not show that he did. The court did not explicitly rule on Thorpe's motion.

3. Denial of Postconviction Relief

On May 15, 2014, the district court denied Thorpe's amended motion for postconviction relief without an evidentiary hearing. It concluded that Thorpe's ineffective assistance of ...


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