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State v. Branch

Supreme Court of Nebraska

March 27, 2015

STATE OF NEBRASKA, APPELLEE,
v.
JAMES BRANCH, APPELLANT

Page 713

Appeal from the District Court for Douglas County: W. Mark Ashford, Judge.

Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.

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

Heavican, C.J., Wright, Connnnolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

OPINION

Page 714

[290 Neb. 524] Stephan, J.

A jury convicted James Branch of robbery and kidnapping, and we affirmed his convictions and sentences on direct appeal.[1] Branch sought postconviction relief, which was denied by the district court without an evidentiary hearing.[2] Branch appealed, and we reversed, and remanded for an evidentiary hearing on the issue of whether Branch's trial counsel was [290 Neb. 525] ineffective in not calling a witness to corroborate Branch's alibi defense.[3] On remand, the district court conducted an evidentiary hearing on this issue and again denied postconviction relief. Branch now appeals from the order dismissing his postconviction motion. We find no error and affirm.

BACKGROUND

The underlying facts are fully set forth in our opinion denying Branch relief in his direct appeal.[4] We repeat only the relevant facts here. Paul Miller was the primary witness against Branch at his trial. Miller testified that he, Branch, and Michael Johnson developed a plan to rob a vehicle storage facility. Miller testified that he and Branch went to the business " 6 days before the robbery to 'scope it out.'" [5] Miller testified that on July 16, 2007, " Branch and Johnson picked up Miller in [Laquesha] Martin's white Chevrolet Corsica. They arrived at [the victim's] business at around 11 or 11:15 a.m." [6] They beat the victim, robbed him, and placed him in the trunk of a car in the building.

At trial, Branch testified in his own behalf. He admitted using a credit card taken from the victim during the robbery but denied involvement in the robbery itself. He testified that he slept in an apartment he shared with his girlfriend, Laquesha Martin, until either 11 a.m. or 2 p.m. on July 16, 2007, and then picked up Martin from work. Branch stated that he did not know whether they returned to the apartment at 2:30 or 4:30 p.m., but then he said he and Miller left the apartment around 2 or 3 p.m. Branch said they arrived at the convenience store, where the

Page 715

credit card was used, around 4 p.m. and were there for 2 hours.

In April 2011, Branch filed a pro se motion for postconviction relief. [7] His appointed counsel filed an amended motion. [290 Neb. 526] The district court denied the motion without an evidentiary hearing. Branch appealed, and we remanded for a hearing on the issue of whether trial counsel was ...


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