NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge.
Dennis C. Jackson, pro se.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
Moore, Chief Judge, and Inbody and Riedmann, Judges.
OPINION AND JUDGMENT ON APPEAL
Moore, Chief Judge.
Dennis C. Jackson appeals the decision of the district court for Douglas County that, after an evidentiary hearing, denied Jackson's motion for postconviction relief. On appeal, Jackson alleges a variety of errors concerning the court's denial of relief related to his assertions of prosecutorial misconduct during his trial, ineffective assistance of his trial counsel, ineffective assistance of his appellate counsel, judicial misconduct, and cumulative error. We find no merit to Jackson's assertions on appeal, and we affirm.
The events giving rise to this case occurred in November 2006, when Dennis Jackson shot three people in Omaha, Nebraska. See State v. Jackson, case No. A-08-579, 2009 WL 416066 (Neb.App. Feb. 17, 2009) (not designated for permanent publication) (Jackson I). All of the victims required surgery for life-threatening injuries, but all survived. Id. At his trial, Jackson offered a defense that he had been defending himself when the victims had attempted to rob him at gunpoint of money he had brought with him to the victims' residence to purchase marijuana. Id. The jury rejected Jackson's defense. Id.
After a jury trial, Jackson was convicted on three counts of first degree assault, three counts of use of a weapon to commit a felony, and one count of being a felon in possession of a firearm. He was sentenced to 15 to 20 years' imprisonment for each count of first degree assault and of use of a weapon to commit a felony, and 10 to 10 years' imprisonment for the count of being a felon in possession of a firearm, all sentences to run consecutively. A separate charge of tampering with a witness was dismissed. Jackson appealed, and we affirmed the convictions and sentences. See Jackson I, supra.
In March 2010, Jackson filed a motion seeking postconviction relief. He filed supplemental amendments to the motion in February 2011, September 2012, and October 2013. Throughout his motion and the supplemental amendments, Jackson raised a variety of allegations of prosecutorial misconduct during his trial, ineffective assistance of his trial counsel, ineffective assistance of his appellate counsel, and judicial misconduct. The district court granted an evidentiary hearing and in October 2014, held that Jackson had failed to demonstrate that the outcome of his trial or appeal would have been different but for the alleged misconduct and ineffective assistance. The court denied Jackson's requested postconviction relief.
This appeal followed. More details concerning Jackson's allegations will be set forth as necessary below.
III. ASSIGNMENTS OF ERROR
Jackson has alleged a number of errors in this appeal. First, Jackson asserts that the district court erred in denying his claim that there were numerous instances of "prosecutorial misconduct" during his trial and that both his trial and appellate counsel provided ineffective assistance of counsel concerning these instances of misconduct. Second, Jackson asserts that the court erred in denying his claim that his trial counsel provided ineffective assistance of counsel concerning a variety of potential witnesses and evidence and that his appellate counsel provided ineffective assistance of counsel concerning these instances of trial counsel's alleged ineffectiveness. Third, Jackson alleges that the court erred in denying his claim that his appellate counsel provided ineffective assistance of counsel in a variety of ways. Fourth, Jackson asserts that the court erred in denying that his claims of prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel resulted in cumulative error. Fifth, Jackson asserts that the court erred in denying his claim that there was judicial misconduct and trial error during his trial. Sixth, Jackson asserts that the court erred in denying his motion to discharge counsel appointed to represent him in this postconviction proceeding. Finally, Jackson asserts that the court erred in denying his motion for the court's recusal.
Jackson has presented this court with a handwritten brief and a handwritten reply brief, totaling more than 60 pages. The print on these pages is small enough that the content of most is the equivalent of more than two pages of text if typed and in a font provided for in the appellate practice rules. See Neb. Ct. R. App. P. § 2-109(B). In addition, the size of the print makes the brief quite difficult to read. In this manner, Jackson has presented a substantial number of allegations concerning the conduct of the prosecutor and Jackson's counsel at trial, Jackson's counsel on appeal, and the court's denial of relief. We find no merit to Jackson's voluminous assertions of entitlement to postconviction relief.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015). 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. Id.
In an evidentiary hearing, as a bench trial provided by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014) for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). In an appeal involving such a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous. Id. In contrast, the appellate court independently resolves questions of law. Id.
1. Prosecutorial Misconduct
Jackson first asserts that the district court erred in denying him postconviction relief related to a variety of alleged instances of prosecutorial misconduct. Jackson asserts that there were numerous instances of misconduct, that his trial counsel was ineffective concerning these instances of misconduct, and that his appellate counsel was further ineffective concerning these instances of misconduct. Only the assertions concerning appellate counsel's alleged ineffectiveness are procedurally properly reviewed by us in this appeal, and we find no merit to Jackson's assertions.
(a) Alleged Instances of Misconduct
Jackson argues that "[p]rosecutorial misconduct occurred at trial violating [his] rights to a fair trial and due process." Brief for Appellant at 10. Jackson enumerates 14 instances of such misconduct. Those instances of misconduct largely concern assertions that the prosecutor acted improperly during closing argument and in eliciting and using allegedly perjured testimony during trial. We find no merit to these assertions.
Jackson argues that the prosecutor "improperly vouched for witnesses . . . during closing argument regarding ownership or possession of cell phones." Brief for Appellant at 12. He argues that the prosecutor knowingly used perjured testimony from one of the victims concerning ownership or possession of cell phones during the trial and during closing argument. He argues that the prosecutor also knowingly used perjured testimony from one of the victims about the discovery of a gun at the scene of the shootings and about testing for gunshot residue. He argues that the prosecutor improperly argued in closing argument that a witness had no contact with the victims at the hospital after the shootings.
Jackson argues that the prosecutor improperly shifted the burden of proof to Jackson during closing argument when arguing that Jackson failed to address evidence concerning wound track paths. He also argues that the prosecutor's argument during closing argument concerning wound track paths was improper because it was not supported by expert testimony and was contrary to evidence adduced at trial.
Jackson argues that the prosecutor made improper remarks in closing argument "denigrating defense counsel." Brief for Appellant at 25.
Jackson argues that the prosecutor made improper remarks during opening statement and during the trial concerning ammunition and shell casings located at a witness' residence, the scene of the shootings, and the location of Jackson's subsequent arrest. He also argues that the prosecutor made improper statements during opening statements concerning a gun found at a witness' residence belonging to Jackson.
Jackson argues that the prosecutor made an improper attack on Jackson's credibility during closing argument by indicating that Jackson was lying. He argues that the prosecutor improperly gave his opinions during closing argument regarding alleged actions of the State's witnesses and regarding how the prosecutor or others might react in similar circumstances. He also argues that the prosecutor improperly provided her individual assessment of the evidence during closing argument. He also argues that the prosecutor made inflammatory comments during closing argument when suggesting that the jury was allowed to use "common sense" in evaluating the case. Brief for Appellant at 36.
Finally, Jackson argues that the prosecutor violated an order of the district court granting a motion in limine concerning law enforcement's discovery of body armor when Jackson was arrested.
(b) Merits of Misconduct and Trial Counsel's Effectiveness Related Thereto
With respect to each of these assertions of prosecutorial misconduct, Jackson also argues that his trial counsel provided ineffective assistance of counsel because trial counsel failed to properly object to the conduct and/or failed to seek either a mistrial or a curative instruction to the jury. These claims are not properly before us.
A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
In the present case, Jackson was appointed new counsel to represent him at his sentencing and on his direct appeal. As a result, he had different counsel at the time of his direct appeal than he had during the course of his trial. All of Jackson's assertions of prosecutorial misconduct and of ineffective assistance of trial counsel related thereto were known to Jackson and could have been raised on direct appeal. Because postconviction proceedings cannot be used to secure review of issues that were or could have been litigated on direct appeal, the merits of Jackson's arguments concerning alleged prosecutorial misconduct and effectiveness of trial counsel are not properly before the court in this postconviction proceeding.
(c) Prosecutorial Misconduct: Effectiveness of Appellate Counsel
With respect to each of Jackson's assertions of prosecutorial misconduct and effectiveness of trial counsel related thereto, Jackson also asserts that his appellate counsel provided ineffective assistance of counsel. Jackson argues that appellate counsel was ineffective for failing to raise each of those issues in Jackson's direct appeal. The claims of ineffective assistance of appellate counsel are not procedurally barred. See State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015) (claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review). We find no merit to the assertions.
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. State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact. Id. Findings of fact include the circumstances of the case and the counsel's conduct and strategy. Id. It is a question of law, however, whether those facts show counsel's performance was deficient and prejudiced the defendant. Id.
A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Id. Counsel's performance was deficient if, in light of all the circumstances, it did not equal that of a lawyer with ordinary training and skill in criminal law. Id. An appellate court will not second-guess reasonable strategic decisions by counsel. Id.
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. Id. 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. Id.
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. State v. Sellers, supra. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise. Id. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id.
(i) Statements During Closing Argument Regarding Evidence
Jackson's assertions that his appellate counsel was ineffective include assertions that appellate counsel failed to raise on appeal a number of instances of alleged prosecutorial misconduct regarding statements made by the prosecutor during closing argument. These statements include allegedly vouching for the credibility of witnesses during closing argument when suggesting that they had no reason to lie during their testimony and when arguing about how others might have reacted in similar circumstances; referring to allegedly perjured testimony of witnesses during closing argument; arguing that a witness had no contact with the victims while they were in the hospital despite indications in a deposition that the witness had contacted the victims by phone call; arguing concerning wound track paths without sufficient evidence to support the ...