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State v. Saylor

Supreme Court of Nebraska

August 19, 2016

State of Nebraska, appellee,
v.
James M. Saylor, appellant.

         1. Postconviction: Evidence: Appeal and Error. In an evidentiary hearwarrantlessng on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's findings unless they are clearly erroneous. In contrast, an appellate court independently resolves questions of law.

         2. Effectiveness of Counsel: Appeal and Error. 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.

         3. Effectiveness of Counsel: Proof: Appeal and Error. 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.

         4. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To show prejudice under the prejudice component of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

         5. Records: Appeal and Error. The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review.

         [294 Neb. 493] 6. ___: ___.A bill of exceptions is the only vehicle for bringing evidence before the Supreme Court; evidence which is not made part of the bill of exceptions may not be considered.

         7. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.

         8. Evidence: Appeal and Error. 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.

         9. Stipulations: Pleas: Evidence. A stipulation entered by a defendant can be tantamount to a guilty plea. But this is true only when the defendant stipulates either to his or her guilt or to the sufficiency of the evidence.

         10. Effectiveness of Counsel: Proof: Words and Phrases. 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. 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.

         11. Effectiveness of Counsel. The effectiveness of counsel is not to be judged by hindsight. 12. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffective assistance of counsel raised on direct appeal by the same counsel who represented the defendant at trial are premature and will not be addressed on direct appeal.

         13. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel actually prejudiced the defendant. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise.

         Appeal from the District Court for Lancaster County: Steven D. Burns, Judge.

          Joshua D. Barber, of Barber & Barber, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

         [294 Neb. 494] Wright, Miller-Lerman, Cassel, and Kelch, JJ., and Moore. Chief Judge.

          Kelch, J.

         INTRODUCTION

         Lena Saylor (Lena) was found dead in her home on April 27, 1984. The State charged James M. Saylor (Saylor), Lena's grandson, with first degree murder, based upon evidence that Saylor had hired Michael Sapp to kill Lena. After a stipulated bench trial, the district court for Lancaster County found Saylor guilty of second degree murder and sentenced him to life in prison. This court affirmed on direct appeal. See State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). Now, 30 years later, Saylor appeals the district court's 2015 order that denied his motion for postconviction relief, following a limited evidentiary hearing. We reject Saylor's claims of, inter alia, ineffective assistance of counsel, prosecutorial misconduct, and prejudicial conduct by the trial judge, and we affirm.

         BACKGROUND

         Pretrial Proceedings

         Sometime in 1984, the State charged Saylor with first degree murder. The original information is not in the record for this appeal. At that time, hiring the killing of another person was an aggravating factor supporting the death penalty. Neb. Rev. Stat. § 29-2523(1)(c) (Reissue 1979) (repealed 2015 Neb. Laws, L.B. 268, § 35).

         Police had arrested Saylor in April 1984, immediately after he made tape-recorded statements about Lena's death to his friends David Timm and Jeffrey Menard. On July 12, 1984, Saylor filed a motion to dismiss, which was denied. On December 7, Saylor filed a motion to suppress the tape recordings. On February 6, 1985, the district court conducted a hearing on that motion. Patrick Healey and Susan Jacobs represented Saylor. Michael Heavican, the county attorney at that time, had declared a conflict because he anticipated [294 Neb. 495] that he may be called as a witness, and Terry Dougherty was appointed special prosecutor for the case.

         While the motion to suppress was still under advisement. Dougherty proposed that the parties resolve the matter by agreement, and the parties negotiated. Ultimately, the parties agreed to a stipulated trial to allow Saylor to contest the district court's ruling on his motion to suppress. We recount additional details regarding the parties' negotiations in the analysis section below. On April 2, 1984, the district court denied the motion to suppress.

         On April 5, 1985, Saylor waived his right to a jury trial. The district court confirmed that Saylor did so freely, voluntarily, and knowingly. Next, Dougherty summarized the parties' agreement for the record, which summary we quote in the analysis portion of this opinion. Saylor's counsel acknowledged that Dougherty had correctly described the agreement, and neither Saylor nor his counsel contradicted it.

         Stipulated Bench Trial and Direct Appeal

         On May 10, 1985, the State amended the charge to second degree murder. The district court advised Saylor that he had the right to be served with the amended copy of the information and to wait 24 hours before appearing for arraignment, and Saylor waived those rights. The district court proceeded with the arraignment, and Saylor pled not guilty to the amended charge. The district court then conducted the stipulated bench trial. We summarize those proceedings in part here and provide additional relevant details in other portions of this opinion.

         The 20-page written stipulation, signed by Dougherty, Healey, and Saylor, set forth evidence that Saylor had hired Sapp to kill Lena. In that document, the parties stipulated that all items of evidence discussed and offered had an adequate chain of custody. Along with the written stipulation, the parties submitted other evidence by stipulation, including the tape [294 Neb. 496] recordings of the conversation between Saylor, Timm, and Menard in April 1984. Saylor's counsel renewed his motion to suppress, which the district court again overruled.

         Healey argued to the district court that the matter was submitted with stipulated facts, but that this left "to the court the question of whether the stipulated matter proves [Saylor's] guilt and if so, what offense."

         On May 20, 1985, the district court found Saylor guilty of second degree murder. Saylor filed a motion for new trial. On August 7, the district court overruled Saylor's motion for new trial and sentenced him to life in prison.

         On direct appeal to this court, Saylor claimed that the district court erred in overruling his motion to suppress the recorded conversation. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). Healey and Jacobs represented Saylor on appeal. This court described the recordings as including "incriminating" and "inculpatory" statements in which Saylor "indicated that he had hired someone to kill his grandmother." See id. at 697, 392 N.W.2d at 792. We affirmed.

         Postconviction Proceedings

         On August 22, 2012, Saylor filed a pro se motion for postconviction relief; his new counsel filed a lengthy amended motion for postconviction relief on February 7, 2013.

         The district court granted an evidentiary hearing, but limited its scope to ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and prejudicial conduct of the trial judge. Saylor's remaining claims were not permitted to proceed to the evidentiary hearing. The district court specifically noted that Saylor had addressed the ruling on the motion to suppress on direct appeal and could not relitigate it.

         Sometime prior to November 20, 2014, Saylor gave notice of his intent to call an attorney to give expert testimony at the evidentiary hearing regarding whether Saylor's trial counsel's performance was deficient and whether Saylor was prejudiced by such alleged deficiencies. The State responded [294 Neb. 497] with a motion to preclude the attorney's testimony. After reviewing the attorney's proposed testimony, the district court precluded it, finding that it would not have assisted the trier of fact in understanding the evidence or determining a factual issue.

         The district court conducted the evidentiary hearing on December 1 through 4, 2014, and January 6, February 17, and March 11, 2015.

         Saylor offered the clerk's transcript from the stipulated bench trial, which the district court received. The record contains a photocopy of the front page of the clerk's transcript, with a notation that the original would be furnished by the reporter ...


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