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State v. Torres

Supreme Court of Nebraska

February 17, 2017

State of Nebraska, appellee,
v.
Marco E. Torres, Jr., appellant.

         1. Postconviction: Evidence: Appeal and Error. In an evidentiary hearing 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. An appellate court independently resolves questions of law.

         2. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.

         3. ___: ___. 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.

         4. Right to Counsel: Effectiveness of Counsel. The right to counsel has been interpreted to include the right to effective counsel.

         5. Effectiveness of Counsel: Proof: Appeal and Error. Under the standard established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), claims of ineffective assistance of counsel by criminal defendants are evaluated using a two-prong analysis: first, whether counsel's performance was deficient and, second, whether the deficient performance was of such a serious nature so as to deprive the defendant of a fair trial.

         6. Effectiveness of Counsel: Proof. To show that the performance of a prisoner's counsel was deficient, it must be shown that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         [295 Neb. 831] 7. ___: ___. To establish the prejudice element of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, a defendant must show that the counsel's deficient performance was of such gravity to render the result of the trial unreliable or the proceeding fundamentally unfair.

         8. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When reviewing claims of alleged ineffective assistance of counsel, an appellate court affords trial counsel due deference to formulate trial strategy and tactics.

         9. Effectiveness of Counsel: Presumptions: Appeal and Error. There is a strong presumption that counsel acted reasonably, and an appellate court will not second-guess reasonable strategic decisions.

         10. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel.

         11. Effectiveness of Counsel. Under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), framework for ineffective assistance of counsel claims, a court may address the two elements, deficient performance and prejudice, in either order.

         12. Effectiveness of Counsel: Proof. To prove the prejudice element of an ineffective assistance of counsel claim, a prisoner must prove that his or her counsel's deficient performance was of such gravity to render the result of the trial unreliable or the proceeding fundamentally unfair, by establishing that but for the deficient performance of counsel, there is a "reasonable probability" that the outcome of the case would have been different.

         13. Postconviction: Constitutional Law: Prosecuting Attorneys: Effectiveness of Counsel. A claim of prosecutorial misconduct may be considered on postconviction only to the extent it constitutes a constitutional violation under the U.S. or Nebraska Constitutions.

         14. Evidence: Prosecuting Attorneys: Due Process. The nondisclosure by the prosecution of material evidence favorable to the defendant and requested by the defendant violates the Due Process Clause, irrespective of the good faith or bad faith of the prosecution.

         15. Postconviction: Appeal and Error. A motion for postconviction relief is not a substitute for an appeal.

         16. ___: ___. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal; such issues are procedurally barred.

         17. Postconviction: Prosecuting Attorneys: Appeal and Error. Whether a claim of prosecutorial misconduct could have been litigated on direct [295 Neb. 832] appeal and is thus procedurally barred from being litigated on postconviction depends on the nature of the claim.

         18. ___: ___: ___. Where the claim of prosecutorial misconduct is such that a determination of the merits is possible based on the record on direct appeal, such as statements made in a prosecutor's closing argument, it is procedurally barred from being litigated on postconviction.

         19. Postconviction: Appeal and Error. Where an evidentiary hearing is necessary to decide the merits of the claim, the failure to raise the issue on direct appeal does not preclude it from being litigated on postconviction.

         Appeal from the District Court for Hall County: James D. Livingston, Judge, Retired. Affirmed.

          Alfred E. Corey III, of Shamberg, Wolf, McDermott & Depue, for appellant.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          WRIGHT, J.

         I. NATURE OF CASE

         Marco E. Torres, Jr., was convicted by jury of two counts of first degree murder, one count of robbery, three counts of use of a deadly weapon to commit a felony, and one count of unauthorized use of a financial transaction device. Torres was sentenced to death on each murder conviction, 50 to 50 years' imprisonment on each of the robbery and use convictions, and 20 months' to 5 years' imprisonment for the unauthorized use of a financial transaction device conviction. His convictions were affirmed by this court on direct appeal.[1] Torres filed a petition for postconviction relief in the district court for Hall County. After an evidentiary hearing, the district court denied Torres' petition. Torres appeals this denial. We affirm.

         [295 Neb. 833] II. BACKGROUND

         1. Torres' Relationship With Other Characters

         Torres was involved in drug trafficking in Grand Island. Nebraska. Through his drug activities, Torres knew a man known as Billy Packer, who was also involved in drug trafficking. It was through Packer that Torres met Jose Cross, Gina Padilla, and Timothy Donohue.

         Edward Hall allowed Donohue to live in Hall's house in a room on the second floor. Hall also allowed Padilla to live in his house in exchange for cleaning the house and caring for his cats. Padilla was dating Cross, who eventually moved in to Hall's house with Padilla. Cross, who also sold drugs, used Hall's house as a base for his drug trafficking.

         2. Kidnapping and Robbery of Packer

         In February 2007, Torres and Packer were hanging out with a group of people in a trailer. After Torres got into an argument with someone, he and Packer left in Packer's car. Once inside the car, Torres pulled out a gun, pointed it at Packer, and told him to drive to Cross' house.

         Upon arrival, Torres and Packer went inside. Torres was holding the gun inside his coat and pulled it back out once they were inside. Torres, Packer, and Cross went upstairs, where Padilla was present. Torres gave Cross some duct tape and told him to tie up Packer, which he did. Torres said that Packer was supposed to have obtained an ounce of methamphetamine for someone in Texas. Torres said that once Packer got the methamphetamine, Torres would take it to Texas. Torres forced Packer to make a number of cell phone calls in order to obtain the methamphetamine. While he was holding Packer, Torres took approximately $800 from Packer's wallet. He told Cross and Padilla to go purchase food with Packer's bank card, which they did.

         Cross and Padilla convinced Torres to let Packer go, because Packer had to travel to Kansas for a court date and could get [295 Neb. 834] the methamphetamine when he returned. Torres kept Packer's cell phone and other items from Packer's wallet.

         Torres was charged with kidnapping, robbery, and two counts of use of a weapon to commit a felony for the kidnapping and robbery of Packer. He was convicted by a jury and sentenced by the court to 25 to 40 years' imprisonment on both the kidnapping and associated weapons convictions and 20 to 30 years' imprisonment on both the robbery and associated weapons convictions, all to be served consecutively.

         On his direct appeal in 2008, he alleged only that his sentences were excessive. Torres filed a supplemental pro se brief, alleging that his trial counsel was ineffective. On September 17, 2008, in case No. A-08-131, the Nebraska Court of Appeals summarily affirmed his convictions, but concluded that the record was not sufficient to address Torres' claims of ineffective assistance of counsel on direct appeal.

         After his kidnapping and robbery convictions were affirmed, Torres petitioned for postconviction relief. He alleged, among other things, that his counsel was ineffective for failing to call certain witnesses that he believed would have refuted the testimony that he kidnapped Packer. The district court held an evidentiary hearing and denied Torres' postconviction petition, which denial the Court of Appeals affirmed.[2]

         3. Murders of Hall and Donohue

         On March 1, 2007-less than a month after Torres kidnapped Packer-Torres asked Cross if he could stay in Hall's house because he had no other place to stay. Cross was reluctant, but Donohue agreed to let Torres stay in his room. Early the next morning, Cross and Padilla left on a trip to Texas. They did not tell Torres they were going to Texas, because they knew he wanted to go to Texas and also knew that he had a gun. Cross and Padilla's departure left Torres in the house with Hall and Donohue.

         [295 Neb. 835] On March 5, 2007, the bodies of Hall and Donohue were found in Hall's house by police after Padilla requested that police conduct a welfare check on the two. Hall's body was found on the first floor of the house, bound by an extension cord in an armchair and gagged with a bathrobe belt. He had three contact gunshot wounds to his head from a small-caliber weapon. His cause of death was determined to be asphyxiation by gagging, suffocation, physical restraint, and multiple deeply penetrating gunshot wounds.

         Donohue's body was found upstairs. His cause of death was three gunshot wounds to his head and chest. The shots were fired at close range and were contact or near-contact shots.

         Torres' DNA was found on the bathrobe belt used to gag Hall, and he could not be excluded from the DNA sample on the cord used to bind Hall. His DNA was also found on cigarette butts in Donohue's room.

         Hall's bank card was used by Torres early in the morning on March 3, 2007. Torres left for Texas in Hall's car, arriving in Houston, Texas, on March 8. Hall's car was later found near where Torres was staying in Texas. It had been burned. Houston law enforcement apprehended Torres on March 26. Torres had Packer's cell phone in his possession when he was arrested.

         4. Murder Trial

         In 2009, Torres was tried and convicted of two counts of first degree murder for the murders of Hall and Donohue, one count of robbery, three counts of use of a deadly weapon to commit a felony, and one count of unauthorized use of a financial transaction device for the use of Hall's bank card. Torres was found guilty by a jury; he waived his right to a jury determination of the aggravating factors at the sentencing phase, choosing to be sentenced by a panel of three judges. The panel found all four of the aggravating factors that were alleged with regard to the murder of Hall and three of the four factors with regard to the murder of Donohue. Torres was sentenced to death on each murder conviction, 50 to 50 years' [295 Neb. 836] imprisonment on each of the robbery and use convictions, and 20 months' to 5 years' imprisonment for the unauthorized use of a financial transaction device conviction.

         At Torres' murder trial, the district court admitted evidence about his kidnapping and robbery of Packer, including a part of the bill of exceptions from his kidnapping and robbery trial in which he had been convicted. The district court held that this evidence was admissible under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), "for purposes of motive, intent, plan, knowledge, opportunity, and identity."[3]

         5. Direct Appeal

         On direct appeal of his murder convictions, Torres argued that the district court improperly admitted the evidence of his kidnapping and robbery of Packer under rule 404(2).[4] This court concluded that the district court erred in admitting this evidence to show Torres' intent or opportunity to commit the murders. But we concluded that it was admissible to show his motive. We concluded that the improper admission of this evidence to show intent or opportunity was harmless error and affirmed his convictions and sentences.[5]

         6. Postconviction Petition and Hearing

         In 2013, Torres filed a motion for postconviction relief. The court granted his motion to appoint counsel. Torres was allowed to amend his petition and submit a second amended petition for postconviction relief.

         His petition alleged that his trial counsel was ineffective by "fail[ing] to . . . adequately address the [rule] 404 evidence regarding the alleged kidnapping and robbery of . . . Packer, including the failure to present evidence regarding testimony of [three potential witnesses] and a failure to adequately raise [295 Neb. 837] issues regarding phone records of . . . Packer's telephone.'' Torres claimed that trial counsel was ineffective by "fail[ing] to adequately raise the issues regarding destruction of evidence, contamination of evidence and the State's failure to produce evidence, " including the handling of crime scene evidence. He alleged counsel was ineffective in failing to call an expert witness to testify about the possible evidence contamination and DNA testing and the release of the crime scene premises (Hall's house) to Hall's family and its subsequent destruction. He claimed ...


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