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State v. Johnson

Supreme Court of Nebraska

December 22, 2017

State of Nebraska, appellee,
v.
Craig A. Johnson, appellant.

         1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

         2. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of counsel presents a mixed question of law and fact, an appellate court reviews the lower court's factual findings for clear error but independently determines whether those facts show counsel's performance was deficient and prejudiced the defendant.

         3. Postconviction: Constitutional Law: Proof. A defendant seeking relief under the Nebraska Postconviction Act must show that his or her conviction was obtained in violation of his or her constitutional rights.

         4. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.

         5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.

         6. Postconviction: Effectiveness of Counsel: Proof. If the petitioner has not alleged facts which would support a claim of ineffective assistance of counsel or if the files and records affirmatively show he or she is entitled to no relief, then no evidentiary hearing is necessary.

         [298 Neb. 492] 7. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

         8. Effectiveness of Counsel: Proof: Words and Phrases: 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. To show prejudice under the prejudice component of the Strickland test, the defendant 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 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.

         9. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. In determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct, an appellate court must first determine whether the petitioner has alleged any action or remarks that constituted prosecutorial misconduct.

         10. Trial: Prosecuting Attorneys: Juries. A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.

         11. Criminal Law: Directed Verdict. In a criminal case, the court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged or (2) evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.

         12. Criminal Law: Directed Verdict: Appeal and Error. In an appellate court's consideration of a criminal defendant's motion for a directed verdict, the State is entitled to have all its relevant evidence accepted as true, every controverted fact resolved in its favor, and every beneficial inference reasonably deducible from the evidence.

         13. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be directed.

         14. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.

         [298 Neb. 493] 15. Trial: Prosecuting Attorneys: Evidence. A prosecutor must base his or her argument on the evidence introduced at trial rather than on matters not in evidence.

         16. Trial: Prosecuting Attorneys. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not amount to prosecutorial misconduct.

         17. Trial: Constitutional Law: Testimony. A defendant has a fundamental constitutional right to testify.

         18. Trial: Attorney and Client: Testimony: Waiver. The right to testify is personal to the defendant and cannot be waived by defense counsel's acting alone.

         19. ___: ___: ___: ___. A trial court does not have a duty to advise the defendant of his or her right to testify or to ensure that the defendant waived this right on the record. Instead, defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make.

         20. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: Waiver. Defense counsel's advice to waive the right to testify can present a valid claim of ineffective assistance in two instances: (1) if the defendant shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel's tactical advice to waive the right was unreasonable.

         21. Postconviction: Constitutional Law: Proof. In a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief.

         22. Effectiveness of Counsel: Appeal and Error. 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.

         23. ___: ___. 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.

         24. Constitutional Law: Speedy Trial. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis. This balancing test involves four factors: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant.

         [298 Neb. 494] 25. Postconviction: Appeal and Error. A party cannot raise an issue in a postconviction motion if he or she could have raised that same issue on direct appeal.

         Appeal from the District Court for Cheyenne County: Derek C. Weimer, Judge. Affirmed.

          Craig A. Johnson, pro se.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

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

          FUNKE, J.

         This is Craig A. Johnson's appeal from the district court's order denying him postconviction relief without an evidentiary hearing. We affirm.

         I. BACKGROUND

         In the spring of 2011, Johnson began dating April Smith. During their relationship, Johnson exhibited signs of jealousy about April's relationship with her former husband Edward Smith. In November, Johnson told a coworker that he would kill April if she ever left him, and on December 10, he told his supervisor that if he ever caught April and Edward together, he would "beat the shit out of both of them."

         Later that same day, April's nephew, Robert Gray, his wife, and their children visited April and Johnson at her duplex. Gray testified that Johnson was drinking beer that night and was unusually quiet. Both Gray and his wife testified that Johnson was upset that Edward had repaired April's van and that other men had been flirting with April. Gray's wife also testified that Johnson's demeanor was angry, that the interactions between Johnson and April were tense, and that they had begun to argue before the Grays left that evening. April's neighbors reported hearing loud voices and arguing in the early morning hours of December 11, 2011. One of the [298 Neb. 495] neighbors stated that she heard "a couple of thuds" as well. On December 12, April did not report to work and did not respond to Gray's attempts to contact her. Two law enforcement officers went to April's duplex and found April dead. April's body was lying face down in the living room, and her feet and hands were bound. They observed ligature abrasions on her neck, a wound on her hand and face, and a gaping wound on her abdomen. The pathologist who performed April's autopsy concluded that pinpoint hemorrhages found on April's mouth could have been caused by strangulation or suffocation. The ligature abrasion on her neck indicated strangulation. A forensic scientist found a fingerprint on a trash bag that matched one of Johnson's fingerprints. DNA testing on blood found on the trash bag produced DNA profiles that matched April's profile. An investigator testified that an imprint left on the trash bag appeared to be of a human face. Investigators also found two knives in the sink, one of which had an 8-inch blade with blood on it that matched April's DNA. The duplex showed signs of a struggle, and blood was splattered throughout. The pathologist opined that her death was a homicide caused by the stab wound to her abdomen and suffocation, with a contributing cause of multiple drug toxicity.

         On December 15, 2011, Johnson was arrested in Michigan while driving April's van. When Nebraska investigators searched the van, they found Johnson's T-shirt and athletic shoes with dark stains that they believed to be blood. The stains on both the T-shirt and the shoes tested positive for blood, and the DNA profile extracted from these stains matched April's profile.

         After a jury trial in which Johnson did not testify, he was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. The court sentenced him to prison terms of, respectively, life, 40 to 50 years, and 10 to 20 years, with all terms to be served consecutively.

         [298 Neb. 496] On direct appeal, Johnson claimed that the court erred by admitting cumulative, gruesome autopsy photographs that depicted the same injuries, thus allowing the prosecutor to inflame the jurors' passions. We rejected this claim, because Johnson did not assign and argue it.[1] We also rejected his claim that the court erred by denying his Batson challenge based on an irrational and pretextual justification.[2] In doing so, we held that the record supported the prosecutor's concerns about the juror's knowledge of the case. Lastly, we determined that the court did err by admitting testimony and exhibits that Johnson's DNA profile contained certain alleles that matched alleles found in a mixed blood sample, because such evidence lacked sufficient probative value. However, we concluded that the error was harmless beyond a reasonable doubt.

         In Johnson's verified motion for postconviction relief, he alleged multiple instances of ineffective assistance of counsel. Because Johnson was represented by the same lawyers at the time of his trial and on direct appeal, this postconviction proceeding was his first opportunity to assert claims of ineffective assistance of counsel. Johnson alleged that his trial counsel was ineffective in failing to file a motion for absolute discharge on the basis of speedy trial, failing to object to the prosecutor's comments in voir dire, failing to properly examine various witnesses at trial, failing to argue after moving for a directed verdict, failing to object to the state's closing argument, failing to sever count III from the other charges, and failing to allow Johnson to testify at trial.

         The district court, without holding an evidentiary hearing, denied Johnson's motion, finding that Johnson had failed to allege sufficient facts to demonstrate a violation of his constitutional rights and that the record and files ...


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