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State v. McGuire

Supreme Court of Nebraska

April 26, 2018

State of Nebraska, appellee,
v.
Shawn A. McGuire, appellant.

         1. Postconviction: Evidence: Witnesses: 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 factual findings unless they are clearly erroneous.

         2. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion.

         3. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

         4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to 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 conclusion.

         5. ___: ___. When a defendant's trial counsel is different from his or her appellate counsel, all issues of ineffective assistance of trial counsel that are known to the defendant or are apparent from the record must be raised on direct appeal. If the issues are not raised, they are procedurally barred.

         6. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         7. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. [299 Neb. 763] 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.

         8. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will look at whether trial counsel was ineffective under the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         9. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

         10. Trial: Effectiveness of Counsel: Presumptions: Appeal and Error. In determining whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.

         11. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

          Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.

          A. Michael Bianchi for appellant.

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

          Heavican, C.J., Miller-Lerman, Stacy, and Funke, JJ., and Colborn and Samson, District Judges.

          COLBORN, DISTRICT JUDGE.

         INTRODUCTION

         Shawn A. McGuire appeals from the denial of his motion for postconviction relief following an evidentiary hearing. He claims the district court erred in failing to find that his trial and appellate counsel were ineffective and in failing to make rulings on certain claims raised in his postconviction motion. He also claims his postconviction counsel provided ineffective assistance at the evidentiary hearing. For the reasons set forth below, we affirm the judgment of the district court.

         [299 Neb. 764] BACKGROUND

         Following a jury trial, McGuire was found guilty of second degree murder under a theory of aiding and abetting, use of a deadly weapon to commit a felony, and criminal conspiracy to unlawfully possess and deliver a controlled substance. The convictions were based on his involvement with a cocaine exchange that resulted in the murder of Cesar Sanchez-Gonzales (Sanchez) by Robert Nave. McGuire is currently serving a combined sentence of 105 to 125 years in prison.

         Trial Evidence

         On October 22, 2010, a law enforcement task force was conducting surveillance on an expected drug deal at an automobile repair shop (auto shop) in South Omaha, Nebraska. The auto shop was run by Sanchez, who was an informant for the task force. The supplier, Cesar Ayala-Martinez, had agreed to sell VA kilograms of cocaine to Sanchez in exchange for $40, 500. Sanchez was then going to sell the cocaine to McGuire. McGuire had purchased cocaine from Sanchez in a similar manner a few weeks prior to this date.

         The evidence showed that McGuire arrived at the auto shop driving a white Chrysler Sebring and was seen conversing with the occupants of a white Nissan. Abdul Vann, Kim Thomas, and Nave were also present outside the auto shop. Sometime after McGuire entered the auto shop, a member of the task force observed Nave put his hood over his head, pull a handgun from his waistband, and proceed into the auto shop. As soon as Nave entered, McGuire almost instantaneously exited.

         Ayala-Martinez testified that within seconds of McGuire's exiting, Nave entered the office with his gun drawn. Sanchez pulled a revolver out of his desk drawer and was attempting to open the chamber. Before Sanchez could raise his weapon, Nave shot Sanchez two or three times. Nave then pointed the gun at Ayala-Martinez and asked for the cocaine. Ayala-Martinez pointed to the cocaine, and Nave ran out with [299 Neb. 765] it. Sanchez later died due to the gunshot wounds inflicted by Nave.

         The task force observed Nave and Thomas running from the building. They both ran straight to the Sebring, where McGuire was waiting in the driver's seat. McGuire sped off at a high rate of speed. Members of the task force pursued the vehicle, which crashed head on into a pickup truck shortly thereafter. After a short foot pursuit, all three occupants of the Sebring were apprehended.

         A search of McGuire revealed a roll of cash with $20 and $50 bills on the outside and regular paper on the inside, making the cash roll appear to contain a larger amount of cash. Officers also found the keys to the Sebring, an electronic ignition key for a Nissan, and approximately $3, 800 in cash.

         A search of the white Nissan revealed a yellow sporting goods store bag containing a box of "CO" ammunition with 10 rounds missing, a pair of black gloves, and packaging material for black duct tape. On the driver's side of the Sebring, 10 live rounds of ammunition were found, marked "9mm CCI Luger." Inside the Sebring, officers located black duct tape consistent with the packaging found in the Nissan.

         Officers also found four handguns inside the Sebring, including a Smith & Wesson 9-mm pistol. We note that our opinion on direct appeal[1] incorrectly stated that the handguns were found in the Nissan. The record reflects that they were found in the Sebring. A firearms expert testified that the bullet recovered from Sanchez' body was fired from the 9-mm Smith & ...


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