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State v. Newman

Supreme Court of Nebraska

August 17, 2018

State of Nebraska, appellee,
v.
Terrell E. Newman, appellant.

         1. Appeal and Error. The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief.

         2. ___. An assignment of error raised for the first time in a reply brief is untimely and will not be considered by an appellate court.

         3. 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.

         4. Postconviction: Constitutional Law: Judgments. Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.

         5. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

         6. ___: ___: ___. A trial court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution.

         7. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

         [300 Neb. 771] 8. ___: ___. 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.

         9. Postconviction: Effectiveness of Counsel: Appeal and Error. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel's performance were known to the defendant or apparent from the record.

         10. ___: ___: ___. Claims of ineffective assistance of appellate counsel may be raised for the first time on postconviction review.

         11. 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 direct appeal of ineffective assistance of trial counsel, an appellate court will first 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). If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel's failure to raise the issue.

         12. Effectiveness of Counsel: Proof. 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.

         13. ___: ___.To show that counsel's performance was deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

         14. 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 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.

         [300 Neb. 772] 15. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance and prejudice, may be addressed in either order.

         16. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

         17. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic decision to present particular evidence, or not to present particular evidence, will not, without more, sustain a finding of ineffective assistance of counsel. Strategic decisions made by trial counsel will not be second-guessed so long as those decisions are reasonable.

         18. Rules of Evidence. Neb. Rev. Stat. § 27-901(1) (Reissue 2016) does not impose a high hurdle for authentication or identification.

         19. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all probabilities inconsistent with authenticity. Rather, if the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirements of Neb. Rev. Stat. § 27-901(1) (Reissue 2016).

         20. Sentences. If there is a discrepancy between the oral pronouncement of a valid sentence and the later written order, the oral pronouncement controls calculation of the prison term.

         21. Rules of Evidence: Juries: Testimony: Affidavits. Neb. Rev. Stat. § 27-606(2) (Reissue 2016) prohibits a juror from testifying as to any matter or statement occurring during the course of the jury's deliberations. Thus, a juror's affidavit may not be used to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations.

         22. Postconviction: Effectiveness of Counsel: Proof. A petitioner's postconviction claims that his or her defense counsel was ineffective in failing to investigate possible defenses are too speculative to warrant relief if the petitioner fails to allege what exculpatory evidence the investigation would have procured and how it would have affected the outcome of the case.

         23. Postconviction: Constitutional Law. A claim of actual innocence may be a sufficient allegation of a constitutional violation under the Nebraska Postconviction Act.

         24. Postconviction: Evidence. The essence of a claim of actual innocence is that the State's continued incarceration of such a petitioner without an opportunity to present newly discovered evidence is a denial of procedural or substantive due process.

         [300 Neb. 773] 25. Postconviction: Evidence: Presumptions: Proof. The threshold to entitle a prisoner to an evidentiary hearing on a postconviction claim of actual innocence is extraordinarily high. Such a petitioner must make a strong demonstration of actual innocence, because after a fair trial and conviction, the presumption of innocence vanishes.

          Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed in part, and in part reversed and remanded with directions.

          Stuart J. Dornan and Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz & Conway, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Hall, District Judge.

          Stacy, J.

         A jury found Terrell E. Newman guilty of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, attempted intentional manslaughter, and possession of a deadly weapon by a prohibited person.[1] He was sentenced to life imprisonment for the murders and to additional terms of years for the other offenses, the sentences to run consecutively. We affirmed his convictions and sentences on direct appeal.[2]

         Newman then moved for postconviction relief, raising claims of ineffective assistance of counsel and a claim of actual innocence. The district court denied relief without conducting an evidentiary hearing. Newman filed this timely appeal. We affirm in part, and in part reverse and remand for an evidentiary hearing.

         [300 Neb. 774] I. FACTS

         Newman's trial was consolidated with codefendant Derrick U.Stricklin. The underlying facts are fully set forth in our opinion affirming Stricklin's convictions and sentences.[3]Summarized, Newman's convictions arose from the shooting deaths of Carlos Morales and Bernardo Noriega during a drug transaction at an automobile body shop owned by Morales. Jose Herrera-Gutierrez was also present during the drug transaction and the shootings, and he was the State's primary witness at trial. Herrera-Gutierrez identified Newman and Stricklin as the shooters and testified that he recognized both men from prior visits to Morales' shop. He had seen Stricklin approximately four times at the shop, and he had seen Newman approximately three times at the shop.

         The State's theory of the case was that Newman and Stricklin committed the crimes together. Newman's cell phone records showed that Newman was in communication with both Morales and Stricklin on the day of the shootings, and also showed that Newman's cell phone was in the area of the murder scene during the relevant timeframe.[4]

         A jury found Newman guilty of all the charges. He was sentenced to consecutive sentences of life imprisonment for each murder conviction, 15 to 25 years' imprisonment for each use of a deadly weapon conviction, 20 months' to 5 years' imprisonment for the attempted manslaughter conviction, and 15 to 25 years' imprisonment for the possession of a deadly weapon conviction.[5] The district court denied his motion for new trial, and he filed a direct appeal.

         On direct appeal, Newman was represented by different counsel. Appellate counsel raised numerous assignments of error challenging Newman's identification by Herrera-Gutierrez, the sufficiency of the evidence, the admission of certain evidence, [300 Neb. 775] the exclusion of other evidence, limitations imposed on the cross-examination of Herrera-Gutierrez, the overruling of a motion for new trial based on juror misconduct, and the overruling of a motion to withdraw his rest.

         Newman's appellate counsel also alleged trial counsel had been ineffective in failing to (1) introduce certain testimony at the hearing on the motion for new trial, (2) object to certain jury instructions, and (3) adequately investigate an alibi defense. In the direct appeal, we concluded the files and records affirmatively showed the jury instruction claim lacked merit and we found the record was insufficient to address the other two allegations of ineffective assistance of trial counsel.[6]

         After we affirmed his convictions and sentences, Newman filed the instant motion for postconviction relief. He alleges his appellate counsel was ineffective in (1) failing to obtain a complete record prior to Newman's direct appeal and (2) failing to raise on direct appeal claims that his trial counsel was ineffective for (a) failing to investigate certain witnesses, including alibi witnesses; (b) failing to object to certain jury instructions; (c) failing to present evidence of third-party guilt via a motion in limine; (d) failing to object to the authentication of cell phone records; (e) failing to object to the truth-in-sentencing advisement; (f) failing to present certain evidence at the motion for new trial; and (g) failing to hire a crime scene investigator. Newman also alleges in his postconviction motion, and argues in his brief, that he is actually innocent of the crimes. The district court denied the postconviction motion without conducting an evidentiary hearing. Newman filed this appeal.

         II. ASSIGNMENTS OF ERROR

         Newman assigns the district court erred in (1) denying him an evidentiary hearing on his motion for postconviction relief, (2) finding he did not meet the threshold for actual innocence, and (3) denying his motion for postconviction relief.

         [300 Neb. 776] Newman also attempts to raise additional assignments of error in his reply brief, including that he was denied an opportunity to amend his postconviction motion and that additional jury instructions were flawed. The State filed an objection, arguing Newman could not raise new assignments of error in his reply brief. We agree.

         The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief.[7] An assignment of error raised for the first time in a reply brief is untimely and will not be considered by the court.[8] We therefore limit our analysis to the assignments made and argued in Newman's original appellate brief. We note for the sake of completeness that Stricklin properly raised nearly identical assignments of error in his appeal from the district court's denial of his motion for postconviction relief, and we found those assignments lacked merit.[9]

         III. STANDARD OF REVIEW

         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.[10]

         IV. ANALYSIS

         1. General Propositions Governing Postconviction

         Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional [300 Neb. 777] rights such that the judgment was void or voidable.[11] In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.[12]

         A trial court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution.[13] If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.[14]Thus, 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[15]

         Here, Newman alleges he received ineffective assistance of counsel. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel's performance were known to the defendant or apparent from the record.[16]Newman was represented by different counsel on direct appeal [300 Neb. 778] than at trial. He therefore cannot raise on postconviction any claims of ineffective assistance of trial counsel that were not preserved on direct appeal, as those claims would be procedurally barred.[17]

         However, claims of ineffective assistance of appellate counsel may be raised for the first time on postconviction review.[18] 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, an appellate court will first look at whether trial counsel was ineffective under the test in Strickland v. Washington.[19] If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel's failure to raise the issue.[20]

         To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, [21] the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.[22] To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.[23] 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.[24] A reasonable probability does not require that it be ...


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