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State v. Foster

Supreme Court of Nebraska

August 24, 2018

State of Nebraska, appellee,
v.
Jeremy D. Foster, 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. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         3. Postconviction. Postconviction relief is a very narrow category of relief.

         4. Postconviction: Constitutional Law: Proof. In order to be entitled to an evidentiary hearing, a prisoner must allege facts in the motion for postconviction relief that, if proved, would constitute a violation of his or her rights under the U.S. or Nebraska Constitution.

         5. Postconviction. A prisoner is not entitled to an evidentiary hearing on a motion for postconviction relief on the basis of claims that present only conclusory statements of law or fact.

         6. ___. In the absence of alleged facts that would render the judgment void or voidable, the proper course is to dismiss the motion for postconviction relief for failure to state a claim.

         7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To establish a right to postconviction relief because of counsel's ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.

         [300 Neb. 884] 8. Effectiveness of Counsel: Proof. To establish the prejudice prong of a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

         9. Effectiveness of Counsel: Presumptions. In determining whether trial counsel's performance was deficient, courts give counsel's acts a strong presumption of reasonableness.

         10. Effectiveness of Counsel: Appeal and Error. An appellate court will not judge an ineffectiveness of counsel claim in hindsight; appellate courts must assess trial counsel's performance from counsel's perspective when counsel provided the assistance.

         11. ___: ___. When reviewing claims of ineffective assistance, an appellate court will not second-guess trial counsel's reasonable strategic decisions.

         12. Right to Counsel: Plea Bargains. The plea-bargaining process presents a critical stage of a criminal prosecution to which the right to counsel applies.

         13. Effectiveness of Counsel: Plea Bargains. As a general rule, defense counsel has the duty to communicate to the defendant all formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant.

         14. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

         15. Jury Instructions: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         16. ___: ___. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

         17. Criminal Law: Motions for Mistrial. A motion for mistrial is properly granted in a criminal case where an event occurs during the course of trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.

         18. Motions for Mistrial: Proof: Appeal and Error. A defendant must prove that an alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice, in order for a motion for mistrial to be properly granted.

         19. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise [300 Neb. 885] 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 two-part test for ineffectiveness established 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.

         20. ___: ___. Much like claims of ineffective assistance of trial counsel, a defendant claiming ineffective assistance of appellate counsel must show that but for appellate counsel's failure to raise the claim, there is a reasonable probability that the outcome would have been different.

         21. Witnesses: Impeachment. Generally, the credibility of a witness may be attacked by any party, including the party who called the witness.

         22. ___: ___. A party may not use a prior inconsistent statement of a witness under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Jeremy D. Foster, pro se.

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

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

          Funke, J.

         Jeremy D. Foster appeals from the denial of postconviction relief without an evidentiary hearing. Foster asserts that he was prejudiced by ineffective assistance of counsel at trial and on direct appeal. We affirm the judgment below.

         I. BACKGROUND

         This appeal follows our decision on Foster's direct appeal in State v. Foster, [1] which affirmed Foster's jury trial convictions on one count of first degree murder, four counts [300 Neb. 886] of assault in the second degree, and five counts of use of a deadly weapon to commit a felony. Foster and his codefendant, Darrin D. Smith, were charged with the same crimes. The two cases were jointly tried, and the jury found Smith and Foster guilty on all counts. The court sentenced both Smith and Foster to life imprisonment, plus consecutive sentences totaling 96 to 150 years.

         1. Factual Background

         Brothers Victor Henderson and Corey Henderson were members of the "Pleasantview" or "PMC" gang in Omaha, Nebraska, and Smith was a member of a rival gang referred to as "40th Avenue." Victor and Corey were federally indicted, and they agreed to plead guilty and testify for the government in exchange for leniency. They were released from federal prison in 2007, and they were considered "snitches" within the gang community.

         In October 2008, Smith saw Victor and Corey at a party and made a derogatory remark toward Corey regarding being a "snitch." Later that month, Smith saw Victor and Corey at an American Legion hall in Omaha (the Legion), which was considered a bar for the "Pleasantview" gang. When Corey walked outside, he saw a group of men had surrounded Victor, including Smith, "Don Don" Swift, and a boy of about 14 years of age, who each had a gun. "Don Don" was arguing with Victor. Smith made another statement to the effect of "we don't mess with your kind," which Corey understood to be a comment about Victor and Corey being "snitches."

         On November 9, 2008, while Victor and Corey were at the Legion, Smith and Foster entered the bar wearing hooded sweatshirts. Corey testified that Smith gave him a "hateful look or a stare." Smith and Foster were in the Legion for approximately 10 minutes, but before they left, they looked and nodded toward Victor and Corey. Around closing time, Smith and Foster returned and confronted Victor and Corey in the parking lot. Victor was fatally shot in the neck, and Corey and three others were wounded.

         [300 Neb. 887] Smith and Foster were arrested and charged for the shootings. The evidence was in conflict as to whether Smith or Foster was the shooter. For example, there was evidence that Smith wore a black hooded sweatshirt and that Foster wore a gray hooded sweatshirt when they were first at the Legion, but had switched shirts before they confronted Victor and Corey in the parking lot. Witnesses testified the shooter was wearing black clothes with a hood pulled over his face. At least two witnesses implicated Foster as the shooter, another witness claimed Smith was the shooter, and there was evidence that the shooter was neither Foster nor Smith but was yet a third individual, including "Don Don" or a person named "Views."

         The State's theory of prosecution at trial was that Foster was the shooter and that Smith aided and abetted Foster in the commission of the shootings. The State called several witnesses to establish that Smith was seen with a gun and that he handed Foster the gun just prior to the shootings.

         Following a 2-week jury trial, Smith and Foster were convicted on all counts. Both parties appealed, and this court issued separate opinions affirming their convictions and sentences.[2]

         2. Procedural Background

         Our opinion on direct appeal in Foster[3] addressed Foster's assignments that the district court erred by failing to sever Foster's trial from Smith's, which was the main focus of the appeal, and allowing the jury to separate without Foster's intelligent waiver of his right to sequester.

         This court rejected Foster's claim that he was prejudiced by the joint trial, reasoning that based upon the evidence, the jury could have convicted both Smith and Foster, just one of them, or neither of them. Furthermore, we determined that a joint trial was appropriate, because the charges against Smith [300 Neb. 888] and Foster stemmed from the same series of acts and would be proved by similar evidence.

         We also rejected Foster's second assignment of error, because the trial court specifically asked Foster whether he sought jury sequestration and he replied that he did not, which satisfied the requirement for a voluntary, knowing, and intelligent waiver of the right to sequester.

         Relevant to the instant appeal, Foster then filed a motion for postconviction relief, with the assistance of court-appointed counsel. Foster's motion raised claims of trial court error, prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel.

         The district court found that Foster's claims of trial court error and prosecutorial misconduct could have been raised on direct appeal and therefore were procedurally barred. The court found Foster's ineffective assistance of counsel claims were not procedurally barred, because he was represented by the same counsel at trial and on direct appeal. The court then addressed the allegations supporting Foster's ineffective assistance of counsel claims and found that they were not specific enough to merit a hearing and that Foster had not pointed to any facts which showed he was prejudiced.

         In this appeal, Foster proceeds as a self-represented litigant and reasserts his ineffective assistance of counsel claims, and he argues the court erred in failing to grant him an evidentiary hearing.

         II. ASSIGNMENTS OF ERROR

         Foster assigns, restated and reordered, that the district court erred in (1) failing to find trial counsel deficiency violated article I, § 11, of the Nebraska Constitution and the Sixth Amendment to the U.S. Constitution; (2) failing to grant Foster postconviction relief; (3) failing to find Foster was prejudiced by performance of trial counsel; (4) failing to find Foster was prejudiced by performance of appellate counsel; and (5) denying Foster an evidentiary hearing.

         [300 Neb. 889] 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[4]

         Whether jury instructions are correct is a question of law. which an appellate court resolves independently of the lower court's decision.[5]

         IV. ANALYSIS

         Under the Nebraska Postconviction Act, [6] a prisoner in custody may file a petition for relief on the grounds that there was a denial or infringement of the prisoner's constitutional rights that would render the judgment void or voidable. This category of relief is "very narrow."[7]

         Section 29-3001(2) entitles a prisoner to an evidentiary hearing on the claim, unless "the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief." In order to be entitled to an evidentiary hearing, a prisoner must allege facts in the motion for postconviction relief that, if proved, would constitute a violation of his or her rights under the U.S. or Nebraska Constitution.[8] A prisoner is not entitled to an evidentiary hearing on the basis of claims that present only conclusory statements of law or fact.[9] In the absence of alleged ...


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