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State v. Oliveira-Coutinho

Supreme Court of Nebraska

October 4, 2019

State of Nebraska, appellee,
v.
Jose C. Oliveira-Coutinho, 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. Postconviction: Right to Counsel: Appeal and Error. An appellate court reviews the failure of the district court to provide court-appointed counsel in a postconviction proceeding for an abuse of discretion.

         3. 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.

         4. 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.

         5. ___: ___: ___. A 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.

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

         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.

          [304 Neb. 148] 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. Effectiveness of Counsel: Presumptions: 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), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel's actions were reasonable.

         10. Effectiveness of Counsel. Counsel's failure to raise novel legal theories or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.

         11. Aiding and Abetting: Indictments and Informations: Notice. An information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for the crime specified or as having aided and abetted the commission of the crime specified.

         12. Constitutional Law: Criminal Law: Right to Counsel. A criminal defendant's Sixth Amendment right to the assistance of counsel attaches only after the initiation of adversary judicial criminal proceedings- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

         13. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.

         14. Postconviction: Right to Counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court to decide whether counsel shall be appointed to represent the defendant.

          [304 Neb. 149] 15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error. Where the alleged errors in the postconviction petition before the district court are either procedurally barred or without merit, thus establishing that the postconviction proceeding contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint postconviction counsel for an indigent defendant.

          Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Affirmed.

          Jose C. Oliveira-Coutinho, pro se.

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

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

          Miller-Lerman, J.

         NATURE OF CASE

         Jose C. Oliveira-Coutinho appeals the order of the district court for Douglas County which denied his motion for postconviction relief. Oliveira-Coutinho, who is serving sentences of life imprisonment for three first degree murder convictions and 20 years' imprisonment for a theft by deception conviction, set forth numerous claims for postconviction relief. The district court determined that all of Oliveira-Coutinho's claims were either insufficiently pled, affirmatively refuted by the record, or procedurally barred, and the court therefore denied his motion for postconviction relief without an evidentiary hearing and without appointing counsel. We affirm the order denying postconviction relief.

         STATEMENT OF FACTS

         Oliveira-Coutinho was convicted of three counts of first degree murder in connection with the 2009 deaths of Vanderlei and Jaqueline Szczepanik and their son, Christopher Szczepanik. Oliveira-Coutinho lived with the Szczepaniks and worked for Vanderlei. He was also convicted of theft by deception based [304 Neb. 150] on evidence that after their deaths, he withdrew money from the Szczepaniks' bank account. Oliveira-Coutinho's convictions and sentences were affirmed on direct appeal. Further details regarding the crimes are provided in our opinion on direct appeal. State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).

         On June 27, 2016, Oliveira-Coutinho filed a pro se motion for postconviction relief in which he set forth numerous claims of ineffective assistance of counsel both at trial and on direct appeal. Oliveira-Coutinho had the same counsel at trial and on direct appeal, and he alleged that this postconviction action was his first opportunity to raise issues of ineffective assistance of trial counsel. Oliveira-Coutinho requested an evidentiary hearing and appointment of postconviction counsel. Oliveira-Coutinho filed an amended motion for postconviction relief on June 26, 2017, in which he repeated his original claims and set forth several new claims. In the amended motion, Oliveira-Coutinho included almost 50 separate claims.

         On November 14, 2017, the district court overruled Oliveira-Coutinho's amended motion for postconviction relief without an evidentiary hearing. Generally, the court determined that each of Oliveira-Coutinho's claims was either not pled with specificity, refuted by the record, or procedurally barred. In its order overruling the motion, the court stated that Oliveira-Coutinho's numerous claims fell into two categories-claims of ineffective assistance of counsel and claims of prosecutorial misconduct prior to the appointment of trial counsel. Regarding all the claims of ineffective assistance of counsel, the court determined generally that even if counsel's performance was deficient in any of the ways alleged, the record refuted any claim that Oliveira-Coutinho suffered prejudice as a result of such deficient performance. The court stated, "if counsel were deficient in any of the claims alleged, the decision in this case would not have been any different in light of the evidence adduced at trial, which is thoroughly outlined in the direct appeal opinion." The court further stated that in [304 Neb. 151] reviewing Oliveira-Coutinho's motion, it "was unable to find any specific facts relating to prejudice and instead could only locate generic statements."

         Although it determined that the failure to specifically allege prejudice was in itself reason to overrule the motion, the court addressed Oliveira-Coutinho's specific claims of ineffective assistance of counsel. The court stated the claims were "at times confusing and somewhat overlapping," and it therefore addressed the claims in the following 11 categories: (i) failure to challenge the competency of codefendant Valdeir Goncalves-Santos to be a witness against Oliveira-Coutinho, (ii) failure to object to a jury instruction regarding a potential mistrial if jurors violated rules set forth by the court, (iii) failure to challenge the court's suppression ruling on appeal, (iv) failure to challenge the court's refusal to sequester the jury, (v) failure to challenge the aiding and abetting instruction, (vi) failure to challenge the instruction on first degree murder, (vii) failure to file a motion to discharge on speedy trial grounds, (viii) failure to object to the testimony of Oliveira-Coutinho's wife on grounds of hearsay and marital privilege, (ix) failure to object to portions of the State's opening statements, (x) failure to object to the testimony of various witnesses based on hearsay and other bases, and (xi) failure to investigate certain witnesses and evidence. The court addressed these claims as follows.

         (i) Failure to challenge competency of codefendant.

         As discussed further in our opinion on direct appeal, State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015), Goncalves-Santos testified at Oliveira-Coutinho's trial, and he generally testified that he and another individual helped Oliveira-Coutinho kill the Szczepaniks. In his amended motion for postconviction relief, Oliveira-Coutinho claimed that counsel was ineffective for failing to challenge Goncalves-Santos' competency to testify and for failing to raise the issue on appeal. The district court determined that these claims were refuted by the record, which showed that counsel filed a [304 Neb. 152] motion challenging Goncalves-Santos' competency, the trial court overruled the motion after a hearing, and counsel asked for a reconsideration, which the trial court denied. The court also stated that this court had affirmed the trial court's rulings on these matters on direct appeal.

         (ii) Failure to object to jury instruction regarding potential mistrial.

         Oliveira-Coutinho claimed that counsel was ineffective for failing to object to "Preliminary Jury Instruction No. 1," which he alleged stated in part:

"Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, to the Court and the taxpayers."

         (Emphasis omitted.) He argued that counsel should have objected to this instruction because it was confusing and prejudicial to his case and would discourage jurors from reporting misconduct. The district court determined that the record refuted this argument because the first jury instruction "filed October 9, 2012," did not contain the language alleged. The court also noted that Oliveira-Coutinho failed to cite any authority establishing that an objection to such an instruction would have been successful.

         (iii) Failure to challenge suppression ruling on appeal.

         Oliveira-Coutinho claimed that counsel on direct appeal failed "to raise and argue a violation of [his] Fifth Amendment right." In this claim, he refers to a motion to "suppress [his] February 1st, 2OIO[, ] Stop, Search and Detention under both the 4thAmendment and the 5th Amendment." Oliveira-Coutinho stated that counsel on appeal failed to assign and argue any Fifth Amendment violation, but he asserts that his "illiteracy prevents him from adequately present[ing] the Fifth Amendment claim and argu[ing] how this Claim would have changed the direct appeal result." The district court noted that counsel did challenge the suppression ruling on direct appeal but that the [304 Neb. 153] challenge was not successful. The court determined that its review of the trial court's suppression ruling, "in combination with the lack of law supplied by [Oliveira-Coutinho]," revealed no additional challenges to the suppression ruling that would have changed the result of the direct appeal.

         (iv) Failure to challenge refusal to sequester jury.

         Oliveira-Coutinho claimed that counsel on direct appeal failed to provide an adequate record for this court to review a claim that the trial court erred when it overruled a motion to sequester the jury for the entirety of the trial. He also claimed counsel failed to raise an issue on appeal regarding whether the trial court should have sequestered the jury at the start of deliberations. The district court determined that the record refuted these claims because (1) counsel raised and argued the denial of the motion to sequester for the entire trial, but the assignment of error was rejected on appeal, and (2) the record showed that "the jury was going to be sequestered at the request of [Oliveira-Coutinho] during deliberations.''

         (v) Failure to challenge aiding and abetting instruction.

         Oliveira-Coutinho claimed that trial counsel was deficient for failing to object to the felony murder instruction because the instruction allowed the jury to find him guilty if it found that the killing occurred during the course of a robbery that he committed either alone or while aiding and abetting another. He argues that the instruction was in error because he was not charged under a theory of aiding and abetting and because the instruction failed to include an intent element in connection with robbery. In separate but related claims, Oliveira-Coutinho asserted that counsel was deficient for failing to inform him prior to trial that he could be prosecuted under an aiding and abetting theory and for failing to challenge the constitutionality of Neb. Rev. Stat. § 28-206 (Reissue 2016), which provides that "[a] person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender." He argued that the statute was unconstitutional because it allowed the State to prosecute a [304 Neb. 154] defendant under an aiding and abetting theory without giving notice to the defendant that it intends to do so. He argued that the statute "makes the fatal assumption" that those who are subject to it understand they can be prosecuted under an alternative theory, and he asserts that because he does not speak English, he was not aware of the possibility of being convicted as an aider or abettor.

         The district court stated that "the principle of aiding and abetting has been a staple in Nebraska law" and that "[Oliveira-Coutinho] fails to provide any authority creating a realistic constitutional challenged [sic] to the statute." The court cited case law to the effect that an information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for having aided or abetted the crime. The court determined that a challenge to the constitutionality of the statute would have been unsuccessful and that an objection to the instruction also would have been unsuccessful because the instruction was supported by the evidence.

         (vi) Failure to challenge instruction on first degree murder.

         Oliveira-Coutinho claimed that counsel was deficient for failing to object to the first degree murder instruction, which he asserted was "faulty, unconstitutional and incomplete." His claim focused on the provision in the instruction that the jury had to unanimously agree he was guilty of first degree murder but that it did not have to be unanimous as to whether he was guilty under a felony murder theory or under a premeditated murder theory. He argued that the instruction was confusing and misleading and that the evidence in this case did not support a premeditated murder theory. Oliveira-Coutinho made four additional claims related to this claim: He claimed that counsel was deficient for (1) failing on direct appeal to challenge "structural error" in the court's acceptance of a jury verdict that was erroneous because it did not require unanimity as to the theory of first degree murder, (2) failing to challenge on appeal the sufficiency of the evidence as to each theory, (3) failing to propose a jury verdict form that would have required unanimity as to the theory of first degree murder, and (4) failing to challenge the constitutionality of a jury verdict form that did not require unanimity.

         The district court cited case law which, it asserted, had rejected Oliveira-Coutinho's arguments regarding unanimity as to alternate theories of first degree murder. The court concluded that counsel was not ineffective, because the challenges proposed by Oliveira-Coutinho would not have been successful.

         (vii) Failure to file motion to discharge on speedy trial grounds. Oliveira-Coutinho claimed counsel was deficient for failing to move for discharge based on statutory and constitutional speedy trial grounds and for failing to raise both issues on appeal. He alleged that he was charged by information on September 1, 2011; that trial ...


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