State v. Otey, 81-768
| Decision Date | 02 July 1982 |
| Docket Number | No. 81-768,81-768 |
| Parties | STATE of Nebraska, Appellee, v. Harold Lamont OTEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Post Conviction: Appeal and Error. It is well established that one seeking post conviction relief has the burden of establishing the basis for such relief, and the findings of the District Court in denying relief will not be disturbed on appeal unless they are clearly erroneous.
2. Post Conviction. A motion for post conviction relief may be heard without requiring the production of the prisoner.
3. Effectiveness of Counsel. In order for one to maintain a claim of ineffective counsel, the record must affirmatively support the claim.
4. Effectiveness of Counsel. The two-part test to determine whether an attorney has effectively counseled a criminal defendant is that counsel must perform at least as well as one with ordinary criminal law skill and training in his or her region and must also conscientiously protect his client's interests.
5. Effectiveness of Counsel: Proof. A defendant challenging competency of counsel has the burden to establish it. In addition, defendant must show that he suffered prejudice in the defense of his case as a result of his attorney's actions or inactions.
6. Effectiveness of Counsel: Witnesses: Testimony. A claim of prejudice based upon an alleged failure to call witnesses is not sustained in the absence of evidence as to what the witnesses' expected testimony would be.
Michael L. Schleich of Morsman, Fike, Davis & Schleich, P. C., Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
The defendant, Harold Lamont Otey, appeals from the order of the District Court denying his motion for post conviction relief.
In 1978 the defendant was convicted of first degree murder in the perpetration of a sexual assault and sentenced to death. The judgment was affirmed by this court in State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979).
On September 23, 1980, he filed a motion in the District Court for post conviction relief. An evidentiary hearing was held on June 29, 1981. The defendant was not present at this hearing but his testimony was received by deposition. The motion was denied on September 24, 1981.
The defendant contends it was error for the trial court to refuse to permit the defendant to attend the hearing, and that the record shows he was denied the effective assistance of counsel at the original trial.
It is well established that one seeking post conviction relief has the burden of establishing the basis for such relief, and the findings of the District Court in denying relief will not be disturbed on appeal unless they are clearly erroneous. State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982).
Neb.Rev.Stat. § 29-3001 (Reissue 1979) provides that a motion for post conviction relief may be heard "without requiring the production of the prisoner." In State v. Woods, 180 Neb. 282, 142 N.W.2d 339 (1966), we held that although a prisoner could not be prevented from testifying in support of his motion, he had no right to be personally present at an evidentiary hearing on the motion. See, also, State v. Wells, 197 Neb. 584, 249 N.W.2d 904 (1977), and Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897), relating to the right to be present at the hearing on a motion for a new trial.
We conclude it was not error for the trial court to require that the defendant's testimony be presented by deposition.
The defendant alleges he was deprived of the effective assistance of counsel because his trial counsel failed to adequately prepare for trial; failed to request that all stages of the proceeding be recorded and transcribed; advised the jury that the defendant would testify in his own behalf when in fact that decision had not been made or discussed with the defendant; and failed to object to the introduction of photographs offered by the State.
The defendant had the burden to show that his trial counsel did not perform at least as well as one with ordinary criminal law skill and training and that he was prejudiced by the action or inaction of his counsel. The rule was stated in State v. Journey, 207 Neb. 717, 723, 301 N.W.2d 82, 87 (1981), as follows:
As we said in State v. Meredith, 212 Neb. 109, 321 N.W.2d 456 (1982), in order for one to maintain a claim of ineffective counsel, the record must affirmatively support the claim.
The assistant public defender who represented the defendant at the trial testified at the evidentiary hearing on the motion that he consulted with the defendant approximately a dozen times before trial. He discussed the police reports with the defendant and asked him for the names of witnesses, what his side of the story was, and if he had an alibi. With regard to the stereo which had been stolen from the victim's apartment, the defendant gave counsel three different stories, all conflicting.
In State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980), we pointed out that the adequacy of counsel cannot be determined solely on the basis of the amount of time spent interviewing the defendant. As in that case, the defendant in this case has failed to show how, had counsel discussed the case with the defendant any more than he did, anything different would have occurred.
In regard to witnesses, the defendant gave his counsel the "nicknames of people scattered all over the country." The defendant did not provide names and addresses of witnesses or tell his counsel what would be the testimony of these people. In the absence of evidence as to what the witnesses would have testified to, the defendant failed to establish prejudice.
The defendant's counsel further testified that he did not know whether the defendant would testify at the trial, so in his opening statement counsel told...
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