State v. Nesbitt
| Citation | 650 N.W.2d 766,264 Neb. 612 |
| Decision Date | 13 September 2002 |
| Docket Number | No. S-00-751.,S-00-751. |
| Court | Supreme Court of Nebraska |
| Parties | STATE of Nebraska, Appellee, v. Thomas Edward NESBITT, Appellant. |
Clarence E. Mock, of Johnson & Mock, Oakland, for appellant, and, on brief, Thomas Edward Nesbitt, pro se.
Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.
Thomas Edward Nesbitt appeals from an order of the district court for Douglas County denying his motion for postconviction relief without an evidentiary hearing.
Following a 1986 jury trial resulting in a guilty verdict, Nesbitt was convicted of first degree murder in connection with the 1975 death of Mary Kay Harmer and sentenced to life imprisonment. His conviction and sentence were affirmed by this court on direct appeal in State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 (1987). The underlying facts of Nesbitt's criminal trial are summarized in that opinion and will not be repeated here except as necessary to our disposition of Nesbitt's postconviction claims. However, a more thorough recitation of the complex procedural history of this case is needed to properly analyze the issues in this appeal and will thus be provided here in some detail.
In an information filed in the district court for Douglas County on February 26, 1985, the State alleged that Nesbitt did "purposely and of deliberate and premeditated malice or in the perpetration of, or in an attempt to perpetrate a sexual assault in the first degree, kill Mary Kay Harmer." The State's evidence at trial included testimony from Michele McKeever regarding a prior uncharged act. Over a defense objection, McKeever testified that approximately 1 year prior to the date of Harmer's death, she was abducted, taken to Nesbitt's home, threatened, and raped by Nesbitt. At the close of the State's case, Nesbitt's attorney moved for a directed verdict or, alternatively, an order of dismissal. The district court ruled on the motion as follows:
I don't feel the State has sufficiently—at least for this particular motion—proven either the killing in the perpetration or in the attempt to perpetrate a sexual assault in the first degree and I think the evidence is insufficient for me to allow it to go any further in those two areas and I am going to sustain the defendant's motion in that regard and dismiss at this time that part of the [motion] dealing with the killing in the perpetration or in the attempt to perpetrate a sexual assault in the first degree of Mary Harmer, however, I am overruling the motion at this time with regard to purposely or deliberately and premeditatedly with malice the killing of Mary Harmer, and I am going to overrule their motion there. I feel there is sufficient evidence at this time to proceed.
In his direct appeal to this court, Nesbitt assigned as error the admission of McKeever's testimony regarding the prior uncharged sexual assault, the sufficiency of the evidence to support his conviction, and the failure of the trial court to grant a mistrial due to attempted solicitation of inadmissible testimony by the prosecutor. This court found no merit in any of those assignments. State v. Nesbitt, supra.
In 1987 and 1988, Nesbitt filed several pro se motions with the district court in which he requested access to all of the records and court files of his case "in order to properly present and litigate the facts and claims ... in the Defendant/Appellants [sic] Post Conviction Motion to Vacate Sentence, that will be filed in this Court." On January 28, 1988, the district court appointed counsel "to represent the defendant in his post-conviction action." Nesbitt responded with a March 3 motion to vacate the appointment of counsel and informed the court that he had no intention of filing a postconviction motion and had not requested the appointment of counsel. In a March 4 journal entry, the district court vacated the appointment of counsel and denied Nesbitt's requests for access to the court files and records, finding that there was no action pending and no intent on the part of the defendant to file an action. Nesbitt filed an appeal from a denial of his April 7, 1988, renewed motion for access to court records and files. We summarily dismissed this appeal and issued a mandate on September 30, 1988. State v. Nesbitt, 230 Neb. xix (case No. S-88-283, Sept. 22, 1988).
On September 7, 1990, Nesbitt filed a 501-page pro se document captioned "Defendants Verified Post-Conviction Motion to Vacate Sentence and Supporting Case Law." On January 4,1991, he filed a pro se motion to amend this motion. At an April 23 hearing, the district court denied Nesbitt's motion to be released on bail during the pendency of his postconviction action and granted the oral motion of an attorney who appeared as Nesbitt's counsel requesting 90 days in which to file an amended postconviction motion. The court's order specifically granted counsel until July 23, 1991, to file the amended motion and further ordered that the motion be no more than 30 pages in length. Nesbitt never filed an amended motion as directed by the district court, but did appeal from the portion of the district court's April 23 order denying his request to be released on bail during the pendency of his postconviction action. We summarily affirmed, issuing our mandate on December 11, 1991. State v. Nesbitt, 239 Neb. xxvi (case No. S-91-536, Nov. 12,1991).
On July 16, 1998, a pleading captioned "Verified Petition and Motions to Vacate Judgment & Orders and for a New Trial/Hearing" was filed by Nesbitt. In this filing, Nesbitt asserted that the computer records of the district court contained a March 19, 1997, entry noting, "Case Disposed of by Final Order." Nesbitt alleged that he was never given notice of this order and that he was unable to confirm the physical existence of the referenced order. No such order appears in any of the voluminous files and records presently before this court. Attached to Nesbitt's July 16 motion was a three-page outline of Nesbitt's various postconviction claims and issues. The outline, which was labeled "exhibit 1018," was neither signed nor file stamped. This document is captioned "Amended Post-Conviction Motion to Vacate Sentence" and is alleged by Nesbitt to have been the sole work product of the attorney appointed in February 1992 to represent him.
On April 2, 1999, Nesbitt filed an application for leave to commence an original action and a petition for mandamus. In his petition, Nesbitt alleged that the district court had not ruled upon his September 7, 1990, postconviction motion or his other subsequent but related filings. Nesbitt alleged that on April 4, 1991, the district court "appointed two very new and inexperienced attorneys" to amend his pro se motion. He alleged that these attorneys withdrew shortly thereafter because the judge issued an unreasonable page and time limitation on how to amend his motion. He alleged that another attorney was appointed on May 14, but such attorney had a direct conflict of interest and withdrew a short time later. On February 11, 1992, another attorney was appointed to represent Nesbitt and to amend his postconviction pleading. Nesbitt alleged that from November 1992 until March 18, 1997, this attorney accomplished virtually nothing. On March 4, 1998, Nesbitt filed a pro se motion to compel the latest counsel to provide assistance. Nesbitt alleged that the attorney was then improperly allowed to withdraw by the district court. Nesbitt alleged that he subsequently filed several motions, all of which the district court had yet to rule upon. We denied the petition for writ of mandamus but reassigned the case to a different district judge in September 1999.
After reassignment of the case, the district court held a general status conference in which Nesbitt participated by telephone. At this conference, Nesbitt alleged and the court generally agreed that the only action pending was the September 7, 1990, postconviction motion. In an order filed December 28, 1999, the district court, referring to Nesbitt's "Amended Postconviction Motion to Vacate Sentence," denied Nesbitt's motion for postconviction relief without granting him an evidentiary hearing. Nesbitt subsequently filed a motion for new trial.
The district court ruled on Nesbitt's motion for new trial in an order filed June 15, 2000. In this order, the court noted that it had reviewed the nearly 10-year-old motion for postconviction relief and all relevant materials and affirmed its order denying postconviction relief without an evidentiary hearing. The court determined that Nesbitt could not amend his petition to state any new claims.
Nesbitt assigns, restated and summarized, that the district court erred in denying him postconviction relief without an evidentiary hearing. He also assigns that the district court erred in failing to appoint him postconviction counsel and erred in failing to allow him to amend his pleading.
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 reaches a conclusion independent of the lower court's ruling. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002); State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002); State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002).
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Where such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002); State v. Caddy, 262 Neb....
To continue reading
Request your trial
-
State v. Trail
..., 225 Neb. 822, 408 N.W.2d 309 (1987) ; State v. Burchett , 224 Neb. 444, 399 N.W.2d 258 (1986).52 See id. See, also, State v. Nesbitt , 264 Neb. 612, 650 N.W.2d 766 (2002) ; State v. Bradley , 236 Neb. 371, 461 N.W.2d 524 (1990) ; State v. Hankins , 232 Neb. 608, 441 N.W.2d 854 (1989) ; St......
-
State Of Neb. v. Sandoval
...the accused guilty of an offense punishable with death” constitutes good cause to challenge the juror. See, also, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002); State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990). It is well established that § 29-2006(3) allows courts to question ......
-
State v. Hessler
...felony murder and premeditated murder are both theories of first degree murder subject to the death penalty. See State v. Nesbitt, 264 Neb. 612, 633, 650 N.W.2d 766, 785 (2002) ("premeditated murder and felony murder are simply alternate methods of committing first degree murder"). Had Hess......
-
State v. Faust
...be refuted by the files and records of the original prosecution. Neb.Rev.Stat. § 29-3001 (Reissue 1995). See, also, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002); State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001). In a case such as this, where, in my view, the trial record does not......