State v. Thorpe
| Decision Date | 13 February 2015 |
| Docket Number | No. S-14-495.,S-14-495. |
| Citation | 858 N.W.2d 880 |
| Parties | State of Nebraska, appellee, v. Terrell T. Thorpe, appellant. |
| Court | Nebraska Supreme Court |
Terrell T. Thorpe, pro se.
Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
5. Effectiveness of Counsel: Appeal and Error.With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.
6. Postconviction: Appeal and Error.An appellate court will not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief.
7. Postconviction: Collateral Attack: Appeal and Error.A defendant cannot use a motion for postconviction relief to collaterally attack issues that were decided against him or her on direct appeal.
8. Postconviction: Appeal and Error.A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.
9. Constitutional Law: Effectiveness of Counsel.A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.
10. Effectiveness of Counsel: Proof: 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.
11. Effectiveness of Counsel: Proof: 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 petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different.
12. Proof: Words and Phrases.A reasonable probability is a probability sufficient to undermine confidence in the outcome.
13. Postconviction: Constitutional Law: Proof.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.
14. 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.
15. Criminal Law: Aiding and Abetting.Aiding and abetting is simply another basis for holding an individual liable for the underlying crime.
16. Criminal Law: Aiding and Abetting.By its terms, Neb.Rev.Stat. § 28–206 (Reissue 2008) provides that a person who aids or abets may be prosecuted and punished as if he or she were the principal offender.
17. Aiding and Abetting: Proof.Aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed.
Terrell T. Thorpe appeals the order of the district court which overruled his amended motion for postconviction relief without an evidentiary hearing. We affirm the judgment of the district court.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.
State v. Phelps , 286 Neb. 89, 834 N.W.2d 786 (2013). When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion. Id .
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. Robinson, supra .
After a jury trial, Thorpe was convicted of two counts of first degree murder and two counts of use of a weapon to commit a felony for his involvement with the shooting deaths of Kevin Pierce and Victor Ford. Thorpe was sentenced to life imprisonment without parole on each count of first degree murder and 30 to 40 years' imprisonment and 40 to 50 years' imprisonment on the counts of use of a weapon to commit a felony. All four of his sentences were ordered to be served consecutively.
On direct appeal, we affirmed Thorpe's convictions and sentences on the weapons charges and his convictions on the murder charges. See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). But we vacated Thorpe's sentences of life imprisonment without parole for the murder charges, because life imprisonment without parole was not a valid sentence for first degree murder in Nebraska. See id . We remanded the cause with directions to “sentence Thorpe to life imprisonment on both murder charges.” See id . at 27, 783 N.W.2d at 763.
Thorpe was represented by the same attorney at trial and on direct appeal.
In December 2011, Thorpe filed an amended pro se motion for postconviction relief. He claimed ineffective assistance of trial counsel, prosecutorial misconduct, convictions based on insufficient evidence, abuse of discretion by the trial court, and ineffective assistance of appellate counsel.
Thorpe alleged his trial counsel was ineffective for (1) not obtaining an independent forensic pathologist expert to rebut the testimony of the State's forensic pathologist expert, (2) not requesting a scientific evaluation of all latent fingerprints, (3) not requesting independent forensic testing of the physical evidence, (4) not requesting independent DNA testing of three pieces of physical evidence, (5) not interviewing and investigating certain named individuals who might have been called as witnesses, (6) not investigating the possibility that someone other than Thorpe committed the murders, (7) not objecting to or moving to quash counts I and III of the second amended information, and (8) not objecting to jury instructions Nos. 4, 6, and 14.
Thorpe alleged that certain comments made by the State during opening and closing arguments amounted to prosecutorial misconduct. He claimed that his convictions were based on insufficient evidence, because the State “failed to prove that the Manner of Deaths were Certified as Homicides.” And he claimed that the trial court abused its discretion in instructing the jury and in not rendering a “judgment of guilt.” Finally, Thorpe alleged that his appellate counsel was ineffective for failing to raise on direct appeal the aforementioned claims of ineffective assistance of trial counsel, prosecutorial misconduct, insufficient evidence, and abuse of discretion by the trial court.
On May 15, 2013, the State moved to dismiss Thorpe's amended motion without an evidentiary hearing. The State was given 30 days to submit a brief, and Thorpe had 45 days from his receipt of the State's brief to submit his own brief. The State did not submit a brief.
In February 2014, Thorpe filed a “Motion in Opposition to Plaintiff[']s Motion to Dismiss Amended Motion for
Postconviction Relief and Request for Default Judgment.” He asked the district court to consider two additional ineffective assistance of trial counsel claims that were not included in his amended motion for postconviction relief. These new claims related to trial counsel's alleged failure to request the appointment of a special prosecutor and to “challenge the statements and testimony of [Taiana] Matheny.” (Taiana Matheny participated in the murders and was one of the State's witnesses at Thorpe's trial.) Thorpe also requested that the court “enter a judgment of default against the plaintiff, for failure to respond as instructed by the Court.” Although Thorpe claims that he requested a hearing on his motion, the record does not show that he did. The court did not explicitly rule on Thorpe's motion.
On May 15, 2014, the district court denied Thorpe's amended motion for postconviction relief without an evidentiary hearing. It concluded that Thorpe's ineffective assistance of trial counsel claims failed to allege prejudice.
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