883 N.W.2d 334 (Neb. 2016), S-15-329, State v. Saylor

Docket Nº:S-15-329
Citation:883 N.W.2d 334, 294 Neb. 492
Opinion Judge:Kelch, J.
Party Name:STATE OF NEBRASKA, APPELLEE, v. JAMES M. SAYLOR, APPELLANT
Attorney:Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Judge Panel:WRIGHT, MILLER-LERMAN, CASSEL, and KELCH, JJ., and MOORE, Chief Judge. HEAVICAN, C.J., and CONN OLLY and STACY, JJ., not participating. Heavican, C.J., and Connolly and Stacy, JJ., not participating.
Case Date:August 19, 2016
Court:Supreme Court of Nebraska

Page 334

883 N.W.2d 334 (Neb. 2016)

294 Neb. 492

STATE OF NEBRASKA, APPELLEE,

v.

JAMES M. SAYLOR, APPELLANT

No. S-15-329

Supreme Court of Nebraska

August 19, 2016

Page 335

[Copyrighted Material Omitted]

Page 336

[Copyrighted Material Omitted]

Page 337

[Copyrighted Material Omitted]

Page 338

Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge.

AFFIRMED.

Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, MILLER-LERMAN, CASSEL, and KELCH, JJ., and MOORE, Chief Judge. HEAVICAN, C.J., and CONN OLLY and STACY, JJ., not participating.

OPINION

Page 339

[294 Neb. 494] Kelch, J.

INTRODUCTION

Lena Saylor (Lena) was found dead in her home on April 27, 1984. The State charged James M. Saylor (Saylor), Lena's grandson, with first degree murder, based upon evidence that Saylor had hired Michael Sapp to kill Lena. After a stipulated bench trial, the district court for Lancaster County found Saylor guilty of second degree murder and sentenced him to life in prison. This court affirmed on direct appeal. See State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). Now, 30 years later, Saylor appeals the district court's 2015 order that denied his motion for postconviction relief, following a limited evidentiary hearing. We reject Saylor's claims of, inter alia, ineffective assistance of counsel, prosecutorial misconduct, and prejudicial conduct by the trial judge, and we affirm.

BACKGROUND

Pretrial Proceedings

Sometime in 1984, the State charged Saylor with first degree murder. The original information is not in the record for this appeal. At that time, hiring the killing of another person was an aggravating factor supporting the death penalty. Neb. Rev. Stat. § 29-2523(1)(c) (Reissue 1979) (repealed 2015 Neb. Laws, L.B. 268, § 35).

Police had arrested Saylor in April 1984, immediately after he made tape-recorded statements about Lena's death to his friends David Timm and Jeffrey Menard. On July 12, 1984, Saylor filed a motion to dismiss, which was denied. On December 7, Saylor filed a motion to suppress the tape recordings. On February 6, 1985, the district court conducted a hearing on that motion. Patrick Healey and Susan Jacobs represented Saylor. Michael Heavican, the county attorney at that time, had declared a conflict because he anticipated [294 Neb. 495] that he may be called as a witness, and Terry Dougherty was appointed special prosecutor for the case.

While the motion to suppress was still under advisement, Dougherty proposed that the parties resolve the matter by agreement, and the parties negotiated. Ultimately, the parties agreed to a stipulated trial to allow Saylor to contest the district court's ruling on his motion to suppress. We recount additional details regarding the parties' negotiations in the analysis section below. On April 2, 1984, the district court denied the motion to suppress.

On April 5, 1985, Saylor waived his right to a jury trial. The district court confirmed that Saylor did so freely, voluntarily, and

Page 340

knowingly. Next, Dougherty summarized the parties' agreement for the record, which summary we quote in the analysis portion of this opinion. Saylor's counsel acknowledged that Dougherty had correctly described the agreement, and neither Saylor nor his counsel contradicted it.

Stipulated Bench Trial and Direct Appeal

On May 10, 1985, the State amended the charge to second degree murder. The district court advised Saylor that he had the right to be served with the amended copy of the information and to wait 24 hours before appearing for arraignment, and Saylor waived those rights. The district court proceeded with the arraignment, and Saylor pled not guilty to the amended charge. The district court then conducted the stipulated bench trial. We summarize those proceedings in part here and provide additional relevant details in other portions of this opinion.

The 20-page written stipulation, signed by Dougherty, Healey, and Saylor, set forth evidence that Saylor had hired Sapp to kill Lena. In that document, the parties stipulated that all items of evidence discussed and offered had an adequate chain of custody. Along with the written stipulation, the parties submitted other evidence by stipulation, including the tape [294 Neb. 496] recordings of the conversation between Saylor, Timm, and Menard in April 1984. Saylor's counsel renewed his motion to suppress, which the district court again overruled.

Healey argued to the district court that the matter was submitted with stipulated facts, but that this left " to the court the question of whether the stipulated matter proves [Saylor's] guilt and if so, what offense."

On May 20, 1985, the district court found Saylor guilty of second degree murder. Saylor filed a motion for new trial. On August 7, the district court overruled Saylor's motion for new trial and sentenced him to life in prison.

On direct appeal to this court, Saylor claimed that the district court erred in overruling his motion to suppress the recorded conversation. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986). Healey and Jacobs represented Saylor on appeal. This court described the recordings as including " incriminating" and " inculpatory" statements in which Saylor " indicated that he had hired someone to kill his grandmother." See id. at 697, 392 N.W.2d at 792. We affirmed.

Postconviction Proceedings

On August 22, 2012, Saylor filed a pro se motion for postconviction relief; his new counsel filed a lengthy amended motion for postconviction relief on February 7, 2013.

The district court granted an evidentiary hearing, but limited its scope to ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and prejudicial conduct of the trial judge. Saylor's remaining claims were not permitted to proceed to the evidentiary hearing. The district court specifically noted that Saylor had addressed the ruling on the motion to suppress on direct appeal and could not relitigate it.

Sometime prior to November 20, 2014, Saylor gave notice of his intent to call an attorney to give expert testimony at the evidentiary hearing regarding whether Saylor's trial counsel's performance was deficient and whether Saylor was prejudiced by such alleged deficiencies. The State responded [294 Neb. 497] with a motion to preclude the attorney's testimony. After reviewing the attorney's proposed testimony, the district court precluded it, finding that it would not have assisted the trier of fact in understanding the evidence or determining a factual issue.

Page 341

The district court conducted the evidentiary hearing on December 1 through 4, 2014, and January 6, February 17, and March 11, 2015.

Saylor offered the clerk's transcript from the stipulated bench trial, which the district court received. The record contains a photocopy of the front page of the clerk's transcript, with a notation that the original would be furnished by the reporter upon request. The remainder of the clerk's transcript is not in the record.

Saylor testified that immediately before he entered his jury waiver, Healey had advised him that the stipulated trial format was the best way to resolve the matter because Saylor could try the case and " not be found guilty of anything more than second degree and would not receive the death sentence." Saylor said he understood that Healey would be able to include facts in the stipulation that challenged the State's case. Saylor denied that either of his attorneys informed him that he could withdraw his jury waiver if the parties could not agree on the stipulation.

According to Saylor, between the jury waiver and the stipulated trial, his counsel did not discuss the contents of the stipulation with him. Saylor further testified that he did not see any written version of the stipulation until immediately before the stipulated bench trial and that he had less than 10 minutes to review it. Saylor denied understanding the stipulation because it was " very, very complicated."

Dougherty testified that he waited to amend the charge until after Saylor had waived the jury trial because he did not want Saylor to receive the benefit of the bargain until after the parties had agreed on the stipulated facts and submitted them to the district court. Dougherty testified that had the parties not [294 Neb. 498] reached such agreement, he would have joined in Saylor's request to withdraw his jury waiver.

Healey, who acted as lead defense counsel, had died before the postconviction proceedings. Cocounsel Jacobs testified that defense counsel would have requested a jury trial if Saylor had requested it at any time after waiving the jury trial and before the verdict. She denied that Saylor ever told her he did not want to enter into the stipulation. She admitted that she did not recall many things about Saylor's case, but she testified that if he had indicated that he did not want to enter into the stipulation, she thought she would remember, because " [t]hat's critical." Jacobs testified that had she believed the stipulation contained a material misrepresentation, she would have informed the district court, but that she did not. Jacobs did not recall requesting any discovery documents from the prosecution that Saylor's counsel did not receive.

Jacobs testified that the possibility of the death penalty in Saylor's case " always loomed large" and that Saylor's recorded statements to Timm and Menard would be very persuasive evidence of Saylor's guilt in the event of a trial and would likely have been admitted. Saylor admitted that he expressed concern about the death penalty to Healey and Jacobs and that...

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9 practice notes
  • State v. Rivera, 031417 NECA, A-16-255
    • United States
    • Nebraska Court of Appeals of Nebraska
    • March 14, 2017
    ...the witnesses . . . reweigh the evidence presented, which are within a fact finder's province for disposition. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016). As such, factual findings will not be disturbed on appeal absent clear error. State v. Hill, supra. H......
  • In re Trust Created By Turner, 061819 NECA, A-18-288
    • United States
    • Nebraska Court of Appeals of Nebraska
    • June 18, 2019
    ...797, 749 N.W.2d 873 (2008). Evidence which is not made part of the bill of exceptions may not be considered. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016). Further, Neb. Ct. R. Disc. § 6-335 provides: When the mental or physical condition . . . of a part......
  • __ U.S. __ (2017), 16-1521, Saylor v. Nebraska
    • United States
    • Federal Cases United States Supreme Court
    • October 2, 2017
    ...3137, 86 U.S.L.W. 3150 James M. SAYLOR, petitioner, v. NEBRASKA. No. 16-1521 United States Supreme Court October 2, 2017 Case below, 294 Neb. 492, 883 N.W.2d OPINION Petition for writ of certiorari to the Supreme Court of Nebraska denied. ...
  • __ U.S. __ (2017), 16-1521, Saylor v. Nebraska
    • United States
    • Federal Cases United States Supreme Court
    • October 2, 2017
    ...3137, 86 U.S.L.W. 3150 James M. SAYLOR, petitioner, v. NEBRASKA. No. 16-1521 United States Supreme Court October 2, 2017 Case below, 294 Neb. 492, 883 N.W.2d OPINION Petition for writ of certiorari to the Supreme Court of Nebraska denied. ...
  • Free signup to view additional results
9 cases
  • State v. Rivera, 031417 NECA, A-16-255
    • United States
    • Nebraska Court of Appeals of Nebraska
    • March 14, 2017
    ...the witnesses . . . reweigh the evidence presented, which are within a fact finder's province for disposition. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016). As such, factual findings will not be disturbed on appeal absent clear error. State v. Hill, supra. H......
  • In re Trust Created By Turner, 061819 NECA, A-18-288
    • United States
    • Nebraska Court of Appeals of Nebraska
    • June 18, 2019
    ...797, 749 N.W.2d 873 (2008). Evidence which is not made part of the bill of exceptions may not be considered. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016). Further, Neb. Ct. R. Disc. § 6-335 provides: When the mental or physical condition . . . of a part......
  • __ U.S. __ (2017), 16-1521, Saylor v. Nebraska
    • United States
    • Federal Cases United States Supreme Court
    • October 2, 2017
    ...3137, 86 U.S.L.W. 3150 James M. SAYLOR, petitioner, v. NEBRASKA. No. 16-1521 United States Supreme Court October 2, 2017 Case below, 294 Neb. 492, 883 N.W.2d OPINION Petition for writ of certiorari to the Supreme Court of Nebraska denied. ...
  • __ U.S. __ (2017), 16-1521, Saylor v. Nebraska
    • United States
    • Federal Cases United States Supreme Court
    • October 2, 2017
    ...3137, 86 U.S.L.W. 3150 James M. SAYLOR, petitioner, v. NEBRASKA. No. 16-1521 United States Supreme Court October 2, 2017 Case below, 294 Neb. 492, 883 N.W.2d OPINION Petition for writ of certiorari to the Supreme Court of Nebraska denied. ...
  • Free signup to view additional results