State v. Glass
| Decision Date | 05 January 2018 |
| Docket Number | No. S-16-861.,S-16-861. |
| Citation | 298 Neb. 598,905 N.W.2d 265 |
| Parties | STATE of Nebraska, appellee, v. Greg A. GLASS, appellant. |
| Court | Nebraska Supreme Court |
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
In 1999, following a jury trial, Greg A. Glass was convicted of second degree murder and use of a firearm to commit a felony. Glass appeals the August 25 and 30, 2016, orders of the district court for Douglas County, in which the court denied his amended and supplemental motions for postconviction relief after holding an evidentiary hearing. The evidence received at the hearing pertained to Glass' claims relating to jury instructions at his trial and to his allegations that he had received ineffective assistance of trial and appellate counsel. Glass appeals, repeating his claim that the jury instructions given in his case denied him due process and did not comply with this court's holdings in State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011) ( State v. Ronald Smith ), which he contends applies retroactively to his case on collateral review. He also claims that the district court erred when it rejected his ineffective assistance of counsel claims. We find no error and affirm.
In 1999, Glass was convicted of second degree murder and use of a firearm to commit a felony. The charges arose from the July 1998 shooting death of Glass' former employer, Adolph Fentress, Sr. Fentress was shot in the head while working at an automobile detailing shop, Downtown Auto Sales (Downtown Auto), which he co-owned. The facts for which we find support in the record are set forth in the memorandum opinion of the Nebraska Court of Appeals rejecting Glass' arguments on direct appeal. See State v. Glass, No. A-99-919, 2000 WL 944020 (Neb. App. July 11, 2000) ().
At trial, Glass testified in his own defense. According to his testimony, he worked for Downtown Auto earlier in the year but had quit. Glass claimed Fentress owed him money, and he had tried to collect it on several occasions. According to Glass, at one point when he tried to collect his money, Fentress threatened him with a tire iron and told him to stay away from Downtown Auto.
Glass testified that on July 2, 1998, he had come to Downtown Auto again to collect his money, because Fentress had agreed to meet him. Glass testified that he brought a gun to protect himself because of the previous threatening encounters with Fentress. After they met, Glass and Fentress began arguing, and then Glass believed Fentress picked up a weapon. Glass testified that he retreated to the door area of the office and that Fentress came at him. According to Glass, he raised his gun and shot Fentress in self-defense. He testified that he then panicked and drove off in a red BMW from the lot.
Several eyewitnesses testified for the prosecution, including Downtown Auto employee Deon Marion. Marion testified that on the day of Fentress' death, he was working in the parking lot outside and noticed a person whom he later identified as Glass standing near the Downtown Auto building. Marion witnessed Glass call out to Fentress. Marion observed an expression from Fentress that communicated that something was wrong. Marion went into the office and called the police. The sound of a gunshot was picked up in the recording of that telephone call.
Another eyewitness was Adolph Fentress, Jr. (Adolph), the teenage son of Fentress. Adolph testified that he observed an argument between Fentress and Glass. Adolph said that Fentress appeared to have something behind his back and overheard Glass say, "drop it." Adolph observed something under Glass' shirt, and saw Glass move toward the office, followed by Fentress. Adolph testified that Glass pulled out a gun and shot Fentress. He next observed Glass go through Fentress' pockets, remove a wallet and keys, and drive away in a red BMW that their shop had serviced. Glass was later found in the red BMW. When police arrived and processed the scene, they found Fentress' deceased body on the floor of the shop and found a tire iron next to his body.
The jury found Glass guilty of second degree murder and use of a firearm to commit a felony, and not guilty of theft by unlawful taking.
Glass filed a pro se motion for postconviction relief on August 23, 2012. Among the claims set forth in the motion was a claim that trial counsel provided ineffective assistance when counsel failed to object to the "malice" definition in the jury instructions. The district court appointed counsel for Glass' postconviction proceeding. Glass then amended the motion for postconviction relief and claimed he was denied due process based on jury instructions which did not require the jury to consider manslaughter, that is, whether the killing was intentional, but provoked by a sudden quarrel, before convicting Glass of second degree murder. Glass also alleged ineffectiveness of trial and appellate counsel.
Glass argued that the instruction given in his case did not comply with our holdings in State v. Ronald Smith and State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013). He claimed ineffective assistance of trial counsel in three respects: failing to call witnesses who would have testified to the victim's violent and aggressive character; failing to relay a plea offer in advance of trial; and failing to obtain an expert ballistics witness who could have testified about the range of the gunshot, the path of the gunshot, or any other matters that may have aided Glass in his self-defense claim. Finally, Glass claimed that his separate appellate counsel, who was different from his trial counsel, was ineffective on direct appeal for failing to allege the foregoing claims against trial counsel.
A hearing was conducted, at which the court received evidence, including testimony from Glass and exhibits including depositions of trial and appellate counsel. In an August 25, 2016, order, the court overruled Glass' amended motion for postconviction relief. With regard to the claim regarding jury instructions on second degree murder and manslaughter, the court reasoned that the claim was procedurally barred because Glass failed to raise it on direct appeal. Alternatively, the court rejected the claim because the rule stated in State v. Ronald Smith, upon which Glass relied, was not a new constitutional rule that required retroactive application, but was a new criminal rule which would not be retroactively applied to cases that were final and which were not pending on direct appeal when State v. Ronald Smith was decided. The district court also concluded that the "step instruction" under which the jury first considered second degree murder before considering manslaughter to which Glass now objects was settled law at the time of the 1999 trial.
With regard to each of Glass' ineffective assistance of counsel claims, the court determined that there was no prejudicial error by trial counsel for failing to call a witness familiar with Fentress' aggressive character, failing to call an expert to address ballistic and autopsy findings, and failing to relay a plea offer. With regard to the failure to call a witness familiar with Fentress' character, the court noted that two witnesses testified about the behavior of Glass and Fentress prior to the shooting and that the additional witness was not involved in the incident giving rise to the case and would not have changed the jury's perception of events. With regard to the decision not to call a forensic expert to reexamine the findings of the State's expert regarding the gunshot wound, weapon used, autopsy report, and other forensic results, the court noted that Glass' only argument for why it might be necessary was because the entrance wound was somewhat irregular. Glass did not demonstrate how a different interpretation of the evidence would affect the outcome of the case. With regard to the claim that trial counsel failed to communicate a plea offer, the court found that the evidence refuted the suggestion that a plea deal was offered by the State.
Because the court found no prejudicial error by trial counsel in connection with any of the claims, it found no prejudicial error when Glass' appellate attorney did not raise the same issues on direct appeal.
In an August 30, 2016, order, the district court also overruled a supplemental pro se postconviction motion filed by Glass. This supplemental motion alleged that the jury was incorrectly instructed at trial on second degree murder and manslaughter. The district court rejected this claim.
This appeal followed.
Glass claims that the district court erred when it rejected his postconviction allegations that his due process rights to a fair trial and impartial jury were violated by the jury instructions given at his 1999 trial and that he was prejudiced by the deficient performance of his trial and appellate counsel regarding his convictions for second degree murder and use of a firearm to commit a felony.
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's findings unless they are clearly erroneous. In contrast, an appellate court independently resolves questions of law. See State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test...
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