State v. Armstrong, No. S–14–339

CourtSupreme Court of Nebraska
Writing for the CourtMcCormack, J.
Citation863 N.W.2d 449
PartiesState of Nebraska, appellant, v. Philip A. Armstrong, appellee.
Docket NumberNo. S–14–339
Decision Date29 May 2015

863 N.W.2d 449

State of Nebraska, appellant
v.
Philip A. Armstrong, appellee.

No. S–14–339

Supreme Court of Nebraska.

Filed May 29, 2015


Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellant.

Gregory A. Pivovar for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller–Lerman, JJ.

Syllabus by the Court

1. Postconviction: Evidence: Witnesses: Appeal and Error.In an evidentiary hearing, as a bench trial provided by Neb.Rev.Stat. § 29–3001 et seq. (Reissue 2008 & Cum.Supp. 2014) for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. In an appeal involving such a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous. In contrast, the appellate court independently resolves questions of law.

2. Postconviction: Effectiveness of Counsel.A postconviction claim that defense counsel provided ineffective assistance generally presents a mixed question of law and fact.

3. Effectiveness of Counsel: Proof.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 defend-ant's defense.

4. Effectiveness of Counsel.A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.

5. Effectiveness of Counsel.Counsel's failure to raise novel legal theories or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.

6. Effectiveness of Counsel: Conflict of Interest.The right to effective assistance of counsel entitles the accused to his or her counsel's undivided loyalties, free from conflicting interests.

7. Effectiveness of Counsel: Proof.To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

8. Proof: Words and Phrases.A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

9. Effectiveness of Counsel: Conflict of Interest: Presumptions: Proof.If the defendant shows that his or her defense counsel faced a situation in which conflicting loyalties pointed in opposite directions and that his or her counsel acted

863 N.W.2d 453

for the other client's interest and against the defendant's interests, prejudice is presumed.

10. Evidence: Witnesses: Corroboration.Evidence that provides corroborating support to one side's sole witness on a central and hotly contested factual issue cannot reasonably be described as cumulative.

McCormack, J.

I. NATURE OF CASE

The defendant was charged with sexual assault of two girls he babysat. It was revealed during trial that defense witnesses had viewed forensic interviews of the girls. The State believed this was a violation of the trial court's discovery order and the statute pertaining to victim interviews, Neb.Rev.Stat. § 29–1926(2)(a) and (b) (Reissue 2008). Although defense counsel was unfamiliar with the legal issues surrounding the alleged discovery violation, counsel entered into an agreement with the State to strike the entire testimony of one defense witness and to exclude any testimony from two other defense witnesses. The defendant was convicted. The postconviction court granted the defendant's motion for postconviction relief on the ground that he was deprived of effective assistance of trial counsel. We affirm.

II. BACKGROUND

Philip A. Armstrong and his wife lived next door to a family with three young children. The family had moved to the Armstrongs' neighborhood in Omaha, Nebraska, in June 2006. The family had twin daughters, M.G. and H.G., born in April 2000, and a younger son. The Armstrongs and their neighbors developed a close relationship. The neighbors' children would often run back and forth between the neighboring yards to visit or play with the Armstrongs.

The neighbors' three children required babysitting Wednesdays after school from approximately 2 until 4 p.m. The children's mother was a teacher at the school the children

attended. The children's original babysitter died of cancer during the spring of 2007. When their first babysitter died, the girls were in first grade and the boy was in preschool.

Armstrong's wife, who was at home due to a work-related injury, began babysitting the children in March 2007 and for the remainder of that school year. During that time, Armstrong was working full time. Armstrong's wife went back to work at a school lunchroom in the fall of 2007. Armstrong had since retired, and arrangements were made for him to pick the children up from school on Wednesdays and watch them until their mother could arrive. Armstrong also agreed to watch the children on Thursdays before school, from approximately 7 to 8:30 a.m.

In July 2008, the girls told their parents that Armstrong had been touching them inappropriately. After an investigation, Armstrong was charged with one count of first degree sexual assault of a child and two counts of third degree sexual assault of a child. Armstrong pled not guilty, and the case was tried before a jury. Armstrong

863 N.W.2d 454

was represented by counsel, who was assisted by cocounsel.

1. Trial

(a) Opening Statements

During opening statements to the jury, the State painted a picture of betrayal by a close family friend and neighbor. The State told the jury that the evidence would show how, during the time of the alleged abuse, the victims' behavior changed. They became angrier. Also, witnesses would show how the girls became increasingly reluctant to spend time with Armstrong.

Defense counsel told the jury in opening statements that defense witnesses would testify that the girls were always happy to spend time with Armstrong. In fact, they often did not want to leave when their mother arrived to pick them up. Defense counsel told the jury that they would hear from Armstrong's family. Defense counsel made specific reference to Armstrong's wife, his daughter, son-in-law, and granddaughter, although counsel did not directly state those persons would testify.

(b) Case in Chief

During the State's case in chief, several witnesses described the girls as being happy when they were in first grade. They loved school. They had adjusted quickly to their move and had made lots of friends.

The girls' parents and school staff described a change in the girls' behavior and mood as they proceeded along in second grade. The girls, especially H.G., seemed preoccupied, more emotional, angry, clingy, and withdrawn. All witnesses agreed that the girls' brother remained happy throughout this time.

H.G. began seeing the school counselor during second grade. The girls' parents explained that M.G. and H.G. had transitioned from a traditional classroom in first grade into a Montessori classroom in second grade. None of the girls' first grade friends or classmates were in the new second grade classroom. A teacher at the school and the principal both testified that this transition normally did not cause great distress. The principal had, in addition, observed that the girls seemed comfortable in their new Montessori classroom. Nonetheless, the girls' parents partially attributed H.G.'s change in behavior to this transition.

The parents also testified that from June 2006 through May 2008, the girls' father occasionally had to be out of town for his job. H.G. described her father as being “gone a lot” during second grade. The girls' father testified that when in town, he worked long hours. In October 2008, the father had to be out of town for a more extended period of time, but visited his family on the weekends.

Witnesses from school noticed a particular change in behavior with regard to the girls' being picked up on Wednesdays by Armstrong. The girls used to run out to meet Armstrong in the beginning of second grade. As the year progressed, the witnesses testified the girls were habitually lagging behind Armstrong when walking to his car. H.G., especially, seemed “sad.” The girls' brother continued to seem happy to go with Armstrong.

The girls' mother testified that when she arrived at the Armstrongs' home to pick the girls up, the girls were ready to

go home right away. Often they would go home before their mother was done visiting. The mother said that the girls...

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19 practice notes
  • State v. Britt, No. S-14-551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...858 (2014). 110. See id. 111. See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016). 112. See, id.; State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). 113. See Chapman v. California, supra note 107, 386 U.S. at 25. 114. State v. Esch, 290 Neb. 88, 858 N.W.2d 219...
  • State v. Britt, No. S–14–551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...N.W.2d 858 (2014).110 See id.111 See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).112 See, id. ; State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).113 See Chapman v. California, supra note 107, 386 U.S. at 25, 87 S.Ct. 824.114 State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015)....
  • State v. Malone, Nos. S-20-118
    • United States
    • Supreme Court of Nebraska
    • April 16, 2021
    ...note 48.50 Id. at 22, 880 N.W.2d at 655.51 Jackson , supra note 44.52 Id. at 442, 747 N.W.2d at 430.53 State v. Armstrong , 290 Neb. 991, 863 N.W.2d 449 (2015), disapproved on other grounds, Avina-Murillo , supra note 43.54 See id.55 Id. at 1016, 863 N.W.2d at 468.56 Avina-Murillo , supra n......
  • State v. Parnell, No. A-17-1147.
    • United States
    • Court of Appeals of Nebraska
    • October 16, 2018
    ...entitles the accused to his or her counsel's undivided loyalties, free from conflicting interests. State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). Whether a defendant's lawyer's representation violates a defendant's right to representation free from conflicts of interest is a mixed......
  • Request a trial to view additional results
19 cases
  • State v. Britt, No. S-14-551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...858 (2014). 110. See id. 111. See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016). 112. See, id.; State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). 113. See Chapman v. California, supra note 107, 386 U.S. at 25. 114. State v. Esch, 290 Neb. 88, 858 N.W.2d 219...
  • State v. Britt, No. S–14–551.
    • United States
    • Supreme Court of Nebraska
    • April 22, 2016
    ...N.W.2d 858 (2014).110 See id.111 See State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).112 See, id. ; State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).113 See Chapman v. California, supra note 107, 386 U.S. at 25, 87 S.Ct. 824.114 State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015)....
  • State v. Malone, Nos. S-20-118
    • United States
    • Supreme Court of Nebraska
    • April 16, 2021
    ...note 48.50 Id. at 22, 880 N.W.2d at 655.51 Jackson , supra note 44.52 Id. at 442, 747 N.W.2d at 430.53 State v. Armstrong , 290 Neb. 991, 863 N.W.2d 449 (2015), disapproved on other grounds, Avina-Murillo , supra note 43.54 See id.55 Id. at 1016, 863 N.W.2d at 468.56 Avina-Murillo , supra n......
  • State v. Parnell, No. A-17-1147.
    • United States
    • Court of Appeals of Nebraska
    • October 16, 2018
    ...entitles the accused to his or her counsel's undivided loyalties, free from conflicting interests. State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). Whether a defendant's lawyer's representation violates a defendant's right to representation free from conflicts of interest is a mixed......
  • Request a trial to view additional results

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