State v. Boppre

• Decision Date: 01 August 1997
• Docket Number: No. S-96-309,S-96-309
• Parties: STATE of Nebraska, Appellee, v. Jeff BOPPRE, Appellant.
• Court: Nebraska Supreme Court

Page 149

567 N.W.2d 149

252 Neb. 935

STATE of Nebraska, Appellee, v. Jeff BOPPRE, Appellant.

No. S-96-309.

Supreme Court of Nebraska.

Aug. 1, 1997.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. A criminal defendant requesting postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

2. Postconviction: Right to Counsel: Appeal and Error. Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion.

3. Postconviction: Proof. A defendant moving for postconviction relief must 4. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.

5. Effectiveness of Counsel: Proof. The two prongs of the test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.

6. Postconviction: Proof: Appeal and Error. The appellant in a postconviction proceeding has the burden of alleging and proving that the claimed error is prejudicial.

7. Postconviction: Judgments: Proof: Appeal and Error. A court making the prejudice inquiry in a postconviction proceeding must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

8. Postconviction: Effectiveness of Counsel: Proof. The "prejudice" component of the test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

9. Postconviction: Proof. 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.

10. Postconviction. A court is not required to grant an evidentiary hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidentiary hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleadings of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable.

11. Postconviction: Right to Counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant.

12. Postconviction: Right to Counsel. Where the defendant's petition presents a justiciable issue to the district court for postconviction determination, an indigent defendant is entitled to the appointment of counsel.

13. Postconviction: Right to Counsel: Appeal and Error. Where the assigned errors in the postconviction petition before the district court are either procedurally barred or without merit, establishing that the postconviction action contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint appellate counsel for an indigent defendant.

14. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

Lawrence G. Whelan, Omaha, for Appellant.

Don Stenberg, Attorney General, and Mark D. Starr for Appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and BURKHARD and CASSEL, District Judges.

GERRARD, Justice.

INTRODUCTION

On March 13, 1989, the defendant-appellant, Jeff Boppre, was convicted, inter alia, of two counts of first degree murder for the deaths of Richard Valdez and Sharon Condon. On August 17, 1995, Boppre filed an initial motion for postconviction relief. Thereafter, on January 25, 1996, Boppre filed a second amended motion for postconviction relief, which hereinafter will be referred to as "the motion for postconviction relief." The district court overruled this motion without an evidentiary hearing. Boppre's motion for appointment of counsel for appeal of the ruling on the motion for postconviction relief was also denied. It is from these orders that Boppre timely appeals and argues, for a third time in this court, that he should be granted a new trial. Because we determine that the district court did not err in any respect, we affirm.

FACTUAL BACKGROUND

Pursuant to verdicts, Boppre was adjudged guilty of two charges of first degree murder in violation of Neb.Rev.Stat. § 28-303 (Reissue 1995), two charges of robbery in violation of Neb.Rev.Stat. § 28-324(1) (Reissue 1995), and two charges of using a firearm to commit a felony in violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1989). These charges arose out of the murders of Valdez and Condon on September 20, 1988. Boppre was sentenced to consecutive life terms of imprisonment on the murder convictions; to concurrent terms of 8 to 15 years' imprisonment on the robbery convictions; and to 6 2/3 to 20 years' imprisonment on each of the use of a firearm convictions, to be served consecutively to the other sentences. Boppre's direct appeal was heard by this court, and his convictions were affirmed in State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990) (Boppre I ). Boppre then appealed from the district court's denial of a later motion for new trial on the basis of newly discovered evidence. We affirmed the denial of that motion in State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993) (Boppre II ).

The facts underlying Boppre's convictions as adduced at trial are contained in Boppre I and are not repeated herein, except as otherwise indicated. Two key witnesses against Boppre were Alan Niemann and Kenard Wasmer, who testified as to the events of the night of September 20, 1988, and who accompanied Boppre to Arizona following the murders. Niemann testified that he was present at the Valdez residence at the time Boppre murdered Valdez and Condon. Wasmer also testified against Boppre. However, Wasmer maintained that he had not been present at the Valdez residence on the night of the murders.

Boppre filed a motion for postconviction relief in the instant cause, and, upon request, counsel was appointed to represent him on this motion in district court. In his motion for postconviction relief, Boppre alleged that he was denied effective assistance of counsel at trial because his trial counsel failed to develop the theory that it was Wasmer who murdered Valdez and Condon, as indicated by a pair of blue jeans that contained Condon's blood and enzyme type that were found in the trailer shared by Niemann and Wasmer and which fit the body structure of Wasmer. Boppre urges that this evidence places Wasmer at the scene, even though Wasmer claimed not to have been there. In addition, Boppre alleges that trial counsel failed to adequately examine and have tested grease stains found on the jeans to determine whether they matched the grease in which Valdez' alleged dying declaration was written. Accordingly, Boppre alleges that his trial counsel failed to adequately cross-examine witnesses, specifically Wasmer and Niemann, as to the stained jeans.

Boppre's motion was supported by the affidavit of Boppre's trial counsel, Leonard Tabor. Tabor's affidavit states that he remembers viewing the jeans during discovery and that he knew the jeans were found in the Wasmer/Niemann trailer, but that he was only recently informed that the jeans would have potentially fit the body structure of Wasmer rather than that of Boppre or Niemann. The affidavit states that until Tabor became aware that the jeans would potentially fit Wasmer, rather than Boppre or The district court denied Boppre's motion for postconviction relief without an evidentiary hearing. The district court found that trial counsel did pursue other theories of defense, including that either Wasmer or Niemann was the killer. In addition, the district court denied Boppre's motion for appointment of counsel to represent him in the appeal of this ruling. Boppre appeals both the denial of the postconviction motion without an evidentiary hearing and the denial of appointed counsel for the appeal.

Niemann, Tabor had not made the connection between the jeans and Condon's blood type. The affidavit states further that had Tabor made these connections, he would have used the evidence at trial to cross-examine Wasmer and Niemann and that his failure to do so was not part of his strategy at trial.

SCOPE OF REVIEW

A criminal defendant requesting postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Massey, 252 Neb. 426, 562 N.W.2d 542 (1997); State v. Randall, 249 Neb. 718, 545 N.W.2d 94 (1996).

Failure to appoint counsel in postconviction proceedings is not error in the absence...