State v. Britt

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; GRANT
• Citation: State v. Britt, 237 Neb. 163, 465 N.W.2d 466 (Neb. 1991)
• Decision Date: 01 February 1991
• Docket Number: No. 89-1170,89-1170
• Parties: STATE of Nebraska, Appellee, v. Kim M. BRITT, Appellant.

Page 466

465 N.W.2d 466

237 Neb. 163

STATE of Nebraska, Appellee, v. Kim M. BRITT, Appellant.

No. 89-1170.

Supreme Court of Nebraska.

Feb. 1, 1991.

Syllabus by the Court

1. Postconviction: Effectiveness of Counsel: Proof. In a postconviction action seeking relief on the basis of ineffective assistance of counsel, either at trial or on appeal, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

2. Postconviction: Effectiveness of Counsel: Proof. When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

3. Trial: Effectiveness of Counsel: Witnesses. The decision to call or not to call witnesses, made by counsel as a matter of trial strategy, will not, without more, sustain a finding of ineffectiveness of counsel.

Mark A. Weber, of Sherrets & Smith, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Denise E. Frost, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This is a postconviction action filed pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989). Defendant was convicted, after a jury trial, of the crimes of possession with the intent to deliver heroin and possession with the intent to deliver marijuana. His convictions were affirmed in this court on his direct appeal. See State v. Britt, 228 Neb. 201, 421 N.W.2d 791 (1988). On August 16, 1988, defendant, pro se, filed a motion to vacate and set aside his conviction. On March 28, 1989, an amended motion for postconviction relief was filed by an attorney appointed by the trial court to represent defendant. Both motions alleged that defendant had been denied effective assistance of counsel.

A hearing was held on defendant's amended motion. On August 9, 1989, an order was entered generally denying defendant's motion for postconviction relief, but granting defendant an additional 58 days of credit for time served, because improper credit was inadvertently granted at the time of sentencing.

Defendant timely appealed to this court, and a different attorney was appointed to represent defendant on his appeal to this court for postconviction relief. In this court, defendant assigns three errors, which may be consolidated into two as follows: The trial court erred in finding that defendant was not deprived of effective assistance of counsel (1) at trial and (2) on defendant's original appeal to this court. We affirm.

The underlying facts are set out in the case deciding defendant's original appeal to this court. See State v. Britt, supra. The bill of exceptions was made an exhibit in this postconviction case, and further factual references are made in this opinion.

The substantive and procedural law controlling this appeal is settled. A defendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the trial court will not be disturbed unless they are clearly erroneous. State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990); State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990).

In a postconviction action seeking relief on the basis of ineffective assistance of counsel, either at trial or on appeal, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Joubert, supra.

The standard of review on a claim of ineffective assistance of counsel is set out in State v. El-Tabech, 234 Neb. 831, 833-34, 453 N.W.2d 91, 94 (1990), quoting from State v. Jones, 231 Neb. 110, 435 N.W.2d 650 (1989):

" ' " 'When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.' " ' " ...

... " '[T]o sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. 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 defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.' "

Defendant contends his trial counsel erred during the trial and his appellate counsel erred on his original appeal in a total of eight respects. First, defendant alleges that his trial court counsel erred in failing to call seven witnesses, identified in defendant's testimony at the postconviction hearing. According to affidavits signed by the prospective witnesses and produced by defendant, four of these witnesses would have testified to the fact that defendant "got drugs from Gorum in the past," and one, Shelia Lee, the mother of defendant's child, would have testified that "on different ocassions [sic] Donald Gorum brought drugs for Kim [defendant] and picked-up money from Kim" and that "Kim sold drugs for Donald Gorum." The other two witnesses had no testimony of consequence. Of the seven witnesses, one had at least four prior felony convictions, one had three, and two had one. How these witnesses would have aided defendant at trial is not known to this court.

We have stated that the decision to call or not to call witnesses, made by counsel as a matter of trial strategy, will not, without more, sustain a finding of ineffectiveness of counsel. State v. El-Tabech, supra; State v. Jones, supra. In the case before us, the decision of defendant's counsel not to call such witnesses cannot be said to be the basis for a charge of ineffective counsel. Defendant's contention in this regard is without merit.

Defendant's second contention is that defendant's trial counsel failed "to object to the marijuana that was seized in the residence...." Brief for appellant at 4. An objection to such evidence would not have been sustained. There was evidence from a witness, Donald Gorum, that defendant was staying at the residence in question at the time of his arrest. Defendant did not testify, but produced two witnesses that testified that he did not live at the residence in question when the marijuana was seized. There was a factual question on this issue, and defendant's counsel presented witnesses in support of defendant's position that he did not live in the residence where the marijuana was seized.

Gorum also testified that defendant had possession of a certain canister which contained small bags of marijuana and that defendant had been in possession of the contents, both at the residence where marijuana was seized in this case and at another residence. Any objection would have been overruled, and the objection would only have highlighted evidence...