State v. Broomhall

• Decision Date: 08 January 1988
• Docket Number: No. 87-045,87-045
• Citation: 417 N.W.2d 349,227 Neb. 341
• Parties: STATE of Nebraska, Appellee, v. David E. BROOMHALL, Appellant.
• Court: Nebraska Supreme Court

Page 349

417 N.W.2d 349

227 Neb. 341

STATE of Nebraska, Appellee, v.David E. BROOMHALL, Appellant.

No. 87-045.

Supreme Court of Nebraska.

Jan. 8, 1988.

Syllabus by the Court

1.Trial: Effectiveness of Counsel: Witnesses.The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves ineffective, will not, without more, sustain a finding of ineffectiveness of counsel.

2.Postconviction: Appeal and Error.The findings of the trial court in a proceeding for postconviction relief will be upheld on appeal unless clearly erroneous.

3.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.

4.Postconviction: Effectiveness of Counsel: Proof.A defendant seeking reversal of a conviction on the basis that counsel's assistance was deficient must establish a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different; a reasonable probability consists of a probability sufficient to undermine confidence in the outcome.

5.Motions for Continuance: Appeal and Error.In the absence of a showing of due diligence by the moving party, a ruling by the trial court in overruling a motion for a continuance in order to obtain additional evidence will not be disturbed.

Donald W. Kleine of Kleine Law Office, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

HASTINGS, Chief Judge.

Defendant has appealed from an order of the district court which denied his motion for postconviction relief.Errors assigned include denial of defendant's claims of ineffective assistance of counsel due to failure to call a key witness and failure to fully investigate and present all possible defenses during the course of his trial.

The trial judge drafted a comprehensive and analytical order which systematically answered each of the defendant's contentions set out in his motion.As to defendant's claims of ineffective assistance of counsel relating to the investigation and presentation of facts and defenses, suffice it to say that we agree with the trial court that they are wholly without merit.We find it unnecessary to set forth repetitiously, for approval, those specific findings.Those claims of deficiency are swallowed up either because they did not exist or because they were the result of justifiable trial strategy.

"The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves ineffective, will not, without more, sustain a finding of ineffectiveness of counsel."State v. Fries, 224 Neb. 482, 485, 398 N.W.2d 702, 704(1987).The findings of the trial court in a proceeding for postconviction relief will be upheld on appeal unless clearly erroneous.State v. Rubek, 225 Neb. 477, 406 N.W.2d 130(1987).

Accordingly, we will discuss in any detail only the claim that counsel was ineffective in failing to call as a witness Dr. Charles Golden, a professor of medical psychology at the University of Nebraska Medical Center.In analyzing that contention, we are bound by the following rule, among others:

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.

State v. Rubek, supra at 479, 406 N.W.2d at 132.Also, a defendant seeking reversal of a conviction on the basis that counsel's assistance was deficient must establish a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different; a reasonable probability consists of a probability sufficient to undermine confidence in the outcome.State v. Peery, 223 Neb. 556, 391 N.W.2d 566(1986).

The basic facts in this case may be found in State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845(1985).The description and identification of the defendant as the victim's attacker was a critical element of this case.Her memory was strenuously challenged at trial, and her recall ability was undoubtedly an essential element in satisfying the requirement of guilt beyond a reasonable doubt.

The testimony of Dr. Golden, which was considered to be of such significance, was produced by testimony at the motion for a new trial.It was set out in substance in our opinion.

Based on that information [Dr. McKinney's deposition] and his own training and experience, Dr. Golden gave as his opinion that the type of injuries suffered by the victim would have resulted in memory impairment, a memory loss, and interference from the date of the accident to the time of trial in March and that it was likely that the victim was not working--testifying--from a true memory but on the basis of things that had happened after the accident.He further testified that it would have been difficult, if not impossible, for her to recall observations made by her on the day of the attack as to a description of the attacker.

Id. at 30, 374 N.W.2d at 847.

In denying defendant's claim of error because of the failure of the trial court to grant a continuance at the time of trial so as to allow defendant to obtain Dr. Golden's testimony, we concluded that in the absence of a showing of due diligence by the moving party, a ruling by the trial court in overruling a motion for a continuance in order to obtain additional evidence will not be disturbed.In reaching our conclusion, we conceded in our opinion that Dr. Golden's testimony would have been relevant to defendant's defense.The substance of defendant's argument is that if this court agreed that the missing evidence was relevant, but had suggested lack of diligence of counsel to obtain that evidence in a timely manner, that must constitute misconduct.

Defense counsel stated at the hearing on the motion for a new trial that he did not talk to Dr. Golden before trial.He said that he had never heard of him before he talked to his witness, Dr. Emmet Kenney, who told him there was not anything Dr. Kenney, as a psychiatrist, could do for the defendant; that counsel should go to Dr. Golden; and that Dr. Golden was the expert in this field in the whole nation.

This was further amplified during defense counsel's testimony on the motion for postconviction relief.Counsel stated that he never did have the victim evaluated as to her possible loss of memory.He suggested that this was due to the fact that he first needed to take the deposition of Dr. McKinney, who was the neurosurgeon who had treated the victim, and he was not able to do that until the Saturday prior to the Monday of the first day of the trial.He stated that he had asked the prosecuting attorney for Dr. McKinney's deposition at least a month prior to trial.A motion or request to take the deposition was never filed with the court.

In opposition to this testimony of defense counsel, the prosecuting attorney testified that a month or a month and a half before trial he had told defense counsel to let him know when counsel wanted to take Dr. McKinney's deposition, and he would set it up.The prosecutor further stated that no request was ever made to take that deposition until February 29, 5 days before the trial began on March 5, 1984.

It appears from the record that defense counsel had been in touch with Dr. Kenney, who was to be the expert witness for the defense, sometime before the deposition of Dr. McKinney was taken, because he"wanted him to review it and give us any input that he could relative to the victim's injuries and her ability and power to recollect, her ability and power to recall, her ability to--or the possibility of her being subject to the power of suggestion."According to defense counsel, when the deposition of Dr. McKinney was finally taken, it was discovered that the witness believed that the victim did have the power to recall on her own and that the injury would not inhibit her power to recollect and relate accurately.

It was apparent from the beginning that the victim had sustained severe head injuries and had difficulty in communicating or verbalizing the facts describing the events that had caused her injuries.The police officer, James Wilson, testified that in his investigation he would have to interview the victim by a series of leading questions.Defense counsel stated that he had talked to most of the police officers long before the trial.Therefore, he should have known of the results of their investigation regarding the condition of the victim.As a matter of fact, he testified at the postconviction hearing that at the time he received the police reports, early on in his representation of the defendant, he also received some medical reports and knew that the victim had sustained a severe head injury.He was also aware that one or more of the police officers believed at one time, at least, that someone was suggesting information to the victim that her injuries were caused by something other than a traffic accident, and that the...