State v. Carter

• Decision Date: 02 October 1992
• Docket Number: No. S-90-416,S-90-416
• Citation: 241 Neb. 645,489 N.W.2d 846
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. George E. CARTER and Victor L. Carter, Appellants.

Page 846

489 N.W.2d 846

241 Neb. 645

STATE of Nebraska, Appellee, v. George E. CARTER and Victor L. Carter, Appellants.

No. S-90-416.

Supreme Court of Nebraska.

Oct. 2, 1992.

Syllabus by the Court

1. Postconviction. In a proceeding under the Nebraska Postconviction Act, Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989), the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void.

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

3. Postconviction: Evidence: Witnesses. The postconviction judge, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness.

4. Postconviction: Appeal and Error. A motion for postconviction relief may not be used as a substitute for an appeal or to receive a further review of issues already litigated.

5. Postconviction: Effectiveness of Counsel: Proof. When the defendant in a postconviction proceeding 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.

6. Constitutional Law: 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 thereby obtain reversal of a defendant's conviction, the defendant must show that counsel's performance was deficient and that such deficient performance prejudiced the defense.

7. Effectiveness of Counsel: Proof. A showing of prejudice to the defense requires a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

8. Effectiveness of Counsel: Words and Phrases. A reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome.

9. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous. In making this determination, this court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court observed the witnesses testifying in regard to such motion.

10. Constitutional Law: Identification Procedures: Due Process. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.

11. Constitutional Law: Identification Procedures: Due Process. The initial inquiry is whether an identification procedure was unduly suggestive. A determination of impermissible suggestiveness is based on the totality of the circumstances.

12. Trial: Identification Procedures: Evidence. Even if there have been impermissible pretrial suggestions as to an accused's identity, in-court identification may be received when it is independent of and untainted by the impermissible identification procedures.

13. Motions for Continuance. The denial of a request for a continuance is not an abuse of discretion unless it clearly appears that the movant will suffer prejudice as a result of the denial.

14. 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.

15. Trial: Evidence: Hearsay. Admission of hearsay testimony is harmless where the same fact is established by other admissible evidence.

16. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

17. Criminal Law: Aiding and Abetting: Intent: Liability. Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held criminally liable as a principal unless it is shown that the aider knew that the perpetrator of the act had the required intent, or that the aider himself possessed the required intent.

18. Criminal Law: Aiding and Abetting: Intent: Other Acts. One who intentionally aids and abets the commission of a crime may be responsible not only for the intended crime, if it is in fact committed but also for other crimes which are committed as a natural and probable consequence of the intended criminal act.

19. Criminal Law: Motions to Dismiss: Evidence. In determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that reasonably can be drawn from the evidence, and every controverted fact resolved in its favor.

20. Criminal Law: Directed Verdict. In a criminal case a trial court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) the evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.

Gregory M. Schatz, of Stave, Coffey, Swenson, Jansen & Schatz, P.C., Omaha, for appellants.

Don Stenberg, Atty. Gen., Donald A. Kohtz, and, on brief, Susan M. Ugai, Lincoln, for appellee.

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

PER CURIAM.

The defendants, George E. Carter and Victor L. Carter, were charged in separate informations with first degree murder and use of a firearm in the commission of a felony. The cases were consolidated for trial in 1986, and the jury returned verdicts of guilty in both cases. The defendants were sentenced to life imprisonment on the murder counts and to imprisonment for 10 years on the use of a firearm counts. The judgments were affirmed in State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987) (Carter I ).

On June 8, 1989, the defendants filed a joint motion for postconviction relief. After an evidential hearing, the trial court denied postconviction relief. From that judgment the defendants have appealed. The defendants contend that the trial court erred in failing to find that they are entitled to postconviction relief because of the changed testimony of the witness Gerald Kincaid and because they received ineffective assistance of counsel during their trial and original appeal.

"In a proceeding under the Nebraska Postconviction Act [Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989) ], the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void...."

State v. White, 238 Neb. 840, 845, 472 N.W.2d 720, 724 (1991), quoting State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988).

A defendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Blank, 239 Neb. 188, 474 N.W.2d 689 (1991); State v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991); State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991). Furthermore, it is the postconviction judge who, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness. State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990); State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283 (1990).

In their first assignment of error, the defendants claim that the trial court erred in failing to find that the credibility of Kincaid's trial testimony was so doubtful on its face that it deprived them of a fair trial. They base this claim on the fact that Kincaid changed his statement to police approximately 2 weeks prior to their original 1986 trial, see Carter I, and upon testimony at the hearing on the postconviction motion.

At the postconviction hearing, Dorothy Kincaid, Kincaid's mother, testified that within 6 months after the Carters' original trial, Kincaid told her that he had lied when he positively identified the Carters as the persons involved in the murder for which they were convicted. According to Dorothy Kincaid, Kincaid told her that he identified the Carters from the pictures which the prosecutor had shown him and that he did so because he thought that they were the murderers. Kincaid's father, Bernard Kincaid, testified that he was present when Kincaid made such statements to his mother.

Barbara Keithley testified at the postconviction hearing that she was a witness to the shooting and that the victim was shot by Kincaid. According to Keithley, Kincaid fired two shots from inside his house, and those were the only two shots which were fired. While Keithley testified that she could see that Kincaid fired the shots with a gun, she could not describe the gun and could not tell whether the gun was a handgun, a long-barreled rifle, or a shotgun. Keithley also testified that the shooting occurred between 12:30 and 1 a.m. on October 9, 1985.

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