State v. Clausen

Decision Date27 January 1995
Docket NumberNo. S-94-299,S-94-299
Citation527 N.W.2d 609,247 Neb. 309
PartiesSTATE of Nebraska, Appellee, v. Timothy J. CLAUSEN, also known as Timothy L. Clausen, also known as Timothy Clausen, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. 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 conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

2. Trial: Evidence: Testimony. Generally, evidence of the attempt of third persons to suppress testimony is inadmissible against a defendant where the effort did not occur in his presence. However, if the defendant has authorized the attempt of the third person to suppress testimony, evidence of such conduct is admissible against the defendant.

3. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would cause a miscarriage of justice or damage the integrity, reputation, or fairness of the judicial process.

4. Effectiveness of Counsel: Proof. To prove ineffective assistance of counsel, a defendant must establish that his attorney failed to perform at least as well as a lawyer with ordinary training and experience in criminal law and must demonstrate how he was prejudiced in the defense of the case as a result of the attorney's actions or inactions.

Mark A. Weber, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.

Timothy J. Clausen, pro se.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, LANPHIER, and WRIGHT, JJ., and GRANT, J., Retired, and NORTON, D.J., Retired.

WRIGHT, Justice.

Timothy J. Clausen appeals his convictions for first degree murder, use of a firearm in the commission of a felony, and possession of a firearm by a felon. A three-judge panel sentenced Clausen to life imprisonment for the murder conviction. He was also sentenced to concurrent terms of 10 to 12 years in prison for the firearm convictions. The sentences for the firearm convictions were ordered to be served consecutively to the life sentence.

SCOPE OF REVIEW

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 conviction, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994); State v. Reichert, 242 Neb. 33, 492 N.W.2d 874 (1992).

FACTS

The events which led to the conviction of Clausen for the death of Kenneth Dove began when Clausen and Kenneth Terrell met Dove and Helicia Hickerson outside a bar in Council Bluffs, Iowa, in the early morning hours of December 10, 1992. Clausen, who allegedly believed that Dove was a woman, invited Dove and Hickerson to Terrell's house. On the way to the house, Terrell told Clausen that Dove "looked like a fag."

After drinking and listening to music for a time, Clausen and Dove went into the west bedroom together and locked the door. After about 10 to 15 minutes, they came out and left the house, returning with additional beer and whiskey.

When Clausen and Dove returned, Clausen began flirting with Hickerson. Dove became upset and wanted to leave. Clausen then grabbed Dove by the hand and said that he wanted to talk to Dove, and the two went back into the bedroom. Once in the bedroom, Clausen and Dove engaged in what Clausen described as "safe sex." Clausen stated that he believed Dove was a woman until after they engaged in anal intercourse. When Clausen asked if Dove was a man acting like a woman, Dove said yes.

Clausen said he refused to engage in sexual intercourse a second time and began opening the bedroom door to leave. Clausen stated Dove attacked him with what Clausen originally thought was a razor. Clausen was cut from the temple, across his face, through his lip, and three times on the neck. Clausen testified that he attempted to take a gun away from Dove and that all the shots were fired as he and Dove struggled for control of the gun.

The autopsy revealed three wounds: a grazing bullet wound to the right lateral chest, a grazing bullet wound to the right arm, and an entrance gunshot wound to the top of the head. The pathologist testified that the arm and chest injuries could have been caused by a single bullet which was fired from a muzzle which was more than 8 inches from the wounds. The pathologist also stated that the angle of the bullet which caused the head wound was straight down from the top to the bottom of the skull and that the blood spatter patterns on the wall were consistent with Dove's having been seated against the wall and "shot from the top of the head."

Terrell's testimony concerning the incident was inconsistent. At the preliminary hearing, Terrell claimed that he heard two gunshots, pushed open the bedroom door, and saw Dove and Clausen struggling over a gun. At trial, Terrell recanted and said he had not entered the bedroom until after the struggle was over. Terrell stated that after Clausen and Dove went into the bedroom, he heard a scuffle, which lasted about 3 minutes, and then heard gunshots. Terrell went to the bedroom and found it locked. When the gunfire stopped, the door was opened from the inside. Terrell observed that Clausen was holding a rag to his face, which was bleeding. Clausen had a gun in his hand, and Dove was slumped against a wall. Terrell checked Dove and found no pulse. On direct examination, Terrell explained the recantation by stating that Julianne Dunn, Clausen's attorney at the preliminary hearing, had asked Terrell if he would lie for Clausen. Terrell told Dunn that he would lie if he had to. He said Dunn told him he might have to lie.

Dunn testified that she had never directed or asked Terrell to lie for Clausen and that just prior to the preliminary hearing, she had talked to Terrell, but he had declined to provide her with details of his discussion with the prosecuting attorney. She said that Terrell told her that he would not say anything which could hurt "TJ," which she interpreted to mean Clausen. The State called Officer Felands Marion, who testified that he had heard Dunn ask Terrell whether he knew what to say and that he saw Terrell nod affirmatively in response to the question before Terrell entered the courtroom.

ASSIGNMENTS OF ERROR

Clausen makes three assignments of error: (1) The trial court committed plain error in allowing into evidence testimony relating to Dunn's alleged attempts to influence Terrell to testify falsely, without presentation of any evidence tending to show that Clausen governed Dunn's actions; (2) the trial court committed plain error in accepting the jury's verdict, as the circumstantial evidence was insufficient to support a finding of guilt on the charge of first degree murder; and (3) Clausen's Sixth Amendment rights were violated at trial in that his trial counsel's performance fell below the standard of a lawyer with ordinary training and skill in the defense of a criminal case, but for which there is a reasonable probability that the result of the proceedings would have been different.

ANALYSIS

We begin by addressing Clausen's first and third assignments of error, which are interrelated. Three attorneys have represented Clausen in this matter: Dunn, who was Clausen's counsel at the preliminary hearing; trial counsel; and counsel on appeal. Clausen asserts on appeal that the trial court erred in allowing Dunn and Terrell to testify regarding Dunn's alleged attempt to influence Terrell's testimony and that trial counsel's failure to object to this testimony resulted in ineffective assistance of counsel, which violated Clausen's Sixth Amendment rights.

Clausen's trial counsel failed to object to the State's examination of Terrell regarding Dunn's alleged attempt to suborn perjury:

Q. And did you tell the truth when you testified at the preliminary hearing?

A. No, I didn't.

Q. You lied about opening the door and seeing a struggle of some kind?

A. Right.

Q. Okay. That didn't happen?

A. No, it didn't.

Q. Between the time this happened and the time that--the preliminary hearing, did you talk to Mr. Clausen at all?

A. Yes, I did. I had talked to him a few times on the phone.

Q. How many times?

A. Maybe five or six.

Q. Okay. When you got to the preliminary hearing, was he represented by another lawyer?

A. Yes, he was.

Q. Were you told by that lawyer it was okay to lie about what happened?

A. She didn't tell me it was okay to lie but she asked me would I lie.

Q. What did you say?

A. I told her if I had to.

Q. What did she say?

A. She said I might have to.

Q. And after that you lied at the preliminary hearing, didn't you?

A. Yes.

Clausen's trial counsel was ineffective because he failed to object to this testimony, and he exacerbated the error when he proceeded to have Terrell repeat the testimony on cross-examination.

Q. You're telling this jury that some lawyer here in town told you that you're going to have to lie on a first degree murder case? Is that what you're telling us?

A. No. She asked me would I lie.

Q. And you said?

A. If I had to.

Q. So she's condoning you getting up and lying at a preliminary hearing, is that what's going on?

A. That's what she told me.

Up to this point in the trial, the State had not established...

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18 cases
  • State v. Williams
    • United States
    • Nebraska Supreme Court
    • May 5, 1995
    ...case as a result of his attorney's actions or inactions. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). See State v. Clausen, 247 Neb. 309, 527 N.W.2d 609 (1995). The first prong in determining the propriety of Williams' claim is whether the trial attorney, in representing the defen......
  • State v. Ryan
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    • Nebraska Supreme Court
    • July 21, 1995
    ...probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Clausen, 247 Neb. 309, 527 N.W.2d 609 (1995). II. The sordid facts of this case are fully set forth in this court's opinion rendered as a result of Ryan's direct appeal......
  • State v. Sanchez
    • United States
    • Washington Court of Appeals
    • October 30, 2012
    ...is insufficient to use a third party's efforts to tamper with witnesses as evidence of an accused's guilt"); cf. State v. Clausen, 247 Neb. 309, 527 N.W.2d 609, 614 (1995) (it was ineffective assistance for defense counsel to fail to object to evidence that he had attempted to suborn perjur......
  • State v. SanChez
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    • Washington Court of Appeals
    • January 28, 2013
    ...is insufficient to use a third party's efforts to tamper with witnesses as evidence of an accused's guilt”); cf. State v. Clausen, 247 Neb. 309, 527 N.W.2d 609, 614 (1995) (it was ineffective assistance for defense counsel to fail to object to evidence that he had attempted to suborn perjur......
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