State v. Dixon, 89-1334

• Decision Date: 22 March 1991
• Docket Number: No. 89-1334,89-1334
• Citation: 467 N.W.2d 397,237 Neb. 630
• Parties: STATE of Nebraska, Appellee, v. Derek W. DIXON, Appellant.
• Court: Nebraska Supreme Court

Page 397

467 N.W.2d 397

237 Neb. 630

STATE of Nebraska, Appellee, v. Derek W. DIXON, Appellant.

No. 89-1334.

Supreme Court of Nebraska.

March 22, 1991.

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 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.

2. Postconviction: Effectiveness of Counsel: Proof. To determine whether counsel's performance is deficient in representation of a criminal defendant, the standard is whether an attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the defense of a criminal case.

3. Search and Seizure: Property: Words and Phrases. A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.

4. Constitutional Law: Search and Seizure. The constitutional protection against an unreasonable search and seizure proscribes only governmental action and is inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official.

5. Constitutional Law: Search and Seizure: Waiver. The right to be free from unreasonable search and seizure can be waived by the consent of the citizen.

6. Police Officers and Sheriffs: Property: Prisoners. Police may remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed.

7. Police Officers and Sheriffs: Property: Prisoners. A range of governmental interests supports an inventory of an arrested person's property, which include (1) protecting property of an arrestee in custody, (2) protecting police from groundless claims that an arrestee's property has not been properly safeguarded, (3) protecting or maintaining security of a detention facility by preventing introduction of weapons or contraband into the facility, and (4) ascertaining or verifying an arrestee's identity.

8. Trial: Appeal and Error. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as a trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court.

9. Constitutional Law: Appeal and Error. Generally, a constitutional question not properly raised in the trial court will not be considered on appeal.

10. Trial: Effectiveness of Counsel: Witnesses. As a matter of strategy for trial of a criminal case, a defense counsel's decision to call or not to call a witness is not, by itself, ineffectiveness of counsel.

11. Effectiveness of Counsel: Witnesses: Testimony: Proof. In the absence of evidence indicating the substance of a witness' testimony if the witness had been called to testify as a defense witness, a defendant fails to establish prejudice from the absence of that witness.

12. Homicide: Intent. Under Neb.Rev.Stat. § 28-303 (Reissue 1989), a specific intent to kill is not required for felony murder, but only the intent to do a felonious act which causes a victim's death.

13. Criminal Law: Miranda Rights. Once an accused is arrested and given the Miranda admonitions or warnings, there is no requirement that those admonitions or warnings be renewed each time the accused, pursuant to the original arrest, is subsequently questioned about a crime or crimes which differ from the criminal conduct for which the accused has been arrested.

14. Constitutional Law: Self-Incrimination: Waiver. A suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived the privilege against self-incrimination under the fifth amendment to the U.S. Constitution or article I, § 12, of the Nebraska Constitution.

15. Postconviction: Prisoners: Testimony. Although a prisoner cannot be prevented from testifying in support of the prisoner's motion for postconviction relief, the prisoner has no right to be personally present at an evidentiary hearing on the motion.

Daniel W. Ryberg, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Terri M. Weeks, Lincoln, for appellee.

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

SHANAHAN, Justice.

Derek W. Dixon appeals from the Douglas County District Court's denial of postconviction relief under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989).

The State charged Dixon with first degree murder, a violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), and alleged that Dixon, "during the perpetration of, or attempt to perpetrate a burglary," killed the victim identified in the information filed against Dixon. A jury found Dixon guilty as charged. The district court later sentenced Dixon to life imprisonment. On direct appeal, this court affirmed Dixon's conviction. See State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986). The facts underlying Dixon's conviction are detailed in our opinion in State v. Dixon, supra, and need not be entirely repeated here.

Dixon filed a motion to vacate or set aside his conviction pursuant to §§ 29-3001 et seq., and claimed that he had been denied effective assistance of defense counsel at trial and in his direct appeal. The Douglas County public defender's office represented Dixon at trial and in his direct appeal. At the postconviction hearing and in the present appeal, Dixon is represented by counsel who is not a member of the Douglas County public defender's office.

Dixon assigns numerous errors regarding the district court's finding that Dixon was not denied the constitutional right to effective assistance of counsel and overruling of Dixon's motion to compel his personal attendance at the postconviction hearings.

STANDARD OF REVIEW

" 'In an evidentiary hearing, as a bench trial provided by §§ 29-3001 et seq. for postconviction relief, the trial judge, as the "trier of fact," resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony.' " State v. Clear, 236 Neb. 648, 650, 463 N.W.2d 581, 583 (1990) (quoting from State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986)). " 'In an appeal involving a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.' " State v. Clear, supra at 650, 463 N.W.2d at 583 (quoting from State v. Williams, supra ). Accord State v. Dillon, 224 Neb. 503, 398 N.W.2d 718 (1987).

ASSISTANCE OF DEFENSE COUNSEL AT TRIAL

Dixon claims the district court erred in finding that defense counsel competently represented Dixon at trial, although counsel did not (1) move to suppress certain physical evidence, raise Miranda issues, inform Dixon concerning the State's offer for a plea bargain, adequately prepare and examine the cause of the victim's death, and investigate the possibility of another perpetrator in the victim's death; (2) object to jury instructions involving causation and intent; and (3) adequately raise a question concerning constitutionality of the felony murder statute.

"In a proceeding under the Nebraska Postconviction Act, 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 or voidable." State v. Start, 229 Neb. 575, 577-78, 427 N.W.2d 800, 802 (1988); § 29-3001.

"[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."

State v. Clear, supra 236 Neb. at 655, 463 N.W.2d at 585 (quoting from State v. Hawthorne, 230 Neb. 343, 431 N.W.2d 630 (1988)). See, also, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Hawthorne, we noted the U.S. Supreme Court's observation in Strickland:

"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result." 466 U.S. [237 Neb. 634] at 697 .

230 Neb. at 347, 431 N.W.2d at 633. Accord, State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989); State v. Williams, supra.

To determine whether counsel's performance is deficient in representation of a criminal defendant, the standard is whether an attorney, in representing the...