State v. Ellefson

• Decision Date: 10 February 1989
• Docket Number: No. 88-175,88-175
• Citation: 231 Neb. 120,435 N.W.2d 653
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Richard James ELLEFSON, Appellant.

Page 653

435 N.W.2d 653

231 Neb. 120

STATE of Nebraska, Appellee, v. Richard James ELLEFSON, Appellant.

No. 88-175.

Supreme Court of Nebraska.

Feb. 10, 1989.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. A defendant seeking postconviction relief has the burden of establishing a basis for such relief, which is available only when a constitutional right has been infringed or violated; and the findings of the district court will not be disturbed unless clearly erroneous.

2. Constitutional Law: Right to Counsel: Effectiveness of Counsel. An alleged criminal has the constitutional right to the effective assistance of counsel.

3. Effectiveness of Counsel: Proof. To sustain a successful claim of ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

4. Judges: Recusal: Appeal and Error. A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge's discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

5. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

6. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.

7. 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.

Rodney W. Smith, for appellant.

Robert M. Spire, Atty. Gen. and Donald E. Hyde, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

Defendant has appealed from the judgment of the district court which denied his motion for postconviction relief after an order refusing to disqualify the trial judge from conducting such proceedings. We affirm.

Following a trial by jury, defendant was convicted of an August 11, 1981, burglary and first degree sexual assault committed in rural Knox County. The evidence upon which he was convicted included a description by the victim, footprints roughly matching defendant's boots, tire tracks matching the tires on defendant's truck, and an oral and written confession by the defendant. On direct appeal, raising among other claims that his confession was the result of threats and promises and the product of incomplete Miranda advice, his conviction was sustained. See State v. Ellefson, 214 Neb. 747, 336 N.W.2d 88 (1983).

Raised on appeal from the denial of postconviction relief are the refusal of the trial judge to recuse himself and a claim of ineffective assistance of counsel.

A defendant seeking postconviction relief has the burden of establishing a basis for such relief, which is available only when a constitutional right has been infringed or violated; and the findings of the district court will not be disturbed unless clearly erroneous. State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988); State v. Painter, 229 Neb. 278, 426 N.W.2d 513 (1988).

An alleged criminal has the constitutional right to the effective assistance of counsel. Reddick, supra. To sustain a successful claim of ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense. State v. Kuil, 231 Neb. 62, 434 N.W.2d 700 (1989).

A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge's discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. Reddick, supra. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).

The facts of this case relating to the original conviction are set forth in detail in Ellefson, supra. Following his conviction, and from June 29, 1984, to February 7, 1986, the defendant wrote seven letters to the district judge, generally declaring that he had been wrongfully convicted and demanding that the judge release him.

The defendant points to four specific areas in which he believes that his trial counsel was ineffective: in failing to investigate more thoroughly the possibility that one of the defendant's coworkers in the area of the crime was the perpetrator, in not calling a medical expert to refute the testimony of the State's expert serologist, in not investigating the men who obtained his confession, and in not presenting sufficient evidence to support a change of venue.

COWORKER AS PERPETRATOR

Defendant claims that his trial counsel was ineffective in not calling any of the coworkers to testify and in not investigating their backgrounds. Trial counsel did not check the criminal records of the coworkers, but he did locate and talk to every one of them. Counsel testified that he knew of the physical description which the victim had given of the attacker and that none of the defendant's fellow workers matched that description. Thus, he did not feel it prudent to call these men to the stand.

To assert a successful claim of ineffective assistance of counsel, a defendant must prove that his attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area, that the defendant's interests were not conscientiously protected, and that if the defendant's attorney had been effective, there is a reasonable probability that the results would have been different. State v. Painter, 229 Neb. 278, 426 N.W.2d 513 (1988).

The evidence does not support the defendant's claim of ineffective assistance of counsel. A defense attorney has " 'a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' " (Emphasis supplied.) Id. at 281, 426 N.W.2d at 516, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel did investigate the possibility that one of the defendant's coworkers could have been the attacker, and after meeting with them, made a reasonable determination that, as none of them matched the physical description given by the victim, no benefit would be derived from putting them on the stand.

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. Broomhall, 227 Neb. 341, 417 N.W.2d 349 (1988). In counsel's judgment, calling the fellow employees to the stand would not have helped the defendant's case. That decision was proper under the circumstances. See State v. Meis, 223 Neb. 935, 395 N.W.2d 509 (1986).

In any event, defendant has not shown what good would have come from calling the employees to the stand; i.e., he has not shown a necessary component of an ineffective assistance of counsel claim, namely, prejudice. "But even assuming counsel failed to conscientiously pursue an investigation of all potential witnesses, defendant has not met his burden of showing prejudice." State v. Andrews, 223 Neb. 830, 834, 394 N.W.2d 638, 641 (1986).

FAILURE TO CALL MEDICAL EXPERT

At trial, the State called a witness, a forensic serologist, who testified about the possible origin of the blood and semen stains found on the victim's bedding. The witness testified that the victim had type A blood, that she is a "secretor," and that her PGM type is 2-1. The defendant also has type A blood, is a secretor, and has PGM type 1-1. After testing the stains on the bedding, the expert testified that the person who had the semen either had to be a type A secretor or a nonsecretor. She testified that 52 percent of the general population could fit within these classifications.

Defendant claimed that the failure of his counsel to call a medical expert for the purpose of presenting evidence on the enzyme testing in the light most favorable to the defendant constitutes ineffectiveness of counsel. Defendant feels that the fact that the victim was a 2-1 secretor whereas the defendant was a 1-1 secretor was "exculpatory evidence."

On cross-examination by trial counsel, the State's expert testified that the test results did not point to any one person, and that the semen could have come from 52 percent of the general population. This is really the only "exculpatory" value the evidence had for the defendant. The witness further testified that although the PGM type found in the stain on the sheet was 2-1 and the defendant's type is 1-1, this is not necessarily "exculpatory," as the expert testified that a semen stain actually contains a mixture of semen and the victim's vaginal fluid, and, thus, the presence of the victim's PGM type 2-1 substance was not unusual.

Trial counsel...