State v. George, S-01-415.
| Decision Date | 07 June 2002 |
| Docket Number | No. S-01-415.,S-01-415. |
| Citation | 264 Neb. 26,645 N.W.2d 777 |
| Parties | STATE of Nebraska, Appellee, v. Michael T. GEORGE, Appellant. |
| Court | Nebraska Supreme Court |
David T. Schroeder, of Kelly & Schroeder, Grand Island, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson, Lincoln, for appellee.
Michael T. George brought a motion for postconviction relief pursuant to Neb.Rev.Stat. § 29-3001 (Reissue 1995), alleging that his convictions in 1993 for robbery and use of a weapon to commit a felony and his convictions in 1996 for first degree assault and use of a weapon to commit a felony were obtained in violation of his constitutional rights. After an evidentiary hearing, the district court denied George relief. George appeals.
On March 28, 1993, Tessa Taylor was working at Coffin's Corner convenience store in Hall County, Nebraska. While talking with a customer, William Ostrander, Taylor saw a man standing at the door to the store. The man pulled up his shirt, covering the bottom part of his face to the tip of his nose. Taylor was able to see the man's entire face briefly before he pulled up his shirt. The man then walked in and stabbed Ostrander in the stomach with a knife.
After a brief scuffle with Ostrander, the assailant approached the cash register. He attempted to open the register by banging on it with his knife. Eventually, he pointed the knife at Taylor and ordered her to open the cash register. Taylor could see the man, and the exposed part of his face, throughout the incident. She was approximately 1 to 2 feet away from him when she opened the cash register. After she opened the register, the man took approximately $200 in cash and left. Taylor called the police.
Ostrander was taken to the hospital where he underwent surgery to repair serious internal wounds caused by the stabbing. Ostrander remained in the hospital for 1 week, but recovered from his injuries.
Taylor described the assailant to the investigating officers as a man approximately 5 feet 10 inches tall, with shoulder-length dark hair with a lot of gray, wearing blue jeans and a blue shirt. Ostrander later provided a similar description of the assailant to the officers. The police showed Taylor three photographic lineups consisting of six photographs each. Taylor picked out a photograph of George, which was included in one of the lineups, and stated that the photograph looked like the robber, but she would have to see a more recent photograph to be sure. The photograph of George was approximately 1 year old. Ostrander was also shown the same three lineups at the hospital, but was unable to conclusively identify anyone. He did, however, identify the photograph of an individual other than George as a "`guy that looked something like the one that did it.'"
About 2 weeks after the incident, George came into Coffin's Corner to purchase cigarettes. Taylor was working at the time and recognized George as the assailant from March 28, 1993. Although frightened, Taylor looked at him carefully, memorized his license plate number, and called the police immediately after George left the store. The police thereafter arrested George and took a Polaroid photograph of him in his "street clothes." The "street clothes" George was wearing in this Polaroid photograph were similar to the clothing worn by the assailant during the stabbing and robbery.
The officers then showed a fourth photographic lineup separately to Taylor and Ostrander, which included the Polaroid photograph of George in "street clothes." The lineup consisted of six photographs, George's being the only Polaroid. Taylor identified George from this fourth lineup. Ostrander also picked out George's photograph from the fourth lineup, but was not completely certain in his identification.
George was charged with attempted second degree murder, a Class II felony, use of a weapon to commit attempted murder, robbery, and use of a weapon to commit the robbery. George's trial counsel was Jerry Fogarty.
At trial, Taylor testified she recognized George when he came into Coffin's Corner 2 weeks after the incident as the man who stabbed Ostrander and robbed the store, and she identified him in court. Taylor stated she was positive George was the assailant, recognizing, among other things, his eyes and hair. Ostrander also made an in-court identification of George as the assailant, but acknowledged that he was not "100 percent sure." Finally, Taylor and Ostrander testified regarding the four photographic lineups and their respective identifications resulting from that procedure.
The jury was instructed on the elements of attempted second degree murder and "attempted manslaughter." The jury was also instructed, inter alia, on the elements of robbery and the elements related to the two weapons charges. The jury found George guilty of robbery, attempted manslaughter, use of a weapon to commit a robbery, and use of a weapon to commit attempted second degree murder. George was sentenced to a term of 16 years 8 months' to 50 years' imprisonment on the robbery charge, along with three additional consecutive sentences of 6 years 8 months' to 20 years' imprisonment for the remaining three convictions.
George appealed his convictions, asserting that (1) the conviction for attempted manslaughter was invalid in that attempted manslaughter was not a lesser-included offense of attempted second degree murder, (2) the conviction for use of a weapon to commit attempted second degree murder was invalid because he had been acquitted of attempted second degree murder, and (3) the sentences imposed were excessive. George's counsel on appeal was Harry Moore. In State v. George, 3 Neb.App. 354, 358, 527 N.W.2d 638, 642 (1995) (George I), the Nebraska Court of Appeals reversed George's conviction for attempted manslaughter, stating:
The combination of the elements of the crime of criminal attempt with the elements of involuntary manslaughter creates a peculiar animal. The trial court instructed the jury that A person cannot perform the same act intentionally and unintentionally at the same time. This instruction is a contradiction because a person cannot intentionally take a substantial step toward the commission of a crime when that crime is an unintentional crime. Thus, attempted manslaughter does not and cannot exist under current Nebraska law.
The court also determined that because George had been acquitted of attempted second degree murder, the conviction for use of a weapon to commit attempted second degree murder must also be reversed.
Id. at 361-62, 527 N.W.2d at 643-44. George's convictions for robbery and use of a weapon to commit the felony of robbery were affirmed.
In 1996, Hall County Prosecutor Mark Young filed an information charging George with first degree assault, a Class III felony, and use of a weapon to commit first degree assault regarding the stabbing of Ostrander. George's trial counsel at the second trial was James Truell. Virtually the same evidence was adduced by the State at the second trial. Taylor again identified George in court as the robber. She stated that she was positive George was the person who attacked Ostrander and that she had recognized George when he came into the store 2 weeks after the incident. Ostrander identified George in court at the second trial as well, but again stated he was not "a hundred percent sure." Both Taylor and Ostrander again related to the jury the circumstances surrounding the four photographic lineups and their identifications as a result. George was found guilty of both charges and sentenced to two consecutive sentences of 6 years 8 months' to 20 years' imprisonment.
George appealed his convictions, asserting the trial court erred in (1) overruling George's motion to dismiss because there was no credible eyewitness testimony produced by the State; (2) overruling George's motion to remove defense counsel; (3) receiving into evidence, over George's relevancy objection, the fourth photographic lineup; and (4) imposing excessive sentences. George's appellate counsel in his second appeal was Charles Maser. In a memorandum opinion, the Court of Appeals found all of George's claimed errors to be without merit and affirmed George's convictions and sentences. State v. George, 5 Neb.App. xxvii (case No. A-96-861, April 29, 1997) (George II).
On February 2, 2000, George filed a postconviction motion pursuant to § 29-3001, seeking to vacate his convictions for robbery and use of a weapon to commit robbery in George I, and first degree assault and use of a weapon to commit first degree assault in George II. George alleged, among other things, that he had received ineffective assistance of appellate and trial counsel during both his first and second trials. The court granted George's request for an evidentiary hearing and appointed counsel for George.
Postconviction counsel asserted that George received ineffective assistance of appellate counsel in George I and George II. Postconviction cou...
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