State v. Hessler
| Decision Date | 23 December 2011 |
| Docket Number | No. S–11–379.,S–11–379. |
| Citation | 807 N.W.2d 504,282 Neb. 935 |
| Parties | STATE of Nebraska, appellee, v. Jeffrey A. HESSLER, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
2. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.
3. Effectiveness of Counsel: Appeal and Error. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.
4. Effectiveness of Counsel: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and could have been litigated on direct review.
5. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant was represented both at trial and on direct appeal by lawyers employed by the same office, the defendant's first opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief.
6. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief available only to remedy prejudicial constitutional violations.
7. Postconviction: Effectiveness of Counsel: Proof. The defendant has the burden in postconviction proceedings of demonstrating ineffectiveness of counsel, and the record must affirmatively support that claim.
8. Postconviction: Mental Competency: Effectiveness of Counsel: Proof. In order to demonstrate prejudice from counsel's failure to investigate competency and for failure to seek a competency hearing, the defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the trial court would have found the defendant incompetent had a competency hearing been conducted.
9. Effectiveness of Counsel: Records. Counsel is not ineffective for failing to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.
10. Constitutional Law: Trial: Mental Competency. An individual has a constitutional right not to be put to trial when lacking mental competency.
11. Constitutional Law: Right to Counsel: Waiver. A criminal defendant has a constitutional right to waive the assistance of counsel and conduct his or her own defense.
12. Mental Competency. There are no fixed or immutable signs of incompetence.
Brian J. Lockwood, Deputy Scotts Bluff County Public Defender, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
Jeffrey A. Hessler filed a motion for postconviction relief from his current incarceration and sentence to death for crimes relating to the rape and murder of Heather Guerrero. The district court granted an evidentiary hearing on the limited issue of whether trial counsel was ineffective in failing to demand a competency hearing before the trial court allowed Hessler to waive counsel and represent himself at sentencing. The district court denied postconviction relief. Because Hessler failed to demonstrate a reasonable probability that he was incompetent at the sentencing hearing, we affirm.
Hessler was convicted for first degree murder, kidnapping, first degree sexual assault on a child, and use of a firearm to commit a felony in relation to the murder of 15–year-old Guerrero. The facts leading to the convictions are set forth in more detail in our opinion in State v. Hessler ( Hessler I ).1
After his convictions in December 2004, Hessler filed three pro se motions to waive his right to be present at the aggravation hearing. The court excused Hessler's presence, and trial counsel represented Hessler at the aggravation hearing. After the hearing, the jury found three statutory aggravating circumstances.2 Accordingly, the case was set to proceed before the three-judge panel for consideration of the death penalty.
On March 31, 2005, Hessler sought to remove counsel, waive his right to counsel, and proceed pro se at the sentencing hearing. Hessler filed a pro se “Motion to Invoke My Sixth–Amendment Right and to Expurgate the Advocate of the State and to Delineate Myself.” This motion is set forth in detail in Hessler I.3 In summary, Hessler was unhappy with trial counsel because they told him they were dutybound to contest the imposition of the death penalty. Hessler wished to be put to death.
At the hearing on the motion, the court presented numerous questions to Hessler in order to determine if his waiver of counsel was made knowingly, voluntarily, and intelligently. Hessler's responses to the questions were generally appropriate. Hessler was asked to explain what “ ‘Expurgate the Advocate of the State’ ” in his pro se motion meant. He responded that it was “[t]o remove [his] advocate.” He told the court that he wished to discharge counsel because they “refuse[d] to comply with my wishes.” Hessler further explained to the court that given the change of strategy, a scheduled presentencing hearing challenging the constitutionality of the death penalty statute did not “need to happen.”
Hessler informed the court he had been prescribed “antipsychotics” and “antihypnotic” drugs, but he had not taken them that day. When asked about his ability to represent himself, Hessler said he had God on his side, stating, “I just go by what God tells me.” The court responded that while it would not dissuade Hessler from “following God,” he would have to represent himself in a way that complied with court rules. Hessler indicated that he understood this and could do so. The trial court determined that Hessler had knowingly, intelligently, and voluntarily decided to represent himself. Given the gravity of the possible punishment, the court instructed counsel to prepare for the sentencing hearing and be there on standby.
At the sentencing hearing conducted on May 16, 2005, Hessler was again questioned about his desire to proceed pro se. Hessler responded to the questions appropriately, and the court again determined that Hessler knowingly, intelligently, and voluntarily waived his right to counsel.
Hessler declined to make any opening or closing statement at the sentencing hearing. As evidence, Hessler offered a 9–page “Interlocutory Statement of the Defendant.” Because indicating each spelling mistake or grammatical error in Hessler's statement and other documentation would be distracting, we reproduce Hessler's written materials in their original form. Hessler began: “As God cicerones me through this ascription to show true face I, Jeffrey Alan Hessler, now brings to light my ascription now before all.” Hessler then explained that he wished to be put to death, under the doctrine of “ ‘an Eye for an Eye.’ ” Hessler expressed remorse and noted that he suffered “from certain Mental Conditions that may or may not truelly explain My actions in this here Nightmare that I have caused.”
Hessler explained why he had to discharge his counsel: More specifically, Hessler described a recent encounter with a “Brother of Christ” at the prison who was awoken from his sleep and led to Hessler's cell to “bring GOD back into My Life and understanding.” When he took this man's hand, he
Hessler wished for “nothing to be inveighed on Mybehalf that might change the mind set of the Judges or of the People of this society within this Matrix.” He asked that his “vermiculate tabernacle be sent to the Reaper's Nirvana and for My vermiculate tabernacle to be gibbeted as soon as possible and there should be no dialectic or extrospection towards or against GOD's Purpose and My destiny.”
Despite Hessler's failure to present evidence of mitigation, the three-judge sentencing panel considered possible statutory mitigators, particularly, the absence of Hessler's prior criminal history and his relative age. The panel found no nonstatutory mitigating circumstances. It found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the panel sentenced Hessler to the death penalty.
For Hessler's automatic direct appeal, we appointed Hessler's trial counsel to represent him. Counsel assigned as error the trial court's grant of Hessler's request to proceed pro se at the sentencing hearing and the trial court's failure to conduct a competency hearing before allowing Hessler to proceed pro se. Hessler filed a pro se brief in which he expressed his continuing wish to be put to death.
We held that the trial court did not err when it failed to conduct a competency hearing.4 Further, there was no error when the court did not make an explicit determination that Hessler was competent to waive counsel. 5 We explained that the trial court did not have reason to suspect Hessler's competence. We noted that when Hessler moved to waive counsel, he was still represented by counsel, and that counsel did not move for a determination of Hessler's competence at that time or at any previous time.6 And there was ...
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