State v. Huff
| Decision Date | 31 October 2017 |
| Docket Number | No. A-16-983.,A-16-983. |
| Citation | 904 N.W.2d 281,25 Neb.App. 219 |
| Parties | STATE of Nebraska, appellee, v. Herchel Harold HUFF, appellant. |
| Court | Nebraska Court of Appeals |
Brian J. Davis, of Berreckman & Davis, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.
Herchel Harold Huff was convicted of motor vehicle homicide, among other charges, in connection with the death of Kasey Jo Warner. Following his direct appeals, Huff filed a motion for postconviction relief in the district court for Furnas County. Following an initial review of Huff's motion, the court dismissed a number of Huff's claims without an evidentiary hearing. Huff appealed, and this court affirmed the dismissal of those claims. Subsequently, the State filed a motion to dismiss the remainder of Huff's postconviction claims. The court sustained the motion in part and overruled it in part. Huff again appealed, and this court affirmed. An evidentiary hearing was held on Huff's remaining postconviction claims as well as a motion to disqualify or recuse the judge hearing his postconviction motion. The present appeal arises from the district court's order denying the remaining claims in Huff's postconviction motion following an evidentiary hearing. Huff asserts both ineffective assistance of counsel and trial court error in connection with the in-chambers voir dire of certain jurors conducted outside of his presence. Huff's first assigned error is not properly before us in this appeal, and he has not shown that he was prejudiced by his counsel's actions in connection with the in-chambers voir dire. Accordingly, we affirm.
On October 3, 2007, Warner was jogging on a gravel road near her home in Furnas County when she was struck and killed by a vehicle driven by Huff. Huff pled guilty to manslaughter, but not guilty to the other crimes with which he was charged. A jury trial was held, and the jury found Huff guilty of motor vehicle homicide. The district court found Huff guilty of the remaining counts (tampering with a witness and refusal to submit to a chemical test). Huff was sentenced to imprisonment for a term of 45 to 45 years for motor vehicle homicide and a concurrent term of 20 to 20 years for manslaughter. Huff was sentenced to imprisonment for 20 to 60 months for tampering with a witness and 5 to 5 years for third-offense refusal to submit to a chemical test. These sentences were to be served consecutively to the sentences for manslaughter and motor vehicle homicide and to one another. Huff filed a direct appeal and was represented on direct appeal by his trial attorneys. The Supreme Court affirmed Huff's convictions for motor vehicle homicide, tampering with a witness, and refusal to submit to a chemical test, but it remanded the cause for sentencing on the third-offense refusal to submit to a chemical test. The Supreme Court also vacated Huff's conviction and sentence for manslaughter. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
After remand, Huff was resentenced on the refusal to take a chemical test to 60 days' incarceration, a $500 fine, and the suspension of his license for 6 months after his release from incarceration. Huff appealed this sentence, and the Nebraska Supreme Court summarily affirmed. State v. Huff, 283 Neb. xix (No. S-11-1102, Apr. 11, 2012). Huff was represented by his trial attorneys in this appeal as well.
On August 20, 2012, Huff filed a verified motion for postconviction relief, alleging numerous claims of ineffective assistance of counsel, prosecutorial misconduct, trial court error, law enforcement misconduct, and denial of his right to appellate counsel, and he requested an evidentiary hearing.
On October 22, 2012, the district court entered an order denying certain of Huff's claims and granting him an evidentiary hearing on others. The court appointed postconviction counsel for Huff. Huff appealed from the order dismissing portions of his postconviction claims. In that appeal, Huff challenged the court's dismissal of two of his claims of ineffective assistance of trial counsel without an evidentiary hearing. In a memorandum opinion, this court affirmed. See State v. Huff, No. A-12-1072, 2013 WL 6622896 (Neb.App. Dec. 17, 2013) ().
Following the first postconviction appeal, the State filed a motion to dismiss Huff's remaining postconviction claims. On October 1, 2014, the district court entered an order granting in part and denying in part the State's motion to dismiss. The court detailed the remaining claims for postconviction relief and found that the remaining claims under "[g]rounds 2, 3, and 4" set forth in Huff's motion constituted claims of ineffective assistance of counsel and were "considered by the court to be preserved through, and to be part of, Huff's ineffective assistance of counsel claims set forth in [g]round 1." To the extent that the court's description of and prior characterization of grounds 2 through 4 "create[d] a different impression, or g[a]ve rise to inferences that the claims can be classified as other than ineffective assistance of counsel claims," the court granted the State's motion to dismiss. The court dismissed additional claims for relief asserted in Huff's postconviction motion and denied the State's motion as to other claims. Huff again appealed, asserting that the court erred when it sustained the State's motion to dismiss in part, denying two additional claims of ineffective assistance of counsel without an evidentiary hearing. In an unpublished memorandum opinion, this court affirmed the dismissal of the additional claims from Huff's postconviction motion. State v. Huff, 22 Neb. App. xxxii (No. A-14-985, June 26, 2015).
On May 26, 2016, an evidentiary hearing was held on the remaining claims in Huff's postconviction motion. The district court received exhibits including the bill of exceptions from Huff's trial, various depositions and affidavits, and certain pleadings. We have set forth the evidence relevant to Huff's assignments of error in the present appeal, focusing on the voir dire of certain prospective jurors in the court's chambers outside of Huff's presence.
The record shows that voir dire took place on March 9, 2010, and that Huff was present in the courtroom during the voir dire proceedings. During voir dire, the trial judge asked the panel if anyone had ever been arrested for, cited for, or convicted of driving while under the influence of alcohol (DUI). In response, six prospective jurors (jurors Nos. 52, 73, 95, 96, 106, and 139) raised their hands. The judge then asked the six prospective jurors a series of questions to see if anything about their experience would affect their ability to be fair and impartial. None of the six prospective jurors indicated that they could not be fair and impartial. We note that jurors Nos. 52 and 96 were later excused for cause for other reasons based upon additional in-court questioning and were not among those prospective jurors later questioned in the court's chambers. When selected from the pool after other prospective jurors were excused, both juror No. 91 and juror No. 102 also informed the court of prior DUI convictions. Upon in-court questioning by the judge, they both indicated that they could be fair and impartial.
The attorneys for both sides also conducted in-court questioning of prospective jurors, and Huff was present for this questioning. During the prosecutor's questioning, jurors Nos. 29, 73, 91, 95, 102, 106, and 139 raised their hands to indicate that they had prior DUI convictions. After Huff's counsel questioned the prospective jurors, the judge confirmed that the State wanted to individually question some of the prospective jurors in chambers.
During a sidebar discussion between the district court and counsel for both parties, one of the prosecuting attorneys informed the court that the State wanted more details from the seven prospective jurors who had prior DUI convictions "about how long ago it was" and "what the treatment was" and to "[g]et the personal details out." Upon the court's inquiry, Huff's attorneys indicated they had no objections to such individual questioning of the seven prospective jurors in chambers. Following the sidebar, the court informed the prospective jurors that the attorneys wanted to ask some questions of certain individual jurors in private "to spare any kind of embarrassment to anyone." The court stated that the questioning would occur in a separate room with the attorneys and court reporter present and that each of the seven identified prospective jurors would be called back separately to answer questions outside the presence of the other prospective jurors.
Huff did not express any desire on the record to be present during the in-chambers questioning.
The in-chambers voir dire began at 11:45 a.m. on March 9, 2010. The district court noted the presence of the attorneys for both Huff and the State for the in-chambers voir dire. Neither the court nor the attorneys mentioned Huff's absence, but a notation from the court reporter in the bill of exceptions shows that Huff was not present for the in-chambers voir dire. The seven prospective jurors were then questioned individually about the circumstances of their past DUI convictions. Six of the seven prospective jurors (jurors Nos. 29, 91, 95, 102, 106, and 139) stated that they could set aside their prior convictions and decide Huff's case based on the facts presented to them. However, juror No. 73 was excused for cause during the in-chambers questioning after stating a belief that Huff was guilty. After the seven prospective jurors had been questioned, Huff's attorneys suggested that the...
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State v. Huff
...counsels to object or move for a mistrial following such voir dire did not constitute deficient performance. See State v. Huff, 25 Neb. App. 219, 904 N.W.2d 281 (2017).5. MOTION FOR DNA TESTING On March 5, 2018, Huff filed a motion for DNA testing under the DNA Testing Act, asking that the ......