State v. Huston
| Decision Date | 11 January 2013 |
| Docket Number | No. S–11–539.,S–11–539. |
| Citation | 285 Neb. 11,824 N.W.2d 724 |
| Parties | STATE of Nebraska, appellee, v. Dallas L. HUSTON, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 11]1. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.
2. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact, and, in particular, determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law.
3. Pretrial Procedure: Evidence. A motion to redact that seeks the exclusion of prejudicial evidence through redaction essentially functions as a motion in limine, even if it is not labeled as such.
4. Pretrial Procedure: Evidence: Juries. A motion asking for the exclusion of evidence in a particular manner, such as redaction, functions as a motion in limine so long as it requests that certain evidence be withheld from the jury due to its prejudicial nature.
5. Pretrial Procedure: Evidence: Appeal and Error. When a motion to redact evidence is overruled, the movant must object at trial when the specific evidence which was sought to be excluded by the motion is offered in order to preserve error for appeal.
6. Rules of Evidence: Appeal and Error.Neb. Evid. R. 103(1)(a), Neb.Rev.Stat. § 27–103(1)(a) (Reissue 2008), states that error can be based on a ruling that admits evidence only if the specific ground of objection is apparent either from a timely objection or from the context.
7. Trial: Evidence. Even if there are inadmissible parts within an exhibit, an objection to an exhibit as a whole is properly overruled where a part of the exhibit is admissible.
8. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
9. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.
10. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.
11. Effectiveness of Counsel: Presumptions: Appeal and Error. There is a strong presumption that counsel acted reasonably, and an appellate court will not second-guess reasonable strategic decisions.
James R. Mowbray and Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Nearly 2 months before Dallas L. Huston's jury trial for second degree murder, the district court ruled on Huston's motion to redact video recordings of his police interviews—excluding portions but allowing the remainder. On appeal from Huston's later conviction and sentence, we conclude that trial counsel did not preserve any objection to the admission of the remaining portions of the recordings at trial by merely stating, “No further objection....” Huston also argues, through different counsel on direct appeal, that the failure to object constituted ineffective assistance of counsel. Because we find the record to be insufficient to adequately address the question of trial counsel's effectiveness, we do not reach this issue on direct appeal.
Huston and Ryan Johnson were living together as a couple in a nonsexual relationship when Huston allegedly found Johnson in their bedroom with plastic wrap wrapped around his face at around 11:15 a.m. on September 16, 2009. Huston called the 911 emergency dispatch service at 11:28 a.m. Paramedics performed lifesaving measures but were unable to revive Johnson.
Given that Johnson had previously attempted suicide, the police initially investigated his death as a suicide. As part of this investigation, they interviewed Huston numerous times. Due to the number and length of these interviews, we provide only a brief overview, focusing on pertinent sections as necessary later in the opinion.
The police first interviewed Huston on the day of Johnson's death, mainly asking him questions related to (1) the possible reasons for Johnson's apparent suicide and (2) the events leading to Johnson's death. Huston admitted that he was alone in the house with Johnson that morning, but stated that he had gotten up around 9 a.m. and spent the morning in the living room, while Johnson slept. According to Huston, he decided to check on Johnson at approximately 11:15 a.m. because Johnson had vomited earlier that morning. Huston claimed that he then found Johnson lying on the bed with plastic wrap covering his face and no perceptible pulse.
The police again interviewed Huston on September 29, 2009. It was during this interview that Huston's multiple personalities first emerged. Huston later admitted at trial that he made up these different personalities as part of a “social experiment” and that he controlled them completely. As such, we refer to these personalities solely to provide context for Huston's statements.
Shortly before the September 29, 2009, interview, the police received a report that Huston had told his friend, Nicholas Berghuis, that the personality “Vincent” helped Johnson to commit suicide. When confronted with this report during the interview, Huston admitted that he had trouble with multiple personalities, that one of his personalities was called Vincent, and that Johnson had asked for help in committing suicide in the past, but Huston denied any involvement with Johnson's death. Huston allowed the police officers to speak with the personality “Que,” who explained that when Huston made those statements to Berghuis, he was describing a nightmare he had been having since Johnson's death. The personality “Que” also directed the officers to a video on Huston's computer of “Que” pretending to kill Johnson by putting a pillow over his face.
Because Huston had told Berghuis and another friend, Christopher Wilson, that one of his personalities had been involved in Johnson's death, Berghuis and Wilson arranged with the police to set up video surveillance in Wilson's house, where Huston often spent time. Huston's conversations with Berghuis and Wilson on October 6 and 7, 2009, were recorded. During these conversations, Huston's various personalities admitted that “Vincent” assisted in Johnson's death at Johnson's request. Specifically, the personality “Vincent” admitted to (1) wrapping the plastic wrap around Johnson's face, during which time Johnson yelled, “Get it off”; (2) holding a pillow over Johnson's face when Johnson broke through the plastic wrap while trying to breathe; and (3) listening to Johnson's last heartbeats “with enjoyment.”
Following the video surveillance on October 7, 2009, the police brought in Huston for questioning. Over the course of the interview, Huston went from vehemently denying any involvement in Johnson's death to admitting that the events he described were not a dream and that he physically aided in Johnson's death, albeit through the personality “Vincent.”
Huston tried to retract these statements in his next interview with the police on the evening of October 8, 2009. He denied any involvement in Johnson's death and claimed that he had been “badgered” into making a confession during the previous interview. By the conclusion of the interview on October 8, however, Huston again admitted that he participated in Johnson's death by wrapping plastic wrap around Johnson's head and holding a pillow over his face.
In an interview on October 10, 2009, Huston revealed that Johnson had asked for his help in committing suicide. Huston maintained that he “helped [Johnson] commit suicide” and that he did not “murder him.”
Huston was ultimately arrested and charged with second degree murder. He pled not guilty, and his case went to jury trial in January 2011.
Prior to trial, Huston filed a motion requesting the district court to redact the video recordings of his police interviews. The State agreed with some of the proposed redactions, and the court ruled on the proposed redactions to which the parties did not agree. Some of Huston's proposed redactions were sustained, but others were not. After receiving the court's rulings, the State edited the video recordings to reflect the redactions that had been agreed to by the State or ordered by the court. These video recordings were admitted into evidence at Huston's subsequent trial and were published to the jury. When asked whether there were any objections to the admission of these video recordings, Huston's counsel responded by stating that he had either no objection or no “further” objection.
The testimony at trial included both the video recordings of Huston's police interviews—including the proposed redactions that were not sustained—and testimony from the police officers who had conducted those interviews. Of this plethora of evidence, we mention only the nine specific portions that have been identified by Huston on appeal. These segments include evidence relating to (1) Huston's “homosexual encounter” 1 with Wilson, (2) speculation that Huston is a serial killer and Huston's future dangerousness, and (3) the opinions of police officers that Huston's actions constituted murder as opposed to assisted suicide.
First, in the video recording of Huston's interview with the police on the day of Johnson's death, Huston described his “homosexual encounter” with Wilson. Huston's conversation with the police officer conducting the interview went as follows:
[Huston:] Okay, to be...
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