State v. Iromuanya, No. S–09–075.

CourtSupreme Court of Nebraska
Writing for the CourtHEAVICAN
Citation806 N.W.2d 404,282 Neb. 798
Decision Date09 December 2011
Docket NumberNo. S–09–075.
PartiesSTATE of Nebraska, appellee, v. Lucky I. IROMUANYA, appellant.

282 Neb. 798
806 N.W.2d 404

STATE of Nebraska, appellee,
v.
Lucky I. IROMUANYA, appellant.

No. S–09–075.

Supreme Court of Nebraska.

Dec. 9, 2011.


[806 N.W.2d 412]

Syllabus by the Court

[282 Neb. 798] 1. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

2. Effectiveness of Counsel: Appeal and Error. Under the two-pronged test for determining ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews counsel's performance and whether the defendant was prejudiced independently of the lower court's decision.

3. Postconviction: Constitutional Law: Proof. A court must grant an evidentiary hearing on a postconviction motion when the motion contains factual allegations which, if proven, constitute an infringement of the movant's rights under the Nebraska or federal Constitution.

4. Constitutional Law: Criminal Law: Right to Counsel. A defendant has a constitutional right to be represented by an attorney in all critical stages of a criminal prosecution.

5. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

6. Postconviction: Constitutional Law: Proof. If a postconviction motion alleges only conclusions of fact or law—or if the records and files in the case affirmatively show that the movant is entitled to no relief—no evidentiary hearing is required.

7. Postconviction: Constitutional Law: Effectiveness of Counsel: Proof. To establish a right to postconviction relief for counsel's ineffective assistance, the petitioner must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the petitioner's defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

8. Criminal Law: Effectiveness of Counsel. Counsel's performance was deficient if it did not equal that of a lawyer with ordinary training and skill in criminal law.

9. Effectiveness of Counsel: Presumptions. In determining whether trial counsel's performance was deficient, courts give counsel's acts a strong presumption of reasonableness.

10. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When reviewing claims of ineffective assistance, an appellate court will not second-guess trial counsel's reasonable strategic decisions.

[806 N.W.2d 413]

11. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Appellate courts must assess trial counsel's performance from counsel's perspective when counsel provided the assistance. An appellate court will not judge an ineffectiveness of counsel claim in hindsight.

12. Effectiveness of Counsel: Proof: Appeal and Error. In addressing the “prejudice” component of the test in [282 Neb. 799] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court focuses on whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. To show prejudice, the petitioner must demonstrate a reasonable probability that but for counsel's deficient performance, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

13. Effectiveness of Counsel: Appeal and Error. When a case presents layered ineffectiveness claims, an appellate court determines the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If trial counsel was not ineffective, then the petitioner suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim.

14. Effectiveness of Counsel: Presumptions. A trial counsel's lack of relevant experience is a factor a court can consider, but it does not create a presumption of ineffective assistance of counsel.

15. Trial: Effectiveness of Counsel: Proof. Unless the defendant demonstrates that counsel failed to function in any meaningful sense as the prosecution's adversary, the defendant can make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.

16. Right to Counsel: Plea Bargains. The plea bargaining process presents a critical stage of a criminal prosecution to which the right to counsel applies.

17. Trial: Attorney and Client: Effectiveness of Counsel: Plea Bargains. A trial counsel's failure to communicate a plea offer to a defendant is deficient performance as a matter of law.

18. Trial: Constitutional Law: Testimony. A defendant has a fundamental constitutional right to testify.

19. Trial: Attorney and Client: Testimony: Waiver. The right to testify is personal to the defendant and cannot be waived by defense counsel's acting alone.

20. Trial: Attorney and Client: Testimony: Waiver. A trial court does not have a duty to advise the defendant of his or her right to testify or to ensure that the defendant waived this right on the record. Instead, defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make.

21. Trial: Attorney and Client: Testimony: Waiver. The competence and soundness of defense counsel's tactical advice is crucial to whether counsel has presented sufficient information to the defendant to permit a meaningful voluntary waiver of the right to testify.

22. Trial: Attorney and Client. The decision whether to testify, plead guilty, or waive a jury trial involves basic trial decisions for which the defendant has the ultimate authority.

23. Trial: Attorney and Client: Effectiveness of Counsel: Testimony: Waiver. Defense counsel's advice to waive the right to testify can present a

[806 N.W.2d 414]

valid claim of ineffective assistance in two instances: if the defendant shows that counsel interfered with his or her freedom to decide to testify or if counsel's tactical advice to waive the right was unreasonable.

24. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. Determining whether defense counsel was ineffective in failing to object to [282 Neb. 800] prosecutorial misconduct requires an appellate court to first determine whether the petitioner has alleged any action or remarks that constituted prosecutorial misconduct.

25. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. When a criminal defendant claims his or her trial counsel was ineffective in failing to object to prosecutorial misconduct, an appellate court will focus on the “prejudice” component of the test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), unless the prosecutorial misconduct was so blatantly improper and highly prejudicial that even a minimally competent defense counsel would have objected.

26. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infected the trial that the resulting conviction violates due process.

27. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and Error. In determining whether defense counsel's failure to object to prosecutorial misconduct rendered the trial unreliable or unfair, an appellate court considers whether the defendant's right to a fair trial was prejudiced because of the prosecutorial misconduct.

28. Trial: Prosecuting Attorneys: Juries. A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.

29. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

30. Trial: Prosecuting Attorneys. The following factors are relevant to determining whether prosecutorial misconduct prejudiced the defendant's right to a fair trial: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.

31. Juror Qualifications. Voir dire examination of prospective jurors requires the trial court to give each of the parties the right, within reasonable limits, to put pertinent questions to each and all of the prospective jurors for the purpose of ascertaining whether or not there exist sufficient grounds for challenge for cause and also to aid each of the parties in the exercise of the statutory right of peremptory challenge.

32. Constitutional Law: Juror Qualifications. Voir dire plays a critical function in assuring the criminal defendant that his or her constitutional right to an impartial jury will be honored.

33. Juror Qualifications: Parties. The extent to which parties may examine jurors as to their qualifications rests largely in the discretion of the trial court.

34. Juror Qualifications: Parties. A court should permit parties to ask prospective jurors questions about whether they can fulfill their duties impartially.

35. Juror Qualifications: Parties. Parties may generally ask hypothetical

[806 N.W.2d 415]

questions designed to determine whether prospective jurors' preconceived attitudes or biases would prevent them from following the law or applying a legal theory or defense.

36. Juror Qualifications: Attorneys at Law. Counsel may not use voir dire to preview prospective jurors' opinions of the evidence that will be presented. Nor may counsel secure in advance a commitment from prospective jurors on the verdict [282 Neb. 801] they would return, given a state of hypothetical...

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67 practice notes
  • People v. Nelson
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...A.3d 24, 47–48 [2011], cert. denied 568 U.S. ––––, 133 S.Ct. 122, 184 L.Ed.2d 58 [2012] ; 53 N.E.3d 69833 N.Y.S.3d 821 State v. Iromuanya, 282 Neb. 798, 827–829, 806 N.W.2d 404, 432–433 [2011] ; Allen v. Commonwealth, 286 S.W.3d 221, 229–230 [Ky.2009] ; Lonergan v. State, 281 Ga. 637, 640, ......
  • State v. Rocha, No. S–12–411
    • United States
    • Supreme Court of Nebraska
    • July 19, 2013
    ...v. Huston, supra note 4; State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). 21.State v. Edwards, supra note 20. 22.State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). 23.State v. Poe, supra note 3. 24.Id. at 774, 822 N.W.2d at 849. 25. Webster's EncyclopedicUnabridged Dictionary of......
  • State v. Davidson, No. E2013-00394-CCA-R3-DD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • March 10, 2015
    ...a risk of prejudicing the defendant's right to a fair trial, the practice is not inherently prejudicial. See, e.g., State v. Iromuanya, 806 N.W.2d 404, 432 (Neb. 2011) (concluding that "the wearing of victim memorial buttons by spectators at a criminal proceeding" was not the same "as state......
  • People v. Nelson, No. 45
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...A.3d 24, 47–48 [2011], cert. denied 568 U.S. ––––, 133 S.Ct. 122, 184 L.Ed.2d 58 [2012] ; 53 N.E.3d 69833 N.Y.S.3d 821 State v. Iromuanya, 282 Neb. 798, 827–829, 806 N.W.2d 404, 432–433 [2011] ; Allen v. Commonwealth, 286 S.W.3d 221, 229–230 [Ky.2009] ; Lonergan v. State, 281 Ga. 637, 640, ......
  • Request a trial to view additional results
67 cases
  • People v. Nelson
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...A.3d 24, 47–48 [2011], cert. denied 568 U.S. ––––, 133 S.Ct. 122, 184 L.Ed.2d 58 [2012] ; 53 N.E.3d 69833 N.Y.S.3d 821 State v. Iromuanya, 282 Neb. 798, 827–829, 806 N.W.2d 404, 432–433 [2011] ; Allen v. Commonwealth, 286 S.W.3d 221, 229–230 [Ky.2009] ; Lonergan v. State, 281 Ga. 637, 640, ......
  • State v. Rocha, No. S–12–411
    • United States
    • Supreme Court of Nebraska
    • July 19, 2013
    ...v. Huston, supra note 4; State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). 21.State v. Edwards, supra note 20. 22.State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). 23.State v. Poe, supra note 3. 24.Id. at 774, 822 N.W.2d at 849. 25. Webster's EncyclopedicUnabridged Dictionary of......
  • State v. Davidson, No. E2013-00394-CCA-R3-DD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • March 10, 2015
    ...a risk of prejudicing the defendant's right to a fair trial, the practice is not inherently prejudicial. See, e.g., State v. Iromuanya, 806 N.W.2d 404, 432 (Neb. 2011) (concluding that "the wearing of victim memorial buttons by spectators at a criminal proceeding" was not the same......
  • People v. Nelson, No. 45
    • United States
    • New York Court of Appeals
    • April 5, 2016
    ...A.3d 24, 47–48 [2011], cert. denied 568 U.S. ––––, 133 S.Ct. 122, 184 L.Ed.2d 58 [2012] ; 53 N.E.3d 69833 N.Y.S.3d 821 State v. Iromuanya, 282 Neb. 798, 827–829, 806 N.W.2d 404, 432–433 [2011] ; Allen v. Commonwealth, 286 S.W.3d 221, 229–230 [Ky.2009] ; Lonergan v. State, 281 Ga. 637, 640, ......
  • Request a trial to view additional results

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