State v. Jackson

• Decision Date: 20 November 1987
• Docket Number: No. 86-978,86-978
• Parties: STATE of Nebraska, Appellee, v. Gary Lee JACKSON, Appellant.
• Court: Nebraska Supreme Court

Page 465

415 N.W.2d 465

226 Neb. 857

STATE of Nebraska, Appellee, v. Gary Lee JACKSON, Appellant.

No. 86-978.

Supreme Court of Nebraska.

Nov. 20, 1987.

Syllabus by the Court

Postconviction. An evidentiary hearing on a postconviction motion is required upon an appropriate motion containing factual allegations which, if proved, constitute an infringement of a constitutional right.

Peter K. Blakeslee, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

GRANT, Justice.

Defendant appeals from the denial of his petition for postconviction relief in the district court for Lancaster County. On April 17, 1985, after defendant was found guilty in a jury trial of three counts of burglary, of three different Lincoln public schools, he was sentenced to an indeterminate term of 2- to-4 years' imprisonment on each of the three counts. The sentences were to be served consecutively.

In that case defendant appealed to this court. Defendant's counsel filed a motion to withdraw as counsel pursuant to Neb.Ct.R. of Prac. 3B (rev. 1986). Defendant then filed a pro se motion opposing withdrawal. Defendant's motion in opposition consisted of complaints about defense counsel's failure to call other witnesses or to investigate facts which these witnesses would purportedly testify to, thereby denying defendant effective assistance of counsel. This court granted counsel's motion to withdraw, and defendant's convictions and sentences were affirmed in State v. Jackson, 221 Neb. xx (case No. 85-445, Jan. 14, 1985).

On August 7, 1986, defendant filed a pro se "Motion to Vacate and Set Aside Judgment and Sentence," pursuant to Neb.Rev.Stat. § 29-3001 (Reissue 1985). The motion was in 14 numbered paragraphs, alleging generally the ineffective assistance of trial counsel and setting out specifically allegations of such ineffective assistance. On September 22, 1986, defendant filed an amended motion to vacate, with the same general allegations of ineffective counsel, but setting out specific allegations of such ineffective assistance in 50 paragraphs. Defendant prayed for a hearing on his motion and for an order requiring the State to show cause why his conviction should not be set aside. The State opposed defendant's motion. After a hearing at which defendant was present and requested counsel, defendant's motion was denied by the trial court's order that the "files and records and exhibits received show that defendant is entitled to no relief and an evidentiary hearing is not required. Motions of defendant for vacation of sentence are overruled. Motion of defendant for appointment of counsel is overruled."

On November 14, 1986, the defendant timely appealed. On November 17, upon the district court's own motion, an attorney was appointed to represent defendant on appeal to this court.

Defendant's four assignments of error may be consolidated into two: (1) The trial court erred in not determining that defendant had been denied the effective assistance of counsel at his trial; and (2) the court erred in not granting an evidentiary hearing on defendant's motion for postconviction relief.

With regard to the alleged error in not granting a hearing on defendant's postconviction motion, we are governed by our general rule that an evidentiary hearing is not required if the motion and the files and records of the case show that the defendant is not entitled to relief. § 29-3001; State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987). On the other hand, the statute requires a "prompt hearing" on an appropriate motion containing factual allegations which, if proved, constitute an infringement of a constitutional right. State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985). It is obvious that defendant has a constitutional right to effective counsel. As will be shown below, the trial court erred in denying an evidentiary hearing on defendant's motion, because the record does not show that defendant was not entitled to a hearing.

Defendant's issues which he contends support his claim of ineffective counsel are grouped into five in his brief: (1) that his trial counsel failed to challenge, on fourth amendment grounds, the seizure of certain evidence from defendant's vehicle; (2) that his trial counsel failed to challenge, on fifth amendment grounds, statements obtained from defendant by police officers; (3) that trial counsel failed to adequately prepare for trial in that he took no depositions of any witnesses, failed to discuss trial strategy with the defendant, and failed to contact and call to testify witnesses provided to defense counsel by defendant; (4) that trial counsel "failed to object to testimony of defendant's witness Randy Sabin when said witness revealed that the prosecutor had phoned Sabin and questioned him on the pretense that the prosecutor was defendant's attorney"; and (5) that trial counsel failed to object to the prosecutor's questions of defendant relating to his prior criminal record.

The general rules in considering appeals from the denial of postconviction relief are that a motion for postconviction relief may not be used to obtain review of issues which could have been raised on direct appeal, that a defendant seeking postconviction relief has the burden of establishing a basis for such relief, and that the findings of the district court in denying such relief will not be disturbed on appeal unless they are clearly erroneous. State v. Rivers, supra; State v. Evans, 224 Neb. 64, 395 N.W.2d 563 (1986); State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).

With specific regard to the issue of relief sought on the basis of ineffective counsel, this court has adopted a two-part test: first, the attorney must perform at least as well as an attorney in the area with ordinary skill in criminal law; and, second, the attorney must conscientiously protect the defendant's interests. In addition, the defendant must show that in the absence of the attorney's error, there is a reasonable probability that the result would have been different. State v. Rivers, supra; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We reserve consideration of defendant's first claim. With regard to defendant's second claim concerning defendant's statement, the record shows that at the time of the police interview with defendant, he was not under arrest nor in custody; and the record also shows that the statement was not used in the prosecution's case in chief, but only in remote impeachment as to whether defendant had said he had "nothing against them [the schools]." Defendant's objection in this contention is without any merit.

With regard to defendant's third contention, that his counsel failed to properly investigate and adequately prepare for trial, the record shows that counsel ably represented defendant in a lengthy preliminary hearing, in which six prosecution witnesses testified and were thoroughly cross-examined. Before trial, defendant's counsel presented two motions in limine, which were both granted by the trial court. The police reports were examined by counsel and by defendant. During the trial, defendant's counsel vigorously cross-examined all the prosecution witnesses and presented four witnesses and the defendant as witnesses for the defense. With regard to the alleged failure to call other witnesses, examination of the record shows that the witnesses whom defendant has now identified as those who should have been called would probably not have been helpful to defendant and, in some cases, might well have further damaged his cause. Further, the decision to call, or not call, witnesses is a matter of trial strategy and within counsel's judgment. State v. Evans, supra; State...