State v. Jones

• Decision Date: 10 February 1989
• Docket Number: No. 87-1150,87-1150
• Citation: 435 N.W.2d 650,231 Neb. 110
• Parties: STATE of Nebraska, Appellee, v. Elijah JONES, Appellant.
• Court: Nebraska Supreme Court

Page 650

435 N.W.2d 650

231 Neb. 110

STATE of Nebraska, Appellee, v.Elijah JONES, Appellant.

No. 87-1150.

Supreme Court of Nebraska.

Feb. 10, 1989.

Syllabus by the Court

1.Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area.Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

2.Effectiveness of Counsel: Proof.To sustain a claim of ineffective assistance of counsel, the defendant must show that (1)counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

3.Effectiveness of Counsel: Proof.A convicted defendant seeking a reversal of the conviction or sentence for the reason that counsel's assistance was deficient must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is a probability sufficient to undermine confidence in the outcome.

4.Trial: Effectiveness of Counsel: Witnesses.The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves ineffective, will not, without more, sustain a finding of ineffectiveness of counsel.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Douglas J. Peterson, for appellee.

HASTINGS, C.J., WHITE, and FAHRNBRUCH, JJ., and FUHRMAN and WHITEHEAD, District Judges.

WHITE, Justice.

Defendant, Elijah Jones, appeals from an order of the district court for Douglas County denying his motion for postconviction relief.The thrust of defendant's motion to vacate and set aside judgment and sentence is a claim of ineffective assistance of counsel.

In State v. Jones, 217 Neb. 435, 350 N.W.2d 11(1984), this court affirmed the judgment and sentence of the district court for Douglas County which found the defendant guilty of first degree murder and sentenced him to a term of life imprisonment.One of the two errors we addressed in that appeal was whether there was sufficient evidence to find the defendant guilty of premeditated first degree murder.The defendant claimed that he was acting in self-defense and did not have sufficient time to think about the shooting, therefore rebutting any question of premeditation.In determining that the defendant's assignment of error lacked merit, we said: "Based upon the testimony of eyewitnesses, the physical evidence at the scene, and the expert testimony by the pathologist, the jury could have concluded beyond a reasonable doubt that Jones killed Kelly purposely and with deliberate and premeditated malice, notwithstanding the conflict in the evidence."Id. at 439, 350 N.W.2d at 13.As noted above, there was some conflict in the evidence.However, there were several eyewitnesses who saw the defendant shoot and kill Elijah Kelly on November 19, 1979.The evidence adduced at trial showed that the defendant had gone to an Omaha cardroom twice looking for the victim, once at 6 p.m. and later at 11:15 p.m.When the defendant returned to the club the second time, the victim was seated at a table playing cards.The defendant shot the victim several times as he was attempting to get up from the card table.While the victim was on the floor, apparently trying to crawl away from the table, the defendant followed him around the table, leaned over, and fired the remaining bullets into the victim's back.The evidence also showed that the victim was dressed in a manner that made concealment of a weapon unlikely, and later investigation disclosed that there was no weapon on the victim.

The defendant, in his motion, alleges that he was denied effective assistance of counsel in that his counsel failed to contact and call...