State v. Joubert

• Decision Date: 04 May 1990
• Docket Number: No. 89-224,89-224
• Citation: 235 Neb. 230,455 N.W.2d 117
• Parties: STATE of Nebraska, Appellee, v. John J. JOUBERT, Appellant.
• Court: Nebraska Supreme Court

Page 117

455 N.W.2d 117

235 Neb. 230

STATE of Nebraska, Appellee, v. John J. JOUBERT, Appellant.

No. 89-224.

Supreme Court of Nebraska.

May 4, 1990.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. One seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the postconviction court will not be disturbed unless they are clearly wrong.

2. Postconviction: Evidence: Witnesses. It is the postconviction judge who, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness.

3. Postconviction: Judges: Recusal. A judge who has presided at trial is not automatically disqualified from subsequently considering a postconviction action.

4. Postconviction: Judges: Recusal. The mere assertion by a convicted defendant that he may wish to call the trial judge as a witness in a postconviction hearing does not, by itself, provide grounds for disqualifying the trial judge from presiding over the postconviction proceeding.

5. Judges: Recusal: Appeal and Error. A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge's discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

6. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

7. Postconviction: Effectiveness of Counsel: Proof. In a postconviction action seeking relief on the basis of ineffective counsel, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

8. Criminal Law: Effectiveness of Counsel: Proof. The standard for determining the adequacy of a criminal defense attorney's performance is whether the attorney performed at least as well as an attorney with ordinary training and skill in the criminal law in the area.

9. Pleas: Effectiveness of Counsel: Proof. In order to satisfy the prejudice requirement in the context of a plea, the defendant must show that there is a reasonable probability that but for counsel's errors, the defendant would not have pled and would have insisted upon going to trial.

10. Effectiveness of Counsel. While a particular lawyer's level of experience may shed light on his or her performance, it is the lawyer's performance that must be evaluated.

11. Effectiveness of Counsel. In questioning the nature of interpersonal relationships between attorneys who worked together, the consideration is not how well they got along, but how well they performed their function.

12. Expert Witnesses: Effectiveness of Counsel: Proof. Expert evidence is generally not admissible as proof that the assistance of counsel in a criminal case was ineffective.

13. Venue: Juror Qualifications. Compared to a public opinion poll, voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward an accused.

14. Witnesses: Effectiveness of Counsel: Proof. A claim of prejudice based upon counsel's failure to call witnesses is not sustained in the absence of evidence as to what the witnesses' expected testimony would be.

15. Effectiveness of Counsel: Pleas: Death Penalty. It is not a per se violation of a defendant's right to effective assistance of counsel if he is advised to plead guilty when the imposition of the death penalty is possible.

16. Judges: Evidence: Presumptions. It is presumed that judges disregard evidence which should not have been admitted.

J. Joseph McQuillan, of Walentine, O'Toole, McQuillan & Gordon, for appellant.

Robert M. Spire, Atty. Gen., and Sharon M. Lindgren for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

Defendant, John J. Joubert, appeals from the denial of the motion he filed pursuant to the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989), seeking an order "vacating or setting aside" each of the two convictions for first degree murder and the resulting sentences of death which were affirmed on direct appeal in State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986) (Joubert I ). He asserts, in summary, that the postconviction judge erred in failing to (1) disqualify himself, (2) find that Joubert's trial attorneys were ineffective by virtue of a conflict of interest and by virtue of advising him to plead guilty, and (3) find that the receipt of certain victim impact statements into evidence at the penalty phase of the trial did not prejudice Joubert. We affirm.

II. ANALYSIS

We begin our review of this matter by recalling that one seeking postconviction relief has the burden of establishing the basis for such relief and that the findings of the postconviction court will not be disturbed unless they are clearly wrong. State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Harton, 230 Neb. 167, 430 N.W.2d 313 (1988). Moreover, it is the postconviction judge who, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness. State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283 (1990); State v. Reeves, supra; State v. Domingus, 234 Neb. 267, 450 N.W.2d 668 (1990). With those cardinal principles in mind, we proceed to an analysis of each of Joubert's claims for relief.

1. Nondisqualification

With respect to the first summarized assignment of error, Joubert argues that his postconviction action should at least be remanded for a new hearing because the postconviction judge, who was also the judge presiding over the guilt phase of the trial and, as such, accepted Joubert's pleas of guilty, refused to disqualify himself from presiding over the postconviction proceedings.

Joubert based this disqualification motion upon the assertion that the judge would be called as a witness in the proceedings. This assertion, in turn, rested upon a portion of the argument relating to Joubert's second assignment of error, i.e., that Joubert's trial attorneys were ineffective in failing to litigate the issue of the admissibility of his confession, a matter which is analyzed later in part II(2)(b)(iii) of this opinion.

In attempting to support his disqualification motion, Joubert argued that his trial attorneys' failure to litigate the motion to suppress his confession could have been the result of off-the-record in camera communications between the trial attorneys and the judge. Thus, Joubert reasoned that the judge should be available as a witness and therefore, to preserve his availability as such, should not preside over the postconviction hearing. See Neb.Rev.Stat. § 27-605 (Reissue 1989), which provides that a presiding judge at the trial may not testify in that trial as a witness.

At a hearing on this motion Joubert, through his postconviction attorney, argued:

So then you get in the situation you say, "Well, how do I know you're going to use me as a witness ...? How do I know I have to disqualify myself?" So that I have to respond "I don't know until I find out. I don't know until I inquire whether, in fact, you have any information which may or may not be probative in this case." I think I have a right and an obligation to so inquire.

After further argument and a rebuttal by the State, the judge stated the following:

At this point of time I'm going to deny the motion to recuse. That's without prejudice to going ahead and file [sic] your notice to take depositions, but let me indicate in advance to you that a motion to quash ... will be looked upon with favor until you develop some evidence somewhere, either by the testimony of [the prosecutor] or the testimony of Mr. Miller or testimony of somebody that, in fact, there were communications with me that were not on the record.

Now, I can indicate to you, and it may save you time, to my memory there aren't any. I think I had [the court reporter] every single time when I had Mr. Miller and [the prosecutor] and certainly I know that when the defendant was present, and if they testify to the contrary, I'm not saying they're right or wrong. Maybe my memory's failing....

....

... [I]f you develop some testimony or evidence that makes me a witness on the factual matters, you don't need to file another motion to recuse. I'll step down on my own motion ... if, in fact, it turns out that I become a witness to some factual matters.

Thus, Joubert's disqualification motion was denied because there was no indication that there was any basis for his claim that the judge was a necessary witness in the postconviction proceeding.

Joubert's brief cites The People v. Wilson, 37 Ill.2d 617, 230 N.E.2d 194 (1967), for the proposition that in a death penalty postconviction proceeding, a judge who has knowledge of off-the-record statements from a prior proceeding at the district court level should recuse himself from the postconviction hearing, and states:

Indeed it is clear that petitioner herein was prevented from access to relevant evidence. There can be no doubt that there were many conversations that took place off the record in the judge's chambers during the proceedings of the Joubert case on the District Court level. Wilson. As such, Joubert was denied access to this material in the form of a judge's recollection of what transpired during the Joubert case. The judge from the prior proceeding was directly involved and has a version of the facts which are relevant and material and may at times offer information not available from other sources.

Brief for appellant at 37. However, the record before this court reveals no evidence of any relevant off-the-record...