State v. Lieberman, 85-296

• Decision Date: 28 February 1986
• Docket Number: No. 85-296,85-296
• Citation: 382 N.W.2d 330,222 Neb. 95
• Parties: STATE of Nebraska, Appellee, v. Steven P. LIEBERMAN, Appellant.
• Court: Nebraska Supreme Court

Page 330

382 N.W.2d 330

222 Neb. 95

STATE of Nebraska, Appellee, v. Steven P. LIEBERMAN, Appellant.

No. 85-296.

Supreme Court of Nebraska.

Feb. 28, 1986.

Syllabus by the Court

1. Trial: Pleadings: Evidence. The overruling of a motion in limine does not eliminate the need to object to the introduction of evidence in order to preserve the error.

2. Effectiveness of Counsel. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

3. Criminal Law: Trial: Attorney and Client. The decision to object or not to object is part of trial strategy, and this court gives due deference to defense counsel's discretion in formulating trial tactics.

4. Criminal Law: Effectiveness of Counsel. To maintain a claim of ineffective assistance of counsel, the record must affirmatively support the defendant's position.

5. Trial: Effectiveness of Counsel. It is a well-established rule in this state that a decision to call or not to call a witness, made by counsel as a matter of trial strategy, even if the choice may prove to be incorrect, does not, without more, sustain a finding of ineffectiveness of counsel.

6. Motions for New Trial. New evidence offered in support of a motion for new trial must be so potent that, by strengthening evidence already offered, a new trial would probably result in a new verdict.

James C. Stecker, Columbus, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

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

WHITE, Justice.

Steven P. Lieberman appeals from his conviction on charges of conspiracy, robbery, and use of a firearm in the commission of a felony. In an amended information Lieberman was also charged with being a habitual criminal, in violation of Neb.Rev.Stat. § 29-2221 (Reissue 1979). A jury found Lieberman guilty on counts I, II, and III.

Following a hearing at which the district court adjudged Lieberman to be a habitual criminal, the trial judge sentenced Lieberman on count I, conspiracy, to 15 years' imprisonment in the Nebraska Penal and Correctional Complex; on count II, robbery, to 15 years' imprisonment, to be served concurrently with the sentence imposed on count I; and on count III, use of a firearm in the commission of a felony, to 10 years' imprisonment, to be served consecutively to the sentences imposed in counts I and II.

On February 17, 1984, at approximately 8:30 p.m., two masked men, one carrying a bag and the other a gun, entered the Holiday Liquors store in Columbus, Nebraska, and demanded money. The store employee on duty emptied the currency contents of the cash register into the bag and the pair fled.

During the investigation that same evening, Columbus police officers discovered footprints leading toward the store, which officers traced to a house rented by a Tim Johnson. Johnson, Chris Landin, also known as Chris Keller, Randy Arnone, and defendant Lieberman were at the house when police arrived. Landin subsequently confessed and thereafter named a number of parties as participants in the robbery. After naming three different accomplices Landin implicated Lieberman as a participant in the robbery. Lieberman was arrested and charged with the offenses of which he was later convicted.

Lieberman filed a motion in limine to limit testimony concerning a prior conviction of robbery in 1979. The district court overruled the motion.

At trial Chris Landin testified for the State. On direct examination he stated that Steve Lieberman had been convicted in 1979 of robbing a fast-food restaurant in Columbus and had spent time in the state penitentiary for the crime. Landin also testified that he, Landin, had been charged with and convicted of robbing the Holiday Liquors store. Tim Johnson also testified that Lieberman had been convicted in the 1979 robbery and that he, Johnson, had already been convicted and sentenced for his participation in the Holiday Liquors store robbery. Lieberman's counsel did not object to the State's questioning of either Landin or Johnson on these matters. Landin and Johnson identified Lieberman as a participant in the robbery.

The jury found Lieberman guilty on all counts. Lieberman filed a motion for new trial on July 25, 1984, and requested the court to appoint new counsel. New counsel was appointed.

At an enhancement hearing on August 17, 1984, for the purpose of determining whether Lieberman was a habitual criminal, the court found that, based upon the records of prior convictions presented by the State, Lieberman was a habitual criminal as defined by § 29-2221. On December 21, 1984, the court sentenced Lieberman to enhanced sentences on each of the three counts.

At the March 1, 1985, hearing on his amended motion for new trial, Lieberman presented affidavits which he claimed, in the aggregate, constituted significant newly discovered evidence entitling him to a new trial. The trial court overruled the motion, and this appeal followed.

In his first assignment of error, Lieberman claims that the trial court erred when it overruled his motion in limine and allowed Johnson's and Landin's testimonies about Lieberman's prior conviction and their own status as convicted felons.

In State v. Harper, 215 Neb. 686, 340 N.W.2d 391 (1983), we held that the overruling of a motion in limine does not eliminate the need to object to the introduction of evidence in order to preserve the error. State v. Harper is dispositive of Lieberman's first assignment of error. Lieberman's counsel failed to object at trial when the State questioned Landin and Johnson on direct examination. Because there is no objection in the record, there is no question to be examined by this court on appeal. The district court's order denying the motion in limine is not an appealable order. State v. Harper, supra (citing State v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983)).

Lieberman asserts trial counsel's failure to object to the testimony of Landin and Johnson as the partial basis for his next assignment of error. Lieberman claims that this act, along with counsel's failure to call certain witnesses, constituted ineffective assistance of counsel, in violation of guarantees of the sixth amendment of the U.S. Constitution.

In State v. Robinson, 218 Neb. 156, 352 N.W.2d 879 (1984), and again in State v. Harper, 218 Neb. 870, 359 N.W.2d 806 (1984), we set out in some detail the standards by which effective assistance of counsel is measured. In Robinson we assessed the validity of the defendant's claim according to the two-part test set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Quoting Strickland, we said in Robinson 218 Neb. at 159-60, 352 N.W.2d at 881:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

.... Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Further quoting Strickland, we said in Robinson at 160-61, 352 N.W.2d at 882:

The defendant must show that there is 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.

....

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt....

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

The record shows that Lieberman's trial counsel did not object when the State elicited testimony from Landin and Johnson concerning their status as convicted felons. Chris Landin related on direct examination his participation in the Holiday...