State v. Lotter

• Decision Date: 11 July 2003
• Docket Number: No. S-01-091, No. S-01-093., No. S-01-092
• Citation: 664 N.W.2d 892,266 Neb. 245
• Parties: STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.
• Court: Nebraska Supreme Court

664 N.W.2d 892

266 Neb. 245

STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.

Nos. S-01-091, S-01-092, S-01-093.

Supreme Court of Nebraska.

July 11, 2003.

James R. Mowbray and Jerry L. Soucie, Lincoln, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, J. Kirk Brown, Lincoln, Marie Colleen Clarke, and, on briefs, Don Stenberg, former Attorney General, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

In 1995, John L. Lotter was convicted of three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary. In 1996, a three-judge panel sentenced him to death on each count of first degree murder. He received sentences of incarceration on the burglary and use of a weapon convictions. On direct appeal, this court vacated the sentence on the burglary conviction but affirmed the convictions and sentences on all other charges. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999). In these consolidated cases, Lotter filed motions for postconviction relief, a new trial, and for writ of error coram nobis. All of these motions were denied by the district court for Richardson County, and Lotter perfected these appeals, which were consolidated for briefing and argument.

The consolidated appeals were under submission to this court when, on June 24, 2002, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Lotter then filed motions in this court requesting that his death sentences be vacated and the causes remanded to the district court for imposition of life sentences pursuant to Ring. The State resisted those motions. We ordered supplemental briefs and oral argument on the issues posed by Ring and additional supplemental briefs on the issues posed by the 2002 amendments to Nebraska's capital sentencing statutes enacted in response to that decision. See 2002 Neb. Laws, L.B. 1.

We deny Lotter's motions to vacate his death sentences based upon our determination that Ring does not apply to collateral challenges to sentences which were final when Ring was decided. We affirm the order of the district court denying Lotter's motions for postconviction relief, new trial, and writ of error coram nobis.

I. BACKGROUND

Lotter's convictions relate to the deaths of Teena Brandon, Lisa Lambert, and Phillip DeVine in Richardson County, Nebraska, in December 1993. A detailed recitation of the facts underlying the convictions is set forth in State v. Lotter, supra, and only the facts relevant to our analysis of this postconviction proceeding will be repeated here. Prior to Lotter's trial, Thomas M. Nissen, also known as Marvin T. Nissen, was convicted in a separate trial of first degree murder in the death of Brandon and second degree murder in the deaths of Lambert and DeVine. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). Nissen did not testify at his trial. He had not yet been sentenced at the time of Lotter's trial. On Monday morning, May 15, 1995, prior to opening statements in Lotter's trial, the following exchange occurred outside the presence of the jury:

THE COURT: ... With regard to [Nissen's] Motion to Quash, I had a conversation last night with [Nissen's counsel] and defense counsel—

....

... Or prosecution, yes. Excuse me. Now, I'm gonna let them explain to you what's goin'—what the nature of that was, because I think you're entitled to know, in view of your Motion [in Limine]. Okay.

[Prosecution]: Uh—We're negotiating an agreement that would have him [Nissen] testify in this matter; it's not been finalized.

THE COURT: It has not been finalized?

[Prosecution]: No. Oh, yeah, that's right. The—And [Nissen's counsel], I think, agreed to continue his Motion to Quash until such time as Nissen would be called, I think that's the extent of it.

Lotter's counsel testified in these postconviction proceedings that this exchange was the first time he had any knowledge of an agreement that would secure Nissen's testimony at Lotter's trial. The agreement was finalized that evening. According to the terms of the agreement, Nissen agreed to testify truthfully against Lotter and, in exchange, the State agreed not to pursue the death penalty against Nissen for the murder of Brandon. One term of the agreement referenced a meeting between Nissen's counsel and the trial judge, who also was the presiding judge at Lotter's trial. On May 17, Nissen testified that he and Lotter traveled to Lambert's farmhouse together on December 31, 1993, in search of Brandon in order to kill her and agreed that they would also kill anyone else they found there. Nissen testified that he stabbed Brandon but that Lotter fired the shots that killed all three victims.

Lotter testified in his own defense at trial. He denied any participation in either the planning or perpetration of the murders and stated that he was not present when they were committed. He testified that Nissen had not been truthful in his testimony regarding Lotter's involvement in the crimes and that other witnesses who gave incriminating testimony against him were either lying or mistaken.

In February 1996, a three-judge panel sentenced Lotter to death. We affirmed the murder convictions and capital sentences, as well as the convictions and sentences on the related weapons charges, on direct appeal. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999). Subsequently, on August 3, 1999, Lotter filed pro se verified motions for postconviction relief in each of the murder cases. In those motions, he alleged as grounds for relief (1) that the trial judge engaged in improper ex parte communication, (2) that this court on direct appeal had created a new duty on the part of trial counsel to move for the trial judge's recusal, (3) that his trial counsel was ineffective for failing to move for recusal of the trial judge, and (4) that trial counsel was ineffective for failing to make various evidentiary objections. Lotter requested the appointment of counsel on the same date. On November 16, 1999, the district court conducted a "preliminary review" of the motions and concluded that Lotter was entitled to an evidentiary hearing on the third and fourth grounds, relating to ineffective assistance of counsel, but was not entitled to an evidentiary hearing on the other grounds. The court also appointed counsel to represent Lotter in the postconviction proceeding.

On December 9, 1999, Lotter, through his appointed counsel, moved to consolidate the three cases and filed an amended motion for postconviction relief in the consolidated proceeding, asserting three additional grounds. Two of the additional grounds were based upon an affidavit of Jeff Haley, who had at one time shared a cell with Nissen. Haley's affidavit was attached to the amended postconviction motion. Haley averred that while they were incarcerated together, Nissen told Haley that he, not Lotter, had fired the shots that killed all three victims. Lotter alleged that this evidence established that his convictions and sentences were obtained through the knowing use of false testimony and were therefore invalid. As an additional ground, Lotter alleged that death by electrocution is unconstitutional. At the same time that he filed his amended motion for postconviction relief, Lotter filed a motion for writ of error coram nobis in the consolidated proceeding, asserting that the statements made by Nissen to Haley were exculpatory both as to Lotter's guilt or innocence and as to his sentences. He also filed a motion for new trial in the consolidated proceedings, based upon the statements allegedly made by Nissen to Haley.

On December 16, 1999, the district court conducted a "preliminary review" of the amended postconviction motion. Noting that it had already made a finding on the first four grounds, the court held that Lotter was also entitled to an evidentiary hearing on the grounds based upon Haley's affidavit, but not upon the ground alleging that the death penalty was unconstitutional.

The evidentiary hearing commenced on October 26, 2000, and was completed on November 22. Lotter's motions for a writ of error coram nobis and for a new trial were joined for consideration at the hearing. Lotter's trial counsel was questioned and testified about the fact that he did not object to various evidentiary matters, which will be discussed in more detail in our analysis of Lotter's ineffective assistance of counsel claims. Trial counsel also testified that at the time of trial, he had no knowledge of an improper ex parte communication between the prosecution and the trial judge. Counsel testified that he interpreted the reference on the record to a communication with the judge regarding Nissen's testimony as merely a procedural matter. He further testified that he interpreted the provision in the State's agreement with Nissen which referenced a meeting with the judge as referring to a meeting that would take place in the future, prior to Nissen's sentencing. Counsel testified that although the trial judge was generally ruling in Lotter's favor on many issues, he would have moved to recuse if he had known all of the facts regarding arrangements to secure Nissen's testimony against Lotter.

Haley's deposition, taken on October 18, 2000, was offered into evidence for substantive purposes under the penal interest exception to hearsay, Neb.Rev.Stat. § 27-804(2)(c) (Reissue 1995). The State objected to the admission of the evidence based upon relevancy, foundation, and hearsay. The objections were taken under advisement.

Haley testified in his deposition that he was Nissen's cellmate at the Lincoln Correctional Center in 1997. Nissen was reading a book at that time about the Brandon murder and was...