State v. Malone
| Decision Date | 16 April 2021 |
| Docket Number | S-20-460.,Nos. S-20-118,s. S-20-118 |
| Citation | 957 N.W.2d 892,308 Neb. 929 |
| Parties | STATE of Nebraska, appellee, v. Kevin W. MALONE, appellant. |
| Court | Nebraska Supreme Court |
Richard L. Boucher and Bradley H. Supernaw, of Boucher Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Kevin W. Malone challenges his convictions and sentences, alleging that at trial and on direct appeal he was provided ineffective assistance of counsel and subjected to prosecutorial misconduct. His motion seeking postconviction relief was denied without an evidentiary hearing. Malone appealed.
With that appeal pending, Malone found what he thought were three misstatements in the bill of exceptions. He filed an application before the Nebraska Court of Appeals to remand the cause for a hearing to determine whether to amend the bill of exceptions. After a hearing, the district court denied relief. Malone again appealed.
For the reasons stated herein, we find that the arguments contained in Malone's appeals are without merit. We affirm.
In May 2017, Malone was tried by a jury on counts of motor vehicle homicide, manslaughter, leaving the scene of a personal injury accident resulting in serious bodily injury or death, and driving without an ignition interlock device. The charges stemmed from a 2016 car-motorcycle collision in Omaha, Nebraska. After Malone had run a red light, his car and Justin Hart's motorcycle collided, resulting in Hart's death.
The jury found Malone guilty on all four counts. After accepting the jury's verdict, the district court sentenced Malone to a total of 40 to 50 years’ imprisonment and revoked his driver's license for 15 years. The Court of Appeals affirmed, rejecting Malone's claims of insufficient evidence and excessive sentences.1
During his direct appeal, Malone found what he believed were misstatements in the bill of exceptions. The court reporter at Malone's trial had certified that the bill of exceptions was "correct and complete." But, disputing this, Malone sent a letter to the court reporter in April 2018, alleging that three exchanges at trial between the prosecutor and him had been omitted from the bill of exceptions. Malone requested that the court reporter review the audio recording from trial to verify whether these exchanges had indeed occurred. He also requested access to the audio recording.
The court reporter responded with a letter, stating, "I have listened to the entire cross-examination [at issue,] and the [b]ill of [e]xceptions that you have is an accurate transcription of what was said in court on that day."
Malone next wrote to the district court judge who had presided over his trial. In June 2018, that judge replied to Malone's letter by noting that she had "reviewed the record" and determined Malone's "claim that there is testimony missing ... is unfounded." The judge accordingly denied Malone's request to access the audio recording from trial because Malone had already been "provided with the bill of exceptions as requested."
In January 2019, Malone filed a pro se "Complaint for Writ of Mandamus" in the district court for Douglas County, seeking to compel production of the audio recording from his trial. That complaint was followed by pro se motions for a "Change of Judge," for "Audio Record per Public Records Law," and for "Discovery Evidence: Sound [R]ecordings." Malone's complaint and motions were denied, and in October 2020, we dismissed his appeal on jurisdictional grounds.2
In June 2019, with his mandamus action still pending, Malone filed a verified motion for postconviction relief. After having been represented by the same attorney at trial and on direct appeal, Malone was represented by a new attorney in his postconviction action.
In his motion, Malone argued that he had been deprived of effective assistance of counsel at trial and on direct appeal by his attorney's allowance of a familial relationship with the victim to affect the representation. He also contended counsel had failed to offer evidence of Hart's own negligence, failed to effectively cross-examine witnesses, failed to move to suppress certain evidence, and failed to move to bifurcate the trial. In an amended motion, Malone added an allegation that his appellate counsel failed to raise prosecutorial misconduct. Malone also claimed that he had been denied due process at trial by the prosecutor's withholding of exculpatory impeachment evidence, use of false testimony, and commenting inappropriately. Further, Malone alleged that "errors and omissions of the [b]ill of [e]xceptions prevent[ed] a proper appeal and unduly prejudice[d]" him.
In an order dated January 14, 2020, the district court overruled Malone's postconviction motion without an evidentiary hearing. The court rejected Malone's allegations of ineffective assistance of counsel because they were not pled with specific facts or were affirmatively rebutted by the record. Further, it found Malone's claims of prosecutorial misconduct "procedurally barred, because they could have been brought on direct appeal." Finally, because a "conclusory allegation that the [b]ill of [e]xceptions is inaccurate would not be a constitutional deprivation" capable of rendering Malone's sentences void or voidable, the court also denied that claim.
Malone timely perfected an appeal.
After perfecting an appeal in his postconviction action, Malone filed an application in the Nebraska Court of Appeals "pursuant to Neb. Ct. R. App. P. § 2-105(B)(5) [(rev. 2018),]" for a "remand" to the district court, inter alia, "to correct the bill of exceptions" and play an audio recording of Malone's testimony at trial.
The Court of Appeals granted Malone's application, in part, and ordered "pursuant to ... § 2-105(B)(5) that a hearing shall be held in the Douglas County District Court" to determine whether to amend the bill of exceptions. However, the Court of Appeals specified that "[the] case is not remanded to district court."
At an evidentiary hearing held in June 2020, Malone testified that three exchanges during the prosecutor's cross-examination of him were missing from the bill of exceptions. In the first exchange, Malone recalled telling the prosecutor that he had attempted mouth-to-mouth resuscitation on Hart immediately after the collision. In the second exchange, Malone recounted a dialogue about whether Malone's car or Hart's motorcycle had initiated contact with the other, and in the third exchange, Malone alleged that in response to his explanation about why he had moved his car after the collision, the prosecutor had expressed skepticism. In addition to Malone's testimony that these three exchanges had occurred, he offered supportive affidavits from three family members who had been in attendance at trial, as well as from a private investigator who averred that he had contacted several jurors from trial, some of whom said they remembered the alleged missing exchanges.
On June 12, 2020, the district court issued an order denying Malone's motion to amend the bill of exceptions. The court held that "based on the ... sworn affidavit of [its current court reporter], there are no amendments to be made to the [b]ill of [e]xceptions." The current court reporter averred that after having listened to the audio recording from Malone's trial, she believed the bill of exceptions was accurate.
Malone timely perfected a second appeal. The Court of Appeals ordered Malone's two appeals consolidated. We granted bypass of the Court of Appeals’ review.
Malone assigns 13 errors, which we consolidate and restate as two: (1) The district court erred in denying his motion to amend the bill of exceptions, and (2) the district court erred in overruling his motion for postconviction relief without an evidentiary hearing.
Whether a party has complied with the requirements under our rules of appellate procedure is determined de novo upon a review of the record.3
In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.4
Claims of ineffective assistance of counsel involve mixed questions of law and fact.5 When reviewing claims of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error and the legal determinations de novo.6
Malone's first assignment of error concerns the veracity of the bill of exceptions.
An accurate bill of exceptions is essential to providing meaningful appellate review.7 As the only proper vehicle for bringing evidence before an appellate court,8 a bill of exceptions "imports absolute verity" once it has been submitted on appeal.9 As authorized by statute,10 the various procedures for compiling, certifying, and amending a bill of exceptions are detailed in Neb. Ct. R. App. P. § 2-105 (rev. 2018).11
After perfecting his first appeal, Malone filed an application for the Court of Appeals to "remand" for a § 2-105(B)(5) hearing to correct the bill of exceptions. The Court of Appeals granted Malone's application, in part, and ordered the district court to hold a hearing "pursuant to ... § 2-105(B)(5)." Apparently in an attempt to avoid divesting itself of jurisdiction over Malone's appeal, the Court of Appeals clarified that the
Following what it termed a "hearing on the [m]andate from the Nebraska Court of Appeals on ... Malone's [a]pplication for [r]emand to [p]roceed in [d]istrict [c]ourt to [c]...
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