State v. Marshall

• Decision Date: 07 January 2005
• Docket Number: No. S-03-893.,S-03-893.
• Citation: 690 N.W.2d 593,269 Neb. 56
• Parties: STATE of Nebraska, appellee, v. Damian J. MARSHALL, appellant.
• Court: Nebraska Supreme Court

690 N.W.2d 593

269 Neb. 56

STATE of Nebraska, appellee, v. Damian J. MARSHALL, appellant.

No. S-03-893.

Supreme Court of Nebraska.

January 7, 2005.

Brian S. Munnelly, Bethesda, MD, for appellant.

Jon Bruning, Attorney General, and James D. Smith, for appellee.

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

STEPHAN, J.

In 1996, Damian J. Marshall was tried before a jury and convicted of second degree murder, attempted second degree murder, and two counts of using a firearm to commit a felony. His convictions were affirmed by this court on direct appeal. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998). On January 31, 2003, Marshall filed a pro se motion for postconviction relief. The district court for Douglas County denied the motion without conducting an evidentiary hearing. Marshall appeals from that order.

FACTS

The facts underlying Marshall's convictions are set forth in detail in our opinion in State v. Marshall, supra,

and need not be fully reiterated here. Rather, we summarize those facts which relate directly to this postconviction proceeding.

Prior to Marshall's jury trial and conviction, two mistrials were declared, resulting in the discharge of the two jury panels which had been sworn. The first jury selection occurred on January 30, 1996. The court called 24 prospective jurors for voir dire. Following voir dire, each party exercised six peremptory challenges. The remaining 12 jurors and a subsequently selected alternate were sworn.

During the noon recess, C.B., one of the 12 sworn jurors, advised the bailiff that he was not sure he could hear the case. C.B. was brought into chambers and questioned by the judge and counsel. C.B. stated that he had read about the case in the newspapers and that he had been charged with manslaughter 12 years earlier, but the charges were dismissed because "it was ruled self-defense." Upon questioning, C.B. indicated that he did not think his knowledge and personal experience would reflect on his ability to be a fair and impartial juror. The judge expressed concern about whether C.B. should be removed from the jury based upon his statements and requested counsel to bring case law on the subject after a recess.

When court reconvened, the judge advised counsel that he would have excused C.B. on his own motion during voir dire if the information about C.B.'s previous arrest and manslaughter charge had been disclosed at that time. The prosecutor presented the court with documents pertaining to the charges which had been filed against C.B., which documents disclosed that the case had progressed further than indicated by C.B. before it had been dismissed. The prosecutor thereafter made a motion for mistrial without prejudice. Marshall's trial counsel opposed the motion.

After further discussion with both counsel on the same day, the judge advised counsel that because of potential bias on the part of C.B., "in good conscience I simply can't let the trial progress." He thereafter sustained the State's motion for mistrial without prejudice and discharged the jury. The record reflects no discussion with respect to replacing C.B. with an alternate juror.

On March 1, 1996, Marshall filed a plea in bar alleging that the mistrial was granted in error and that another trial would subject him to double jeopardy. The motion was heard and taken under advisement on April 22, 1996. On the same day, the second jury selection was conducted. Thirty-six prospective jurors were randomly chosen for voir dire. At the conclusion of voir dire, the prosecution and Marshall each exercised 12 peremptory challenges and the remaining 12 jurors were sworn. After a recess, the judge and counsel met with one of the jurors who disclosed that he had formed an opinion about Marshall's guilt. He was excused from the jury. The judge then proposed to counsel that two jurors be selected from a pool of six prospective jurors in order to provide one alternate and another juror to replace the juror who was excused. A discussion ensued about whether a mistrial should be declared instead. The judge declared a mistrial without prejudice to the prosecution, stating that it "would be unfair to the defendant to proceed" and "further participation of this jury in this case would lead to a substantial miscarriage of justice." Defense counsel, who had argued that a mistrial was the correct procedure, did not object.

On June 25, 1996, defense counsel made an oral plea in bar with respect to the second mistrial. On that same date, the district court overruled both pleas in bar. No appeal was taken from that order. Later the same day, a third jury selection was conducted. Thirty-six prospective jurors were randomly selected by the court for voir dire, each side exercised 12 peremptory challenges, and the jury was sworn. Thereafter, an alternate was selected and sworn and trial commenced. After the jury returned verdicts of guilty and sentences were imposed, Marshall filed his direct appeal.

Marshall's trial counsel did not represent him on appeal. His appellate counsel assigned 10 errors, including the granting of both mistrials and ineffective assistance of trial counsel. Appellate counsel argued that because the mistrials were erroneously granted, jeopardy attached, and that the trial court therefore erred in overruling Marshall's pleas in bar. We held that because Marshall did not file a timely appeal from the order denying his pleas in bar, we lacked jurisdiction to review the double jeopardy claim. We considered and rejected Marshall's contention that his trial counsel was ineffective for four specific reasons. However, Marshall did not assign on direct appeal that his trial counsel was ineffective in not perfecting a timely appeal from the denial of his pleas in bar.

Marshall filed his motion for postconviction relief on January 31, 2003, asserting ineffective assistance of trial counsel, ineffective assistance of appellate counsel in several particulars, prosecutorial misconduct, and denial of due process. Marshall specifically alleged that his trial counsel was ineffective in failing to commence a timely appeal from the denial of his pleas in bar and that his appellate counsel was ineffective in failing to raise this and other issues on direct appeal. In an order entered on July 16, the district court denied postconviction relief without an evidentiary hearing based upon its conclusion that the issues raised in the postconviction motion could have been raised on appeal and were therefore procedurally barred. With respect to the fact that no timely appeal was taken from the denial of the pleas in bar, the court noted:

At the time of the failure to timely appeal the denial of the plea in bar, the record clearly reveals [Marshall] was represented by his trial counsel and not his appellate counsel. Therefore, as previously noted, since this failure is apparent from the record on appeal and was not raised on appeal by different appellate counsel, this issue is procedurally barred on post-conviction review.

Marshall, through postconviction counsel who was neither his trial nor appellate counsel, perfected a timely appeal from the order of the district court denying postconviction relief. We moved the appeal to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

ASSIGNMENT OF ERROR

Marshall assigns that the district court erred in denying him an evidentiary hearing on his motion for postconviction relief.

STANDARD OF REVIEW

A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).

ANALYSIS

We begin by addressing Marshall's argument that Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), eliminates any procedural bar resulting from the failure of appellate counsel to raise claims of ineffective assistance of trial counsel on direct appeal. Massaro was a federal postconviction proceeding brought pursuant to 28 U.S.C. § 2255 (1994) in which the prisoner alleged ineffective assistance of trial counsel. A federal appeals court had affirmed the dismissal of the action on the ground of procedural default, due to the fact that Massaro was represented on direct appeal by new counsel who did not raise the issue of ineffective assistance of trial counsel. The Court acknowledged the general federal rule that "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice," noting that this "procedural-default rule is neither a statutory nor a constitutional requirement," but, rather, "a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." 538 U.S. at 504, 123 S.Ct. 1690. Resolving a conflict among the federal courts of appeals, the U.S. Supreme Court held that "failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255." 538 U.S. at 509, 123 S.Ct. 1690.

The Massaro Court noted that a "growing majority" of state courts follow the rule adopted by its holding. 538 U.S. at 508,123 S.Ct. 1690. This court, however, has not adopted the rule. We do not interpret Massaro as requiring that we do so, inasmuch as the Court specifically acknowledged that procedural default rules are...