State v. Meis, 86-064

• Decision Date: 24 October 1986
• Docket Number: No. 86-064,86-064
• Citation: 223 Neb. 935,395 N.W.2d 509
• Parties: STATE of Nebraska, Appellee, v. Daniel Thomas MEIS, Appellant.
• Court: Nebraska Supreme Court

Page 509

395 N.W.2d 509

223 Neb. 935

STATE of Nebraska, Appellee, v. Daniel Thomas MEIS, Appellant.

No. 86-064.

Supreme Court of Nebraska.

Oct. 24, 1986.

Syllabus by the Court

1. Postconviction: Appeal and Error. A defendant may not, in a postconviction hearing, raise questions which could have been raised on direct appeal.

2. Records: Appeal and Error. Where evidence or rulings do not appear in the record, they cannot be considered on appeal.

3. Postconviction. In order to state a cause of action for postconviction relief, the motion must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights; allegations which are mere conclusions are insufficient.

4. Effectiveness of Counsel: Proof. One of the elements of an ineffective assistance of counsel claim is a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

5. Criminal Law: Effectiveness of Counsel. The standard for determining the effectiveness of counsel in a criminal case is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant has the burden to show how or in what manner his counsel was ineffective.

6. Trial: Effectiveness of Counsel. Generally, the decision to object or not to object to comments made by the prosecution during closing argument is a part of trial strategy.

7. Trial: Effectiveness of Counsel. Due deference is granted to the discretion of counsel to formulate trial tactics, particularly where it appears no valid objections exist.

8. Trial: Witnesses: Effectiveness of Counsel. A decision to call, or not call, a particular witness, made by counsel as a matter of trial strategy, does not without more sustain a finding of ineffectiveness of counsel.

Richard Scott, Lincoln, for appellant.

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

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

HASTINGS, Justice.

Defendant appeals an order of the district court for Antelope County denying his request for postconviction relief. We affirm.

Following a jury trial in the district court for Antelope County, defendant, Daniel Thomas Meis, was convicted of first degree murder and use of a firearm in the commission of a felony. He was sentenced to life imprisonment and a consecutive term of 5 years. Meis appealed his conviction, which was affirmed in State v. Meis, 217 Neb. 770, 351 N.W.2d 79 (1984).

Defendant then filed a motion for postconviction relief in the district court for Antelope County. A hearing was held on defendant's claims that he was denied effective assistance of counsel at his trial and on appeal and that the prosecutor conducted himself in such a way as to result in prosecutorial misconduct. The district court allegedly refused to hear evidence on defendant's numerous other claims because they could have been raised on direct appeal. After the hearing the district court ruled that defendant had failed to meet his burden of proof on the prosecutorial misconduct and ineffective assistance of counsel claims and, therefore, denied defendant's request for postconviction relief. Defendant appeals.

Meis contends that the district court abused its discretion in denying his request for postconviction relief. Specifically, he contends that the district court erred when it (1) refused to hear evidence on paragraphs II, IV, V, VI, VII, VIII, and X of his third amended petition; (2) failed to find that the prosecutor conducted himself in such a way as to result in prosecutorial misconduct; and (3) failed to find that he was denied effective assistance of counsel at trial and on appeal.

Defendant first alleges that during a pretrial proceeding on October 30, 1985, the district court ordered him not to present evidence on paragraphs II, IV, V, VI, VII, VIII, and X of his third amended petition at the hearing set for January 6 1986. These items referred to the sufficiency of the evidence, the failure to grant a change of venue, the admission of certain pictures, the court's failure to give corrective instructions on its own motion, the failure to grant defendant a short continuance at one point in the trial, the trial court's failure to make an entry of record as to the voluntariness of defendant's impeaching statement, and the denial of certain voir dire questions of prospective jurors. These claims all could have been, and some were, raised on direct appeal. A defendant may not, in a postconviction hearing, raise questions which could have been raised on direct appeal. State v. Juhl, 218 Neb. 792, 359 N.W.2d 109 (1984).

In any event, defendant has not presented this court with a record of that particular portion of the pretrial proceedings and order which supposedly prevented him from raising those issues. As we stated in Chalupa v. Chalupa, 220 Neb. 704, 705, 371 N.W.2d 706, 707 (1985): "Where evidence or rulings do not appear in the record, they cannot be considered on appeal." Because the October 30, 1985, ruling does not appear in the record, defendant's first assignment of error must be rejected.

We deal next with defendant's second objection, that the prosecutor conducted himself in such a way as to result in prosecutorial misconduct. As has been stated, a defendant in a postconviction proceeding may not raise questions which could have been raised on direct appeal. Counsel for the defendant all but conceded this point during oral argument when he made it clear that he was relying primarily upon the claimed failure of former counsel to object to such conduct during the trial, or to raise that issue on appeal, in support of his present claim of ineffective assistance of counsel. Because prosecutorial misconduct could have been raised on appeal, defendant's second assignment of error must also be rejected.

This brings us to the defendant's final assignment of error, that his counsel was ineffective at trial and on appeal. Specifically, in paragraph III of his third amended petition, Meis alleged that trial counsel was ineffective in that he failed to (1) object to numerous misstatements of the prosecutor, in his closing arguments, concerning testimony; (2) procure witnesses favorable to defendant or who would have tended to prove that there had been witness tampering by the victim's father; (3) find material that was available and that would have tended to prove the neutron activation test was unreliable and had been contaminated with blood and dirt; (4) discover materials which were available and which would have cast serious doubt on the credibility of Officer Bailey's testimony concerning an oral statement allegedly made by defendant; (5) request tests be run on decedent's fingernails, when such tests would have tended to prove that the defendant's version of the events was true and credible; (6) object to a death-qualified jury's being impaneled; (7) present evidence in support of his motion for change of venue, when such evidence was available in the form of statistics; (8) request a record be made of the opening arguments; (9) request a record be made of voir dire; (10) depose persons in the community who had stated that defendant could not get a fair trial due to the current feelings in the community; (11) make any specific motions for the police reports concerning the incident; (12) make and pursue his motion for a new trial at the end of the State's case in chief; (13) present mitigating and extenuating evidence at the time of sentencing; (14) complete the appeal; (15) make objections to testimony and evidence; and (16) fully cross-examine witnesses. As a further claim of ineffectiveness of counsel, defendant alleged that this court erred in removing original counsel days before argument, in that the time allotted between the appointment of counsel and the oral argument was insufficient to allow appointed counsel adequate time to research and prepare his case.

Several of the defendant's allegations of ineffective assistance of counsel can be dealt with summarily. As we stated in State v. Robinson, 215 Neb. 449, 450, 339 N.W.2d 76, 77 (1983): "[I]n order to state a cause of action for post conviction relief, the motion must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights; allegations which are mere conclusions are insufficient." One of the elements of an ineffective assistance of counsel claim is a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions. State v. Manchester, 220 Neb. 41, 367 N.W.2d 733 (1985). Since one of the elements of an ineffective assistance of counsel claim is prejudice, the defendant, in order to state a cause of action for such a claim, must allege facts which, if proved, show that the defense of his case was prejudiced by his attorney's actions or inactions.

In several of the defendant's allegations of error he did not allege facts which show that he suffered prejudice as a result of his attorney's actions. Specifically, the defendant did not allege facts showing how he suffered prejudice when he stated that counsel was ineffective when he failed to object to a death-qualified jury's being impaneled; request a record be made of the opening arguments; request a record be made of voir dire; make any specific motions for the police reports concerning the incident; make and pursue his motion for a new trial at the end of the State's case in chief; present mitigating and extenuating evidence at the time of sentencing; complete the appeal; make objections to testimony and evidence; and fully cross-examine witnesses. Not only did the defendant fail to allege prejudice in his motion, he also did not prove prejudice at the evidentiary hearing. Without the necessary allegations and proof of prejudice to...