State v. Nielsen
Decision Date | 09 April 1993 |
Docket Number | No. S-91-1199,S-91-1199 |
Citation | 243 Neb. 202,498 N.W.2d 527 |
Parties | STATE of Nebraska, Appellee, v. Wilfred W. NIELSEN, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Effectiveness of Counsel. Assistance of counsel means effective assistance of counsel.
2. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.
3. Postconviction: Evidence: Witnesses. In an evidentiary hearing at a bench trial for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony.
4. Postconviction: Effectiveness of Counsel: Proof. When a defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim 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 must make 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. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.
6. Criminal Law: Mental Competency. To be found sane under the M'Naghten rule, a defendant must have (1) the capacity to understand the nature of the act alleged to be criminal and (2) the ability to distinguish between right and wrong with respect to such act.
7. Constitutional Law: Effectiveness of Counsel. The Sixth Amendment guarantee of the right to the effective assistance of counsel is the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing.
8. Trial: Appeal and Error. A defendant cannot elect a particular trial strategy and then complain if it proves unsuccessful.
9. Trial: Effectiveness of Counsel. The fact that a trial strategy adopted by defense counsel (and the defendant) proves to be unsuccessful in that the defendant is convicted does not alone sustain a finding of ineffectiveness of counsel.
10. Appeal and Error. A defendant cannot complain of error which the defendant invited the court to commit.
11. Effectiveness of Counsel. The ineffectiveness of counsel will not be judged by hindsight.
12. Effectiveness of Counsel: Presumptions. In determining whether a trial counsel's performance was deficient, there is a strong presumption that such counsel acted reasonably.
13. Effectiveness of Counsel. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.
14. Intent: Evidence: Weapons. Malice may be inferred from the shooting of another person with a deadly weapon.
15. Intent: Words and Phrases. Malice is the intentional doing of a wrongful act without just cause or excuse.
16. Homicide: Intent: Evidence. The location, nature, and number of wounds inflicted are circumstances from which a jury may draw the inference that a killing is done with deliberate and premeditated malice.
17. Intent: Evidence. Malice may be inferred from words passing between defendant and victim.
18. Criminal Law: Trial: Evidence: Convictions: Appeal and Error. In the trial of a criminal case, erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt, when a defendant's conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection.
19. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence erroneously admitted is cumulative and other relevant evidence, properly admitted, or admitted without objection, supports the finding by the trier of fact.
20. Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the court in its instructions must delineate for the jury each material element the State is required to prove beyond a reasonable doubt to convict the defendant of the crime charged.
21. Trial: Expert Witnesses. The law is settled that the trier of fact is not obligated to take the opinion of an expert as binding upon it.
22. Effectiveness of Counsel. A defense attorney's duty is to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.
23. Trial: Witnesses: Effectiveness of Counsel. A strategic decision to call, or not to call, particular witnesses will not, without more, sustain a finding of ineffectiveness of counsel.
24. Effectiveness of Counsel: Appeal and Error. The court will not second-guess reasonable strategic decisions made by defense counsel.
25. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.
26. Effectiveness of Counsel: Confessions: Evidence. The failure of counsel to investigate or move to suppress a questionable confession is not per se ineffective assistance of counsel if it can be shown from the record that the evidence is so overwhelming against the defendant that failure to investigate or suppress the confession was a reasonable strategic move by counsel or that the defendant suffered no prejudice from counsel's inaction.
27. Effectiveness of Counsel. The adequacy of counsel cannot be determined solely on the basis of the amount of time counsel spent interviewing a client.
Bradley D. Holtorf, of Sidner, Svoboda, Schilke, Thomsen, Holtorf & Boggy, Fremont, for appellant.
Wilfred W. Nielsen, pro se.
Don Stenberg, Atty. Gen., and Barry Waid, Lincoln, for appellee.
Claiming he had ineffective assistance of counsel at his trial, Wilfred W. Nielsen, who is serving a life prison sentence for the November 19, 1977, shooting death of his father-in-law, Edward Grabbe, prays in this postconviction action (1) that his conviction be set aside and (2) that he be discharged or resentenced or granted a new trial, as may appear appropriate.
On his direct appeal, Nielsen's conviction and sentence for first degree murder were affirmed. See State v. Nielsen, 203 Neb. 847, 280 N.W.2d 904 (1979) (Nielsen I ).
After a thorough review of the record, we agree with the postconviction relief trial judge that Nielsen is entitled to no relief on his postconviction relief motion.
In his assignment of error in this court, Nielsen simply claims, "The [postconviction] court erred in finding that [Nielsen] received effective assistance of [trial] counsel thereby overruling and dismissing [Nielsen's] motion for post conviction relief."
Nielsen's 46-page, 162-paragraph motion for postconviction relief filed in the district court for Washington County alleges numerous ways in which he claims his trial counsel was ineffective. The Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution guarantee a criminal defendant the right to assistance of counsel. "The United States Supreme Court and this court have held that the term 'assistance of counsel' means 'effective' assistance of counsel." State v. Stewart, 242 Neb. 712, 719, 496 N.W.2d 524, 528-29 (1993), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Kern, 232 Neb. 799, 442 N.W.2d 381 (1989).
In this appeal, Nielsen basically argues that his trial counsel was ineffective in (1) making a deliberate decision to pursue a "non-existing insanity defense," brief for appellant at 8, thus allowing a State's expert psychiatric witness to describe to the jury Nielsen's guilt of first degree murder and in effect admitting Nielsen's guilt, confusing the jury as to the only defense available to Nielsen (lack of intent), and allowing prejudicial excludable evidence to be considered by the jury; (2) failing to object to an insanity instruction when the defense had introduced no evidence of insanity, unnecessarily confusing the jury, to Nielsen's prejudice; (3) failing to fully investigate and present all possible defenses available; (4) failing to move for a continuance of the trial to investigate testimony of certain witnesses; (5) failing to object to the introduction of certain evidence; (6) failing to properly prepare for trial; and (7) failing to request a manslaughter instruction.
In a pro se brief, Nielsen asserts that the postconviction relief court erred in failing to find that Nielsen's trial counsel had labored under a conflict of interest and therefore had provided Nielsen with ineffective assistance of counsel. Nielsen's trial counsel testified at the postconviction hearing that he had no conflict of interest with Nielsen. Inherent in the postconviction court's holding is a finding that Nielsen had failed to prove that his trial counsel had a conflict of interest with his client. Even Nielsen testified at his postconviction hearing that his conflict of interest claim was unproven. This assigned error needs no further discussion.
We have fully reviewed other ways not mentioned in the preceding two paragraphs that Nielsen argues that...
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State v. Williams
...of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). See State v. Clausen, 247 Neb. 309, 527 N.W.2d 609 The first prong in determining the propriety of Williams' claim is whe......
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State v. Carter
...conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). An error is harmless when the improper admission of evidence did not materially influence the jury to reach a verdict adver......
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State v. Ryan
...in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993); State v. Carter, 241 Neb. 645, 489 N.W.2d 846 When a defendant in a postconviction motion alleges a violation of his constitut......
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State v. Johnson
...the act alleged to be criminal and (2) the ability to distinguish between right and wrong with respect to such act. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). And, the showing regarding the mental state of the accused must relate to the time of the acts charged. State v. Rowe, 2......