State v. Ortiz
| Decision Date | 07 November 2003 |
| Docket Number | No. S-02-1051.,S-02-1051. |
| Citation | 670 N.W.2d 788,266 Neb. 959 |
| Parties | STATE of Nebraska, Appellee, v. Lawrence J. ORTIZ, Appellant. |
| Court | Nebraska Supreme Court |
Lawrence J. Ortiz, pro se.
Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.
On February 13, 1971, Lawrence J. Ortiz was convicted of murder in the first degree and sentenced to life imprisonment by the Buffalo County District Court. This appeal involves the district court's denial of Ortiz' third motion for postconviction relief.
On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Narcisse, 264 Neb. 160, 646 N.W.2d 583 (2002).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Dandridge, 264 Neb. 707, 651 N.W.2d 567 (2002). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Id.
The circumstances which led to Ortiz' conviction and sentence may be found in State v. Ortiz, 187 Neb. 515, 192 N.W.2d 151 (1971). We repeat only those facts that are relevant to this appeal. On Friday, August 28, 1970, Ortiz and the victim registered at a motel in Lincoln, Nebraska. The next evening, they were out eating and drinking until 1:30 a.m. Sunday. Ortiz registered alone at a motel in Kearney, Nebraska, at approximately 9:30 a.m. on Sunday. He left the motel before 7 o'clock Monday morning, and later that day, he sold his automobile to a Lincoln used-car dealer. Human blood was subsequently found on the rear floor mat and the chrome strip under the right door of the automobile.
On Monday, August 31, 1970, a brush fire occurred in an area adjacent to the Platte River approximately 15 miles west of Kearney and 3 miles south and 11/4 miles east of Elm Creek, Nebraska. The body of the victim was found on the edge of the burned patch, and there were marks indicating the body had been dragged from a lane referred to as a "river trail." The victim had been badly beaten around the face, and her hands had been severed. The body was burned in certain areas and was nearly bloodless.
On direct appeal, Ortiz challenged the sufficiency of the evidence and asserted error in the admission of evidence and in a denial of the right to introduce surrebuttal testimony. The judgment of the district court was affirmed. See id.
Ortiz' first postconviction motion was filed on February 28, 1973. Ortiz asserted, summarized and restated, (1) that he was denied his right to due process because the State failed to prove motive, premeditation, deliberation, and intent and failed to connect him with the killing; (2) that he was denied due process because the district court denied his request for a continuance until a subpoenaed witness had been located; (3) that he was denied his right to a fair and impartial trial because the State presented rebuttal testimony of a witness that had not been endorsed; (4) that the State had not proved where the victim was killed; and (5) that he was denied his right to a fair and impartial trial due to a pretrial order that he should remain in handcuffs throughout the trial. Postconviction relief was denied in March 1973 by the Buffalo County District Court. There is no record that Ortiz appealed this decision.
Ortiz' second motion for postconviction relief was filed on February 12, 1976. In that motion, Ortiz again sought to set aside the judgment and sentence of the district court. He alleged ineffective assistance of counsel for failure to move for a continuance due to the unavailability of the same subpoenaed witness described in the 1973 postconviction motion. Ortiz' second motion for postconviction relief was denied in May 1976. The district court stated that the motion contained no new basis for postconviction relief that was not available to Ortiz at the time the 1973 motion was filed and that he was not entitled to relief under the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 to 29-3004 (Reissue 1989). There is no record that Ortiz appealed this decision.
The district court granted Ortiz' motion in July 2002 and set out the specifics of the DNA testing. That matter is not before us at this time.
On August 21, 2002, Ortiz filed a third motion for postconviction relief in the Buffalo County District Court. Ortiz asserted (1) that the Buffalo County District Court lacked jurisdiction over the offense because it was not committed in Buffalo County, (2) that he was denied a fair trial because of prosecutorial misconduct, (3) that he was denied a fair trial because of jury misconduct, and (4) that he was denied his right to effective assistance of counsel on his direct appeal. As part of his argument, Ortiz claimed that DNA testing will show that bloodstains recovered from his car did not originate from the victim.
The district court denied Ortiz' third motion for postconviction relief on September 4, 2002. The district court found that all of the issues raised in the motion have previously been raised or could have been raised in Ortiz' prior postconviction motions. Ortiz timely appealed.
Ortiz assigns, restated, that the district court erred in denying his third motion for postconviction relief while the results of the DNA testing were still pending. Additionally, he assigns that the court reporter and the district court have not prepared the bill of exceptions as requested and in accordance with the rules of this court.
Ortiz' postconviction motion identified four issues: (1) whether the Buffalo County District Court lacked jurisdiction over the offense because it was not committed in Buffalo County, (2) whether Ortiz was denied a fair trial because of prosecutorial misconduct, (3) whether he was denied a fair trial because of jury misconduct, and (4) whether he was denied his right to effective assistance of counsel on direct appeal. The district court found that all of these matters had previously been raised or could have been raised.
We first note that Ortiz is barred from relying on prosecutorial or jury misconduct as a basis for his third postconviction motion. These issues were known to Ortiz and his counsel at the time of trial, and there is no evidence that either was raised on direct appeal. It is well settled that a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
With respect to Ortiz' claim concerning ineffective assistance of counsel, Ortiz raised this issue in his second motion for postconviction relief in the context of counsel's failing to move for a continuance due to the unavailability of a defense witness. An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. Id. Additionally, the Nebraska Postconviction Act states in part: "The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner." § 29-3001.
Ortiz' ineffective assistance of counsel claim is procedurally barred. For the sake of...
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