State v. Patterson

• Decision Date: 26 May 1989
• Docket Number: No. 88-577,88-577
• Citation: 232 Neb. 304,440 N.W.2d 242
• Parties: STATE of Nebraska, Appellee, v. Lee W. PATTERSON, Appellant.
• Court: Nebraska Supreme Court

Page 242

440 N.W.2d 242

232 Neb. 304

STATE of Nebraska, Appellee, v. Lee W. PATTERSON, Appellant.

No. 88-577.

Supreme Court of Nebraska.

May 26, 1989.

Syllabus by the Court

1. Postconviction: Proof: Constitutional Law. A defendant seeking postconviction relief has the burden of establishing a basis for such relief, which is available only when a constitutional right has been infringed or violated.

2. Postconviction: Appeal and Error. The findings of the district court on a motion for postconviction relief will not be disturbed unless clearly erroneous.

3. Constitutional Law: Right to Counsel: Effectiveness of Counsel. One defending a criminal charge has the constitutional right to the effective assistance of counsel.

4. Postconviction: Effectiveness of Counsel: Proof. When, in a postconviction motion, a defendant alleges a violation of his or her 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 an attorney with ordinary training and skill in the criminal law in the area.

5. Postconviction: Effectiveness of Counsel: Proof. On a motion for postconviction relief based on the ineffectiveness of counsel, there must be a showing of how the defendant was prejudiced in the defense of his or her case as a result of the attorney's actions or inactions.

Barry Waid, Hall County Public Defender, for appellant.

Robert M. Spire, Atty. Gen., and James H. Spears, Lincoln, for appellee.

BOSLAUGH, CAPORALE, and GRANT, JJ., and SPRAGUE and MULLEN, District Judges.

PER CURIAM.

Following a hearing, the district court overruled defendant-appellant Lee W. Patterson's motion for postconviction relief from the adjudication pursuant to a jury's verdict that he conspired to commit murder. Patterson's six assignments of error present but a single issue, Did the district court err in finding that he was not denied effective assistance of counsel at trial? We affirm.

Patterson was charged with first degree murder, a violation of Neb.Rev.Stat. § 28-303(1) (Reissue 1985), for killing Brian Crittenden on February 1, 1980. Attorneys engaged in the private practice of law in the community were appointed to represent Patterson, and in due course the case proceeded to trial. This trial featured two competing versions of the events of Crittenden's murder, one told by Michael McNitt, the other by Patterson.

According to McNitt, Patterson was a drug dealer, and Crittenden was his supplier. Crittenden would "front" drugs to Patterson, supplying Patterson with drugs and looking for payment later, after Patterson had made his sales. On "the day the incident took place," McNitt, his brother Phillip, Patterson, and Patterson's wife, Debra, were sharing a residence. Crittenden arrived at about 7 a.m., bringing 3 pounds of marijuana for Patterson. At the time, Patterson was asleep in an upstairs portion of the residence. McNitt invited Crittenden into his quarters in the basement, where the two smoked marijuana and snorted cocaine for some time. Crittenden then asked for a place to sleep, and McNitt allowed him to use a space in the basement.

After Crittenden had fallen asleep, McNitt went upstairs and was joined sometime thereafter by Patterson. When McNitt informed Patterson of Crittenden's presence in the basement with 3 pounds of marijuana, Patterson suggested that they "knock off" Crittenden and sell the marijuana to make rent money. Patterson explained that Crittenden had been pressuring him for money owed for past drug deliveries, and "he really didn't like Brian all that much."

After some discussion, Patterson retrieved a .22-caliber rifle from his bedroom, went into the basement, turned back, talked with McNitt about his intentions again, returned to the basement, and shot Crittenden where he lay sleeping. Patterson then returned upstairs, replaced the rifle in his bedroom, and said to McNitt, "It's done." McNitt then went to the basement and found Crittenden in bed with blood in his mouth or nostrils. Later that day, Patterson emptied Crittenden's pockets and orchestrated disposal of the body, assisted by McNitt and McNitt's brother.

According to Patterson's version of events, McNitt woke him on the morning of Crittenden's death to inform him of Crittenden's arrival. Patterson went to the basement, found Crittenden asleep, and woke him. The two then discussed selling Crittenden's 3 pounds of marijuana and whether this could be accomplished "before 6 or 7 o'clock that night." Later, according to Patterson, McNitt suggested that they shoot Crittenden. Some time later, McNitt took Patterson's rifle and shot Crittenden as he slept. Thereafter, according to Patterson, McNitt took the lead in disposing of Crittenden's body, with Patterson and McNitt's brother assisting.

Debra Patterson gave testimony that tended to corroborate her husband's version of the events. McNitt's brother invoked the protection of the fifth amendment, refusing to testify at trial.

The jury was told that pursuant to a plea bargain, McNitt was charged with conspiracy to commit murder.

Although a verbatim record of the instruction conference is not included in either the bill of exceptions in this case or the bill of exceptions in the underlying trial, State v. Patterson, case No. 44003, the transcript in this case reflects that an instruction in the form commonly referred to as a "step instruction" was given verbatim, as requested by Patterson's trial attorneys. This instruction charged the jury to first determine whether Patterson was guilty of first degree murder; if it found he was not, then the jury was to consider the lesser-included offense of second degree murder. If the jury concluded Patterson was not guilty of second degree murder, the jury was next to consider whether he was guilty of the lesser-included offense of conspiracy to commit murder. If the jury found that he was not guilty of conspiracy to commit murder, the jury was finally to consider whether he was guilty of manslaughter, returning a verdict of guilty to that charge or of not guilty. The jury returned a verdict of guilty of conspiracy to commit murder, whereupon Patterson was so adjudged and thereafter sentenced to imprisonment for a term of 16 years 8 months to 50 years.

Following conviction, Patterson moved for dismissal of his trial attorneys and appointment of substitute counsel to pursue his appeal. This motion was denied, and Patterson was represented on direct appeal by the same attorneys who handled his trial. Patterson's direct appeal challenged only the propriety of his sentence, which this court affirmed under then Neb.Ct.R. of Prac. 20 (rev.1977), 209 Neb. xx (case No. 44003, Sept. 16, 1981).

Subsequently, Patterson, now represented by the office of the Hall County public defender, filed the subject motion for postconviction relief. By the time of the hearing thereon, one of Patterson's two appointed trial attorneys had died. The remaining trial attorney testified as follows:

Q. Did you make the decision to include the lesser included offense of conspiracy to commit murder in the jury instruction prior to the trial commencing?

[Attorney]. If you'll bear with me I have to make some qualifications. I, obviously, was not lead counsel in that case so they weren't really my decisions to make; although, I understand my professional responsibilities that I'm as responsible as lead counsel. The decision was probably made by [lead counsel]. I'm not sure when he precisely made that decision. I am confident that it is something that he had contemplated for weeks before trial because of--you know, basically, what I was indicating earlier, the whole purpose of having Mr. Patterson testify was to give some options to the jury. And obviously the way to give the options to the jury is to provide them with the court's instruction for some other lesser offense.

A defendant seeking postconviction relief has the burden of establishing a basis for such relief, which is available only when a constitutional right has been infringed or violated. The findings of the district court will not be disturbed unless clearly erroneous. State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989); State v. Ellefson, 231 Neb. 120, 435 N.W.2d 653 (1989).

It is axiomatic that one defending a criminal charge has the constitutional right to the effective assistance of counsel. State v. Ellefson, supra; State v. Wakeman, 231 Neb. 66, 434 N.W.2d 549 (1989). When, in a postconviction motion, a defendant alleges a violation of his or her 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 an attorney with ordinary training and skill in the criminal law in the area. Further, there must be a showing of how the defendant was prejudiced in the defense of his or her case as a result of the attorney's actions or inactions. State v. Gagliano, supra; State v. Neal, 231 Neb. 415, 436 N.W.2d 514 (1989). These are questions of law, not of fact. State v. Gagliano, supra.

Patterson contends that his trial counsel rendered prejudicially ineffective assistance in securing a jury instruction on conspiracy to commit murder. Although it may be, as Patterson argues, that conspiracy to commit murder is not a lesser-included offense of murder in the first degree and that he thus was not entitled to an instruction on conspiracy to commit murder, it is nevertheless also true that ineffective assistance of counsel is not synonymous with error by counsel. Although Patterson's trial counsel may have been in error in their belief that Patterson was entitled to a conspiracy instruction, we cannot say that under the circumstances of this case the request for such an instruction constituted ineffective...