State v. Payne
| Decision Date | 12 September 2017 |
| Docket Number | No. A-16-930.,A-16-930. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. CHRISTOPHER M. PAYNE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge. Affirmed.
Jason E. Troia, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.
Christopher M. Payne appeals from the order of the district court for Douglas County which denied his motion for postconviction relief after remand for an evidentiary hearing. For the reasons set forth herein, we affirm.
In 2006, Payne was convicted of first degree sexual assault of a child following a jury trial and was sentenced to 30 to 40 years' imprisonment. His conviction and sentence were affirmed on direct appeal by memorandum opinion. See State v. Payne, case No. A-06-509. In 2012, Payne filed a motion for postconviction relief. The district court denied the motion without an evidentiary hearing, and Payne appealed. On appeal, Payne limited his assignments of error only to those claims in his motion for postconviction relief alleging his appellate counsel was prejudiciallyineffective for not raising the ineffectiveness of trial counsel. State v. Payne, case No. A-13-0034. By memorandum opinion, this court affirmed in part and reversed in part, remanding for an evidentiary hearing on four of Payne's eight claims. See Id. The district court held an evidentiary hearing on June 15, 2016, and again denied the remaining claims under Payne's motion for postconviction relief. Payne presently appeals this denial.
Payne assigns, restated, that the district court erred by dismissing his motion for postconviction relief and finding: (1) Payne's appellate counsel was not ineffective for failing to claim ineffective assistance of trial counsel during the voir dire proceedings; (2) Payne's appellate counsel was not ineffective for failing to claim ineffective assistance of trial counsel in not objecting to argument by the State that Payne was a "convicted bisexual;" and (3) Payne's appellate counsel was not ineffective for failing to claim ineffective assistance of trial counsel in not calling witnesses to refute and discredit the testimony given by the State's witnesses.
In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. The determination of the effectiveness of counsel is made under the test outlined in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which asks whether counsel was deficient and whether the defendant suffered prejudice as a result. The district court's application of this test is reviewed independently of the lower court's decision. State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015).
Payne contends the district court erred in finding his appellate counsel was not ineffective in failing to claim ineffective assistance of trial counsel for the following: (1) not using preemptive or for cause challenges to strike potential jurors who displayed negative beliefs about bisexuals and asking potential jurors about their beliefs on bisexuality during voir dire; (2) not objecting to argument by the State that Payne was a "convicted bisexual;" and (3) not calling witnesses made known to him to refute and discredit the testimony given by the State's witnesses.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. See State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013). Deficient performance and prejudice can be addressed in either order. State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Id. To show prejudice, the defendant must demonstrate reasonable probability that but for counsel's deficient performancethe result of the proceeding would have been different. Id. The entire effectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that, even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010).
Payne first alleges the district court erred in finding appellate counsel was not ineffective for failing to claim ineffective assistance of trial counsel during the voir dire proceedings. Specifically, Payne claims his trial counsel's performance was ineffective during voir dire in two instances leading to the impaneling of a non-impartial jury. First, during the proceedings, Payne asserts it became apparent that three potential jurors were biased against him as a bisexual. Although one of the three was removed through the selection process, two of these individuals were impaneled as jurors. During Payne's trial counsel's review of the juror pool, trial counsel asked the potential jurors whether any of them had prejudices or ill feelings about bisexuality stating:
I'm sure this part will be important here, although all of it is, but this is really important. There is going to be some issues, and this will come up during the trial, that my client is bisexual, and I'm not going to go into anybody's sexuality because I think that is private and should remain that way today, but . . . will anyone here have any kind of either moral problem thinking that it's just wrong, you know, or any kind of prejudices or ill feelings toward my client because of his sexuality, and, you know, it's a tough question, and if you could raise your hand if anyone does, that would help. . . .
Three potential jurors raised their hands including the two that were later impaneled--M.D. and P.F. In response to a request for elaboration on the issue, M.D. responded:
P.F similarly responded to trial counsel's request for elaboration on her views on bisexuality stating:
The third juror who indicated bias was stricken. Payne argues these two exchanges between trial counsel and M.D. and P.F. indicate actual bias and that trial counsel's lack of challenging these jurors for cause constituted deficient performance that prejudiced Payne's defense and deprived him of his Sixth Amendment right to a fair trial.
The second instance of alleged ineffective assistance occurred through Payne's trial counsel's questioning of jurors on their attitudes and beliefs concerning bisexuality and the emphasis he placed on the issue before potential jurors who would be deciding Payne's guilt. Payne seems to argue that, by emphasizing bisexuality and framing questions that could imply there was a question about whether bisexual individuals are implicitly immoral, trial counsel tainted the jury into concentrating on an issue that did not go to the heart of the charges asserted and potentially aided in prejudicing the jury against Payne as an individual. As such, Payne argues this questioning also led to the seating of a non-impartial jury and was therefore deficient assistance. Payne claims, by paneling a biased jury, his trial counsel's actions prejudiced the resolution of his case and led to the guilty verdict.
The Sixth Amendment of the United States Constitution guarantees a criminal defendant "the right to a speedy and public trial, by an impartial jury." U.S. Const. Amend. VI and XIV; see also Lockhart v. McCree, 476 U.S. 162, 178, 106 S. Ct. 1758, 1767, 90 L. Ed. 2d 137 (1986) (...
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