State v. Poindexter
| Decision Date | 19 June 2009 |
| Docket Number | No. S-07-1075.,S-07-1075. |
| Citation | 766 N.W.2d 391,277 Neb. 936 |
| Parties | STATE of Nebraska, appellee, v. Edward POINDEXTER, appellant. |
| Court | Nebraska Supreme Court |
Robert F. Bartle, of Bartle & Geier, Lincoln, Beth Little Hamilton, and John C. Vanderslice, of the Federal Public Defender's Office, for appellant.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
Amy A. Miller, for amicus curiae American Civil Liberties Union Foundation of Nebraska.
Edward Poindexter and David L. Rice were convicted of first degree murder for the death of an Omaha police officer. Poindexter's and Rice's convictions were affirmed on direct appeal.1 Two petitions for writ of habeas corpus by Poindexter have since been denied.2 Poindexter now appeals from a denial of his motion for postconviction relief. The motion alleged prosecutorial misconduct at trial, ineffective assistance of trial and appellate counsel, and constitutional error stemming from the unitary procedure used at trial. We find no merit to Poindexter's arguments and affirm the judgment.
Poindexter and Rice were tried in a joint trial before a jury in 1971. The jury considered all of the evidence and determined both guilt and punishment in the same proceeding, in a "unitary trial procedure." The general facts presented at Poindexter's trial were as follows:
On August 17, 1970, a caller to the 911 emergency dispatch service reported hearing a woman or girl screaming for help from a vacant house in Omaha, Nebraska. Several officers, including Officer Larry D. Minard, Sr., responded to the call and entered the house. When Minard inspected a suitcase lying on its side near the doorway, an explosion occurred, killing Minard and injuring other officers in the house.
The suitcase contained a bomb of ammonia dynamite that had been set to explode when moved. The bomb also contained copper wires, pieces of which were apparently blown next door by the force of the explosion.
Duane Peak, age 16 at the time of trial, testified that the bombing was part of a scheme devised by Poindexter and Rice. Peak, Rice, and Poindexter were all members of the National Committee to Combat Fascism (NCCF), an affiliate of the Black Panther party. Poindexter was the head of the NCCF, and Rice was the "Deputy Minister of Information" for the NCCF.
Peak testified that Poindexter and Rice assembled the bomb at Rice's home and that he was operating under their instructions when he planted the suitcase and made the false report to the 911 dispatch. Peak testified that during the call, he made his voice sound deeper than normal.
During cross-examination, Peak was questioned about the fact that his original confession did not implicate Poindexter or Rice and about inconsistencies in his account of events. Peak denied having struck any deal with the prosecution in exchange for his testimony, but he did state that he felt things would go easier for him if he cooperated. Sometime after Poindexter and Rice's trial, Peak pleaded guilty to charges in juvenile court.
No issue was presented to the jury as to whether it had been Peak who made the 911 call, and the tape recording of the call was not entered into evidence. Defense counsel, instead of disputing that Peak was involved with the crime, generally denied that Poindexter and Rice had in any way joined the scheme.
The State presented evidence physically tying Poindexter and Rice to the crime, although the probative value of the evidence was questioned by defense counsel. Expert testimony demonstrated that metal particles found on a pair of long-nosed pliers seized from Rice's house generally matched copper wire found blown next door from the explosion. Other testimony established that toolmarks found on the copper wire matched the pliers found in Rice's basement. Sticks of ammonia dynamite were found in Rice's basement. Ammonia dynamite residue was found in Poindexter's jacket pocket the day he was arrested.
Several NCCF newsletter articles were admitted into evidence over objection from defense counsel. These articles were mostly written by either Poindexter or Rice for the NCCF newsletter and were generally derogatory toward police officers. Many advocated violence against the police force.
The jury found Poindexter and Rice guilty of first degree murder and sentenced them to life imprisonment.
Poindexter was represented at trial and on direct appeal by lawyers from the same public defender's office. His conviction was affirmed on direct appeal.3 Poindexter did not challenge the unitary trial procedure, nor did he raise prosecutorial misconduct on direct appeal.
Among the errors he did assign was the admission into evidence of the NCCF newsletter articles. We held that most of the newsletters, containing expressions of hatred for the Omaha police and advocating the use of violence against them, were properly admitted to show intent, malice, or motive. We concluded that the trial court erred in admitting three of the articles but we concluded that their admission was not prejudicial. We reasoned that the properly admitted articles were "far more virulent,"4 that there were relevant cautionary instructions, and that the other properly admitted evidence against Poindexter was relatively strong.
After his direct appeal, Poindexter petitioned for a federal writ of habeas corpus, which was denied after an evidentiary hearing.5 Among other things, Poindexter's habeas action asserted constitutional error stemming from the newsletter articles, the unitary trial procedure, and the allegedly coerced or perjured testimony of Peak.
The U.S. District Court rejected the idea that the admission of any of the newsletter articles was so prejudicial as to amount to a denial of due process. It also rejected any claim that there was constitutional error stemming from jointly trying Poindexter and Rice.
And the court concluded that there was no evidence of any physical mistreatment or unduly preferential treatment of Peak that would lead to the conclusion that his testimony was unconstitutionally coerced or otherwise inadmissible.6 The court recognized that Peak was originally unwilling to testify against Poindexter and Rice in the preliminary hearing and that he came back after a break visibly nervous and finally willing to implicate Poindexter and Rice. The court also observed that the police had "undoubtedly" mentioned the possibility of the death penalty to Peak and that the police had generally treated Peak very well prior to trial.7 But these facts did not show coercion. They were known to defense counsel and instead pertained to Peak's credibility.
In 2006, Poindexter petitioned for a writ of habeas corpus in state court, pertaining to matters not relevant to this appeal. The writ was denied.8
Poindexter's motion for postconviction relief was filed in 2003. In his original motion, Poindexter raised three basic claims: (1) ineffective assistance of counsel regarding counsel's alleged failure to properly investigate, present exculpatory facts, and cross-examine various witnesses; (2) infringement upon Poindexter's right to a fair and impartial jury, because the jury was instructed to determine Poindexter's guilt and sentence in a unitary proceeding; and (3) prosecutorial misconduct at trial. Central to Poindexter's allegations of prosecutorial misconduct was his claim that the State had concealed the tape recording of the 911 call and that the recording allegedly revealed that it was not Peak who made the call.
In November 2003, the postconviction court denied relief without an evidentiary hearing on Poindexter's allegations concerning the unitary trial proceeding. The postconviction court reasoned that the issue was procedurally barred, because it was known to trial counsel and could have been raised on direct appeal. The court granted Poindexter an evidentiary hearing on the ineffective assistance and prosecutorial misconduct claims.
No appeal was taken from the November 2003 order. Instead, Poindexter filed an amended postconviction motion seeking review of the unitary trial under ineffective assistance and plain error arguments. In July 2005, the court issued an order denying an evidentiary hearing on either of these new characterizations of the unitary trial procedure issue and dismissed these claims. The court explained that the unitary trial procedure of which Poindexter complained had been in effect for 59 years at the time of his trial and that it was not until 1973 that the Nebraska Legislature began to mandate bifurcated proceedings. Poindexter did not appeal from the July 2005 order.
Almost a year later, in June 2006, Poindexter asked the court to reconsider its dismissal of the claims relating to the unitary trial proceedings. The court denied Poindexter's motion for reconsideration, because it was not filed in the same term as the order Poindexter sought to revisit. The court alternatively stated that the merits were properly disposed of in the July 2005 order and that there was no reason to reconsider them. Poindexter did not appeal from the June 2006 denial of his motion to reconsider.
Poindexter filed a second amended petition for postconviction relief after having been granted permission to amend his allegations of ineffective assistance to include the alleged failure to request a copy of the 911 tape. The second amended petition is the operative pleading for this appeal.
As relevant to this appeal, Poindexter alleged that trial counsel was ineffective in failing to (1) effectively cross-examine witnesses Peak, Sgt. Jack Swanson, and Sgt. Robert Pfeffer, (2) inquire into missing police reports of Peak's interrogations, (3) offer evidence to discredit the State's expert testimony...
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