State v. Purdy
| Decision Date | 03 July 2017 |
| Docket Number | No. A-15-923.,A-15-923. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. WILLIAM J. PURDY, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge. Affirmed.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
This is a postconviction appeal. In 2003, William J. Purdy was convicted by a jury of second degree murder and use of a firearm in the commission of a felony. As a result of his convictions, he was sentenced to a term of 30 to 35 years in prison for the murder conviction and to a mandatory consecutive term of 5 to 10 years' imprisonment for the use of a firearm conviction. On direct appeal, this court affirmed Purdy's convictions. State v. Purdy, 12 Neb. App. xxii (No. A-03-1363, Sept. 30, 2004).
Purdy now appeals the decision of the district court for Douglas County which denied his motion for postconviction relief after an evidentiary hearing. In this appeal, Purdy alleges a variety of errors concerning the court's denial of relief related to his assertions of ineffective assistance of his trial counsel, ineffective assistance of his appellate counsel, and ineffective assistance of his initial postconviction counsel. We find no merit to Purdy's assertions on appeal, and we affirm.
The events giving rise to this case occurred in August 2002, when Juan Juarez was shot and killed near the intersection of Florence Boulevard and Read Street in Omaha, Nebraska. Just prior to the shooting, Juarez was a passenger in a "Chevy Malibu" which was being driven by one of his acquaintances. When the driver of the Malibu waited at a stop sign to make a left turn at the intersection, an older blue Monte Carlo passed by the Malibu and the front seat passenger of the Monte Carlo made a hand gesture. Another passenger in Juarez's vehicle responded with the same or similar hand gesture, and the Monte Carlo then pulled over and stopped in an area north of the Florence and Read intersection. As the Malibu began to make a left turn, Juarez exited the vehicle. The driver of Juarez's vehicle then pulled over and parked the car just south of the intersection at Read Street. Two other passengers also left the Malibu and, following Juarez, began to approach the Monte Carlo. The front seat passenger departed the Monte Carlo, gunshots sounded, and Juarez fell to the ground face down after being struck by a bullet.
On August 8 at 12:40 a.m., a doctor provided emergency room medical treatment to Juarez for a gunshot wound to the back of the head; but Juarez subsequently died as a result of that wound. The bullet had entered the back left portion of Juarez' head and traveled in a path towards the front right portion of the head. Crime lab technicians with the Omaha Police Department processed the scene of the crime and found three 9 mm spent shell casings, but no gun.
An information filed December 17, 2002, charged Purdy with murder in the second degree and use of a deadly weapon to commit a felony, arising out of the events in August 2002. On July 8, 2003, a jury trial commenced.
The State's key witness at trial was Purdy's cousin, Christopher Chavez. Chavez testified that on the night in question, he was the driver of the Monte Carlo. Seated in the front passenger seat of the car was Purdy. Chavez testified that when he drove through the intersection of Florence Boulevard and Read Street, he thought he heard someone from the Malibu yell "Will." Purdy asked Chavez if someone had called his name and Chavez told Purdy that it sounded like it. Purdy then told Chavez to stop the car. Chavez testified that four or five people jumped out of the Malibu, that one person from the Malibu threw something, and that Chavez then heard gunshots. Chavez testified that Juarez was the person that threw something. Chavez testified that he looked out the back window of the Monte Carlo, saw Purdy shooting and that when Purdy re-entered the Monte Carlo, Purdy said he thought he might have shot somebody. Chavez testified that on a prior occasion Purdy had shown him the gun used in the shooting.
Chavez turned himself in approximately 30 days after the shooting after seeing on television that the police wanted to question him. He made a deal with the prosecution that charges against him would be dismissed if he testified truthfully against Purdy.
Ultimately, the jury convicted Purdy of both second degree murder and use of a deadly weapon to commit a felony. As we discussed above, Purdy appealed from his convictions. By the time of this appeal, Purdy had different counsel than his trial attorney. In his direct appeal, Purdy alleged that the district court erred in failing to find the second degree murder statute unconstitutional and in failing to grant his motion for a new trial. We affirmed Purdy's convictions. Specifically, we found that Purdy had failed to properly preserve for appellate review his allegationthat the second degree murder statute was unconstitutional. We also found that the district court did not err in denying his motion for new trial.
In February 2012, Purdy filed a motion seeking postconviction relief. After the district court appointed Purdy with counsel for the postconviction proceedings, amendments to Purdy's motion for postconviction relief were filed in October 2012 and in April 2013. Throughout Purdy's initial motion and the various amendments to that motion, Purdy raised a variety of allegations of ineffective assistance of his trial counsel and ineffective assistance of his appellate counsel. Purdy also alleged that he was actually innocent of the crimes for which he was convicted.
The district court granted Purdy an evidentiary hearing on his motion for postconviction relief. At this hearing, Purdy offered into evidence, among other things, the deposition testimony of both his trial counsel and his appellate counsel.
On September 3, 2015, the district court entered a lengthy order denying Purdy's motion for postconviction relief. The court ultimately concluded that Purdy had "failed to establish [that] a constitutional right ha[d] been infringed or violated."
This appeal followed. More details concerning Purdy's specific allegations will be set forth as necessary below.
On appeal, Purdy alleges, restated and consolidated, that the district court erred in denying his claims that (1) his trial counsel provided ineffective assistance of counsel in a variety of ways; (2) his appellate counsel provided ineffective assistance of counsel both during his direct appeal and prior to the direct appeal, when appellate counsel represented Purdy during the sentencing phase of the criminal proceedings; and (3) his initial postconviction counsel provided ineffective assistance of counsel in a variety of ways.
In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's findings unless they are clearly erroneous. In contrast, an appellate court independently resolves questions of law. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Saylor, supra.
In his brief on appeal, Purdy alleges numerous allegations of ineffective assistance of trial counsel. These assertions include, that trial counsel was ineffective in (1) failing to object to the State's false assertions about the evidence which was to be presented at trial during its opening statement; (2) failing to make a motion for a mistrial after the jury observed Purdy wearing handcuffs; (3) failing to investigate Purdy's "mental incapacities" and to request a competency evaluation; (4) failing to object to certain jury instructions and to request additional juryinstructions; (5) failing to object to the State endorsing multiple witnesses close in time to the scheduled trial and then filing motions to continue to depose the late-endorsed witnesses; and (6) failing to object to or file a motion to dismiss the "defective" information filed by the State. See brief for appellant at 13-28.
All of Purdy's allegations that he received ineffective assistance of trial counsel are procedurally barred. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and could have been litigated on direct appeal. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011). As we mentioned above, Purdy was represented by different counsel than his trial attorney on direct appeal. And, while he did raise one allegation of ineffective assistance of trial counsel in his direct appeal, specifically, that his trial counsel was ineffective for failing to call certain witnesses to testify, he did not raise any of his most recent allegations of ineffective assistance of trial counsel. Because he did not raise these issues in his direct appeal, he is now procedurally barred from raising the issues. Accordingly, we conclude that the district court did not err in denying Purdy postconviction relief based on his allegations of ineffective assistance of trial counsel.
In his brief on appeal, Purdy alleges numerous allegations of ineffective...
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