State v. Robinson
| Decision Date | 07 March 2014 |
| Docket Number | No. S–13–306,S–13–306 |
| Citation | 843 N.W.2d 672,287 Neb. 606 |
| Court | Nebraska Supreme Court |
| Parties | State of Nebraska, appellee, v. Danny R. Robinson, Jr., appellant. |
OPINION TEXT STARTS HERE
Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Affirmed.
Michael J. Wilson and Jessica P. Douglas, of Schaefer Shapiro, L.L.P., Omaha, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional question that does not involve a factual dispute as a matter of law.
2. Postconviction: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law.
3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 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.
4. Postconviction: Final Orders. Within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without a hearing.
5. Postconviction. The Nebraska Postconviction Act, Neb.Rev.Stat. § 29–3001 et seq. (Reissue 2008), provides that postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his constitutional rights such that the judgment was void or voidable.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.
7. Effectiveness of Counsel: Proof: Appeal and Error. 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. A court may address the two prongs of this test, deficient performance and prejudice, in either order.
8. Effectiveness of Counsel: Proof: Words and Phrases. In addressing the “prejudice” component of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984), a court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. To show prejudice under the prejudice component of the Strickland test, there must be a reasonable probability that but for the deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
9. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel.
Danny R. Robinson, Jr., appeals the February 18, 2010, order of the district court for Douglas County in which the court denied his motion for postconviction relief after holding an evidentiary hearing. The evidence received at the hearing pertained to Robinson's allegation that he had received ineffective assistance of counsel. Robinson sought relief with respect to his convictions for first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. We affirm the denial of Robinson's motion for postconviction relief.
Robinson was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon in connection with the 2001 shooting death of Daniel Lockett. The theory of the State's case was that Lockett was murdered in retaliation for the previous murder of Terez Reed and that Lockett was shot by two individuals, Robinson and Dupree Reed. The theories of the defense included the assertion that Terrell Reed and not Robinson was one of the shooters. Robinson was sentenced to life imprisonment without parole on the murder conviction and to two consecutive sentences of 5 to 10 years' imprisonment on the use and possession convictions. On direct appeal, we affirmed Robinson's convictions on all three counts and his sentences for the use and possession convictions. But because the “without parole” feature of the murder sentence was not authorized by statute, we vacated the sentence of life imprisonment “without parole” on the murder conviction and remanded the cause with directions to the trial court to resentence Robinson to life imprisonment. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). A further description of the evidence surrounding the shooting of Lockett is detailed in our opinion on direct appeal. See id.
In March 2008, Robinson filed a motion for postconviction relief in which he made numerous claims of ineffective assistance of trial counsel. The State moved the court to deny postconviction relief without an evidentiary hearing. After a hearing on the State's motion, the court entered an order on March 16, 2009, in which it denied some of Robinson's claims without an evidentiary hearing but granted an evidentiary hearing with respect to other claims. Robinson did not timely file a notice of appeal from the denial of claims contained in the March 16 order.
The denial of claims in the March 16, 2009, order was based on the district court's determinations that the claims were mere conclusions of fact or law, were unsupported by the record, failed to allege how the outcome of the trial would have been different, or failed to allege how they constituted a denial of Robinson's constitutional rights. The court described those claims that it was denying without an evidentiary hearing as claims that trial counsel was ineffective with regard to (1) evidence related to gang affiliation and change of venue, (2) admission of shell casings, (3) jury selection, (4) admission of photographs, (5) statements of a witness regarding a potential alternate suspect, (6) evidence of an arson and a trip to Texas, 7) records of a telephone conversation, (8) criminal history of a codefendant, and (9) statements of the prosecutor during closing arguments.
In the March 16, 2009, order, the court granted an evidentiary hearing limited to certain other issues. It described those issues as claims that trial counsel provided ineffective assistance because counsel (1) did not allow Robinson to testify in his own defense and (2) did not call certain specified persons as witnesses.
A hearing on these issues was held on December 11, 2009. At the hearing, the court received into evidence the depositions of Robinson and Robinson's trial counsel; the court also took notice of the file and transcript of Robinson's trial. The court filed an order on February 18, 2010, in which it denied these claims for postconviction relief. The court concluded Robinson had failed to show that counsel's performance was deficient. The court also stated that even if deficient performance had been proved, Robinson had failed to establish prejudice.
With regard to Robinson's claim that trial counsel provided ineffective assistance when counsel did not allow Robinson to testify in his own defense, the postconviction court noted a conflict between Robinson's deposition testimony and his trial counsel's deposition testimony. Robinson stated that he told his counsel on two or three occasions that he wanted to testify at trial but that counsel never visited Robinson to discuss whether or not he should testify. Counsel stated to the contrary and provided some details. Counsel testified that he had visited Robinson in jail a number of times prior to trial; that he had explained to Robinson he had the right to testify at trial; that as part of trial strategy, he advised Robinson not to testify; and that it was ultimately Robinson's decision not to testify. The postconviction court found counsel's recollection to be more persuasive and concluded that Robinson had failed to prove that counsel's performance was deficient.
With regard to Robinson's claim that trial counsel provided ineffective assistance when counsel failed to call several people as witnesses, the postconviction court noted that, with respect to each of the nine witnesses identified by Robinson, trial counsel in his deposition had provided an “explanation as to each and every one of them, why he decided, in his best judgment, not to call them.” The court determined that counsel had “provided more than a satisfactory explanation as to the reasons in his considered judgment he elected not to call these witnesses.” The court concluded that, because trial counsel decided not to call each of the witnesses as a matter of trial strategy or because the witnesses' testimony would have been inadmissible or cumulative, Robinson failed to show that counsel's performance was deficient.
Having reviewed the files and record, the postconviction court further concluded that even if deficient performance had been shown, Robinson had failed to show any prejudice resulting from counsel's alleged deficient performance. In its February 18, 2010, order, the court noted this court's opinion in the direct appeal in which we referred to testimony by witnessesthat amply supported Robinson's convictions, thus comporting with its view...
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