State v. Salas, 90-088

• Decision Date: 15 March 1991
• Docket Number: No. 90-088,90-088
• Citation: 466 N.W.2d 790,237 Neb. 546
• Parties: STATE of Nebraska, Appellee, v. Fernando SALAS, Appellant.
• Court: Nebraska Supreme Court

Page 790

466 N.W.2d 790

237 Neb. 546

STATE of Nebraska, Appellee, v. Fernando SALAS, Appellant.

No. 90-088.

Supreme Court of Nebraska.

March 15, 1991.

Syllabus by the Court

1. Postconviction: Appeal and Error. In an appeal from a denial of a motion for postconviction relief, the findings of the district court will not be disturbed unless they are clearly wrong.

2. Postconviction: Constitutional Law: Effectiveness of Counsel: Proof. In a postconviction relief action, to sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution or article I, § 11, of the Nebraska Constitution, and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

3. Effectiveness of Counsel: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

4. Effectiveness of Counsel: Proof. A criminal defendant must demonstrate prejudice was suffered from ineffectiveness of counsel.

5. Effectiveness of Counsel: Proof. The defendant has the burden of demonstrating ineffective assistance of counsel, and the record must affirmatively support the claim.

6. Search and Seizure: Search Warrants: Police Officers and Sheriffs. A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for specified contraband also provides authority to open closets, chests, drawers, and containers in which the object of the search might be found.

Fernando Salas, pro se.

Robert M. Spire, Atty. Gen., and Barry Waid, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Defendant appeals from an order of the district court dismissing his motion for postconviction relief based on ineffective assistance of counsel. We affirm.

In an appeal from a denial of a motion for postconviction relief, the findings of the district court will not be disturbed unless they are clearly wrong. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).

On May 31, 1988, following a jury-waived trial, the defendant was convicted of possession of marijuana with intent to deliver, possession of cocaine with intent to deliver, and delivery of cocaine. The judgment was affirmed on his direct appeal, and the underlying facts are discussed in our opinion on that appeal. See State v. Salas, 231 Neb. 471, 436 N.W.2d 547 (1989).

On August 21, 1989, the defendant moved for postconviction relief pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989). The motion alleged (1) ineffective assistance of his trial counsel in failing to disqualify himself due to his inability to speak Spanish, which was allegedly defendant's primary language; and (2) inadequate representation during the motion to suppress hearing, including (a) failing to adequately question the opening of a locked box during the search, (b) failing to question why the warrant was signed with whiteout corrections in it, (c) failing to file a motion in limine as to police statements, and (d) failing to question the reliability of a State's witness. At the hearing on his motion for postconviction relief, defendant was represented by appointed counsel. Although no additional evidence was presented at the hearing, judicial notice was taken of the entire record and trial proceedings.

The district court found that defendant's trial counsel was not deficient in his representation. In his motion, defendant alleged other errors, arising from a December 4, 1987, drug transaction, including complaints that the identification of the defendant was questionable, that only one of two bags of cocaine was tested, that no questions were asked of the backup officer, and that no pictures of the drug transaction were taken. As to these latter alleged errors, the court found that they related to matters which could have been raised in defendant's direct appeal.

The burden of proof in a postconviction action was recently summarized in State v. Carter, 236 Neb. 656, 662, 463 N.W.2d 332, 337-38 (1990), as follows:

In a postconviction relief action, to sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution or article I, § 11, of the Nebraska Constitution, and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. A criminal defendant must demonstrate prejudice was suffered from ineffectiveness of counsel. Id. The defendant has the burden of demonstrating ineffective assistance of counsel, and the record must affirmatively support the claim. State v. Domingus, 234 Neb. 267, 450 N.W.2d 668 (1990).

Defendant contends that he was born and received a high school education in Calie, Colombia, and that his counsel should have disqualified himself due to his inability to speak Spanish. Before accepting defendant's not guilty pleas, the trial judge explained the charges and the defendant's constitutional rights. The defendant responded affirmatively when asked if he understood the nature of the proceedings. A police officer noted during the motion to suppress hearing that although defendant had an accent, he was not difficult to understand. Prior to testifying at trial, defendant said that he understood English much better than he pronounced it and that if he did not understand any questions, he would make counsel explain. There is no evidence that defendant did not understand any part of the proceedings or that his counsel should have withdrawn because of his inability to speak Spanish.

Defendant was described in the search warrant as a Hispanic male. In the affidavit and application for issuance of a search warrant, the defendant was described as a Hispanic male with a Hawaiian accent. Defendant alleges that the warrant was voidable because his primary language is Spanish, and thus the reference in the "warrant" to a Hawaiian accent was incorrect. He also contends that the search warrant was altered after defendant's Hawaii driver's license was seized by police...