State v. Silvers, S-00-214.
| Citation | 620 N.W.2d 73,260 Neb. 831 |
| Decision Date | 08 December 2000 |
| Docket Number | No. S-00-214.,S-00-214. |
| Parties | STATE of Nebraska, Appellee, v. Thomas J. SILVERS, Appellant. |
| Court | Supreme Court of Nebraska |
Charles D. Brewster, Kearney, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson, Lincoln, for appellee.
Thomas J. Silvers appeals from an order of the Buffalo County District Court that denied his motion for postconviction relief.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
In 1986, Silvers pled guilty to first degree arson and first degree felony murder and was sentenced for those convictions. No direct appeal was taken. In a motion for postconviction relief, Silvers sought relief on the basis that the arson conviction violated double jeopardy because arson is an underlying felony of first degree felony murder. He also asserted that he was denied effective assistance of counsel because his attorney failed to file a motion to suppress evidence seized by fire and police officials.
The district court summarily dismissed the arson conviction based upon a violation of double jeopardy but denied Silvers' request for relief regarding the felony murder conviction on the basis that his pleadings did not allege facts sufficient to justify an evidentiary hearing. On appeal, we concluded that Silvers' motion alleged sufficient facts to state a claim for postconviction relief and accordingly remanded the cause with directions that Silvers be granted an evidentiary hearing with the assistance of appointed counsel. See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
Silvers' motion for postconviction relief alleged that a fire broke out at his home in Kearney, Nebraska, on May 3, 1986, and that his stepdaughter, Sheila Heard, died on May 11 as a result of burns she suffered in the fire. He alleged that the alarm which summoned the Kearney Fire Department to his home was turned in at 1:23 a.m. on May 3. He claimed that firefighters arrived a short time later and extinguished the fire in approximately 5 to 6 minutes after their arrival. He alleged that the fire was confined to a bedroom area and that investigators were able to enter the home and examine the scene shortly after the fire had been extinguished.
Silvers alleged that after examining the point of the fire's origin, investigators contacted Gary Nelson, a deputy State Fire Marshal, who arrived at the scene at 1:48 a.m., and that based on Nelson's experience and training and the presence of various burn patterns, Nelson determined that the fire had been intentionally set. Silvers further alleged that Det. Donald Dreyer of the Kearney Police Department was then contacted and requested to photograph the area of the home where the arson was believed to have occurred. Silvers claimed that firefighters departed the scene at 2:25 a.m., leaving only a guard outside the home, and that Dreyer left at 3 a.m., leaving no police officials either inside or outside the home.
Silvers alleged that while Nelson was at the hospital where the victim had been taken, he detected a strong odor of gasoline upon the victim's clothing. Silvers alleged that several meetings and telephone calls occurred during which various investigators and a senior deputy State Fire Marshal concluded that the fire had been caused by arson. Subsequently, a call was made requesting assistance from the Nebraska State Patrol.
Silvers further alleged that beginning at 6:30 a.m. on May 3, 1986, two deputy State Fire Marshals and a detective from the sheriff's office began searching his home for the sole purpose of gathering evidence. He claimed that a mobile crime unit from the Nebraska State Patrol arrived at 7:30 a.m. and participated in the search. He stated that these searches were carried out in the absence of any exigent circumstances, that they were not accomplished pursuant to either an administrative warrant or a search warrant, and that items of evidence were seized which had not been discovered during the initial investigation.
Silvers claimed that the evidence seized was then used to coerce him and his wife to consent to further searches of the home, which searches resulted in the seizure of 18 more items of evidence. He further alleged that in mid-July, another search resulted in the seizure of a barbell.
Silvers claimed that his trial counsel did not advise him of the potential illegality of the searches, did not file a motion to suppress the evidence seized during the searches, and failed to advise him of the true strengths of his case had the evidence been suppressed. Silvers claimed that he would not have entered pleas of guilty if his trial counsel had advised him of the viability of a motion to suppress and that his pleas of guilty were therefore not intelligently made due to ineffective assistance of counsel.
In its analysis of the evidence, the district court noted that Silvers had complained of three separate occasions on which he believed law enforcement improperly conducted searches of his home for evidence. The first two searches occurred shortly after the fire, and the third search was conducted some time later.
The district court found that at the time Silvers entered his pleas, both he and his trial counsel believed that a plea agreement did in fact exist. It appeared that the plea agreement was to be "informal" in nature and involved a promise by the State not to seriously pursue the death penalty. The district court found that there was some question as to whether or not the State complied with this agreement. Evidence was offered by the State at the sentencing hearing, and the State requested imposition of the death penalty, but the State's evidence was not compelling, and the arguments concerning the aggravating circumstances were without merit.
The district court found that Silvers had asserted that his guilty pleas were entered, in part, to avoid the necessity of a trial and the effect that such a trial would have had on his family. Probably more important, the district court noted, was the desire of both Silvers and his trial counsel to limit the State's further investigation and to limit the evidence offered to the sentencing court in order to avoid the possible imposition of the death penalty. The district court suggested that the facts presented at sentencing did not warrant the imposition of a death sentence but that other facts, if brought to the attention of the sentencing court, might well have led to a different result.
The district court found that the pleas of guilty entered by Silvers protected his family from the pain which would have been occasioned by a lengthy trial and served to protect Silvers from the possible imposition of the death penalty. The district court concluded that Silvers had not shown a reasonable probability that had he been better informed of Fourth Amendment issues, he would have insisted on going to trial. The district court denied Silvers' motion for postconviction relief, and Silvers appealed.
Silvers asserts, summarized and restated, that the district court erred (1) in denying him postconviction relief, (2) in overruling his objections to the admission of exhibits 39 and 40 at the evidentiary hearing, and (3) in overruling his request to amend his motion for postconviction relief.
Silvers' first 12 assignments of error relate to his claim that the district court erred in denying his motion for postconviction relief. The basis of Silvers' claim is that he received ineffective assistance of counsel. Silvers claims that his trial counsel did not adequately advise him of his Fourth Amendment rights pertaining to evidence seized from his home after the fire. He alleges that improper searches and seizures occurred during the investigation of the fire by the police and the fire department. He claims that his trial counsel's failure to file a motion to suppress this evidence or to discuss defenses available to him pursuant to the Fourth Amendment was ineffective assistance and that had he been properly advised of these defenses, he would not have entered pleas of guilty and would have insisted on a trial.
There were three different searches of Silvers' home which form the basis for his assertion that he received ineffective assistance of counsel. The following legal principles are applicable to our review of the district court's decision regarding the searches in question and Silvers' postconviction claim based upon ineffective assistance of counsel.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000). In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, a convicted defendant has the burden to first show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. Id.
When a conviction is based upon a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000). The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if...
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