State v. Sims, S-93-312

• Decision Date: 17 December 1993
• Docket Number: No. S-93-312,S-93-312
• Citation: 509 N.W.2d 6,244 Neb. 771
• Parties: STATE of Nebraska, Appellee, v. Ernest L. SIMS, Appellant.
• Court: Nebraska Supreme Court

Page 6

509 N.W.2d 6

244 Neb. 771

STATE of Nebraska, Appellee, v. Ernest L. SIMS, Appellant.

No. S-93-312.

Supreme Court of Nebraska.

Dec. 17, 1993.

Syllabus by the Court

1. Postconviction: Proof. One moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution.

2. Constitutional Law: Postconviction. The Nebraska Postconviction Act applies only where a prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable.

3. Constitutional Law: Postconviction: Proof. An evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Such a hearing is properly denied if the record and the files in the case affirmatively establish that the defendant is not entitled to relief.

4. Postconviction: Effectiveness of Counsel: Proof. In order to maintain a successful ineffective assistance of counsel argument, an appellant must show how he was prejudiced in the defense of his case as a result of his attorney's actions or inactions and that, but for the ineffective assistance of counsel, there is a reasonable probability that the result would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.

5. Effectiveness of Counsel. An unfavorable result does not, by itself, support a claim of ineffective assistance of counsel.

6. Trial: Stipulations: Effectiveness of Counsel. A strategic decision to enter into a stipulation regarding the cause of the victim's death is, by itself, insufficient to sustain a claim of ineffective assistance of counsel.

Ernest L. Sims, pro se.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.

BOSLAUGH, Justice.

The appellant, Ernest L. Sims, was convicted of first degree murder in 1975 in connection with the shooting death of Raymond Martzett. The judgment was affirmed in State v. Sims, 197 Neb. 1, 246 N.W.2d 645 (1976). The underlying facts of the case are described in that opinion. Sims now appeals from the district court's denial of his pro se motion for postconviction relief brought pursuant to the provisions of Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Cum.Supp.1992). Sims asserts that the district court erred in denying his motion for postconviction relief and in denying him an evidentiary hearing on that motion.

One moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution. State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992). The Nebraska Postconviction Act applies only where a prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable. State v. Keever, 234 Neb. 289, 450 N.W.2d 682 (1990).

Furthermore, while an evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution, such a hearing is properly denied if the record and the files in the case affirmatively establish that the defendant is not entitled to relief. State v. Bowen, 244 Neb. 204, 505 N.W.2d 682 (1993).

In his motion for postconviction relief, Sims claims that he was, in several respects, denied effective assistance of counsel. In order to maintain a successful ineffective assistance of counsel argument, an appellant must show how he was prejudiced in the defense of his case as a result of his attorney's actions or inactions and that, but for the ineffective assistance of counsel, there is a reasonable probability that the result would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. In the absence of such a showing, the requested relief must be denied. State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992).

Sims first claims that he was denied effective assistance of counsel in that his trial counsel failed to interview Richard Keith and call Keith as a witness during the trial. Sims' postconviction motion asserts that Keith "was threatened by the County Attorney and the Police Department to testify against [Sims] by fabricating a testimony" and that in exchange, charges against Keith were dropped. Despite this assertion, the record shows that Keith's only connection with the case is that he happened to be a passenger in a vehicle with Sims immediately before Sims was arrested. Keith was not a witness to the shooting and did not testify at the trial. However, numerous other witnesses to the shooting did testify at the trial, and these witnesses identified Sims as the person who shot the victim. In fact, Sims himself testified that he shot the victim, but stated that in doing so, he acted in self-defense. In light of such evidence, the record affirmatively establishes that Sims was not prejudiced by his trial counsel's failure to interview Keith or call Keith as a witness.

Sims next claims that his trial counsel failed to point out witnesses' conflicting testimony regarding Sims' and the victim's possession and handling of firearms. However, the testimony cited by Sims in his motion for postconviction relief is not, in fact, conflicting. Such testimony merely describes differing circumstances when, in two different instances, Sims and the victim confronted each other. Because the testimony was not conflicting Sims' counsel was not remiss in failing to raise that issue during the trial.

Apparently, with his self-defense claim in mind, Sims also asserts in his postconviction motion that his trial counsel failed "to show intent by the victim against [Sims], when the victim had a gun, and [Sims] was not armed." In support of this assertion, Sims' motion cites testimony that when Sims first confronted the victim concerning the victim's operation of a motor vehicle, the victim pointed a handgun at Sims. However, Sims left the area after this incident, but later returned to the area and shot the victim. While the record does show that the victim did point a firearm at Sims during the initial confrontation, the record also shows that the victim did not point a weapon at Sims after he returned following the initial confrontation.

Sims does not lucidly explain the precise basis of his complaint regarding his trial counsel's failure to "show intent by the victim against [Sims]." As stated, however, Sims' postconviction motion does no more than...