State v. Sims, S-06-249.

CourtSupreme Court of Nebraska
Citation272 Neb. 811,725 N.W.2d 175
Docket NumberNo. S-06-249.,S-06-249.
PartiesSTATE of Nebraska, appellee, v. Michael J. SIMS, appellant.
Decision Date22 December 2006
725 N.W.2d 175
272 Neb. 811
STATE of Nebraska, appellee,
Michael J. SIMS, appellant.
No. S-06-249.
Supreme Court of Nebraska.
December 22, 2006.

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Jason E. Troia and Jill Daley, of Gallup & Schaefer, Omaha, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.




This is an appeal from the denial, after an evidentiary hearing, of Michael J. Sims' motion for postconviction relief to set aside his 1998 convictions for first degree murder, attempted first degree murder, and two counts of use of a deadly weapon to commit a felony. Sims alleged that he was denied his right to effective assistance of counsel because trial counsel failed to file a motion for discharge asserting Sims' right to a speedy trial. Sims also alleged that trial counsel was ineffective in failing to object to the impermissible impeachment of his trial testimony by reference to his postarrest, post-Miranda silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Sims asserts that the postconviction judge, who was also the trial judge, erred in denying his plea for postconviction relief and also

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erred by refusing to recuse himself in order to testify concerning the scheduling of Sims' trial for speedy trial purposes.

The postconviction court was not clearly erroneous in finding the delay beyond the 6-month statutory period attributable to trial counsel's motion to continue, and we find no violation of Sims' right to a speedy trial. We accordingly affirm the postconviction court's conclusion that Sims' trial counsel was not ineffective for failing to file a motion for discharge. Because Sims failed to show a threshold level of necessity for the postconviction judge's testimony, the judge did not abuse his discretion in refusing to recuse himself. We do not address the Doyle issue because it has not been preserved for appellate review.


Sims' trial was held on August 24 through September 1, 1998. The evidence presented at trial is fully set forth in State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999). For purposes of Sims' ineffective assistance of counsel claims, we reiterate some of the procedural history, as developed by evidence presented at the postconviction hearing.


The four-count information charging Sims with the offenses for which he was convicted was filed on May 7, 1997. On May 8, Sims appeared for arraignment with appointed counsel and entered a plea of not guilty subject to a plea in abatement, which he was given leave to file within 10 days. Sims' appointed counsel moved for leave to withdraw on September 18. On September 26, the court granted the motion but, noting that Sims had elected to represent himself, required the attorney to remain as Sims' technical advisor. The court overruled Sims' plea in abatement on October 8.

Sims filed a pro se "Motion on Conflicts and Negligence of Stand by Counsel and Courts" on October 29, 1997. A hearing on this motion was held on November 4, and the matter was continued until November 10. On November 10, Sims indicated that he was interviewing attorneys in order to retain one and the court ordered that the original attorney remain as Sims' advisor until Sims secured new counsel. On December 10, another attorney entered his appearance for Sims and the originally appointed counsel was allowed to withdraw.

At a pretrial conference held on January 28, 1998, the court scheduled trial to begin on April 6. On April 6, however, the State was granted leave to endorse three additional witnesses. Sims filed a motion for continuance, which was granted, and the trial court indicated that Sims' trial would commence on May 12.

On approximately May 11, 1998, codefendant Harry Winefeldt entered into a plea agreement with the State and agreed to testify against Sims. Trial counsel, in a deposition entered into evidence at the postconviction hearing, testified as follows:

I have a vague recollection about asking for a continuation when the State's co-defendant entered a plea and agreed to testify for the State. Do I have a specific recollection as to a particular date, I don't. I—I vaguely recall the co-defendant getting on board with the State and at that point needing more time to prepare the defense.

Trial counsel explained that upon learning that Winefeldt was going to testify against Sims, trial counsel "would not have been prepared to go forward." He would have needed more time to prepare to cross-examine Winefeldt.

Trial counsel explained that it was his recollection that Sims' trial was then rescheduled to August 24, 1998, after he and

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the trial judge looked at the dates and "either I was on vacation or the Judge was gone." Trial counsel explained that the "August date was the earliest we could get in for various reasons." Trial counsel further testified that he remembered speaking with Sims about the August 24 date and that Sims did not have a problem with it. Trial counsel said that Sims was always "on top of things," and trial counsel was sure that he had spoken with Sims about his right to a speedy trial.

The prosecutor for Sims' trial likewise recalled that it was Sims' trial counsel who had requested a continuance when trial counsel learned that Winefeldt had accepted a plea agreement on "the eve of trial for . . . Sims." The prosecutor explained, "I think . . . the reason the trial was moved from May to August [was] because I believe [trial counsel] said, well, if [Winefeldt is] going to testify, then I'm going to need a continuance because I have no idea what he's going to say."

Sims testified at the postconviction hearing that he had always emphasized to trial counsel that he wanted to go to trial as soon as possible. Sims said he had expected to go to trial on May 12, 1998, and that trial counsel was prepared for trial on that date. Sims asserted that trial counsel never told Sims why his trial date was moved and that when he specifically asked trial counsel for the reason for the delay, trial counsel told him that he did not know. Although Sims' testimony is not entirely clear, Sims admitted that, at some point, he was informed of Winefeldt's plea agreement.

Sims testified at the postconviction hearing that when he was informed that his trial had been delayed until August 24, 1998, he did not specifically ask trial counsel whether or not any continuances had been requested or granted. He was certain, however, that trial counsel never mentioned a continuance to him. Sims said that he could not understand why a last-minute plea agreement between Winefeldt and the State would merit a continuance because trial counsel had already discussed the possibility of Winefeldt's testifying against Sims and they had already reviewed various statements that Winefeldt had made to the police. To Sims' knowledge, no deposition of Winefeldt was taken by trial counsel and Sims was not made aware, after May 12, of any new information relating to Winefeldt's proposed testimony. Sims claimed that trial counsel did not inform him of a right to a speedy trial and that Sims was unaware that a motion to discharge could be filed. Sims entered into evidence transportation orders which reflected that he had not been transported to court on May 12.

The docket sheet from the trial court contains no entries between the time of the April 6, 1998, continuance and an August 11 reference to a transportation order. By letter dated May 13, 1998, file stamped May 14, the trial judge informed counsel that the case was set for trial on Monday, August 24. That same date, the trial judge sent a memorandum to the office of the court administrator stating the following with regard to the date of Sims' trial:

[O]n this date we discussed commencing trial on August 24, 1998, with jurors from the August 17, 1998, panel. . . .

The reason we have requested permission from the Presiding Judge to try this case in the last week of this panel, out of turn, is that this is the soonest date available for trial for counsel and the Court.

Various subpoenas calling witnesses to trial on April 2, 1998, were file stamped May 15 with an attached notation by the Douglas County investigator stating "Case Continued 5-15-98." New subpoenas

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were issued calling witnesses for August 25.


Before the postconviction hearing, the postconviction judge, who had also presided over Sims' trial, overruled a motion by Sims for the judge to recuse himself because Sims wished to call the judge as a witness. Sims' motion alleged that the judge had information relevant to Sims' attempt to prove prejudice from trial counsel's failure to protect his speedy trial rights. Sims explained that because there was no court entry definitively establishing the cause of the delay for Sims' trial beyond May 12, 1998, the judge would be required to testify as to his recollection of the reason Sims' trial did not take place on May 12. Sims also wanted the judge to generally testify about the period between May 12 and August 24 to explain how the August 24 trial date was arrived at and what other trials, civil and criminal, took place during that time. In support of his motion, Sims referenced the judge's scheduling book, which he apparently wanted to subpoena or have the judge rely upon during his testimony. Sims' motion also asserted that the trial bailiff had subsequently developed Alzheimer's disease and that this fact left the judge as the only alternative witness to the scheduling of Sims' trial. Sims' motion to recuse was not accompanied by an affidavit.

The judge denied Sims' motion, explaining that he believed that any testimony he might have would not be competent...

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