State v. Soukharith, S-00-037.

• Decision Date: 29 September 2000
• Docket Number: No. S-00-037.,S-00-037.
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, appellee, v. Anousone SOUKHARITH, appellant.

618 N.W.2d 409

260 Neb. 478

STATE of Nebraska, appellee, v. Anousone SOUKHARITH, appellant.

No. S-00-037.

Supreme Court of Nebraska.

September 29, 2000.

Anousone Soukharith, pro se.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Anousone Soukharith was convicted of first degree murder, kidnapping, robbery, and the use of a weapon to commit a felony in connection with the May 23, 1995, death of Karen Logsdon. He received concurrent sentences of life imprisonment on the murder and kidnapping charges, a concurrent term of 20 to 40 years' imprisonment for the robbery, and 10 to 20 years' imprisonment on the use of a weapon conviction to be served consecutively. The convictions and sentences were affirmed on direct appeal in State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997). Soukharith subsequently filed a motion for postconviction relief which was denied by the district court without an evidentiary hearing or appointment of postconviction counsel. Soukharith now appeals from that order. We find no error and affirm.

I. BACKGROUND

The events leading to Soukharith's conviction are set forth in detail in State v. Soukharith, supra,

and will not be repeated herein except as applicable to specific postconviction claims asserted by Soukharith, including (1) that his convictions and sentences were the result of an illegal search and seizure under the 4th and 14th Amendments to the U.S. Constitution, (2) that his convictions and sentences were the result of an inadmissible confession under the 5th and 14th Amendments to the U.S. Constitution, (3) that the evidence was insufficient to support a first degree robbery conviction, (4) that the evidence was insufficient to support the kidnapping conviction, (5) that the evidence was insufficient to support the conviction for use of a weapon to commit a felony, (6) that he received ineffective assistance of counsel at trial, (7) that there was prosecutorial misconduct, and (8) that his 5th Amendment rights were violated by sheriff's deputies' refusal to afford him counsel during custodial questioning. Soukharith also filed a motion seeking the appointment of counsel to represent him in the postconviction action.

In denying postconviction relief, the district court determined that several of Soukharith's claims were procedurally barred because they were or could have been raised on direct appeal and that his claim of ineffective assistance of counsel lacked merit on its face. The district court denied Soukharith's motion for appointment of counsel to represent him in postconviction proceedings.

II. ASSIGNMENTS OF ERROR

Soukharith contends, summarized and restated, that the district court erred in denying his motion for postconviction relief without an evidentiary hearing and in denying his request for appointment of counsel to represent him in the postconviction proceeding.

III. STANDARD OF REVIEW

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. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000); State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Suggs, supra.

Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion. State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997); State v. Livingston, 244 Neb. 757, 509 N.W.2d 205 (1993).

IV. ANALYSIS

We address each of Soukharith's eight grounds for postconviction relief separately and in the order raised in his motion and addressed by the district court.

1. SEARCH AND SEIZURE OF SEALED ENVELOPE

Soukharith first contends that his conviction and sentence were prejudicially influenced by an illegal search and seizure of a sealed envelope found within his personal property after his arrest. As noted in our opinion on direct appeal, on June 6, 1995, while preparing Soukharith for transport from a Laramie County, Wyoming, detention facility to Sarpy County, Nebraska, law enforcement personnel found among Soukharith's personal property an envelope containing a letter. Law enforcement personnel scanned the letter and, determining that the letter might be a confession, turned it over to the Sarpy County Sheriff's Department. The inculpatory letter and envelope were later introduced at trial. Soukharith contends in his postconviction motion that the search and seizure violated his rights under the 4th and 14th Amendments.

This issue was before us on direct appeal, although limited to an alleged Fourth Amendment violation. We determined that the trial court was not clearly erroneous in finding that sufficient facility safety reasons justified the search and seizure of the letter and envelope and that law enforcement personnel had a legitimate governmental interest in opening the letter and reading its contents in accordance with established policy. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). Because Soukharith asserted the 4th Amendment claim and could have asserted the related 14th Amendment claim on direct appeal, these claims are procedurally barred.

2. CONFESSION

Soukharith's second asserted basis for postconviction relief is a contention that his constitutional rights were violated by the use of an inadmissable confession, namely, the inculpatory letter which was seized from his belongings. Specifically, Soukharith argues that the State did not advance sufficient proof to show that the handwriting in the letter was his or that he was the author of the letter. Soukharith could have raised the issue of the authenticity of the letter on direct appeal, but did not. Therefore, this claim is also procedurally barred.

3. INSUFFICIENT EVIDENCE TO SUPPORT ROBBERY, KIDNAPPING, MURDER, AND USE OF WEAPON CHARGES

In his third, fourth, and fifth alleged grounds for relief, Soukharith argues that there was insufficient evidence to support his convictions for robbery, kidnapping, and use of a weapon to commit a felony. In State v. Moss, 191 Neb. 36, 214 N.W.2d 15 (1973), we held that a defendant's claim that the evidence was insufficient to support his conviction did not afford a basis for postconviction relief. We explained that postconviction relief is statutorily limited to cases in which there was a denial or infringement of the rights of the defendant such as to render the judgment of conviction void or voidable under the state or federal constitution. See Neb. Rev.Stat. § 29-3001 (Reissue 1995). Liberally construed, Soukharith's pro se postconviction motion alleges that because they were not supported by sufficient evidence, these three convictions were void as a matter of law and thus violated his constitutional due process and equal protection rights. Assuming without deciding that a claimed insufficiency of the evidence to support a conviction could under any circumstances afford a basis for postconviction relief, Soukharith's claims in this regard lack merit because they were addressed and resolved on direct appeal and are thus procedurally barred.

With regard to the robbery charge, we noted that motorists observed the victim's car on the morning of her death near the place where the victim's body was later found. We also noted that a witness testified that he saw a woman walking down into a ditch where the body was eventually found while a man watched from the roadside. We noted that when Soukharith was stopped in Wyoming, he told the officer he purchased the victim's car from a man named "Wonum," but that there was no evidence of this transaction in the record. Based on the evidence, we concluded that "[t]he evidence, when construed most favorably to the State, is sufficient to support a finding that Soukharith took [the victim's] car by use of force with intent to steal in Nebraska." State v. Soukharith, 253 Neb. 310, 332, 570 N.W.2d 344, 360 (1997).

With respect to the kidnapping charge, we stated that on the day the victim was killed, she did not go to work, and that when she spoke to her family on the telephone that morning, she sounded distraught. We noted that two motorists saw what appeared to be the victim and a dark-complected man near the Platte River bridge that day, in the area where the victim was killed. We further noted that the record reflected the victim's last telephone call to her family was made in Nebraska. We again concluded that there was "sufficient evidence of the elements of abduction with continued restraint and intent to commit a felony to support the conviction of kidnapping in the State of Nebraska." Id. at 333, 570 N.W.2d at 360.

We next addressed the murder and use of a weapon charges, noting that the victim died of a gunshot wound to her back near the Platte River bridge in Sarpy County. We noted that a shell casing found near her body came from the handgun found in her car when Soukharith was stopped in Wyoming. We further noted that the shoe impressions found near the victim's body matched Soukharith's shoes. Finally, we noted that Soukharith, while in detention in Laramie County, wrote a letter tantamount to a confession to the crime. Based on the evidence in the record and on our previous findings that there was sufficient evidence to support the robbery and kidnapping convictions, we concluded that "there is sufficient evidence that Soukharith used the handgun found in [the victim's]...