State v. El-Tabech, EL-TABEC
| Decision Date | 23 March 1990 |
| Docket Number | A,EL-TABEC,No. 89-389,89-389 |
| Citation | 234 Neb. 831,453 N.W.2d 91 |
| Parties | STATE of Nebraska, Appellee, v. Mohamedppellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Proof: Appeal and Error. A defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed on appeal unless clearly erroneous.
2. Postconviction: Effectiveness of Counsel: Proof. When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.
3. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. 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.
4. Effectiveness of Counsel: Proof. A convicted defendant seeking a reversal of the conviction or sentence for the reason that counsel's assistance was deficient must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
5. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness. The trial court's findings will be upheld unless they are clearly wrong.
6. Constitutional Law: Trial: Testimony: Waiver. The court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred.
7. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant's direct appeal.
8. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves ineffective, will not, without more, sustain a finding of ineffectiveness of counsel.
Alan G. Stoler, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and William L. Howland, for appellee.
After a jury trial, the defendant, Mohamed El-Tabech, was convicted of murder in the first degree and use of a deadly weapon to commit a felony in the strangulation death of his wife, Lynn El-Tabech, on June 24, 1984. He was sentenced to life imprisonment for the murder and 20 years' imprisonment for the use of a deadly weapon, the sentence on the second count to run consecutively. The judgment was affirmed by this court in State v. El-Tabech, 225 Neb. 395, 405 N.W.2d 585 (1987).
On June 23, 1988, the defendant filed a pro se "Motion to Vacate Conviction and Sentence" pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989). An evidential hearing was held on February 23, 1989, on the portions of the motion which alleged the defendant's convictions were unconstitutional because he was not afforded effective assistance of counsel. The defendant claimed that his trial counsel were ineffective because they denied the defendant the right to testify in his own behalf and denied him the right to call certain witnesses, including the victim's former employer and several character witnesses. The defendant further alleged that trial counsel were ineffective in failing to adequately prepare the case for trial and in failing to move for a dismissal of the information based on speedy trial grounds.
The trial court found that counsel's decision not to put the defendant on the stand and not to call certain other witnesses was proper trial strategy; that the defendant had not shown he received ineffective assistance of counsel; and that even if the assistance was deficient, the defendant failed to show there was a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different.
The defendant has appealed and assigns as error the action of the district court in denying him postconviction relief (1) because the defendant's constitutional right to testify was violated and (2) because the defendant did not have effective representation of counsel at trial.
The standard of review for a claim of ineffective assistance of counsel is that set forth in State v. Jones, 231 Neb. 110, 112-13, 435 N.W.2d 650, 652 (1989):
' ' " ...
... "[T]o sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. 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."
A convicted defendant seeking a reversal of the conviction or sentence for the reason that counsel's assistance was deficient must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
See, also, State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989).
The record shows that the defendant was represented by Deputy Lancaster County Public Defender Scott Helvie from the time of his arraignment in June 1984 until July 1985, when the public defender's office was disqualified from the case because of a conflict of interest. During this period, Helvie and other members of the public defender's office made many contacts with the defendant, took numerous depositions, compiled many volumes of investigatory materials, and adopted a tentative trial strategy.
Kirk Naylor was appointed to represent the defendant after Helvie's office was disqualified in July 1985. Due to the complexity of the case, a second attorney, Jerry Soucie, was appointed to assist Naylor. Both Naylor and Soucie are experienced criminal defense attorneys.
The defendant first claims that Naylor and Soucie were ineffective in failing to allow him to testify at trial despite his demands to do so, in violation of his rights under the U.S. and Nebraska Constitutions.
As to the decision not to have the defendant testify, Naylor stated that he and the defendant discussed whether the defendant should take the witness stand. The record shows that Naylor and Soucie discussed this issue at length with the defendant and even held practice sessions with the defendant. Naylor became concerned that the defense would be adversely affected by the defendant's testimony. He was of the opinion that the jury would believe the defendant was capable of murder. Naylor also thought the defendant's explosive personality and his tendency to fly into rages would be demonstrated on the witness stand and create a bad...
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...which could have been raised on direct appeal. State v. Painter, 229 Neb. 278, 426 N.W.2d 513 (1988). See, also, State v. El-Tabech, 234 Neb. 831, 453 N.W.2d 91 (1990). The question of defendant's competence and whether his plea was coerced by the promises of his counsel could have been rai......
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...in a motion for postconviction relief claims that could have been presented on direct appeal. See, e.g., State v. El-Tabech, 234 Neb. 831, 837, 453 N.W.2d 91, 96 (1990). In this case petitioner failed to present his jury claim on direct appeal, which would ordinarily cause the state courts ......
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