State v. Wickline, s. S-90-1135

• Decision Date: 11 September 1992
• Docket Number: S-90-1136,Nos. S-90-1135,s. S-90-1135
• Citation: 241 Neb. 488,488 N.W.2d 581
• Parties: STATE of Nebraska, Appellee, v. Lee WICKLINE, Appellant.
• Court: Nebraska Supreme Court

Page 581

488 N.W.2d 581

241 Neb. 488

STATE of Nebraska, Appellee, v. Lee WICKLINE, Appellant.

Nos. S-90-1135, S-90-1136.

Supreme Court of Nebraska.

Sept. 11, 1992.

Syllabus by the Court

1. Postconviction: Appeal and Error. In an appeal involving a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.

2. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.

3. Trial: Attorney and Client. Generally, the decision to object or not to object to evidence offered is part of trial strategy and due deference will be given to defense counsel's discretion in formulating trial tactics.

4. Effectiveness of Counsel. To maintain a claim of ineffective assistance of counsel, the record must affirmatively support the defendant's position.

5. Effectiveness of Counsel. The effectiveness of counsel will not be judged by hindsight.

6. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced his defense, that is, a demonstration of reasonable probability that but for counsel's deficient performance the result of the proceedings would have been different.

7. Postconviction: Attorney and Client: Appeal and Error. Under the Postconviction Act, it is within the discretion of the district court to determine whether legal counsel shall be appointed to represent a defendant on appeal to this court, and in the absence of a showing of an abuse of discretion, the failure to appoint counsel is not error.

Lee Wickline, pro se.

Don Stenberg, Atty. Gen., and Terri M. Weeks, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

This is a consolidated appeal from judgments of the district court denying defendant's motions for postconviction relief from his convictions of one charge of theft and one charge of burglary. We affirm.

"In an appeal involving a proceeding for postconviction relief the trial court's findings will be upheld unless such findings are clearly erroneous." State v. Gildea, 240 Neb. 780, 782, 484 N.W.2d 467, 468 (1992).

Lee Wickline, the defendant, was charged in separate informations with theft and burglary, and he was convicted of both charges. The two convictions were affirmed on direct appeal. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989) (Wickline I ).

Although the facts are set out in detail in Wickline I, we mention briefly some of the more salient points. On April 7, 1988, at approximately 1:30 a.m., Steve Reiter, a resident of Ewing, Nebraska, observed a man walking down the sidewalk wearing a backpack. At about the same time, Reiter saw an automobile with a flat tire parked nearby. This was the only vehicle on the street other than the one in which the witness was riding. The witness asked the man if he needed any help, and he said, "[N]o, leave me alone." Shortly thereafter, the witness again observed this man take off for an alleyway and try to hide between a housetrailer and the police station, and when asked what he was doing he said, "I am just trying to find a place to sleep." The witness reported these facts to the local police officer later that morning.

Another resident of Ewing, Elfreda Pruden, heard a noise about 5 a.m., looked outside, and saw someone sitting in her yard smoking a cigarette, so she called the same police officer, William Hubert.

Officer Hubert went to that location and found the defendant lying on the ground with his head on his duffelbag. The defendant was taken to the Ewing police station where he was observed smoking a Salem cigarette. The cigarette butt was taken and marked as evidence.

Another passenger in the Reiter vehicle, along with Tim Hobbs, was Hobbs' wife, Nadine Hobbs, who, in answer to a call from Officer Hubert, came to the police station and looked through the window from the outside, saw the defendant seated there, and identified him as the person they had seen earlier walking on the sidewalk. This information was testified to by Officer Hubert. Although this testimony was objected to as part of a continuing objection as an improper showup, which was raised on direct appeal and rejected by this court in Wickline I, no hearsay objection was interposed.

There was testimony that the automobile in question had been stolen from the BG & S transmission shop in O'Neill, Nebraska. Additionally, the owner of that establishment testified that a bank deposit bag containing 21 $20 bills, a $5 bill, a $1 bill, and change had been stolen at the same time that the automobile had disappeared. The owner testified that the shop's door had been pried open. The moneybag was found on the roof of a building close to where the stolen automobile was found on the street. The defendant had secreted in his eyeglass case 23 $20 bills and a $5 bill, and he had a number of coins in his possession.

Several cigarette butts were found in the ashtray of the stolen automobile, and when the cigarette butt which defendant had smoked at the police station and at least one of the butts found in the automobile were analyzed for amylase (an enzyme contained in saliva), it was determined that the saliva on both cigarette butts was of the same blood group.

Finally, a search of defendant's duffelbag disclosed a clawhammer and a screwdriver, either or both of which, it would seem, could have been used to force open the door of the BG & S transmission shop.

It was on the basis of this evidence, including the testimony of Officer Hubert as to the eyewitness' identification, that defendant was convicted and upon which this court affirmed the conviction.

Defendant's assignments of error on this appeal claim that he was improperly denied his Fifth Amendment right to confront an eyewitness who had identified him, because she was not produced as a witness at his trial; that his trial counsel was ineffective in failing to object to hearsay testimony by a police officer regarding this identification; and that his trial counsel was inadequate, in that he filed a brief on direct appeal that did not conform to this court's rules.

The district court dismissed the postconviction petition after a hearing. That court found that Wickline had not been prejudiced by the unavailability of the identifying eyewitness because the other evidence against him was overwhelming. The court further found that counsel's decision not to object to the eyewitness testimony was a matter of trial strategy, in that the record did not show that the eyewitness was unavailable and the State could have introduced the identification into evidence simply by calling her as a witness. Specifically, the court in its findings declared:

Furthermore there is no showing that Nadine Hobbs was not available as a witness, and presumably could have been called. Anyone familiar with trials [sic] tactics knows that in practically every trial a great deal of hearsay is admitted without objection. In any trial many valid objections are waived as a matter of trial tactics without consulting the client. The usual reason is that the evidence is admissible if offered by the correct procedure, the opponents knows [sic] the evidence is admissible and knows [sic] the correct procedure to get it admitted. When a trial attorney knows this, there is no p[o]int in making the opponent offer the evidence the hard way, particularly when the hard way is often the more dramatic and more effective way.

A great deal of hearsay is introduced at trial on the above basis. In this case there is no apparent reason why the prosecution could not have called Nadine Hobbs. The record shows the defendant's counsel was going to object to her testimony on the basis that it was the result of an improper showup. That same objection was made by the defendant's counsel, denied by the trial court and affirmed by the Supreme Court.

This court finds that beyond a reasonable doubt the defendant did not show his trial counsel was constitutionally ineffective by not objecting to the hearsay, nor that the defendant was prejudiced by the failure to object. Furthermore there is no reasonable probability that the results would have been different if the hearsay had been excluded.

Wickline's claim that he was denied his Fifth Amendment right to confront Hobbs regarding her identification of him, due to the failure of the State to call her, may not be considered in this proceeding because of the failure of defense counsel to object at the time of trial. "A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal." (Emphasis supplied.) State v. Nearhood, 233 Neb. 767, 771, 448 N.W.2d 399, 403 (1989). Therefore, we need consider in this regard only the claim that the district court erred in failing to find that Wickline's trial counsel was ineffective in his handling of the Hobbs identification.

The trial court in its findings declared that there appeared no reason of record why Hobbs could not have been called to testify in person regarding the identification of Wickline. As is often the...