Opinion
No. A-10-1212
05-22-2012
STATE OF NEBRASKA, APPELLEE, v. PERRY DAVIS, APPELLANT.
Perry Davis, pro se. Jon Binning, Attorney General, and Nathan A. Liss for appellee.
STATE V. DAVIS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sheridan County: BRIAN C. SILVERMAN, Judge. Affirmed.
Perry Davis, pro se.
Jon Binning, Attorney General, and Nathan A. Liss for appellee.
INBODY, Chief Judge, and MOORE and PIRTLE, Judges.
MOORE, Judge.
I. INTRODUCTION
Perry Davis was convicted by a jury of first degree sexual assault and sexual assault of a child. He was sentenced by the district court, and his motion for a new trial was overruled. On direct appeal, the Nebraska Supreme Court affirmed his convictions and modified his sentences. Davis filed a motion for postconviction relief, which was denied without an evidentiary hearing or appointment of counsel. Davis appeals. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
II. BACKGROUND
Following a jury trial in September 2007, Davis was convicted of first degree sexual assault, a Class II felony, and sexual assault of a child, a Class IV felony at the time. In March 2008, he was sentenced to 20 to 30 years of imprisonment and 4 to 5 years of imprisonment, respectively, to be served consecutively, with credit for 175 days served. Davis filed a motion for new trial, which was overruled. Davis was represented by different counsel than his trial attorney at sentencing, on his motion for new trial, and on direct appeal.
On direct appeal, Davis' two assigned errors were that the evidence was insufficient to support the convictions and that the district court erred in imposing excessive sentences. The Nebraska Supreme Court affirmed his convictions in State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009); however, due to changes in the felony sentencing statutes during the relevant time period, the court did modify the Class IV felony sentence from 4 to 5 years' imprisonment to a term of 20 months to 5 years' imprisonment.
On February 17, 2010, Davis filed a motion for postconviction relief alleging that his trial counsel and appellate counsel were ineffective in various ways and that there was prosecutorial misconduct during trial. The same day, Davis filed a motion to correct and add information to his motion for postconviction relief (hereinafter referred to as "motion to amend"), in which Davis expanded on his claims of ineffective assistance of trial counsel and also alleged that his trial counsel, along with the prosecutor and the court, conspired against him to fabricate the existence of a preliminary hearing. Davis also filed a motion for appointment of postconviction counsel and a praecipe for an evidentiary hearing.
The State filed a motion to dismiss Davis' postconviction motion without an evidentiary hearing or appointment of counsel. The district court held a hearing on the State's motion to dismiss on March 23, 2010. Davis appeared telephonically without counsel. The court received the State's proffered exhibits, which were the bill of exceptions from the trial and Davis' motion for new trial. Davis indicated a desire to offer exhibits, to which the State objected. The district court advised Davis to mail the exhibits and reserved ruling on them.
On November 23, 2010, the district court entered an order granting the State's motion to dismiss. The order did not indicate a ruling on the admission of Davis' proffered exhibits, although the appellate record contains various exhibits apparently sent to the court by Davis. The district court found that the allegations in Davis' postconviction motion were improperly pled as mere conclusions of law or fact or were barred as an attempt to review issues which should have been reviewed on direct appeal. It further found that many of the issues raised by Davis were not raised on direct appeal, despite the fact that Davis had different counsel on his direct appeal. The district court dismissed Davis' motion for postconviction relief without the appointment of counsel and without an evidentiary hearing.
Davis appeals the order of the district court dismissing his motion for postconviction relief.
III. ASSIGNMENTS OF ERROR
Davis asserts, consolidated and restated, that the district court erred in denying his motion for postconviction relief without an evidentiary hearing or appointment of postconviction counsel based on his claims of (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel on direct appeal, (3) violation of Davis' right to due process and right against self-incrimination, and (4) violation of Davis' right to a fair trial.
IV. STANDARD OF REVIEW
Whether a claim raised in a postconviction proceeding is procedurally barred presents a question of law, which the appellate court resolves independently of the lower court's conclusion. See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
V. ANALYSIS
The overriding issue presented in this appeal is whether the district court erred when it denied postconviction relief without conducting an evidentiary hearing. An evidentiary hearing on a motion for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Id. However, if the motion alleges only conclusions of fact or law, or the records and files in the case affirmatively show that the movant is entitled to no relief, no evidentiary hearing is required. Id.
At this stage in the proceedings, the question is not whether Davis is entitled to relief. Rather, it is simply whether his pleadings are sufficient to grant him an evidentiary hearing. When a court denies relief without an evidentiary hearing, we must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he is entitled to no relief. State v. Yos-Chiguil, supra.
We first address whether Davis' postconviction motion is procedurally barred. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and could have been litigated on direct review. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011). Davis was represented by different counsel on direct appeal, so the only issue raised in his motion for postconviction relief that is not procedurally barred is his allegation of ineffective assistance of appellate counsel. Davis' other allegations, including ineffective assistance of trial counsel, violation of Davis' right to due process, violation of Davis' right against self-incrimination, and violation of Davis' right to a fair trial, could have been raised on direct appeal. Therefore, the district court's denial of an evidentiary hearing on those issues is not clearly erroneous.
1. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Davis' postconviction motion alleges that his appellate counsel was ineffective for (1) failing to properly argue the motion for new trial, (2) failing to allege on direct appeal that Davis' trial counsel was ineffective, and (3) failing to allege "other viable issues on appeal" such as prosecutorial misconduct. When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). Appellate counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id.
Under the Strickland test, the defendant has the burden to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defendant. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). The two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, may be addressed in either order. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. McGhee, supra.
In evaluating this claim, we first look to whether Davis alleged sufficient facts to support his claim of prejudice. A defendant must make specific allegations instead of mere conclusions of fact or law in order to receive an evidentiary hearing for postconviction relief. State v. Golka, supra. See, also, State v. Derr, 19 Neb. App. 326, 809 N.W.2d 520 (2011).
(a) Handling of Motion for New Trial
Davis first claims that appellate counsel was ineffective in his handling of the motion for a new trial. Davis claims that counsel failed to raise valid grounds for a new trial, including the irregularity of the proceedings by the court, the prosecuting attorney, or witnesses for the State, or that the verdict was not sustained by sufficient evidence or was contrary to law. However, appellate counsel raised both of those issues in the motion for new trial, and the district court held a hearing and overruled the motion. Davis also claims that counsel failed to submit any evidence to support the motion for new trial; however, he does not indicate what evidence should have been submitted or how the outcome of the new trial motion would have been different. Finally, we note that the filing of and denial of the motion for new trial did not affect Davis' right to appeal. Thus, the record shows no deficient performance or prejudice with respect to appellate counsel's handling of the motion for a new trial.
(b) Failure to Allege Ineffective Assistance of Trial Counsel
We next address Davis' allegation that appellate counsel was ineffective for failing to allege ineffective assistance of trial counsel on direct appeal. When a case presents layered ineffectiveness claims, we determine the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under the test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). Obviously, if trial counsel was not ineffective, then the petitioner suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim. Id.
In his motion for postconviction relief, Davis alleged that trial counsel was ineffective for (1) failing to locate and interview witnesses prior to trial and failing to investigate other suspects or defense theories, (2) failing to file a motion in limine requesting the victim be prevented from testifying regarding certain issues, (3) failing to challenge a juror for cause, (4) failing to impeach with prior inconsistent statements, (5) failing to object to inadmissible evidence, (6) failing to renew the objection to the district court overruling Davis' motion in limine, and (7) failing to request certain jury instructions.
Neither Davis' postconviction motion nor his motion to amend his postconviction motion allege that he was prejudiced and that but for the alleged deficiencies of his trial counsel, there was a reasonable probability that the result of the proceeding would have been different. Davis' brief to this court on appeal also makes no allegation or showing of prejudice other than the general assertion that a different result "may have been had at the trial and or on appeal." Brief for appellant at 21. We have consistently required a defendant to make specific allegations instead of mere conclusions of fact or law in order to receive an evidentiary hearing for postconviction relief. See, State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011); State v. Derr, 19 Neb. App. 326, 809 N.W.2d 520 (2011).
We turn to an analysis of each of Davis' allegations of ineffective assistance of trial counsel claims below.
(i) Failure to Call Certain Witnesses
First, Davis makes a string of allegations that trial counsel was ineffective for failing to interview several witnesses and that these witnesses were necessary to confront the victim as to the inconsistencies in the allegations she made in his case. Davis alleged that trial counsel never attempted to interview the guidance counselor to whom the alleged victim made her initial report or the investigator with the Bureau of Indian Affairs to whom the guidance counselor reported the assault. In his motion for postconviction relief, Davis stated that these witnesses were necessary to confront the "numerous inconsistencies" that existed in the various allegations made by the victim. Davis makes similar allegations regarding other persons to whom the victim allegedly reported the sexual assault. Davis also alleges he advised trial counsel about the victim's friend who on a previous occasion threatened to falsely accuse Davis of sexually assaulting her and the victim if Davis did not provide the underage girls with cigarettes. Davis alleges that this false sexual assault allegation would have corroborated his theory that he was innocent of the charges. Davis further alleges that trial counsel made no attempts to locate, interview, or depose a witness who reported to the sheriff that the victim had been sexually assaulted by her 17-year-old cousin several months prior to the victim's report regarding Davis. He also alleges that trial counsel never located or interviewed the sheriff or the cousin who was accused of sexually assaulting the victim. Finally, Davis makes a brief argument that trial counsel was ineffective for failing to call the victim's brother to testify that he did not see the alleged victim crying and that he never asked her what was wrong following the first alleged assault despite evidence presented that says he did.
Our review of Davis' claims concerning other witnesses leads us to conclude that his allegations are only conclusory and either do not allege what these witnesses' testimony would be and/or do not allege how the testimony would have been of benefit to his defense. In other words, Davis has not shown that any of the alleged witnesses could have presented testimony both relevant to the case and favorable to Davis. These claims are insufficient to demonstrate either deficiency or prejudice, and consequently, Davis did not meet his burden of alleging sufficient facts regarding trial counsel's failure to call witnesses and any resulting prejudice to him. Davis' claims boil down to an argument about the victim's credibility, which issue was thoroughly examined by Davis' counsel at trial and litigated on direct appeal. Davis has failed to show that the result of the trial would have been different had these alleged witnesses been called to testify.
(ii) Failure to File Motion in Limine
Davis argues that trial counsel failed to file a motion in limine requesting that the victim be prevented from testifying regarding allegations that Davis made sexual comments on a date other than the date of the alleged sexual assaults or regarding allegations that Davis provided cigarettes to the victim. Davis alleged that these statements were unduly prejudicial and were not relevant to his case. This was one of several incidents testified to by the victim, and the entire testimony that Davis alleges should not have been allowed takes up only one page of the record before us. We find no merit to this argument because Davis has failed to show that he suffered any prejudice as a result of the testimony.
(iii) Failure to Challenge Juror for Cause
Davis alleges that one of the prospective jurors was a former law enforcement officer who had also worked as a social worker with sexually abused children. According to Davis, this prospective juror testified that he would "more than likely" believe a child alleged to be a victim of a sexual assault. Therefore, Davis says, this juror had formed or expressed an opinion that would likely result in his guilt and should have been challenged for cause by his trial counsel.
Neb. Rev. Stat. § 29-2006 (Reissue 2008) governs the removal of jurors for cause and provides in pertinent part that good cause to challenge a person called as a juror includes that "he has formed or expressed an opinion as to the guilt or innocence of the accused."
The jury selection proceedings are not contained in our record on appeal. As such, we do not know what examination occurred of this prospective juror, either by the court or by counsel. In fact, we do not know from this record or Davis' motion the name of this person or whether this person was actually seated on the jury. Nevertheless, we find this claim without merit because Davis has not alleged sufficient facts to show that trial counsel was ineffective or that he was prejudiced by the alleged failure to challenge this person for cause.
(iv) Failure to Impeach With Prior Inconsistent Statements
Davis alleges that several "inconsistent statements" were made by the victim during the trial and that trial counsel failed to impeach her with these prior inconsistent statements. According to Davis, if trial counsel had confronted the alleged victim with her inconsistent statements, the jury may have reasonably concluded that reasonable doubt existed as to whether the incidents occurred within Sheridan County as alleged, whether they happened during the specified time periods, and whether the victim was motivated by external factors.
Once again, Davis' argument centers around the credibility of the victim. Our review of the trial record shows that trial counsel thoroughly cross-examined the victim and investigator regarding various inconsistencies. Davis has failed to show how any further impeachment of the victim would have changed the outcome of his trial. This claim is without merit.
(v) Failure to Object to Inadmissible Evidence
Davis' next argument regarding trial counsel's failure to object to inadmissible evidence is identical to his allegation that appellate counsel was ineffective for failing to argue prosecutorial misconduct on direct appeal, discussed above, and is without merit.
(vi) Failure to Renew Objection
Davis also argues that trial counsel failed to renew his objection to the district court's decision to overrule his motion in limine requesting that the alleged victim refrain from testifying regarding the circumstances of the first alleged sexual assault because proper venue and location of said assault could not be established. Davis argues that because trial counsel neglected to renew his objection to the court overruling this motion, he thereby failed to preserve the issue for appeal.
When a court overrules a motion in limine, the movant must object when the particular evidence, previously sought to be excluded by the motion, is offered. State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
While trial counsel did not object to the testimony given regarding the first sexual assault and the location at which it occurred, Davis has not alleged or shown that such an objection would have been sustained. Davis has failed to show that he suffered any prejudice as a result of the failure to object to the testimony in question. Appellate counsel was not ineffective for failing to bring these arguments on direct appeal.
(vii) Failure to Request Jury Instructions
Finally, Davis argues that trial counsel should have submitted two additional jury instructions regarding the definition of a "voluntary statement" and advising the jury that the burden of proof remains on the State and never shifts to the defendant. Although the specific wording requested by Davis was not provided to the jury, a description of the burden of proof was provided as follows: "Davis has pleaded not guilty. He is presumed to be innocent. That means you must find him not guilty unless you decide that the State has proved him guilty beyond a reasonable doubt." This is a correct statement of the law. Davis fails to allege how he was prejudiced by the failure to include his additional language to what was already presented in the jury instructions.
Davis also contends a jury instruction contained in NJI2d Crim. 6.0 should have been given to the jury. NJI2d Crim. 6.0 states:
There has been evidence that defendant . . . made a statement to . . . a law enforcement officer . . . . You may rely on any such statement only if you decide beyond a reasonable doubt [with regard to each statement]:
(1) that the defendant made the statement; and
(2) that the defendant understood what (he, she) was saying; and
(3) that the statement was freely and voluntarily made under all the circumstances surrounding its making.
If you decide that the state did not prove these three things beyond a reasonable doubt then you must regard (the, that particular) statement even if you think it is true.
To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). Davis alleges that by failing to request such instructions, trial counsel was deficient. Even though NJI2d Crim. 6.0 regarding a voluntary statement is a correct statement of the law, it was not warranted by the evidence, considering Davis did not make a statement to law enforcement. Further, Davis fails to allege how he was prejudiced by trial counsel's failure to propose the requested instruction given the evidence presented at trial. Appellate counsel was not ineffective for failing to bring these arguments on direct appeal.
(c) Failure to Allege "Other Viable Issues" on Direct Appeal
Finally, Davis argues appellate counsel was ineffective for failing to "properly allege other viable issues on appeal, including prosecutorial misconduct that occurred as the result of the prosecutor eliciting testimony from law enforcement regarding the accused exercising his constitutional right to remain silent." The record affirmatively refutes this claim.
The record reflects that, at trial, the State questioned the investigator about the investigation that took place. The investigator explained that the investigation began after the victim reported to a school counselor that she had been sexually abused. When asked whether she had interviewed Davis, the investigator responded, "I attempted to do an interview with . . . Davis, but he chose not to."
Davis claims this testimony was improper because it told the jury that he had exercised his constitutional right to remain silent. See State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998) (use of defendant's postarrest, post-Miranda silence is fundamentally unfair). However, the jury in this case was not informed that Davis exercised his right to remain silent, but only that Davis had declined an interview. There was no evidence before the jury that Davis was in custody, under arrest, or that he had been advised of his Miranda rights. Appellate counsel, therefore, was not ineffective for failing to raise this issue on appeal.
Because we have determined that the records and files show that all of Davis' allegations are without merit, the district court did not abuse its discretion by denying Davis an evidentiary hearing. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
2. POSTCONVICTION COUNSEL
Finally, under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007). When the assigned errors in a postconviction petition before the district court contain no justiciable issues of law or fact, it is not an abuse of discretion to fail to appoint counsel for an indigent defendant. Id. Based upon our conclusion that Davis' postconviction motion and the files and records of his case do not present any justiciable issue with respect to postconviction relief, we conclude that the district court did not abuse its discretion in denying his motion for appointment of counsel.
VI. CONCLUSION
We have reviewed the district court's factual findings for clear error and found none. We conclude Davis failed to show he was prejudiced by deficient performance of appellate counsel; therefore, the district court did not err in denying Davis' motion for postconviction relief without an evidentiary hearing or the appointment of counsel. Accordingly, we affirm.
AFFIRMED.