State v. Bruna, A-10-581.

State of Nebraska, appellee,

v.Jay Bruna, appellant.

No. A-10-581.

NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Filed May 17, 2011.

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 Sarpy County: Randall L. Rehmeier, Judge. Affirmed.

Alan G. Stoler, P.C., L.L.O., for appellant.

Jon Binning, Attorney General, and James D. Smith for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Inbody, Chief Judge.

I. INTRODUCTION

Jay Bruna appeals from the Sarpy County District Court's denial of his petition for postconviction relief following an evidentiary hearing. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

In 2002, Bruna was charged with first degree sexual assault on a child and a jury trial was held during which he was represented by Gregory Pivovar. This trial resulted in a mistrial. On retrial, Bruna, who was represented by Timothy Watts, was convicted of first degree sexual assault on a child and was sentenced to 15 to 50 years' imprisonment. A detailed factual basis is found at State v. Bruna, 12 Neb. App. 798, 686 N.W.2d 590 (2004) (Bruna I) and will not be repeated here. On direct appeal, Bruna was represented by Lawrence G. Whelan. This court affirmed Bruna's conviction, but vacated his sentence and remanded for resentencing by a different judge due to comments the judge made at sentencing. Id. On remand, Bruna wassentenced to 20 to 50 years' imprisonment and that sentence was affirmed. See State v. Bruna, 14 Neb. App 408, 710 N.W.2d 329 (2006) (Bruna II), and State v. Bruna, 272 Neb. 313, 721 N.W.2d 362 (2006).

Subsequently, Bruna filed a motion for postconviction relief which he later amended. The district court found that an evidentiary hearing was not necessary to address certain issues raised by Bruna in his amended motion. The issues denied by the court without an evidentiary hearing have not been assigned as errors by Bruna in this appeal, and in any event, the court's denial of an evidentiary hearing on these issues was required to be appealed immediately. See State v. Poindexter, 277 Neb. 936, 766 N.W.2.d 391 (2009) (order granting evidentiary hearing on some issues presented in postconviction motion but denying hearing on others is final order). The district court granted Bruna's request for an evidentiary hearing regarding the remaining grounds and issues raised in Bruna's amended motion for postconviction relief, and an evidentiary hearing was held thereon on January 15, 2010. The parties presented evidence via the following depositions: Bruna, Watts, the State's expert witness Dr. Theodore DeLaet, Dr. Stephen Skulsky, and Pivovar. Although Bruna claimed ineffectiveness of his appellate counsel, he did not present deposition testimony, during the evidentiary hearing, by Whelan, who represented him on his direct appeal.

Dr. Skulsky is a clinical psychologist who had been consulted by defense counsel prior to trial; however, despite having given a deposition prior to trial, Dr. Skulsky was not called as a witness during Bruna's trial. In his deposition testimony admitted at the postconviction hearing, Dr. Skulsky testified that he felt that Dr. DeLaet's dual role in treating the victim and testifying as an expert witness at Bruna's trial was in violation of the clinical psychologist's ethical code because one could not maintain impartiality. However, he also testified that Dr. DeLaet "did a good job," he had no outright disagreement with any of Dr. DeLaet's testimony, and he felt that Dr. DeLaet's testimony was accurate. He further testified that "I would have gone about giving the information differently, but the information would have been about the same." By "giving information differently," Dr. Skulsky stated that he

would have led off with the essential idea that there is no one type of behavior that one gets either in abusers or in abusees. There's a class of different sets of reactions.

Very frequently with child victims, you get a child acting out. That's the person sort of modeling the same behavior they were shown. You also get the opposite extreme. You get children who are overly good, who force themselves to be sort of like superchildren, to not act out, to sort of avoid acting out behaviors of all kinds, scrupulously.

Although Dr. Skulsky testified that Dr. DeLaet did not give the aforementioned testimony in those specific words, Dr. DeLaet did give examples, and Dr. Skulsky testified that Dr. DeLaet's testimony "was pretty accurate" and "I would have said the same things he said about perpetrators, but I would have made a different point about it." According to Dr. Skulsky, Dr. DeLaet made the point that there is no one profile that fits all sexual perpetrators and that there is a type that acts out of inadequacy and immaturity and another type that is a control type. Dr. Skulsky testified that although Dr. DeLaet did not use the examples or explanations that he would have used, Dr. DeLaet did make the same points. Dr. Skulsky agreed with Dr. DeLaet'stestimony, but would have elaborated more fully on various areas, such as types of behaviors and characteristics of child victims, predators, and children that make false claims, than Dr. DeLaet touched upon in his testimony. However, Dr. Skulsky did not provide, in his deposition, specific testimony on the elaborations that he would have made in these areas.

The district court took judicial notice of the court's file and the bill of exceptions of the previous trial proceedings and sentencings in Bruna's case. Following the hearing, the district court denied Bruna's motion for postconviction relief in a thorough and well-reasoned 25-page order.

III. ASSIGNMENTS OF ERROR

Bruna contends that the district court erred in finding that his trial counsel was not ineffective for (1) failing to effectively cross-examine the State's expert, Dr. DeLaet, at trial; (2) failing to call an available expert witness, Dr. Skulsky, to impeach the State's expert witness after disclosing in opening statements that said defense expert witness would testify; (3) failing to move for additional discovery; (4) failing to comply with court rules and Nebraska statutes in requesting a continuance of the trial; (5) failing to prepare an adequate defense in the time allotted; (6) failing to preserve issues for direct appeal thereby creating a procedural bar; (7) offering testimony detrimental to Bruna at trial; (8) failing to investigate, interview, or call requested witnesses; and (9) failing to subject the alleged victim to meaningful cross-examination and failing to present an adequate defense to the allegation of sexual assault. He also contends that trial counsel's cumulative errors resulted in the denial of a fair trial and constituted ineffective assistance of counsel.

Bruna also contends that the district court erred in failing to grant his motion for postconviction relief on the basis that his appellate counsel was ineffective for failing to properly raise issues on direct appeal that trial counsel (1) failed to object to purported trial testimony by witnesses vouching for the victim's credibility, (2) failed to call Dr. Skulsky as a defense witness, (3) failed to properly move for a trial continuance, (4) failed to object to the trial court's jury voir dire procedure, and (5) failed to properly cross-examine the State's expert witness, Dr. DeLaet.

IV. 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. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010); State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Haas, supra; State v. York, supra.

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Haas, supra; State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. State v. Haas, supra; State v. Dunster, supra. With regard to the questions of counsel's performance or prejudice to the defendant as part of thetwo-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. Haas, supra; State v. Dunster, supra.

v. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Bruna assigns various errors regarding the ineffectiveness of his trial counsel. However, since Bruna was represented by different counsel on direct appeal than at trial, alleged errors which could have been raised on direct appeal cannot be raised in a subsequent motion for postconviction relief. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Vo, supra.

In his direct appeal, Bruna did assign as error that he received ineffective assistance of trial counsel because of trial counsel's failure to raise proper objections to Dr. DeLaet's testimony, an assigned error which we rejected on the merits. Thus, to the extent that Bruna's ineffectiveness of trial counsel claim overlaps with that raised in his direct appeal, that claim was rejected on the merits in his direct appeal, see Bruna I, supra, and his remaining claims regarding ineffective assistance of trial counsel are barred because they were not raised on direct appeal. Further, since...