State v. Campbell

STATE OF NEBRASKA, APPELLEE, v. DANIEL J. CAMPBELL, APPELLANT.

No. A-18-723.

NEBRASKA COURT OF APPEALS

November 5, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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 Douglas County: J. MICHAEL COFFEY, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

MOORE, Chief Judge, and PIRTLE and WELCH, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Daniel J. Campbell appeals the order of the Douglas County District Court denying his motion for postconviction relief without an evidentiary hearing and without appointing counsel. The district court held that Campbell's ineffective assistance of counsel claims did not warrant an evidentiary hearing because he failed to establish prejudice. The district court further held Campbell's claims of juror misconduct and improper jury instructions were issues that could have been brought on direct appeal and therefore were procedurally barred. For the reasons that follow, we affirm.

II. BACKGROUND

1. TRIAL PROCEEDINGS AND DIRECT APPEAL

After a jury trial, Campbell was convicted of seven felonies: two counts of attempted assault on an officer (25 to 25 years' imprisonment), one count of discharging a firearm while in or in proximity of any motor vehicle at any person or occupied motor vehicle (10 to 10 years' imprisonment), three counts of use of a deadly weapon to commit a felony (10 to 10 years' imprisonment), and one count of possession of a deadly weapon by a prohibited person (10 to 10 years' imprisonment). The convictions were a result of Campbell's actions of firing a shotgun at two Nebraska State Patrol troopers as they were attempting to initiate a traffic stop of the vehicle Campbell was a passenger in. The sentences on each count were ordered to run consecutively, resulting in a total sentence of 100 to 100 years' imprisonment.

On direct appeal, we affirmed Campbell's convictions and sentences on all seven charges. See State v. Campbell, No. A-16-176, 2016 WL 6872979 (Neb. App. Nov. 22, 2016) (selected for posting to court website). We found that there was sufficient evidence to find Campbell guilty on all seven charges in the amended information and that the district court did not impose excessive sentences. Id.

Campbell was represented by the same attorney at trial and on direct appeal.

2. POSTCONVICTION PROCEEDINGS

In August 2017, Campbell filed a pro se motion for postconviction relief claiming ineffective assistance of trial and appellate counsel, juror misconduct, and improper jury instructions.

Campbell alleged his trial counsel was ineffective for (1) failing to argue his motions for new trial or withdraw and allow him to argue the motions himself; (2) continuing to represent him through the appeal despite obvious dissatisfaction with his performance; (3) failing to properly investigate and challenge the production of the weapon found months after the incident; (4) failing to challenge and properly cross-examine and impeach the State's witness, Marissa McCormack; (5) failing to seek independent testing of the firearm alleged to have been used in the incident; (6) failing to depose one of the State's witnesses, Christian Sipherd, and present to him a lineup to show that no identification of Campbell could be made; (7) failing to challenge and seek evaluation of McCormack's competency; (8) failing to object to testimony regarding Campbell's possession of the same or a similar shotgun days before the incident; (9) failing to challenge discussion between two witnesses in close proximity to one of the jurors as violating the sequestration order and denying Campbell a fair trial; (10) failing to challenge certain jury instructions as incomplete; (11) failing to seek an independent evaluation of DNA evidence to show it as inconclusive; (12) failing to have the gunshot residue testing that was done processed; and (13) failing to sequester the jury in light of a recent shooting of an Omaha police officer.

Campbell further alleged that certain communications between two of the State's witnesses made within close proximity of one of the jurors outside of the courtroom amounted to juror misconduct and the district court's failure to declare a mistrial or remove the juror from the case denied him a fair trial.

Finally, Campbell alleged that the jury was improperly instructed on the charge of discharging a firearm while in or in proximity of any motor vehicle at any person or occupied motor vehicle. Campbell argues that the instruction that was given to the jury improperly excluded the term "recklessly" and that such omission removed an essential issue or element of the case. Campbell correctly noted in his postconviction motion that no objection was made to any of the jury instructions at trial.

3. DENIAL OF POSTCONVICTION RELIEF

On July 9, 2018, the district court denied Campbell's motion for postconviction relief without an evidentiary hearing. It concluded that Campbell's claims of ineffective assistance of counsel were "generic" and failed to allege prejudice.

[T]he facts alleged by [Campbell] relating to failure to investigate are generic, do not state what exculpatory evidence would have been gathered, or how a different result would have been obtained. Such facts are insufficient to warrant an evidentiary hearing. See State v. Biloff, 18 Neb. App. 215, 778 N.W.2d 497 (2009) (finding it insufficient to state counsel was ineffective in failing to properly investigate when defendant failed to include "allegations about what his attorney would have uncovered had his attorney interviewed witnesses or examined the evidence").

As to both of Campbell's claims of juror misconduct and improper jury instructions, the district court held that such claims were issues that could have been brought on direct appeal and were therefore procedurally barred. Campbell timely appeals.

III. ASSIGNMENTS OF ERROR

Campbell assigns, restated, that the district court erred in (1) denying him an evidentiary hearing on his motion for postconviction relief based on allegations of ineffective assistance of counsel for failure to investigate and challenge the State's witnesses and evidence, (2) finding that his postconviction claim of juror misconduct was procedurally barred by failure to raise it on direct appeal, and (3) finding that his postconviction claim of improper jury instructions was procedurally barred by failure to raise it on direct appeal.

IV. STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling. State v. Tyler, 301 Neb. 365, 918 N.W.2d 306 (2018).

V. ANALYSIS

Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rightssuch that the judgment was void or voidable. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Allen, supra. Relief under the Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016), is a very narrow category of relief. State v. Allen, supra.

On appeal from the denial of postconviction relief without an evidentiary hearing, the question is not whether the movant was entitled to relief by having made the requisite showing. State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). Instead, it must be determined whether the allegations were sufficient to grant an evidentiary hearing. Id. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. State v. Barber, 26 Neb. App. 339, 918 N.W.2d 359 (2018) (citing State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015)). Thus, in a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief. Id.

1. INEFFECTIVE ASSISTANCE OF COUNSEL

When, as here, a defendant was represented both at trial and on direct appeal by the same counsel, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief. State v. Henderson, supra. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. Id. A court may address the two prongs of this test, deficient performance and prejudice, in either order. Id.

In order 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. Alford, 24 Neb. App. 213, 884 N.W.2d 470 (2016). A reasonable...