State v. Clausen

307 Neb. 968

951 N.W.2d 764

STATE of Nebraska, appellee,

v.Timothy J. CLAUSEN, appellant.

No. S-20-109.

Supreme Court of Nebraska.

Filed December 11, 2020

I. INTRODUCTION

Timothy J. Clausen appeals from sentences imposed pursuant to jury convictions related to a prison escape. Clausen primarily argues that rulings—striking his testimony for repeated misconduct and his witness’ testimony for refusing cross-examination, and excluding other evidence—prevented him from presenting a duress defense. Because his own actions, his witness’ choice, and the inadmissibility of his other evidence fundamentally crippled his defense, his claims lack merit. Finding no reversible error or abuse of discretion, we affirm.

II. BACKGROUND

For Clausen's role in a 2016 prison escape from the Lincoln Correctional Center in Lincoln, Nebraska, he was charged with three felonies: escape, theft by unlawful taking, and operating a motor vehicle to avoid arrest. Clausen and Armon Dixon escaped the facility by hiding in a prison laundry truck with the assistance of another inmate, Brandon Williams. After the escape, a law enforcement officer discovered the inmates in a Lincoln parking lot. Before the officer could apprehend them, the inmates stole a vehicle and fled. The officer recognized Clausen as the person driving the vehicle. Law enforcement pursued the stolen vehicle, but called off the pursuit after it was deemed unsafe. After the pursuit ended, two people witnessed Clausen crash the stolen vehicle into a parked vehicle, from which stolen vehicle the inmates ran on foot. In the following days, Clausen and Dixon were both arrested.

After Clausen was arrested, law enforcement officers interviewed him three times to ascertain how he and Dixon escaped. During each interview, the officers read Clausen his Miranda rights, which he waived. Clausen admitted to escaping the facility and described the events surrounding his escape. During these interviews, Clausen did not claim to have escaped under duress.

After being deemed competent to stand trial by two separate medical professionals, Clausen pled not guilty and proceeded to a jury trial. Clausen intended to argue that he had escaped only because of duress from Dixon and that it had been Dixon, not Clausen, who had taken and driven the stolen vehicle during their escape.

Before trial, the State moved to exclude the testimony of Clausen's two witnesses: Dixon and Bentley Buckner, Clausen's cellmate in prison. During a deposition, Dixon admitted to threatening and coercing Clausen during the planning and commission of the escape and to driving the escape vehicle. At trial, outside the presence of the jury, Dixon repeated his deposition testimony. However, because the State would not give him immunity for his testimony, Dixon invoked his Fifth Amendment privilege and refused to testify about a matter the court deemed sufficiently related to Clausen's defense—namely, how the men had obtained a cell phone and drugs they used during their escape. Consequently, the court sustained the State's motion to exclude Dixon from testifying, reasoning that Nebraska law discourages a court from allowing a witness to invoke his Fifth Amendment privilege in the presence of the jury. Clausen did not request the court to partially strike Dixon's testimony related to the subjects on which he invoked privilege and to allow him to continue to testify regarding other matters.

The State also moved to exclude Buckner from testifying that Clausen told Buckner that Dixon was threatening him, Buckner saw Dixon possess a knife while near Clausen over 2 months before their escape, and Buckner believed Clausen's escape was the result of duress based on Dixon's power and authority in the prison system. The court ultimately sustained the State's motion, determining that Buckner's testimony would be inadmissible because it was based on hearsay, was too remote in time to aid Clausen's duress defense, and was based on speculation about Clausen's state of mind.

At trial, Clausen took the stand in his own defense. He did not call any other witnesses. However, before Clausen took the stand, he had an outburst in front of the jury where he asked the court to "let the jury know ... why my ... witnesses was denied ... and why ... my witnesses ... is not allowed to come into court ... and testify.... Why can't Armon Dixon come testify ... like I want him to[?]" After the jury was excused, the court warned Clausen that if he had another outburst while testifying, he would be waiving his right to testify and his testimony would be stricken. On cross-examination, Clausen again became upset that Dixon and Buckner were not allowed to testify. Despite the court's earlier warnings, he had another outburst.

During a recess, the court informed Clausen that because he had refused to subject himself to a complete cross-examination, he had forfeited his right to testify. After the recess, the court informed the jury that because of Clausen's conduct it was to disregard Clausen's testimony in its entirety and his testimony was stricken from the record. However, Clausen was allowed to remain in the courtroom for closing arguments. Despite defense counsel's objection, the court refused to give a no-inference instruction based on Clausen's right not to testify because, the court reasoned, Clausen did testify and his lack of testimony on the record was the result of his conduct rather than an invocation of his Fifth Amendment privilege.

The jury convicted Clausen of all three charges. Following an enhancement hearing, the court found Clausen to be a habitual criminal and sentenced him to a combined consecutive term of 80 to 140 years’ imprisonment—40 to 60 years’ imprisonment for escape, 20 to 40 years’ imprisonment for theft by unlawful taking, and 20 to 40 years’ imprisonment for operating a motor vehicle to avoid arrest. Although neither the oral pronouncement nor the written sentencing judgment contains any reference to credit for time served, we have not been directed to any facts in the record showing that any credit was due.

Although Clausen initially failed to file a direct appeal, his right to appeal was reinstated by postconviction relief. Clausen then filed a timely appeal, which we moved to our docket.¹

III. ASSIGNMENTS OF ERROR

Clausen assigns 14 errors in his appeal, which he consolidates into 6 overarching arguments. Clausen assigns, consolidated, that the district court erred by (1) excluding the testimonies of Dixon and Buckner; (2) striking Clausen's entire testimony and instructing the jury to disregard it; (3) failing to give a no-inference jury instruction; (4) depriving Clausen of his right to present a defense, thereby violating his constitutional rights and creating structural error; and (5) imposing excessive sentences.

Clausen also assigns that he received ineffective assistance of counsel because his trial counsel failed to (1) object to nonrelevant questioning of Dixon, (2) disclose Buckner as a witness in a timely manner, (3) offer out-of-court testimony of Dixon, (4) ensure Clausen received a proper mental evaluation, (5) subpoena the police officer who conducted a photographic lineup, (6) offer Clausen's complete interview with investigators, (7) object or seek corrective instructions regarding the State's improper opening statement commentary, (8) sufficiently cross-examine Williams, and (9) preserve Clausen's motions to suppress for appeal.

IV. STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.² A trial court's determination of the relevancy and admissibility of evidence must be upheld in the absence of an abuse of discretion.³ Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.⁴

Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error.⁵

Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.⁶

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.⁷

Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a question of law.⁸ In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.⁹

V. ANALYSIS

1. EXCLUSION OF DEFENSE WITNESS TESTIMONY

Clausen first argues that the trial court erred in prohibiting Clausen from calling Dixon and Buckner as witnesses at trial. They were his key witnesses regarding duress. Clausen did not call any other witnesses to establish that defense.

Because judicial discretion was involved in these rulings, we review them for an abuse of discretion. We address each witness separately, because the court assigned different reasons for the respective rulings.

(a) Dixon

The State filed a motion in limine seeking to bar Dixon from testifying. In addressing the State's motion, the court held a hearing outside the jury's presence where the State questioned Dixon about his planned testimony.

At the hearing, Dixon stated that he would be willing to "testify about what happened, and what went down ... I ain't got no problem with doing that." However, Dixon invoked privilege when asked how he obtained the phone and drugs that contributed to the escape. The State argued that allowing Dixon to testify on behalf of Clausen and to invoke privilege on...