State v. Cole

1

State of Nebraska, appellee, v. Cedrick D. Cole, appellant.

No. A-23-868

Court of Appeals of Nebraska

July 30, 2024

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 Lancaster County: ANDREW R JACOBSEN, Judge. Affirmed.

Cedrick D. Cole, pro se.

Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.

MOORE RIEDMANN, and BISHOP, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

BISHOP, Judge.

I. INTRODUCTION

Cedrick D. Cole appeals from the order of the Lancaster County District Court denying his motion for postconviction relief without holding an evidentiary hearing. We affirm.

II. BACKGROUND

1. CONVICTION AND SENTENCE

In 2021, Cole was convicted by a jury of first degree arson. See State v. Cole, No. A-21-1020, 2022 WL 4137235 (Neb.App. Sept. 13, 2022) (selected for posting to court website). The district court sentenced him to 25 to 40 years' imprisonment. Id. As set forth in this court's previous opinion, the evidence adduced at Cole's jury trial is as follows.

On Saturday, October 10, 2020, Cole was with his then-girlfriend Jordan Ragland at her apartment in Lincoln, Nebraska, and they argued about Cole's alleged infidelity.

Following their argument, Ragland asked her friend, Ashley Rice, to pick her up from the apartment and help her move her belongings to her mother's house. Rice arrived to pick up Ragland in the early afternoon. Following Ragland's departure, Cole made numerous calls to Ragland, most of which she ignored. Approximately 10 minutes after she left the apartment, Ragland received a Snapchat video from Cole showing her couch on fire. In a video recording of Ragland opening and viewing the Snapchat video, Ragland can be heard saying "Oh my god." Rice then asked Ragland, "He actually set it on fire?" Ragland responded "[y]es." After viewing the Snapchat video, Rice and Ragland began heading back to the apartment. Cole testified that he had called Ragland numerous times to alert her that her couch had caught fire, but to no avail. He explained that this was the reason he sent Ragland a Snapchat video of the burning couch.

Cole claimed he attempted to subdue the fire by dousing the flames with flour and water. Ragland's neighbor, Shelby Marshall, assisted by running jugs of water over from her apartment to throw at the fire. Despite these efforts, the flames became uncontrollable and spread beyond the couch to the rest of the apartment unit. According to Marshall, she was "more active in trying to put the fire out" than Cole. She further stated that Cole seemed "lethargic." According to Cole, he had suffered a previous injury to his leg, which limited his mobility. Cole called 911 to request emergency assistance. However, Marshall stated that Cole did not call 911 until she instructed him to do so. Lincoln Fire and Rescue arrived shortly thereafter and successfully suppressed the fire.

Cole left the scene of the fire prior to the arrival of emergency personnel because he was aware of outstanding warrants for his arrest. After leaving Ragland's apartment, Cole asked Rice and Ragland to pick him up. Rice dropped off Ragland and Cole at a friend's house a few blocks away from the apartment. Cole remained at the friend's house while Ragland walked to the scene of the fire and spoke with law enforcement.

....

Surveillance footage from a neighboring building on October 10, 2020, showed Cole pick up an item off the ground near a charcoal grill outside of Ragland's apartment unit. Rice testified that Ragland and Cole had previously stored lighter fluid next to the grill and that the item Cole picked up from near the grill "would have to [have been] lighter fluid." Ragland and Cole testified that they stored the lighter fluid in the garage. Cole testified that surveillance footage showed him picking up a water bottle which only contained water. Fire Marshal Thomas Schmidt, who was qualified as an expert fire inspector at trial, stated that he did not find any remnants of a lighter fluid bottle in the apartment or near the grill.

Ragland testified that she frequently filled a torch with butane while sitting on the couch in her apartment, sometimes spraying excess butane onto the couch. She further stated that she habitually lit incense, which she described as "almost like ... a punk for fireworks," and she placed them between couch cushions, among various other locations throughout her apartment. She surmised that a previous fire that had started on the same couch was ignited by her incense; the previous fire took place in September 2020. She noted that at that time firefighters had advised her to dispose of the burned couch cushions because they were "more flammable" due to the release of certain oils in the microfibers of the couch. She stated that she was "sure" she placed incense in the couch on the day of the October 10th fire.

Id. at *1-2.

Additionally, "Fire Marshal Schmidt testified that he employed a systematic fire investigation approach to determine that the fire originated on the couch in the living room and that the fire "had to [have been] ignited by human hands." Id. at *3 (brackets in original).

2. DIRECT APPEAL

Cole, with new counsel, filed a direct appeal claiming that the evidence was insufficient to sustain his conviction, his trial counsel was ineffective for failing to challenge the lack of evidence regarding a material element of the crime, and his sentence was excessive. This court affirmed Cole's conviction and sentence on direct appeal and found that his ineffective assistance of trial counsel claim failed. See State v. Cole, supra.

3. POSTCONVICTION

On April 4, 2023, Cole, pro se, filed a verified motion for postconviction relief. In his motion, Cole alleged defects in the information, errors in the jury instructions, and the ineffective assistance of both trial and appellate counsel. Specifically, he alleged that his trial counsel was ineffective because counsel failed to: (1) object to specified jury instructions; (2) failed to "interview and investigate" five named witnesses (Ashley Rice, Shelby Marshall, Melissa Leuty, Tyronn Blueford, and Frankie Mason) and the named victim (Jordan Ragland) who all "would have testified that they did not see . . . Cole start any fire"; (3) request "independent testing of a water bottle located by Lincoln Fire and Rescue Investigator Schmi[d]t, containing an unknown liquid, which would have concluded that the unknown liquid was in fact water"; and (4) file a motion to quash the information which was not sworn to under oath by the deputy Lancaster County attorney. Cole also alleged that his appellate counsel was ineffective because appellate counsel failed to assign as error on direct appeal: (1) the foregoing claims of ineffective assistance of trial counsel; and (2) the "plain error" by the district court regarding its failure to improperly instruct the jury in specified ways.

A brief hearing on Cole's motion was held on August 23, 2023. Both the State and Cole appeared by video conference. Cole had "no new evidence," but made a personal address to the court stating that he had "learned to be accountable" and "made a lot of changes to [his] life and accepted [his] flaws and promise[d] not to go down this road again." The State submitted on its brief.

In its order entered on October 2, 2023, the district court denied Cole's motion for postconviction relief without an evidentiary hearing. The court found that the information filed by the State met the Constitutional requirements of an information or indictment because it was sufficient to put Cole on notice of the charge against him, prepare his defense, and plead the judgment as a bar against future conviction. Regardless, Cole waived any defect in the information by proceeding to trial without contesting it. The court found that Cole's claims against his trial counsel were procedurally barred because they could have been raised on direct appeal. The court found that Cole's appellate counsel was not ineffective for failing to assign as error trial counsel's failure to object to jury instructions, interview witnesses, independently test evidence, or file a motion to quash the information.

Regarding Cole's claims against appellate counsel, the district court specifically found the following. The jury was properly instructed. As to trial counsel failing to interview and investigate potential witnesses, the court noted that Cole started a fire inside of an apartment with no one else there; no testimony was elicited during trial that anyone saw him start the fire. Further, three of the named witnesses (Ragland, Rice, and Marshall) testified at trial and were cross-examined, and none testified that they saw Cole start the fire. Cole did not provide any information on the other three named witnesses (Leuty, Blueford, and Mason)--whether they would have had an opportunity to observe the incident, or how their testimony would have changed the outcome of the case when Cole had been in an argument with the owner of the apartment, was on video alone at the apartment when the fire broke out, sent the victim a picture of the fire, and made minimal efforts to put out the fire or contact emergency services. The court pointed out, "Because [Cole] was alone in a small apartment when he started a fire, it is not surprising that a multitude of witnesses could testify that they did not see [Cole] start the fire."

Regarding Cole's claim that an independent test of the water bottle would have concluded that the substance was water, the district court found this claim to be conclusory. The court stated that Cole did not articulate how this would have...