State v. Coleman

1

State of Nebraska, appellee, v. Michael Coleman, appellant.

No. A-22-597

Court of Appeals of Nebraska

August 8, 2023

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: DUANE C DOUGHERTY, Judge. Affirmed.

Taylor N. Renfro, Stuart J. Dornan, and Jason E. Troia, of Dornan Troia, Howard, Breitkreutz, Conway & Dahlquist, P.C. L.L.O., for appellant.

Michael T. Hilgers, Attorney General, and Jordan Osborne for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

I. INTRODUCTION

Michael Coleman appeals the Douglas County District Court's denial of his amended motion for postconviction relief without an evidentiary hearing. He argues that he was entitled to an evidentiary hearing to address his claims that his due process rights were violated by the admission of identification testimony at trial; his claims of trial counsel's ineffective assistance at trial; and his claims of appellate counsel's ineffective assistance in connection with his direct appeal. For the reasons set forth herein, we find that the district court did not err in dismissing Coleman's motion for postconviction relief without an evidentiary hearing.

II. STATEMENT OF FACTS 1. TRIAL AND SENTENCING

In State v. Coleman, No. A-19-890, 2020 WL 4590427 (Neb.App. Aug. 11, 2020), this court recounted the facts surrounding the May 2018 shooting of Randy Stella. We described the events as follows:

In May 2018, Randy Stella, Jason Cribbs, Melvin McPhaul, and Andrew Ray gathered at a bar in Omaha, Nebraska, to watch the NBA playoffs. Upon arriving at the bar, Stella parked his car directly in front of the bar's main entrance and went inside to join his friends. A few hours later, upon exiting the bar and getting into his car to leave, Stella heard a very loud bang, lost his vision, his ears began ringing, and he felt blood running down his neck and chest. As his vision returned, he looked around and noticed a dark figure with long hair standing outside his car. The man shot Stella. Stella's injuries consisted of a bullet entrance wound below his right ear and a bullet exit hole in his jaw. A short time later, an ambulance arrived and took Stella to a hospital for treatment. At the emergency room, Stella told law enforcement that the shooter was a black male with dreadlocks and a red shirt.

State v. Coleman, supra. After an investigation, Coleman was identified as the shooter and was charged with second degree assault, use of a deadly weapon to commit a felony, and possession of a firearm by a prohibited person.

During Coleman's trial, the State adduced testimony from numerous witnesses including Jason Cribbs, Melvin McPhaul, Andrew Ray, law enforcement officers, and Rony Lozada. This court's opinion at State v. Coleman, No. A-19-890, 2020 WL 4590427 (Neb.App. Aug. 11, 2020) set forth the following summaries of their testimony:

(a) Jason Cribbs

Stella left the bar, and 1 to 2 minutes after that McPhaul and Cribbs were also leaving. Cribbs heard a shot and "heard [a] gun drop," then saw a man with long dreadlocks in a dark red or black shirt a few feet away from Stella's car reach down to pick up the gun and then run to a silver truck, which drove off. On cross-examination, Cribbs testified he did not see a gun, but, rather, heard the shot and then "heard the gun drop." Cribbs acknowledged that part of the parking lot was a little dark.

(b) Melvin McPhaul

McPhaul testified that Stella left the bar, and a few minutes later McPhaul and Cribbs left as well. McPhaul was in the bar's entryway when he heard a gunshot and saw a man with dreadlocks, wearing a red shirt and shorts, moving toward the car that was straight ahead to the left. McPhaul opined that the man looked like he was picking up something as he was moving to McPhaul's left and entered a silver truck, which then left the parking lot. McPhaul noted that man was the only person he saw in the area after hearing the gunshot.

On cross-examination, McPhaul was asked about his deposition testimony in which he stated he saw the suspect wearing a red T-shirt and a blue hat, and McPhaul testified that he recalled saying that during his deposition. On redirect, McPhaul clarified that he saw the suspect wearing a hat when he entered the bar but was not sure if he was wearing the hat outside by the truck.

(c) Andrew Ray

Ray testified that when he initially entered the bar, a man with dreadlocks and wearing a red T-shirt walked toward him, but Ray did not think anything of it at the time other than just making a "mental note" that someone was walking towards him. The next time Ray recalled seeing the aforementioned man that night was in the bar's parking lot. Ray explained that he had left the bar approximately 5 to 7 minutes after Stella left and that as Ray was retrieving an item from his trunk, he heard a popping sound and saw a white sedan roll back a little bit. Next, Ray saw the man hunched over, running from the sedan as if "he was trying to conceal something in his waistband" and then enter a silver truck that sped off. Ray testified that after hearing the shot, nothing obstructed Ray's viewpoint between himself and the man, and that the parking lot was lit. As the truck sped off, Ray memorized the truck's license plate number.

Ray testified that the man he described was Coleman and made an in-court identification of Coleman. Additionally, Ray testified no other individuals with dreadlocks were in the bar that evening, and he estimated that approximately 10 minutes elapsed from the time Stella left the bar to the time Ray heard the popping sound.

(d) Law Enforcement Testimony

Law enforcement determined that the license plate number of the silver truck was registered to Veronica Busch, who informed law enforcement that Coleman was her "on-again, off-again boyfriend" who drove the truck, and that in April 2018, Coleman had been stopped for speeding while driving the truck.

(e) Rony Lozada

Lozada testified that he was seated in the patio area of the bar when he observed a dark gray truck in the parking lot. Lozada explained that at one point he saw a person exit the bar and walk to a car. At the same time, he also saw a black man with shoulder-length dreadlocks, a red shirt, and dark shorts, possibly gray or black, crouching while approaching the car. Lozada thought the man with dreadlocks was approximately 5'8" or 5'9" tall and weighed about 170 or 180 pounds. Then Lozada heard a loud noise and saw the man with dreadlocks running to the gray truck, which quickly sped off. Lozada estimated that less than a minute elapsed from the time he heard the loud noise to the time the truck sped out of the parking lot.

Surveillance video from the bar and a nearby business was received into evidence. The video surveillance from the bar showed Coleman, who had shoulder-length dreadlocks, wearing a red Nike shirt and shorts. Stella testified that as he was leaving the bar on the night of the shooting, he looked back and saw a man with a red shirt exiting the bathroom. The bar's interior surveillance video last captured Coleman walking south heading toward the bar's main entrance/exit at 11 p.m. The 911 call was received at 11:03 p.m.

After the State rested, the defense called Jason Lemkin who testified that, on the night in question, he was sitting in the bar's outdoor patio area when he heard a gunshot. He then observed a black male in a red shirt sit down in Stella's car. According to Lemkin, the individual "looked like he grabbed something and put it in his pocket" and that the man looked like "[h]e didn't want anybody [to] see him doing it." However, Lemkin also admitted that it seemed as if the black male knew the person who had been shot and the individual could have just been scared that his friend had been shot. Lemkin further admitted that he pointed out the man to police "because [the man] was still standing around" and that the man that he saw that night was not Coleman. Following this testimony, the State and defense stipulated that, if called as a witness, Gerald Jones would testify that he was with other individuals at the bar watching the NBA playoffs on the night of the shooting, that he was wearing a red shirt and glasses, and that he entered Stella's vehicle and used Stella's phone to attempt to call Stella's mother.

The jury convicted Coleman of the charged offenses. Thereafter, the court sentenced Coleman to 35 to 40 years' imprisonment for each offense, to run consecutively, which included a habitual criminal enhancement.

2. DIRECT APPEAL

In his direct appeal, Coleman, who was represented by different counsel than had represented him during this trial and sentencing, assigned as error that there was insufficient evidence to support his convictions and that his "trial counsel provided assistance of counsel so deficient that, but for counsel's deficient performance, the result of the proceeding below would have been different." Id. This court rejected Coleman's claim that the evidence was insufficient to support his convictions and held that Coleman's assigned error that "trial counsel provided assistance of counsel so deficient that, but for counsel's deficient performance, the result of the proceeding below would have been different" was "a general allegation and clearly lacks the specificity required by [State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019),]" and thus, Coleman had failed to raise an ineffective assistance of trial counsel claim on direct appeal. State v. Coleman, supra. The mandate issued on September 15, 2020.

3. POSTCONVICTION

On September 10, 2021, Coleman filed a verified motion for...