State v. Derreza

STATE OF NEBRASKA, APPELLEE, v. JORGE PEREZ DERREZA, APPELLANT.

No. A-19-613.

NEBRASKA COURT OF APPEALS

June 23, 2020

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 Lancaster County: JODI L. NELSON, Judge. Affirmed.

Timothy S. Noerrlinger, of Naylor & Rappl Law Office, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

PIRTLE, BISHOP, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Jorge Perez Derreza appeals the order of the Lancaster County District Court denying his motion for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

Derreza was convicted by a jury of possession with the intent to deliver methamphetamine of 140 grams or more, a Class IB felony, and was sentenced to 20 to 20 years' imprisonment. See State v. Derreza, No. A-16-527, 2017 WL 3485394 (Neb. App. Aug. 15, 2017) (selected for posting to court website). On direct appeal, Derreza claimed that the district court erroneously admitted hearsay evidence at trial, improperly instructed the jury, and inappropriately discharged a jury member. Id. He also claimed that the evidence was insufficient to support his conviction and that his conviction should be reversed as a consequence of cumulative error. Id. This court affirmed Derreza's conviction and sentence. Id. The Nebraska Supreme Court denied Derreza's petition for further review.

In November 2018, Derreza filed a verified motion for postconviction relief alleging various allegations of ineffective assistance of counsel against his original and replacement trial counsel, which replacement counsel then served as his appellate counsel on direct appeal. Derreza's allegations of ineffective assistance of replacement counsel can be divided into four broad categories: (1) ineffective assistance during pretrial investigation and trial preparation, (2) ineffective assistance during pretrial motions, (3) ineffective assistance during trial, and (4) ineffective assistance during direct appeal. Additionally, in his conclusion, Derreza states that he "was prejudiced by the deficient performance of counsel because, there exists a reasonable probability that, but for defendant's counsels' aforementioned breaches of due diligence and ineffective assistance, the result of defendant's hearing would have been different."

1. INEFFECTIVE ASSISTANCE DURING PRETRIALINVESTIGATION AND TRIAL PREPARATION

As to the first broad category, ineffective assistance of counsel during pretrial investigation and trial preparation, Derreza's allegations can be broken down into two categories: (a) ineffectiveness in failing to test the reliability of the drug detection dog (Ike), who was brought to the scene of the vehicle stop which stop eventually resulted in Derreza's arrest, and (b) ineffectiveness in failing to explore issues associated with the rental of an Impala in which the drugs were eventually found. Derreza made allegations regarding his original trial counsel, his replacement trial counsel, and made certain allegations without specifying whether he was referring to his original or replacement trial counsel.

(a) Reliability Regarding Drug Detection Dog

The first series of allegations concern the reliability of the drug detection dog, Ike. Regarding his original trial counsel, Derreza alleged that at the hearing on his motion to suppress, original counsel "did not ask Sgt. Hicks [the drug detection dog's handler] any questions of substance regarding Ike's [the drug detection dog's] sniff in [Derreza]'s case, nor any questions regarding Ike's performance on September 5, 2014." As to his replacement trial counsel, Derreza alleged (i) that he raised concerns to his trial counsel regarding the exterior sniff of the Impala, advised counsel that he was willing to pay for an expert to evaluate Sgt. Hicks and Ike's performance, and "specifically questioned his trial counsel regarding Ike wandering toward a ditch away from the Impala prior to being called back to the Impala by Sgt. Hicks," and that he further contends counsel failed to investigate this request or to seek expert guidance regarding Sgt. Hicks' and Ike's health and performance during the September 5, 2014, exterior sniff and failed to "determine if [Ike's] untimely death could have affected the exterior sniff of [Derreza]'s rented Impala on September 5, 2014"; (ii) that his counsel failed to depose Sgt. Hicks, who had regular contact with Ike, to determine if Hicks noted any change in Ike's demeanor or performance over the last 3 months of Ike's life, claiming that Sgt. Hicks "would likely have given cause for a motion to suppress regarding the reliability of the probable cause provided by Ike when he conducted an exterior sniff of [Derreza]'s rented Impala on September 5, 2014"; and (iii) that on November 25, 2015, replacement counsel filed a motion for exculpatory evidence regarding Ike which "does notappear to have been ruled upon by [the district] court," and counsel failed to request veterinary records regarding Ike's functioning and failed to determine if there had been an examination of Ike which may have revealed Ike's ability to perform drug detection or otherwise "called into question the probable cause provided for the search of [Derreza]'s rented . . . Impala on September 5, 2014."

(b) Statements Concerning Rental Car

The second series of pretrial ineffective assistance of counsel allegations concern alleged discovery inadequacies directed at both original and replacement counsel relating to the rental car.

Regarding his replacement trial counsel only, Derreza claims that replacement trial counsel failed to properly investigate his disclosure to counsel that Ronnie Menter, the driver of the Impala on the day of the arrest, attempted to rent the Impala himself while in California, but was unable to successfully rent the Impala due to Menter's driving and credit history; and that Derreza agreed to rent the Impala for Menter who then left California alone with the Impala. Derreza claims that counsel's failure to properly investigate this claim caused counsel to be unprepared for Menter and Blake Thomas' trial testimony and resulted in counsel's failure to adequately elicit testimony from Menter and Thomas which was consistent with facts related by Derreza to trial counsel that Derreza never had access to the Impala once Menter left the rental agency with the Impala.

Regarding both original trial counsel and replacement trial counsel, Derreza claims that he disclosed to both counsel the existence of recording equipment in the main lobby of the California rental car company branch where the Impala was rented; that there existed a digital record of the original rental of the Impala; and that he requested trial counsel to attempt to obtain any digital information to corroborate that Menter initially attempted to rent the Impala. Derreza alleged that "[n]either trial counsel conducted any type of investigation to determine if video or any other documentation could be obtained to corroborate these statements nor was such evidence presented by trial counsel during Menter's testimony during Derreza's trial in this matter."

2. INEFFECTIVE ASSISTANCE DURING PRETRIAL MOTIONS

As to the second broad category of ineffective assistance of counsel during pretrial motions, Derreza alleged that he advised trial counsel that "he initially felt compelled to answer [law enforcement's] questions" and his will was overborne when answering "the Trooper's questions in violation of Jackson v. Denno and trial counsel neglected to properly file a motion and to present evidence to exclude said statement at [Derreza]'s trial." Derreza did not specify whether he was referring to his original trial counsel or replacement trial counsel as to this allegation.

3. INEFFECTIVE ASSISTANCE DURING TRIAL

As to the third broad category of ineffective assistance of counsel during trial, Derreza alleged that trial counsel failed to (a) object to the evidence offered at trial, thereby not preserving objections raised in connection with his motion to suppress; (b) timely object at trial to preserve error associated with the court's overruling of Derreza's discovery request governing the drug detection dog's training and veterinary records preventing review of this discovery ruling; (c) object on confrontation grounds to Trooper Pelster's and Trooper Grummert's trial testimonyregarding statements made by Menter and Thomas about their route of travel, thereby denying Derreza of any meaningful appellate review of the admissibility of Menter's or Thomas' statements pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); (d) "locate and interview key witnesses, [which resulted in] trial counsel [being] unable to secure the testimony of any witnesses at trial who could have stated that [Derreza] only rented the Impala after . . . Menter was unable to secure the rental on his own, which would have further corroborated the testimony of Menter and Thomas at trial"; (e) make a proper closing argument by failing to properly summarize the facts in a manner consistent with Derreza's innocence, neglecting to argue legitimate deductions to the jury, failing to advance reasonable inferences from the evidence, failing to advance a consistent theme in support of Derreza's innocence, failing to succinctly restate in a chronological format all of the inconsistencies in Trooper Pelster's trial testimony, and failing to properly highlight Menter's and Thomas' trial testimony; and (f) file a motion for a new trial, investigate any evidence to support the motion for a new trial, and have a hearing on the motion for new trial.

4. INEFFECTIVE ASSISTANCE DURING DIRECT APPEAL

As to the...