State v. Glazebrook, A-16-493.

STATE OF NEBRASKA, APPELLEE, v. JEFFREY D. GLAZEBROOK, APPELLANT.

No. A-16-493.

NEBRASKA COURT OF APPEALS

December 19, 2017

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 Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.

Gregory A. Pivovar for appellant.

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

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

PIRTLE, Judge.

INTRODUCTION

Jeffrey Glazebrook appeals the order of the district court for Sarpy County which overruled his motion for postconviction relief without an evidentiary hearing. He claims the district court erred when it rejected his six claims of ineffective assistance of counsel. For the reasons that follow, we affirm the district court's order.

BACKGROUND

The charges in this case were derived from Glazebrook's alleged behavior during a prior criminal trial, with Glazebrook as a defendant. During the testimony of Charles Goodwin, an inmate witness, Glazebrook allegedly threatened Goodwin's life. At the trial on this matter, several witnesses, including four of the jurors and the county sheriff in attendance at the prior trial, testified. They stated that they saw Glazebrook mouth a threat toward Goodwin immediately after Goodwin testified that Glazebrook had told him "[T]here ain't no pussy like old pussy."

Following a jury trial, Glazebrook was convicted of one count of tampering with a witness and one count of terroristic threats. He was found to be a habitual criminal and his sentences were enhanced accordingly. He was sentenced to a term of 30 to 60 years' imprisonment on each count, to be served concurrently.

Glazebrook filed a direct appeal with this court, which was dismissed on procedural grounds. He filed a verified motion for postconviction relief requesting reinstatement of his direct appeal. The district court granted his motion and reinstated his direct appeal. This court affirmed Glazebrook's convictions and sentences. See State v. Glazebrook, 22 Neb. App. 621, 859 N.W.2d 341 (2015).

On January 7, 2016, Glazebrook filed a verified motion for postconviction relief. He filed an amended motion for postconviction relief on February 18, 2016 setting forth six claims of ineffective assistance of counsel. On April 1, the State filed a motion to dismiss. The State argued Glazebrook's motion failed to set forth sufficient factual allegations to warrant an evidentiary hearing.

The district court then considered and rejected each of Glazebrook's claims for postconviction relief and concluded that no evidentiary hearing was required on any of the claims. On April 18, 2016, the court overruled Glazebrook's motion for postconviction relief and his request for an evidentiary hearing.

Glazebrook appeals the district court's order overruling his motion for postconviction relief without an evidentiary hearing. In his appeal, he assigns error to the district court's rejection of his claims. Further details regarding those six claims, the facts related thereto, and the district court's analysis on those claims are set forth in our analysis below.

ASSIGNMENTS OF ERROR

Glazebrook claims that the district court erred when it denied postconviction relief without an evidentiary hearing on the following claims of ineffective assistance of counsel: (1) Failure to hire a lip reading expert; (2) Failure to object to a "particular inflammatory statement"; (3) Failure to seek a limiting instruction; (4) Failure to seek alternate counsel so trial counsel could testify as a witness; (5) Failure to depose the alleged victim; and, (6) Failure to interview each of the jurors and call them as additional witnesses, where appropriate.

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. Watson, 295 Neb. 802, 891 N.W.2d 322 (2017).

ANALYSIS

Glazebrook asserts, generally, that the district court erred in denying his claims for postconviction relief without an evidentiary hearing and, specifically, when it rejected his six claims. Before reviewing the merits of Glazebrook's specific claims, we review general standards relating to postconviction relief.

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 rights such that the judgment was void or voidable. State v. Watson, supra. Thus, 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. Id.

A court must grant an evidentiary hearing to resolve claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution. 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. Id.

A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial. Id. 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. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. Id.

With these standards in mind, we review Glazebrook's specific claims.

Failure to Hire Lip Reading Expert.

Glazebrook asserts his trial counsel was ineffective for failing to hire a lip reading expert. He alleges that an expert could have testified about the "difficulty of lip reading" and the "distance and accuracy of lip reading at those distances." The premise of his argument is his speculation that an expert's testimony would undermine the witnesses' testimony that they accurately saw and interpreted Glazebrook's mouthed statement toward Goodwin as he testified.

The State directs us to State v. Abdullah, 289 Neb. 123 (2014), in which the Nebraska Supreme Court held that the movant in a postconviction proceeding must specifically allege what the testimony of the witnesses would have been if they had been called. Courts in this State have consistently held that "without such specific allegations, the postconviction court would effectively be asked to 'conduct a discovery hearing to determine if anywhere in this wide world there is some evidence favorable to the defendant's position.'" Id. citing State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).

Because Glazebrook did not specifically allege what a lip reading expert's testimony would have been if called as a witness we conclude that Glazebrook's allegations are insufficient to support the granting of postconviction relief. See State v. Watson, supra.

The district court found that Glazebrook's claim also failed because he did not set forth sufficiently specific allegations of prejudice. In order to show prejudice, the defendant mustdemonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. See State v. Watson, supra.

Glazebrook's amended motion for postconviction relief alleged that he was "actually prejudiced insofar as he was denied the right to proceed on direct appeal and raise all issues of his conviction and ineffective assistance of counsel that might be available to him." We agree that this is not a specific allegation of prejudice, showing how Glazebrook was prejudiced by the alleged failure to hire a lip reading expert.

Even if he had made a specific allegation of prejudice, the record shows that Glazebrook's counsel thoroughly cross-examined each of the witnesses concerning their observations of Glazebrook's in-court behavior. Three witnesses testified that they personally observed Glazebrook mouth a threat to Goodwin. One of these witnesses was David Herroon, a juror in the previous trial. He testified that he has hearing loss and is able to read lips. He stated that he was certain that Glazebrook had mouthed the words "I will kill you" to Goodwin. Three jurors and the sheriff testified that they saw Glazebrook's demeanor change during Goodwin's testimony. One juror, Danny Sabatka, testified that he saw Glazebrook mouth the words "I'll kill you" toward Goodwin. Another juror, John Brabec, stated that he was 100 percent certain that he observed Glazebrook mouth "I will kill you" toward Goodwin.

The defense also utilized a video reenactment to challenge the witnesses' ability to reliably and accurately read lips. This evidence was presented to and passed upon by the jury. Even if an expert had testified, the weight and credibility given to such testimony is also a matter for the jury, as the trier of fact. See State v....