State v. Glazebrook

859 N.W.2d 341

State of Nebraska, appellee

v.Jeffrey D. Glazebrook, appellant

No. A–13–781

Court of Appeals of Nebraska.

Filed January 6, 2015.

Gregory A. Pivovar for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

Moore, Chief Judge, and Pirtle and Riedmann, Judges.

Syllabus by the Court

1. Trial: Evidence: Appeal and Error.A ruling on a motion in limine is not a final ruling on the admissibility of evidence and therefore does not present a question for appellate review.

2. Criminal Law: Convictions: Evidence: Appeal and Error.In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3. Effectiveness of Counsel: Appeal and Error.Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.

4. Sentences: Appeal and Error.A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

5. Administrative Law: Statutes.The authority to delegate discretionary and quasi-judicial powers to agency subordinates is implied where the powers bestowed upon an agency head are impossible of personal execution.

6. Trial: Evidence: Appeal and Error.Because overruling a motion in limine is not a final ruling on admissibility of evidence and therefore does not present a question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine is raised and preserved for appellate review by an appropriate objection to the evidence during trial.

7. Trial: Waiver: Appeal and Error.Failure to make a timely objection waives the right to assert prejudicial error on appeal.

8. Criminal Law: Directed Verdict.In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law, and a verdict may not be directed.

9. Effectiveness of Counsel: Proof: Appeal and Error.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.

10. Effectiveness of Counsel: Proof.To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

11. Effectiveness of Counsel: Proof.To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

12. Effectiveness of Counsel: Presumptions: Appeal and Error.The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.

13. Trial: Attorneys at Law.The decision about whether to make an objection during a trial has long been considered an aspect of trial strategy.

14. Trial: Attorneys at Law.A decision not to object could be explained by trial counsel's calculated strategy not to highlight the objectionable material.

15. Trial: Attorneys at Law: Effectiveness of Counsel: Presumptions.Trial counsel is afforded due deference to formulate trial strategy and tactics, and there is a strong presumption that counsel acted reasonably.

16. Postconviction: Effectiveness of Counsel: Appeal and Error.In the context of direct appeal, like the requirement in postconviction proceedings, mere conclusions of fact or law are not sufficient to allege ineffective assistance of counsel.

17. Sentences: Words and Phrases: Appeal and Error.An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

18. Sentences.When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

Pirtle, Judge.

INTRODUCTION

A jury found Jeffrey D. Glazebrook guilty of tampering with a witness and of terroristic threats. He was sentenced for the offenses, both felonies, and his sentences were enhanced by a finding that he was a habitual criminal. For the reasons that follow, we affirm.

BACKGROUND

On November 16, 2011, Glazebrook was charged by information with two crimes: tampering with a witness, a Class IV felony, and terroristic threats, a Class IV felony. The information also alleged Glazebrook was a habitual criminal, as defined by Neb.Rev.Stat. § 29–2221 (Reissue 2008).

After a jury trial on August 30 and 31, 2012, Glazebrook was convicted of both tampering with a witness and terroristic threats. The district court held an enhancement hearing and found Glazebrook had been convicted of at least two prior felony convictions that satisfied the criteria for habitual criminal sentencing.

The charges in this case were derived from Glazebrook's alleged behavior during a prior criminal trial, with Glazebrook as the 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 had testified that Glazebrook had uttered an inflammatory statement; Goodwin had testified that Glazebrook had previously told him, “[T]here ain't no pussy like old pussy.” This statement was the subject of a motion in limine filed by Glazebrook prior to the start of the trial. Glazebrook's motion was denied, and the statement attributed to Glazebrook was allowed to become a part of the record in this case.

David Herroon, one of the jurors in the prior trial, testified in this case that Glazebrook mouthed the words, “I will kill you,” to Goodwin. Herroon testified to his ability to read lips because of his hearing loss, and he stated that he was certain that Glazebrook had mouthed those words to Goodwin. Herroon testified that he was shocked and stunned because he “had never thought something like that would happen and that [he] would witness it.”

Saunders County Sheriff Kevin Stukenholtz testified that he was present at the prior trial and that the inmate witness testifying at the time of the alleged threat was Goodwin. Stukenholtz testified that he was approximately 22 feet from Glazebrook during Goodwin's testimony, during which he saw Glazebrook lean forward and “mouth something.” He stated he was not in a position to see what was mouthed, but he noticed that Goodwin was visibly shaken and that his voice was cracking after he concluded his testimony and left the witness stand.

Danny Sabatka, another juror, testified that he observed Glazebrook mouthing the words “I'll kill you” to an inmate witness who was testifying. Sabatka testified Glazebrook's demeanor had changed and become “much more profound and directed towards that individual.” Sabatka said this was the only time he noticed a change in Glazebrook's demeanor during the trial.

Two other jurors, John Brabec and Daniel O'Connor, testified that they witnessed a change in Glazebrook's demeanor during the testimony of an inmate witness. Brabec testified that Glazebrook's mouthed words, “I will kill you,” toward the inmate witness were “obvious.” Brabec stated that he was 100 percent certain of the statement Glazebrook had mouthed.

Prior to the trial, the jurors who testified were shown a video reenactment of Glazebrook making various statements, without sound. Herroon and Sabatka were not able to identify the words spoken in the video. Brabec testified that the statements he observed in the video did not resemble the statement mouthed in court. He said the way Glazebrook mouthed the statement in court was different from the way a person would move his or her mouth in normal conversation. Brabec described the mouthed statement in court as more enunciated, or exaggerated, than the statements on the video.

Herroon also testified that the statements on the video were different from what he witnessed as a juror. Herroon stated Glazebrook's mouthed statement in court was “very articulated ... almost over the top enunciation, trying to get a point...