State v. Huff

STATE OF NEBRASKA, APPELLEE, v. HERCHEL H. HUFF, APPELLANT.

No. A-19-537.

NEBRASKA COURT OF APPEALS

May 12, 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 Furnas County: JAMES E. DOYLE IV, Judge. Affirmed.

Herchel H. Huff, pro se.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

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

MOORE, Chief Judge.

I. INTRODUCTION

Herchel H. Huff appeals from the orders of the district court for Furnas County which denied various motions filed by Huff, including a motion for new trial, a petition for writ of error coram nobis, and a successive motion for postconviction relief. This is the latest of the many appeals that have followed since Huff's conviction of motor vehicle homicide, among other charges, in connection with the death of Kasey Jo Warner. For the reasons set forth herein, we affirm.

II. BACKGROUND

1. TRIAL AND DIRECT APPEALS

In 2008, Huff was charged with motor vehicle homicide, manslaughter, refusal to submit to a chemical test, and tampering with a witness. Huff pled guilty to the manslaughter charge, but not guilty to the other crimes with which he was charged. After his conviction for manslaughter but before he was sentenced, Huff filed a plea in bar, asserting that his prosecution for motor vehicle homicide was barred by double jeopardy because of his manslaughter conviction. The district court denied the plea in bar, and the Nebraska Supreme Court affirmed. See State v. Huff, 279 Neb. 68, 776 N.W.2d 498 (2009) (double jeopardy clause did not prohibit prosecution for motor vehicle homicide following guilty plea to manslaughter).

A jury trial was held, and Huff admitted at trial that he was driving the car, his Camaro, that struck and killed Warner. Several people observed Huff at the scene of the death and described him as being under the influence of alcohol; other evidence showed that Huff had been drinking alcoholic beverages on the day in question. Ryan Markwardt, a passenger in the Camaro when it struck Warner, observed Huff's drinking, driving of the car, and Warner's death. Although Huff wanted Markwardt to say that he was the one driving, Markwardt refused, and when law enforcement arrived at the scene, Huff admitted that he was the driver. Huff refused to submit to a chemical test after he was transported to the hospital. The jury found Huff guilty of motor vehicle homicide. The district court found him guilty of the remaining counts (tampering with a witness and refusal to submit to a chemical test). Huff was sentenced to imprisonment for a term of 45 to 45 years for motor vehicle homicide and a concurrent term of 20 to 20 years for manslaughter. He was sentenced to imprisonment for 20 to 60 months for tampering with a witness and 5 to 5 years for third-offense refusal to submit to a chemical test, with these sentences to be served consecutively to the sentences for manslaughter and motor vehicle homicide and to one another.

Huff filed a direct appeal, asserting that the district court erred in (1) convicting and sentencing him to multiple punishments for the same offense in violation of double jeopardy, (2) failing to sustain his motion to suppress and allowing evidence at trial that failed to conform to constitutional and statutory requirements, (3) enhancing his conviction for refusal to submit to a chemical test with prior DUI convictions, (4) failing to grant a mistrial when an order in limine precluding mention of Huff's invocation of counsel was violated, (5) finding sufficient evidence to convict him of tampering with a witness, (6) ordering his counsel to guide the State through foundational evidence to introduce an expert opinion, (7) failing to instruct the jury on "'misdemeanor homicide,'" and (8) imposing excessive sentences. State v. Huff, 282 Neb. 78, 89, 802 N.W.2d 77, 90 (2011). The Supreme Court affirmed Huff's convictions for motor vehicle homicide, tampering with a witness, and refusal to submit to a chemical test, but it remanded the cause for sentencing on the third-offense refusal to submit to a chemical test. The court also vacated Huff's conviction and sentence for manslaughter.

On remand, Huff was resentenced on the refusal to take a chemical test to 60 days' incarceration, a $500 fine, and the suspension of his license for 6 months after his release from incarceration. Huff appealed this sentence, and the Nebraska Supreme Court summarily affirmed. State v. Huff, 283 Neb. xix (No. S-11-1102, Apr. 11, 2012).

2. POSTCONVICTION MOTION AND

FIRST POSTCONVICTION APPEAL

In August 2012, Huff filed a verified motion for postconviction relief, alleging numerous claims of ineffective assistance of counsel, prosecutorial misconduct, trial court error, law enforcement misconduct, and denial of his right to appellate counsel, and he requested anevidentiary hearing. In October, the district court denied some of Huff's claims without an evidentiary hearing and granted him an evidentiary hearing on other claims. Huff appealed from the order dismissing some of his claims, challenging the court's dismissal of two of his claims of ineffective assistance of trial counsel without an evidentiary hearing, and this court affirmed. See State v. Huff, No. A-12-1072, 2013 WL 6622896 (Neb. App. Dec. 17, 2013) (selected for posting to court website).

3. SECOND POSTCONVICTION APPEAL

Following the first postconviction appeal, the State then filed a motion to dismiss the remainder of Huff's postconviction claims, which the district court granted in part and denied in part. Specifically, the court dismissed two additional claims of ineffective assistance of counsel without an evidentiary hearing, as well as claims of prosecutorial misconduct, trial court error, and law enforcement misconduct to the extent those claims differed from Huff's claims of ineffective assistance of trial counsel. The court overruled the balance of the State's motion to dismiss. Huff again appealed, and in case No. A-14-985, an unpublished memorandum opinion dated June 26, 2015, we affirmed.

4. EVIDENTIARY HEARING AND THIRDPOSTCONVICTION APPEAL

In May 2016, an evidentiary hearing was held on Huff's remaining postconviction claims, and in September, the district court entered an order denying postconviction relief. On appeal from that order, Huff asserted that the district court erred in (1) denying his claim that the court violated his constitutional rights by allowing voir dire of prospective jurors to proceed in chambers outside of Huff's presence and (2) denying his claim that his trial attorneys were ineffective in not objecting or moving for a mistrial following the voir dire of prospective jurors in chambers outside of Huff's presence. This court affirmed, finding that Huff's claim that his constitutional rights were violated by the voir dire of prospective jurors in chambers outside of his presence was procedurally barred and that the failure of Huff's trial counsels to object or move for a mistrial following such voir dire did not constitute deficient performance. See State v. Huff, 25 Neb. App. 219, 904 N.W.2d 281 (2017).

5. MOTION FOR DNA TESTING

On March 5, 2018, Huff filed a motion for DNA testing under the DNA Testing Act, asking that the Camaro be tested for Markwardt's DNA to establish that Markwardt, rather than Huff, was the driver who struck Warner. The district court entered an order, denying DNA testing. Huff appealed, but on November 28, in case No. A-18-1073, we dismissed the appeal without opinion pursuant to a motion filed by Huff.

6. MOTIONS RELEVANT TO CURRENT APPEAL

In October 2018, Huff filed multiple pro se motions in the district court. The motions most relevant to Huff's present appeal are his motion for new trial, petition for writ of error coram nobis, and a successive motion for postconviction relief.

(a) Motion for New Trial

On October 19, 2018, Huff filed a 34-page motion for new trial pursuant to Neb. Rev. Stat. § 29-2101(5) (Reissue 2016), claiming newly discovered evidence. As summarized by the district court in the order ruling on Huff's motion:

[I]n the first part of his motion, Huff contended there were irregularities and misconduct before, during and after the proceedings that warrant granting of a new trial and he set forth fifty-nine paragraphs wherein he described the alleged irregularities and misconduct and violations of his constitutional rights. Huff claims that most, if not all, of such irregularities and misconduct constituted 'structural error, plain error, prejudicial error, prosecutor misconduct, and ineffective assistance of counsel.' In the second part of his motion, Huff contended his trial after his plea of guilty to the manslaughter charge and sentencing were illegal, a miscarriage of justice, and violated his constitutional rights. Thereafter, Huff described in nine paragraphs, claims of 'actual innocence' which he labeled as 'actual innocent.'

In the third part of his motion for a new trial. Huff asserted 'cumulative errors' violated his constitutional rights under the fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution. Huff asked for a 'full evidentiary hearing' and thereafter the vacation of his convictions and his sentences.

Huff did not attach any affidavits or other documentation to his motion for new trial. We discuss the claims in Huff's motion for new trial further as necessary to the resolution of this appeal in the analysis section below.

(b) Petition for Writ of Error Coram Nobis

and Successive Postconviction Motion

On October 22, 2018, Huff filed a 34-page petition for writ of error coram nobis and a 34-page successive motion for postconviction relief, each containing claims nearly identical to those he had raised in his motion for new trial. Again, we discuss...