State v. Jennings

312 Neb. 1020

982 N.W.2d 216

STATE of Nebraska, appellee,

v.Leandre R. JENNINGS III, appellant.

No. S-22-185.

Supreme Court of Nebraska.

Filed December 2, 2022

Leandre R. Jennings III, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The appellant, Leandre R. Jennings III, was convicted of first degree murder, use of a weapon to commit a felony, and possession of a deadly weapon by a prohibited person. He was sentenced to life imprisonment, 30 to 40 years’ imprisonment, and 40 to 45 years’ imprisonment, respectively. His convictions and sentences were affirmed by this court on direct appeal.¹ Jennings then filed a motion seeking postconviction relief, which was denied without an evidentiary hearing. Jennings appeals that denial. We affirm.

BACKGROUND

Jennings was convicted of murder and associated crimes in the shooting death of Michael Brinkman (Brinkman) on December 23, 2016. The facts underlying those convictions are set forth in greater detail in this court's opinion on appeal.² In brief, Brinkman was at his home in Douglas County along with his wife, Kim Milius, and his adult son, Seth Brinkman (Seth). Two men entered the home, and following an altercation, Brinkman was shot and killed. Other evidence was offered at trial, but as relevant to this postconviction motion, fast food from Raising Cane's, including french fries, a piece of partially eaten Texas toast, and a container and lid of "Cane's sauce" was found at the scene. The sauce container and lid and the toast were swabbed for DNA. Following testing of the DNA, Jennings could not be excluded as a contributor to these, as well as other items, and was arrested and charged.

Jennings was convicted in 2018. This court affirmed his conviction in May 2020, and Jennings thereafter filed a motion for postconviction relief on May 6, 2021. He subsequently filed two amended motions. The operative pleading in this case is the motion for postconviction relief filed on October 6, 2021. In that motion, Jennings alleged that he had the same trial and appellate counsel and that both were ineffective in (1) failing to object to the State's destruction of evidence; (2) failing to object to false statements made in law enforcement's affidavit in support of a search warrant for his cell phone records; (3) failing to interview or call certain witnesses; (4) not objecting to jury instruction No. 4; (5) failing to seek retesting of biological material; (6) failing to obtain from law enforcement evidence that could have been used to impeach law enforcement testimony; and (7) failing to object to testimony offered by an investigating detective. He further alleged that (8) the State engaged in prosecutorial misconduct by not disclosing certain evidence, and (9) the trial court committed trial error when it admitted Jennings’ cell phone data.

The district court denied Jennings’ motion without an evidentiary hearing. In its order, the court first noted that counsel could not be found to be ineffective for failing to object to the State's destruction of the toast because the record indicates that the destruction was not made in bad faith, but was part of a laboratory policy that food could not be stored as evidence.

The court also rejected Jennings’ claims of false statements regarding the ethnicity of the suspects in the affidavit in support of the warrant for his cell phone data. The court reasoned that the issuing magistrate did not rely on the ethnicity of the suspects in determining probable cause. It rationalized that the magistrate instead focused on the vehicle reportedly parked in front of the home at the time of the home invasion and the relationship between the person who rented that vehicle and Jennings, who had previously driven the vehicle and whose DNA was found at the scene of the home invasion.

The court then addressed, and found without merit, Jennings’ claims that his counsel failed to investigate certain witnesses and issues prior to trial. As set forth by the court, Jennings alleged that counsel failed to seek DNA retesting, did not obtain video of Jennings’ time spent in the interrogation room, and did not call certain witnesses. The district court found that Jennings’ allegations were conclusory and did not establish prejudice as required by Strickland v. Washington .³

The court next addressed and rejected Jennings’ claim that counsel erred in not objecting to jury instruction No. 4. As read to the jury, that instruction provided:

Depending on the evidence you may return one of two possible verdicts to Count 1 of the information. You may find [Jennings], one, guilty of murder in the first degree felony murder or two not guilty.

Felony murder. The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict [Jennings] of murder in the first degree felony murder as charged in Count 1 of the information are, one, that ... Jennings intended to commit the crime of robbery. And two, that on or about December 23rd 2016, in Douglas County, Nebraska, [Jennings] was in the course of committing or attempting to commit that robbery. And three, that [Jennings] either alone or by aiding and abetting another killed ... Brinkman during the course of committing or attempting to commit that robbery.

A person commits robbery if, with the intent to steal, forcibly and by violence, or by putting in fear, take from the person of another any money or personal property of any value whatever.

A person commits attempted robbery if he intended to commit a robbery and he intentionally engaged in conduct that under the circumstances as he believed them to be was a substantial step towards committing the robbery and the person[’]s conduct strongly corroborated his intent to commit robbery.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the first degree felony. If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find [Jennings] guilty of murder in the first degree felony murder as charged in Count 1.

On the other hand, if you find the State has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find [Jennings] not guilty.

The burden of proof is always on the State to prove beyond a reasonable doubt all of the material[ ] elements of the crime charge[d] and this burden never shifts.

Jennings takes issue with the language at the end of the opening paragraph that he "either alone or by aiding and abetting another killed ... Brinkman during the course of committing or attempting to commit that robbery." The district court noted that the instruction was a correct statement of the law and that Jennings offered no argument or authority to show otherwise.

The district court then addressed and found without merit Jennings’ contention that one of the investigating officers falsely testified with respect to alleged inconsistent statements made by a witness. The district court noted that Jennings did not identify where these statements were made in the record, and it further noted that trial counsel's decisions about making certain objections were generally considered to be trial strategy, for which counsel is afforded due deference.

Finally, the district court rejected Jennings’ claims of prosecutorial misconduct and trial court error, concluding those issues were procedurally barred.

ASSIGNMENTS OF ERROR

On appeal, Jennings assigns, restated, that the district court erred (1) in denying his motion for postconviction relief without an evidentiary hearing because his trial counsel was ineffective in failing to (a) object to the destruction of the toast found at the scene, (b) object to false statements made in the affidavit and warrant seeking his cell phone records, (c) investigate certain witnesses, (d) object to jury instruction No. 4, and (e) object to the testimony of Det. Larry Cahill, and (2) by denying his motion without first giving him an opportunity to respond to the State's reply.

STANDARD OF REVIEW

When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court determines de novo whether the petitioner has alleged facts that would support the claim and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.⁴ The appellate court does not conduct this review sua sponte, however; as with all appeals, the alleged errors of the lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be considered by the appellate court.⁵ The appellate court will not scour the record on appeal to understand unclear arguments or find support for broad conclusions.⁶

With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland , an appellate court reviews such legal determinations independently of the lower court's decision.⁷

ANALYSIS

Postconviction Propositions of Law.

The district court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the state or federal Constitution.⁸ However, the allegations in a motion for postconviction relief must be sufficiently specific for the district court to make a preliminary determination as to whether an evidentiary hearing is justified.⁹ An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights rendering the judgment void or...