State v. Lessley

312 Neb. 316

978 N.W.2d 620

STATE of Nebraska, appellee,

v.Tyeric L. LESSLEY, appellant.

No. S-21-768.

Supreme Court of Nebraska.

Filed August 26, 2022

Tyeric L. Lessley, pro se.

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

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

Freudenberg, J.

I. INTRODUCTION

The defendant challenges the district court's denial of his motion for postconviction relief without holding an evidentiary hearing. The defendant alleged in the motion multiple errors committed by the trial court and multiple claims of ineffective assistance of trial counsel. The district court found that each of the allegations were either procedurally barred, insufficiently alleged, or affirmatively refuted by the record. We affirm.

II. BACKGROUND

1. CONVICTIONS

Tyeric L. Lessley was charged with first degree murder under alternative theories of premeditated murder or felony murder, in violation of Neb. Rev. Stat. § 28-303(1) and (2) (Reissue 2016); two counts of use of a deadly weapon to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue 2016); first degree assault, in violation of Neb. Rev. Stat. § 28-308 (Reissue 2016) ; and possession of a firearm by a prohibited person, in violation of Neb. Rev. Stat. § 28-1206(1)(a)(b) (Reissue 2016).

Lessley filed a motion to suppress all evidence obtained from a cell phone search. After a hearing, the motion to suppress was denied. The district court held that Lessley waived his right to speedy trial.

Before Lessley's 5-day jury trial began, the State was allowed to amend its information by interlineation to remove the premeditated murder theory of proof with regard to the first degree murder charge. At trial, the State pursued the remaining theory of felony murder.

Further details may be found in this court's opinion on direct appeal,¹ but the evidence at trial generally showed as follows:

(a) Events of October 29, 2016

Between 4 and 4:30 a.m. on October 29, 2016, Curtis Goodwin was paying bills on his laptop computer in the home shared with his fiance, Suzanne Pope, in Omaha, Nebraska, while Pope was sleeping in a bed in the main floor living room of the residence, which the couple used as their bedroom.

During this time, Goodwin left the home through the back door to investigate a knocking sound he heard at the front of the house. Goodwin testified that family and friends never used the front door of the residence, but instead entered and exited through the rear door.

Goodwin grabbed a baseball bat before leaving the house. Goodwin then walked around to his front door, where he discovered a man knocking on the door. Goodwin asked the man if he could help him. The man pointed a gun in Goodwin's face and responded, "Yeah, n----, I'm your worst mother f---- nightmare." The man, whom Goodwin testified he did not recognize, then told Goodwin to go into the house.

The two walked around the side of the house to the back entrance. Goodwin testified that at some point along the way, he dropped the bat. Once inside, the man told Goodwin to "give me all your money and your shit." Goodwin woke Pope to tell her that someone was there to rob them. According to Goodwin, both he and Pope told the intruder they did not have any money. At that point, the intruder shot Pope, took Goodwin's laptop, and shot Goodwin as Goodwin lunged at him.

Goodwin was able to follow the intruder out of the house and into the backyard, where Goodwin collapsed as the intruder ran down the street carrying Goodwin's laptop. At this time, Goodwin noticed an unfamiliar dark-colored Chevrolet Suburban or Tahoe parked in his driveway, which was located in the backyard of the residence. Goodwin testified that this vehicle had no license plates and described the back doors as opening "like kitchen cabinets." The intruder walked back past Goodwin. By this time, Goodwin had retrieved the bat he dropped earlier and swung it in the direction of the intruder. Goodwin testified that he hit "something," but did not know if it was the intruder. The intruder then shot Goodwin again, dropped the laptop, and drove away.

Pope was killed and Goodwin was injured in this incident. Goodwin was in a coma for nearly 3 months and sustained the loss of one of his kidneys, his spleen and gallbladder, and several feet of his small intestine. Complications from his injuries caused Goodwin to fall into a second coma, during which he nearly died.

"Shotspotter" evidence corroborated the timing of the gunshots. Shotspotter is a technology utilized by the Omaha Police Department to determine the location of gunshots based upon sounds captured by microphones positioned in certain parts of the city. Here, Shotspotter captured the sound of two gunshots at 4:30 and 4:31 a.m., 20 seconds apart, sounding from outside Goodwin and Pope's residence. Neighbors also testified they heard gunshots around that time.

In addition, neighbors witnessed a vehicle travel west from the residence after they heard the gunshots. One neighbor testified that she saw a dark blue, green, or black Suburban or Tahoe. A second neighbor testified that he witnessed a dark-colored Suburban or Tahoe with a loud exhaust, custom wheels, and tinted windows, and that based upon his experience with vehicles, he estimated the vehicle was between a 1996 and 1999 model.

(b) DNA and Other Evidence

Goodwin's laptop computer was found in the backyard near the driveway. It had a partial shoeprint on its cover. A tread expert testified that the shoeprint was consistent with a Nike "Shox" tennis shoe.

Various items of evidence were also recovered from the scene and tested. The State's DNA expert testified that the blood and baseball bat found at the scene were both swabbed and tested. Each produced a statistical match to Lessley's DNA.

Law enforcement later determined that on October 12, 2016, Lessley had purchased a 2001 green Chevrolet Suburban from an Omaha dealership. That dealership had global positioning system records placing the Suburban less than a mile southeast of the Goodwin-Pope residence at 4:18 a.m. on October 29. One of the investigating officers testified that it had taken him about 2 minutes to drive from the residence to the location noted in the global positioning system records.

Lessley was arrested in January 2017. At the time of arrest, Lessley was wearing a pair of Nike Shox shoes, which were consistent with the shoeprint found on the laptop computer. Lessley's Suburban was impounded at the time of his arrest. The Suburban still had in-transit signs and no license plates. It also had tinted windows, "barn-door" style rear doors, and a louder-than-stock exhaust. A search of Lessley's residence recovered custom aftermarket rims.

At the time of the shooting, Lessley and his girlfriend lived a 3-minute drive northwest of the Goodwin-Pope residence. Lessley's girlfriend testified that Lessley returned from work on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell asleep shortly after Lessley returned home and was awoken before 5:30 a.m. by Lessley's talking on the telephone. At this time, Lessley's girlfriend noticed a "hole" in the right side of Lessley's forehead that he did not have when he came home from work. Lessley's cell phone records show that he was on the cell phone between 4:58 and 5:06 a.m. on October 29.

The jury was instructed only on the felony murder theory and was not instructed as to any other theory of first degree murder, or as to any other degree of murder. Lessley did not object to the instructions as given and did not offer any proposed instructions.

The jury found Lessley guilty on all five counts. At the sentencing hearing, the district court initially sentenced Lessley to life imprisonment for first degree murder, 20 to 20 years’ imprisonment for first degree assault, 3 to 3 years’ imprisonment for possession of a deadly weapon by a prohibited person, and 5 to 5 years’ imprisonment on both use of a deadly weapon to commit a felony convictions. After counsel for the State and for Lessley raised the issue of indeterminate sentences, telling the district court that the sentences had to be different, the district court amended its sentences for counts II through V, where it added 1 day to the maximum term of each sentence so the minimum and maximum terms would not be the same. All sentences were ordered to be served consecutively.

2. DIRECT APPEAL AND RESENTENCING

On direct appeal, Lessley, with trial counsel, assigned that there was insufficient evidence to support his convictions and that the district court erred in not instructing the jury on the lesser-included offense of manslaughter. This court affirmed Lessley's convictions and determined that the district court did not err when it did not instruct the jury on manslaughter. However, this court found plain error in the sentences imposed for counts II through V. This court concluded that the original sentences imposed for these convictions were valid because the maximum term imposed by the court (5 years and 3 years) was not greater than the maximum term provided for by law (50 years) and the minimum term was the minimum term provided for by law (5 years and 3 years), as set forth in Neb. Rev. Stat. § 29-2204(1)(b) (Reissue 2016). Therefore, this court vacated the modified sentences and remanded the cause for resentencing in conformity with the initial sentences of 5 to 5 years’ imprisonment for each use conviction and 3 to 3 years’ imprisonment for the possession conviction.

3. POSTCONVICTION PROCEEDINGS

Lessley filed a timely motion for postconviction relief. The motion alleged various claims of ineffective assistance of counsel at trial and on direct appeal and numerous claims of error by the trial court. Many claims made in Lessley's postconviction motion have not been raised in his appeal.

Relevant to the issues being raised on appeal, Lessley asserted in his postconviction motion that his trial...