State v. Lightspirit

1

State of Nebraska, appellee, v. Shekinah N. Lightspirit, appellant

No. A-23-733

Court of Appeals of Nebraska

September 3, 2024

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 Lancaster County: RYAN S. POST Judge.

Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.

Michael T. Hilgers, Attorney General, and Erin E. Tangeman for appellee.

MOORE RIEDMANN, and BISHOP, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE Judge.

INTRODUCTION

Shekinah N. Lightspirit appeals from the order of the district court for Lancaster County, denying his motion seeking postconviction relief following an evidentiary hearing. Finding no error, we affirm.

STATEMENT OF FACTS CONVICTION AND SENTENCE

The charges in this case stemmed from an incident occurring in the early morning hours of July 24, 2014. Matthew Perry, a homeless man, was sleeping outside his tent in an encampment located behind the People's City Mission in Lincoln Nebraska. A man, later identified by numerous eyewitnesses as Lightspirit, approached Perry as he slept. Lightspirit threw a heavy object at Perry, striking him in the head. Perry's collarbone was also broken during the assault. Lightspirit fled the scene before police arrived.

Perry was transported to the hospital where he was diagnosed with a depressed skull fracture. Perry underwent surgery for the injury and was eventually released.

Lightspirit was arrested at Matt Talbot Kitchen later in the morning on the day of the assault. Matt Talbot Kitchen is about 30 blocks from the People's City Mission. Lightspirit agreed to a police interview in which he denied he had been near the People's City Mission or assaulted Perry that morning.

Lightspirit was charged with first degree assault. The information was later amended to add a charge of use of a deadly weapon to commit a felony and an enhancement for being a habitual criminal.

The matter proceeded to a jury trial. The State presented the testimony of numerous eyewitnesses who identified Lightspirit as the person who had injured Perry by throwing the heavy object at his head. The State also presented the testimony of numerous police officers involved in the investigation, and the doctor who performed the surgery on Perry. Lightspirit testified in his own defense, claiming he was sleeping in a park near Matt Talbot Kitchen at the time of the assault. Lightspirit testified that after he woke up, he went directly to the bathroom at Matt Talbot Kitchen, where he was arrested. The jury found Lightspirit guilty on both counts.

Following an enhancement hearing, the trial court found Lightspirit to be a habitual criminal and sentenced him to 15 to 25 years' imprisonment for first degree assault and 10 to 20 years' imprisonment for use of a deadly weapon to commit a felony. The court ordered that the sentences be served consecutively and awarded Lightspirit credit for 432 days served. See State v. Lightspirit, No. A-15-970, 2016 WL 6596094 (Neb.App. Nov. 8, 2016) (selected for posting to court website).

DIRECT APPEAL

Lightspirit, represented by appellate counsel, filed a direct appeal asserting that there was insufficient evidence to support his convictions, that the district court erred in admitting an exhibit at the enhancement hearing that was not properly authenticated, that his trial counsel was ineffective in various respects, and that the totality of the circumstances establishes that he did not receive a fair trial.

This court affirmed Lightspirit's convictions and sentences. We also noted that the record was inadequate for our court to address Lightspirit's assertions that his trial counsel was ineffective for failing to present additional alibi evidence, for failing to question police about accessing records, and for failing to call an additional witness, Dakota Heinzen. See State v. Lightspirit, supra.

POSTCONVICTION PROCEEDINGS

Lightspirit, then self-represented, filed his original postconviction motion on October 16, 2017, and later was granted leave by the district court to file an amended postconviction motion. Lightspirit, through postconviction counsel, filed the operative amended postconviction motion on May 8, 2019. In the district court's later order addressing Lightspirit's amended postconviction motion, it consolidated Lightspirit's various claims as: (1) trial counsel was ineffective because he did not call Heinzen as a witness; (2) trial counsel was ineffective because he failed to adequately cross-examine Officer Pachunka, the assigned officer to the case; (3) trial counsel was ineffective because he failed to adequately cross-examine four other witnesses; (4) trial counsel was ineffective because he failed to introduce evidence that witnesses who claimed to have seen the assault were initially unable to provide a name of the assailant; (5) trial counsel was ineffective because he failed to file a motion for independent blood testing; (6) trial counsel was ineffective for not moving to dismiss or for a mistrial based upon police contaminating the crime scene when they arrived; (7) the county court bound the case over without sufficient probable cause; and (8) the trial court's response to the jurors' question about Heinzen was in error.

On October 7, 2019, the district court ordered an evidentiary hearing on the first two of Lightspirit's claims of ineffective assistance of trial counsel: failing to call Heinzen as a witness and failing to adequately cross-examine Pachunka regarding accessing police reports and documents. The court deferred ruling on all other claims (3-8 above) raised in the amended postconviction motion until the evidentiary hearing was held.

An evidentiary hearing was held before the district court on July 17, 2023. Several exhibits were entered into evidence including: a deposition of trial counsel; a deposition of Heinzen taken prior to trial; a transcript of Heinzen's statement to police in July 2014; a transcript of Lightspirit's statement to Pachunka in July 2014; a deposition of Pachunka taken prior to trial; and a police report from Pachunka regarding an incident with Lightspirit in March 2014. We have set forth details of this evidence as necessary in the analysis section below.

On August 25, 2023, the district court entered an order denying Lightspirit's claims for postconviction relief. The court rejected the two claims of ineffective assistance of trial counsel which had been the subject of the evidentiary hearing, finding the claims to be without merit. We have set forth further details of the court's analysis of these issues below. The court also found Lightspirit's remaining claims to be procedurally barred as Lightspirit had failed to demonstrate that any of the alleged issues were unknown to him or not apparent from the record at the time of his direct appeal.

Lightspirit appeals.

ASSIGNMENTS OF ERROR

Lightspirit assigns, reordered and restated, that the district court erred in (1) rejecting his postconviction claims that trial counsel was ineffective for failing to call Heinzen as a witness and failing to adequately cross-examine Pachunka; and (2) finding the remainder of his postconviction claims to be procedurally barred.

STANDARD OF REVIEW

In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022). An appellate court upholds the trial court's findings unless they are clearly erroneous. Id.

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Ellis, supra. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. 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. Id.

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which an appellate court reviews independently of the lower court's ruling. State v. Harms, 315 Neb. 445, 996 N.W.2d 859 (2023).

ANALYSIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Generally a motion for postconviction relief cannot be used to secure review of issues that were or could have been litigated on direct appeal. See State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022). However, on direct appeal this court found that the record was insufficient to address Lightspirit's assertions that his trial counsel was ineffective for failing to present additional alibi evidence, for failing to question police about accessing records, and for failing to call Heinzen as an additional witness. See State v. Lightspirit, No. A-15-970, 2016 WL 6596094 (Neb.App. Nov. 8, 2016) (selected for posting to court website). Thus, these claims are not procedurally barred. See State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).

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. State v. Lessley, supra. To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. To show...