State v. Russell

STATE OF NEBRASKA, APPELLEE, v. DARNELL L. RUSSELL, APPELLANT.

No. A-17-881.

NEBRASKA COURT OF APPEALS

November 6, 2018

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 Douglas County: GARY B. RANDALL, Judge. Affirmed.

Gerald L. Soucie for appellant.

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

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

BISHOP, Judge.

I. INTRODUCTION

Darnell L. Russell was convicted of criminal conspiracy to commit unlawful possession with intent to deliver a controlled substance (crack cocaine). Following an unsuccessful direct appeal, he sought postconviction relief claiming his trial counsel was ineffective for failing to file a motion to suppress evidence obtained through a wiretap on his telephone. Russell appeals from an order entered by the Douglas County District Court which denied his request for postconviction relief without an evidentiary hearing. We affirm.

II. BACKGROUND

1. TRIAL AND DIRECT APPEAL

In Russell's direct appeal, the Nebraska Supreme Court described the circumstances leading to Russell's arrest, stating:

The Greater Omaha Safe Streets Task Force is a coalition of local, state, and federal law enforcement agencies that conducts long-term investigations related to narcotics and violent crime. In the summer of 2012, the task force began an operation to investigate the distribution of crack cocaine in Omaha, Nebraska. Approximately 15 people were targeted during the investigation, 8 of whom were ultimately arrested, including Russell.

Russell was charged with conspiracy to commit unlawful possession with intent to deliver a controlled substance, crack cocaine, under Neb. Rev. Stat. § 28-202 (Reissue 2008), a Class IB felony.

State v. Russell, 292 Neb. 501, 503, 874 N.W.2d 8, 12 (2016). As relevant here, the Supreme Court summarized the evidence from trial as follows:

The evidence at trial established that the task force utilized wiretaps, controlled buys, surveillance, and other investigatory techniques to identify various persons in a crack cocaine distribution chain. Briefly stated, officers began the investigation by using a confidential informant to conduct a number of controlled buys from two street-level dealers, which in turn provided the necessary probable cause for officers to obtain warrants to intercept calls and text messages to and from the cell phones of those street-level dealers. Using the information gleaned from those intercepts, officers conducted physical surveillance and were able to identify Russell as the supplier for both of the street-level dealers. At that point, law enforcement obtained a warrant to intercept calls and text messages from Russell's cell phone as well, which led officers up the distribution chain to Russell's supplier.

Id. at 505, 874 N.W.2d at 13.

A jury found Russell guilty of conspiracy to commit unlawful possession with intent to deliver 140 grams or more of crack cocaine. The district court sentenced Russell to 20 to 25 years' imprisonment. On direct appeal, Russell challenged the admissibility of the testimony of a law enforcement officer and an informant, the classification of the felony, and the sentence imposed. The Nebraska Supreme Court affirmed Russell's conviction and sentence on January 15, 2016; the mandate issued on January 29. See State v. Russell, supra.

2. POSTCONVICTION PROCEEDINGS

(a) Russell's Motion for Postconviction Relief

On January 30, 2017, Russell filed a "Verified Motion for Postconviction Relief," pursuant to the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), claiming ineffective assistance of trial counsel. Issuance of a mandate by a Nebraska appellate court is the date the judgment of conviction becomes final for purposes of the 1-year time limitation to file a verified motion for postconviction relief pursuant to § 29-3001(4)(a). See State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015). One year from mandate would have been January 29, but since that was a Sunday, Russell's motion was timely when filed the following day.

Russell's postconviction motion alleged that at trial, the State "relied extensively on a wiretap" placed on his telephone number. He asserted that the principle evidence used against himat trial "consisted of intercepted phone calls and text messages" obtained pursuant to a court-ordered wiretap. According to Russell's motion, trial exhibits 22 through 28 contained a number of telephone calls recorded from the intercepts of Russell's telephone from November 2012 to February 2013 (total of 46 telephone calls). No objection was made by Russell's counsel when these recordings were offered.

Russell alleged that the State's application for the wiretap of his telephone number (Application) "relied exclusively on intercepted communications from an earlier wiretap on [two other targeted telephone numbers]" from November 7 to December 6, 2012; the wiretap against Russell's telephone number was issued around December 21. Russell claimed that "[t]he application for the warrant against [the other two targeted telephone numbers] was attached to his [Application] as Attachment '1'" (Attachment 1).

Russell's motion claimed:

The results of the intercepts obtained through "Attachment 1" were then used in the [Application]. Paragraphs 48 thru 72 relied on the results the communications and text messages intercepted as a result of the order granted based on "Attachment 1" a month earlier. There is simply no probable cause contained in [the Application] without paragraphs 48 thru 72.

. . . The invalidity of [the] wiretap obtained through "Attachment 1" is central to the motion to suppress that should have been filed. Without the illegally obtained information obtained through "Attachment 1", there was no evidence upon which the wiretap on [Russell's] phone could lawfully be issued.

Russell described the content of paragraphs 1 through 126 allegedly set forth in Attachment 1. In reviewing Russell's description, we see a number of instances of "a controlled buy" of crack cocaine from several individuals; one of the individuals selling the crack cocaine was a target of a wiretap sought in Attachment 1. Russell claimed that Attachment 1 was "defective and insufficient." Russell asserted that law enforcement claimed (in Attachment 1) that other methods had failed to identify sources of crack cocaine "up the distribution chain"; methods such as confidential informants, undercover officers, controlled buys, surveillance, pen registers, "public assistance and broadcast," search warrants, and trash searches. Russell alleged that law enforcement's claim in this regard was "inaccurate" and "self-serving." Russell suggested other ways in which law enforcement could have obtained information short of wiretaps. Russell complains that trial counsel did not seek to depose the affiant of Attachment 1 and the primary investigating officer "to further develop the facts as evidentiary support for a motion to suppress the wiretaps." We note that Russell did not include Attachment 1 with his postconviction motion, although as indicated, he described the content of each paragraph allegedly contained in that document. We also note that Russell did not attach the Application (for the wiretap of his telephone) to his motion, and unlike his description of each paragraph contained in Attachment 1, Russell did not describe the content of any of the paragraphs contained in the Application. He only generally asserted that paragraphs 48 through 72 of the Application relied on communications and text messages intercepted as a result of the wiretap obtained with Attachment 1.

Russell's motion claimed his trial counsel provided deficient performance by "failing to properly investigate, research, prepare, file, and conduct an evidentiary hearing on the issue of the wiretaps of phone conversations and text messages" obtained in violation of Neb. Rev. Stat. §§ 86-271 to 86-296 (Reissue 2014) [intercepted communications] and the 4th and 14th Amendments to the U.S. Constitution. Russell asserted that trial counsel failed to file a motion to suppress and failed to make proper objections at trial, thereby failing to properly preserve the issue of the inadmissibility of the wiretap evidence on appeal. He claimed a motion to suppress "would likely have been granted, either at trial or on appeal," and that "[t]he impact of the wiretapped oral and text messages was highly prejudicial to [Russell] at [the] time of trial."

(b) Russell's Motion for Depositions and Discovery

Russell also filed a "Motion for Depositions of Witnesses and Discovery of Documents in Possession of Douglas County," requesting the court grant him leave to conduct discovery. He requested the State produce all reports, documents, and items about the investigation that provided information for Attachment 1 and the Application.

(c) State's Response and Motion to Dismiss

The State filed a "Response and Motion to Dismiss Defendant's Motion for Postconviction," generally arguing that Russell's postconviction motion set forth insufficient facts and legal arguments. To refute Russell's assertion that a motion to suppress the Application would likely have been granted, the State argued, in essence, that "persuasive Legal Authority" showed that state and federal courts had already reviewed and overruled motions to suppress Attachment 1 in separate cases involving the targeted telephone numbers for the wiretaps sought in Attachment 1. In response to the State's motion to dismiss, Russell claimed the state and federal pretrial orders in other court proceedings were outside the record of this case, and argued that he was neither a party to nor were his interests represented by an attorney in those other proceedings. At the hearing on the State's...