State v. Stricklin

310 Neb. 478

967 N.W.2d 130

STATE of Nebraska, appellee,

v.Derrick U. STRICKLIN, appellant.

No. S-20-681.

Supreme Court of Nebraska.

Filed December 3, 2021

Gregory A. Pivovar, for appellant.

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

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Steinke and Otte, District Judges.

Funke, J.

INTRODUCTION

Derrick U. Stricklin appeals from the denial of postconviction relief following an evidentiary hearing. Stricklin asserts his trial counsel was ineffective in failing to present an alibi defense and in failing to investigate and present evidence of other suspects. Stricklin also asserts the district court erred in denying his request to depose expert witnesses. We disagree with Stricklin's arguments and therefore affirm the order of the district court.

BACKGROUND

In 2013, in a joint trial, a jury convicted codefendants, Stricklin and Terrell E. Newman, on two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, attempted intentional manslaughter, and possession of a deadly weapon by a prohibited person. The district court for Douglas County sentenced both men to life imprisonment for each murder conviction; 15 to 25 years’ imprisonment for each use of a deadly weapon to commit a felony conviction; 20 months’ to 5 years’ imprisonment for the attempted manslaughter conviction; and 15 to 25 years’ imprisonment for the possession of a deadly weapon conviction. All sentences were to run consecutively. This court affirmed Stricklin's convictions and sentences on direct appeal.¹

Stricklin timely moved for postconviction relief, asserting several claims, which the district court denied without conducting an evidentiary hearing. Stricklin appealed directly to this court.² We affirmed the dismissal of the majority of Stricklin's claims, but remanded the matter back to the district court for an evidentiary hearing on two of the claims. The matter remanded to the district court included Stricklin's claims that trial counsel failed to file a notice of alibi and present evidence of his alibi defense and failed to investigate other potential suspects.³

The facts adduced at trial are fully set forth in our opinion affirming Stricklin's convictions and sentences.⁴ Summarized, on December 2, 2012, Carlos Morales and Bernardo Noriega were shot and killed in a drug transaction at an automobile body shop in Omaha, Nebraska. The State alleged that Stricklin and Newman committed the crimes together. Newman's cell phone records showed that Newman was in communication with Morales and Stricklin on the day of the shootings and that Newman's cell phone was in the area of the murder scene during the relevant timeframe.⁵

The State's primary witness at trial, Jose Herrera-Gutierrez, claimed he was present during the shootings. Based upon information provided by Herrera-Gutierrez, officers compiled photographic lineups containing photographs of Stricklin and Newman. Herrera-Gutierrez identified Stricklin and Newman as the shooters; he testified that he recognized both men from three or four prior visits to the body shop, although he had never learned their names.

Herrera-Gutierrez testified that following a drug transaction, he witnessed Stricklin and Newman draw firearms.⁶

According to Herrera-Gutierrez, Newman instructed Morales to tell Herrera-Gutierrez and Noriega to lie down. Newman tied Herrera-Gutierrez’ wrists. Herrera-Gutierrez stated that plastic was wrapped around his face and that he could breathe but was unable to see. He claimed that he heard the two or three gunshots that killed Morales and Noriega, that someone united his wrists and took the plastic off his head, and that Stricklin and Newman left the scene without shooting him.

Despite testimony from various witnesses regarding the timeline of events, the evidence did not establish a precise time for the shootings. Morales’ fiance discovered the bodies at 2:15 p.m. The police broadcast about the shootings went out at 2:34 p.m.

The State's theory was that Stricklin and Newman committed the crimes together, at approximately 12:30 p.m. Newman's cell phone records showed multiple contacts with Stricklin on December 2, 2012, right before and after the relevant period. The State adduced evidence showing that Newman and Stricklin called each other seven times between approximately 9:27 and 11:13 a.m. Newman received six calls from 11:42 a.m. to 12:36 p.m., at which time Newman's phone used a cell tower located in the immediate vicinity of the body shop.⁷ After his 11:13 a.m. call with Newman, Stricklin did not make or receive a call until 12:34 p.m., when he received a call which went to voicemail. Stricklin did not send or receive any text messages during this period of inactivity. Stricklin made his next call at 2:15 p.m., which was to Newman.

Stricklin's motion for postconviction relief contained the following relevant allegations: Under his first claim, he alleged that he was in downtown Omaha with his "stepson" Hashim C. on the day of the shootings from approximately 9:30 a.m. until noon. Stricklin alleged that they ate at a restaurant, purchased gas, and each got a haircut at a barbershop. He alleged they later drove to his grandmother's house. He alleged that during his drive, he made a phone call to a friend at 12:34 p.m. The call registered at a cell tower approximately 5 miles from the crime scene. He stated he received text messages during the drive.

Stricklin stated that he and Hashim arrived at his grandmother's house around 12:40 p.m. and that around 20 to 25 people were present, including his brother Daryel Stricklin. He stated Antoineya Richard (Antoineya), his girlfriend at the time and Hashim's mother, arrived at his grandmother's home and picked up Hashim around 2 or 3 p.m. Stricklin stated he made his trial counsel aware his alibi was supported by the barber, Hashim, Antoineya, and Daryel.

Under the second claim of his postconviction motion, Stricklin alleged his counsel was ineffective for failing to investigate as possible suspects Marcus Jefferson, Stricklin's half brother, and a man named "James Moore." Stricklin alleged Jefferson stated to him that Moore committed the murders due to a dispute involving money and "bad drugs."

Prior to the evidentiary hearing on the two claims ordered by this court, Stricklin filed a successive postconviction motion which alleged the State advanced a false prosecution theory by claiming to the jury that the cell phone location data represented the location of Stricklin or his phone rather than the location of a cell tower. The State moved to dismiss the successive motion for postconviction relief as time barred.

Stricklin also filed a motion to depose nine witnesses prior to the pending evidentiary hearing. The State objected to Stricklin's request to depose two of the witnesses, an agent with the Federal Bureau of Investigation and a representative from a cell phone provider, arguing the request went beyond Stricklin's first postconviction motion and the scope of our remand. The district court granted Stricklin's motion as to seven of the witnesses and took the State's objection regarding the remaining two witnesses under advisement. The court gave Stricklin leave to file a brief explaining how the two cell phone expert witnesses were relevant to the issues on remand.

Thereafter, the court held a hearing on Stricklin's motion and issued an order denying the request. The court agreed with the State that Stricklin's proposed use of the testimony went beyond his alibi claim. The court found "Stricklin's cell phone records are in evidence and he can present and rely upon them at his evidentiary hearing without depositions of these witnesses." In the same order, the court dismissed Stricklin's successive postconviction motion which is not at issue in this appeal.

At the evidentiary hearing, the district court received depositions from Stricklin, Daryel, Antoineya, Hashim, and Stricklin's trial counsel.

In his deposition, Stricklin testified that on December 2, 2012, he went with Hashim to the barbershop for their 9 a.m. appointment. The barber was running late, so Stricklin and Hashim went to a restaurant and a gas station and returned for their haircuts around 10 a.m. Stricklin stated that he and Hashim got their hair cut by the same barber every week and that their haircuts would take approximately 2 hours. Stricklin testified that he left the barbershop between noon and 12:30 p.m. and that he placed a call to a friend and briefly stopped at the friend's house while on the way to his grandmother's house.

Stricklin further testified that he made counsel aware of his alibi defense early in the process and that the alibi defense was the "number one" trial strategy. He stated that counsel did not inform him he would not present the alibi at trial and that Daryel, Antoineya, and Hashim were present and ready to testify. When asked about his discussions with counsel regarding trial strategy, Stricklin testified, "We had, like, a lockdown defense, and he didn't do any of it. He didn't — he didn't cross-examine the witnesses or anything. He just sat there, like, he didn't know what was going on."

Antoineya testified that she was in a dating relationship with Stricklin from 2010 to 2014 and that he lived in her home. She thought that Stricklin and Hashim went to the barbershop at 11 a.m. and that Hashim returned home around 2 p.m. She spoke with Stricklin's counsel before trial on multiple occasions, and counsel knew she and Hashim were alibi witnesses, but she was never contacted to testify.

Daryel testified he was present at the family gathering at his grandmother's house. He recalled that he started eating around noon and that around 10 people were present. Daryel testified Stricklin arrived at his grandmother's between 12:30 and 1 p.m. Daryel recalled the time of Stricklin's arrival because he had to leave to go to a movie...