State v. Terrell E. Newman

310 Neb. 463

966 N.W.2d 860

STATE of Nebraska, appellee,

v.Terrell E. NEWMAN, appellant.

No. S-20-680.

Supreme Court of Nebraska.

Filed December 3, 2021

Jason E. Troia and Stuart J. Dornan, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., Omaha, 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. Terrell E. Newman appeals from the denial of postconviction relief following an evidentiary hearing. Newman contends that his trial counsel was ineffective in failing to investigate and present an alibi defense and that the trial court should have allowed live testimony at the evidentiary hearing. We disagree and therefore affirm the order of the district court.

BACKGROUND

In 2013, in a joint trial, a jury convicted codefendants Newman and Derrick U. Stricklin 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 Newman's convictions and sentences on direct appeal.¹

Newman timely moved for postconviction relief, which the district court denied without conducting an evidentiary hearing. Newman appealed. This court affirmed in part, and in part reversed and remanded for an evidentiary hearing on the sole issue of whether Newman's trial counsel was ineffective for failing to investigate and present an alibi defense.²

Prior to the evidentiary hearing, Newman filed a motion for live testimony with the district court, which was denied. The district court then held the evidentiary hearing and, based upon deposition testimony, the trial record, and an affidavit, found no merit to Newman's ineffective assistance of counsel claim. Newman appealed directly to this court.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 Newman and Stricklin committed the crimes together. Newman's cell phone records showed that he 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 Newman and Stricklin. Herrera-Gutierrez identified Newman and Stricklin 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 Newman and Stricklin 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 Newman and Stricklin 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 Newman and Stricklin 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 received six calls from 11:42 a.m. to 12:36 p.m. and that Newman's phone used a cell tower located in the immediate vicinity of the body shop.⁷

After this court affirmed Newman's convictions and sentences, Newman moved for postconviction relief, alleging four witnesses would have established an alibi defense had trial counsel interviewed the witnesses himself rather than his investigator. Newman alleged that, if called, Kevin Riley and Janet Mariscal would have testified that at or near the time of the shootings Newman was either at a restaurant he owned or on a supply run to a grocery store. Newman alleged two unnamed employees of the grocery store would have confirmed his presence at the store at or near the time of the shootings. In denying Newman's motion, the district court found that Newman's timeframe allegations were vague and that overwhelming evidence established Newman's guilt.

On appeal, this court concluded that Newman's alleged alibi defense merited an evidentiary hearing. In considering whether there was overwhelming evidence of Newman's guilt, we found that we could not "overlook the fact that the alibi evidence Newman alleges his attorney should have investigated could, if proved, have contradicted the eyewitness identification" and concluded that "depending on the evidence actually presented and found credible, there may be a reasonable probability that if such evidence had been presented at trial, the result of the proceeding could have been different."⁸

Upon remand, at the evidentiary hearing, the district court received deposition testimony from Newman, Newman's trial counsel, Riley, Mariscal, Jessica Rosa, and Frances Mullen.

Newman testified that he owned a restaurant and that he and his fiance, Mariscal, arrived there on December 2, 2012, at 9 or 9:30 a.m. Newman stated he was at the restaurant all day, except for a supply run to the grocery store at 12:20 or 12:30 p.m. Newman stated he purchased wood chips, lighter fluid, and bread. He stated that when he paid for the items, he had a conversation with his cashier, Mullen, about his restaurant. He stated he separately purchased apples and perhaps a sandwich from the customer service line. Newman estimated his entire supply run lasted 20 or 25 minutes, placing him back at the restaurant by approximately 1 p.m. Newman stated that he remained at the restaurant until 5:30 or 6 p.m. and that he provided this information to his counsel shortly after counsel was appointed.

Mariscal testified she was in a dating relationship with Newman. She remembered December 2, 2012, because it was the day after her daughter's birthday. Mariscal remembered arriving at the restaurant with her daughter and Newman at around 10 or 10:30 a.m. She recalled that Newman went on a supply run around 11 or 11:30 a.m. and that he returned with bread and possibly lighter fluid. She stated that she was not always with Newman while at the restaurant and that he would use the grill located outside of the restaurant.

Riley, who worked at the restaurant, testified he and Newman arrived there at 7 a.m. to begin smoking turkeys. Riley stated Newman was at the restaurant all day, except for about 15 minutes around 10 or 10:30 a.m., when Newman went to the grocery store to get feather bones and charcoal.

In their depositions, Rosa and Mullen confirmed that they worked at the grocery store, but could not confirm whether Newman shopped there on December 2, 2012.

Newman's trial counsel testified in his deposition that on January 22, 2013, he was appointed to represent Newman. Counsel acknowledged that Newman made him aware of his alibi defense early on and that Riley and Mariscal could confirm he was either at the restaurant or at the grocery store.

In preparing a defense, on April 18, 2013, counsel hired a private investigator to investigate Newman's alibi defense, as well as Herrera-Gutierrez’ version of events. The investigator was a retired Omaha police officer with 20 years’ experience, including working as an investigator in the homicide unit. In forming Newman's defense strategy, counsel planned to rely on the experience of his investigator. Counsel stated that his investigator's experience working in the homicide unit would aid him in determining whether Herrera-Gutierrez’ description of the shootings was credible.

Counsel attempted to obtain receipts from either the grocery store or Newman's restaurant, but Newman did not provide any. The investigator contacted the grocery store manager and learned that sales records were kept for only 10 days and that surveillance video was kept for only 40 days.

The investigator interviewed Riley and Mariscal. He assessed Mariscal's account as rehearsed and found Riley had only general knowledge of the restaurant's operations, but no direct knowledge of December 2, 2012, the date of the shootings. Counsel did not personally meet with Newman's alibi witnesses. Based on the investigator's assessment, counsel determined that as a matter of strategy, Newman's best defense was to refute the testimony of Herrera-Gutierrez on cross-examination.

Based on counsel's experience, he concluded that Newman's cell phone records undermined the credibility of his alibi defense and that presenting a weak alibi defense to the jury could harm Newman's case and cause the jury to believe he was guilty.

After the evidentiary hearing, the court issued a written order dismissing Newman's motion, finding no merit to his ineffective assistance of counsel claim. The court found Newman failed to establish his counsel...