State v. Turner

998 N.W.2d 783

315 Neb. 661

STATE of Nebraska, appellee,

v.Bernard R. TURNER, appellant.

No. S-23-225.

Supreme Court of Nebraska.

Filed January 5, 2024

Syllabus by the Court

₆₆₁1. Convictions: Appeal and Error. In an appeal of a criminal conviction, an appellate court reviews the evidence in a light most favorable to the prosecution.

2. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

4. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclosure by the prosecution of material evidence favorable to the defendant, requested by the defendant, violates due process, irrespective of the good faith or bad faith of the prosecution. But due process is not violated where the evidence is disclosed during trial.

5. Motions for Continuance: Evidence: Waiver. If a continuance would have been a sufficient remedy for a belated disclosure in violation of Neb. Rev. Stat. § 29-1912 (Cum. Supp. 2022), a defendant who fails to request a continuance waives any rights he or she may have had pursuant to § 29-1912.

6. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence, and such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most ₆₆₂favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

7. Criminal Law: Evidence: Confessions: Proof. A voluntary confession is insufficient, standing alone, to prove that a crime has been committed, but it is competent evidence of that fact and may, with slight corroboration, establish the corpus delicti as well as the defendant’s guilty participation.

8. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

9. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a question of law.

10. Effectiveness of Counsel: Appeal and Error. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.

11. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.

12. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

13. Effectiveness of Counsel: Proof. 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.

14. Effectiveness of Counsel: Proof. 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.

₆₆₃15. Effectiveness of Counsel: Proof. To show prejudice from counsel’s deficient performance, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.

16. Effectiveness of Counsel: Proof. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance, and an appellate court will not scour the remainder of the brief in search of such specificity.

Appeal from the District Court for Douglas County: J. Russell Derr, Judge. Affirmed.

Megan E. Shupe and Steven M. Delaney, of Reagan, Melton & Delaney, L.L.P., for appellant.

Michael T. Hilgers, Attorney General, and P. Christian Adamski for appellee.

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

Cassel, J.

I. INTRODUCTION

In this direct appeal, Bernard R. Turner challenges his conviction, pursuant to jury verdict, for first degree murder. He contends that the district court erred in granting the State’s motion to continue trial, that the evidence was insufficient to support his conviction, and that he received ineffective assistance of trial counsel. Finding no merit to his appeal, we affirm.

II. BACKGROUND

In November 2020, the State charged Turner with first degree murder, a Class IA felony,¹ arising from a shooting that occurred on October 18, 2013, in Omaha, Nebraska. Earlier in 2020, law enforce ment received information that Turner was responsible for the shooting and had confessed to murdering the victim, Julius Vaughn.

₆₆₄Turner pled not guilty, and the court set the case for a jury trial.

1. State’s Motion to Continue Trial

Shortly before the scheduled trial date, the court held a hearing, during which the State orally moved to continue trial. Turner objected to the motion.

The following day, the court held a hearing on the motion. The State asserted that the prior afternoon, the Omaha Police Department "made [it] aware" that a cell phone had been seized at or around the time of the 2013 shooting and that that cell phone had belonged to Turner. It explained that the cell phone had been "seized in a separate investigation, which is why we were not aware of it until yesterday." Due to its belated discovery, the State argued that it needed additional time to analyze the cell phone. It asserted that there may be "not only inculpatory information or evidence, but exculpatory information or evidence" related to it. In this regard, a lengthy exchange took place on the record.

After hearing the parties’ arguments and considering Turner’s speedy trial rights, the court sustained the motion.

2. Disclosure of Cell Phone Evidence

Prior to trial, the State disclosed the general contents of the seized cell phone, a redacted affidavit and search warrant used to obtain it, and redacted law enforcement reports regarding it. Turner conceded on the record that the State disclosed those materials, which the court received as exhibit 2 for purposes of a hearing.

Following the State’s disclosure, Turner did not file a motion for continuance. Nor did he file a motion to suppress the evidence or otherwise object to its admission.

3. Jury Trial

The court held a 7-day jury trial, during which both parties presented evidence. We summarize testimony and facts ₆₆₅pertinent to the instant appeal, viewed in the light most favorable to the State.

(a) State’s Evidence

The State offered the testimony of multiple witnesses, including Vaughn’s family members and neighbors, criminal investigators, and Kevin Johnson (Turner’s friend and the recipient of his confession). The State also offered nearly 200 exhibits.

(i) Vaughn’s Family’s Testimony

Two of Vaughn’s family members testified at trial. Vaughn’s sister, Jalisa Vaughn, testified that Vaughn and Turner were friends and frequently spent time together prior to the shooting. She stated that around that time, Turner had just been released from prison and Vaughn had just purchased a vehicle. When asked whether Vaughn was "the one that was kind of driving [Turner] around," Jalisa answered, "Yes."

Jalisa testified that on October 18, 2013, Vaughn and Turner spent most of that day together, hanging out at a barbershop with Jalisa and others. She left the barbershop around 5 or 6 p.m. to go home and get ready for a night shift at work. Jalisa stated that Vaughn called her after she arrived home—at the apartment where she, Vaughn, and their mother lived—and told her that he was still with Turner and that he would be arriving to retrieve some money. The apartment was located near 22d and Vinton Streets in Omaha.

Jalisa testified that at approximately 8 p.m., Vaughn arrived at the apartment. He then asked her for money, she declined, and Vaughn left. Shortly thereafter, Vaughn returned and appeared to be "real nervous." At this point, their mother gave him some money. Before leaving the apartment the second time, Vaughn placed a call on his cell phone, during which Jalisa heard him say, " ‘Here I come, bro. I’ll be out in a minute.’ "

Jalisa further testified that when she left for work later that evening, she saw Vaughn’s vehicle with the lights on in the ₆₆₆parking lot and "a lot of police." Jalisa stated that she "didn’t know what was...