State v. Wynne

1

State of Nebraska, appellee, v. Mitchell Q. Wynne, appellant.

No. A-21-199

Court of Appeals of Nebraska

January 25, 2022

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: Leigh Ann Retelsdorf, Judge. Affirmed.

Mitchell Q. Wynne, pro se.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

Moore Arterburn, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE JUDGE.

INTRODUCTION

Mitchell Q. Wynne appeals from the order of the district court for Douglas County, which denied his motion for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Following a jury trial in 2015, Wynne was convicted of first degree murder and use of deadly weapon (firearm) to commit a felony. Wynne was 17 years old at the time the offense was committed. The district court sentenced him to 40 to 100 years' imprisonment for first degree murder and to a consecutive term of 10 to 20 years' imprisonment for the use of a weapon conviction. On direct appeal, Wynne claimed that the court erred in admitting certain text messages into evidence and in denying his motion for mistrial based on prosecutorial misconduct during the State's closing argument. He also claimed that the evidence was insufficient to sustain his conviction for first degree murder. This court found no error or abuse of discretion by the trial court, found that the evidence was sufficient to sustain the first degree murder conviction, and affirmed Wynne's convictions and sentences. See State v. Wynne, 24 Neb.App. 377, 887 N.W.2d 515 (2016). We note that Wynne was represented at trial and on direct appeal by the same attorney.

On January 16, 2018, Wynne filed a pro se motion for postconviction relief, setting forth numerous claims of ineffective assistance of trial counsel. He later retained counsel, and on April 21, 2020, through his attorney, filed an amended motion for postconviction relief. The district court entered an order, requesting the State to file a response to Wynne's amended motion. The State subsequently filed its response, asking the court to dismiss Wynne's motion without an evidentiary hearing.

On February 18, 2021, the district court entered an order, denying Wynne's motion for postconviction relief without an evidentiary hearing. The court addressed each of Wynne's claims, and it determined that they were either refuted by the record or did not otherwise warrant an evidentiary hearing. After perfecting the present appeal from the court's February 2021 order, Wynne's postconviction counsel withdrew, and his appellant brief and reply brief were filed pro se.

ASSIGNMENTS OF ERROR

Wynne asserts, restated, that the district court erred in overruling his motion for postconviction relief because his trial counsel was ineffective in (1) "allowing prejudicial cellphone text message evidence exhibit #178-179" to be admitted, (2) failing to challenge the admissibility of prejudicial testimony about DNA testing results with no statistical significance, (3) advising him not to testify at trial, (4) failing to challenge the admissibility of a surveillance video, (5) failing to call "favorable witnesses to the defense," and (6) "failing to challenge the admissibility of prejudicial finger print evidence Exhibit #170 as an error on direct appeal and at trial adequately." Brief for appellant at 6-7.

STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Id.

ANALYSIS

Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State v Britt, supra. Thus, in a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Britt, supra.

A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution. State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021). In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights, rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. State v. Stelly, supra.

Wynne assigns that the court erred by overruling his motion for postconviction relief, arguing that he received ineffective assistance of trial counsel in various regards. This is Wynne's first opportunity to assert ineffective assistance of counsel, because the same counsel represented Wynne at trial and on direct appeal.

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. Newman, supra. To show that counsel's performance was deficient under Strickland v. Washington, supra, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Newman, supra. To show prejudice under the prejudice component of the Strickland v. Washington, supra, test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. State v. Newman, supra. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. Id. A court may examine the two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, in any order and need not examine both prongs if a defendant fails to demonstrate either. Id.

Cell Phone Text Message Evidence.

On appeal, Wynne asserts that his trial counsel was ineffective for failing to exclude from evidence exhibit 178 (a table containing incoming, outgoing, and missed calls exchanged by the victim's cell phone and Wynne's cell phone and by the victim's cell phone and a third telephone between certain dates) and exhibit 179 (a table containing incoming and outgoing text messages, including the actual content of the text messages, exchanged by the victim's cell phone and Wynne's cell phone between certain times on the date of the crime in which Wynne agreed to purchase marijuana from the victim). He argues that his counsel was ineffective by allowing these two exhibits to be used against him "by conceding with the prosecution . . . that [his] hearsay claim is contingent upon defense counsel's authentication claim." Brief for appellant at 12. He also argues that these exhibits were inadmissible hearsay and that their admission violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution.

This assignment of error on appeal most closely corresponds to the fifth claim raised in Wynne's motion. In that claim he argued that his trial counsel should have filed a motion in limine to address the admissibility of "the cellular phone calls and text messages." He also argued that the fact that "this evidence" was not addressed until trial allowed the district court to admit into evidence "the content of the text messages from the cell phone alleged to be . . . Wynne's to the victim." In his motion, he cited to the ruling admitting exhibit 179 at trial. Wynne did not reference exhibit 178 in the fifth claim set forth in his amended postconviction motion.

The admission of exhibit 179 (both the foundation for its admissibility and whether the text messages in question were inadmissible hearsay) was raised by Wynne's counsel and considered by this court on direct appeal. We concluded that there was sufficient evidence of authentication and that the district court did not abuse its discretion in overruling Wynne's foundational objection to the exhibit. The fact that Wynne's counsel did not persuade the trial court or this court regarding the admissibility of the exhibit does not equate with deficient performance. And he has not shown how the outcome would have been different had his trial counsel first challenged the admissibility of exhibit 179 through a pretrial motion in limine.

More importantly, the error assigned and argued in Wynne's brief on appeal differs from the claim he raised...