State v. Huff , 25 Neb. Ct. App. 219 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/21/2017 12:17 AM CST
- 219 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219State of Nebraska, appellee, v.
Herchel H arold Huff, appellant.
___ N.W.2d ___
Filed October 31, 2017. No. A-16-983.
1. Postconviction: Constitutional Law: Appeal and Error. 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.
2. Postconviction: Claims. Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.
3. Judgments: Appeal and Error. When reviewing a question of law,
an appellate court resolves the question independently of the lower
court’s conclusion.
4. Postconviction: Evidence. In an evidentiary hearing on a motion for
postconviction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact.
5. Postconviction: Evidence: Appeal and Error. An appellate court
upholds the trial court’s findings in an evidentiary hearing on a motion
for postconviction relief unless the findings are clearly erroneous.
6. Judgments: Appeal and Error. An appellate court independently
resolves questions of law.
7. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of counsel presents a mixed question of law and fact,
an appellate court reviews the lower court’s factual findings for clear
error but independently determines whether those facts show counsel’s
performance was deficient and prejudiced the defendant.
8. Postconviction: Final Orders. Within a postconviction proceeding,
an order granting an evidentiary hearing on some issues and denying
a hearing on others is a final, appealable order as to the claims denied
without a hearing.
- 220 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 2199. Postconviction: Time: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 25-1912 (Reissue 2016), a defendant has just 30 days to appeal from
the denial of an evidentiary hearing; the failure to do so results in the
defendant’s losing the right to pursue those allegations further.
10. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
11. Postconviction: Effectiveness of Counsel: Appeal and Error. To
establish a right to postconviction relief based on a claim of ineffec-
tive assistance of counsel, the defendant has the burden, in accordance
with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), to show that counsel’s performance was deficient;
that is, counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law. Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in his or
her case.
12. Effectiveness of Counsel: Proof: Words and Phrases. To show
prejudice under the prejudice component of the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 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. 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.
13. Effectiveness of Counsel. The two prongs of the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
deficient performance and prejudice, may be addressed in either order.
14. Constitutional Law: Criminal Law: Trial: Witnesses. The
Confrontation Clause of the Sixth Amendment to the U.S. Constitution
provides that in all criminal prosecutions, the accused shall enjoy
the right to be confronted with the witnesses against him or her. The
14th Amendment makes the guarantees of this clause obligatory upon
the states.
15. Constitutional Law: Trial: Witnesses. The Confrontation Clause guar-
antees the accused’s right to be present in the courtroom at every stage
of his or her trial.
16. Trial: Due Process. The general rule is that an accused has a right to
be present at all stages of the trial where his absence might frustrate the
fairness of the proceedings.
17. Trial: Due Process: Waiver. A defendant has a right to be present at all
times when any proceeding is taken during the trial, from impaneling of
- 221 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219the jury to the rendition of the verdict, inclusive, unless he has waived
such right.
18. Trial: Waiver. If a defendant is to effectively waive his or her presence
at trial, that waiver must be knowing and voluntary.
19. Constitutional Law: Juror Qualifications. Voir dire plays a critical
function in assuring a criminal defendant that his or her constitutional
right to an impartial jury will be honored.
20. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of alleged ineffective assistance of counsel, an
appellate court affords trial counsel due deference to formulate trial
strategy and tactics.
21. Effectiveness of Counsel: Presumptions: Appeal and Error. There
is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions.
22. Effectiveness of Counsel: Judgments: Appeal and Error. Even if
found unreasonable, error owing to ineffective assistance of counsel
justifies setting aside the judgment only if there was prejudice.
Appeal from the District Court for Furnas County: James E.
Doyle IV, Judge. Affirmed.
Brian J. Davis, of Berreckman & Davis, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
Moore, Chief Judge.
I. INTRODUCTION
Herchel Harold Huff was convicted of motor vehicle homi-
cide, among other charges, in connection with the death of
Kasey Jo Warner. Following his direct appeals, Huff filed a
motion for postconviction relief in the district court for Furnas
County. Following an initial review of Huff’s motion, the
court dismissed a number of Huff’s claims without an eviden-
tiary hearing. Huff appealed, and this court affirmed the dis-
missal of those claims. Subsequently, the State filed a motion
to dismiss the remainder of Huff’s postconviction claims. The
court sustained the motion in part and overruled it in part.
Huff again appealed, and this court affirmed. An evidentiary
- 222 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219hearing was held on Huff’s remaining postconviction claims
as well as a motion to disqualify or recuse the judge hearing
his postconviction motion. The present appeal arises from the
district court’s order denying the remaining claims in Huff’s
postconviction motion following an evidentiary hearing. Huff
asserts both ineffective assistance of counsel and trial court
error in connection with the in-chambers voir dire of certain
jurors conducted outside of his presence. Huff’s first assigned
error is not properly before us in this appeal, and he has
not shown that he was prejudiced by his counsel’s actions
in connection with the in-chambers voir dire. Accordingly,
we affirm.
II. BACKGROUND
1. Trial and Direct A ppeals
On October 3, 2007, Warner was jogging on a gravel road
near her home in Furnas County when she was struck and
killed by a vehicle driven by Huff. Huff pled guilty to man-
slaughter, but not guilty to the other crimes with which he was
charged. A jury trial was held, and the jury found Huff guilty
of motor vehicle homicide. The district court found Huff guilty
of the remaining counts (tampering with a witness and refusal
to submit to a chemical test). Huff was sentenced to imprison-
ment for a term of 45 to 45 years for motor vehicle homicide
and a concurrent term of 20 to 20 years for manslaughter.
Huff was sentenced to imprisonment for 20 to 60 months for
tampering with a witness and 5 to 5 years for third-offense
refusal to submit to a chemical test. These sentences were
to be served consecutively to the sentences for manslaughter
and motor vehicle homicide and to one another. Huff filed a
direct appeal and was represented on direct appeal by his trial
attorneys. The Supreme Court affirmed Huff’s convictions for
motor vehicle homicide, tampering with a witness, and refusal
to submit to a chemical test, but it remanded the cause for
sentencing on the third-offense refusal to submit to a chemical
test. The Supreme Court also vacated Huff’s conviction and
- 223 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219sentence for manslaughter. See State v. Huff, 282 Neb. 78, 802
N.W.2d 77 (2011).
After remand, Huff was resentenced on the refusal to take
a chemical test to 60 days’ incarceration, a $500 fine, and the
suspension of his license for 6 months after his release from
incarceration. Huff appealed this sentence, and the Nebraska
Supreme Court summarily affirmed. State v. Huff, 283 Neb. xix(No. S-11-1102, Apr. 11, 2012). Huff was represented by his
trial attorneys in this appeal as well.
2. Postconviction Motion
On August 20, 2012, Huff filed a verified motion for post-
conviction relief, alleging numerous claims of ineffective
assist­
ance of counsel, prosecutorial misconduct, trial court
error, law enforcement misconduct, and denial of his right to
appellate counsel, and he requested an evidentiary hearing.
3. First Postconviction A ppeal
On October 22, 2012, the district court entered an order
denying certain of Huff’s claims and granting him an eviden-
tiary hearing on others. The court appointed postconviction
counsel for Huff. Huff appealed from the order dismissing
portions of his postconviction claims. In that appeal, Huff chal-
lenged the court’s dismissal of two of his claims of ineffective
assistance of trial counsel without an evidentiary hearing. In a
memorandum opinion, this court affirmed. See State v. Huff,
No. A-12-1072, 2013 WL 6622896 (Neb. App. Dec. 17, 2013)
(selected for posting to court website).
4. Second Postconviction A ppeal
Following the first postconviction appeal, the State filed a
motion to dismiss Huff’s remaining postconviction claims. On
October 1, 2014, the district court entered an order granting
in part and denying in part the State’s motion to dismiss. The
court detailed the remaining claims for postconviction relief
and found that the remaining claims under “[g]rounds 2, 3, and
4” set forth in Huff’s motion constituted claims of ineffective
- 224 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219assistance of counsel and were “considered by the court to
be preserved through, and to be part of, Huff’s ineffective
assist­ance of counsel claims set forth in [g]round 1.” To the
extent that the court’s description of and prior characterization
of grounds 2 through 4 “create[d] a different impression, or
g[a]ve rise to inferences that the claims can be classified as
other than ineffective assistance of counsel claims,” the court
granted the State’s motion to dismiss. The court dismissed
additional claims for relief asserted in Huff’s postconviction
motion and denied the State’s motion as to other claims. Huff
again appealed, asserting that the court erred when it sustained
the State’s motion to dismiss in part, denying two additional
claims of ineffective assistance of counsel without an eviden-
tiary hearing. In an unpublished memorandum opinion, this
court affirmed the dismissal of the additional claims from
Huff’s postconviction motion. State v. Huff, 22 Neb. App. xxxii(No. A-14-985, June 26, 2015).
5. Evidentiary Hearing
On May 26, 2016, an evidentiary hearing was held on the
remaining claims in Huff’s postconviction motion. The district
court received exhibits including the bill of exceptions from
Huff’s trial, various depositions and affidavits, and certain
pleadings. We have set forth the evidence relevant to Huff’s
assignments of error in the present appeal, focusing on the voir
dire of certain prospective jurors in the court’s chambers out-
side of Huff’s presence.
(a) Voir Dire Proceedings
The record shows that voir dire took place on March 9,
2010, and that Huff was present in the courtroom during the
voir dire proceedings. During voir dire, the trial judge asked
the panel if anyone had ever been arrested for, cited for, or
convicted of driving while under the influence of alcohol
(DUI). In response, six prospective jurors (jurors Nos. 52,
73, 95, 96, 106, and 139) raised their hands. The judge then
- 225 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219asked the six prospective jurors a series of questions to see if
anything about their experience would affect their ability to be
fair and impartial. None of the six prospective jurors indicated
that they could not be fair and impartial. We note that jurors
Nos. 52 and 96 were later excused for cause for other rea-
sons based upon additional in-court questioning and were not
among those prospective jurors later questioned in the court’s
chambers. When selected from the pool after other prospective
jurors were excused, both juror No. 91 and juror No. 102 also
informed the court of prior DUI convictions. Upon in-court
questioning by the judge, they both indicated that they could
be fair and impartial.
The attorneys for both sides also conducted in-court ques-
tioning of prospective jurors, and Huff was present for this
questioning. During the prosecutor’s questioning, jurors Nos.
29, 73, 91, 95, 102, 106, and 139 raised their hands to indi-
cate that they had prior DUI convictions. After Huff’s counsel
questioned the prospective jurors, the judge confirmed that the
State wanted to individually question some of the prospective
jurors in chambers.
During a sidebar discussion between the district court and
counsel for both parties, one of the prosecuting attorneys
informed the court that the State wanted more details from
the seven prospective jurors who had prior DUI convictions
“about how long ago it was” and “what the treatment was”
and to “[g]et the personal details out.” Upon the court’s
inquiry, Huff’s attorneys indicated they had no objections to
such individual questioning of the seven prospective jurors
in chambers. Following the sidebar, the court informed the
prospective jurors that the attorneys wanted to ask some ques-
tions of certain individual jurors in private “to spare any kind
of embarrassment to anyone.” The court stated that the ques-
tioning would occur in a separate room with the attorneys and
court reporter present and that each of the seven identified
prospective jurors would be called back separately to answer
questions outside the presence of the other prospective jurors.
- 226 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219Huff did not express any desire on the record to be present
during the in-chambers questioning.
The in-chambers voir dire began at 11:45 a.m. on March
9, 2010. The district court noted the presence of the attorneys
for both Huff and the State for the in-chambers voir dire.
Neither the court nor the attorneys mentioned Huff’s absence,
but a notation from the court reporter in the bill of excep-
tions shows that Huff was not present for the in-chambers
voir dire. The seven prospective jurors were then questioned
individually about the circumstances of their past DUI convic-
tions. Six of the seven prospective jurors (jurors Nos. 29, 91,
95, 102, 106, and 139) stated that they could set aside their
prior convictions and decide Huff’s case based on the facts
presented to them. However, juror No. 73 was excused for
cause during the in-chambers questioning after stating a belief
that Huff was guilty. After the seven prospective jurors had
been questioned, Huff’s attorneys suggested that the court
call the next prospective juror from the pool into chambers
for questioning in case that individual also had a prior DUI
conviction. As the State had no objections, the judge told the
attorneys he would ask the clerk to “pull another name” and
would then bring that individual into the conference room.
After the clerk selected prospective juror No. 48, that person
was individually questioned in chambers by the judge and the
attorneys for both parties. Juror No. 48 did not have any prior
DUI convictions.
After the in-chambers voir dire concluded at 12:19 p.m.
on March 9, 2010, the judge and all counsel returned to
the courtroom, where Huff was still present. The State and
the defense both passed the jury for cause. After the par-
ties exercised their peremptory strikes, the court clerk read
the names of those persons who were excused and the judge
thanked them for their service. The bill of exceptions shows
only which jurors were eliminated via peremptory strikes and
does not show which jurors were removed by the State and
- 227 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219which were removed by the defense. Of the eight jurors who
were individually questioned in chambers, only jurors Nos.
95 and 106 were selected as members of the jury. Juror No.
91 was selected as the alternate juror but did not participate
in deliberations.
(b) Depositions of Huff’s
Trial Counsel
At the evidentiary hearing, the district court received the
depositions of both of Huff’s trial attorneys. We have referred
to them as “the first attorney” and “the second attorney” based
on the order in which they were appointed to represent Huff.
The second attorney did not recall who made the request to
conduct the individual in-chambers voir dire of prospective
jurors with prior DUI’s, but testified that the decision to do so
was made to avoid embarrassing those individuals in front of
the other prospective jurors. He testified that he did not ask
for Huff to be present for those individual interviews or waive
Huff’s presence in any way and that the trial judge did not
ask if he was willing to waive Huff’s presence. When asked
if he thought “anything of that at the time,” he responded that
he made the tactical decision not to say anything because he
“thought that if things went badly, . . . the fact that [Huff]
wasn’t present would have been a good issue on appeal if
he was convicted.” The second attorney stated that the issue
of Huff’s absence during the in-chambers voir dire was not
raised on direct appeal because after researching the issue,
he and the first attorney determined that the claim would not
be successful.
The second attorney recalled that he spoke with Huff
briefly after the in-chambers voir dire and prior to exercis-
ing peremptory strikes and that he informed Huff the defense
“didn’t want to have any of [the prospective jurors questioned
in chambers] on the panel because they were not favor-
able to him.” Both of Huff’s trial attorneys testified in their
- 228 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219depositions that Huff did not provide any input when it came
to deciding which prospective jurors the defense wanted on
the jury and which ones the defense wanted to strike.
The first attorney testified about the extent of Huff’s
involvement in the overall voir dire process. The first attor-
ney recalled that he and the second attorney went through the
list of potential jurors with Huff prior to trial to see if Huff
recognized any of the names, which Huff did not. He stated
that they would have also told Huff to let them know if he
recognized anyone on the panel once voir dire began. The first
attorney recalled that Huff did not know any of the jurors, and
he did not remember Huff’s commenting “either way” with
respect to keeping or striking specific jurors.
(c) Huff’s Deposition
and Affidavit
At the evidentiary hearing, the district court also received
Huff’s deposition and an affidavit from Huff prepared after the
deposition was taken.
In his deposition, Huff acknowledged that prior to trial,
his attorneys briefly explained the voir dire process and went
through the list of potential jurors with him. He had been
provided the list ahead of time and informed by his attorneys
that they wanted to know if he knew any of the individuals
or anything about them. Huff testified that he was better at
remembering faces than names and that he wished he had been
provided with pictures of the individuals or a map of their
listed addresses to aid him in determining whether he knew
anything about them.
With respect to the in-chambers voir dire, Huff testified
he would have liked to have been present because he “had
a right to be in that room” and “had a right to know what
they were talking about and why they were dismissing people
without [his] being present.” Huff testified that following the
in-­chambers voir dire, his attorneys did not discuss the ques-
tions asked or answers provided by the prospective jurors
- 229 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219during the individual questioning and that there was not time
to discuss “why they were going to make any decision” with
respect to particular jurors. He testified, “[I]f I would have
known what was going on in there, I would have had the abil-
ity to maybe help in my case.” Huff had not seen the record
of the in-chambers voir dire at that point, and he testified that
if shown the record, he thought he might be able to be more
specific about input he could have provided.
According to Huff, his attorneys did not discuss with him
the reason why any jurors were or were not being dismissed
prior to exercising the peremptory strikes. He testified that he
felt if he had been present for and able to provide input during
the in-chambers voir dire, it could have affected the outcome
of his trial. Huff explained:
Well, one of [those] jurors may have been . . . the person
that could have [given] me an unbiased trial. They could
have had the ability to give me freedom. In the same
sense, they could have had the sense to find me guilty,
they could have found me not guilty. . . . I’ll never know
because I wasn’t in the room with them. I’ll have no abil-
ity to defend myself or help myself because I don’t know
what went on.
Huff testified that the second attorney informed him following
the in-chambers voir dire that the attorney needed to research
the issue of Huff’s absence.
In the affidavit, Huff indicated that he had recently
reviewed the portion of the bill of exceptions from his trial
that recorded voir dire. Huff stated that if his trial attorneys
had “demanded [his] presence, [he] would have been able to
see the faces of the jurors that were being questioned, observe
their body language, posture, and demeanor while they were
being questioned, and provide[] input on whether [he] thought
they were being honest” and “whether [he] thought they
would be good jurors on [his] case.” Huff stated:
To show how important the process was, 4 out of the 7
jurors questioned while I was not present were stricken.
- 230 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219One by the Judge and 3 by my own attorneys. In review-
ing the record, I don’t know why [juror No.] 102 was
stricken by my attorneys and I think [juror No.] 91
should have been stricken. I can’t provide any details into
why those decisions were made because I wasn’t pres-
ent to observe anything about the jurors while they were
being questioned.
He stated further:
This clearly could have affected the outcome of my case
had I wanted to strike different jurors or keep different
jurors after hearing and observing the relevant informa-
tion they were providing. How jurors felt about their own
DUI’s was probably the most important information they
could provide, and my lawyers purposely did not allow
me to be present during the process.
Huff did not provide any specific reasons as to why he believed
juror No. 102 would have made a good juror or why juror No.
91 should have been stricken.
6. Order Denying
Postconviction R elief
On September 1, 2016, the district court entered an order
denying postconviction relief. As relevant to Huff’s claim that
he received ineffective assistance of trial counsel in connec-
tion with the in-chambers voir dire of eight potential jurors
outside of Huff’s presence, the court found that Huff’s absence
was inadvertent and that Huff could not establish prejudice.
The court also rejected Huff’s argument that he did not have
to establish actual prejudice. Huff subsequently perfected the
present appeal.
III. ASSIGNMENTS OF ERROR
Huff asserts that the district court erred in (1) denying his
claim that the court violated his constitutional rights by allow-
ing voir dire of prospective jurors to proceed in chambers
outside of Huff’s presence and (2) denying his claim that his
- 231 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219trial attorneys were ineffective in not objecting or moving
for a mistrial following the voir dire of prospective jurors in
chambers outside of Huff’s presence.
IV. STANDARD OF REVIEW
[1-3] In appeals from postconviction proceedings, an appel-
late 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. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). Whether
a claim raised in a postconviction proceeding is procedurally
barred is a question of law. Id. When reviewing a question of
law, an appellate court resolves the question independently of
the lower court’s conclusion. Id.[4-6] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves conflicts
in the evidence and questions of fact. State v. Alarcon-Chavez,
295 Neb. 1014, 893 N.W.2d 706 (2017). An appellate court
upholds the trial court’s findings in an evidentiary hearing on a
motion for postconviction relief unless the findings are clearly
erroneous. Id. An appellate court independently resolves ques-
tions of law. Id.[7] When a claim of ineffective assistance of counsel pre­
sents a mixed question of law and fact, an appellate court
reviews the lower court’s factual findings for clear error but
independently determines whether those facts show counsel’s
performance was deficient and prejudiced the defendant. State
v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
V. ANALYSIS
1. Claim of Trial Court Error
Huff asserts that the district court erred in denying his claim
that the court violated his constitutional rights by allowing voir
dire of prospective jurors to proceed in chambers outside of
his presence. This claim, found in subparagraph E of ground
- 232 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 2193 of Huff’s motion, was previously dismissed by the court in
its order of October 1, 2014, ruling on the State’s motion to
dismiss and is not properly before this court in Huff’s pres-
ent appeal.
In its October 2014 order, the district court determined that
this claim and the other remaining claims under “[g]rounds
2, 3, and 4” of Huff’s postconviction motion all constituted
claims of ineffective assistance of counsel. The court denied
the State’s motion to dismiss in that regard, but it granted
the motion to the extent those claims could be “construed or
interpreted to be claims for any relief grounded on any theory
or basis other than ineffective assistance of counsel.” In other
words, to the extent that Huff’s claims under grounds 2, 3, and
4 of his motion could be interpreted as claims of prosecutorial
misconduct, trial court error, or law enforcement misconduct,
the court dismissed those claims for reasons including that they
were known to Huff and could have been litigated on direct
appeal and were thus procedurally barred.
[8,9] Within a postconviction proceeding, an order granting
an evidentiary hearing on some issues and denying a hearing
on others is a final, appealable order as to the claims denied
without a hearing. State v. Determan, 292 Neb. 557, 873
N.W.2d 390 (2016). Pursuant to Neb. Rev. Stat. § 25-1912(Reissue 2016), a defendant has just 30 days to appeal from the
denial of an evidentiary hearing; the failure to do so results in
the defendant’s losing the right to pursue those allegations fur-
ther. State v. Determan, supra. While Huff did perfect a timely
appeal from the district court’s October 2014 order, he did not
assign error to the court’s dismissal of his claim in subpara-
graph E of ground 3 to the extent the claim could be construed
as one of trial court error. Thus, Huff has waived the right to
pursue further his allegations of trial court error in connection
with the in-chambers voir dire.
[10] Even if Huff had not waived the claim raised in his
first assignment of error, the district court was correct in
finding in its October 2014 order that any claim of trial court
- 233 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219error in connection with the in-chambers voir dire was proce-
durally barred because it was known to Huff at the time of his
trial and could have been litigated on direct appeal. A motion
for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have
been litigated on direct appeal. State v. Alarcon-Chavez, 295
Neb. 1014, 893 N.W.2d 706 (2017).
Huff’s first assignment of error is without merit. However,
we address his arguments below to the extent that they are
applicable to his claim of ineffective assistance of counsel.
2. Claim of Ineffective
Assistance of Counsel
Huff asserts that the district court erred in denying his claim
that his trial attorneys were ineffective in not objecting or mov-
ing for a mistrial following the voir dire of prospective jurors
in chambers outside of Huff’s presence.
[11-13] To establish a right to postconviction relief based
on a claim of ineffective assistance of counsel, the defendant
has the burden, in accordance with Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to
show that counsel’s performance was deficient; that is, coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. State v. Ross, 296 Neb. 923,
899 N.W.2d 209 (2017). Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case. Id. To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. State v. Watson, 295 Neb. 802, 891 N.W.2d
322 (2017). 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. The two prongs of this test, deficient performance and
- 234 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219prejudice, may be addressed in either order. State v. Alarcon-
Chavez, supra.[14-18] The Confrontation Clause of the Sixth Amendment
to the U.S. Constitution provides that in all criminal prosecu-
tions, the accused shall enjoy the right to be confronted with
the witnesses against him or her. State v. Fox, 282 Neb. 957,
806 N.W.2d 883 (2011). The 14th Amendment makes the guar-
antees of this clause obligatory upon the states. State v. Fox,
supra. The Confrontation Clause guarantees the accused’s right
to be present in the courtroom at every stage of his or her trial.
State v. Fox, supra. The 5th and 14th Amendments to the U.S.
Constitution and article I, § 3, of the Nebraska Constitution
guarantee the right to due process of law. Article I, § 11, of
the Nebraska Constitution further guarantees an accused indi-
vidual the right to appear at his or her trial. Pursuant to Neb.
Rev. Stat. § 29-2001 (Reissue 2016), “[n]o person indicted
for a felony shall be tried unless personally present during
the trial.” The general rule is that an accused has a right to
be present at all stages of the trial where his absence might
frustrate the fairness of the proceedings. State v. Red Kettle,
239 Neb. 317, 476 N.W.2d 220 (1991). The Nebraska Supreme
Court has stated that a “defendant has a right to be present at
all times when any proceeding is taken during the trial, from
the impaneling of the jury to the rendition of the verdict, inclu-
sive, unless he has waived such right.” Scott v. State, 113 Neb.
657, 659, 204 N.W. 381 (1925). If a defendant is to effectively
waive his or her presence at trial, that waiver must be knowing
and voluntary. State v. Fox, supra.
The U.S. Supreme Court has assumed that “even in situa-
tions where the defendant is not actually confronting witnesses
or evidence against him, he has a due process right ‘to be
present in his own person whenever his presence has a rela-
tion, reasonably substantial, to the fulness of his opportunity to
defend against the charge.’” Kentucky v. Stincer, 482 U.S. 730,
745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), quoting Snyder
v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674- 235 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219(1934), overruled in part on other grounds, Malloy v. Hogan,
378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Referring
to voir dire, the Supreme Court has noted that
defense may be made easier if the accused is permitted to
be present at the examination of jurors or the summing up
of counsel, for it will be in his power, if present, to give
advice or suggestion or even to supersede his lawyers
altogether and conduct the trial himself.
Snyder v. Massachusetts, 291 U.S. at 106. In further consider-
ing the right, the Supreme Court stated, “Nowhere in the deci-
sions of this court is there a dictum, and still less a ruling, that
the Fourteenth Amendment assures the privilege of presence
when presence would be useless, or the benefit but a shadow.”
Snyder v. Massachusetts, 291 U.S. at 106-07. A due process
right to be present is not absolute; rather, “the presence of a
defendant is a condition of due process to the extent that a fair
and just hearing would be thwarted by his absence.” Id., 291
U.S. at 107-08. See, also, State v. Marks, 286 Neb. 166, 835
N.W.2d 656 (2013).
[19] Voir dire plays a critical function in assuring the crimi-
nal defendant that his or her constitutional right to an impar-
tial jury will be honored. State v. Iromuanya, 282 Neb. 798,
806 N.W.2d 404 (2011). Clearly, it was important for Huff to
have the opportunity to be present and participate in the jury
selection process. Huff was present for the portion of the voir
dire proceedings that occurred in the courtroom. He also was
given a list of the potential jurors and had the opportunity to
consult with his attorneys about the voir dire process prior to
trial. His attorneys told him to let them know if he recognized
anyone on the panel once voir dire began. The in-chambers
questioning was directed to the ability of seven prospective
jurors to be impartial given their prior DUI convictions. The
responses of six of those prospective jurors indicated that they
could be fair and impartial. The seventh juror, who stated a
belief that Huff was guilty, was dismissed for cause during
the in-chambers questioning. The additional prospective juror
- 236 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219selected from the pool and questioned in chambers did not
have a prior DUI conviction. Huff’s attorneys were present for
the in-chambers questioning, which lasted a little more than
30 minutes. At least one of Huff’s attorneys spoke with him
briefly after the in-chambers voir dire and prior to the par-
ties’ exercise of their peremptory strikes. Huff did not provide
any input with respect to exercising the defense’s peremptory
strikes. He was present during this process and for the selec-
tion and swearing of the 12 jurors and 1 alternate juror.
In determining that Huff had the burden to prove actual
prejudice from his absence during the in-chambers voir dire,
i.e., that his absence adversely affected the outcome of the
trial, the district court relied on U.S. v. Tipton, 90 F.3d 861,
875 (4th Cir. 1996), which held:
Where absence [from voir dire] has not been total but
only intermittent during the process the courts accord-
ingly have not presumed prejudice but have analyzed
the circumstances to determine whether prejudice has
been specifically established. See, e.g., United States
v. Bascaro, 742 F.2d 1335, 1349-50 (11th Cir.1984)
(although peremptory strike phase of voir dire is criti-
cal, no prejudice to defendants where attorneys conferred
about peremptories outside their presence, but defendants
were present both while questioning took place and when
strikes actually entered); United States v. Alessandrello,
637 F.2d 131, 137-141 (3d Cir.1980) (absence of defend­
ants from in-chambers questioning of venirepersons
respecting pre-trial publicity not prejudicial in view of
their presence at substantial part of voir dire and their
counsels’ presence during in-chambers proceedings).
[20-22] When reviewing claims of alleged ineffective assist­
ance of counsel, an appellate court affords trial counsel due
deference to formulate trial strategy and tactics. State v. Torres,
295 Neb. 830, 894 N.W.2d 191 (2017). There is a strong
presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions. Id.- 237 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219Even if found unreasonable, the error justifies setting aside
the judgment only if there was prejudice. See State v. Duncan,
293 Neb. 359, 377, 878 N.W.2d 363, 377 (2016). We are not
convinced that Huff’s trial attorneys were deficient under
the circumstances of this case, but even assuming that they
were deficient in failing to object to his absence from the
in-chambers voir dire of the prospective jurors who indicated
that they had prior DUI convictions (and the prospective juror
selected after juror No. 73 was struck for cause), Huff cannot
demonstrate a reasonable probability that but for his counsel’s
deficient performance, the result of the proceeding would have
been different.
Huff argues that his attorneys’ failure in this case was pre-
sumptively prejudicial. We disagree.
Pursuant to [United States v.] Cronic, [466 U.S. 648,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984),] under certain
specified circumstances, prejudice to the accused is to
be presumed. The text of Cronic lists the following three
circumstances in which prejudice will be presumed: (1)
where the accused is completely denied counsel at a criti-
cal stage of the proceedings, (2) where counsel fails to
subject the prosecution’s case to meaningful adversarial
testing, and (3) where the surrounding circumstances may
justify a presumption of ineffectiveness without inquiry
into counsel’s actual performance at trial.
State v. Trotter, 259 Neb. 212, 218, 609 N.W.2d 33, 38 (2000).
Clearly, the first two circumstances are not applicable here,
and, as discussed above, Huff has not shown that the sur-
rounding circumstances of this case justify a presumption
of prejudice.
Huff cannot show a reasonable probability that but for his
attorneys’ alleged deficient performance, the result of the pro-
ceeding would have been different. Of the prospective jurors
who were questioned in chambers, only jurors Nos. 95 and
106 served on the jury and participated in deliberations. Huff
complains about only two of the prospective jurors that were
- 238 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HUFF
Cite as 25 Neb. App. 219questioned individually—jurors Nos. 102 and 91. Juror No.
102 was stricken from the jury by either the State or defense
counsel during the exercise of peremptory strikes, and juror
No. 91 was the alternate juror and was dismissed prior to
deliberations. The record does not conclusively show which of
the prospective jurors at issue were stricken via the defense’s
peremptory strikes. Huff is not guaranteed a jury comprising
particular jurors, only a jury that is fair and impartial. See,
Kloss v. United States, 77 F.2d 462 (8th Cir. 1935); Hartzell
v. United States, 72 F.2d 569 (8th Cir. 1934). Huff does not
allege that any of the jurors who were selected and deliber-
ated on his case were biased. Nor does he explain why he
thought prospective juror No. 102 would have made a good
juror. Although Huff did not hear that individual’s responses
during the in-chambers questioning, he heard the responses of
and had the opportunity to observe all of the jurors, with the
exception of juror No. 48, who was questioned only in cham-
bers, during the in-court questioning. One of the parties exer-
cised a peremptory strike against juror No. 48, and, as noted
above, Huff does not have the right to have a jury comprising
particular individuals. Huff has not shown and the record does
not demonstrate that a juror with actual bias sat in judgment.
Because Huff cannot show a reasonable probability that but for
his counsel’s alleged deficient performance, the result of the
proceeding would have been different, his second assignment
of error is without merit.
VI. CONCLUSION
The district court did not err in denying postconviction relief
following Huff’s evidentiary hearing.
A ffirmed.