State v. DeJong ( 2015 )

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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. DeJONG
Cite as 292 Neb. 305
State of Nebraska, appellee, v.
Susan M. DeJong, appellant.
___ N.W.2d ___
Filed December 18, 2015. No. S-15-028.
1. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews the fac-
tual findings of the lower court for clear error.
3. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
4. 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.
5. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusion.
7. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute 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.
8. ____: ____: ____. A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains factual
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allegations which, if proved, constitute an infringement of the defend­
ant’s rights under the Nebraska or federal Constitution.
9. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
10. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
11. Effectiveness of Counsel: Proof: Appeal and Error. 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.
12. Effectiveness of Counsel: Proof: Words and Phrases: Appeal
and Error. To show prejudice under the prejudice component of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, the defendant must demonstrate a reasonable probabil-
ity 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 prob-
ability sufficient to undermine confidence in the outcome.
13. Effectiveness of Counsel. A court may address the two prongs of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), test, deficient performance and prejudice, in either order.
14. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
15. Postconviction: Appeal and Error. It is fundamental that 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.
16. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on direct
appeal, no matter how those issues may be phrased or rephrased.
17. Postconviction: Due Process. A postconviction motion asserting a per-
suasive claim of actual innocence might allege a constitutional violation,
in that such a claim could arguably amount to a violation of a movant’s
procedural or substantive due process rights.
18. Postconviction: Constitutional Law: Presumptions: Proof. In order to
trigger a court’s consideration of whether continued incarceration could
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give rise to a constitutional claim that can be raised in a postconvic-
tion motion, there must be a strong demonstration of actual innocence,
because after a fair trial and conviction, a defendant’s presumption of
innocence disappears.
Appeal from the District Court for Jefferson County: Paul
W. Korslund, Judge. Affirmed.
Susan M. DeJong, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Miller-Lerman, J.
NATURE OF CASE
Susan M. DeJong was convicted after a jury trial of first
degree murder and use of a deadly weapon to commit a felony
for the death of her husband, Thomas DeJong (Tom). She was
sentenced to a term of life imprisonment for the first degree
murder conviction and a term of 50 to 50 years’ imprisonment
for the use of a deadly weapon to commit a felony conviction,
to be served consecutively. On direct appeal, we affirmed
Susan’s convictions and sentences. See State v. DeJong, 287
Neb. 864, 845 N.W.2d 858 (2014). On September 26, 2014,
Susan filed a pro se motion for postconviction relief in the
district court for Jefferson County. On December 18, the
district court filed an order in which it denied the motion
without holding an evidentiary hearing. Susan appeals. Upon
our review, including Susan’s motion, her brief, and the files
and records of this case, we determine that there is no merit
to Susan’s assignments of error, and we therefore affirm
the decision of the district court in which it denied Susan’s
motion for postconviction relief without holding an eviden-
tiary hearing.
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STATEMENT OF FACTS
The events underlying Susan’s convictions and sentences
involve the death of her husband, Tom. In our opinion regard-
ing Susan’s direct appeal, we set forth the facts as follows:
BACKGROUND
On March 11, 2011, Susan called the 911 emergency
dispatch service at approximately 4 p.m. Susan told the
operator that her husband, Tom, was not breathing and
was cold to the touch. Susan stated that Tom had gone
to South Dakota to be with his “whore” and came home
“all . . . beat up.” The operator had Susan perform car-
diopulmonary resuscitation on Tom until the emergency
units arrived.
When emergency personnel arrived at the DeJong
home, Susan was hysterical and she repeatedly stated that
the “whore” had done this to Tom. Emergency person-
nel immediately began resuscitation efforts. Tom was not
breathing, and there was no heartbeat. Dried blood was
around his nostrils and the top of his mouth. His hands,
arms, feet, legs, torso, and head were visibly scratched,
cut, and deeply bruised. Emergency personnel were able
to help Tom regain a heartbeat.
Tom was taken to the Jefferson Community Health
Center and was later transported by ambulance to Bryan
Health, west campus trauma center, in Lincoln, Nebraska
(Bryan hospital). Laboratory reports and blood tests
indicated a threat of imminent heart and renal failure.
A chest x ray indicated multiple rib-sided fractures and
a partially collapsed lung. A CAT scan revealed the fol-
lowing injuries: a swollen brain; a tremendous amount
of fractures within the chest cavity, including the spine,
the ribs, and the scapula; a comminuted fracture of
the nose; and a possible fracture of the hyoid bone in
the neck.
The treating physicians concluded that Tom would
not be able to recover from the injuries. The physicians
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asked Susan for permission to remove Tom from life
support, and she granted the request. Tom passed away
shortly thereafter.
Susan’s Statements
at Hospitals
At the Jefferson Community Health Center, Rebecca
McClure, a nurse, stayed with Susan while waiting for
Tom’s prognosis. The two of them waited in a small quiet
room located outside of the emergency room.
Susan told McClure that she had not seen Tom since
Wednesday and that he came home that Friday morn-
ing. She stated that Tom was “stumbling around in the
house” and that the noise woke her up. Tom had been
beaten, was cold, and quickly became unresponsive.
Susan told McClure that Tom had spent the past days vis-
iting the “whore” in South Dakota. According to Susan,
the “whore” would beat Tom with tie-down straps from
Tom’s semi-truck. Susan also stated that the “whore” and
Tom were trying to kill her by giving her a sexually trans-
mitted disease (STD). McClure personally drove Susan
home after Tom was transported to Lincoln, and Susan
then drove herself to Bryan hospital in Lincoln.
Investigator Wendy Ground from the Lincoln Police
Department arrived at Bryan hospital at approximately
10:20 p.m. Ground questioned Susan about Tom’s inju-
ries. Susan told Ground that Tom had returned home that
morning. He looked pale, and he had stated that he did
not feel well. Susan told Ground that Tom was apolo-
getic and that he had told her he had made a mistake.
According to Susan, Tom said his alleged mistress did
not love him and that the mistress went “psycho” and
wanted to kill him. Susan told Ground that the mistress
had previously tried to kill Susan by cutting her vehicle’s
brake lines.
Ground asked Susan about Tom’s medical history.
Susan stated that Tom had been feeling weak and clumsy
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for the past 21⁄2 years. Susan stated that he was diagnosed
with an STD 11⁄2 years ago. Susan also explained that the
current cut on Tom’s lip was caused by a pipe when Tom
was working with a cow.
After Tom had been declared dead, Ground asked
Susan if she was willing to go to the police headquarters
for an interview. Susan agreed.
Interrogation of Susan at
Police Headquarters
After arriving at the police headquarters at approxi-
mately 1 a.m., Ground placed Susan in an interview
room. Ground left the room, and Susan began working on
her written statement. Susan was left alone in the inter-
view room from 1:12 to 3:04 a.m.
At approximately 3:04 a.m., Ground reentered the inter-
view room. At 3:08 a.m., Ground read Susan her Miranda
rights and Susan told Ground that she understood her
rights. Susan proceeded to sign the Miranda waiver.
Ground began the interrogation by asking general ques-
tions about Tom’s injuries and his whereabouts for the
week. Susan repeated the facts as she had stated at
Bryan hospital.
Susan stated Tom went to Seward, Nebraska, on
Monday, March 7, 2011, for a job application and from
there he went directly to South Dakota. Susan told Ground
that she had talked to him on her cell phone on Monday,
March 7, for approximately 44 minutes. According to
Susan, Tom indicated that he wanted to be with “that
thing.” On March 8, Susan and Tom talked for 5 minutes,
and Susan told Ground that she likely screamed at him
because she was not happy.
At approximately 3:22 a.m., Susan told Ground that
she was exhausted. But she continued to talk. Susan
explained that the next time she heard from Tom was on
Friday morning. She again repeated the same story of
what had occurred that day. At approximately 3:34 a.m.,
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Susan stated that she needed some sleep because she
was exhausted.
The questioning continued, and Susan stated that she
had confronted Tom when he came home on Friday
morning because she was angry. Susan told Ground
that she cannot say for sure that Tom drove home and
that she does not know how he could have driven in
his condition.
At approximately 3:41 a.m., Investigator Robert Farber
entered the room and silently sat at the table. At 3:42
a.m., Susan began crying, and at 3:43 a.m., she stated,
“I’m tired. I wanna go to bed, please. I’m done, I wanna
go to sleep. I’m tired.” Farber immediately interrupted
her and introduced himself. Farber then told Susan that he
had “a couple questions.”
Farber began questioning. He asked Susan when Tom
and she were married and whether they have common
children. Farber questioned Susan about her relationship
with Tom and about Tom’s alleged relationship with his
mistress. The questions became more directed and intense
as Farber continued the interrogation.
In response to the questioning, Susan stated that every-
body called Tom a “wheeney” and that he took the beat-
ings from his alleged mistress. Susan also stated that Tom
had slapped her in Minnesota. Susan explained that she
was arrested for that incident because she decided to not
tell the police that Tom had slapped her.
At approximately 4 a.m., Susan again stated, “I’m
getting tired, I’m done, I’m tired.” Farber interjected
again before Susan completed the statement. Farber asked
Susan if she had anything to do with the injuries. Susan
answered no; Farber continued to ask questions, and
Susan continued to answer. For the next 18 minutes, the
questions from Farber became more pointed and directed.
At 4:18 a.m., Susan exclaimed, “I want a lawyer,
please. I’m tired of this.” “I will talk [to] them and they,
I want some sleep, please.” “I didn’t, I will, I just wanted
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to live and I loved him so much, and I just wanted to live
and he wanted a divorce, and I just wanted to live with
him. . . . I loved him.” Farber said “okay” and left the
room almost immediately. Ground followed.
Susan laid her head down at the table for approximately
30 seconds, stood, and grabbed her keys to leave. Susan
opened the door to the interview room and asked to have
a cigarette. Ground told her to take a seat. Susan turned
around and mumbled, “So sorry. I’m sorry.” Ground
apparently paused to hear what Susan said and then reen-
tered. Ground silently took a seat at the table in the same
spot she sat during the entire interrogation.
Susan talked uninterrupted for nearly 8 minutes with
a slow delivery, while Ground sat and listened. Susan
stated: “So sorry. I’m sorry. (inaudible) beat by that
whore. He used to come home, bruises, bloody nose,
black eyes. He’s got scars on his back that are not from
me. He’s got marks on him that are not from me. He’d
come home and, well, he’d tell his boss (inaudible) on
the trip. He’d tell me he did it on the truck going to
(inaudible). Then he’d turn around, go to Sioux Falls
and that Gloria. Oren called me today and asked if I’d
seen your face. It’s all bruised up. I told him that fuckin’
cunt you’re married to did it. (inaudible) I didn’t ever
touch him. Didn’t ever touch him. When I slapped him
in Fairbury, not Fairbury, in (inaudible), what the name
of that town? I can’t think of it, Burger King, God. The
car pulls in there, parked, to get a burger but on the way
in is when he finally admitted he’d been sleeping with
that thing. Finally admitted it. He got our money, went
into Burger King. I got out of the truck and proceeded
to walk across the highway to the other little truck stop
across the road and he followed me over there. Came
up to me, grabbed one of the dogs and I picked my leg
up. Leave it alone. And then I proceeded, I walked, was
walking, trying to call my son to come get me but he
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wouldn’t answer his stupid phone. Standing there at the
back, I’m like I’m going home. I’m going home. Well,
fine, I’ll take you home. I don’t know. I’m going home.
That’s when he shoved me into the wall and cracked me
in the jaw. And I slapped him. Some kid walked out of
Burger King. So I’m yowling so he called the cops. Next
thing I know they’re showing up. He said I’ll take you
home, I’ll take you home. Fine, I’ll take you home. Fine,
I’ll take you home. Then we got in the truck. Next thing I
know there’s the cops. Everybody thinks Tom is such an
innocent man. He used to be. He used to be the most lov-
ing, gentle, sweet man you could meet. Till he met that
(inaudible). Then they started molesting children. I still
say I think he was on drugs. Cuz you don’t drive 14, 16
hours with nothing. My Blazer for one hasn’t ever had a
problem with the brakes. I hit a deer. Well, come to find
out my front brakes are disconnected. Huh. Excuse me. I
don’t know. I just know that (inaudible) no more getting
shoved. (inaudible) I didn’t poison him. He is what he is
from what he plays with. (inaudible) He told me he was
going to kill me. (inaudible) kill me. (inaudible) Am I
under arrest?”
Ground told Susan that the decision for arrest was up
to the police department in Fairbury, Nebraska. Ground
answered some questions from Susan, but did not ask
Susan any questions.
Susan continued: “Self-defense, because I don’t bruise
and he does. That’s pretty much the way that goes. (inau-
dible) she did (inaudible) to him. For what she did to
him. He wasn’t the man I married. What I told you about
it is all true. It does deal drugs, (inaudible) drugs, go
psycho. And it went psycho on him more than once. Does
molest children. Little boy’s name’s Chris. . . . I have to
be arraigned within 24 hours. I know that, why not. Just
like the deal in Minnesota. And he’ll walk away scott
free. And there’s a lot of the injuries he had [that were]
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not from me. The worse one he get that I can remember
is falling off the ladder. That one scared me. Why didn’t
I just leave. Why didn’t I just run. Because he always
showed up. He always showed up. (inaudible) I need
some sleep. (inaudible) so tired. I just, I just need some-
body to talk for me right now, I’m so tired. I’m too tried.
I haven’t (inaudible) for two days. Could you? I want
a cigarette.”
Ground responded: “Okay, just be patient with us.”
Susan continued: “No, I want a cigarette. I want a ciga-
rette. Then He did take off and go back to S.D. (inaudible)
either. It’s all partly true. The whole story is partly true.
I don’t know. He came back beaten up from S.D. too. I
didn’t hit him in the head. (inaudible) when he fell on it.
I stepped on it. That was after he threw it at me is how it
ended up there. I’m not under arrest. I can go outside and
have a cigarette if I want.”
After a back and forth conversation between Susan
and Ground, Susan stated, without being questioned:
“(inaudible) you’ll arrest me because that’s the way it
always goes. Let’s (inaudible) her and she’s the one
that always gets in trouble. (inaudible) self defense, self
preservation. They made sure of it. It takes a heck of
a hit for me to bruise but . . . make sure that and Tom
knew it.”
Shortly thereafter, an unidentified female officer
entered the room. Ground and the female officer took
pictures of Susan’s bruised hands and forearms. The inter-
rogation video ends. Susan was subsequently arrested
and charged with first degree murder and use of a deadly
weapon to commit a felony.
Hearing on Motion to
Suppress Interrogation
On June 13, 2011, Susan filed a motion to suppress her
statements given on March 12, which she argued were
obtained in violation of her constitutional rights. Susan
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argued that there were three different statements made by
her that invoked her constitutional right to end the inter-
rogation. At 3:43 a.m., Susan stated, “I’m done, I wanna
go to sleep. I’m tired.” At 4 a.m., Susan stated, “I’m
getting tired, I’m done, I’m tired.” And the last relevant
statement was made at 4:18 a.m., when Susan stated, “I
want a lawyer, please. I’m tired of this.”
At the hearing, the district court accepted a joint stipu-
lation that Susan was in custody at the time of the
interrogation.
In its order, the district court found Susan’s first
two statements were not unequivocal and unambiguous
statements that she wanted to cut off the questioning.
Additionally, the court found that all of the statements
made by Susan after exercising her right to counsel were
voluntarily made and were not the result of the functional
equivalent of interrogation.
Susan filed a motion to reconsider. Upon reconsid-
eration, the district court suppressed the statements made
from 4 to 4:18 a.m., because her statement that she
was “done” was unequivocal and unambiguous. However,
statements made before 4 a.m. were admissible, because
Susan had not yet invoked her right to end questioning.
The district court found that statements made after 4:18
a.m. were admissible, because they were not the result of
questioning or the functional equivalent.
Rule 404 Hearing
On January 26, 2012, the State filed an “Amended
Motion to Conduct Hearing Pursuant to Neb. Rev. Stat.
§ 27-104 Regarding the Admissibility of § 27-404(2)
Evidence.” A hearing was held on the same date (rule
404 hearing), and evidence was accepted. There are three
prior “bad acts” that the State wanted admitted for lim-
ited purposes.
For the first prior “bad act,” the State offered the
testimony of then-police officer Nicholas Schwalbe of
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Jackson, Minnesota. Schwalbe testified that on May 31,
2010, he received a call of a fight in progress at a truck-
stop. He identified the driver as Tom and the passenger
as Susan. Schwalbe observed that Tom had a black eye,
a fresh wound under that eye, and scabbing on his face,
ear, and neck, as well as spots of fresh blood rolling
down his neck. Susan was placed under arrest. Susan
told Schwalbe that they were fighting because Tom was
cheating on her.
The second event occurred in August 2010. James
Platt, Susan’s son, and Sharon Platt, James’ wife, testified
that Susan and Tom unexpectedly came to live with them
that August. Susan told them that she and Tom needed to
get away from their home, which was in South Dakota at
the time. Both James and Sharon testified that Tom was
“in bad shape.” Tom’s face was beaten and swollen, and
he had bloody ears. When asked, Susan told James that
the injuries were caused by a truckstop robbery. James
testified that Susan had for years believed Tom was
unfaithful with someone from work. Shortly thereafter,
James testified that Susan and Tom moved to Jefferson
County, Nebraska.
The third event occurred in late 2010. James and
Sharon visited Susan and Tom at their new home in
Jefferson County. Both testified that Tom looked “‘ter-
rible.’” He had cuts on his face and a split lip. Sharon
asked Tom about his facial injuries, and Susan replied for
Tom that the injuries happened at work when “the pigs
got him.”
At the hearing, the State also offered the testimony of
McClure, Brian Bauer, and Ground. McClure testified
about Susan’s story that Tom had gone to South Dakota
“probably up visiting his girlfriend.” She testified about
what Susan had told her at the hospital.
Bauer, who had employed Tom on his farm in Jefferson
County, testified that Tom would come to work every 2 to
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3 weeks visibly sore with bruises on his face, black eyes,
split lips, and marks on his hands. According to Bauer,
these injuries did not occur at work.
Ground testified that at the hospital, Susan stated that
Tom’s facial injuries and split lip were caused by working
on the farm. Susan told her that the split lip was caused
by a pipe when Tom was working with a cow.
Based on the evidence presented, the district court
found that the May 31, 2010, incident in Minnesota was
admissible as it pertains to the injuries observed on Tom
and to Susan’s statements as to the reason for their alter-
cation, for the specific and limited purposes of demon-
strating the existence of motive and intent. The district
court further ordered that all three incidents were admis-
sible for the specific and limited purposes of negating,
or demonstrating the existence of, intent, identity of the
perpetrator, and absence of mistake or accident.
Trial
A jury trial was held on February 21, 2012. The
State offered the testimony of the 911 dispatcher, the
responding emergency personnel, the investigating offi-
cers, Farber, Ground, McClure, Bauer, Schwalbe, and
James and Sharon. The State offered the video interroga-
tion of Susan at the police headquarters, with the footage
from 4 to 4:18 a.m. redacted. The three prior bad acts
that were the subject of the rule 404 hearing were also
presented to the jury. In addition, the following evidence
was presented.
Evidence Found at Home
The DeJong home was searched on March 12, 2011.
Tom’s Chevrolet Blazer was parked in the detached
garage. No evidence was found in the garage or either in
or on the Blazer. Susan’s white pickup truck was proc­
essed on March 15. Tom’s blood was found on the hood
and fender of the truck. Inside the pickup truck, there was
a red duffelbag and a blue denim bag.
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In the red bag, investigators found women’s clothing,
a yellow hammer, a blue hammer, toiletry items, men’s
pajamas, and Tom’s wallet. The blue bag contained a
computer, a lug wrench, and a cell phone.
DNA tests were conducted on this evidence, and results
showed that the blue hammer had a mixture of Tom’s and
Susan’s DNA. Susan’s DNA was found on the handle of
the yellow hammer, and a mixture of DNA was found in
a blood sample on the claw area of the yellow hammer.
Tom was the major contributor of that DNA. Tom’s DNA
was found in the bloodstains on the men’s pajamas.
In the house, at least 70 blood drops were found
throughout. No large pools of blood were found. Blood
was found in the living room, kitchen, bathroom, dining
room, and the master bedroom. Blood was also found on
clothing items seized from the laundry room. A forensic
scientist testified to which stains were left by Tom, by
Susan, or by a mixture of the two. Tom’s DNA was found
repeatedly in the bloodstains throughout the house.
Medical Testimony
Dr. Craig Shumard was working in the emergency
room when Tom was brought by ambulance to the
Jefferson Community Health Center. Shumard described
Tom’s injuries to the jury and testified that the injuries
did not arise from natural causes or accidents. He testi-
fied that Tom’s injuries were inconsistent with typical
farmwork injuries.
Dr. Stanley Okosun, a trauma surgeon at Bryan hos-
pital, testified to his treatment and care of Tom. Okosun
testified that Tom’s high levels of myoglobin indicated
that the trauma inflicted on Tom occurred 12 to 24 hours
prior to his arrival at Bryan hospital. Okosun testified
that Susan told him that Tom’s bruising was caused by
working on a pig farm. Okosun testified that the explana-
tion was highly unlikely. He further testified that with the
injuries suffered, Tom could not have driven home on the
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Friday morning before his death. According to Okosun,
Tom’s injuries could not have been caused by natural
causes or a car accident. He attributed Tom’s injuries to
blunt force trauma caused by an assault.
Dr. Juris Purins was the radiologist who reviewed the
CAT scan performed on Tom at Bryan hospital. The CAT
scan revealed unusually severe head and brain injuries
which are typically associated with a patient’s not breath-
ing. Tom’s nose had a comminuted fracture, which means
it was fractured in multiple places. Tom had a dislocation
of the lens in his right eye, which was another unusual
injury. Purins described a tremendous number of frac-
tures within the chest cavity, including the spine, ribs,
and scapula. One of the fractures was an old injury but
the rest were recent. Purins also identified a fracture of
the hyoid bone in the neck. Purins testified that the frac-
tured hyoid bone, along with subcutaneous emphysema,
indicated a potential choking injury. Purins opined that
the injuries were the result of a “pretty severe beating,”
maybe from a hammer, and that the injuries would have
prevented Tom from driving or walking.
Dr. Jean Thomsen was the pathologist who performed
Tom’s autopsy. Thomsen stated that she had “never seen
someone so extensively injured.” After the autopsy,
Thomsen found the cause of death to be “[b]lunt force
trauma to the head, neck, chest and extremities.” In her
opinion, Tom’s death was a homicide.
In her autopsy report, Thomsen found defects on Tom’s
hands and arms that she described as defensive wounds.
Thomsen found that the injuries were caused by some
type of instrument. Thomsen testified that the injuries
were C-shaped and semicircular and may have been
caused by a hammer. The autopsy also confirmed a frac-
ture of the hyoid bone in the neck, but she did not find
other signs usually associated with manual strangulation
beyond neck bruising.
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Defense counsel offered the expert testimony of Dr.
Robert Bux, a forensic pathologist. Bux agrees that this
case was a homicide caused by multiple instances of blunt
force trauma. He stated that he has “never personally seen
a case like this with so much soft tissue contusion.” Tom
was “really beaten.” Bux opined that the injuries occurred
at least 24 hours prior to death, and maybe as many as 36
hours prior. He agrees that the wounds on Tom’s hands
and arms indicate that Tom was attempting to ward off
an attack.
Bux disagreed that a clawhammer was used, because
there were no circle bruises from the hammerhead, no
raking marks from the claw, and no pattern of contu-
sions consistent with the side of a hammer. He opined
that based on a lack of hemorrhaging around the hyoid
bone, the bone had been fractured during the autopsy.
He argued that the brain injuries were caused not by the
blunt force trauma but by Tom’s not breathing while still
at home. Bux also testified that Tom would have been
able to walk and talk immediately after the beating he
suffered, but that his condition would have continued to
deteriorate. Bux also opined that because of the relatively
small amounts of blood found in the home, the assaults
that caused Tom’s facial injuries likely did not occur in
the home.
Instant Messenger Chats
An investigator seized Susan’s computer and found
relevant Internet instant messenger chats. James, Susan’s
son, confirmed the messages were sent to him from Susan
under her handle “the_piglady.” On September 24, 2010,
“the_piglady” wrote in reference to Tom, “i can’t do
this . . . staying here anymore,” “i’ve come to realize i
literally hate him.” She continued, “now i wish he was
dead . . . i really hate him more than i have ever hated
ANYONE.” On February 14, “the_piglady” wrote that
“i’m looking at getting rid of tom” and “i can’t take or do
this anymore.”
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Tom’s Whereabouts
Week of His Death
Beyond testifying about Tom’s injuries while working
at the farm, Bauer testified that on the Tuesday before his
death, Tom worked a full day. Tom was bruised and had
trouble getting around. On Wednesday and Thursday, Tom
called in sick. On Thursday, Bauer drove by the house
and noticed that both vehicles owned by the DeJongs
were at the house, including Tom’s Blazer.
James testified that he had a telephone conversation
with Susan on the Thursday morning before Tom’s death.
James asked Susan what size tires were on Susan’s white
pickup truck. James testified that Susan asked someone
else in the house. James assumed that the person was Tom
and was surprised that Tom was not working. James testi-
fied that Susan did not mention in that telephone call that
Tom was in South Dakota.
Cell phone records were also introduced into evidence.
On March 8, 2011, the Tuesday before Tom’s death, there
were four calls from Susan’s cell phone to Tom’s cell
phone and the calls “hit” or “pinged” off the nearby cell
towers in the Fairbury and Hebron, Nebraska, areas. On
Wednesday and Thursday, there were calls from Tom’s
cell phone to Bauer’s cell phone. Both calls “hit” off cell
towers in the Fairbury and Hebron areas.
A lleged Mistress
The woman who Susan alleged was Tom’s mistress
also testified at trial. The woman worked as a dispatcher
for a small trucking company in South Dakota. Tom had
been a truckdriver for that company. The woman testified
that she and Tom had a working relationship only. She
never spent time with Tom socially. She never had any
type of sexual contact with Tom. She testified that she
had no reason to want to hurt Tom or Susan. The woman
testified that from March 8 to 11, 2011, she was on a trip
to Minnesota and had no contact with Tom. She testified
that she did not inflict Tom’s injuries.
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Convictions and Sentences
After deliberation, the jury found Susan guilty on
count I, murder in the first degree, and guilty on count
II, use of a deadly weapon to commit a felony. Susan
was sentenced to life imprisonment for count I and 50
to 50 years’ imprisonment on count II, to be served
consecutively.
State v. DeJong, 287 Neb. 864, 867-80, 845 N.W.2d 858, 863-
71 (2014).
Susan was represented both at trial and on direct appeal by
lawyers from the same office, the Nebraska Commission on
Public Advocacy. In our opinion on direct appeal, we restated
and summarized Susan’s assignments of error as follows:
[T]he district court erred by (1) admitting at trial the
statements she made to investigators between 3:43 to
4 a.m.; (2) admitting at trial the statements she made
to investigators after 4:18 a.m.; (3) admitting at trial
evidence of Tom’s injuries on prior occasions and her
related statements concerning the injuries, because there
was no clear and convincing evidence that she had com-
mitted a crime, wrong, or act with respect to those
injuries; and (4) admitting at trial evidence of Tom’s
injuries on prior occasions and her related statements
concerning the injuries, because the probative value of
the evidence was substantially outweighed by the danger
of unfair prejudice.
Id. at 880, 845 N.W.2d at 871-72.
With respect to Susan’s assignments of error on direct
appeal, we determined that her statements made from 3:43
to 4 a.m. should have been suppressed, but we concluded
that the error was harmless. We further determined that her
statements made after 4:18 a.m. were not required to be sup-
pressed. With respect to the evidence admitted regarding the
prior bad acts, for purposes of the direct appeal, we assumed
without deciding that the admission of the evidence was
error; however, we found the admission of the evidence to be
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harmless. Based on these determinations, we affirmed Susan’s
convictions and sentences on direct appeal.
On September 26, 2014, Susan, acting pro se, filed a
motion for postconviction relief. As we read her motion, Susan
alleged that she received ineffective assistance of counsel
because counsel failed to “investigate further” and question
more extensively numerous witnesses who testified at trial
and failed to argue on direct appeal that there was insufficient
evidence to support her convictions and sentences. Susan also
alleged, as we read her motion, that the district court erred
when it admitted evidence related to prior bad acts and other
evidence. Susan also alleged in her motion that she is actu-
ally innocent.
On December 18, 2014, the district court denied Susan’s
motion for postconviction relief without holding an eviden-
tiary hearing.
Susan appeals.
ASSIGNMENTS OF ERROR
Susan assigns, restated and consolidated, that the district
court erred when it denied her motion for postconviction relief
without holding an evidentiary hearing on her claims that (1)
she received ineffective assistance of counsel when counsel
failed to further investigate and ask questions of the witnesses
and failed to argue on direct appeal that the evidence presented
at trial was insufficient; (2) the district court improperly
admitted evidence generally and, in particular, evidence of
prior bad acts; (3) she is actually innocent; and (4) the district
court improperly denied her motion for new trial.
STANDARDS OF REVIEW
[1-3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State
v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to the questions of counsel’s
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performance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the
lower court’s decision. State v. Thorpe, supra.
[4] 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 affirma-
tively show that the defendant is entitled to no relief. State v.
Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).
[5,6] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. State v. Thorpe,
supra. When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusion. Id.
ANALYSIS
Relevant Postconviction Law.
We begin by reviewing general propositions relating to post-
conviction relief and ineffective assistance of counsel claims
before applying those propositions to the claims alleged and
argued by Susan in this appeal. We note that because Susan
was represented both at trial and on direct appeal by lawyers
from the same office, the Nebraska Commission on Public
Advocacy, this postconviction proceeding is effectively her
first opportunity to claim that her trial counsel provided inef-
fective assistance of counsel. See State v. Fox, 286 Neb. 956,
840 N.W.2d 479 (2013).
[7] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), provides
that 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.
Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015). Thus, in
a motion for postconviction relief, the defendant must allege
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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. Crawford, supra.
[8,9] 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 infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution. State v. Huston, supra. If a postconviction motion
alleges only conclusions of fact or law, or if the records and
files in the case affirmatively show that the defendant is
entitled to no relief, the court is not required to grant an evi-
dentiary hearing. Id.
[10-13] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right
to a fair trial. State v. Crawford, supra. 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. Crawford,
supra. To show prejudice under the prejudice component of
the Strickland test, the defendant must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Huston, supra. A reasonable probability
does not require that it be more likely than not that the defi-
cient 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 address the two
prongs of this test, deficient performance and prejudice, in
either order. Id.
Further Investigation and
Questioning of Witnesses.
Susan alleges that her counsel was ineffective at trial for
failing to further investigate and ask more questions of certain
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witnesses at trial, including Rebecca McClure, the nurse who
gave Susan a ride home; Dr. Craig Shumard, an emergency
room physician; Wendy Ground, a police investigator who
interviewed Susan; James Platt and Sharon Platt, Susan’s son
and daughter-in-law; and Brian Bauer, Tom’s employer. We
determine that the district court correctly rejected this claim
without an evidentiary hearing.
As we read Susan’s motion for postconviction relief and
her appellate brief, Susan argues that if trial counsel had done
further investigation or had asked more questions of these
and other witnesses on cross-examination, it would have been
shown that on the night Tom was hospitalized, Susan did not
make statements that she had injured Tom and that there was
an effort by others to keep Susan from seeing Tom. Susan
also contends that further questioning would have highlighted
inconsistencies in the witnesses’ testimony. Susan further
argues that more intensive questioning of the witnesses would
have revealed to the jury that she cared for and was concerned
for Tom and that she had a good relationship with Tom. Thus,
Susan contends that further questioning would have portrayed
her in a more sympathetic light or, in any event, cast doubt on
the degree of credibility to be accorded to the witnesses.
Susan makes no specific allegations of what further inves-
tigation would have uncovered or how such investigation and
further questioning would, with reasonable probability, have
resulted in her acquittal. Her allegations are speculative and, in
many cases, pose rhetorical “what if” questions as to how the
trial might have unfolded if the examinations had been phrased
differently or, in some cases, proposed lines of questioning.
Speculative allegations are an insufficient basis for postconvic-
tion relief. See State v. Vanderpool, 286 Neb. 111, 835 N.W.2d
52 (2013). Susan did not allege facts which, if proved, would
constitute a violation of her constitutional rights.
Accordingly, we determine that Susan’s counsel was not
deficient for allegedly failing to further investigate or ask more
questions on cross-examination of the witnesses identified in
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Susan’s motion. Susan is entitled to no relief on this claim.
The district court did not err when it denied relief on this claim
without an evidentiary hearing. We affirm this portion of the
district court’s order.
Arguing Insufficient Evidence
on Direct Appeal.
Susan alleges that her counsel was ineffective for failing to
explicitly argue on direct appeal that the evidence presented at
trial was insufficient to support her convictions for first degree
murder and use of a deadly weapon to commit a felony. As we
read her motion for postconviction relief and appellate briefs,
Susan argues that there was a lack of sufficient evidence,
because no one witnessed her kill Tom and little DNA evidence
was recovered from various items, including items found in
the search of the DeJong home. The district court correctly
rejected this claim without an evidentiary hearing.
The records and files in this case refute Susan’s contention
that there was not sufficient evidence to sustain her convic-
tions. Contrary to Susan’s argument, this court necessarily
considered the sufficiency of the evidence in our analysis of
the errors asserted on direct appeal. There was extensive evi-
dence presented at trial that demonstrated Susan’s guilt, and we
set forth the evidence against Susan in our opinion on direct
appeal by stating:
The State’s evidence demonstrated that Susan’s story
that Tom was beaten by his alleged mistress was com-
pletely fabricated. The evidence presented at trial showed
that Tom was home that week and never left for South
Dakota.
Bauer, Tom’s boss, testified that Susan’s and Tom’s
vehicles were at the DeJong home the day before Tom
allegedly returned from South Dakota. Bauer testified
that Tom had called in sick to work on that Wednesday
and Thursday. Cell phone records confirm that those
calls “pinged” off cell towers near the DeJong home and
not in South Dakota. Susan’s son, James, testified that
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he believed Tom was at the DeJong home on Thursday
because of a telephone conversation he had with Susan
that day. At trial, Susan presented no evidence that Tom
had actually gone to South Dakota. Additionally, the
alleged mistress testified that she and Tom never had an
extramarital relationship, that Tom did not visit her that
week, and that she did not cause his injuries.
Other evidence demonstrates Susan’s motive for kill-
ing Tom. During her hospital interview, Susan ranted
about Tom and his “whore.” Susan alleged that Tom and
that “whore” used drugs and molested children. Susan
blamed the “whore” for ruining her relationship with
Tom. Additionally, the State introduced Susan’s Internet
instant messages in which Susan stated that she “hate[d]”
Tom, that she wished he were dead, and that she was
“looking at getting rid of” him.
The evidence at trial also showed that Susan may
have been the only person with the opportunity to inflict
Tom’s injuries. The medical testimony offered at trial
established that many of Tom’s injuries were inflicted
well within 72 hours of his death. That indicates that
Tom’s injuries may have occurred any time after Tuesday.
The evidence indicates that during those periods of time,
Tom was at home with Susan. There was no evidence
presented, other than Susan’s fabricated statements about
South Dakota, that Tom left the home on Wednesday,
Thursday, or Friday. There was no evidence presented
that someone other than Susan had spent time with Tom
after Tuesday.
The physical evidence also supported Susan’s guilt.
All of the medical experts testified that Tom was severely
assaulted and that his injuries were not caused natu-
rally or by accident. His death was caused by blunt
force trauma. Tom had defensive wounds on his hands
and arms. Droplets of blood were found throughout the
house, including on Susan’s clothes. A red bag containing
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women’s clothes, men’s pajamas, Tom’s wallet, and two
hammers and a blue bag containing a computer, a lug
wrench, and a cell phone were found in Susan’s truck.
Thomsen, the pathologist who performed Tom’s autopsy,
testified that the injuries to Tom’s body were caused by
some type of instrument and that the instrument could
have been a hammer. After the interrogation, photographs
and testimony established that Susan had bruises and
sores on her palms that would be consistent with swing-
ing a hammer. The bloodstained blue hammer recovered
in Susan’s truck had a mixture of Tom’s and Susan’s
DNA. Susan’s DNA was found on the handle. Tom’s
DNA was found on the head of the hammer.
State v. DeJong, 287 Neb. 864, 885-86, 845 N.W.2d 858, 875-
76 (2014).
We have reviewed the record in this case, and given the
extensive evidence presented at trial against Susan, we deter-
mine that the records and files in this case affirmatively show
that Susan was entitled to no relief on her claim that there
was insufficient evidence to support her convictions and that
counsel’s appellate argument failed to present the issue for
our consideration. In connection with this contention, Susan
has failed to suggest any facts which, if proved, constitute an
infringement on her constitutional rights. The record shows
that Susan was not prejudiced by counsel’s conduct on direct
appeal, and therefore, the district court did not err when it
denied relief on this claim without an evidentiary hearing. We
affirm this portion of the district court’s order.
Admission of Evidence Related
to Prior Bad Acts.
Susan alleges that the district court erred at trial when it
admitted evidence of prior bad acts, including evidence of
Tom’s injuries on prior occasions and Susan’s statements
related to those injuries. As we read her motion for postcon-
viction relief and her appellate briefs, Susan contends that
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this error resulted in a violation of her constitutional rights
of due process, the presumption of innocence, her right to a
fair trial, and her right to privacy. The district court correctly
rejected her claim without an evidentiary hearing.
[14-16] To the extent Susan alleges that her constitutional
rights of due process, the presumption of innocence, her right
to a fair trial, and her right to privacy were violated when the
evidence related to the prior bad acts was admitted at trial,
this claim is procedurally barred. We have stated that the need
for finality in the criminal process requires that a defendant
bring all claims for relief at the first opportunity. State v.
Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012). It is funda-
mental that 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. Id. And in
this case, the prior bad acts issues were both known to and
litigated by Susan on direct appeal. We have recently stated:
“A motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on
direct appeal, no matter how those issues may be phrased or
rephrased.” State v. Thorpe, 290 Neb. 149, 156, 858 N.W.2d
880, 887 (2015).
The issue of the admission at trial of evidence related to
the prior bad acts was specifically addressed on direct appeal,
where Susan argued that the district court erred when it admit-
ted evidence of Tom’s injuries on prior occasions and her state-
ments related to those injuries. For the purposes of the direct
appeal, we assumed, without deciding, that the admission of
this evidence was error. However, we determined that the erro-
neous admission of the evidence was harmless.
In the direct appeal, we began our harmless error analysis
by “noting that the untainted, relevant evidence strongly sup-
ports Susan’s guilt.” State v. DeJong, 287 Neb. 864, 895, 845
N.W.2d 858, 882 (2014). We further stated that “the untainted
evidence not only provided evidence of guilt but also estab-
lished Susan’s motive, her intent, her identity as the killer,
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and the absence of mistake in Tom’s death.” Id. at 896, 845
N.W.2d at 882. We also stated that “there is cumulative evi-
dence establishing that Tom was often injured prior to his
death and that the likely perpetrator was Susan.” Id. at 895-
96, 845 N.W.2d at 882. Accordingly, in determining that the
admission of the evidence regarding the prior bad acts was
harmless, we stated:
When viewed in relation to the whole record, the evi-
dence erroneously admitted at the rule 404 hearing was
insignificant. This evidence did not provide a crucial
link to allow the State to make its case. In that sense,
the evidence admitted at the rule 404 hearing was largely
unnecessary. Thus, we hold that the erroneously admitted
evidence was insignificant and did not materially influ-
ence the jury’s verdicts. Any error was harmless.
State v. DeJong, 287 Neb. at 897, 845 N.W.2d at 882-83.
Because the issue of the admission at trial of evidence related
to the prior bad acts was raised and addressed on direct appeal,
this claim is now procedurally barred. Therefore, although
Susan rephrases her claim for postconviction purposes, we
determine that the district court did not err when it denied post-
conviction relief on this claim without an evidentiary hearing.
We affirm this portion of the district court’s order.
Actual Innocence.
Susan alleges that the district court erred when it denied her
motion for postconviction relief without an evidentiary hear-
ing, because she is actually innocent. The district court cor-
rectly rejected her claim without an evidentiary hearing.
[17,18] We have previously acknowledged the possibility
that a postconviction motion asserting a persuasive claim of
actual innocence might allege a constitutional violation, in
that such a claim could arguably amount to a violation of a
movant’s procedural or substantive due process rights. State
v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). However, in
order to trigger a court’s consideration of whether continued
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incarceration could give rise to a constitutional claim that can
be raised in a postconviction motion, there must be “‘[a] strong
demonstration of actual innocence’” “‘because after a fair
trial and conviction, a defendant’s presumption of innocence
disappears.’” Id. at 94, 834 N.W.2d at 791, quoting State v.
Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). Indeed, the
U.S. Supreme Court has held that the threshold is “‘extraor-
dinarily high.’” Id. at 94, 834 N.W.2d at 791-92, quoting
Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed.
2d 203 (1993).
In support of her claim that she is actually innocent, Susan
relies heavily on the assertion that there were no direct wit-
nesses to Tom’s murder. She states that “[n]o one ever wit-
nessed anything, verbally or physically, to prove absolutely
without a doubt” that she murdered Tom. Brief for appellant at
6. Susan also argues that there was insufficient DNA or other
physical evidence found in various locations, including the
DeJong home, to link her to Tom’s murder.
Although there were no direct witnesses to Tom’s murder,
when viewed in the light of the extensive evidence adduced at
trial as summarized in our opinion on direct appeal and quoted
above, Susan’s allegations fall well short of the “extraordi-
narily high” threshold showing of actual innocence which
she would be required to make before a court could consider
whether her continued incarceration would give rise to a con-
stitutional claim. Susan did not allege facts sufficient to neces-
sitate an evidentiary hearing. Therefore, we determine that
the district court did not err when it denied relief without an
evidentiary hearing on this claim. We affirm this portion of the
district court’s order.
Denial of Motion for New Trial.
Susan assigns as error that the district court erred when
it denied her motion for new trial. We determine that the
district court correctly denied this claim without an eviden-
tiary hearing.
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The record belies Susan’s allegation. The record establishes
that Susan withdrew her motion for new trial at the time of sen-
tencing. Accordingly, the district court did not deny her motion
for new trial. We determine that the district court did not err
when it denied relief on this claim without an evidentiary hear-
ing. We affirm this portion of the district court’s order.
Admission of Other Evidence and Other
Claims of Postconviction Relief.
Susan argues on appeal that certain evidence should not
have been admitted at trial, such as items located during
searches, including the search of the vehicle and home. She
also makes allegations in her postconviction motion regard-
ing other evidence she asserts is objectionable, but, other
than listing a catalog of constitutional provisions, she does
not necessarily direct our attention to specific constitutional
errors regarding these claims on appeal. Her allegations of
conclusions do not require an evidentiary hearing. See State
v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). We have
reviewed her motion and have determined that her claims
either are speculative and fail to affirmatively show that she is
entitled to relief or are refuted by the record and files in this
case. See id. Accordingly, we determine that Susan did not
allege facts sufficient to necessitate an evidentiary hearing,
and the district court did not err when it denied postconviction
relief without an evidentiary hearing.
CONCLUSION
We find no merit to Susan’s assignments of error. Therefore,
we determine that the district court did not err when it denied
her motion for postconviction relief without an eviden-
tiary hearing.
A ffirmed.