State v. Robinson ( 2014 )

Nebraska Advance Sheets
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chapter 76 apply. This determination of law controls the out-
come of this case, and we therefore determine that the district
court did not err when it denied SourceGas Distribution’s
motion for temporary injunction and dismissed its complaint.
Affirmed.
State of Nebraska, appellee, v.
Danny R. Robinson, Jr., appellant.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-306.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. 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 indepen-
dently of the lower court’s decision.
4. 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 order as to the claims denied without a hearing.
5. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), 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 constitutional rights such that the judgment was
void or voidable.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
of counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
7. 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. A court may address the two prongs of this
test, deficient performance and prejudice, in either order.
8. Effectiveness of Counsel: Proof: Words and Phrases. In addressing the “preju-
dice” component of the test in Strickland v. Washington, 466 U.S. 668, 104 S.
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Ct. 2052, 80 L. Ed. 2d 674 (1984), a court focuses on whether a trial counsel’s
deficient performance renders the result of the trial unreliable or the proceed-
ing fundamentally unfair. To show prejudice under the prejudice component
of the Strickland test, there must be a reasonable probability that but for the
deficient performance, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.
9. Trial: Effectiveness of Counsel: Witnesses. The decision to call, or not to call,
a particular witness, made by counsel as a matter of trial strategy, even if that
choice proves unproductive, will not, without more, sustain a finding of ineffec-
tiveness of counsel.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Michael J. Wilson and Jessica P. Douglas, of Schaefer
Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Danny R. Robinson, Jr., appeals the February 18, 2010,
order of the district court for Douglas County in which the
court denied his motion for postconviction relief after holding
an evidentiary hearing. The evidence received at the hearing
pertained to Robinson’s allegation that he had received ineffec-
tive assistance of counsel. Robinson sought relief with respect
to his convictions for first degree murder, use of a deadly
weapon to commit a felony, and possession of a deadly weapon
by a felon. We affirm the denial of Robinson’s motion for post-
conviction relief.
STATEMENT OF FACTS
Robinson was convicted of first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a felon in connection with the 2001 shooting death
of Daniel Lockett. The theory of the State’s case was that
Lockett was murdered in retaliation for the previous murder
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of Terez Reed and that Lockett was shot by two individ­
uals, Robinson and Dupree Reed. The theories of the defense
included the assertion that Terrell Reed and not Robinson was
one of the shooters. Robinson was sentenced to life impris-
onment without parole on the murder conviction and to two
consecutive sentences of 5 to 10 years’ imprisonment on the
use and possession convictions. On direct appeal, we affirmed
Robinson’s convictions on all three counts and his sentences
for the use and possession convictions. But because the “with-
out parole” feature of the murder sentence was not authorized
by statute, we vacated the sentence of life imprisonment “with-
out parole” on the murder conviction and remanded the cause
with directions to the trial court to resentence Robinson to life
imprisonment. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006). A further description of the evidence surrounding
the shooting of Lockett is detailed in our opinion on direct
appeal. See id.
In March 2008, Robinson filed a motion for postconvic-
tion relief in which he made numerous claims of ineffective
assistance of trial counsel. The State moved the court to deny
postconviction relief without an evidentiary hearing. After a
hearing on the State’s motion, the court entered an order on
March 16, 2009, in which it denied some of Robinson’s claims
without an evidentiary hearing but granted an evidentiary hear-
ing with respect to other claims. Robinson did not timely file
a notice of appeal from the denial of claims contained in the
March 16 order.
The denial of claims in the March 16, 2009, order was based
on the district court’s determinations that the claims were mere
conclusions of fact or law, were unsupported by the record,
failed to allege how the outcome of the trial would have been
different, or failed to allege how they constituted a denial of
Robinson’s constitutional rights. The court described those
claims that it was denying without an evidentiary hearing as
claims that trial counsel was ineffective with regard to (1)
evidence related to gang affiliation and change of venue, (2)
admission of shell casings, (3) jury selection, (4) admission of
photographs, (5) statements of a witness regarding a potential
alternate suspect, (6) evidence of an arson and a trip to Texas,
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(7) records of a telephone conversation, (8) criminal history
of a codefendant, and (9) statements of the prosecutor during
closing arguments.
In the March 16, 2009, order, the court granted an eviden-
tiary hearing limited to certain other issues. It described those
issues as claims that trial counsel provided ineffective assist­
ance because counsel (1) did not allow Robinson to testify in
his own defense and (2) did not call certain specified persons
as witnesses.
A hearing on these issues was held on December 11, 2009.
At the hearing, the court received into evidence the deposi-
tions of Robinson and Robinson’s trial counsel; the court also
took notice of the file and transcript of Robinson’s trial. The
court filed an order on February 18, 2010, in which it denied
these claims for postconviction relief. The court concluded
Robinson had failed to show that counsel’s performance was
deficient. The court also stated that even if deficient per-
formance had been proved, Robinson had failed to estab-
lish prejudice.
With regard to Robinson’s claim that trial counsel provided
ineffective assistance when counsel did not allow Robinson
to testify in his own defense, the postconviction court noted a
conflict between Robinson’s deposition testimony and his trial
counsel’s deposition testimony. Robinson stated that he told his
counsel on two or three occasions that he wanted to testify at
trial but that counsel never visited Robinson to discuss whether
or not he should testify. Counsel stated to the contrary and
provided some details. Counsel testified that he had visited
Robinson in jail a number of times prior to trial; that he had
explained to Robinson he had the right to testify at trial; that
as part of trial strategy, he advised Robinson not to testify; and
that it was ultimately Robinson’s decision not to testify. The
postconviction court found counsel’s recollection to be more
persuasive and concluded that Robinson had failed to prove
that counsel’s performance was deficient.
With regard to Robinson’s claim that trial counsel pro-
vided ineffective assistance when counsel failed to call several
people as witnesses, the postconviction court noted that, with
respect to each of the nine witnesses identified by Robinson,
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trial counsel in his deposition had provided an “explanation
as to each and every one of them, why he decided, in his best
judgment, not to call them.” The court determined that counsel
had “provided more than a satisfactory explanation as to the
reasons in his considered judgment he elected not to call these
witnesses.” The court concluded that, because trial counsel
decided not to call each of the witnesses as a matter of trial
strategy or because the witnesses’ testimony would have been
inadmissible or cumulative, Robinson failed to show that coun-
sel’s performance was deficient.
Having reviewed the files and record, the postconviction
court further concluded that even if deficient performance
had been shown, Robinson had failed to show any prejudice
resulting from counsel’s alleged deficient performance. In its
February 18, 2010, order, the court noted this court’s opinion
in the direct appeal in which we referred to testimony by wit-
nesses that amply supported Robinson’s convictions, thus com-
porting with its view that Robinson was not prejudiced by trial
counsel’s purported failure to call these witnesses.
On May 4, 2011, Robinson filed a pro se motion that he
titled as a second motion for postconviction relief. In the
motion, he alleged, inter alia, that he was denied his right to
appeal the February 18, 2010, order denying his first motion for
postconviction relief because of the official negligence of the
clerk of the district court. By this pleading, Robinson in effect
sought reinstatement of his appeal. The district court denied
Robinson’s second motion for postconviction relief because it
reasoned that a postconviction action was not the appropriate
vehicle to request a reinstatement of the appeal from the denial
of an earlier postconviction motion.
Robinson appealed the denial of his second motion for
postconviction relief to this court. In a memorandum opin-
ion filed November 26, 2012, in case No. S-11-1112, we
determined that although Robinson’s motion was titled as a
postconviction action, it included a request for reinstatement
of his appeal due to official negligence, a claim cognizable
under Nebraska law. We concluded that the district court erred
when it did not consider Robinson’s motion as one seeking to
reinstate his appeal. We therefore reversed the denial of the
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motion and remanded the cause to the district court to con-
sider the motion.
On remand and following an evidentiary hearing, the district
court on April 1, 2013, found that Robinson’s notice of appeal
from the February 18, 2010, order had been lost due to official
negligence and not due to Robinson’s actions. Therefore, under
its nunc pro tunc power, the court reinstated the appeal from
the district court’s February 18 order.
This is Robinson’s appeal from the February 18, 2010, order
in which the district court denied his first motion for postcon-
viction relief after an evidentiary hearing.
ASSIGNMENTS OF ERROR
Robinson claims that the district court erred when it rejected
certain of his claims of ineffective assistance of counsel and
that the cumulative effect of the asserted instances of ineffec-
tive assistance resulted in a trial that was not fair.
Robinson specifies certain claims with respect to which
the court erred. Two of the claims were claims that the court
denied without an evidentiary hearing in the March 16, 2009,
order; they were the claims that counsel was ineffective with
respect to (1) the statements of a witness regarding a potential
alternate suspect and (2) statements of the prosecutor during
closing arguments. The remaining assignments of error pertain
to claims that the court considered at the evidentiary hearing
and rejected in the February 18, 2010, order; they were claims
that counsel was ineffective for failing to call five certain
witnesses. Robinson does not appeal the district court rulings
in its February 18 order regarding four other witnesses or
regarding trial counsel’s purported failure to permit Robinson
to testify.
STANDARDS OF REVIEW
[1,2] An appellate court determines a jurisdictional question
that does not involve a factual dispute as a matter of law. State
v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). In appeals
from postconviction proceedings, we independently resolve
questions of law. State v. Edwards, 284 Neb. 382, 821 N.W.2d
680 (2012).
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[3] A claim that defense counsel provided ineffective assist­
ance presents a mixed question of law and fact. Timmens,
supra. 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 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 indepen-
dently of the lower court’s decision. Timmens, supra.
ANALYSIS
Robinson Did Not Timely Appeal the March 16, 2009,
Order in Which the Court Denied Certain Claims
Without an Evidentiary Hearing; We Therefore Do
Not Consider Robinson’s Assignments of Error
Related to Those Claims in This Appeal.
We first note that two of the claims to which Robinson
assigns error in this appeal were among those claims the dis-
trict court denied without an evidentiary hearing in its March
16, 2009, order. The claims denied without an evidentiary
hearing in the March 16 order included the claims that counsel
was ineffective with respect to (1) the statements of a witness
regarding a potential alternate suspect and (2) statements of
the prosecutor during closing arguments. Robinson did not file
a notice of appeal within 30 days after March 16 with respect
to the denial of these two claims, and as a result, we do not
review the assignments of error related to the denial of these
two claims in this appeal.
[4] We have stated that within a postconviction proceeding,
an order granting an evidentiary hearing on some issues and
denying a hearing on others is a final order as to the claims
denied without a hearing. State v. Alfredson, ante p. 477, ___
N.W.2d ___ (2014); Timmens, supra. An order denying an evi-
dentiary hearing on a postconviction claim is a final judgment
as to that claim, and under Neb. Rev. Stat. § 25-1912 (Reissue
2008), a notice of appeal must be filed with regard to such a
claim within 30 days.
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We note that in his request for reinstatement of his appeal,
Robinson made no assertion that he attempted to file a notice
of appeal from the March 16, 2009, order or that such a notice
was lost due to official negligence. Robinson’s request for rein-
statement of appeal due to official negligence, and the relief
granted by the district court upon such request after remand
in the form of the present appeal, related only to the notice of
appeal from the February 18, 2010, order. Our jurisdiction in
this appeal extends only to those assignments of error related
to claims that were denied in the February 18 order.
We do not have jurisdiction in this appeal to consider assign-
ments of error related to claims involving a witness regarding
a potential alternate suspect or statements of the prosecutor
during closing, which claims were denied without an eviden-
tiary hearing in the March 16, 2009, order from which a timely
appeal was not sought.
The District Court Did Not Err When It Denied
Other Claims After an Evidentiary Hearing.
The remaining claims with regard to which Robinson assigns
error in this appeal were denied in the February 18, 2010, order
following the evidentiary hearing. We have jurisdiction to con-
sider those claims in this appeal. Following our independent
review, we conclude that the district court did not err when it
concluded that the claims were without merit, and we therefore
affirm the February 18 order denying Robinson’s claims for
postconviction relief.
As an initial matter, we note that Robinson does not assign
error to the denial of certain claims in the February 18, 2010,
order following the evidentiary hearing. The claims regard-
ing which Robinson does not assign error include the claim
that counsel was ineffective for failing to present Robinson’s
testimony in his own defense. In addition, Robinson does not
assign error with respect to certain of the witnesses that he
claimed counsel was ineffective for failing to call.
[5,6] Robinson sought postconviction relief with respect to
his claims of ineffective assistance of counsel. The Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue
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2008), 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
constitutional rights such that the judgment was void or void-
able. State v. Molina, 279 Neb. 405, 778 N.W.2d 713 (2010);
State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009). A proper
ineffective assistance of counsel claim alleges a violation of
the fundamental constitutional right to a fair trial. See State v.
Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).
[7,8] 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 defend­
ant’s defense. Robinson, supra. A court may address the two
prongs of this test, deficient performance and prejudice, in
either order. Id. In addressing the “prejudice” component of
the Strickland test, a court focuses on whether a trial counsel’s
deficient performance renders the result of the trial unreli-
able or the proceeding fundamentally unfair. Robinson, supra.
To show prejudice under the prejudice component of the
Strickland test, there must be a reasonable probability that
but for the deficient performance, the result of the proceeding
would have been different. See Robinson, supra. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. Id.
Although Robinson alleged that counsel was ineffective
for failing to call nine witnesses, on appeal, he assigns error
with regard to the district court’s rulings as to only five wit-
nesses: Darrell Kellogg; Antone Green; Keelan Washington;
Denesha Lockett; and Jasmine Harris. The testimonies of these
five witnesses would have included tangential matters, such
as whether a possible witness was fearful of testifying, and
nonrelevant matters, such as the whereabouts of an individual
on the night of the shooting when said individual did not tes-
tify at trial. With respect to each of the five witnesses, trial
counsel explained at the evidentiary hearing why calling each
of the witnesses would not have served trial strategy. Counsel
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explained that each witness’ proposed testimony was either not
germane or not important or became unnecessary because of
trial developments.
[9] We have stated that the decision to call, or not to call, a
particular witness, made by counsel as a matter of trial strat-
egy, even if that choice proves unproductive, will not, without
more, sustain a finding of ineffectiveness of counsel. State v.
Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009) (quoting State
v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994)). Because
counsel in this case gave meaningful reasons why the specific
witnesses did not serve trial strategy, following our indepen-
dent review, we agree with the district court’s conclusion that
Robinson did not show deficient performance.
With respect to prejudice, the district court concluded that
Robinson did not establish the second prong of the Strickland
test, because he could not show prejudice from counsel’s pur-
ported failure to call the specified witnesses. To show prejudice
under the Strickland test, the defendant must show a reasonable
probability that but for the alleged deficient performance, the
result of the proceeding would have been different. See State
v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013). Following
our independent review, we agree with the district court that
Robinson did not show prejudice.
In Robinson’s direct appeal, following our evaluation of
certain evidentiary rulings which we determined were error,
we conducted a harmless error review and concluded that the
guilty verdicts against Robinson were surely unattributable to
the erroneous rulings. State v. Robinson, 271 Neb. 698, 715
N.W.2d 531 (2006). The theory of the State’s case against
Robinson was that there were two shooters, one of whom was
Robinson, and that after the crimes, Robinson fled to Texas
in a green Chevrolet Tahoe, where the vehicle was destroyed.
In our opinion on direct appeal, we stated that “[t]he State’s
case was largely based upon . . . three witnesses who testified
about the shooting.” Robinson, 271 Neb. at 731, 715 N.W.2d at
560. The testimony of these witnesses, which was apparently
deemed credible by the jury, supported the State’s theory of the
case and Robinson’s convictions.
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In our opinion on Robinson’s direct appeal, we summarized
the testimony of these three witnesses and other evidence
as follows:
Dupree Reed testified that he participated directly in the
shooting by firing his .22-caliber automatic pistol into
the house in which Daniel Lockett was shot. He testi-
fied that Robinson had stated he thought Gary Lockett
murdered Terez Reed. Dupree Reed testified that he and
Robinson had driven in Robinson’s green Tahoe to a
residence where Robinson thought Gary Lockett would
be present and that Robinson shot through the window
of the house.
Courtney Nelson testified regarding the incident.
Nelson said Robinson told him that he thought Gary
Lockett killed Terez Reed and that Gary Lockett was
affiliated with a rival gang. When Robinson got in the
Tahoe to leave the funeral reception, Nelson saw him
pull out a 9-mm pistol. James Edwards also testified to
his observations of Robinson on the night Daniel Lockett
was shot. After Robinson and Dupree Reed fired their
guns into the residence, Edwards saw Robinson return to
the Tahoe with his 9-mm pistol, and the appearance of the
weapon indicated that all rounds had been fired.
Nelson further testified that after Daniel Lockett’s mur-
der, Robinson stated he was taking the Tahoe to Kansas or
Texas to “get rid of the truck.” A police officer in Kansas
City observed Robinson getting off a bus from Houston
and Robinson told the officer he was returning to Omaha.
Evidence also showed that a green Tahoe belonging to
Robinson’s grandmother was found destroyed in a vacant
field in Houston.
Robinson, 271 Neb. at 731-32, 715 N.W.2d at 560-61.
In the present appeal from the denial of postconviction
relief, we again reviewed the record, which includes the fore-
going evidence. Although our review in this postconviction
case differs from our harmless error review on direct appeal,
we nevertheless again find Robinson’s arguments unavailing.
Given the powerful direct evidence that we summarized in
the direct appeal and have repeated above, we conclude that
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Robinson did not show a reasonable probability that the pur-
ported testimony of the five witnesses trial counsel allegedly
failed to call would have caused a different result at the trial.
Robinson therefore did not show prejudice from counsel’s
alleged deficient performance in this postconviction appeal.
We further note that Robinson contends that the cumula-
tive result of the alleged instances of ineffective assistance
of counsel resulted in an unfair trial requiring postconviction
relief. However, because we conclude that each of Robinson’s
individual claims was without merit, we further conclude that
the cumulative effect of such claims did not result in an unfair
trial and does not merit postconviction relief.
CONCLUSION
We determine that, because Robinson failed to take a
timely appeal, we lack jurisdiction in this appeal to consider
Robinson’s assignments of error related to claims which the
district court denied without an evidentiary hearing in the order
entered March 16, 2009. With regard to Robinson’s assign-
ments of error related to claims which the district court denied
after an evidentiary hearing in the order entered February 18,
2010, following our independent review, we conclude that the
district court did not err when it concluded that such claims
were without merit and denied Robinson’s motion for postcon-
viction relief.
Affirmed.
Heavican, C.J., participating on briefs.
Jeremiah J., appellee, v.
Dakota D., appellant.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-478.
1. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
2. Adoption: Appeal and Error. Appeals in adoption proceedings are reviewed by
an appellate court for error appearing on the record.