State v. Fuentes , 302 Neb. 919 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/31/2019 08:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. FUENTES
    Cite as 
    302 Neb. 919
    State of Nebraska, appellee, v.
    Timothy L. Fuentes, appellant.
    ___ N.W.2d ___
    Filed April 19, 2019.    No. S-18-122.
    1. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
    ing on a motion for postconviction relief, the trial judge, as the trier
    of fact, resolves conflicts in the evidence and questions of fact. An
    appellate court upholds the trial court’s factual findings unless they are
    clearly erroneous.
    2. Effectiveness of Counsel. A claim that defense counsel provided inef-
    fective assistance presents a mixed question of law and fact.
    3. Effectiveness of Counsel: Appeal and Error. 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
    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 independently of the lower court’s
    conclusion.
    4. Constitutional Law: Due Process: Trial: Judges. The right to an
    impartial judge is guaranteed under the Due Process Clauses of the U.S.
    and Nebraska Constitutions, the parameters of which are coextensive.
    5. Constitutional Law: Trial: Judges: Proof. In order to show a consti-
    tutional violation of the right to an impartial judge, a defendant must
    prove actual bias or structural error.
    6. Trial: Judges: Words and Phrases. Structural error occurs when the
    defendant shows that a judge has such a strong personal or financial
    interest in the outcome of the trial that he or she was unable to hold the
    proper balance between the State and the accused.
    7. Postconviction: Trial: Presumptions: Appeal and Error. Although
    structural error requires automatic dismissal if brought on direct appeal,
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    STATE v. FUENTES
    Cite as 
    302 Neb. 919
    not all structural error will result in a presumption of prejudice when
    raised in a motion for postconviction relief.
    8.    Judges: Recusal. Instances in which the judge’s impartiality might
    reasonably be questioned specifically include where the judge has a
    personal bias or prejudice concerning a party or a party’s lawyer.
    9.    Judges: Recusal: Presumptions. A defendant seeking to disqualify a
    judge on the basis of bias or prejudice bears the heavy burden of over-
    coming the presumption of judicial impartiality.
    10.    Constitutional Law: Identification Procedures: Due Process. An
    identification procedure is constitutionally invalid only when it is so
    unnecessarily suggestive and conducive to an irreparably mistaken iden-
    tification that a defendant is denied due process of law.
    11.    Identification Procedures. Whether identification procedures were
    unduly suggestive and conducive to a substantial likelihood of irrepa-
    rable mistaken identification is to be determined by a consideration of
    the totality of the circumstances surrounding the procedures.
    12.    ____. The factors to be considered in determining whether identifica-
    tion procedures were unduly suggestive and conducive to a substantial
    likelihood of irreparable mistaken identification are the opportunity of
    the witness to view the criminal at the time of the crime, the witness’
    degree of attention, the accuracy of the witness’ prior description of the
    criminal, the level of certainty demonstrated by the witness, and the
    length of time between the crime and the identification.
    Appeal from the District Court for Scotts Bluff County:
    A ndrea D. Miller, Judge. Affirmed.
    Leonard G. Tabor for appellant.
    Douglas J. Peterson, Attorney General, Erin E. Tangeman,
    Derek Bral, Senior Certified Law Student, and, on brief, Sarah
    E. Marfisi for appellant.
    Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ.
    Heavican, C.J.
    INTRODUCTION
    Timothy L. Fuentes was convicted of third degree sexual
    assault of a child, second offense, and sentenced to 50 to
    50 years’ imprisonment. His conviction and sentence were
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    STATE v. FUENTES
    Cite as 
    302 Neb. 919
    affirmed on direct appeal. Fuentes filed a motion seeking
    postconviction relief. Following an evidentiary hearing,
    the district court denied Fuentes’ motion. He appeals. We
    affirm.
    FACTUAL BACKGROUND
    The facts leading to Fuentes’ conviction show that on
    August 21, 2012, Fuentes visited the upstairs apartment of a
    converted house. The victim, Analicia B., was outside of the
    house at the time of Fuentes’ visit. Analicia’s family lived in
    the basement apartment of the same house. Analicia testified
    that Fuentes arrived at the home while her stepfather, Gabriel
    T., had been outside. Analicia further testified that Fuentes
    went into the upstairs apartment and that Gabriel went into the
    basement apartment, leaving Analicia and her sister outside.
    Fuentes left the upstairs apartment approximately 5 minutes
    later, while Gabriel was still in the basement apartment.
    Analicia testified that as he left, Fuentes “slid his finger” of
    his right hand up and then sideways on Analicia’s genital area
    over her clothing.
    Analicia immediately reported the touching to her par-
    ents, and law enforcement was contacted. A few days later,
    Analicia identified Fuentes out of a photographic array (photo
    array) that included photographs of Fuentes and five other
    individuals.
    Fuentes was charged with third degree sexual assault of a
    child. A first jury trial ended in a mistrial because of a dead-
    locked jury; Fuentes was convicted following the second trial.
    His conviction and sentence were affirmed on direct appeal in
    a memorandum opinion filed by the Nebraska Court of Appeals
    on February 26, 2014, in case No. A-13-340.
    Fuentes subsequently filed a pro se motion seeking post-
    conviction relief. Fuentes was represented by an attorney from
    the Scotts Bluff County public defender’s office at trial and on
    direct appeal, and he is represented by appointed counsel in
    this appeal. Fuentes asserts that trial counsel was ineffective
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    at trial and on appeal by failing to (1) argue ineffective assist­
    ance of counsel on direct appeal; (2) file a motion to suppress
    statements; (3) file a motion to recuse the trial judge; (4) file
    a motion in limine; (5) file a motion to suppress the photo
    array; (6) investigate and depose Analicia, an unknown adult,
    and Gabriel; (7) object to jury instructions Nos. 1 and 5; (8)
    object to exhibit 5; (9) object to the testimony of DelMaria
    B., Analicia’s mother; and (10) file a motion to dismiss at the
    conclusion of the State’s evidence.
    Because the trial judge had retired, a new district court
    judge was appointed. Following an evidentiary hearing, the
    district court denied Fuentes’ motion for postconviction relief.
    Fuentes appeals.
    ASSIGNMENT OF ERROR
    Fuentes assigns that the district court erred in denying his
    motion for postconviction relief.
    STANDARD OF REVIEW
    [1] In an evidentiary hearing on a motion for postcon-
    viction relief, the trial judge, as the trier of fact, resolves
    conflicts in the evidence and questions of fact. An appellate
    court upholds the trial court’s factual findings unless they are
    clearly erroneous.1
    [2,3] A claim that defense counsel provided ineffective
    assistance presents a mixed question of law and fact.2 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 questions of counsel’s perform­
    ance or prejudice to the defendant as part of the two-pronged
    test articulated in Strickland v. Washington,3 an appellate court
    1
    State v. Huston, 
    302 Neb. 202
    , 
    922 N.W.2d 723
    (2019).
    2
    
    Id. 3 Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
        (1984).
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    reviews such legal determinations independently of the lower
    court’s conclusion.4
    ANALYSIS
    Fuentes contends on appeal that the district court erred
    in denying his motion for postconviction relief and asserts
    various grounds in support of his assignment of error. Fuentes
    argues that counsel was ineffective in failing to (1) file a
    motion to suppress the photo array and out-of-court identi-
    fication of Fuentes, (2) investigate and depose a clerk at the
    liquor store next door to the victim’s residence at the time
    of the alleged sexual assault, (3) investigate and depose an
    acquaintance of Fuentes who was at the liquor store the day of
    the incident, (4) investigate and depose a coworker of Fuentes,
    (5) investigate and depose the unknown male witness at the
    time of the sexual assault, (6) raise an intoxication defense, (7)
    seek the recusal of the district court judge, (8) have Fuentes
    take a polygraph examination, (9) engage in plea negotiations
    or communicate plea offers from the State to Fuentes, and
    (10) adequately explore inaccuracies in the testimony of sev-
    eral witnesses.
    Several of these assignments of error can be rejected because
    they were not raised in Fuentes’ motion. The motion does not
    raise an ineffectiveness claim with respect to three witnesses—
    the liquor store clerk, Fuentes’ acquaintance, or his coworker.
    Nor does that motion assert ineffectiveness with regard to
    the failure to raise the intoxication defense, seek a polygraph
    examination, engage in plea negotiations, or communicate
    plea deals. As such, we turn to the arguments both raised in
    Fuentes’ motion and preserved on appeal.
    Failure to Seek Recusal of
    District Court Judge.
    Fuentes contends that the trial judge should have recused
    himself, because the judge assigned to his case had previously
    4
    Huston, supra note 1.
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    represented him on a criminal matter in 1995. Fuentes further
    contends that trial counsel was ineffective for not seeking
    such recusal.
    [4-7] The right to an impartial judge is guaranteed under the
    Due Process Clauses of the U.S. and Nebraska Constitutions,
    the parameters of which are coextensive.5 In order to show a
    constitutional violation of the right to an impartial judge, a
    defendant must prove actual bias or structural error.6 Structural
    error occurs when the defendant shows that a judge has such
    a strong personal or financial interest in the outcome of the
    trial that he or she was unable to hold the proper balance
    between the State and the accused.7 Although structural error
    requires automatic dismissal if brought on direct appeal, not all
    structural error will result in a presumption of prejudice when
    raised in a motion for postconviction relief.8
    [8,9] In addition to the constitutional right to an impartial
    judge, the Nebraska Revised Code of Judicial Conduct states
    that a judge must recuse himself or herself from a case if the
    judge’s impartiality might reasonably be questioned.9 Under
    the code, such instances in which the judge’s impartiality
    might reasonably be questioned specifically include where
    “‘“[t]he judge has a personal bias or prejudice concerning
    a party or a party’s lawyer . . . .”’”10 However, a defendant
    seeking to disqualify a judge on the basis of bias or prejudice
    bears the heavy burden of overcoming the presumption of judi-
    cial impartiality.11
    5
    State v. Thomas, 
    268 Neb. 570
    , 
    685 N.W.2d 69
    (2004).
    6
    
    Id. 7 Id.
     8
    See Weaver v. Massachusetts, ___ U.S. ___, 
    137 S. Ct. 1899
    , 
    198 L. Ed. 2d
    420 (2017).
    9
    State v. Buttercase, 
    296 Neb. 304
    , 
    893 N.W.2d 430
    (2017).
    10
    
    Id. at 314,
    893 N.W.2d at 438.
    11
    Buttercase, supra note 9.
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    STATE v. FUENTES
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    Fuentes essentially acknowledges that this case does not
    include structural error. Nor does Fuentes argue that his trial
    judge was aware of confidential information that was harm-
    ful to Fuetnes’ case. Rather, Fuentes now argues that the trial
    judge should have recused himself due to the appearance of
    impropriety. But, as we noted in State v. Buttercase,12 a defend­
    ant has a heavy burden to overcome the presumption of judicial
    impartiality and show that the judge has a personal bias or
    prejudice concerning the defendant.
    In Buttercase, the defendant sought to force the removal
    of a judge who had presided over prior criminal charges filed
    against him. We rejected the claim, noting that “the fact that
    the court previously presided over other actions involving the
    parties and made rulings against one or another of the par-
    ties” was insufficient to show bias.13 We observed that the fact
    that a judge knows most of the attorneys practicing in his or
    her district is common, and the fact that a judge knows attor-
    neys through professional practices and organizations does
    not, by itself, create the appearance of impropriety. We fur-
    ther observed that judicial rulings alone almost never consti-
    tute a valid basis for a bias or partiality motion directed to a
    trial judge.
    While Buttercase dealt with a judge who had previously
    overseen charges against a defendant, we are presented here
    with a judge who, 17 years earlier, apparently represented
    the defendant in a criminal proceeding. The two cases are,
    of course, factually distinct, but both touch on whether prior
    knowledge of a defendant creates an appearance of bias.
    Fuentes has not offered any evidence whatsoever to show
    that the trial judge had access to confidential information or
    even recalled representing Fuentes; that the trial judge used
    confidential, personal information in presiding over Fuentes’
    12
    
    Id. 13 Id.
    at 
    316, 893 N.W.2d at 439
    .
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    trial or in sentencing him; or, indeed, that the trial judge was
    biased or prejudiced against Fuentes in any way. We also
    observe that while Fuentes suggested in his deposition that an
    oral motion seeking the trial judge’s recusal was made, there is
    no record of such an oral motion, let alone a written motion.
    Fuentes has failed to meet his burden to show that he was prej-
    udiced by the failure of the trial court judge to recuse himself.
    There is no merit to this argument on appeal.
    Failure to File Motion to
    Suppress Photo Array
    and Out-of-Court
    Identification.
    Fuentes argues that counsel was ineffective in failing to file
    a motion to suppress the photo array and in failing to object to
    all testimony regarding out-of-court identification by Analicia.
    The basis of his argument appears to be his assertion that
    Analicia was not given an advisement in advance of identifying
    him from a photo array and that DelMaria’s presence impacted
    Analicia’s identification.
    [10-12] An identification procedure is constitutionally
    invalid only when it is so unnecessarily suggestive and condu-
    cive to an irreparably mistaken identification that a defendant
    is denied due process of law.14 Whether identification proce-
    dures were unduly suggestive and conducive to a substantial
    likelihood of irreparable mistaken identification is to be deter-
    mined by a consideration of the totality of the circumstances
    surrounding the procedures.15 The factors to be considered
    are the opportunity of the witness to view the criminal at
    the time of the crime, the witness’ degree of attention, the
    accuracy of the witness’ prior description of the criminal, the
    level of certainty demonstrated by the witness, and the length
    14
    State v. Smith, 
    269 Neb. 773
    , 
    696 N.W.2d 871
    (2005).
    15
    
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    of time between the crime and the identification.16 We have
    noted that “an array of five photographs is sufficient to con-
    stitute a fair and adequate array when attempting to identify a
    single perpetrator.”17
    The record contains very little information about the photo
    array. The photo array itself is not in the record. There is
    no dispute that a motion to suppress any identification aris-
    ing from the photo array was not filed, and counsel did not
    otherwise object to evidence offered on the photo array and
    Analicia’s identification of Fuentes.
    The officer who prepared the photo array and showed it to
    Analicia testified during trial that he was also the officer who
    first reported to the scene of the alleged assault. He further
    testified that at the time he met with Gabriel and DelMaria,
    he did not interview Analicia, because it was policy for child
    sexual assault victims to be interviewed by individuals trained
    in appropriate interview techniques.
    The officer further testified that at the time he spoke with
    Gabriel and DelMaria, the couple identified Fuentes as the
    individual who had been outside their apartment at the time
    of the alleged assault, because Gabriel had been outside and
    had seen Fuentes arrive. The officer also testified that Fuentes
    was not at the scene when he arrived, but that the officer
    effected a traffic stop of Fuentes a few days later, on August
    24, 2012.
    The officer additionally testified that he prepared a photo
    array of photographs of six individuals—Fuentes and five oth-
    ers—and showed it to Analicia, in the presence of DelMaria,
    on August 26, 2012, at the Scottsbluff Police Department.
    According to this testimony, DelMaria sat next to Analicia but
    did not say anything during the process.
    16
    
    Id. 17 State
    v. Swoopes, 
    223 Neb. 914
    , 918, 
    395 N.W.2d 500
    , 504 (1986),
    overruled on other grounds, State v. Jackson, 
    225 Neb. 843
    , 
    408 N.W.2d 720
    (1987).
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    Analicia testified that the officer showed her the photo
    array and that she circled the picture of the man who touched
    her. Analicia also testified at trial that the man who touched
    her was in the courtroom at the time she was testifying, iden-
    tifying Fuentes as that person.
    Fuentes does not make any particular argument about the
    makeup of the photo array. Rather, he concentrates his argu-
    ment on the fact that Analicia did not receive an advisement
    prior to viewing the photo array and on the fact that DelMaria
    was present during the showing of the photo array.
    There are several problems with Fuentes’ contentions on
    appeal. First, there is no evidence regarding whether Analicia
    received an advisement prior to looking at the photo array
    presented to her. Fuentes’ trial counsel had passed away
    prior to the filing of the postconviction motion, but an attor-
    ney from the public defender’s office testified by deposition
    about Fuentes’ case file. There was no questioning about an
    advisement during that deposition. The office’s file was not
    offered as an exhibit to the deposition, nor is the police file
    part of the record before this court. It is not possible to know
    whether an advisement was actually given, because no one
    asked that question or offered evidence that might answer
    that question. Moreover, Fuentes cites to no authority requir-
    ing such an advisement; rather, he cites to a memorandum
    opinion of the Court of Appeals where such an advisement
    was given.18
    In addition, a review of the entire record suggests that
    Fuentes was identified largely because Gabriel was aware that
    Fuentes had been on the scene at the relevant time and identi-
    fied Fuentes by name to the investigating officer. The officer
    had contact with Fuentes for the first time 2 days prior to
    showing Analicia the photo array. In addition, another offi-
    cer testified that he had contact with Fuentes at the police
    18
    State v. Fletcher, No. A-08-723, 
    2009 WL 2767720
    (Neb. App. Sept. 1,
    2009) (selected for posting to court website).
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    department on either August 23 or 24, 2012, because Fuentes
    had heard officers were looking for him.
    Finally, the issue in this case was not who touched Analicia;
    the issue was whether Analicia was touched. Fuentes does not
    deny being at the scene at the relevant time. He denied only
    that he touched Analicia.
    Fuentes has not met his burden to show that he was preju-
    diced by any failure of counsel to suppress the photo array
    when law enforcement was aware from the time of the alleged
    incident that it was looking for Fuentes. There is no merit to
    his argument.
    Failure to Adequately Explore
    Inconsistencies in Witness
    Testimonies.
    Somewhat related to Fuentes’ allegations regarding the fail-
    ure to investigate other witnesses is Fuentes’ contention that
    his counsel was ineffective in failing to adequately cross-
    examine certain witnesses regarding inconsistencies in their
    statements at trial.
    In his motion, Fuentes alleges inconsistencies of several wit-
    nesses, but argues on appeal only that Analicia’s testimony was
    inconsistent. Specifically, Fuentes’ brief argues that Fuentes
    testified at his hearing that Analicia’s testimony regarding her
    identification of Fuentes was inconsistent.
    Fuentes’ argument is without merit. Fuentes does not explain
    how he believes Analicia’s testimony was inconsistent and does
    not provide any other evidence to suggest actual inconsist­
    encies in her testimony.
    Moreover, our review of Analicia’s testimony reveals no
    inconsistencies of note. Analicia testified that Fuentes walked
    past her into the residence to visit the people who lived on the
    main floor of the apartment building and that about 5 minutes
    later, the same man left the building, touching her, as described
    above, on his way out. There is no real dispute that Fuentes
    was the man who entered and exited the home; the only dispute
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    is whether he touched Analicia as he left—she testified that he
    did, while Fuentes testified that he did not.
    Fuentes did not meet his burden to show that his counsel was
    ineffective in failing to point out inconsistencies in Analicia’s
    testimony, because it is not at all clear to what inconsistency
    Fuentes was referring and, in any case, a review of Analicia’s
    testimony reveals no inconsistency. This assignment of error is
    without merit.
    CONCLUSION
    The decision of the district court dismissing Fuentes’ motion
    for postconviction relief is affirmed.
    A ffirmed.
    Miller-Lerman and Freudenberg, JJ., not participating.