State v. Alarcon-Chavez , 295 Neb. 1014 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ALARCON-CHAVEZ
Cite as 295 Neb. 1014
State of Nebraska, appellee, v.
Leodan A larcon-Chavez, appellant.
___ N.W.2d ___
Filed March 3, 2017. No. S-16-456.
1. Postconviction: Evidence. In an evidentiary hearing on a motion for
postconviction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact.
2. Postconviction: Evidence: Appeal and Error. An appellate court
upholds the trial court’s findings in an evidentiary hearing on a motion
for postconviction relief unless the findings are clearly erroneous. An
appellate court independently resolves questions of law.
3. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
4. 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 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 independently of the lower
court’s decision.
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: Effectiveness of Counsel: Proof: Appeal and Error.
In order to establish a right to postconviction relief based on a claim of
ineffective assistance of counsel, the defendant has the burden first to
show that counsel’s performance was deficient; that is, counsel’s per-
formance did not equal that of a lawyer with ordinary training and skill
in criminal law. Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.
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STATE v. ALARCON-CHAVEZ
Cite as 295 Neb. 1014
8. Effectiveness of Counsel: Proof: Appeal and Error. In a nonplea con-
text, to establish the prejudice prong of a claim of ineffective assist­ance
of counsel, the defendant must show a reasonable probability that the
result would have been different had counsel not performed deficiently.
9. ____: ____: ____. The two prongs of the test governing a claim of inef-
fective assistance of counsel, deficient performance and prejudice, may
be addressed in either order.
10. Effectiveness of Counsel: Presumptions. The entire ineffectiveness
analysis is viewed with a strong presumption that counsel’s actions
were reasonable.
11. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
When reviewing claims of ineffective assistance, an appellate court will
not second-guess a trial counsel’s reasonable strategic decisions. And
an appellate court must assess the trial counsel’s performance from the
counsel’s perspective when the counsel provided the assistance.
12. Effectiveness of Counsel: Appeal and Error. In addressing the preju-
dice component of the test under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
focuses on whether a trial counsel’s deficient performance renders the
result of the trial unreliable or the proceeding fundamentally unfair.
13. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice as a result of ineffective assistance of counsel, the petitioner must
demonstrate a reasonable probability that but for his or her counsel’s
deficient performance, the result of the proceeding would have been dif-
ferent. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
14. Rules of the Supreme Court: Trial: Records. Although court rules
require transcription of voir dire examination and of opening and clos-
ing statements of parties when requested by counsel, any party, or court,
recordation of those parts of trial is not made mandatory by the rules,
and failure to require recordation cannot be said, ipso facto, to constitute
negligence or inadequacy of counsel.
15. Effectiveness of Counsel: Pleas: Proof. The right to effective assist­
ance of counsel extends to the negotiation of a plea bargain, and claims
of ineffective assistance of counsel in the plea bargain context are gov-
erned by the two-part test set forth in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
16. Postconviction: Evidence: Witnesses. In an evidentiary hearing for
postconviction relief, the postconviction trial judge, as the trier of fact,
resolves conflicts in evidence and questions of fact, including witness
credibility and the weight to be given a witness’ testimony.
17. 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,
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STATE v. ALARCON-CHAVEZ
Cite as 295 Neb. 1014
even if that choice proves unproductive, will not, without more, sustain
a finding of ineffectiveness of counsel.
18. Attorneys at Law: Effectiveness of Counsel. A defense attorney has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.
19. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic
decision to present particular evidence, or not to present particular evi-
dence, will not, without more, sustain a finding of ineffective assistance
of counsel.
20. Effectiveness of Counsel: Proof. In order to show prejudice, the
defend­ant must demonstrate a reasonable probability that but for coun-
sel’s deficient performance, the result of the proceeding would have
been different.
21. Judgments: Appeal and Error. When the record demonstrates that the
decision of the trial court is correct, although such correctness is based
on different grounds from those assigned by the trial court, an appellate
court will affirm.
22. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
Appeal from the District Court for Madison County: M ark
A. Johnson, Judge. Affirmed.
Martin V. Klein, of Carney Law, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
Leodan Alarcon-Chavez appeals from an order of the district
court for Madison County denying his motion for postcon-
viction relief after an evidentiary hearing. Finding no error,
we affirm.
I. FACTS
In 2011, Alarcon-Chavez was charged with first degree
murder, use of a deadly weapon to commit a felony, and tam-
pering with a witness in connection with the stabbing death of
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STATE v. ALARCON-CHAVEZ
Cite as 295 Neb. 1014
Maria Villarreal. The following factual summary is taken from
our prior opinion in State v. Alarcon-Chavez.1
Events Prior to Stabbing
Alarcon-Chavez and Villarreal began dating and moved
into an apartment together in January 2009. Alarcon-
Chavez was the sole leaseholder for their apartment,
which was located in Norfolk, Nebraska. Their rela-
tionship ended after Alarcon-Chavez informed Villarreal
that he was seeing another woman. After the breakup,
Villarreal stayed in the apartment and Alarcon-Chavez
moved in with a friend. While he was living with his
friend, Villarreal called to threaten him on several occa-
sions. Once, she told him that her boyfriend would “adjust
accounts” with him.
On two occasions when he knew Villarreal would
not be present, Alarcon-Chavez went back to the apart-
ment he had shared with Villarreal. One time, he noticed
another man’s clothes.
In late February 2010, Villarreal began dating Aniel
Campo Pino, and he moved into the apartment with
Villarreal and her 3-year-old son.
On March 9, 2010, Alarcon-Chavez saw Villarreal and
Pino at a store. Alarcon-Chavez returned to his friend’s
house around 7 p.m. and began consuming alcohol.
Around 11 p.m., he drove across town to Wal-Mart to
purchase more beer. While at Wal-Mart, Alarcon-Chavez
saw a set of Sunbeam knives, and he testified he decided
to purchase them for cooking purposes. He purchased the
knives and beer just after 11:30 p.m. He returned to his
friend’s house and took the beer inside, but left the knife
set in the vehicle.
Alarcon-Chavez knew Villarreal went to work early in
the morning. So, around 5 a.m. on March 10, 2010, he
drove to the apartment where Villarreal was living. He
testified that he intended to tell Villarreal and Pino to get
1
State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
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STATE v. ALARCON-CHAVEZ
Cite as 295 Neb. 1014
out of his apartment. He explained he did not want to live
with his friend anymore because he had been sleeping on
the floor and using clothes for a pillow.
Stabbing
Alarcon-Chavez arrived at the apartment around 5:10
or 5:20 a.m. He initially got out of the vehicle, but then,
after remembering Villarreal’s threat that Pino would
“adjust accounts” with him, reentered it. Alarcon-Chavez
then remembered the knife set, so he opened the pack-
age with his teeth and concealed one of the knives on
his body.
Alarcon-Chavez entered the apartment and found
Villarreal in the kitchen making her lunch. She had a
knife in her hand. Villarreal came toward Alarcon-Chavez
and grabbed his body and somehow dropped the knife.
She was holding Alarcon-Chavez and yelling for the
police and for Pino, and Alarcon-Chavez was struggling
to escape her grip. Fearing that Pino would attack him,
he drew the knife he had concealed on his body. Alarcon-
Chavez and Villarreal continued to struggle, and as he
tried to get loose, he stabbed Villarreal in the abdomen.
Alarcon-Chavez did not remember stabbing her anywhere
else. After the stabbing, Villarreal sat on the floor and
leaned back onto the carpet. Alarcon-Chavez then heard
someone coming and locked the door.
Pino had gone outside before Alarcon-Chavez arrived.
He went back to the apartment after he heard Villarreal
scream. When he arrived, the door was locked. Villarreal
was screaming that he should not come in because a man
was stabbing her. Pino told Alarcon-Chavez to come out
of the apartment so he could help Villarreal, but Alarcon-
Chavez did not respond. . . . Pino heard Villarreal saying,
“Leo, don’t kill me, Leo, don’t kill me.” Alarcon-Chavez
then told Villarreal he was going to kill her and said, “I
told you not to leave me because if you did this was going
to happen to you.” Pino told a neighbor to call the police
and then retrieved a friend.
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STATE v. ALARCON-CHAVEZ
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Police officers were dispatched to the apartment. One
officer knocked at 6:06 a.m. and tried unsuccessfully to
open the door. An officer standing outside of the apart-
ment activated a tape recorder. Villarreal can be heard on
the recording pleading for help. She told Alarcon-Chavez
to go away and not to kill her. She said that she had been
stabbed five times and that Alarcon-Chavez was still
in the apartment with her. The recording also revealed
numerous expressions of pain from Villarreal, several of
which occurred just before the officers entered the apart-
ment. Alarcon-Chavez testified that Villarreal was not
asking him not to kill her, but, rather, was begging him
not to kill himself.
When another officer arrived, he knocked and
announced his presence and tried to open the door. Either
Pino or his friend told the officers they needed to get
inside. The officers entered the apartment by kicking the
door several times. When the officers opened the door,
they observed Alarcon-Chavez standing over Villarreal’s
body with a knife in each hand. Alarcon-Chavez was shot
with an electric stun gun and handcuffed. He was covered
in blood. As Alarcon-Chavez was being taken out of the
apartment, Pino’s friend asked him “why [he] didn’t do
this to [Pino and his friend],” and he responded that “he
didn’t want to do any harm to [them], the problem wasn’t
with [them].”
Although she was obviously in pain, Villarreal was
alert, coherent, and talking when the officers first entered
the apartment. Within a few minutes, her color turned to
an ash gray and she stopped speaking. There was a large
amount of blood around her. She died as a result of mul-
tiple stab wounds.2
Following a jury trial, Alarcon-Chavez was convicted of first
degree murder, use of a deadly weapon to commit a felony,
2
Id. at 323-26, 821 N.W.2d at 361-63.
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STATE v. ALARCON-CHAVEZ
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and tampering with a witness. We affirmed his convictions on
direct appeal.3
Alarcon-Chavez then filed a motion for postconviction
relief. The district court appointed new counsel to represent
Alarcon-Chavez in the postconviction matter. Alarcon-Chavez
was granted leave to amend his postconviction motion several
times, and an evidentiary hearing was held on all issues set
forth in his fourth amended motion for postconviction relief.
In a written order entered April 6, 2016, the district court
denied postconviction relief on all grounds. Alarcon-Chavez
timely appeals.
II. ASSIGNMENTS OF ERROR
Alarcon-Chavez assigns, restated and summarized, that the
district court erred by not finding trial counsel was constitu-
tionally ineffective for failing to (1) “verify, ensure and or
preserve” a record was made of voir dire, (2) raise a challenge
under Batson v. Kentucky4 when the State struck a Hispanic
juror from the venire, (3) communicate plea offers, (4) speak
with witnesses before trial, (5) advise Alarcon-Chavez of his
right to independently test DNA, (6) advise Alarcon-Chavez
of his right to depose the State’s expert witnesses, and (7)
object during trial to the State’s questioning of key witnesses
and offers of exhibits. He also assigns that the court erred in
not finding his constitutional rights were violated because he
was unable to understand one of the court interpreters dur-
ing trial.
III. STANDARD OF REVIEW
[1,2] 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.5 An appellate
3
State v. Alarcon-Chavez, supra note 1.
4
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
5
State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015).
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court upholds the trial court’s findings unless they are clearly
­erroneous.6 In contrast, an appellate court independently
resolves questions of law.7
[3,4] A claim that defense counsel provided ineffective
assist­ance presents a mixed question of law and fact.8 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 per­
formance or prejudice to the defendant as part of the two-
pronged test articulated in Strickland v. Washington,9 an appel-
late court reviews such legal determinations independently of
the lower court’s decision.10
[5,6] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.11 When review-
ing questions of law, an appellate court resolves the questions
independently of the lower court’s conclusion.12
IV. ANALYSIS
1. Ineffective Assistance
of Trial Counsel
Alarcon-Chavez was represented by the same three attor-
neys at trial and on direct appeal. As such, this postconviction
proceeding is his first opportunity to assert that his attorneys
were ineffective.13
[7-11] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
6
Id.
7
State v. Harris, 294 Neb. 766, 884 N.W.2d 710 (2016).
8
State v. Branch, 290 Neb. 523, 860 N.W.2d 712 (2015).
9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
10
State v. Branch, supra note 8.
11
State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015).
12
Id.
13
See State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
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defend­ant has the burden first to show that counsel’s per­
formance was deficient; that is, counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crimi-
nal law. Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.14 In a
nonplea context, the defendant must show a reasonable prob-
ability that the result would have been different had counsel
not performed deficiently.15 The two prongs of this test, defi-
cient performance and prejudice, may be addressed in either
order.16 The entire ineffectiveness analysis is viewed with a
strong presumption that counsel’s actions were reasonable.17
When reviewing claims of ineffective assistance, an appellate
court will not second-guess trial counsel’s reasonable strategic
decisions. And we must assess trial counsel’s performance
from the counsel’s perspective when the counsel provided
the assistance.18
[12,13] In addressing the prejudice component of the
Strickland test, we focus on whether a trial counsel’s defi-
cient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.19 To show prejudice, the
petitioner must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of
the proceeding would have been different. A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome.20
(a) Failure to Record Voir Dire
At trial, the voir dire proceedings were not recorded, except
when the State asked to make a brief record of its reasons
14
State v. Branch, supra note 8.
15
Id.
16
Id.
17
Id.
18
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
19
Id.
20
Id.
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for striking a particular juror. Alarcon-Chavez alleged his
counsel was ineffective for failing to ensure that voir dire was
recorded. He further alleged that he did not waive the right to
record voir dire.
At the evidentiary hearing, one of Alarcon-Chavez’ attorneys
testified that he explained the voir dire process to Alarcon-
Chavez, including what would happen when the jury came in,
the number of strikes per side, when a strike for cause could
be made, and when peremptory strikes could be used. This
defense attorney did not remember if there was any conversa-
tion about whether to record voir dire, or whether Alarcon-
Chavez specifically waived the recording of voir dire.
[14] In its order denying postconviction relief, the district
court noted there was no evidence that any party, or the court,
requested voir dire be recorded. It then quoted from State v.
Jones,21 a case in which we held our court rules require the
transcription of voir dire only “when requested by counsel,
any party, or the court.” In Jones, we reasoned that because
recording voir dire is not made mandatory by the court rules,
“the failure to require recordation cannot be said, ipso facto, to
constitute negligence or inadequacy of counsel.”22
Neb. Ct. R. § 2-105(A)(2) (rev. 2010) states:
Upon the request of the court or of any party, either
through counsel or pro se, the court reporting personnel
shall make or have made a verbatim record of anything
and everything said or done by anyone in the course of
trial or any other proceeding, including, but not limited
to . . . the voir dire examination . . . .
Neither Jones nor § 2-105(A)(2) provide that a verbatim record
of voir dire is mandatory. On this record, we agree with the
district court that Alarcon-Chavez failed to prove his trial
counsels’ performance was deficient, and he failed to prove
any prejudice from the fact that voir dire was not recorded. The
trial court correctly denied relief on this claim.
21
State v. Jones, 246 Neb. 673, 675, 522 N.W.2d 414, 415 (1994).
22
Id. at 675, 522 N.W.2d at 415-16.
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(b) Failure to Raise Batson Challenge
Alarcon-Chavez asserts his trial attorneys were ineffective
for failing to raise a Batson23 challenge after the State used a
peremptory strike to remove a Hispanic juror from the panel.
In striking the juror, the State voluntarily made a record of its
reason for the strike even though no Batson challenge had been
raised by Alarcon-Chavez.
During the evidentiary hearing, one of Alarcon-Chavez’ trial
attorneys testified he did not raise a Batson challenge because
he, too, wanted the juror removed from the panel. Trial coun-
sel explained that the juror was a criminal justice major who
commented that it would be “an honor” to serve as a juror.
Trial counsel thought the juror’s comment suggested he was
someone who wanted to be on the jury in order to return a
conviction. Trial counsel testified that if the State had not
used one of its peremptory strikes on that juror, he would have
done so.
When reviewing a claim of ineffective assistance of coun-
sel, an appellate court will not second-guess reasonable stra-
tegic decisions by counsel.24 Defense counsel’s strategic deci-
sion not to raise a Batson challenge was reasonable and does
not support a finding of ineffectiveness.
(c) Failure to Disclose Plea Offer
[15] Alarcon-Chavez asserts his attorneys were ineffective
for failing to timely communicate a plea offer. The U.S.
Supreme Court has established that the right to effective assist­
ance of counsel extends to the negotiation of a plea bargain.25
And claims of ineffective assistance of counsel in the plea
bargain context are governed by the two-part test set forth in
Strickland v. Washington.26
23
See Batson v. Kentucky, supra note 4.
24
State v. Branch, supra note 8.
25
See Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379
(2012).
26
See id.
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According to Alarcon-Chavez, the State offered a plea deal
which his attorneys did not convey to him until the night
before trial. Alarcon-Chavez testified that he accepted the
offer once conveyed, but when his attorneys communicated his
acceptance to the State the next morning, the plea offer had
been withdrawn.
At the evidentiary hearing, one of Alarcon-Chavez’ trial
attorneys testified he met with Alarcon-Chavez the night before
trial and told him that they were looking at a very difficult case
to win based on self-defense and that Alarcon-Chavez likely
would be convicted. Trial counsel testified he told Alarcon-
Chavez it might be advantageous to try and get a last-minute
plea agreement for something that did not carry a mandatory
life sentence. Trial counsel asked Alarcon-Chavez whether
he would be willing to plead to second degree murder, use of
a weapon, witness tampering, and making terroristic threats.
According to trial counsel, Alarcon-Chavez agreed and autho-
rized him to contact the State. Trial counsel contacted the
prosecutor directly after this conversation with Alarcon-Chavez
and communicated the plea offer. The prosecutor refused the
plea offer and would not make a counter offer. Trial counsel
relayed this information to Alarcon-Chavez the next morning.
Trial counsel’s version of events was confirmed by another of
Alarcon-Chavez’ trial attorneys, who testified in addition that
she had approached the prosecution on several occasions dur-
ing the pendency of the case requesting a plea offer, but each
time, the prosecutor had refused.
[16] In its order, the court made factual findings consistent
with the testimony of Alarcon-Chavez’ trial attorneys, and the
court concluded Alarcon-Chavez failed to prove his attorneys
were ineffective for failing to timely communicate plea offers.
In an evidentiary hearing for postconviction relief, the post-
conviction trial judge, as the trier of fact, resolves conflicts in
evidence and questions of fact, including witness credibility
and the weight to be given a witness’ testimony.27 We find no
27
State v. Branch, supra note 8.
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clear error in the district court’s factual findings, and we agree
that Alarcon-Chavez failed to prove his trial attorneys were
ineffective for failing to communicate plea offers.
(d) Failure to Speak With Witnesses
At his first meeting with defense counsel, Alarcon-Chavez
provided counsel the names of four witnesses he wanted to
testify on his behalf. Alarcon-Chavez claims all four wit-
nesses would have testified about the victim’s threatening and
blackmailing him and would have supported his claim of self-
defense. Alarcon-Chavez claims his attorneys were ineffective,
because they failed to contact or call these witnesses at trial.
At the evidentiary hearing, Alarcon-Chavez’ attorneys testi-
fied that only one of the potential witnesses could be located.
With respect to that witness, defense counsel concluded that
based on the witness’ reports to police, he would not have
been a helpful witness. Additionally, after meeting with that
witness, Alarcon-Chavez’ counsel concluded he was unhelpful
and bordering on hostile.
Counsel further testified, with respect to all four witnesses
identified by Alarcon-Chavez:
All of this information from these witnesses, if it came
out, and I believed it would have — would not have
helped [Alarcon-Chavez’] case. It would have shown
that there was a prior relationship that involved threats
and violence against each other, and that’s the last thing
I wanted the jury to hear was prior incidents of violent
behavior toward this victim.
In its order, the district court made findings consistent with
the testimony of Alarcon-Chavez’ trial attorneys and con-
cluded Alarcon-Chavez had failed to meet his burden of proof
on this claim of ineffective assistance of counsel. We find
no clear error in the trial courts findings, and we agree with
its conclusion.
[17-19] The decision to call, or not to call, a particular wit-
ness, made by counsel as a matter of trial strategy, even if that
choice proves unproductive, will not, without more, sustain a
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finding of ineffectiveness of counsel.28 A defense attorney has a
duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.29 A
reasonable strategic decision to present particular evidence, or
not to present particular evidence, will not, without more, sus-
tain a finding of ineffective assistance of counsel. We do not
second-guess strategic decisions made by trial counsel, so long
as those decisions are reasonable.30 Here, trial counsels’ deci-
sion not to pursue or call the four witnesses was reasonable,
and counsel did not perform deficiently.
(e) Independent DNA Testing
Alarcon-Chavez argues his trial attorneys were ineffective
for failing to independently test DNA evidence and for failing
to advise him of his right to have DNA testing done. When
asked what DNA evidence Alarcon-Chavez wanted his lawyers
to find, Alarcon-Chavez responded:
Well, I don’t know how to explain it. Before [the prosecu-
tion] said that I was the only one in the apartment, true,
and I testified that I was the one that stabbed her. So what
I think is [my lawyers] should have informed me about
the [sic] not doing the DNA test.
At the evidentiary hearing, one of Alarcon-Chavez’ trial attor-
neys testified that he did not think DNA testing would have
been helpful to the defense. Police officers found Alarcon-
Chavez standing over the victim and holding two knives, and
Alarcon-Chavez did not deny stabbing the victim. The issue
at trial was not the identity of the perpetrator, but whether
Alarcon-Chavez had acted in self-defense.
The district court found there was no merit to the claim that
counsel were ineffective for failing to pursue independent test-
ing of the DNA evidence, reasoning:
28
State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).
29
State v. Ellefson, 231 Neb. 120, 435 N.W.2d 653 (1989).
30
State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005).
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[Alarcon-Chavez’] former attorney testified that DNA
analysis of the knife used would not have furthered [his]
case. [Alarcon-Chavez] wanted to raise the affirmative
defense of self-defense; therefore, no issue of identity
existed. The evidence also revealed when the officers
entered the apartment there were only two people present,
the victim and [Alarcon-Chavez].
We find no error in the district court’s findings on this issue.
Defense counsels’ decision not to conduct independent DNA
testing was reasonable under the circumstances, and counsel
did not perform deficiently for failing to independently test
DNA evidence. Nor has Alarcon-Chavez shown any prejudice
from counsels’ failure to advise him of the right to have DNA
testing done.
(f) Failure to Depose State’s
Expert Witnesses
Alarcon-Chavez asserts his defense attorneys were ineffec-
tive for failing to depose the State’s expert witnesses. Neither
his postconviction motion nor his briefing to this court identi-
fies which expert witnesses his attorneys should have deposed,
or what such depositions might have revealed.
One of Alarcon-Chavez’ trial attorneys testified that after
reviewing all the police reports, medical reports, hospital
records, autopsy records, and the depositions of the police offi-
cers involved, he did not see a need to depose anyone else. The
district court concluded Alarcon-Chavez failed to prove any
prejudice as a result of his attorneys’ not deposing the State’s
experts and found this claim of ineffective assistance to be
without merit. It noted evidence showing that Alarcon-Chavez’
trial attorneys hired an independent physician to review the
State’s pathologist’s report and opinion, and the independent
physician agreed with the State’s expert’s opinion regarding the
cause and manner of death.
[20] In order to show prejudice, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
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different.31 We agree with the district court’s determination
that Alarcon-Chavez failed to establish prejudice as a result
of defense counsel’s failure to depose the State’s experts. We
therefore reject this claim of ineffective assistance of counsel.
(g) Failure to Object at Trial
Alarcon-Chavez claims his trial attorneys were ineffective
due to their “failure to object to the State’s questioning of key
witnesses and offers of exhibits during the Trial.” In his appel-
late brief, Alarcon-Chavez identifies the following instances
where his counsel failed to object:
During testimony of . . . Pino on direct examination
by the Madison County Attorney, he testified to what
Manuel Montalvo was saying to [Alarcon-Chavez],
which was clearly hearsay. There was no objection made
by the counsel for [Alarcon-Chavez]. . . . In addition,
counsel for [Alarcon-Chavez] did not object to “Exhibit
9” . . . which was a picture of the victim lying on the
floor. . . . At another time, . . . Pino was questioned about
and testified to what the victim told him about her wound
and when she received the same, and there was no objec-
tion by counsel for [Alarcon-Chavez]. . . . In another
incident during his testimony, there were multiple ques-
tions about what the victim said to . . . Pino while she
was laying [sic] on the floor after the police arrived, and
there were no objections to any of those questions. . . .
He testified to what he saw when he entered the apart-
ment and discussed there being a child present in the
apartment without objection. . . . Pino testified he saw
[Alarcon-Chavez] holding the knives, but was lead [sic]
into the question by the County Attorney asking “and did
you see the knives?”32
The district court concluded Alarcon-Chavez failed to show
how any of the questions or exhibits were objectionable or
31
See State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
32
Brief for appellant at 22-23.
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how he was prejudiced by the admission of the evidence. The
court also found that although Alarcon-Chavez argued the
cumulative effect of these failures amounted to ineffective
assistance, “[n]o proof was made as to what cumulative effect
these alleged failures may have had upon the jury.” The court
found no merit to this claim of ineffective assistance.
We agree with the district court’s determination that Alarcon-
Chavez failed to show prejudice from counsel’s alleged defi-
cient performance. We therefore conclude this assignment of
error is meritless.
2. Problem Understanding
Interpreters
Alarcon-Chavez speaks Spanish, and court interpreters were
used during pretrial and trial proceedings. Alarcon-Chavez
claims he had trouble understanding one of the two court
interpreters, and consequently, “he could not assist in his own
defense, there by [sic] denying his right to due process and
violating his constitutional rights.”33
We have held that a defendant’s inability to comprehend
criminal proceedings or communicate in English at such pro-
ceedings can result in a violation of the defendant’s due proc­
ess and Sixth Amendment rights.34 Neb. Rev. Stat. § 25-2401
(Reissue 2016) provides that it is
the policy of this state that the constitutional rights of
persons unable to communicate the English language can-
not be fully protected unless interpreters are available to
assist such persons in legal proceedings. It is the intent
of sections 25-2401 to 25-2407 to provide a procedure
for the appointment of such interpreters to avoid injustice
and to assist such persons in their own defense.
At the evidentiary hearing, Alarcon-Chavez testified that
he is of Cuban descent. He testified that Cubans have a dif-
ferent dialect than other Spanish speakers, and that some
33
Id. at 24.
34
See State v. Bol, 294 Neb. 248, 882 N.W.2d 674 (2016).
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Spanish words have a different meaning in Cuba than they do
in Mexico. Alarcon-Chavez also testified that on the first day
of trial, he told one of his attorneys that he could not under-
stand one of the interpreters, who he described as having a
voice that “was very thick.” Alarcon-Chavez testified that his
attorney told the judge about the situation, but the judge said
the interpreter would have to continue, because there were no
other interpreters assigned to the case. The record contains no
such discussion.
Alarcon-Chavez’ trial attorney denied there was a hearing
before the judge at which Alarcon-Chavez expressed displeas­
ure with the interpreter. But trial counsel confirmed that at
some point during the trial, Alarcon-Chavez mentioned to
counsel that he was having trouble understanding one of the
interpreters due to the interpreter’s accent. According to trial
counsel, he asked Alarcon-Chavez whether he generally under-
stood what was happening and Alarcon-Chavez replied that he
“was just having difficulty because of the accent and the kind
of mumbling . . . but he said he generally understood what
was going on.” Trial counsel testified that he could not recall
for certain, but thought he may have asked the interpreter to
enunciate better. Additionally, trial counsel testified that each
day after court, he met with Alarcon-Chavez using his own
interpreter to make sure Alarcon-Chavez understood what was
happening; Alarcon-Chavez never mentioned being unable to
understand the proceedings.
The interpreter also testified. He has interpreted for the
courts since 1991 and has been a certified court reporter since
2003. He has interpreted for Cuban clients and has never had
difficulty speaking with them in Spanish. According to the
interpreter, he had interpreted for Alarcon-Chavez before the
murder trial and had no difficulty conversing with Alarcon-
Chavez during the murder trial. The same interpreter was used
during Alarcon-Chavez’ sentencing hearing. The interpreter
testified that he asked Alarcon-Chavez whether he understood
him, and Alarcon-Chavez responded affirmatively.
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The district court resolved this claim on the merits by find-
ing that Alarcon-Chavez had failed to prove he could not
understand the interpreter. We find no clear error in the district
court’s findings, but we affirm on this issue for a different
reason: We conclude this postconviction claim is procedur-
ally barred.
[21,22] When the record demonstrates that the decision of
the trial court is correct, although such correctness is based
on different grounds from those assigned by the trial court, an
appellate court will affirm.35 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.36
Alarcon-Chavez was aware of any difficulty understanding
the interpreter at the time of his direct appeal and could have
raised this issue on direct appeal, but did not. Nor, in this post-
conviction action, has Alarcon-Chavez asserted this claim as
one of ineffective assistance of counsel. His claim that he had
trouble understanding one of the interpreters is procedurally
barred, and this assignment of error is meritless.
V. CONCLUSION
For all of the foregoing reasons, we conclude the district
court did not err in denying Alarcon-Chavez’ fourth amended
motion for postconviction relief.
A ffirmed.
35
Luet, Inc. v. City of Omaha, 247 Neb. 831, 530 N.W.2d 633 (1995).
36
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).