State v. Devers ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/24/2023 09:06 AM CDT
- 866 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866State of Nebraska, appellee, v.
Jason D. Devers, appellant.
___ N.W.2d ___
Filed March 24, 2023. No. S-22-301.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Pleadings. Postconviction proceedings have their own
pleading requirements, and the liberal pleading rules that govern civil
actions are inconsistent with postconviction proceedings.
3. Effectiveness of Counsel. A pro se party is held to the same standards
as one who is represented by counsel.
4. Postconviction: Constitutional Law: Proof. The district 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 infringement of the defendant’s rights under the state or
federal Constitution.
5. ____: ____: ____. An evidentiary hearing is not required on a motion
for postconviction relief when (1) the motion does not contain factual
allegations which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without supporting facts;
or (3) the records and files affirmatively show that the defendant is
entitled to no relief.
6. Judgments: Appeal and Error. A correct result will not be set aside
merely because the lower court applied the wrong reasoning in reaching
that result.
- 867 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 8667. Aiding and Abetting: Statutes. By statute, all persons involved in the
commission of a crime, as aider, abettor, procurer, or the one committing
the act, are considered principals.
8. Aiding and Abetting: Convictions. Under Neb. Rev. Stat. § 28-206(Reissue 2016), the conviction of the principal is not necessary for the
conviction of an aider and abettor.
9. ____: ____. To convict an aider and abettor, it is not necessary that the
identity of the principal be established.
10. Criminal Law: Aiding and Abetting: Convictions. An aider and abet-
tor can be convicted of any crime, even a greater offense than the prin-
cipal, provided the conviction is supported by the evidence of the facts
and the defendant’s state of mind.
11. Aiding and Abetting. Society is no less injured by the illegal acts of the
aider and abettor when the principal escapes conviction.
12. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s perform­
ance was deficient and that this deficient performance actually preju-
diced the defendant’s defense.
13. Effectiveness of Counsel. Defense counsel is not ineffective for failing
to raise an argument that has no merit.
14. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), pros-
ecutors owe a duty to disclose favorable evidence to criminal defendants
prior to trial.
15. Prosecuting Attorneys: Evidence: Verdicts. The prosecution’s undis-
closed evidence must be material either to guilt or to punishment, and
the prosecution’s suppression of favorable evidence violates a defend­
ant’s due process right to a fair trial only if the suppressed evidence is
sufficiently significant to undermine confidence in the verdict.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Jason Devers, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 868 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866Freudenberg, J.
I. INTRODUCTION
The defendant was convicted of first degree felony mur-
der and use of a firearm to commit a felony, both in relation
to a robbery he planned and then assisted in by driving the
getaway vehicle. He appeals from the denial, without an evi-
dentiary hearing, of two postconviction claims relating to the
alleged dismissal of all charges against the shooter for lack
of evidence. The defendant argues that, without a principal, it
was legally impossible to convict him for aiding and abetting
the crimes. Because all persons involved in the commission
of a crime are considered principals under Nebraska law, the
defend­ant failed to allege an infringement of his constitutional
rights rendering the judgment void or voidable. We affirm.
II. BACKGROUND
Jason D. Devers was sentenced to consecutive terms of
life imprisonment and 5 to 5 years’ imprisonment after being
convicted of first degree felony murder and use of a firearm
to commit a felony in relation to the death of Kyle LeFlore
outside the Reign Lounge, a bar in Omaha, Nebraska. Devers’
convictions and sentences were affirmed on direct appeal,
where he was represented by new counsel and raised 13 claims
of ineffective assistance of trial counsel. 1
1. Trial
The facts relating to Devers’ convictions are set forth more
fully in our opinion on direct appeal. 2 The evidence at trial
showed that Devers and Larry Goynes went to the Reign
Lounge, where Devers told Goynes he knew of a “lick” at the
bar. Devers and Goynes later exited the bar and sat in their
vehicle in the parking lot until Goynes received a message
from someone alerting him that LeFlore was leaving.
1
State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
2
See id.- 869 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866Goynes exited the vehicle, and Devers drove off. Goynes
attempted to rob LeFlore, who resisted. Goynes shot LeFlore
and stole his jewelry. LeFlore died from his injuries.
After shooting and robbing LeFlore, Goynes ran down the
street to where Devers was waiting with the vehicle and they
absconded. A passenger in the back seat of Devers’ vehicle
testified that after Goynes ran up to the vehicle, Goynes
exclaimed, “[L]eFlore wouldn’t give up nothing so [Goynes]
had to shoot him.” She also testified Devers put a chain with
a cross on it around his neck, which Goynes reported he had
stolen from LeFlore.
A cellmate of Devers testified that Devers had told him he
had arranged the “lick” of LeFlore and that Devers explained,
“‘I just didn’t think my little cousin stupid ass would kill
him. . . . I told him to shoot if he act up, but damn.’” Another
cellmate testified Devers had told him he was the driver in
the robbery.
The mother of Devers’ children, who lived with him, testi-
fied that the day after the murder, she found in her dresser a
necklace with a cross on it. The necklace was later identified
as belonging to LeFlore, and LeFlore’s DNA was identified on
the cross.
2. Postconviction Motion
Devers filed a pro se verified motion for postconviction
relief and a supplemental motion intended “to continue fol-
lowing the last page of his original POST-CONVICTION
MOTION.” Relevant to this appeal, Devers alleged two claims
of ineffective assistance of appellate counsel relating to the dis-
missal of charges against Goynes, neither of which was raised
on direct appeal.
(a) Dismissal of Charges
Against Goynes
In the original motion for postconviction relief, Devers
set forth several paragraphs relating to the alleged dismissal
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866of all charges against Goynes. Devers asserted the charges
against Goynes were dismissed by the prosecution “for lack
of evidence.” He theorized that this rendered him innocent,
because his culpability was premised on being an aider and
abettor to the shooting allegedly committed by Goynes.
Devers said he was “adjudged guilty of Felony Murder and
Use of a Weapon to Commit a Felony that was prosecuted
under the aiding and abetting theory when the same charges
were dismissed against the person to whom [Devers] was to
have aided and abetted.” Devers also theorized that he could
not have committed the underlying robbery for purposes of
felony murder if there was a lack of evidence against the per-
son who allegedly directly committed the robbery.
Devers pointed out that the jury never knew the charges
against Goynes had been dismissed. He asserted that “had the
jury known that . . . Goynes’ charges had been dismissed, [it]
would have never convicted [Devers] bec[au]se there would
not have been a principal for [Devers] to have aided and abet-
ted thus making [Devers] legally innocent.”
(b) Layered Ineffective Assistance Claim
Regarding Trial Counsel
Devers asserted appellate counsel was ineffective on direct
appeal in failing to raise as error that he was “legally innocent”
by virtue of Goynes’ dismissal. In the paragraph immediately
following several paragraphs relating to the dismissal of the
charges against Goynes, the jury’s ignorance of that fact, and
how Devers allegedly could not legally be convicted without
a principal to have aided and abetted, Devers stated, “[I]t is
for the above-alleged facts that [Devers] requests that judg-
ment of conviction and sentences be set aside as void or
voidable for violations of his federal constitutional rights to
. . . effective assistance of counsel on appeal under the 6th
and 14th Amendments.” Devers also asserted he had been
“denied effective assistance of counsel on appeal for fail-
ure of appellate counsel to assign as error and argue . . . the
- 871 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866issue of legal innocence.” He alleged that but for appellate
counsel’s deficient performance, the outcome of his appeal
would have been different.
(c) Layered Ineffective Assistance Claim
Regarding Prosecutorial Misconduct
Devers asserted, relatedly, that appellate counsel was inef-
fective for failing to raise on direct appeal a claim of prosecu-
torial misconduct at trial in that the prosecution did not dis-
close the allegedly favorable evidence of Goynes’ dismissal.
In his original motion, Devers generally alleged appellate
counsel was ineffective for failing to raise on direct appeal a
claim of prosecutorial misconduct. In a later paragraph, Devers
reiterated this allegation that appellate counsel was ineffective
for failing to raise on direct appeal prosecutorial misconduct
and elaborated that the prosecution had failed to diligently dis-
close all exculpatory evidence to the defense.
In his supplemental postconviction motion, Devers elabo-
rated that the prosecution committed misconduct by with-
holding from the jury and the defense the “dismissal docu-
ment of . . . Goynes which would have shown that the
[S]tate lacked the necessary elements to convict [Devers] of
FELONY MURDER with the underlying felony being that
of ROBBERY.” Again, Devers asserted he was prejudiced
because had the jury known the charges against Goynes “had
been dismissed due to lack of any evidence and witnesses to
confirm the [S]tate’s theory then the outcome of the trial for
[Devers] would have been different, no trier of fact would
convict a man of a crime [in which] it was impossible for
him to commit.” Devers concluded this paragraph by reit-
erating that the prosecution had a duty to disclose exculpa-
tory evidence.
3. Order Denying Evidentiary Hearing
The postconviction court considered the original and the
supplemental motions together and rejected, without an
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866evidentiary hearing, what it summarized to be 16 claims
for postconviction relief, most of which are not at issue in
this appeal.
(a) Ineffective Assistance
As relevant to this appeal, the postconviction court found an
evidentiary hearing was not warranted on Devers’ claim that
“trial counsel” should have produced evidence that the charges
against his codefendant, Goynes, had been dismissed, because
this allegation of ineffective assistance of trial counsel could
have been raised in the direct appeal and was not. Therefore, it
was procedurally barred.
The court did not explicitly address a layered claim in ren-
dering its judgment denying postconviction relief without an
evidentiary hearing. However, we treat this omission as a con-
structive denial of relief with respect to this allegation. 3
(b) Prosecutorial Misconduct
With respect to Devers’ claim of postconviction relief, the
postconviction court simply found, “Devers does not set forth
any specifics on this claim. Therefore, this claim is denied.”
III. ASSIGNMENTS OF ERROR
Devers assigns that the postconviction court erred in “fail-
ing to construe the claims raised in Devers[’] postconviction
motion(s) liberally pursuant to controlling Supreme Court law,
which would have resulted in either (1) the district court grant-
ing an evidentiary hearing to resolve material, factual disputes
in the record; or (2) the vacating of Dever[s’] convictions
and sentence.”
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defend­
ant failed to allege sufficient facts to demonstrate a violation
3
See State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866of his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief. 4
V. ANALYSIS
[2,3] Devers argues on appeal that had the court liberally
construed his postconviction motion, it would have found
merit to the postconviction allegations relating to Goynes’
being dismissed as a codefendant prior to trial. Devers relies on
older federal case law for the proposition that pro se petition-
ers’ pleadings should be interpreted liberally. 5 Postconviction
proceedings have their own pleading requirements, and the
liberal pleading rules that govern civil actions are inconsistent
with postconviction proceedings. 6 Furthermore, in Nebraska, a
pro se party is held to the same standards as one who is repre-
sented by counsel. 7 We find no merit to Devers’ argument that
his postconviction motion should have been construed liber-
ally because he filed it pro se.
In his brief, Devers argues that on “an alternative basis,
even without construing Devers[’] claims liberally . . . the
record plainly reflects that Devers straight-forwardly asserted
that his appellate counsel was ineffective for failing to assert
that his trial attorney was ineffective” 8 for failing to raise
to the trial court his alleged innocence premised on the dis-
missal of the charges against Goynes. Devers states that “a
candid, scrutinizing examination” of his claims relating to
the dismissal of Goynes’ charges “required the district court
4
State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
5
Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980);
Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972);
Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148(1963); Jones v. Jerrison, 20 F.3d 849 (8th Cir. 1994); Crooks v. Nix, 872
F.2d 800 (8th Cir. 1989); White v. Wyrick, 530 F.2d 818 (8th Cir. 1976);
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
6
See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
7
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
8
Brief for appellant at 26.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866to find that Devers[’] claim was not procedurally barred —
because . . . his appellate attorney was ineffective for failing
to raise the claim of his trial attorney[’]s ineffectiveness in
that regard.” 9
Likewise, with respect to prosecutorial misconduct, he
argues that “even without having to construe Devers[’] factual
and legal allegations liberally, the record reflects that the dis-
trict court failed to take note of the plainly fleshed out claim
that the prosecutor committed misconduct by misleading the
jury into believing that . . . Goynes was, in fact, guilty.” 10
While Devers’ assignment of error could have been better
expressed, we disagree with the State’s assertion that it fails
to adequately encompass Devers’ arguments in his appellate
brief that, even without employing a liberal construction of his
postconviction filings, the district court erred by dismissing
allegations relating to the dismissal of charges against Goynes
without an evidentiary hearing. We turn to the merits of the
postconviction court’s dismissal of those claims.
[4,5] The district 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
infringement of the defendant’s rights under the state or fed-
eral Constitution. 11 An evidentiary hearing is not required on
a motion for postconviction relief when (1) the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the
judgment void or voidable; (2) the motion alleges only conclu-
sions of fact or law without supporting facts; or (3) the records
and files affirmatively show that the defendant is entitled to
no relief. 12
9
Id. at 25.
10
Id. at 31.
11
State v. Jaeger, supra note 7.
12
Id.- 875 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 8661. Layered Claim That Trial Counsel Was Ineffective
for Failing to Raise Alleged “Legal Innocence”
by Virtue of Dismissal of Charges
Against Goynes
[6] We agree with Devers that the district court incor-
rectly failed to recognize Devers had alleged a layered claim
of ineffective assistance of counsel respecting the dismissal
of charges against Goynes. That said, a correct result will not
be set aside merely because the lower court applied the wrong
reasoning in reaching that result. 13 And the postconviction
court reached the correct result.
[7] Neb. Rev. Stat. § 28-206 (Reissue 2016) provides, “A
person who aids, abets, procures, or causes another to com-
mit any offense may be prosecuted and punished as if he were
the principal offender.” We have recognized that this statute
abolishes the common-law distinction between a principal and
an aider and abettor. 14 The intent of the Legislature was “‘to
abrogate all distinction heretofore existing between such aider,
abettor, or procurer and the one committing the act.’” 15 By
statute, all persons involved in the commission of a crime, as
aider, abettor, procurer, or the one committing the act, are con-
sidered principals. 16
[8-11] Accordingly, the law is well established that under
§ 28-206, the conviction of the principal is not necessary for
the conviction of an aider and abettor. 17 In fact, to convict an
aider and abettor, it is not necessary that the identity of
the principal be established. 18 An aider and abettor can be
13
State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
14
See, State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004); State v.
Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
15
State v. Contreras, supra note 14, 268 Neb. at 801, 688 N.W.2d at 584,
quoting Scharman v. State, 115 Neb. 109, 211 N.W. 613 (1926).
16
See State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999).
17
State v. Foster, 196 Neb. 332, 242 N.W.2d 876 (1976). See, also, State v.
Alcorn, 187 Neb. 854, 194 N.W.2d 798 (1972).
18
See id.- 876 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866convicted of any crime, even a greater offense than the prin-
cipal, provided the conviction is supported by the evidence of
the facts and the defendant’s state of mind. 19 Absent special
circumstances, even acquittal of the principal does not prevent
conviction of an aider and abettor. 20 Society is no less injured
by the illegal acts of the aider and abettor when the principal
escapes conviction. 21
Premeditated murder and felony murder are different ways
to commit a single offense of first degree murder. 22 There
need not be an intent to kill in felony murder, only an intent
to commit the underlying felony. 23 The turpitude involved in
the robbery takes the place of the intent to kill in premedi-
tated murder and is sufficient to support life imprisonment. 24
There was evidence at trial that Devers arranged the robbery of
LeFlore, the underlying felony. Whether Devers himself physi-
cally assaulted, shot, and robbed LeFlore is of no consequence
in relation to his murder conviction.
[12,13] Devers’ appellate counsel was not ineffective
for failing to raise on direct appeal arguments concerning
Devers’ “legal innocence” as a consequence of the dismissal
of Goynes’ charges. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. 25 Defense coun-
sel is not ineffective for failing to raise an argument that has
no merit. 26
19
State v. Brunzo, supra note 14.
20
See 9 A.L.R.4th 972 (1981). See, also, Ray v. State, 13 Neb. 55, 13 N.W.
2 (1882).
21
See State v. Spillman, 105 Ariz. 523, 468 P.2d 376 (1970).
22
See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
23
See, e.g., State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985).
24
See id.25
See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
26
Id.- 877 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 8662. Layered Claim of Prosecutorial Misconduct
of Failing to Disclose to Trial Counsel
That Charges Against Goynes
Had Been Dismissed
Turning to Devers’ allegations relating to prosecutorial mis-
conduct, we agree with Devers that his claim did not, as the
postconviction court reasoned, lack “any specifics.” Devers
specified that the prosecution improperly withheld from the
defense evidence that the charges against Goynes had been
dismissed for lack of evidence.
Further, we disagree with the State’s contention that Devers’
claim is procedurally barred because it could have been raised
on direct appeal and he failed to state a layered claim against
appellate counsel for not doing so. As already described,
Devers asserted a layered claim that appellate counsel was
ineffective by failing to raise this alleged prosecutorial miscon-
duct on direct appeal. His motion for postconviction relief was
his first opportunity to bring such a claim.
[14,15] We conclude, however, that the postconviction court
did not err in denying Devers’ layered postconviction claim
without an evidentiary hearing. Under Brady v. Maryland, 27
prosecutors owe a duty to disclose favorable evidence to crimi-
nal defendants prior to trial. 28 The prosecution’s undisclosed
evidence must be material either to guilt or to punishment, and
the prosecution’s suppression of favorable evidence violates
a defendant’s due process right to a fair trial only if the sup-
pressed evidence is sufficiently significant to undermine confi-
dence in the verdict. 29
Devers asserted the alleged suppression of the alleged dis-
missal of Goynes’ charges undermined the verdicts, because
such dismissal rendered convictions against Devers, as an
27
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
28
State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021) modified on denial
of rehearing 309 Neb. 399, 959 N.W.2d 818.
29
State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. DEVERS
Cite as 313 Neb. 866aider and abettor, legally impossible. We have already
explained this premise lacks merit. As such, counsel was not
ineffective for failing to raise this argument of prosecutorial
misconduct on direct appeal.
VI. CONCLUSION
Because all persons involved in the commission of a crime
are considered principals, Devers’ allegations concerning the
failure of counsel to raise alleged errors concerning the dis-
missal of charges against Goynes, if proved, did not constitute
an infringement of Devers’ constitutional rights rendering his
convictions and sentences void or voidable. Therefore, albeit
based upon reasons different from those expressed by the
postconviction court concerning these allegations, we affirm
its judgment denying postconviction relief without an eviden-
tiary hearing.
Affirmed.