State v. Williams ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/20/2017 08:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
State of Nebraska, appellee, v.
Decabooter Williams, appellant.
___ N.W.2d ___
Filed January 20, 2017. No. S-16-083.
1. Postconviction: Proof: Appeal and Error. A defendant requesting
postconviction relief must establish the basis for such relief, and the
findings of the district court will not be disturbed unless they are clearly
erroneous.
2. 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.
3. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law. When
reviewing questions of law, an appellate court resolves the questions
independently of the lower court’s conclusion.
4. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations.
5. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
6. Postconviction: Records. Neb. Rev. Stat. § 29-3001(2) (Reissue 2016)
requires that the court grant a prompt hearing unless the motion and the
files and records of the case show to the satisfaction of the court that
the prisoner is entitled to no relief.
7. Postconviction: Constitutional Law: Proof: Records. Under the
Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004
(Reissue 2016), an evidentiary hearing on a motion for postconviction
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STATE v. WILLIAMS
Cite as 295 Neb. 575
relief must be granted when the motion contains factual allegations
which, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion alleges
only conclusions of fact or law, or the records and files in the case
affirm­atively show that the movant is entitled to no relief, no evidentiary
hearing is required.
8. Postconviction: Effectiveness of Counsel: Appeal and Error. A
motion for postconviction relief asserting ineffective assistance of trial
counsel is procedurally barred when (1) the defendant was represented
by a different attorney on direct appeal than at trial, (2) an ineffective
assistance of trial counsel claim was not brought on direct appeal, and
(3) the alleged deficiencies in trial counsel’s performance were known
to the defendant or apparent from the record.
9. Postconviction: Appeal and Error. On postconviction relief, a defend­
ant cannot secure review of issues which were or could have been
litigated on direct appeal. A defendant is entitled to bring a second pro-
ceeding for postconviction relief only if the grounds relied upon did not
exist at the time the first motion was filed.
10. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a
defendant is represented both at trial and on appeal by the same lawyers,
the defendant’s first opportunity to assert the ineffective assistance of
trial counsel is in a postconviction motion.
11. Effectiveness of Counsel: Proof. Under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant has the
burden to show that (1) counsel performed deficiently—that is, counsel
did not perform at least as well as a lawyer with ordinary training and
skill in criminal law—and (2) this deficient performance actually preju-
diced the defendant in making his or her defense.
12. ____: ____. The prejudice prong of the ineffective assistance of counsel
test requires that the defendant show a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding in ques-
tion would have been different.
13. Effectiveness of Counsel: Words and Phrases. A reasonable probabil-
ity is a probability sufficient to undermine confidence in the outcome.
14. Effectiveness of Counsel: Appeal and Error. An appellate court may
address the two prongs of the ineffective assistance of counsel test, defi-
cient performance and prejudice, in either order.
15. Trial: Effectiveness of Counsel: Appeal and Error. In determining
whether trial counsel’s performance was deficient, there is a strong pre-
sumption that counsel acted reasonably.
16. Trial: Attorneys at Law. Trial counsel is afforded due deference to
formulate trial strategy and tactics.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
17. Effectiveness of Counsel: Presumptions: Appeal and Error. The
entire ineffectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found unrea-
sonable, the error justifies setting aside the judgment only if there
was prejudice.
18. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and
Error. When reviewing a claim of ineffective assistance of counsel,
an appellate court will not second-guess reasonable strategic decisions
by counsel.
19. Right to Counsel. When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to the court for
the removal of counsel, his or her only alternative is to proceed pro se if
he or she is competent to do so.
20. ____. An indigent defendant’s right to counsel does not give the defend­
ant the right to choose his or her own counsel.
21. Trial: Prosecuting Attorneys: Appeal and Error. When considering
a claim of prosecutorial misconduct, an appellate court first considers
whether the prosecutor’s acts constitute misconduct. If it concludes that
the prosecutor’s acts were misconduct, it next considers whether the
misconduct prejudiced the defendant’s right to a fair trial.
22. ____: ____: ____. In determining whether a prosecutor’s improper con-
duct prejudiced the defendant’s right to a fair trial, an appellate court
considers the following factors: (1) the degree to which the prosecutor’s
conduct or remarks tended to mislead or unduly influence the jury; (2)
whether the conduct or remarks were extensive or isolated; (3) whether
defense counsel invited the remarks; (4) whether the court provided
a curative instruction; and (5) the strength of the evidence supporting
the conviction.
23. Trial: Prosecuting Attorneys: Juries. Prosecutors are not to inflame
the prejudices or excite the passions of the jury against the accused.
24. Insanity: Proof. The two requirements for the insanity defense are
that (1) the defendant had a mental disease or defect at the time of the
crime and (2) the defendant did not know or understand the nature and
consequences of his or her actions or that he or she did not know the
difference between right and wrong.
25. Insanity: Intoxication. Insanity immediately produced by intoxication
does not destroy responsibility when the defendant, when sane and
responsible, made himself or herself voluntarily intoxicated.
26. Criminal Law: Intoxication: Intent. Voluntary intoxication is no justi-
fication or excuse for crime unless the intoxication is so excessive that
the person is wholly deprived of reason so as to prevent the requisite
criminal intent.
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STATE v. WILLIAMS
Cite as 295 Neb. 575
27. Criminal Law: Intoxication: Mental Competency. As a matter of law,
voluntary intoxication is not a complete defense to a crime, even when
it produces psychosis or delirium.
28. Insanity: Intoxication. A defendant may not assert an insanity defense
when the insanity was temporary and brought on solely by voluntary
intoxication through the use of drugs.
29. Homicide: Intent. It is not the provocation alone that reduces the
grade of the crime, but, rather, the sudden happening or occurrence of
the provocation so as to render the mind incapable of reflection and
obscure the reason so that the elements necessary to constitute murder
are absent.
30. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
31. Trial: Photographs. The admission of photographs of a gruesome
nature rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value against their
prejudicial effect.
32. Trial: Photographs: Homicide: Intent. In a homicide prosecution, a
court may admit into evidence photographs of a victim for identifica-
tion, to show the condition of the body or the nature and extent of
wounds and injuries to it, and to establish malice or intent.
33. Postconviction: Constitutional Law: Effectiveness of Counsel. There
is no constitutional guarantee of effective assistance of counsel in a
postconviction proceeding.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Reversed and remanded with directions.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Heavican, C.J.
I. INTRODUCTION
Decabooter Williams was convicted of two counts of first
degree murder. His convictions and sentences were affirmed on
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STATE v. WILLIAMS
Cite as 295 Neb. 575
direct appeal.1 A subsequent postconviction motion was denied,
and the appeal from that denial was dismissed for the failure
to file a brief. Williams then filed a second motion for post-
conviction relief, which was granted in part and in part denied.
Williams appeals. We reverse, and remand with directions.
II. BACKGROUND
Williams was convicted of two counts of first degree mur-
der in connection with the deaths of Victoria Burgess and
LaTisha Tolbert in a 2003 house fire. Eyewitness testimony
and surveillance video presented at Williams’ trial, in addition
to Williams’ taped confession, established the following over-
whelming evidence that Williams committed the crimes for
which he was charged.
According to the evidence, Burgess and Williams had an
argument at Burgess’ house. Following the argument, Williams
went to a convenience store where he filled a wine bottle with
gasoline and obtained matches. Williams woke Diane Williams
(Diane), his former girlfriend who lived with Burgess, and
warned her to leave because he was going to burn the house
down. Williams then poured gasoline around the interior of the
house and lit it. Diane escaped through a window, but Burgess
and Tolbert perished in the fire. A more detailed summary of
the facts can be found in our opinion on direct appeal.
1. Trial
Following a jury trial, Williams was convicted of two counts
of murder in the first degree. He was sentenced to life without
parole on both counts. Williams was represented at trial by
counsel from the Douglas County public defender’s office.
2. Direct A ppeal
Williams appealed his convictions.2 He was represented
on appeal by different counsel than at trial. His direct appeal
1
State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005).
2
Id.
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STATE v. WILLIAMS
Cite as 295 Neb. 575
counsel was appointed by the court. On appeal, Williams con-
tended that (1) he did not voluntarily waive his Miranda rights,
because he was sleep deprived and intoxicated and therefore
his confession should be suppressed; (2) he should have been
allowed to use a transcript of a taped statement to refresh a wit-
ness’ recollection; and (3) the court improperly instructed the
jury that Williams had been charged with arson.3
On May 27, 2005, this court affirmed Williams’ convictions,
holding that the trial court did not err in allowing Williams’
confession into evidence, because “[h]e waived any argument
about the use of a police transcript to refresh Diane’s recollec-
tion or to impeach her testimony, and he was not denied effec-
tive assistance of counsel.”4
3. First Motion for Postconviction R elief
On August 5, 2009, Williams, by and through court-appointed
direct appeal counsel, filed his first petition for postconviction
relief. Williams argued that he was denied due process of law,
the right to effective assistance of counsel, and the right to
properly cross-examine and confront all witnesses against him
because of trial counsel’s failure to (1) take the deposition of
Diane, (2) make an offer of proof and preserve the record as
to Diane’s prior inconsistent statements in her recorded police
interview, (3) object to improper jury instructions that Williams
was charged with arson and make a record of the same, (4)
assert a “drug psychosis/insanity” defense, and (5) object to
the playing of the taped confession. The State filed a motion
to dismiss.
On December 8, 2010, the district court filed an order sus-
taining the State’s motion to dismiss Williams’ petition for post-
conviction relief without an evidentiary hearing. The district
court rejected the claims, holding that (1) trial counsel’s failure
to depose Diane would have been apparent to Williams at the
3
Id.
4
Id. at 925, 697 N.W.2d at 280.
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295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
time of appeal or apparent from the record, because Diane’s
deposition was not in the record; (2) trial counsel’s failure to
make an offer of proof or otherwise preserve the record would
not have resulted in not guilty verdicts, because there was sig-
nificant other evidence that would support the jury’s verdicts;
(3) trial counsel’s failure to object to improper jury instructions
that Williams was “‘charged’ with arson” and make record of
the same was not prejudicial error, because the jury instruc-
tions, when taken together, were not prejudicial; (4) trial coun-
sel’s failure to assert a drug psychosis/insanity defense was an
issue that would have been apparent to Williams at the time of
appeal or apparent from the record, because Williams’ drug and
alcohol abuse was raised in his motion to suppress a statement;
and (5) trial counsel’s failure to object to the playing of a taped
confession would have been apparent to Williams at the time of
appeal or apparent from the record.
4. A ppeal of First Postconviction
Williams appealed from the denial of his first postconvic-
tion motion. The district court again appointed direct appeal
counsel to represent Williams in his postconviction appeal.
On April 25, 2011, in case No. S-11-035, this court dismissed
the appeal, because Williams’ counsel failed to file a brief.
Williams sought discharge of counsel due to counsel’s fail-
ure to file a brief, and direct appeal counsel filed a motion
to withdraw.
5. Second Motion for Postconviction R elief
Williams filed a second motion for postconviction relief.
The district court granted counsel’s motion to withdraw as
counsel for Williams, and the court appointed the Nebraska
Commission on Public Advocacy to represent Williams in his
motion for postconviction relief.
In his second motion, Williams argued that he was denied
the right to effective assistance of both trial counsel and direct
appeal counsel. Williams filed a second amended motion for
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
postconviction relief that incorporated the arguments from
Williams’ first motion for postconviction relief and his second
motion prior to amendment.
Williams argued that his direct appeal and first postconvic-
tion counsel was operating under a conflict of interest when
he represented Williams on postconviction after representing
him on direct appeal, because he could not raise his own inef-
fectiveness. Therefore, if granted a new direct appeal, Williams
would argue, in addition to the arguments in his first motion for
postconviction relief, there was an unconstitutional breakdown
in the attorney-client relationship at the trial, direct appeal, and
postconviction levels.
Additionally, Williams argued that counsel, when represent-
ing Williams as direct appeal counsel, erred in failing to assign
as error trial counsel’s failure to (1) take Diane’s deposition;
(2) make an offer of proof or otherwise preserve the record
regarding Diane’s inconsistent statements; (3) object to the
playing of a redacted version of Williams’ postarrest statement;
(4) investigate a college student witness who had conducted
a survey at the jail where Williams was incarcerated; (5)
withdraw following Williams’ oral motion for new counsel at
his sentencing hearing; (6) object to the testimony of Officer
Barry DeJong as to an admission that implied the existence
of Williams’ propensity for criminal activity; (7) timely object
and move for a mistrial due to improper statements during the
closing arguments presented by the State; (8) assert a drug
psychosis/insanity or drug impairment defense; (9) present a
defense that the fire was started accidentally or due to provo-
cation; (10) comply with Williams’ request to view discovery;
and (11) communicate with Williams.
Williams also argued the following claims solely against
direct appeal counsel: (1) an unconstitutional breakdown in
the attorney-client relationship at the direct appeal level and
(2) a failure to present and preserve for review the claim that
two gruesome photographs were received over trial counsel’s
objections. Williams further contended that appellate counsel
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STATE v. WILLIAMS
Cite as 295 Neb. 575
failed to (1) withdraw from the case prior to the initial post-
conviction proceeding and (2) file Williams’ brief in the appeal
of the initial postconviction proceeding.
The State filed a motion to dismiss, arguing that Williams’
claims were procedurally barred. In addition, the State argued
that any remaining issues that were not procedurally barred
should be overruled, as the motion alleged only conclusions
of fact or law, or the records and files affirmatively show that
Williams was not entitled to relief.
On January 20, 2016, the district court partially granted
Williams’ amended successive postconviction motion without
an evidentiary hearing. The district court’s order stated in per-
tinent part:
In his Second Amended Motion for Post-conviction Relief
[Williams] raises other issues which almost entirely relate
to the issues that [he] was not able to raise in the first
post-conviction relief proceedings due to the aforemen-
tioned failure to timely file a brief.
. . . [F]ailure to raise the issue of whether trial counsel
was ineffective in [Williams’] appeal and post-conviction
proceedings for failing to make an offer of proof as to the
contents of the police transcript which was objected to
by the State at trial and the Court sustained the objection
. . . would not likely have made any difference even if it
was in the record as an offer of proof because there was
significant other evidence that would support the jury’s
verdict including [Williams’] own confession to starting
the fire . . . .
While the Court generally agrees with the State’s argu-
ment that [Williams] does not have a constitutional right
to effective post-conviction counsel (see State v. Becerra,
263 Neb. 753[, 642 N.W.2d 143] (2002)[)], where
[Williams] was denied the opportunity to present issues in
his appeal of the Court’s Order on post-conviction due to
alleged ineffective assistance of counsel, [he] was denied
an important opportunity which should be restored.
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295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
While Neb. Rev. Stat. Sec. 29-3001 (3) provides that
the Court “need not” entertain a second motion or succes-
sive motions for post-conviction relief, it does not bar the
Court from such consideration.
On [Williams’] Second Motion for Post-conviction
Relief the Court orders that [Williams] is allowed to
appeal the Court’s Order of December 10, 2010 over-
ruling [his] Motion for Post-conviction Relief to the
Nebraska Supreme Court.
The district court relied largely on Neb. Rev. Stat. § 29-3001
(Reissue 2016) in its opinion. That statute states in perti-
nent part:
(2) Unless the motion and the files and records of the
case show to the satisfaction of the court that the prisoner
is entitled to no relief, the court shall cause notice thereof
to be served on the county attorney, grant a prompt hear-
ing thereon, and determine the issues and make findings
of fact and conclusions of law with respect thereto. If the
court finds that there was such a denial or infringement
of the rights of the prisoner as to render the judgment
void or voidable under the Constitution of this state or the
Constitution of the United States, the court shall vacate
and set aside the judgment and shall discharge the pris-
oner or resentence the prisoner or grant a new trial as may
appear appropriate. . . .
(3) A court may entertain and determine such motion
without requiring the production of the prisoner, whether
or not a hearing is held. Testimony of the prisoner or
other witnesses may be offered by deposition. The court
need not entertain a second motion or successive motions
for similar relief on behalf of the same prisoner.
The district court held that Williams was “allowed to appeal
the Court’s Order of December 10, 2010 overruling [his]
Motion for Post-conviction Relief to the Nebraska Supreme
Court.” Williams appealed from the district court’s order.
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STATE v. WILLIAMS
Cite as 295 Neb. 575
III. ASSIGNMENTS OF ERROR
Williams assigns, restated and consolidated, that the district
court erred in (1) granting postconviction relief without an
evidentiary hearing, (2) granting limited postconviction relief
of a reinstated appeal of the denial of postconviction relief
under the first postconviction motion, and (3) denying the
remainder of Williams’ allegations of ineffective assistance of
trial and appellate counsel.
IV. STANDARD OF REVIEW
[1-3] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the dis-
trict court will not be disturbed unless they are clearly errone-
ous.5 In appeals from postconviction proceedings, we review
de novo a determination that the defendant failed to allege
sufficient facts to demonstrate a violation of his or her consti-
tutional rights or that the record and files affirmatively show
that the defendant is entitled to no relief.6 Whether a claim
raised in a postconviction proceeding is procedurally barred is
a question of law. When reviewing questions of law, an appel-
late court resolves the questions independently of the lower
court’s conclusion.7
V. ANALYSIS
Williams makes various arguments on appeal, but the crux
of his argument is that the district court should have never
permitted direct appeal counsel to also represent Williams in
Williams’ first postconviction motion. Williams additionally
contends that the relief granted by the district court—a rein-
stated appeal from the denial of Williams’ first postconviction
motion—was erroneous.
5
State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
6
State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).
7
Id.
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STATE v. WILLIAMS
Cite as 295 Neb. 575
1. District Court’s Authority
(a) Lack of Evidentiary Hearing
We turn first to Williams’ assertion that the district court
erroneously granted limited postconviction relief without an
evidentiary hearing. The district court ruled—without hold-
ing an evidentiary hearing—that Williams was “allowed to
appeal the Court’s Order of December 10, 2010 overrul-
ing [his] Motion for Post-conviction Relief to the Nebraska
Supreme Court.”
Williams contends that because § 29-3001(2) of the Nebraska
Postconviction Act8 gives the district court the option to either
determine that the defendant is entitled to no relief based on a
review of the record or grant a hearing on the motion, the dis-
trict court erred in granting a new appeal from Williams’ first
postconviction motion without holding an evidentiary hearing.
Williams also cites to State v. Jim.9
This court held in Jim that a court commits reversible error
if postconviction relief is granted without an evidentiary hear-
ing and the making of findings of fact and conclusions of law.
In addition, Williams notes, this court is clear in Jim that the
relief should be a “new” direct appeal, and not a “reinstated”
direct appeal.10
The State agrees that the district court had no authority to
grant such relief without an evidentiary hearing. However, the
State argues that the district court had no authority to grant
such relief, with or without an evidentiary hearing, because it
was successive relief so the court’s failure to comply with nec-
essary procedure is immaterial.
[4-7] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional vio-
lations.11 In a motion for postconviction relief, the d­ efendant
8
See Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
9
State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
10
Brief for appellant at 16.
11
State v. Bazer, 276 Neb. 7, 17, 751 N.W.2d 619, 627 (2008).
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must allege facts which, if proved, constitute a denial or
violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be
void or voidable.12 Section 29-3001(2) requires that the court
grant a prompt hearing “[u]nless the motion and the files and
records of the case show to the satisfaction of the court that
the prisoner is entitled to no relief . . . .” Under the act, an evi-
dentiary hearing on a motion for postconviction relief must be
granted when the motion contains factual allegations which, if
proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion
alleges only conclusions of fact or law, or the records and files
in the case affirmatively show that the movant is entitled to no
relief, no evidentiary hearing is required.13
The record indicates that the district court did not grant
Williams an evidentiary hearing prior to awarding Williams
the limited relief of an appeal from the denial of the first post-
conviction motion. But, as we make clear in Jim, and as the
plain language of § 29-3001 states, in order to award relief, a
prompt hearing must first be held “‘[u]nless the motion and
the files and records of the case show to the satisfaction of
the court that the prisoner is entitled to no relief . . . .’” The
failure to hold such a hearing before ordering reinstatement
was error.
(b) Whether Williams’ Claims
Were Procedurally Barred
We turn next to the question of whether the district court
had the authority to grant any postconviction relief at all. The
State contends that it did not, as all of Williams’ claims were
procedurally barred.
[8,9] As noted above, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively
show that the movant is entitled to no relief, no evidentiary
12
State v. Jim, supra note 9.
13
Id.
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hearing is required.14 A motion for postconviction relief assert-
ing ineffective assistance of trial counsel is procedurally barred
when (1) the defendant was represented by a different attorney
on direct appeal than at trial, (2) an ineffective assistance of
trial counsel claim was not brought on direct appeal, and (3)
the alleged deficiencies in trial counsel’s performance were
known to the defendant or apparent from the record.15 On post-
conviction relief, a defendant cannot secure review of issues
which were or could have been litigated on direct appeal.16 A
defendant is entitled to bring a second proceeding for postcon-
viction relief only if the grounds relied upon did not exist at the
time the first motion was filed.17
(i) Trial Counsel
We first address Williams’ claims of ineffective assistance
of trial counsel. Williams was represented by different counsel
on direct appeal than at trial. Williams brought one ineffective
assistance of trial counsel argument in his direct appeal. All of
Williams’ allegations of ineffective assistance of trial counsel
could have been raised on direct appeal because he had differ-
ent appellate counsel than trial counsel. The claims of ineffec-
tive assistance of trial counsel are procedurally barred.
(ii) Direct Appeal Counsel
We turn next to Williams’ claims of ineffective assistance
of his direct appeal counsel. Williams argues that he could
not raise the ineffective assistance of appellate counsel claims
because of the continued representation of direct appeal coun-
sel in his first postconviction relief proceedings. The State
argues that although Williams had the same counsel for direct
appeal and for his first postconviction proceeding, this was
14
Id. at 487, 747 N.W.2d at 415.
15
State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
16
See State v. Bazer, supra note 11.
17
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
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not his first opportunity to raise claims against direct appeal
counsel, because he could have raised those claims pro se in
the prior postconviction.
[10] In State v. Payne,18 this court held that the defendant’s
claims of ineffective assistance of trial counsel were not pro-
cedurally barred, despite his failure to raise them on direct
appeal, because trial counsel was still engaged as counsel
during the critical appeal period. This court reasoned that
“[i]f trial counsel was still engaged as counsel, trial counsel
could not be expected to raise or address his or her own inef-
fectiveness, and the failure to file such an appeal would not
result in those claims being procedurally barred in a later
postconviction action.”19 If the court required counsel to raise
his or her own ineffectiveness, it “would create the potential
for a conflict of interest.”20 This court ultimately held that
“where a defendant is represented both at trial and on appeal
by the same lawyers, the defendant’s first opportunity to assert
the ineffective assist­ance of trial counsel is in a postconvic-
tion motion.”21
In State v. Bazer,22 this court held that the defendant’s claims
of ineffective assistance of trial counsel were not procedur-
ally barred in his motion for postconviction relief, despite the
defendant’s failure to file a direct appeal or to allege that his
counsel was ineffective for failing to file a direct appeal. The
court reasoned:
When a defendant was represented both at trial and on
direct appeal by the same lawyers, the defendant’s first
opportunity to assert ineffective assistance of trial coun-
sel is in a motion for postconviction relief. The same is
18
State v. Payne, supra note 6.
19
Id. at 472, 855 N.W.2d at 787.
20
Id. at 471, 855 N.W.2d at 786.
21
Id. at 472, 855 N.W.2d at 787.
22
State v. Bazer, supra note 11.
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true where trial counsel elects not to file a direct appeal
at all.23
Williams was represented by the same counsel on both
direct appeal and in his first postconviction motion. Counsel
then failed to file an appeal to Williams’ first postconviction
motion. Different counsel was appointed to Williams for his
second postconviction motion. As in Payne, Williams’ first
postconviction counsel “could not be expected to raise or
address his or her own ineffectiveness.”24 This is true even
though, ordinarily, the failure to raise the ineffective assistance
of direct appeal counsel in a postconviction proceeding would
make those claims procedurally barred.
The State argues that Williams had a pro se duty to raise
his ineffective assistance of counsel claims against appellate
counsel. We reject that assertion in the context of appointed
counsel in this case. The State has provided no support for
its claim, and we find it to be without merit. Williams has a
Sixth Amendment right to the effective assistance of counsel
on direct appeal.25 And Williams’ first meaningful opportu-
nity to raise the issue of ineffective assistance of appellate
counsel was in his second postconviction motion, after he was
appointed different counsel that could allege the ineffective-
ness of appellate counsel.
We therefore hold that under these facts, Williams may raise
his ineffective assistance of appellate counsel claims in his
second postconviction motion in this case. Because Williams
was appointed the same counsel by the court on both direct
appeal and on his motion for postconviction relief, the second
motion was Williams’ first opportunity to raise a claim of
violation of his constitutional right to effective assistance of
appellate counsel. Williams’ claims of ineffective assistance
concerning counsel’s representation on direct appeal, including
23
Id. at 18, 751 N.W.2d at 627.
24
See State v. Payne, supra note 6, 289 Neb. at 472, 855 N.W.2d at 787.
25
See U.S. Const. amend. VI.
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his “layered claims” of failure to raise ineffectiveness of trial
counsel, are not procedurally barred.26
This ruling does not expand the Nebraska Postconviction
Act. Williams did not have a meaningful opportunity to chal-
lenge his assistance of appellate counsel prior to his second
motion for postconviction relief, as he was represented by the
same appointed counsel on direct appeal in his first motion
for postconviction, and on the appeal of his first postconvic-
tion relief. We discourage courts from appointing the same
counsel for direct appeal and postconviction relief in order to
avoid situations in which a defendant’s ineffective assistance
of counsel claims are preserved until the second postconviction
relief motion.
2. A nalysis of Claims Under Strickland
[11-14] Because we have determined that Williams’ claims
of ineffective assistance of direct appeal counsel are not pro-
cedurally barred, we analyze the claims under the two-prong
test set forth in Strickland v. Washington.27 Under Strickland,
a defendant has the burden to show that (1) counsel performed
deficiently—that is, counsel did not perform at least as well
as a lawyer with ordinary training and skill in criminal law—
and (2) this deficient performance actually prejudiced the
defendant in making his or her defense.28 The prejudice prong
of the ineffective assistance of counsel test requires that the
defendant show a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding in question
would have been different.29 A reasonable probability is a prob-
ability sufficient to undermine confidence in the outcome.30
26
Brief for appellant at 29.
27
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
28
See State v. Jackson, supra note 15.
29
Id.
30
Id.
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An appellate court may address the two prongs of this test,
deficient performance and prejudice, in either order.31
[15-18] In determining whether trial counsel’s performance
was deficient, there is a strong presumption that counsel acted
reasonably.32 Trial counsel is afforded due deference to for-
mulate trial strategy and tactics.33 The entire ineffectiveness
analysis is viewed with a strong presumption that counsel’s
actions were reasonable and that even if found unreasonable,
the error justifies setting aside the judgment only if there was
prejudice.34 When reviewing a claim of ineffective assistance
of counsel, an appellate court will not second-guess reason-
able strategic decisions by counsel.35
(a) Claims of Ineffective Assistance of
Direct Appeal Counsel Failing to Allege
Ineffectiveness of Trial Counsel
(i) Failure to Take Diane’s Deposition
Williams argues that appellate counsel failed to assign as
error the failure of trial counsel to make an offer of proof con-
cerning the disparity between Diane’s statements to the police
and her trial testimony as to when the fire started.
Diane’s statements to the police were inconsistent with her
trial testimony that Williams woke her and warned her to leave
prior to burning down the house. Diane was never deposed,
and her statements in the police report were ruled inadmissible
at trial.
We find that Williams was not prejudiced by any alleged
deficient conduct. Other evidence introduced at trial, in addi-
tion to Diane’s testimony, included (1) a neighbor’s testimony
31
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
32
State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
33
Id.
34
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
35
State v. Jim, supra note 9.
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that following an argument with Burgess, one of the victims,
Williams went to the neighbor’s house and asked for a gun,
which request the neighbor refused; (2) a convenience store
employee’s testimony that Williams went to a convenience
store, where he filled a bottle with gasoline and obtained
matches; (3) surveillance footage of Williams at the conve-
nience store filling a bottle with gasoline; and (4) the neigh-
bor’s testimony that Williams returned to the neighbor’s home
and stated that he was going to burn Burgess’ house down.36 In
addition, Williams confessed to starting the fire.
In light of the evidence outside of Diane’s testimony,
there is not a reasonable probability that any discrepancy in
Diane’s testimony would have affected the jury’s finding that
Williams started the fire intentionally. Any deficient conduct
was not prejudicial, and as such, counsel’s performance was
not ineffective.
(ii) Failure to Make Offer of Proof
or Otherwise Preserve Record
Williams argues that direct appeal counsel failed to assign
as error the failure of trial counsel to make an offer of proof
of the police transcript of Diane’s statements for the purpose
of impeachment or to refresh her memory.
On direct appeal, this court held that the issue was waived
as to whether the “trial court erred when it denied the use of
a police transcript of Diane’s statements for the purpose of
impeachment or to refresh her recollection,” because Williams
failed to make an offer of proof and the transcript was not in
the record.37 In its order denying Williams’ first postconviction
motion, the district court held that the disparity of Diane’s in-
court testimony and statement in the police report would not
have made any difference in the jury verdicts, because there
was “significant other evidence that would support the jury’s
36
State v. Williams, supra note 1.
37
Id. at 923, 697 N.W.2d at 279.
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verdict[s], including [Williams’] own confession to starting
the fire.”
We agree that based on the evidence admitted at trial, aside
from Diane’s testimony, even if trial counsel performed defi-
ciently by failing to make an offer of proof of Diane’s testi-
mony, Williams was not prejudiced by that failure. Appellate
counsel’s performance was not ineffective.
(iii) Failure to Object to Playing
of Taped Confession
Williams argues that trial counsel failed to object to the
playing of a redacted version of a videotape of Williams’
interrogation. Williams contends that the officer had already
testified as to Williams’ statements recorded on the tape, so the
admission of the tape was cumulative evidence. Additionally,
Williams contended in his motion for postconviction relief that
the redaction did not accurately portray the interview, because
it eliminated the “‘down time’” between questions and failed
to show the “drowsy and weary state of mind that . . . Williams
exhibited during the interview.”
Even assuming that Williams’ trial counsel performed defi-
ciently when he failed to object to the admission of Williams’
taped police interview after the officer had already testified to
the interview, we do not find that trial counsel was ineffective.
Williams does not contend that his statements on the video
differed from the officer’s testimony of Williams’ statements.
He only contends that it was unduly cumulative. This court
has held that “[g]enerally, erroneous admission of evidence is
harmless error and does not require reversal if the evidence
is cumulative and other relevant evidence, properly admitted,
supports the finding by the trier of fact.”38 Williams was not
prejudiced by any failure on the part of his appellate counsel to
object to the taped confession.
38
State v. Jenkins, 294 Neb. 475, 487, 883 N.W.2d 351, 361 (2016).
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(iv) Failure to Investigate
Witness From Jail
Williams contends that trial counsel failed to investigate a
college student who was conducting a survey at the jail prior
to Williams’ police interview. Williams argues in his motion
for postconviction relief that he told the student that he could
not take part in the survey because his mind was “‘messed
up.’” Williams contends that this interaction could substanti-
ate a defense of his inability to make a knowing, intelligent,
and voluntary waiver of his rights before giving a statement
to law enforcement. Williams claims that he told trial counsel
about this interaction and that trial counsel failed to investi-
gate it further.
The police officer conducting the interview following
Williams’ alleged conversation with the college student testi-
fied that Williams stated that he had consumed “‘a bunch of
beer and gin’” and that he fell asleep “on a couple of occa-
sions” during the interview. The officer further testified that
despite this, during the interview, it did not appear Williams
was under the influence of alcohol or drugs and he appeared to
understand the questions and respond appropriately. Additional
testimony from the college student that Williams claimed he
was “messed up” would not have affected the jury’s deci-
sion. The conversation would likely have been inadmissible,
and even if it were admissible, it would not have proved that
Williams was unable to waive his Miranda rights. We fail to
see how Williams could have been prejudiced by any failure
of trial counsel to investigate this alleged conversation with a
college student.
(v) Counsel’s Continued Representation of
Williams Following Oral Motion for
New Counsel at Sentencing Hearing
Williams made an oral motion for new counsel during the
sentencing hearing, because (1) counsel and Williams had
numerous conflicts, (2) counsel did not provide discovery
when Williams requested it, (3) counsel did not call an expert
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witness to testify as to Williams’ substance abuse, (4) counsel
failed to inform Williams that the probation officer would con-
duct an interview, and (5) counsel may have failed to review
the presentence investigation report with Williams prior to
sentencing. No ruling on this motion is apparent on the record,
and the sentencing proceeded with continued representation
from trial counsel.
[19] When a defendant becomes dissatisfied with court-
appointed counsel, unless he or she can show good cause to the
court for the removal of counsel, his or her only alternative is
to proceed pro se if he or she is competent to do so.39
[20] Williams has a right to counsel, but he does not have
a right to counsel of his own choosing.40 Williams’ allegations
merely indicate dissatisfaction with his appointed counsel. We
conclude that counsel’s failure to withdraw did not prejudice
Williams’ defense.
Williams also contends that the district court erred in fail-
ing to appoint new counsel following his oral motion. For the
reasons stated above, we find no prejudice.
(vi) Testimony of Officer DeJong
Williams argues that trial counsel failed to object to the
admission of testimony from Officer DeJong. He testified that
when he asked Williams to go downtown to the police station
for an interview, Williams stated that he did not have a problem
with it, but that the last time he went with the police, he ended
up going to jail. Williams argues in his motion for postconvic-
tion relief that admission of the evidence of prior crimes was
unduly prejudicial and that “[w]ithout the taint of this evidence,
the results of the proceedings would have been different.”
Even assuming counsel was deficient in not objecting, we
find that Williams suffered no prejudice. Because of the over-
whelming evidence to support Williams’ convictions, including
39
State v. McPhail, 228 Neb. 117, 421 N.W.2d 443 (1988).
40
State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007).
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Williams’ confession to starting the fire, surveillance video of
him filling a bottle with gasoline, and eyewitness testimony,
we conclude that Williams was not prejudiced by any alleged
failure of trial counsel to object. Williams has not alleged facts
which, if true, would entitle him to postconviction relief.
(vii) Failure to Timely Object and Move for Mistrial
Due to Improper Statements During Closing
Arguments Presented by State
Williams argues that trial counsel failed to object to improper
statements made by the State during closing arguments. During
those arguments, the prosecutor stated that opposing counsel
was “blowing smoke,” and called Williams a “punk,” a “thief,”
and a “murderer.”
[21-23] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts consti-
tute misconduct.41 If we conclude that the prosecutor’s acts
were misconduct, we next consider “whether the misconduct
prejudiced the defendant’s right to a fair trial.”42 In determin-
ing whether a prosecutor’s improper conduct prejudiced the
defend­ant’s right to a fair trial, we consider the following
factors: (1) the degree to which the prosecutor’s conduct or
remarks tended to mislead or unduly influence the jury; (2)
whether the conduct or remarks were extensive or isolated; (3)
whether defense counsel invited the remarks; (4) whether the
court provided a curative instruction; and (5) the strength of
the evidence supporting the convictions.43 This court has held
that “[p]rosecutors are not to inflame the prejudices or excite
the passions of the jury against the accused.”44
41
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
42
Id. at 223, 854 N.W.2d at 602.
43
Id.
44
State v. Barfield, 272 Neb. 502, 512, 723 N.W.2d 303, 312 (2006),
disapproved on other grounds, State v. McCulloch, 274 Neb. 636, 742
N.W.2d 727 (2007).
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In his rebuttal closing arguments, the prosecutor stated that
Williams “is a punk.” The prosecutor further stated, “I thought
we had had enough smoke in this courtroom and in this case.
But defense counsel gets up and we have more.” The prosecu-
tor then referenced a quote from another prosecutor that “[i]f
you don’t have the courage to point to the defendant and call
him what he is — he’s a thief and he’s a murderer — you can’t
ask the jury to find him guilty.” The prosecutor then closed his
argument telling the jury, “[G]o back and do your duty. The
cries of Victoria Burgess, you answer them. You answer them,
ladies and gentlemen of the jury.”
While these statements appeal to the jury’s passions and
prejudices, we cannot conclude that these statements were of
such a nature as to mislead the jury. Moreover, considered in
light of the evidence at trial, the statement that Williams was
a “punk” was likely in reference to Diane’s testimony that
Williams told her after the fire that he “wasn’t going to be
treated like a punk.” First, the remarks were isolated in nature
in the context of the prosecutor’s rebuttal argument. The pros-
ecutor’s entire rebuttal argument consisted of just 172 lines of
the record. In addition, there is significant evidence support-
ing the convictions: testimony from Diane, the neighbor, and
the convenience store employee, and the surveillance video of
Williams filling a bottle with gasoline.
Any taint that resulted from the allegedly improper state-
ments made by the prosecutor were outweighed by the sig-
nificant weight of evidence that supported Williams’ con-
victions. Therefore, any improper conduct did not prejudice
Williams’ right to a fair trial. Finding no prejudice, we cannot
conclude that counsel was ineffective for failing to object to
the statements.
(viii) Failure to Assert Drug Psychosis/Insanity
or Drug Impairment Defense
Williams argues that direct appeal counsel should have raised
trial counsel’s failure to present evidence or a psychiatrist
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to show that Williams did not have the requisite intent to
commit the crime of arson due to his prolonged substance
abuse and his drug use prior to the fire and the subsequent
police interview.
[24-28] Under our current common-law definition, the two
requirements for the insanity defense are that (1) the defendant
had a mental disease or defect at the time of the crime and (2)
the defendant did not know or understand the nature and con-
sequences of his or her actions or that he or she did not know
the difference between right and wrong.45 Insanity immediately
produced by intoxication does not destroy responsibility when
the defendant, when sane and responsible, made himself or
herself voluntarily intoxicated.46 Voluntary intoxication is no
justification or excuse for crime unless the intoxication is so
excessive that the person is wholly deprived of reason so as to
prevent the requisite criminal intent.47 As a matter of law, vol-
untary intoxication is not a complete defense to a crime, even
when it produces psychosis or delirium.48 A defendant may not
assert an insanity defense when the insanity was temporary and
brought on solely by voluntary intoxication through the use
of drugs.49
As we understand Williams’ arguments, Williams contends
that he suffered from a mental defect at the time of the crime
due his prolonged drug use. Williams has not submitted any
further details of the effect of this alleged mental defect. Nor
does the evidence indicate that Williams did not know or
understand the nature and consequences of his actions or that
he did not know the difference between right and wrong.
45
State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
46
Id., citing Schlenker v. The State, 9 Neb. 241, 1 N.W. 857 (1879), reversed
9 Neb. 300, 2 N.W. 710.
47
See State v. Hotz, supra note 45.
48
Id.
49
Id.
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Rather, the evidence proves the contrary. According to
Diane’s testimony, Williams woke her and warned her to
leave the house prior to setting the house on fire. According
to the neighbor’s testimony, Williams asked him for a gun,
and when he refused to provide the gun, Williams made a
statement to the neighbor that he intended to burn the house
down. Williams then borrowed the neighbor’s telephone, called
Williams’ mother, and told her that “‘[t]he next time you hear
from me, you’ll be hearing from me from the penitentiary.’”
Furthermore, Diane testified that after Williams poured gaso-
line around the house and on one of the victims, he lit a match
that didn’t catch fire, and proceeded to light two more matches
which he threw on the gasoline in the house. This is strong
evidence of Williams’ intent to commit arson, that he under-
stood the nature of his actions, and that he knew the difference
between right and wrong.50
Williams contends that the evidence contained in the police
interview that he had consumed beer and gin in excess prior
to the time of the interview supports his argument regarding
intent. It is unclear from the record whether Williams was
intoxicated at the time of the interview or at the time he set
the fire. However, Williams alleges that he voluntarily became
intoxicated, which resulted in drug impairment and a drug-
induced psychosis. Since this court has found that a defendant
may not assert an insanity defense when the insanity was
temporary and brought on solely by voluntary intoxication,
Williams’ claim is not an actionable claim.
Therefore, Williams’ trial counsel was not deficient in fail-
ing to introduce evidence or call a psychiatrist to produce
evidence of Williams’ mental state as a result of drug and
alcohol use the day of the fire as well as his prolonged sub-
stance abuse. We conclude that Williams was not prejudiced
by any failure of trial counsel to pursue his suggested insan-
ity defense.
50
See State v. Williams, supra note 1.
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(ix) Failure to Present Defense That
Fire Was Started Accidentally
or Due to Provocation
Williams also alleges that trial counsel was ineffective for
failing to present a defense that the fire was not started inten-
tionally but was an accident or set as a result of provocation.
[29] This court has held that “[i]t is not the provocation
alone that reduces the grade of the crime, but, rather, the sud-
den happening or occurrence of the provocation so as to render
the mind incapable of reflection and obscure the reason so that
the elements necessary to constitute murder are absent.”51
According to testimony and surveillance video, following an
argument with Burgess at Burgess’ house, Williams went to a
neighbor’s house and asked for a gun, and when the neighbor
refused, Williams proceeded to the convenience store, where
he filled a bottle with gasoline. Williams then returned to
Burgess’ house and used the gasoline to set fire to her house.
We find that Williams’ argument that he started the fire due
to provocation is without merit. This string of events does not
constitute a “sudden happening” of which Williams was “inca-
pable of reflection.”
[30] Williams further argues that trial counsel failed to pre­
sent a defense that the fire was started accidentally. Significant
evidence of Williams’ intent to commit arson was presented
at trial. In addition to the evidence listed above, according to
Diane’s testimony, Williams poured gasoline around Burgess’
house, lit a match, and threw the match at Burgess’ feet, setting
the house on fire; lit another match that went out; and lit a third
match to set the kitchen on fire. Because of the overwhelming
evidence that Williams intentionally set the fire, we conclude
that Williams has not alleged facts which, if true, might entitle
him to postconviction relief. As a matter of law, counsel can-
not be ineffective for failing to raise a meritless argument.52
51
State v. Smith, 284 Neb. 636, 642, 822 N.W.2d 401, 408 (2012).
52
State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).
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Therefore, Williams was not prejudiced by any failure by coun-
sel to raise the defense that he started the fire accidentally.
(x) Failure to Comply With Williams’ Requests
to View Discovery and Failure to
Communicate With Williams
Williams next argues that he made numerous requests to
trial counsel to see discovery in the case and that he was only
permitted to see his statement to law enforcement. Williams
also contends that trial counsel insufficiently communicated
to him during the trial and that thus, he was not informed of
the case against him or make a knowing waiver of the right
to testify.
Defense counsel bears the primary responsibility for advis-
ing a defendant of his or her right to testify or not to testify.53
Williams states that during trial, counsel ignored Williams’
notes and conversation. Williams also claims that if he had
received adequate advice from counsel, he would have tes-
tified that “either the deaths were not caused intentionally
because of the impairment [of] drugs or a drug-induced
psychosis; by accident; or that the deaths were caused dur-
ing the provocation of a sudden quarrel necessitating lesser
included offense instructions for second degree murder and
manslaughter.”
This court takes very seriously a defendant’s right to testify.
However, as we discussed above, there was strong evidence
to rebut the claims Williams would have asserted in his tes-
timony. The evidence presented at trial clearly showed that
Williams was not under a drug-induced psychosis from pro-
longed drug use, because he understood the nature and conse-
quences of his actions and understood the difference between
right and wrong. Furthermore, Williams’ psychosis and intoxi-
cation defense based on drug and alcohol use the day of the
fire would not have been actionable, because it was temporary
53
State v. White, 246 Neb. 346, 518 N.W.2d 923 (1994).
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and brought on solely by voluntary intoxication. Finally, there
is strong evidence of Williams’ actions from the time of the
argument until he set the house on fire which shows that he
was not incapable of reflection and that the crimes did not hap-
pen suddenly. Based on the overwhelming evidence support-
ing Williams’ convictions, we find that Williams’ testimony
would not have affected the verdicts. Therefore, Williams
was not prejudiced by any alleged failure by trial counsel
to communicate.
(b) Claims of Ineffective Assistance That Center
Solely on Direct Appeal Counsel
Williams also asserts ineffective assistance of counsel claims
that center solely on appellate counsel’s alleged failures, not on
any failure to raise trial counsel’s ineffectiveness. Williams
argues that he received ineffective assistance of counsel in his
direct appeal for the following reasons.
(i) Unconstitutional Breakdown in Attorney-Client
Relationship at Direct Appeal Level
Williams argues in his motion for postconviction relief that
there was an unconstitutional breakdown in the attorney-client
relationship with his direct appeal counsel, because counsel
“failed to communicate with [Williams] in order to effectively
select challenges to the validity of [his] conviction[s] and
sentence[s].” Williams does not provide any support beyond
this statement for his claim of counsel’s failure to commu-
nicate. Williams does not allege any facts that show that he
may be entitled to relief. As such, Williams is not entitled
to relief.
(ii) Failure to Present and Preserve Claim
That Two Photographs Were Received
Over Trial Counsel’s Objections
Williams argues that his direct appeal attorney failed to
assign as error on appeal Williams’ claim that two gruesome
photographs of the bodies of Burgess and a dog were not
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relevant and were unduly prejudicial. The photographs were
admitted over the objection of trial counsel.
[31,32] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value
against their prejudicial effect.54 In a homicide prosecution,
a court may admit into evidence photographs of a victim for
identification, to show the condition of the body or the nature
and extent of wounds and injuries to it, and to establish malice
or intent.55
At trial, the State argued that the photographs show cor-
roboration of witnesses, where the bodies were located, and the
burning of the body. The district court found that the prejudice
did not substantially outweigh the probative value.
We agree with the State that the admission of these photo-
graphs was not prejudicial. The photograph of Burgess’ body
showed the condition of the body or the nature and extent of
the wounds, and the court did not abuse its discretion in admit-
ting the photograph. And while the photograph of the burned
dog’s body might have lacked probative value, we cannot
conclude that such was prejudicial, given the other evidence
offered against Williams. We conclude that counsel was not
ineffective for failing to assign the admission of the photo-
graphs on direct appeal.
(c) Postconviction Counsel
Finally, we turn to Williams’ claims of ineffective assist­
ance of postconviction counsel. Williams contends that his
first postconviction counsel failed to (1) withdraw from the
case and request new counsel to be appointed and (2) file
Williams’ brief and proceed with the appeal of the postconvic-
tion proceeding.
[33] Section 29-3001 requires evidentiary hearings only
if the motion contains factual allegations which, if proved,
54
See State v. Dubray, supra note 41.
55
See id.
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constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. This court stated in State v.
Hessler56 that “[t]here is no constitutional guarantee of effec-
tive assistance of counsel in a postconviction action . . . .”
As such, Williams’ claims of ineffective assistance in the first
postconviction and the appeal of the first postconviction are
without merit.
3. Limited Postconviction R elief
Williams argues that the district court erroneously granted
the limited postconviction relief of a reinstated appeal of the
denial of postconviction relief under the first postconvic-
tion motion rather than a new direct appeal. Williams further
argues that the district court order ruled on issues contained
only in the first motion for postconviction relief and that thus,
the court did not rule on the second motion for postconvic-
tion relief. The State contends that the district court had no
authority to reinstate Williams’ right to appeal from the denial
of his first postconviction motion, because the district court
only has authority to reinstate a civil appeal in postconviction
cases when an appeal has been lost solely due to a mistake
by the clerk or the court, not when the mistake is attribut-
able to the parties or his or her agent. The State argues that
all of Williams’ claims were implicitly denied in the district
court order.
Under § 29-3001(2), “[u]nless the motion and the files and
records of the case show to the satisfaction of the court that
the prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon . . . .”
We have established above that none of the files or records
of the case show that Williams is entitled to relief on any of his
claims of ineffective assistance of counsel. Therefore, Williams
is not entitled to a hearing on his claims. As such, Williams’
argument that the lower court may not grant a reinstated appeal
is irrelevant in the current proceedings.
56
State v. Hessler, supra note 17, 288 Neb. at 679, 850 N.W.2d at 785-86.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. WILLIAMS
Cite as 295 Neb. 575
Finally, we read the trial court’s decision as disposing of all
of Williams’ claims. Williams’ second assignment of error is
without merit.
VI. CONCLUSION
We conclude that the district court erred in granting post-
conviction relief without conducting an evidentiary hearing,
because failing to hold such a hearing before ordering rein-
statement is improper under the requirements set forth in
§ 29-3001(2). However, based on our reading of Williams’
second motion for postconviction relief and our review of
the record, Williams is not entitled to an evidentiary hearing,
either because he failed to allege sufficient facts to demon-
strate a violation of his constitutional rights or because the
record and the files affirmatively show that he is entitled to
no relief.
Therefore, under § 29-3001(2), Williams is not entitled to
a hearing on his claims. The decision of the district court is
reversed, and the cause is remanded with directions to overrule
Williams’ second motion for postconviction relief.
R eversed and remanded with directions.