State v. Beehn , 303 Neb. 172 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/28/2019 09:06 AM CDT
- 172 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
State of Nebraska, appellee, v.
Jordan L. Beehn, appellant.
___ N.W.2d ___
Filed May 24, 2019. No. S-18-603.
1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
dentiary hearing on a motion for postconviction relief, the trial judge,
as the trier of fact, resolves conflicts in the evidence and questions of
fact. An appellate court upholds the trial court’s findings unless they are
clearly erroneous.
2. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. When reviewing a
claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to
questions of counsel’s performance or prejudice to the defendant as
part of the two-pronged test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
reviews such legal determinations independently of the lower court’s
conclusion.
4. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
5. Postconviction: Sentences: Appeal and Error. The Nebraska
Postconviction Act is intended to provide relief in those cases where
a miscarriage of justice may have occurred; it is not intended to be a
procedure to secure a routine review for any defendant dissatisfied with
his or her sentence.
6. Postconviction: Effectiveness of Counsel: Appeal and Error. To
establish a right to postconviction relief based on a claim of ineffec-
tive assistance of counsel, the defendant has the burden, in accordance
with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), to show that counsel’s performance was deficient;
- 173 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
that is, counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law. Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in his or
her case.
7. Postconviction: Effectiveness of Counsel: Proof. In a postconviction
proceeding, a showing of prejudice to the defense requires a demonstra-
tion of reasonable probability that, but for counsel’s deficient perform­
ance, the result of the proceeding would have been different.
8. Trial: Attorneys at Law. Trial counsel is afforded due deference to
formulate trial strategy and tactics.
9. Effectiveness of Counsel: Pleas: Proof. In a claim for ineffective
assistance of counsel, the likelihood of the defense’s success should be
considered with other factors such as the likely penalties the defendant
would face if convicted at trial, the relative benefit of the plea bargain,
and the strength of the State’s case.
10. ____: ____: ____. Self-serving declarations that a defendant would have
gone to trial are not enough to warrant a hearing; a defendant must pre­
sent objective evidence showing a reasonable probability that he or she
would have insisted on going to trial.
11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty plea, the prejudice requirement for an inef-
fective assistance of counsel claim is satisfied if the defendant shows a
reasonable probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than pleading guilty.
Appeal from the District Court for Madison County: M ark
A. Johnson, Judge. Affirmed.
Jack W. Lafleur, of Moyer & Moyer, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Heavican, C.J.
INTRODUCTION
Jordan L. Beehn appeals from an order denying his motion
for postconviction relief following an evidentiary hearing.
- 174 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Beehn pled no contest to first degree assault and tampering
with a witness and is currently serving 50 to 50 years’ impris-
onment. We affirm.
BACKGROUND
On November 24, 2012, Beehn and his wife were at a bar
in Norfolk, Nebraska. They left the bar at the same time as
another group of patrons, which consisted of brothers Jose
Zepada and Jorge Zepada, accompanied by Jessika Ruroede.
As the two groups left the bar, Beehn’s wife and Ruroede
engaged in an argument that led to a physical altercation
between the two women. Jose and Jorge stood over the two
women as they were fighting on the ground. According to wit-
ness accounts, Jose and Jorge tried to pull Beehn’s wife from
Ruroede, at which point Beehn retrieved a handgun from his
person, hit Jose with the gun, and shot Jorge. The bullet struck
Jorge’s spinal cord and paralyzed him from the head down, an
injury from which he will never recover.
Beehn was subsequently arrested for the assaults on Jose
and Jorge. While Beehn was in jail awaiting trial, he suggested
that his wife change her story about being “on top” during the
altercation with Ruroede as she had previously told the police
and had stated during recorded jail telephone calls to Beehn
following the incident. In a letter sent from jail, Beehn further
instructed his wife to locate other unidentified witnesses and
offer to “pay what ever [sic] they want.”
Beehn was initially charged with five offenses correspond-
ing to the assaults. With regard to Beehn’s assault of Jorge,
Beehn was charged with first degree assault, a Class II felony,
and second degree assault, a Class III felony. With regard
to Beehn’s assault of Jose, Beehn was charged with second
degree assault, a Class III felony. In addition to the assault
charges, Beehn was charged with use of a firearm to commit
a felony, a Class IC felony, and possession of a firearm during
the commission of a felony, a Class II felony. Upon the State’s
learning of Beehn’s letter to his wife from jail, the State added
- 175 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
two additional charges of tampering with a witness, a Class IV
felony, and bribery, a Class I misdemeanor.
Beehn had various attorneys throughout the pretrial proceed-
ings, which lasted from November 2012 to February 2014.
From the inception of the case until June 2013, Beehn was
represented by private counsel, Charles Balsiger. Beehn dis-
charged Balsiger, and the Madison County public defender,
Kyle Melia, was appointed to the case. Melia represented
Beehn for approximately 1 month, from June to July 2013.
Beehn subsequently discharged Melia and hired private coun-
sel, Craig Martin and Dennis McCarthy. Martin and McCarthy
represented Beehn for the remainder of his proceedings at the
trial level, from July 2013 until the entry of his pleas and sen-
tencing in February 2014.
In December 2013, while represented by Martin and
McCarthy, Beehn entered into a plea agreement with the State.
Beehn pled no contest to one count of first degree assault
and one count of tampering with a witness. In exchange for
Beehn’s pleas, the State dismissed the remaining five charges
and agreed to make no specific sentencing recommendation.
The district court advised Beehn of the rights he was waiv-
ing by entering the pleas, and a factual basis was provided,
after which the district court accepted Beehn’s pleas. Beehn,
still represented by Martin and McCarthy, was sentenced to
50 to 50 years’ imprisonment for the first degree assault con-
viction and 12 to 12 months’ imprisonment for the tampering
with a witness conviction. The sentences were ordered to run
concurrently, resulting in an aggregate sentence of 50 to 50
years’ imprisonment.
Direct Appeal.
On direct appeal, Beehn was again represented by Melia.
On appeal, Beehn’s sole assignment of error was a claim of
excessive sentences. On August 1, 2014, in case No. A-14-195,
the Nebraska Court of Appeals, without opinion, summarily
affirmed Beehn’s convictions and sentences.
- 176 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Postconviction.
Following the denial of his direct appeal, Beehn initiated
this postconviction proceeding. Beehn alleges, for the first
time, that he received ineffective assistance of counsel at both
the trial and appellate levels. With the assistance of new coun-
sel, Beehn alleged a number of errors that can be consolidated
as follows: (1) Trial counsel was ineffective for failing to
advise Beehn about the defenses of self-defense and defense of
others under Neb. Rev. Stat. §§ 28-1409 and 28-1410 (Reissue
2016); (2) trial counsel was ineffective for failing to advise
Beehn that by entering his pleas, he would be waiving his right
to appeal from pretrial rulings; (3) trial counsel was ineffective
for failing to interview and depose witnesses and for failing to
investigate the prospect of additional witnesses beyond those
listed in the police reports; (4) trial counsel was ineffective for
incorrectly advising Beehn that all communications between
Beehn and his wife were privileged and could not be used
against Beehn in the prosecution of his criminal charges; and
(5) appellate counsel was ineffective for not raising claims (1)
through (4) on direct appeal.
Despite the potential procedural bar, the district court con-
ducted an evidentiary hearing of Beehn’s claims. The evidence
adduced at the hearing consisted of the bill of exceptions from
Beehn’s pretrial, plea, and sentencing proceedings; depositions
of Beehn and each of his prior attorneys; transcripts of Beehn’s
telephone calls from jail; and a copy of the court file for all of
the proceedings at the trial level.
Beehn testified that all of his attorneys told him that his
only option was to enter into a plea agreement. Beehn claims
that each of his attorneys told him that there were no avail-
able defenses for his charges. Specifically, Beehn claims that
Balsiger, as well as Martin and McCarthy, told him that the
defense of self-defense was not available in Nebraska. Beehn
further claims that Balsiger erroneously advised him that any
communications between Beehn and his wife were privileged
and could not be used against him. Beehn contends that he,
- 177 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Beehn, maintained this belief throughout his case until October
2013, when the court entered an order denying Beehn’s asser-
tion of spousal privilege.
Additionally, Beehn contends that his trial attorneys deposed
only two witnesses and failed to investigate the existence of
other witnesses that may have been beneficial to his case.
Beehn further contends that counsel never advised him that
by entering a plea agreement, he waived his right to appeal
from adverse pretrial rulings. Lastly, Beehn contends that
Melia never met with him to discuss his appeal, but that one of
Melia’s assistants advised him that an excessive sentence claim
was the only claim available on appeal.
Beehn’s initial trial counsel, Balsiger, disagreed with
Beehn’s allegations. Balsiger, who had been practicing crimi-
nal law since 1973, explained that he first met with Beehn on
December 3, 2012, within a few days of the charges being
filed. Balsiger testified that he and Beehn specifically dis-
cussed the possibility of asserting a defense such as justifi-
cation of the use of force, which Balsiger thought would at
least be a possible defense based on the limited information
he had at that time. Balsiger further explained that during
their first meeting, he also spoke with Beehn about the pos-
sibility of asserting a privilege for communications between
Beehn and his wife, but told Beehn that “it may not be
valid” based on the circumstances. Balsiger testified that he
specifically advised Beehn “not to discuss the facts of this
case with his wife or anyone else.” Balsiger’s testimony is
corroborated by a December 6 recorded jail telephone con-
versation between Beehn and his wife in which the following
exchange occurred:
[Beehn]: The lawyer say anything?
[Beehn’s wife]: I talked to him after the deal, he ques-
tioned me on what I know and what happened. And then
he told me that we need to not talk amongst ourselves
about the whole case or something of that sort.
[Beehn]: Yeah, he told me that too.
- 178 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Balsiger explained that he deposed at least two witnesses
in the case: Ruroede, the female involved in the fight with
Beehn’s wife, and one of the officers involved in the investi-
gation. Balsiger did not recall that Beehn had given him the
names of any other witnesses to contact.
Melia, who represented Beehn for approximately 1 month
after Balsiger’s representation, also disagreed with Beehn’s
allegations. Melia explained that during his time as Beehn’s
trial counsel, he met with Beehn twice and also spoke with him
on the telephone to discuss the case.
Melia testified that he discussed possible defenses with
Beehn, including self-defense and defense of others. Melia
noted that there were obvious obstacles to pursuing either
defense, because it appeared that Beehn’s wife was the aggres-
sor in the fight. Melia also noted that a self-defense claim was
further complicated by the fact that on at least one occasion,
Beehn said the gun discharged accidentally, which would
negate the defense altogether. Melia also explained that he
told Beehn not to discuss his case over the telephone with
anyone else and that he never gave Beehn the impression
that Beehn’s communications with his wife were privileged
and could not be used against him. Melia also testified that
he did not recall any witnesses that may have been avail-
able to contact other than Beehn, his wife, Ruroede, and the
two victims.
McCarthy, who represented Beehn at the time of his pleas,
also disagreed with Beehn’s claims. McCarthy, who had been
practicing law since 1989 with extensive experience in con-
ducting jury trials, testified that he and Beehn discussed the
issue of spousal privilege. McCarthy testified that he repeat-
edly told Beehn that his communications with his wife were
not privileged. McCarthy contended that Beehn’s assertion to
the contrary is not true. He explained that the letter Beehn sent
to his wife, which served as the basis for the tampering charge,
was sent after Martin and McCarthy specifically advised Beehn
that such communications were not privileged.
- 179 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
McCarthy further testified that he and Martin, McCarthy’s
cocounsel, also looked into available defenses, including
self-defense and defense of others. McCarthy explained that
they considered defense of others based on the theory that
Beehn was protecting his wife, but their attempt to pursue this
option was complicated by the fact that Beehn kept changing
his story and, at one point, said the gun discharged acciden-
tally. McCarthy also believed that such defense would have
had credibility problems with Beehn.
McCarthy explained that because Beehn was intoxicated on
the night in question, he kept changing his story. Additionally
troubling was the fact that Beehn continued to try to per-
suade his wife to change her story. McCarthy testified that
in light of these issues, he believed defense of others might
not be successful. McCarthy testified that he explained these
concerns to Beehn but never advised Beehn that the defense
was unavailable.
Martin testified that Beehn agreed to the plea agreement
and that Beehn knew what the pleas were and knew the rights
he was giving up by taking the plea agreement. This was
explained to Beehn by counsel, as was counsel’s opinion that
self-defense and defense of others would not be successful
defenses. Martin testified that after he advised Beehn that his
version of the facts would not fit self-defense or defense of
others, Beehn’s story changed several times.
As noted earlier, following Beehn’s plea agreement which
resulted in a conviction and prison sentence, Beehn, with the
assistance of Melia, filed a direct appeal. The direct appeal
was handled primarily by Melia’s chief deputy public defender,
Christopher Bellmore.
During the postconviction proceeding, Melia testified that
on direct appeal, he and Bellmore did not see any viable inef-
fective assistance of counsel claims from their review of the
record. Melia further indicated that even if they had been
inclined to raise claims of ineffective assistance of counsel,
- 180 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
they would have been hesitant to do so given that Melia was
one of Beehn’s trial attorneys.
Melia did not recall meeting with Beehn, but did recall that
Bellmore generally met with appellate clients because he lived
closer than Melia to the State penitentiaries. The record dem-
onstrates that Beehn and appellate counsel did meet in person
and spoke about excessive sentencing issues and claims of
ineffective assistance of counsel.
According to Beehn, he was advised by appellate counsel
that the record did not support a claim of ineffective assistance
of counsel on direct appeal. Therefore, Beehn’s only assign-
ment of error on direct appeal was in regard to excessive sen-
tences. Beehn initiated a postconviction proceeding and was
granted an evidentiary hearing. The district court subsequently
denied Beehn’s postconviction motion following the eviden-
tiary hearing.
The district court concluded that each of Beehn’s trial
attorneys advised him of potential defenses, including self-
defense and defense of others, and that the testimony on
the matter was credible and refuted Beehn’s allegation that
he was not so advised. Moreover, as Beehn’s trial attorneys
explained, the district court found that it was unlikely that
such defenses would have been successful, given the evidence
against Beehn and all of the events that transpired while Beehn
was in custody.
The court then noted that each of Beehn’s trial attorneys
advised him not to speak with anyone about the case, and
specifically advised him that the spousal privilege may not,
or would not, protect communications between Beehn and his
wife. The court found that the testimony of Beehn’s attorneys
on the matter was credible and refuted Beehn’s allegation that
he was not so advised.
The court further noted that Beehn’s trial attorneys con-
tacted all of the witnesses known to them and made efforts
to seek out additional witnesses and evidence. These efforts
- 181 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
proved to be unhelpful, or in some instances “detrimental,” to
Beehn’s case.
The court found that before entering his pleas, Beehn was
advised of the rights he was waiving and was advised that
he would be waiving any defenses that may be available.
The court also found that Beehn’s trial attorneys, Martin and
McCarthy, specifically advised Beehn that if he entered the
pleas, he would be waiving his right to appeal from the court’s
pretrial rulings.
Lastly, the court noted that Beehn would have been unsuc-
cessful had he raised his postconviction claims of ineffective
assistance of trial counsel on direct appeal and that thus, his
appellate counsel was not ineffective for failing to raise those
claims. And because appellate counsel had served as Beehn’s
trial counsel for a period of time, the court believed there
would have been a question as to whether appellate counsel
could have raised the ineffective assistance of trial coun-
sel claims.
ASSIGNMENT OF ERROR
Beehn assigns, consolidated and restated, that the trial court
erred in denying his motion for postconviction relief in which
he alleged the ineffective assistance of both trial and appel-
late counsel.
STANDARD OF REVIEW
[1] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact. An appellate
court upholds the trial court’s findings unless they are clearly
erroneous.1
[2,3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.2 When
1
State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
2
Id.
- 182 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. With regard to questions of counsel’s perform­
ance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington,3 an appellate court
reviews such legal determinations independently of the lower
court’s conclusion.4
ANALYSIS
As stated above, when appearing before the district court,
Beehn’s postconviction claims were that (1) trial counsel was
ineffective for failing to advise Beehn about the defenses
of self-defense and defense of others under §§ 28-1409 and
28-1410; (2) trial counsel was ineffective for failing to advise
Beehn that by entering his pleas, he would be waiving his right
to appeal from pretrial rulings; (3) trial counsel was ineffective
for failing to interview and depose witnesses and for failing to
investigate the prospect of additional witnesses beyond those
listed in the police reports; (4) trial counsel was ineffective for
incorrectly advising Beehn that all communications between
Beehn and his wife were privileged and could not be used
against Beehn in the prosecution of his criminal charges; and
(5) appellate counsel was ineffective for not raising claims
(1) through (4) on direct appeal. Additionally, Beehn now
claims that appellate counsel was ineffective for failing to meet
with him.
[4,5] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional viola-
tions that render the judgment void or voidable.5 The Nebraska
Postconviction Act is intended to provide relief in those cases
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
4
State v. McGuire, supra note 1.
5
State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on
other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.
- 183 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
where a miscarriage of justice may have occurred; it is not
intended to be a procedure to secure a routine review for any
defendant dissatisfied with his or her sentence.6
[6,7] To establish a right to postconviction relief based on a
claim of ineffective assistance of counsel, the defendant has the
burden, in accordance with Strickland v. Washington, to show
that counsel’s performance was deficient; that is, counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.7 Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in
his or her case.8 A showing of prejudice to the defense requires
a demonstration of reasonable probability that, but for coun-
sel’s deficient performance, the result of the proceeding would
have been different.9
[8] Trial counsel is afforded due deference to formulate trial
strategy and tactics.10
[9,10] In a claim for ineffective assistance of counsel, the
likelihood of the defense’s success should be considered with
other factors such as the likely penalties the defendant would
face if convicted at trial, the relative benefit of the plea bargain,
and the strength of the State’s case.11 Self-serving declarations
that a defendant would have gone to trial are not enough to
warrant a hearing; a defendant must present objective evidence
showing a reasonable probability that he or she would have
insisted on going to trial.12
[11] When a conviction is based upon a guilty plea, the
prejudice requirement for an ineffective assistance of counsel
6
Id.
7
See Strickland v. Washington, supra note 3.
8
See State v. Allen, supra note 5.
9
State v. Blank, 239 Neb. 188, 474 N.W.2d 689 (1991).
10
State v. McGuire, supra note 1.
11
State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
12
State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).
- 184 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
claim is satisfied if the defendant shows a reasonable probabil-
ity that but for the errors of counsel, the defendant would have
insisted on going to trial rather than pleading guilty.13
The likelihood of the defense’s success had the defendant
insisted on going to trial is relevant to the prejudice analysis.14
It is relevant to the consideration of whether a rational defend­
ant would have insisted on going to trial.15 The likelihood of
the defense’s success had the defendant gone to trial should be
considered along with other factors, such as the likely penal-
ties the defendant would have faced if convicted at trial, the
relative benefit of the plea bargain, and the strength of the
State’s case.16
Failure to Advise Beehn About
Potential Defenses.
Beehn first contends that trial counsel failed to advise him
of potential defenses, including self-defense and defense of
others, in regard to his case.
Under subsection (1) of § 28-1409, “[s]ubject to the provi-
sions of this section and of section 28-1414, the use of force
upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the pur-
pose of protecting himself against the use of unlawful force
by such other person . . .” except that under subsection (4) of
§ 28-1409,
[t]he use of deadly force shall not be justifiable under this
section unless the actor believes that such force is neces-
sary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force or
threat, nor is it justifiable if:
13
State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
14
See State v. Yos-Chiguil, supra note 11.
15
Id.
16
Id.
 - 185 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating or by
surrendering possession of a thing to a person asserting
a claim of right thereto or by complying with a demand
that he abstain from any action which he has no duty to
take . . . .
Section 28-1410 similarly states in part:
(1) Subject to the provisions of this section and of
section 28-1414, the use of force upon or toward the
person of another is justifiable to protect a third person
when:
(a) The actor would be justified under section 28-1409
in using such force to protect himself against the injury
he believes to be threatened to the person whom he seeks
to protect.
Under Neb. Rev. Stat. § 28-1414(1) (Reissue 2016), “[t]he jus-
tification afforded by sections 28-1409 to 28-1412 is unavail-
able when: (a) The actor’s belief in the unlawfulness of the
force or conduct against which he employs protective force or
his belief in the lawfulness of an arrest which he endeavors to
effect by force is erroneous[.]”
As noted above, Balsiger, Beehn’s first defense attorney,
testified that he met with Beehn within a few days of the
charges first being filed. Balsiger specifically discussed with
Beehn the possibility of asserting a defense such as justifica-
tion for the use of force, which Balsiger thought would be at
least a possible defense based on the information he had at
that time.
Melia, who briefly represented Beehn following Balsiger’s
representation, met with Beehn twice and also spoke with him
on the telephone to discuss the case. The record indicates that
Melia discussed possible defenses with Beehn, including self-
defense and defense of others. However, Melia noted that there
- 186 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
were obstacles to pursuing either defense, because it appeared
that Beehn’s wife was the aggressor in the fight. Moreover,
Melia noted that a self-defense claim was further complicated
by the fact that on at least one occasion, Beehn claimed that
the gun discharged accidentally, which Melia believed would
negate the defense altogether.
Following Melia’s discharge as counsel, Martin and
McCarthy were retained by Beehn. Martin and McCarthy
also considered available defenses, including self-defense and
defense of others. McCarthy explained that they considered
defense of others based on the theory that Beehn was protect-
ing his wife, but that their attempt to pursue this defense was
complicated by the fact that Beehn kept changing his story
and, at one point, said the gun discharged accidentally. The
record demonstrates that McCarthy also had concerns regard-
ing credibility problems with that defense, because Beehn was
intoxicated on the night in question and continually changed
his story.
McCarthy’s concerns were reinforced by the fact that Beehn
continued to try to persuade his wife to change her story,
which further complicated the strategy of arguing self-defense.
McCarthy indicated that in light of such issues, he believed
the self-defense strategy might not be successful. McCarthy
explained these concerns to Beehn, but the record does not
adequately support Beehn’s claim that he was advised that the
defense was unavailable.
Following repeated discussions with various counsel and the
seemingly universal belief of counsel regarding the viability
and considerable lack of likelihood of success of a defense in
this case, Beehn agreed to enter a plea agreement in order to
seek a more lenient sentence.
We affirm the district court’s finding that based on the
evidence contained in the record, Beehn was advised by all
his attorneys at trial level of the affirmative defenses of self-
defense and defense of others. The record demonstrates that the
employment of any potential affirmative defense was hampered
- 187 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
by Beehn’s ever-changing story of the events of the evening
in question, as well as his actions and communications dur-
ing incarceration.
Beehn alleges that trial counsel was universally ineffec-
tive by not informing him of the availability of the defense
of self-defense, but the record contradicts that claim. As such,
Beehn has not shown that his trial counsel’s performance was
deficient.
Beehn’s first assignment of error is without merit.
Failure to Advise Beehn of Effect
of Pleas on Right to Appeal.
Beehn next contends that counsel did not advise him of the
effect that entering into a plea agreement would have on his
ability to appeal adverse preliminary rulings of the trial court.
There is no merit to this claim.
According to Martin and McCarthy, Beehn’s attorneys at the
time he entered into the plea agreement, Beehn was advised
that if he pled guilty, he would not be able to appeal any
adverse rulings made during the pretrial process. McCarthy
testified that he also advised Beehn of the rights he had and
that he would be giving up those rights if he pled guilty.
Further, McCarthy testified that based on the communications
McCarthy had with Beehn, McCarthy was under the impres-
sion that Beehn understood his rights as they had been advised
to him by McCarthy.
Martin testified that Beehn agreed to the plea agreement
and that Beehn knew what the pleas were and knew the rights
he was giving up by taking the plea agreement. The details of
the plea agreement, and the resulting waiver of Beehn’s rights,
were explained to Beehn by counsel. Counsel also explained its
opinion that the strategies of self-defense and defense of others
would not be successful.
Based on the record, it is clear that counsel’s performance
was not deficient. Beehn’s second claim of ineffective assist­
ance of counsel is without merit.
- 188 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Failure to Locate, Interview,
or Depose Witnesses.
Beehn next argues that his trial counsel failed to locate, inter-
view, or depose potential witnesses to the events of November
24, 2012. According to Beehn, Balsiger, as the first trial counsel,
conducted depositions of Ruroede and the investigating officer.
But Beehn suggests that Melia failed to conduct any interviews
with witnesses. As for Martin and McCarthy, Beehn contends
that they failed to conduct depositions. Beehn concedes that
Martin and McCarthy’s intern interviewed two of the three wit-
nesses Beehn identified, but that he failed to depose them.
Further, Beehn contends that 10 additional witnesses were
added by the State after Martin and McCarthy engaged in
the representation of Beehn. According to Beehn, Martin and
McCarthy failed to depose any of the 10 new witnesses. Beehn
contends that had trial counsel been more diligent in depos-
ing and interviewing witnesses, Beehn’s defense theory would
have “come into better focus.”17
As the record reflects, Balsiger did depose two of the State’s
witnesses in preparation for trial. During the brief time in
which Melia represented Beehn, Melia did not conduct inter-
views with witnesses to Beehn’s case.
McCarthy testified that he did not take any additional depo-
sitions in Beehn’s case. McCarthy contended that either he
or his staff did interview additional witnesses not identified
in the police reports but located based on information Beehn
provided to him. McCarthy indicated that his staff interviewed
those witnesses and recorded their statements. Without disclos-
ing content, McCarthy noted that the witnesses interviewed
were determined to be extremely detrimental to Beehn’s case
and were not helpful in any manner.
Additionally, McCarthy noted that the case and the cred-
ibility of the defense was further hampered when the State
filed the charge of tampering with a witness, which arose from
17
Brief for appellant at 20.
- 189 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
the discovery of the letter Beehn had sent to his wife. In the
letter, Beehn sought to have his wife locate witnesses and “pay
what ever [sic] they want.” The letter from Beehn further sug-
gested to his wife that she give testimony of events that was
inconsist­ent with her previous recitation of events given to
the police.
Further, the record demonstrates that Martin, McCarthy,
and their investigator went to the scene of the shooting to try
to locate possible video surveillance cameras that may have
recorded the incident. However, according to McCarthy’s tes-
timony, they were unable to locate any working cameras near
the scene.
As for the 10 witnesses added by the State, Martin testified
that they were all jailhouse witnesses located by the prosecu-
tion. Beehn fails to demonstrate any prejudice that resulted
from failing to depose these witnesses, especially in light of the
overwhelming evidence of guilt presented by the State.
McCarthy’s testimony, however, reflected concerns regard-
ing Beehn’s possession of white supremacist materials while
incarcerated, as well as Beehn’s derogatory statements toward
those of Latin American descent. Given the fact that the
victims were of Latin American descent, McCarthy testified
that he was concerned with the effect that Beehn’s jailhouse
behavior would have on a jury.
Based on the foregoing discussion, it is clear that trial
counsel conducted a lengthy investigation and sought poten-
tial witnesses. The fact that the witnesses were not beneficial
to Beehn’s case, or altogether lacked credibility as a result of
Beehn’s offer of remuneration, does not fall on trial counsel.
Beehn’s assignment of error is without merit.
Advice Concerning Issues of Privilege
Regarding Communications Between
Beehn and His Wife.
Beehn testified that before the trial court entered its ruling in
October 2013, in which it denied his motion to suppress state-
ments made to his wife, he believed that his communications
- 190 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
with her were privileged. Beehn testified that he knew the
State would listen to his telephone calls with his wife, but that
he did not know the State could use statements made in those
calls against him. Beehn contends that trial counsel led him
to believe his communications with his wife were privileged.
Beehn concedes that the communications with his wife were,
in fact, not subject to spousal privilege.18
Beehn’s claims that all four of his trial counsel informed
him that the communications in question were privileged are
directly refuted by trial counsel. According to the testimony
of each attorney, Beehn was repeatedly advised not to discuss
his case with anyone other than his attorney at the time. Beehn
admitted as much in a December 6, 2012, telephone con-
versation with his wife. At one point, Beehn’s wife stated in
part, “[the attorney] told me that we need to not talk amongst
ourselves about the whole case or something of that sort.” To
which Beehn responded, “Yeah, he told me that too.” It is of
particular note that this telephone conversation occurred only 3
days after Balsiger met with Beehn for the first time.
Melia testified that he did not remember the specific details
of his conversation with Beehn. However, Melia stated that it
was his practice to advise clients not to speak about their cases
over the telephone, because in his experience, the prosecution
routinely listened to jail telephone conversations.
McCarthy testified that he explained the nature of the privi-
lege within the first 5 minutes of his and Beehn’s first meeting
and advised Beehn of the fact that his communications with his
wife were not privileged. McCarthy went on to indicate that he
and Martin repeatedly pleaded with Beehn to stop discussing
his case with others, including his wife, and went so far as to
send Beehn written correspondence to that effect.
Based on the evidence in the record contradicting Beehn’s
claim, this assignment of error is without merit.
18
See Neb. Rev. Stat. § 27-505 (Reissue 2016). See, also, State v. Cowling,
No. A-92-744, 1993 WL 183609 (Neb. App. June 1, 1993) (not designated
for permanent publication).
- 191 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Failure of Appellate Counsel to
Raise Ineffective Assistance
of Trial Counsel Claim.
Beehn assigns that he received ineffective assistance of
appellate counsel due to appellate counsel’s failure to raise the
claim of ineffective assistance of trial counsel. The State does
not argue that Beehn failed to preserve this claim, and thus, we
turn to our Strickland analysis.
As noted above, Strickland v. Washington consists of a two-
prong analysis.19 In order to prevail on an ineffective assistance
of counsel claim, the defendant must satisfy both prongs of the
Strickland analysis, that defense counsel’s performance was
deficient and that the deficient performance actually prejudiced
the defendant’s defense. The two prongs of the ineffective
assistance test, deficient performance and prejudice, may be
addressed in either order.20 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
Assuming, without deciding, that appellate counsel’s actions
were deficient for failing to raise a claim of ineffective assist­
ance of counsel on direct appeal, it is clear that Beehn has
not suffered any resulting prejudice. Following the denial of
his direct appeal, Beehn sought to collaterally attack his con-
victions through this postconviction proceeding. Despite not
raising his ineffective assistance of counsel claims on direct
appeal as procedurally required when appellate counsel is dif-
ferent from trial counsel, the district court nevertheless allowed
Beehn to raise the claims and granted Beehn an evidentiary
hearing to expound on those claims.
As Beehn did not suffer prejudice, this assignment of error
is without merit.
19
See Strickland v. Washington, supra note 3.
20
State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
21
State v. McGuire, supra note 1.
- 192 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BEEHN
Cite as 303 Neb. 172
Failure of Appellate Counsel
to Meet With Beehn.
Lastly, Beehn contends that appellate counsel failed to meet
with him or discuss his appeal. Beehn argues that appellate
counsel took an extremely narrow view on direct appeal by
only assigning as error that Beehn received excessive sentences.
By Beehn’s own admission, he recalled an assistant from the
Madison County public defender’s office who visited with him
for the direct appeal. According to Melia, Bellmore, his chief
deputy public defender, was tasked with meeting clients incar-
cerated in the State penitentiaries. As such, the record is clear
that appellate counsel did in fact meet with Beehn.
In regard to Beehn’s claim that appellate counsel “took an
extremely narrow view on Beehn’s direct appeal,”22 Melia
testified that he discussed with Beehn the issues of excessive
sentences and the lack of evidence for an ineffective assistance
of counsel claim. Melia further testified that while discussing
the possibility of a claim of ineffective assistance of counsel
as it related to trial counsel, and any promise of leniency for
which there was no evidence, Beehn was offered the option to
seek new appellate counsel. Beehn did not do so.
The district court noted that on the issue of credibility, it
relied more heavily upon the testimony of appellate counsel
than on Beehn’s testimony, “due to Beehn’s history of will-
ingness to change his facts to meet the circumstances of the
moment.” Further, appellate counsel’s testimony was consistent
throughout as to the facts of the case.
The district court’s decision was not clearly erroneous.
Beehn’s final assignment of error is without merit.
CONCLUSION
The decision of the district court denying Beehn’s motion
for postconviction relief is affirmed.
A ffirmed.
Freudenberg, J., not participating.
22
Brief for appellant at 23.