State v. Oliveira-Coutinho

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/11/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
State of Nebraska, appellee, v. Jose C.
Oliveira-Coutinho, appellant.
___ N.W.2d ___
Filed October 4, 2019. No. S-17-1262.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Right to Counsel: Appeal and Error. An appellate
court reviews the failure of the district court to provide court-appointed
counsel in a postconviction proceeding for an abuse of discretion.
3. Postconviction: Constitutional Law: Judgments. Postconviction relief
is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or
her constitutional rights such that the judgment was void or voidable.
4. 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.
5. ____: ____: ____. A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains factual
allegations which, if proved, constitute an infringement of the defend­
ant’s rights under the Nebraska or federal Constitution.
6. Postconviction: Proof. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case affirmatively
show that the defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
7. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
Error. To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show that his or her counsel’s perform­
ance was deficient and that this deficient performance actually preju-
diced the defendant’s defense. To show prejudice under the prejudice
component of the Strickland test, the defendant must demonstrate a rea-
sonable probability that but for his or her counsel’s deficient perform­
ance, the result of the proceeding would have been different. A reason-
able probability does not require that it be more likely than not that
the deficient performance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine confidence in
the outcome.
9. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
ineffective assistance of counsel test under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed
in either order, and the entire ineffectiveness analysis should be viewed
with a strong presumption that counsel’s actions were reasonable.
10. Effectiveness of Counsel. Counsel’s failure to raise novel legal the-
ories or arguments or to make novel constitutional challenges in
order to bring a change in existing law does not constitute deficient
performance.
11. Aiding and Abetting: Indictments and Informations: Notice. An
information charging a defendant with a specific crime gives the defend­
ant adequate notice that he or she may be prosecuted for the crime
specified or as having aided and abetted the commission of the crime
specified.
12. Constitutional Law: Criminal Law: Right to Counsel. A criminal
defendant’s Sixth Amendment right to the assistance of counsel attaches
only after the initiation of adversary judicial criminal proceedings—
whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.
13. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
instruct on a lesser-included offense if (1) the elements of the lesser
offense for which an instruction is requested are such that one cannot
commit the greater offense without simultaneously committing the lesser
offense and (2) the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant of the
lesser offense.
14. Postconviction: Right to Counsel. Under the Nebraska Postconviction
Act, it is within the discretion of the trial court to decide whether coun-
sel shall be appointed to represent the defendant.
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
Error. Where the alleged errors in the postconviction petition before
the district court are either procedurally barred or without merit, thus
establishing that the postconviction proceeding contained no justiciable
issue of law or fact, it is not an abuse of discretion to fail to appoint
postconviction counsel for an indigent defendant.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Jose C. Oliveira-Coutinho, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jose C. Oliveira-Coutinho appeals the order of the district
court for Douglas County which denied his motion for post-
conviction relief. Oliveira-Coutinho, who is serving sentences
of life imprisonment for three first degree murder convictions
and 20 years’ imprisonment for a theft by deception conviction,
set forth numerous claims for postconviction relief. The district
court determined that all of Oliveira-Coutinho’s claims were
either insufficiently pled, affirmatively refuted by the record,
or procedurally barred, and the court therefore denied his
motion for postconviction relief without an evidentiary hearing
and without appointing counsel. We affirm the order denying
postconviction relief.
STATEMENT OF FACTS
Oliveira-Coutinho was convicted of three counts of first
degree murder in connection with the 2009 deaths of Vanderlei
and Jaqueline Szczepanik and their son, Christopher Szczepanik.
Oliveira-Coutinho lived with the Szczepaniks and worked for
Vanderlei. He was also convicted of theft by deception based
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
on evidence that after their deaths, he withdrew money from
the Szczepaniks’ bank account. Oliveira-Coutinho’s convic-
tions and sentences were affirmed on direct appeal. Further
details regarding the crimes are provided in our opinion on
direct appeal. State v. Oliveira-Coutinho, 291 Neb. 294, 865
N.W.2d 740 (2015).
On June 27, 2016, Oliveira-Coutinho filed a pro se motion
for postconviction relief in which he set forth numerous claims
of ineffective assistance of counsel both at trial and on direct
appeal. Oliveira-Coutinho had the same counsel at trial and on
direct appeal, and he alleged that this postconviction action
was his first opportunity to raise issues of ineffective assistance
of trial counsel. Oliveira-Coutinho requested an evidentiary
hearing and appointment of postconviction counsel. Oliveira-
Coutinho filed an amended motion for postconviction relief on
June 26, 2017, in which he repeated his original claims and
set forth several new claims. In the amended motion, Oliveira-
Coutinho included almost 50 separate claims.
On November 14, 2017, the district court overruled Oliveira-
Coutinho’s amended motion for postconviction relief without
an evidentiary hearing. Generally, the court determined that
each of Oliveira-Coutinho’s claims was either not pled with
specificity, refuted by the record, or procedurally barred. In
its order overruling the motion, the court stated that Oliveira-
Coutinho’s numerous claims fell into two categories—claims
of ineffective assistance of counsel and claims of prosecuto-
rial misconduct prior to the appointment of trial counsel.
Regarding all the claims of ineffective assistance of counsel,
the court determined generally that even if counsel’s perform­
ance was deficient in any of the ways alleged, the record
refuted any claim that Oliveira-Coutinho suffered prejudice
as a result of such deficient performance. The court stated, “if
counsel were deficient in any of the claims alleged, the deci-
sion in this case would not have been any different in light
of the evidence adduced at trial, which is thoroughly outlined
in the direct appeal opinion.” The court further stated that in
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
reviewing Oliveira-Coutinho’s motion, it “was unable to find
any specific facts relating to prejudice and instead could only
locate generic statements.”
Although it determined that the failure to specifically allege
prejudice was in itself reason to overrule the motion, the court
addressed Oliveira-Coutinho’s specific claims of ineffective
assistance of counsel. The court stated the claims were “at
times confusing and somewhat overlapping,” and it there-
fore addressed the claims in the following 11 categories: (i)
failure to challenge the competency of codefendant Valdeir
Goncalves-Santos to be a witness against Oliveira-Coutinho,
(ii) failure to object to a jury instruction regarding a potential
mistrial if jurors violated rules set forth by the court, (iii) fail-
ure to challenge the court’s suppression ruling on appeal, (iv)
failure to challenge the court’s refusal to sequester the jury,
(v) failure to challenge the aiding and abetting instruction, (vi)
failure to challenge the instruction on first degree murder, (vii)
failure to file a motion to discharge on speedy trial grounds,
(viii) failure to object to the testimony of Oliveira-Coutinho’s
wife on grounds of hearsay and marital privilege, (ix) failure
to object to portions of the State’s opening statements, (x)
failure to object to the testimony of various witnesses based
on hearsay and other bases, and (xi) failure to investigate cer-
tain witnesses and evidence. The court addressed these claims
as follows.
(i) Failure to challenge competency of codefendant. As
discussed further in our opinion on direct appeal, State v.
Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015),
Goncalves-Santos testified at Oliveira-Coutinho’s trial, and
he generally testified that he and another individual helped
Oliveira-Coutinho kill the Szczepaniks. In his amended motion
for postconviction relief, Oliveira-Coutinho claimed that coun-
sel was ineffective for failing to challenge Goncalves-Santos’
competency to testify and for failing to raise the issue on
appeal. The district court determined that these claims were
refuted by the record, which showed that counsel filed a
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
motion challenging Goncalves-Santos’ competency, the trial
court overruled the motion after a hearing, and counsel asked
for a reconsideration, which the trial court denied. The court
also stated that this court had affirmed the trial court’s rulings
on these matters on direct appeal.
(ii) Failure to object to jury instruction regarding poten-
tial mistrial. Oliveira-Coutinho claimed that counsel was inef-
fective for failing to object to “Preliminary Jury Instruction
No. 1,” which he alleged stated in part:
“Any juror who violates these restrictions I have explained
to you jeopardizes the fairness of these proceedings, and
a mistrial could result that would require the entire trial
process to start over. As you can imagine, a mistrial is a
tremendous expense and inconvenience to the parties, to
the Court and the taxpayers.”
(Emphasis omitted.) He argued that counsel should have
objected to this instruction because it was confusing and preju-
dicial to his case and would discourage jurors from report-
ing misconduct. The district court determined that the record
refuted this argument because the first jury instruction “filed
October 9, 2012,” did not contain the language alleged. The
court also noted that Oliveira-Coutinho failed to cite any
authority establishing that an objection to such an instruction
would have been successful.
(iii) Failure to challenge suppression ruling on appeal.
Oliveira-Coutinho claimed that counsel on direct appeal failed
“to raise and argue a violation of [his] Fifth Amendment right.”
In this claim, he refers to a motion to “suppress [his] February
1st, 2010[,] Stop, Search and Detention under both the 4th
Amendment and the 5th Amendment.” Oliveira-Coutinho stated
that counsel on appeal failed to assign and argue any Fifth
Amendment violation, but he asserts that his “illiteracy pre-
vents him from adequately present[ing] the Fifth Amendment
claim and argu[ing] how this Claim would have changed the
direct appeal result.” The district court noted that counsel did
challenge the suppression ruling on direct appeal but that the
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
challenge was not successful. The court determined that its
review of the trial court’s suppression ruling, “in combination
with the lack of law supplied by [Oliveira-Coutinho],” revealed
no additional challenges to the suppression ruling that would
have changed the result of the direct appeal.
(iv) Failure to challenge refusal to sequester jury.
Oliveira-Coutinho claimed that counsel on direct appeal failed
to provide an adequate record for this court to review a claim
that the trial court erred when it overruled a motion to seques-
ter the jury for the entirety of the trial. He also claimed counsel
failed to raise an issue on appeal regarding whether the trial
court should have sequestered the jury at the start of delibera-
tions. The district court determined that the record refuted these
claims because (1) counsel raised and argued the denial of the
motion to sequester for the entire trial, but the assignment
of error was rejected on appeal, and (2) the record showed
that “the jury was going to be sequestered at the request of
[Oliveira-Coutinho] during deliberations.”
(v) Failure to challenge aiding and abetting instruction.
Oliveira-Coutinho claimed that trial counsel was deficient for
failing to object to the felony murder instruction because the
instruction allowed the jury to find him guilty if it found that
the killing occurred during the course of a robbery that he
committed either alone or while aiding and abetting another.
He argues that the instruction was in error because he was not
charged under a theory of aiding and abetting and because the
instruction failed to include an intent element in connection
with robbery. In separate but related claims, Oliveira-Coutinho
asserted that counsel was deficient for failing to inform him
prior to trial that he could be prosecuted under an aiding and
abetting theory and for failing to challenge the constitutional-
ity of Neb. Rev. Stat. § 28-206 (Reissue 2016), which provides
that “[a] person who aids, abets, procures, or causes another
to commit any offense may be prosecuted and punished as if
he were the principal offender.” He argued that the statute was
unconstitutional because it allowed the State to prosecute a
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
defendant under an aiding and abetting theory without giving
notice to the defendant that it intends to do so. He argued that
the statute “makes the fatal assumption” that those who are
subject to it understand they can be prosecuted under an alter-
native theory, and he asserts that because he does not speak
English, he was not aware of the possibility of being convicted
as an aider or abettor.
The district court stated that “the principle of aiding
and abetting has been a staple in Nebraska law” and that
“[Oliveira-Coutinho] fails to provide any authority creating
a realistic constitutional challenged [sic] to the statute.” The
court cited case law to the effect that an information charging
a defendant with a specific crime gives the defendant adequate
notice that he or she may be prosecuted for having aided or
abetted the crime. The court determined that a challenge to
the constitutionality of the statute would have been unsuccess-
ful and that an objection to the instruction also would have
been unsuccessful because the instruction was supported by
the evidence.
(vi) Failure to challenge instruction on first degree mur-
der. Oliveira-Coutinho claimed that counsel was deficient for
failing to object to the first degree murder instruction, which
he asserted was “faulty, unconstitutional and incomplete.” His
claim focused on the provision in the instruction that the jury
had to unanimously agree he was guilty of first degree murder
but that it did not have to be unanimous as to whether he was
guilty under a felony murder theory or under a premeditated
murder theory. He argued that the instruction was confusing
and misleading and that the evidence in this case did not sup-
port a premeditated murder theory. Oliveira-Coutinho made
four additional claims related to this claim: He claimed that
counsel was deficient for (1) failing on direct appeal to chal-
lenge “structural error” in the court’s acceptance of a jury
verdict that was erroneous because it did not require unanimity
as to the theory of first degree murder, (2) failing to challenge
on appeal the sufficiency of the evidence as to each theory,
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
(3) failing to propose a jury verdict form that would have
required unanimity as to the theory of first degree murder, and
(4) failing to challenge the constitutionality of a jury verdict
form that did not require unanimity.
The district court cited case law which, it asserted, had
rejected Oliveira-Coutinho’s arguments regarding unanimity
as to alternate theories of first degree murder. The court
concluded that counsel was not ineffective, because the chal-
lenges proposed by Oliveira-Coutinho would not have been
successful.
(vii) Failure to file motion to discharge on speedy trial
grounds. Oliveira-Coutinho claimed counsel was deficient for
failing to move for discharge based on statutory and constitu-
tional speedy trial grounds and for failing to raise both issues
on appeal. He alleged that he was charged by information on
September 1, 2011; that trial did not begin until September
21, 2012; and that nothing extended the time for trial beyond
6 months.
The district court determined that the record showed that
discharge would not have been granted even if counsel had
filed the motion. The court agreed that Oliveira-Coutinho was
charged on September 1, 2011, but it stated that trial began on
September 17, 2012. The court further stated that three motions
filed by Oliveira-Coutinho—a plea in abatement filed October
28, 2011, and ruled on January 5, 2012; a motion to sequester
and change venue filed December 22, 2011, and ruled on July
9, 2012; and a motion to suppress filed March 21, 2012, and
ruled on August 30, 2012—tolled the speedy trial clock to the
extent that he was timely brought to trial. The court determined
that counsel was not deficient, because a motion to discharge
would have been unsuccessful.
(viii) Failure to object to testimony of Oliveira-Coutinho’s
wife. Oliveira-Coutinho claimed that counsel was ineffective
for failing to object to testimony of his wife based on both
hearsay and marital privilege. He argued that her testimony
included hearsay because she testified regarding things he had
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STATE v. OLIVEIRA-COUTINHO
Cite as 304 Neb. 147
told her. He also argued that she should have been informed
that she had the right to refuse to testify based on mari-
tal privilege.
The postconviction court determined that counsel was not
deficient, because both objections would have been unsuccess-
ful. The court first noted that Nebraska’s rules of evidence pro-
vide a hearsay exception for statements made by the defend­
ant. With regard to the marital privilege, the court noted that
Neb. Rev. Stat. § 27-505(3)(a) (Reissue 2016) provides that
the marital privilege may not be claimed in a criminal case
where the crime charged is “a crime of violence.”
(ix) Failure to object to State’s opening statements.
Oliveira-Coutinho claimed that counsel was deficient for fail-
ing to object to “[s]everal instances” within the State’s opening
statement in which the prosecutor was allegedly “vouching
for the credibility” of Goncalves-Santos’ testimony. Oliveira-
Coutinho quoted portions of the opening statement in which
the prosecutor said that Goncalves-Santos would “tell . . . the
truth” and that he had taken certain actions because “he wanted
to tell the truth.”
The district court noted that counsel had raised the issue
on direct appeal to this court and that the assignment of error
was rejected. To the extent any of the specific statements cited
by Oliveira-Coutinho were not included in the assignment of
error on direct appeal, the court determined that this court’s
reasoning in rejecting the error showed that inclusion of the
specific statements would not have changed the result. The
court quoted a portion of this court’s opinion in which we
noted that by failing to object at trial, “Oliveira-Coutinho [had]
likely waived any argument that the State erred in directly
vouching for Goncalves-Santos”; however, we concluded that
he had “preserved his argument that the State suggested the
district court was also vouching for Goncalves-Santos.” State
v. Oliveira-Coutinho, 291 Neb. 294, 345, 865 N.W.2d 740, 777
(2015). We rejected the assignment of error because whether
or not the State’s comments amounted to misconduct, “such
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misconduct was not prejudicial to Oliveira-Coutinho’s right
to a fair trial.” Id. We concluded that “[t]he comments of the
prosecutor during his opening statements were isolated in the
overall context of the trial, [that] the jury was instructed spe-
cifically on Goncalves-Santos’ testimony as well as on issues
relating to arguments of counsel versus evidence presented,”
and that “the strength of the evidence overall was such that
any alleged misconduct in opening statements was not prejudi-
cial to Oliveira-Coutinho’s right to a fair trial.” Id. at 346, 865
N.W.2d at 778.
(x) Failure to make objections. The postconviction court’s
analysis included a section titled “Failure to make objections”
in which it stated that Oliveira-Coutinho had made “a variety
of arguments relating to trial counsel’s failure to object to the
testimony of different State witnesses based on hearsay and
other arguments.” By citing to pages of Oliveira-Coutinho’s
amended motion for postconviction relief, the court appears
to include in this section several claims in which Oliveira-
Coutinho claimed that counsel was deficient for (1) failing to
object based on hearsay to testimony by three witnesses; (2)
failing to challenge on direct appeal “prosecutorial miscon-
duct by commenting on [Oliveira-Coutinho’s] right to remain
silent”; (3) failing to challenge on direct appeal prosecuto-
rial misconduct based on the State’s “withholding” notes and
reports that a witness referred to in his testimony; (4) failing
to move for a mistrial after the trial court noted on the record
that during Goncalves-Santos’ testimony, an unidentified per-
son in the courtroom would nod or shake his head in a manner
Oliveira-Coutinho characterized as “live co[a]ching” of the
witness; (5) failure to either move for a mistrial or propose and
request a limiting instruction after a witness “had an outburst”
and “scream[ed], ‘Why . . . did you kill my family?’”; (6)
failing to raise on direct appeal the trial court’s overruling an
objection to evidence of his prior dismissed criminal charge;
(7) failing to raise on direct appeal the trial court’s overruling
his hearsay objection to Goncalves-Santos’ testimony regarding
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a statement made by a victim; (8) failing to request a limiting
instruction as to certain exhibits and failing to raise on direct
appeal the court’s failure to provide its own limiting instruc-
tion; (9) failing to raise on direct appeal the court’s refusal
to give a requested instruction regarding the credibility of the
testimony of an accomplice; and (10) failing to raise on direct
appeal the trial court’s failure to instruct the jury that Oliveira-
Coutinho’s “‘mere presence, acquies[c]ence or silence is not
enough to sustain the State’s burden of proving [Oliveira-
Coutinho] guilty.’”
The district court stated that it was unnecessary to discuss
each argument separately and that instead the claims could be
“dealt with summarily due to the lack of prejudice asserted.”
(xi) Failure to investigate. Oliveira-Coutinho made several
claims that counsel was deficient for failing to investigate
aspects of his case, including potential alibi defenses and wit-
nesses. The district court concluded that Oliveira-Coutinho
was not entitled to an evidentiary hearing on these claims.
The court cited authority to the effect that postconviction
claims of failure to investigate were insufficient when the
defendant failed to allege how undertaking such investigative
activities would have produced a different outcome at trial
and that therefore, the allegations were insufficient to estab-
lish prejudice.
Finally, although Oliveira-Coutinho characterized all his
claims as claims of ineffective assistance of counsel, the dis-
trict court stated that one claim involved purported constitu-
tional violations by the State prior to the appointment of the
counsel who represented him at trial and on direct appeal. The
court characterized the claim as “somewhat confusing” but
stated that Oliveira-Coutinho appeared to claim that “the State
violated his constitutional rights by assisting in obtaining [an
attorney’s] help in representing [Oliveira-Coutinho] and also
by somehow obtaining [his] ‘trial strategy’ during the time
frame that [the attorney] was appointed.” The court noted that
this attorney assisted Oliveira-Coutinho only in “determining
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whether he wanted to provide a statement” to law enforcement
and that the attorney “was not appointed to represent [him]
any further in the proceeding.” The court stated that it was
“hard to see how [the attorney] could have even obtained the
‘trial strategy’ to reveal to the State,” but that in any event,
the claim could have been brought on direct appeal and was
therefore procedurally barred in this postconviction action. The
court stated that it could not identify a claim of ineffective
assistance of counsel on direct appeal related to this claim, but
it determined that any such claim that might have been raised
on direct appeal was refuted by the record because the trial
court overruled Oliveira-Coutinho’s motion to suppress chal-
lenging, inter alia, the statement he provided to investigators
after meeting with the attorney. The court stated that in its
order overruling the motion to suppress, the trial court “found
there was no error in any of the actions by the State or [the
attorney] at the time [Oliveira-Coutinho] provided his state-
ment to law enforcement.” The court further noted that the
State did not offer Oliveira-Coutinho’s statement into evidence
at his trial, and the court determined that he therefore suffered
no prejudice.
Oliveira-Coutinho appeals the overruling of his motion for
postconviction relief.
ASSIGNMENTS OF ERROR
Oliveira-Coutinho claims that the district court erred when it
denied his claims without an evidentiary hearing. In his assign-
ments of error and in his arguments, he includes most but not
all of the claims he set forth in his amended motion. Oliveira-
Coutinho also claims that the court erred when it failed to
appoint postconviction counsel.
STANDARDS OF REVIEW
[1] 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
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show that the defendant is entitled to no relief. State v. Privett,
303 Neb. 404, 929 N.W.2d 505 (2019).
[2] We review the failure of the district court to provide
court-appointed counsel in a postconviction proceeding for an
abuse of discretion. State v. Taylor, 300 Neb. 629, 915 N.W.2d
568 (2018).
ANALYSIS
As noted above, Oliveira-Coutinho in his amended motion
for postconviction relief set forth almost 50 separately stated
claims. The district court analyzed those claims in groupings
and denied an evidentiary hearing on all claims. On appeal,
Oliveira-Coutinho makes a general claim that the district court
erred when it denied his claims without an evidentiary hear-
ing. Oliveira-Coutinho then argues that the court erred when
it found most but not all of his specific claims to be without
merit; he argues the claims with varying degrees of depth.
We begin our analysis herein by setting forth standards that
are applicable to our review of each postconviction claim. We
then review all the claims Oliveira-Coutinho argues on appeal
pursuant to those standards, and as discussed below, we deter-
mine that the claims were properly denied without an eviden-
tiary hearing. Although we have reviewed each specific claim
that Oliveira-Coutinho raises on appeal, our analysis below
discusses in depth only certain claims that warrant such discus-
sion, and we address the remaining claims in a more general
fashion. Finally, we note that because the district court did not
err when it denied Oliveira-Coutinho’s claims without an evi-
dentiary hearing, it also did not err when it denied his motion
for appointment of postconviction counsel.
Postconviction Standards.
[3,4] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her constitu-
tional rights such that the judgment was void or voidable. State
v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019). Thus, in
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a motion for postconviction relief, the defendant 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. State v.
Martinez, supra.
[5,6] A court must grant an evidentiary hearing to resolve the
claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution. State v. Martinez, supra. If a postconviction
motion alleges only conclusions of fact or law, or if the records
and files in the case affirmatively show that the defendant is
entitled to no relief, the court is not required to grant an evi-
dentiary hearing. Id.
Oliveira-Coutinho’s claims for postconviction relief assert
that he received ineffective assistance of counsel. Because
Oliveira-Coutinho was represented both at trial and on direct
appeal by the same lawyers, this motion for postconviction
relief was his first opportunity to assert ineffective assistance
of counsel. See id.
[7-9] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair
trial. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. State
v. Taylor, supra. To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. State v. Taylor, supra. A reasonable probability
does not require that it be more likely than not that the defi-
cient per­formance altered the outcome of the case; rather, the
defendant must show a probability sufficient to undermine
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confidence in the outcome. Id. The two prongs of this test
may be addressed in either order, and the entire ineffective-
ness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable. Id.
With these principles in mind, we review Oliveira-Coutinho’s
claims of ineffective assistance of counsel.
Competency of Goncalves-Santos.
Oliveira-Coutinho claims that the district court erred when
it refused an evidentiary hearing on his claims that counsel
failed to properly challenge, both at trial and on appeal, the
competency of Goncalves-Santos as a witness. The district
court generally found that these claims were refuted by the
record. We conclude that the record shows that Oliveira-
Coutinho’s proposed challenges to Goncalves-Santos’ compe-
tency would not have been successful and that therefore, the
district court did not err when it refused an evidentiary hearing
on the claims.
In three separately stated claims in his amended motion,
Oliveira-Coutinho generally claimed that counsel failed to
(1) challenge Goncalves-Santos’ competency at trial, (2) raise
on direct appeal the trial court’s error in allowing Goncalves-
Santos to testify, and (3) “bring to the attention” of the trial
court the mental competency of Goncalves-Santos. In these
claims, Oliveira-Coutinho generally alleged that Goncalves-
Santos had exhibited behaviors that indicated violent and
antisocial tendencies that called his mental competency
into question.
The district court determined that these postconviction
claims were refuted by the record, which showed that counsel
filed a motion challenging Goncalves-Santos’ competency, that
the trial court overruled the motion after a hearing, that coun-
sel asked for a reconsideration, and that the trial court denied
reconsideration. The court also stated that this court affirmed
the trial court’s ruling on these matters on direct appeal.
Oliveira-Coutinho argues on appeal that the district court’s
description of the record is inaccurate because counsel
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requested an advance ruling only on what questions he might
ask Goncalves-Santos regarding his competency and that
counsel did not file a motion to determine Goncalves-Santos’
competency. Oliveira-Coutinho claimed in his amended
motion that counsel should have gone further than seeking
to cross-­examine Goncalves-Santos regarding his behavior
and that instead, counsel should have asked the court to
order a competency evaluation of Goncalves-Santos so that
the court could determine whether he was competent to be
a witness.
We agree with Oliveira-Coutinho that the district court in its
postconviction order improperly focused on the motion regard-
ing cross-examination rather than the actual focus of Oliveira-
Coutinho’s claim, which was that counsel should have moved
the trial court to order a mental competency evaluation and
determine whether Goncalves-Santos was mentally competent
to be a witness. In our opinion in Oliveira-Coutinho’s direct
appeal, we stated that prior to trial:
Oliveira-Coutinho filed a motion for advance ruling seek-
ing to cross-examine Goncalves-Santos about his sexual
relations with animals, his killing or harming of animals,
his threats to kill his wife, and any other violent or anti-
social tendencies or behaviors. . . . Oliveira-Coutinho
argued that this evidence was relevant and went to the
competency of Goncalves-Santos as a witness under
rule 601.
State v. Oliveira-Coutinho, 291 Neb. 294, 308-09, 865 N.W.2d
740, 756 (2015). See Neb. Rev. Stat. § 27-601 (Reissue 2016).
The trial court determined that Oliveira-Coutinho could not
pursue the line of questioning because the matters “had no
bearing on Goncalves-Santos’ competency as a witness.” State
v. Oliveira-Coutinho, 291 Neb. at 309, 865 N.W.2d at 756.
On direct appeal, Oliveira-Coutinho assigned error to this
ruling. We affirmed the ruling on appeal on the basis that
the competency of a witness was an issue to be determined
by the court and not by the jury. We noted, however, that
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“Oliveira-Coutinho did not assign that the district court erred
in finding that Goncalves-Santos was competent to testify.” Id.
at 332, 865 N.W.2d at 770.
The issue decided by the trial court and affirmed by us on
direct appeal was whether Oliveira-Coutinho would be allowed
to cross-examine Goncalves-Santos on matters that alleg-
edly went to his mental competency. But Oliveira-Coutinho’s
claim for postconvicton relief was that counsel should have
sought a competency evaluation and should have sought to
bar Goncalves-Santos’ testimony because he was not men-
tally competent. It appears that trial counsel did not file such
a motion, and we specifically stated in our opinion on direct
appeal that Oliveira-Coutinho did not assign error to the trial
court’s finding that Goncalves-Santos was competent to testify.
We therefore think the district court erred when it stated that
the issue raised in these claims had been presented to the trial
court and this court on direct appeal.
Nevertheless, we determine that for other reasons, the dis-
trict court did not err when it refused an evidentiary hearing on
these claims. In ruling that Oliveira-Coutinho could not cross-
examine Goncalves-Santos regarding the matters he alleged
had a bearing on mental competency, the trial court reasoned
that such matters had no bearing on Goncalves-Santos’ compe-
tency to testify. In its February 10, 2012, order overruling the
motion, the trial court stated:
Under Nebraska law, every person is competent to be
a witness except as otherwise provided in the Rules of
Evidence. Neb.Rev.Stat. § 27-601. Even insanity or men-
tal illness does not automatically render a witness incom-
petent to testify; only when the witness is unable to com-
prehend the obligation of an oath, or to understand and
intelligently answer questions is the witness incompetent.
Garcia v. State, 159 Neb. 571, 592, 68 N.W.2d 151, 165
(1955). There is no evidence that [Goncalves-Santos] is
unable to comprehend the obligation of the oath or unable
to answer questions asked of him.
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The State argues that the trial court’s reasoning indicates that
even if counsel had requested a competency evaluation of
Goncalves-Santos, the trial court would not have ordered such
an evaluation and would not have determined that Goncalves-
Santos was not competent to testify.
Oliveira-Coutinho’s claims regarding Goncalves-Santos
indicate that he is confusing concepts of competency of wit-
nesses with issues of competency of a defendant to stand trial
or to represent himself or herself. Oliveira-Coutinho claims
counsel should have sought a competency evaluation and hear-
ing for Goncalves-Santos, which evaluation and hearing seem
similar to the type of evaluation and hearing that might be
required to determine a defendant’s competency. However,
Oliveira-Coutinho cites no statute, case, or other law that
would authorize the court to require a witness to submit to a
psychiatric evaluation to determine his or her mental compe-
tency to testify.
Instead, as the trial court indicated, our rules of evidence
provide, “Every person is competent to be a witness except
as otherwise provided in these rules.” § 27-601. Oliveira-
Coutinho asserts no rule of evidence pursuant to which his
allegations regarding Goncalves-Santos would render him not
competent to be a witness. Furthermore, the trial court found
no evidence that Goncalves-Santos was “unable to compre-
hend the obligation of the oath or unable to answer questions
asked of him,” and Oliveira-Coutinho points to nothing in
Goncalves-Santos’ extensive testimony at trial that would indi-
cate otherwise.
The district court erroneously reasoned that the claims
asserted by Oliveira-Coutinho in this postconviction action
with regard to Goncalves-Santos’ competency as a witness
were addressed on direct appeal. Nevertheless, we determine
that such claims did not allege a valid basis for relief and
that the record refutes the merits of the claims. We therefore
conclude that the district court did not err when it refused an
evidentiary hearing on these claims.
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Jury Instruction Regarding Potential Mistrial.
Oliveira-Coutinho claimed that counsel was ineffective for
failing to object to “Preliminary Jury Instruction No. 1,” which
he alleged stated in part,
“Any juror who violates these restrictions I have explained
to you jeopardizes the fairness of these proceedings, and
a mistrial could result that would require the entire trial
process to start over. As you can imagine, a mistrial is a
tremendous expense and inconvenience to the parties, to
the Court and the taxpayers.”
(Emphasis omitted.) He argued that counsel should have
objected to this instruction because it was confusing and
prejudicial to his case and would discourage jurors from
reporting misconduct. The district court determined that the
record refuted this argument because the first jury instruction
“filed October 9, 2012,” did not contain the language alleged.
The court also noted that Oliveira-Coutinho failed to cite any
authority establishing that an objection to such an instruc-
tion would have been successful. Although our reasoning
differs, we conclude that the court did not err when it denied
this claim.
The district court referred to the instructions “filed October
9, 2012,” and stated that they did not contain the language
alleged by Oliveira-Coutinho. The record indicates that the
instructions filed on October 9 were the instructions given
at the close of evidence. Oliveira-Coutinho alleged that the
instruction at issue was a preliminary jury instruction, and
the record confirms that the language quoted in his amended
motion was given as a preliminary jury instruction. The district
court therefore erred when it indicated that the alleged instruc-
tion was not given.
[10] However, the district court also stated that Oliveira-
Coutinho failed to cite authority showing that a challenge to
the instruction would have been successful. We agree with
the district court that Oliveira-Coutinho alleged no such
authority. In his amended motion and in his brief on appeal,
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Oliveira-Coutinho argues that the instruction was inappropri-
ate because it was confusing and could discourage jurors from
reporting misconduct. But he cites no authority to support his
contention that it was error for the court to give the instruction,
and therefore, the argument appears to be a novel legal theory.
We have held that “counsel’s failure to raise novel legal theo-
ries or arguments or to make novel constitutional challenges
in order to bring a change in existing law does not constitute
deficient performance.” State v. Sanders, 289 Neb. 335, 343,
855 N.W.2d 350, 357 (2014). Furthermore, Oliveira-Coutinho
did not assert any actual prejudice that resulted from the
instruction, such as juror misconduct that went unreported; he
only alleged what might have occurred. We therefore conclude
that the district court did not err when it denied this claim
without an evidentiary hearing.
Aiding and Abetting.
Oliveira-Coutinho claims that the district court erred when
it refused an evidentiary hearing on three claims related to the
felony murder instruction, which allowed the jury to find him
guilty based on a theory of aiding and abetting. In his amended
motion, Oliveira-Coutinho claimed that trial counsel was defi-
cient for (1) failing to object to the instruction, on the basis
that he was not charged under a theory of aiding and abetting;
(2) failing to challenge the constitutionality of § 28-206, which
provides that “[a] person who aids, abets, procures, or causes
another to commit any offense may be prosecuted and pun-
ished as if he were the principal offender”; and (3) failing to
inform him prior to trial that he could be prosecuted under an
aiding and abetting theory. We conclude that the district court
addressed the first two of these claims and properly found that
they did not warrant an evidentiary hearing. We further con-
clude that while the district court did not appear to explicitly
address the third claim, the court did not err when it denied an
evidentiary hearing on the claim, because Oliveira-Coutinho
failed to adequately allege prejudice.
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Regarding the first claim, Oliveira-Coutinho claimed in
the amended motion that counsel was deficient for failing to
object to the felony murder instruction because the instruction
allowed the jury to find him guilty on an aiding and abetting
theory when he was not arraigned on an aiding and abetting
theory. On appeal, Oliveira-Coutinho asserts that the district
court did not decide the merits of this claim. Without further
argument regarding the merits of the claim, he contends that
we should remand the cause for an evidentiary hearing on
the claim.
[11] However, we find that the district court addressed this
claim. The district court cited State v. Stark, 272 Neb. 89, 718
N.W.2d 509 (2006), for the proposition that an information
charging a defendant with a specific crime gives the defendant
adequate notice that he or she may be prosecuted for the crime
specified or as having aided and abetted the commission of the
crime specified. The district court concluded that because of
this precedent, a challenge by counsel to the instruction would
have been unsuccessful and therefore, counsel’s failure to make
the challenge was not ineffective assistance.
We agree with the district court’s reasoning. In addition to
State v. Stark, supra, in State v. Contreras, 268 Neb. 797, 803,
688 N.W.2d 580, 585 (2004), we held that “notwithstanding
the fact that the information charging the defendant does not
contain specific aiding and abetting language, an aiding and
abetting instruction is proper where warranted by the evi-
dence.” We therefore agree with the district court’s conclusion
that a challenge to the aiding and abetting instruction based on
the failure to charge the offense under an aiding and abetting
theory would not have been successful.
We note that as part of this claim, Oliveira-Coutinho also
asserted that the felony murder instruction omitted elements
necessary to prove the crime under an aiding and abetting
theory—specifically that he intended to commit the underlying
felony or knew that the person he aided or abetted intended to
commit the crime. He also appeared to assert as part of this
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claim that the evidence did not support an aiding and abetting
theory. The State argues on appeal that the trial court instructed
on the allegedly missing elements in a separate instruction
relating to aiding and abetting and that there was sufficient
evidence that Oliveira-Coutinho aided and abetted in the com-
mission of a felony. We agree with the State’s arguments and
agree that a challenge to the instruction on these bases would
have been unsuccessful. We conclude that the district court did
not err when it refused an evidentiary hearing on the claim
that counsel was ineffective for failing to object to the felony
murder instruction.
Regarding the second claim, Oliveira-Coutinho alleged in
the amended motion that counsel was deficient for failing to
challenge the constitutionality of § 28-206. He asserted that
the statute was unconstitutionally overbroad, and he argued
that the statute was unconstitutional because it allowed the
State to prosecute a defendant under an aiding and abetting
theory without giving notice to the defendant. He argued
that the statute “makes the fatal assumption” that those who
are subject to it understand they can be prosecuted under an
alternative theory, and he asserted that because he does not
speak English, he was not aware of the possibility of being
convicted as an aider or abettor. The district court rejected this
claim, reasoning that Oliveira-Coutinho “fail[ed] to provide
any authority creating a realistic constitutional challenged [sic]
to the statute.”
We agree with the district court that Oliveira-Coutinho pro-
vided no authority indicating that a constitutional challenge
to § 28-206 would have been successful. Oliveira-Coutinho
referred in his amended motion to an accused’s right to be
informed of the nature of the charges against him; however,
as discussed above, an information charging a defendant with
a crime gives the defendant notice that he or she may be pros-
ecuted for having aided or abetted the crime. In any event,
the lack of notice argument is better understood as a due
process challenge to the procedure by which the statute was
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implemented rather than a challenge to the constitutionality
of the aiding and abetting statute itself. Similarly, Oliveira-
Coutinho’s argument that he did not understand the charges
against him because of a language barrier would not undermine
the constitutionality of § 28-206; instead, the argument relates
to whether he received ineffective assistance of counsel in vio-
lation of the Sixth Amendment because counsel failed to ensure
he was aware of the charges against him. That is the subject of
the third claim discussed below. Because Oliveira-Coutinho did
not adequately allege how § 28-206 was unconstitutional, we
conclude that the district court did not err when it refused an
evidentiary hearing on the claim of ineffective assistance for
failing to challenge the constitutionality of the statute.
Finally, regarding the third claim, Oliveira-Coutinho claimed
in the amended motion that counsel was deficient for failing to
inform him prior to trial that he could be prosecuted under an
aiding and abetting theory. He asserted that had he known he
could have been convicted as an aider and abettor, “he would
have weight [sic] his options prior to proceed [sic] with the
trial” and “could have insisted to enter into further plea negoti-
ations or he would have opted to plea [sic] guilty to the State’s
second plea offer.” Oliveira-Coutinho argues on appeal that the
district court did not address this claim.
We agree with Oliveira-Coutinho that the district court did
not specifically address the claim that counsel was ineffective
for failing to advise him that he could be convicted as an aider
or abettor. Instead, this claim appears among the claims the
court generally disposed of by stating that Oliveira-Coutinho
failed to allege prejudice. We conclude that the court did not
err when it refused an evidentiary hearing on this claim because
Oliveira-Coutinho failed to adequately allege prejudice.
The State argues on appeal that whether or not counsel’s
performance was deficient in this respect, Oliveira-Coutinho
failed to allege a claim of ineffective assistance of counsel,
because he failed to allege how he was prejudiced by such
deficient performance. The State argues that he did not allege
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that if counsel had properly advised him that he could be
convicted on a theory of aiding and abetting, he would have
entered pleas to the charges instead of going to trial.
We agree with the State that Oliveira-Coutinho failed to
adequately allege how he was prejudiced and that to the extent
he did allege prejudice, the record refutes his allegations of
prejudice. As quoted above, Oliveira-Coutinho alleged merely
that if he had been properly advised, he would have weighed
his options, “could have” insisted on further plea negotiations,
or would have accepted “the State’s second plea offer.” The
allegation that he would have weighed his options is too vague
to establish that he was prejudiced, because it does not allege
a specific course of action that he would have taken if he had
been properly advised.
Oliveira-Coutinho’s allegations that he “could have insisted
to enter into further plea negotiations” and that he would have
accepted “the State’s second plea offer” are more concrete
allegations of specific actions he could or would have taken if
properly advised. However, the record refutes that the alleged
courses of action were viable. When he alleged in his amended
motion that he “would have opted to plea [sic] guilty to the
State’s second plea offer,” Oliveira-Coutinho referenced an
exhibit attached to the amended motion. That exhibit, how-
ever, contradicts his allegation that he would have accepted
“the State’s second plea offer.” The exhibit includes a letter
from Oliveira-Coutinho’s trial counsel in which counsel actu-
ally stated that “[t]he State never made such an offer” and
instead that counsel had made an offer that the State rejected.
Counsel further stated that the State had previously made an
offer for Oliveira-Coutinho to plead to “multiple counts of
second degree murder with no sentencing agreement,” but that
Oliveira-Coutinho had rejected that offer. Oliveira-Coutinho’s
allegation that he would have accepted “the State’s second
plea offer” is refuted by his own evidence which shows that
no “second plea offer” had been made by the State. The
exhibit further undermines his allegation that he “could have”
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insisted on further plea negotiations, because it shows that
prior plea negotiations had resulted in an offer from the State
that Oliveira-Coutinho did not find acceptable and because the
State’s rejection of counsel’s counter-offer indicated that the
State was not open to further plea negotiations that would have
yielded a better plea deal than that already offered.
This claim of ineffective assistance of counsel failed because
Oliveira-Coutinho did not sufficiently allege prejudice and
because his own exhibit undermined the allegations of preju-
dice that he did make. We therefore conclude that the district
court did not err when it refused an evidentiary hearing on
the claim that counsel was ineffective for failing to advise
Oliveira-Coutinho he could be convicted under an aiding and
abetting theory.
State Vouching for Goncalves-Santos’ Credibility.
Oliveira-Coutinho claims that the district court erred when
it refused an evidentiary hearing on his claim that counsel
was deficient for failing to raise on appeal “[s]everal instances
throughout the State’s case in chief” in which the prosecutor
was allegedly “vouching for the credibility” of Goncalves-
Santos’ testimony. The district court found that the claim was
without merit because counsel had raised the issue on direct
appeal and that the assignment of error had been rejected
because the error was not properly preserved. On appeal,
Oliveira-Coutinho attempts to change his claim from counsel’s
failure to raise the issue on direct appeal to counsel’s failure
to preserve the issue for appeal by objecting at trial. We agree
with the district court that the claim alleged in the amended
motion was refuted by the record.
In his amended motion, Oliveira-Coutinho claimed,
“Appellate counsel provided deficient performance by fail-
ing to assign, raise, and argue during the direct appeal stage
that the [p]rosecutor committed misconduct by vouching for
the credibility of Goncalves-Santos.” He then quoted por-
tions of the opening statement in which the prosecutor said
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that Goncalves-Santos would “tell . . . the truth” and that
Goncalves-Santos had taken certain actions because “he wanted
to tell the truth.” Oliveira-Coutinho also cited to portions of
the trial record in which two homicide investigators who had
interviewed Goncalves-Santos testified that when they inter-
viewed him, they let him know they expected him to tell the
truth. Oliveira-Coutinho further cited to portions of the State’s
closing statement in which the prosecutor made comments
similar to the quoted comments from the opening statement.
Oliveira-Coutinho claimed that a competent attorney would
have “noted, assigned and argued prosecutorial misconduct by
and when [the] prosecutor vouched for the credibility of [the
State’s] star witness.”
In its order denying postconviction relief, the district court
noted that counsel had raised the issue on direct appeal to this
court and that we rejected this assignment of error, in part
because counsel failed to object at trial. To the extent any of
the specific statements cited by Oliveira-Coutinho were not
included in the assignment of error on direct appeal, the court
determined that this court’s reasoning in rejecting the assigned
error showed that inclusion of the specific statements would
not have changed the result.
The district court quoted a portion of our opinion in which
we noted that by failing to object at trial, “Oliveira-Coutinho
[had] likely waived any argument that the State erred in
directly vouching for Goncalves-Santos.” State v. Oliveira-
Coutinho, 291 Neb. 294, 345, 865 N.W.2d 740, 777 (2015).
However, we concluded that he had “preserved his argument
that the State suggested the district court was also vouching
for Goncalves-Santos.” Id. We rejected the assignment of error
because whether or not the State’s comments amounted to
misconduct, “such misconduct was not prejudicial to Oliveira-
Coutinho’s right to a fair trial.” Id. We concluded that “[t]he
comments of the prosecutor during his opening statements
were isolated in the overall context of the trial, [that] the jury
was instructed specifically on Goncalves-Santos’ testimony as
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well as on issues relating to arguments of counsel versus evi-
dence presented,” and that “the strength of the evidence overall
was such that any alleged misconduct in opening statements
was not prejudicial to Oliveira-Coutinho’s right to a fair trial.”
Id. at 346, 865 N.W.2d at 778.
The claim Oliveira-Coutinho set forth in his amended motion
was that counsel failed to raise the issue on direct appeal.
In fact, counsel raised the issue on appeal, but this court
determined that the error had been waived because Oliveira-
Coutinho failed to object at trial. On appeal, Oliveira-Coutinho
attempts to recast his claim as a claim that trial counsel was
ineffective for failing to object and preserve the claim for
direct appeal. But that is not the claim he made in his amended
motion, and we will not consider an issue on appeal that was
not presented to or passed upon by the trial court. See 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 (2018).
The claim presented to the district court in this postconvic-
tion action was limited to the performance of counsel on direct
appeal, and the district court did not err when it refused an
evidentiary hearing on the basis that the record showed that
counsel had in fact raised the issue on direct appeal.
Issues Related to Attorney’s Representation
of Oliveira-Coutinho.
Oliveira-Coutinho claims that the district court erred when
it refused an evidentiary hearing on claims he made related
to his representation by an attorney, Matthew Kahler, when
Oliveira-Coutinho was deciding whether to make a statement
to law enforcement. The court found that the claims were pro-
cedurally barred because they were not raised on direct appeal,
but it further found that the claims were refuted by the record.
Assuming that the claims were not procedurally barred because
they were fashioned as claims of failure to raise the issues on
direct appeal, we conclude the district court did not err when
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it found that the claims were refuted by the record and that
Oliveira-Coutinho could not show prejudice.
In two separately stated claims in the amended motion,
Oliveira-Coutinho alleged that (1) his counsel on direct appeal
failed to assign and argue “violations of [his] Constitutional
rights” and (2) “the State violated his Fifth, Sixth and
Fourteenth Amendment rights in light of the fact that the pros-
ecution had knowledge and possession of [Oliveira-Coutinho’s]
trial strategy before he was charged and tried.” In the first of
these two claims, Oliveira-Coutinho simply asserted, without
further specifying the nature of the alleged constitutional viola-
tions, that appellate counsel provided deficient representation.
In the second of the two claims, Oliveira-Coutinho began with
the general allegation that the State had violated his constitu-
tional rights, and then over several pages, he set forth how he
thought the State violated his rights based on its role in finding
an attorney to advise him at a time when he was considering
making a statement to law enforcement. He generally alleged
that after he invoked his right to counsel, the county attorney
“was informed and personally appointed [Kahler] to represent”
him, and that thereafter, Kahler disclosed “confidential com-
munications” and “his trial strategy” to prosecutors.
The district court in its postconviction order found that the
claims related to Kahler were procedurally barred because
they could have been raised on direct appeal. Apparently, the
court read the second of the above-described claims in isola-
tion from the preceding claim when it stated that it “could not
identify an ineffective assistance of counsel argument within
the claim[]” and therefore determined that the claim was pro-
cedurally barred. Although it was not made entirely clear in
the amended motion that the two claims were meant to be read
together, we will assume for purposes of review that the two
claims were intended to be read together and that together, they
set forth claims of ineffective assistance of counsel for failing
to raise issues on direct appeal and are therefore not procedur-
ally barred in this postconviction action. However, the district
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court found that even if the claims were not procedurally
barred, they were refuted by the record. We agree.
The district court in this postconviction action determined
that Oliveira-Coutinho’s claim related to Kahler was refuted
by the record because the trial court overruled Oliveira-
Coutinho’s suppression motion challenging, inter alia, the
statement he provided to law enforcement while being repre-
sented by Kahler. The court stated in the postconviction order
that in the order denying the motion to suppress, the trial court
had specifically “found there was no error in any of the actions
by the State or . . . Kahler at the time [Oliveira-Coutinho]
provided his statement to law enforcement.” The court further
determined that because Oliveira-Coutinho’s statement was not
offered into evidence at his trial, he suffered no prejudice.
Oliveira-Coutinho argues on appeal that appellate counsel
deficiently failed to raise on direct appeal that “the State” vio-
lated his rights by “appointing” Kahler to represent him and
that by “appointing” Kahler, brief for appellant at 18, the State
“[i]nterfered [w]ith [Oliveira-Coutinho’s] [t]rial [s]trategy and
. . . [o]btained [i]ncriminating [e]vidence,” id. at 22. Oliveira-
Coutinho asserts that after he invoked his right to counsel,
officers who were questioning him contacted the county attor-
ney and the county attorney “appointed” Kahler to represent
him. Id. at 19. He further asserts that after advising Oliveira-
Coutinho “to confess everything he knew about the triple-
homicide,” Kahler then “debrief[ed]” the prosecutors about
what Oliveira-Coutinho told him during their conversation. Id.
Oliveira-Coutinho argues he would not have made a statement
to police if he knew that the attorney was not court appointed
and that the attorney was acting as an agent for the State with
the purpose of advising him to confess and then revealing his
trial strategy to prosecutors.
The district court determined that the record relating to
Oliveira-Coutinho’s motion to suppress the statement refuted
these claims. We therefore review the information disclosed in
the trial record related to the motion to suppress the statement.
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Oliveira-Coutinho was questioned by investigators in this
case “on February 1 and into February 2, 2010, and again later
in February and March.” State v. Oliveira-Coutinho, 291 Neb.
294, 302, 865 N.W.2d 740, 752 (2015). “Oliveira-Coutinho
was first questioned on February 1 . . . and was placed on
a U.S. Immigration and Customs Enforcement (ICE) hold
within 24 hours after the interview.” Id. at 312, 865 N.W.2d
at 758. Oliveira-Coutinho “was not initially held by the State
on any charges related to the Szczepanik family’s disappear-
ance, but instead was placed on an ICE hold by the federal
government.” Id. at 327, 865 N.W.2d at 767. “Between March
6 and 11, Oliveira-Coutinho contacted an investigator in this
case and spoke to him, against his attorney’s advice, regard-
ing Goncalves-Santos’ involvement on March 11.” Id. It is
the March 11 statement that is relevant to Oliveira-Coutinho’s
claims related to his representation by Kahler.
Prior to trial, Oliveira-Coutinho moved to suppress, inter
alia, the statement he made to investigators on March 11, 2010.
With specific regard to the March 11 statement, he alleged
that he had been interrogated in the presence of Kahler and
that Kahler was neither appointed by a judge nor retained
by Oliveira-Coutinho. After an evidentiary hearing, the trial
court overruled Oliveira-Coutinho’s motion to suppress in an
order filed August 30, 2012. In the order, the trial court noted
the following facts relevant to the March 11, 2010, state-
ment: Oliveira-Coutinho had been interviewed by Christopher
Spencer, an Omaha police detective, a few times between
February 1 and March 5. On March 11, based on telephone
calls Oliveira-Coutinho had placed to him, Spencer arranged
to have Oliveira-Coutinho brought to an interview room.
Oliveira-Coutinho indicated that he wanted to continue talk-
ing with Spencer, but he inquired as to whether he could speak
with an attorney first. Spencer told Oliveira-Coutinho he could
retain an attorney, but Oliveira-Coutinho said he could not pay
for an attorney. Spencer relayed Oliveira-Coutinho’s request
for an attorney to Teresa Negron, the lead sergeant in charge of
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the case. Negron first attempted to contact one of the attorneys
who would eventually become Oliveira-Coutinho’s trial coun-
sel; however, after failing to reach that attorney, she contacted
the county attorney, who in turn contacted Kahler. Kahler,
who had previously been employed in the county attorney’s
office but was now in private practice specializing in criminal
defense, agreed to help.
Kahler testified at the hearing on Oliveira-Coutinho’s motion
to suppress. He testified that on the evening of March 11,
2010, he received two calls—one from Negron and one from
the county attorney. The two asked him whether he would
be willing to come to police headquarters to advise a suspect
who had made statements to the police on whether or not he
should make any further statements. Kahler’s understanding at
the time was that a court would appoint him to represent the
suspect if and when charges were filed. Kahler went to police
headquarters, where, at his request, police officers briefed
him about the investigation and previous statements Oliveira-
Coutinho had made. Kahler then met Oliveira-Coutinho and
spoke with him through an interpreter. Kahler spoke with
Oliveira-Coutinho with only the interpreter present for close to
2 hours. At the suppression hearing, Kahler replied “No” when
the State’s attorney asked whether there was “anything about
the answering of the questions or the advice that [he] gave to
[Oliveira-Coutinho] that was impacted by any other person or
any agency, whether it be law enforcement, County Attorney’s
Office, or any other type of agency.” Kahler testified that he
told Oliveira-Coutinho, inter alia, that Oliveira-Coutinho was
“obviously considered a suspect by the police” and that there-
fore, Kahler had “concern about him giving a statement . . .
about knowing information about what other people had done.”
After Kahler had so advised him, Oliveira-Coutinho decided to
continue speaking with officers. Kahler testified that Oliveira-
Coutinho made the decision on his own and gave the ensuing
statement voluntarily. Spencer thereafter interviewed Oliveira-
Coutinho with Kahler and an interpreter present.
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After the interview, Kahler asked the officers whether
Oliveira-Coutinho was being charged based on admissions
he had made related to accessing the victims’ bank accounts;
although officers were not certain, Kahler’s understanding was
that he would be charged sometime soon. Kahler also spoke
with the county attorney about being appointed by the court,
and he assumed he would be formally appointed the next day.
However, Kahler learned the next morning that no charges had
been filed against Oliveira-Coutinho. Kahler did not thereaf-
ter pursue appointment, and he did not meet with Oliveira-
Coutinho again. The record shows that the State did not file
any charge against Oliveira-Coutinho in connection with this
case until approximately May 24, 2010, and that the court
appointed different counsel at that time.
In its order overruling Oliveira-Coutinho’s motion to sup-
press, the trial court stated with regard to the March 11, 2010,
interview and Kahler’s representation as follows:
[Oliveira-Coutinho’s] contention that . . . Kahler was not
his attorney “at the time” of his interrogation on March
11th and in fact was “an agent of law enforcement and
[the county attorney] and their attempt to get [Oliveira-
Coutinho] to speak to them” is unfounded. [Oliveira-
Coutinho] requested an attorney and before he made any
further statements, a very well-qualified criminal defense
attorney answered the call and provided him the help and
legal advice he requested.
After spending almost two hours privately with
[Oliveira-Coutinho], Kahler then remained with him dur-
ing the interview conducted by Spencer, whom [Oliveira-
Coutinho] agreed to speak to, Kahler’s professional advice
notwithstanding.
[12] With regard to these issues, Oliveira-Coutinho generally
alleged violations of 5th-, 6th-, and 14th-Amendment rights. A
criminal defendant’s Sixth Amendment right to the assistance
of counsel attaches only after the initiation of adversary judi-
cial criminal proceedings—whether by way of formal charge,
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preliminary hearing, indictment, information, or arraignment.
State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
Oliveira-Coutinho was not charged by the State until May
2010, and therefore, the Sixth Amendment right to counsel was
not implicated at the time of the March 11 interview. Oliveira-
Coutinho’s references to the Fifth Amendment are not clear
as to whether he is alleging a violation of his right to remain
silent or a violation of his right to due process.
But the crux of his allegation is that Kahler was somehow
acting as an agent of the prosecution, including the county
attorney and investigators, and that in that role, Kahler both
encouraged Oliveira-Coutinho to confess and later disclosed
Oliveira-Coutinho’s confidential trial strategy to the prosecu-
tors. These allegations, however, are contradicted by the testi-
mony of Kahler at the suppression hearing. Kahler testified that
he expressed concerns about Oliveira-Coutinho’s providing a
statement when he was considered a suspect and testified that
despite such advice, Oliveira-Coutinho made his own decision
to give a voluntary statement. Furthermore, testimony by Kahler
and others at the suppression hearing refuted that Kahler shared
any sort of confidential communications with the prosecution;
instead, testimony at the suppression hearing indicated that
Kahler and Oliveira-Coutinho were able to speak outside the
presence of the investigators, and there is nothing to indicate
that Kahler shared any confidential communications, much less
trial strategy, with the prosecutors. Kahler testified to commu-
nications with the investigators that were limited to the investi-
gators’ briefing him on what had occurred in the investigation
of Oliveira-Coutinho. He also testified to communications with
the county attorney but that such communications were limited
to discussing how Kahler might be appointed by a court to
represent Oliveira-Coutinho. Kahler testified that his advice to
Oliveira-Coutinho was not influenced by law enforcement or
the county attorney’s office.
Kahler’s testimony and other testimony at the suppression
hearing refute the claim that Kahler acted as an agent for the
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prosecution. Furthermore, Oliveira-Coutinho makes only gen-
eral allegations of “trial strategy” that was disclosed by Kahler
to the prosecution; he does not allege any specific information
relevant to his trial strategy that Kahler learned and provided to
the prosecution. Brief for appellant at 25. As the postconviction
court noted, the limited involvement of Kahler at a time well
before trial and before charges had been filed made it highly
unlikely that he would have become privy to any significant
trial strategy, which would have later been decided upon by
Oliveira-Coutinho and his trial counsel, who were appointed
months after Kahler’s limited involvement in this case.
While we determine that these claims are not sufficiently
stated and are materially refuted by the record, we take this
opportunity to disapprove the process by which Kahler was
apparently brought in to advise Oliveira-Coutinho. The testi-
mony of both Spencer and Negron at the suppression hearing
indicated that the process by which Kahler was brought in to
advise Oliveira-Coutinho was not a typical occurrence. We
think it should not be. The county attorney’s office should
not be involved in finding an attorney to advise persons
being questioned by investigators; the county attorney should
remain independent and impartial in fact and in appearance,
and any involvement of the county attorney in obtaining
counsel to advise a suspect damages at least the appearance
of impartiality.
That having been said, the record refutes Oliveira-Coutinho’s
claim that Kahler acted as an agent for the prosecution and pro-
vided confidential trial strategy to the prosecution. We there-
fore conclude that the district court did not err when it deter-
mined that Oliveira-Coutinho’s postconviction claims related to
Kahler did not warrant an evidentiary hearing.
Claims Not Addressed by District Court.
In his brief on appeal, Oliveira-Coutinho asserts arguments
with regard to various claims that he contends the district court
did not address in its order denying postconviction relief. We
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find that several of those claims were addressed in connection
with other related claims in one of the sections we discussed in
our statement of facts above. However, there are some claims
we do not think the court specifically addressed in one of
these sections.
We note that the court stated in its order, prior to addressing
specific claims, that all of Oliveira-Coutinho’s claims of inef-
fective assistance of counsel were without merit because he
failed to adequately plead prejudice or the record refuted any
allegations of prejudice. Therefore, to the extent the district
court did not appear to specifically analyze a particular claim,
we have reviewed that claim on the basis that the district court
found that the claim failed based on the prejudice prong of an
ineffective assistance of counsel claim.
There are a few claims set forth in Oliveira-Coutinho’s
amended motion that we do not think were addressed in one
of the sections in which the court discussed specific claims
and instead were addressed only by the court’s general find-
ing regarding prejudice. One of those claims was Oliveira-
Coutinho’s claim that counsel was deficient for failing to
inform him he could be convicted under an aiding and abet-
ting theory; we considered that claim in connection with other
claims related to the aiding and abetting issue in an earlier
section of our analysis, and we determined that the court prop-
erly denied the claim without an evidentiary hearing because
Oliveira-Coutinho failed to adequately plead prejudice.
Two other claims we do not think were specifically addressed
by the district court were Oliveira-Coutinho’s claims that coun-
sel was deficient (1) for failing to request a lesser-included
offense instruction on the charge of accessory to a felony after
the fact and (2) for failing to raise on appeal an issue related to
the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat.
§27-1101.” We determine that the district court properly denied
each of these claims without an evidentiary hearing.
[13] With regard to the first of these two claims, Oliveira-
Coutinho claimed that counsel was deficient for failing to
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request instruction on “a lesser included offense of accessory
to a felony after the fact pursuant to Neb. Rev. Stat. §28-204.”
In the amended motion, this claim focused on the charge as
being a lesser-included offense of first degree murder. But
Oliveira-Coutinho’s arguments in his brief on appeal focus
on its being a lesser-included offense of theft by deception.
In any event, accessory to a felony is not a lesser-included
offense of either greater offense. A court must instruct on a
lesser-included offense if (1) the elements of the lesser offense
for which an instruction is requested are such that one cannot
commit the greater offense without simultaneously committing
the lesser offense and (2) the evidence produces a rational basis
for acquitting the defendant of the greater offense and convict-
ing the defendant of the lesser offense. State v. Rocha, 295
Neb. 716, 890 N.W.2d 178 (2017). Neb. Rev. Stat. § 28-204(1)
(Reissue 2008) sets forth various ways in which one could
“interfere with, hinder, delay, or prevent the discovery, appre-
hension, prosecution, conviction, or punishment of another for
an offense” and therefore be guilty of being an accessory to
a felony. The elements of accessory to a felony are not such
that one could not commit either first degree murder or theft
by deception without simultaneously committing accessory to
a felony. Therefore, Oliveira-Coutinho would not have been
entitled to a lesser-included offense instruction on accessory
to a felony and he could not establish prejudice from counsel’s
failure to request such an instruction. We conclude the district
court did not err when it denied this claim without an eviden-
tiary hearing.
With regard to the second of these claims, in his amended
motion, Oliveira-Coutinho claimed counsel on direct appeal
was ineffective for failing to raise on appeal an issue related to
the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat.
§27-1101.” He did not further explain the claim in the amended
motion, but he cited to a portion of a pretrial hearing on his
motion to dismiss due to loss of testimonial evidence. The trial
court sustained the State’s hearsay objection to his question
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to an investigator which would have required the investigator
to testify to statements made by Oliveira-Coutinho during the
investigation. In his brief on appeal, Oliveira-Coutinho does
not argue this claim beyond the allegations in his amended
motion. Oliveira-Coutinho failed to allege how the trial court’s
interpretation of the statute was “unconstitutional” or how
counsel’s failure to raise the issue on appeal affected the out-
come of the direct appeal. Therefore, Oliveira-Coutinho did not
adequately allege a claim of ineffective assistance of counsel
and the district court did not err when it denied this claim with-
out an evidentiary hearing.
Remaining Claims.
With regard to the remaining claims that we have not spe-
cifically addressed above, we have reviewed such claims and
the district court’s disposition of those claims. In our statement
of facts, we described how the district court resolved each of
these claims. We determine that the district court adequately
addressed such claims and that its conclusions regarding such
claims were proper. We conclude that the district court properly
found that the claims should be denied without an evidentiary
hearing, and we do not believe such claims warrant further
discussion herein.
In sum, we conclude that the district court did not err when
it determined that the claims argued by Oliveira-Coutinho in
this appeal did not warrant an evidentiary hearing. We there-
fore reject Oliveira-Coutinho’s assignment of error asserting
that the district court erred when it determined that the claims
should be denied without an evidentiary hearing.
Appointment of Postconviction Counsel.
[14,15] Oliveira-Coutinho also claims that the district court
erred when it denied his motion for appointment of counsel.
Under the Nebraska Postconviction Act, it is within the dis-
cretion of the trial court to decide whether counsel shall be
appointed to represent the defendant. See State v. Taylor, 300
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Neb. 629, 915 N.W.2d 568 (2018). Where the alleged errors in
the postconviction petition before the district court are either
procedurally barred or without merit, thus establishing that
the postconviction proceeding contained no justiciable issue of
law or fact, it is not an abuse of discretion to fail to appoint
postconviction counsel for an indigent defendant. See id. We
therefore conclude the district court did not abuse its discretion
when it denied Oliveira-Coutinho’s motion to appoint postcon-
viction counsel.
CONCLUSION
We conclude that the district court did not err when it denied
Oliveira-Coutinho’s postconviction claims without an eviden-
tiary hearing, and we further conclude that the court did not err
when it denied his request to appoint postconviction counsel.
We reject Oliveira-Coutinho’s assignments of error, and we
affirm the district court’s order.
A ffirmed.
Freudenberg, J., not participating.