Summary
The Nebraska Supreme Court reviewed Terrell E. Newman’s appeal from the denial of postconviction relief without an evidentiary hearing. The court held that Newman was entitled to an evidentiary hearing on his ineffective-assistance claim concerning the investigation and presentation of an alibi defense, but affirmed the denial of a hearing on his other claims, including actual innocence and additional alleged failures by counsel. The court affirmed in part and reversed and remanded in part.
Topics
Practice areas
Questions Presented
- Whether assignments of error raised for the first time in a reply brief could be considered.
- Whether Newman was entitled to an evidentiary hearing on his ineffective-assistance claims.
- Whether the alleged failure to investigate and present alibi witnesses sufficiently alleged deficient performance and prejudice to require an evidentiary hearing.
- Whether the remaining ineffective-assistance claims concerning witnesses, jury instructions, confidential-informant evidence, cell phone authentication, sentencing advisement, juror misconduct, a crime scene investigator, and the complete appellate record warranted postconviction relief or an evidentiary hearing.
- Whether Newman made a sufficient showing of actual innocence to obtain an evidentiary hearing.
Holdings
- An assignment of error raised for the first time in an appellant's reply brief is untimely and will not be considered.
- A postconviction court must grant an evidentiary hearing when the motion contains factual allegations which, if proved, would constitute an infringement of constitutional rights; no hearing is required when the motion alleges only conclusions or when the files and records affirmatively show the defendant is entitled to no relief.
- A claim of ineffective assistance of trial counsel is procedurally barred in postconviction proceedings when different counsel represented the defendant on direct appeal, the trial-counsel claim was not raised on direct appeal, and the alleged deficiencies were known to the defendant or apparent from the record. Claims of ineffective assistance of appellate counsel may be raised for the first time in postconviction review.
- Newman was entitled to an evidentiary hearing on his claim that trial counsel failed to investigate and present testimony from four identified or described alibi witnesses because the alleged testimony, if proved, could contradict the eyewitness identification and affect the cell phone evidence, creating a reasonable probability of a different result.
- Authentication under Neb. Rev. Stat. § 27-901(1) requires evidence sufficient to support a finding that the matter is what the proponent claims; the proponent need not conclusively prove genuineness or eliminate every possibility inconsistent with authenticity.
- Although a claim of actual innocence may allege a constitutional violation under the Nebraska Postconviction Act, a prisoner must make an extraordinarily high or strong demonstration of actual innocence to obtain an evidentiary hearing; Newman failed to meet that threshold.
Key quotations
“A trial court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal Constitution.” (at 777)
“Thus, depending on the evidence actually presented and found credible, there may be a reasonable probability that if such evidence had been presented at trial, the result of the proceeding could have been different.” (at 781)
“The threshold to entitle a prisoner to an evidentiary hearing on such a postconviction claim is “‘extraordinarily high.’”” (at 793-94)
Factual background
Newman was convicted in connection with the shooting deaths of Carlos Morales and Bernardo Noriega during a drug transaction at Morales's automobile body shop. The State's primary witness identified Newman and codefendant Derrick U. Stricklin as the shooters, and cell phone evidence placed a phone associated with Newman in communication with the victims and Stricklin and near the crime scene. In postconviction proceedings, Newman alleged ineffective assistance of appellate and trial counsel, including failure to investigate four potential alibi witnesses, and also claimed actual innocence.
Procedural history
Newman was convicted by a jury of two counts of first degree murder and related offenses and received consecutive sentences, including life imprisonment for the murders. The Nebraska Supreme Court affirmed his convictions and sentences on direct appeal. Newman then sought postconviction relief; the district court denied the motion without an evidentiary hearing. The Nebraska Supreme Court affirmed in part, reversed in part, and remanded for an evidentiary hearing limited to the claim that trial counsel failed to investigate and present specified alibi evidence.
Remand instructions
Remand for an evidentiary hearing limited to Newman's claim that trial counsel was ineffective for failing to investigate and present alibi evidence from Kevin Riley, Janet Mariscal, and two employees of Chubb Foods. The denial of postconviction relief without a hearing was affirmed in all other respects.