State v. Williams

Wright, J.,

dissenting.

I respectfully dissent from the majority’s decision. As I have consistently stated since State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), I disagree with the majority’s holding that malice is an essential element of the crime of second degree murder. See, also, State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994); State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994).

With State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), this court has used the plain error doctrine to expand the scope of its holding that malice is an essential element of second degree murder. In Myers, the court found plain error because the jury instructions did not include malice as an element of second degree murder. In Manzer, Ladig, and Martin, the court found plain error because the information charging second degree murder did not allege malice as an element of the crime.

This is Williams’ second attempt at postconviction relief based on a claim of allegedly ineffective assistance of counsel. It is his burden to establish a basis for such relief. See State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990). In order to sustain a claim of ineffective assistance of counsel, the party must show that (1) counsel’s performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Id. In the appeal following Williams’ first *942postconviction relief request, we found that Williams had not established that his trial counsel was ineffective and had failed to establish any prejudice resulting from his trial counsel’s decisions. On the appeal following the second postconviction relief request, the majority now holds that Williams had ineffective counsel because the issue of malice as an element of second degree murder was not raised during two prior visits to this court. I disagree.

In Williams’ direct appeal, his sole assignment of error was that the evidence was insufficient to sustain the convictions. State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987). The jury instructions were a part of the record on direct appeal, but this court did not find plain error in the fact that the jury instructions did not include malice as an element of second degree murder. In Myers, this court stated that the only issue on Williams’ direct appeal was whether the evidence was sufficient to support a conviction for intentional killing rather than Williams’ claim of self-defense.

In 1988, Williams filed his first motion for postconviction relief. At the evidential hearing in district court, Williams alleged 18 examples of ineffective assistance by his trial counsel. None of these examples mentioned the failure of trial counsel to object to the jury instructions. On appeal, Williams set forth five grounds for his claim of ineffective assistance of trial counsel. This court found no merit to any of these claims. We stated: “The evidence at trial against the defendant was overwhelming. His attorney was an experienced trial lawyer who performed as a lawyer possessing ordinary training and skill in criminal law in the area should have done.” Williams, 234 Neb. at 899-900, 453 N.W.2d at 405.

At his jury trial and on direct appeal, Williams was represented by the Douglas County public defender’s office. In his first postconviction action and in the U.S. Court of Appeals for the Eighth Circuit, Williams was represented by court-appointed counsel. None of these attorneys brought to any court’s attention the fact that the jury instructions did not state that malice was an element of second degree murder.

In this second postconviction appeal, the majority states: “We have continuously held that the adoption of the current *943criminal code did not eliminate malice as an element of second degree murder.” Thus, the majority establishes that the basis for Williams’ requested relief was available to him at the time of his first motion for postconviction relief and on appeal from the denial of that motion. As the majority notes, a second motion for postconviction relief will not ordinarily be entertained unless the motion affirmatively shows on its face that the basis for the requested relief was not available at the time the movant filed the prior motion. See, State v. Keithley, ante p. 638, 529 N.W.2d 541 (1995); State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989). Williams cannot now claim ineffective assistance of counsel at trial, on direct appeal, or during the first postconviction proceeding. He had different counsel for the first postconviction proceeding, and the basis for the relief was available to him at his first postconviction proceeding.

Nor can Williams now argue that his counsel for the first postconviction appeal was ineffective for failing to raise the omission of malice from the jury instructions. One requesting postconviction relief cannot claim constitutionally ineffective assistance of counsel as a result of an attorney’s service in a postconviction proceeding. See State v. Stewart, supra. In Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), the U.S. Supreme Court held that because there is no constitutional right to an attorney in state postconviction proceedings, “a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. ” The Nebraska Constitution’s provision for assistance of counsel in a criminal case is no broader than its counterpart in the federal Constitution. State v. Stewart, supra.

The majority does not explain why Williams could not have raised the issue of ineffective assistance of counsel regarding the omission of malice from the jury instructions at the time of his first postconviction proceeding. “ ‘[A] defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time of the filing of the first motion.’ ” Id. at 718, 496 N.W.2d at 528. If, as the majority states, malice has continuously been an essential *944element of second degree murder, the grounds for relief existed at the time of Williams’ first motion for postconviction relief. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Stewart, supra. Nor can those issues be raised in an appeal concerning a second motion for postconviction relief.

Therefore, I dissent from the opinion of the majority because I believe that Williams has no right to postconviction relief. As we stated in the first postconviction proceeding, the evidence against Williams was more than sufficient to sustain the convictions, and he was represented by an experienced trial lawyer who met the necessary standard to be considered effective. State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990). I would affirm the district court’s denial of Williams’ request for postconviction relief.

Hastings, C.J., and Connolly, J., join in this dissent.