INBODY, Chief Judge.
Jay Bruna appeals from the Sarpy County District Court's denial of his petition for postconviction relief following an evidentiary hearing. For the reasons set forth herein, we affirm.
In 2002, Bruna was charged with first degree sexual assault on a child and a jury trial was held during which he was represented by Gregory Pivovar. This trial resulted in a mistrial. On retrial, Bruna, who was represented by Timothy Watts, was convicted of first degree sexual assault on a child and was sentenced to 15 to 50 years' imprisonment. A detailed factual basis is found at State v. Bruna, 12 Neb.App. 798, 686 N.W.2d 590 (2004) (Bruna I) and will not be repeated here. On direct appeal, Bruna was represented by Lawrence G. Whelan. This court affirmed Bruna's conviction, but vacated his sentence and remanded for resentencing by a different judge due to comments the judge made at sentencing. Id. On remand, Bruna was sentenced to 20 to 50 years' imprisonment and that sentence was affirmed. See State v. Bruna, 14 Neb.App. 408, 710 N.W.2d 329 (2006) (Bruna II), and State v. Bruna, 272 Neb. 313, 721 N.W.2d 362 (2006).
Subsequently, Bruna filed a motion for postconviction relief which he later amended. The district court found that an evidentiary hearing was not necessary to address certain issues raised by Bruna in his amended motion. The issues denied by the court without an evidentiary hearing have not been assigned as errors by Bruna in this appeal, and in any event, the court's denial of an evidentiary hearing on these issues was required to be appealed immediately. See State v. Poindexter, 277 Neb. 936, 766 N.W.2.d 391 (2009) (order granting evidentiary hearing on some issues presented in postconviction motion but denying hearing on others is final order). The district court granted Bruna's request for an evidentiary hearing regarding the remaining grounds and issues raised in Bruna's amended motion for postconviction relief, and an evidentiary hearing was held thereon on January 15, 2010. The parties presented evidence via the following depositions: Bruna, Watts, the State's expert witness Dr. Theodore DeLaet, Dr. Stephen Skulsky, and Pivovar. Although Bruna claimed ineffectiveness of his appellate counsel, he did not present deposition testimony, during the evidentiary hearing, by Whelan, who represented him on his direct appeal.
Dr. Skulsky is a clinical psychologist who had been consulted by defense counsel prior to trial; however, despite having given a deposition prior to trial, Dr. Skulsky was not called as a witness during Bruna's trial. In his deposition testimony admitted at the postconviction hearing, Dr. Skulsky testified that he felt that Dr. DeLaet's dual role in treating the victim and testifying as an expert witness at Bruna's trial was in violation of the clinical psychologist's ethical code because one could not maintain impartiality. However, he also testified that Dr. DeLaet "did a good job," he had no outright disagreement with any of Dr. DeLaet's testimony, and he felt that Dr. DeLaet's testimony was accurate. He further testified that "I would have gone about giving the information differently, but the information would have been about the same." By "giving information differently," Dr. Skulsky stated that he
Although Dr. Skulsky testified that Dr. DeLaet did not give the aforementioned testimony in those specific words, Dr. DeLaet did give examples, and Dr. Skulsky testified that Dr. DeLaet's testimony "was pretty accurate" and "I would have said the same things he said about perpetrators, but I would have made a different point about it." According to Dr. Skulsky, Dr. DeLaet made the point that there is no one profile that fits all sexual perpetrators and that there is a type that acts out of inadequacy and immaturity and another type that is a control type. Dr. Skulsky testified that although Dr. DeLaet did not use the examples or explanations that he would have used, Dr. DeLaet did make the same points. Dr. Skulsky agreed with Dr. DeLaet's testimony, but would have elaborated more fully on various areas, such as types of behaviors and characteristics of child victims, predators, and children that make false claims, than Dr. DeLaet touched upon in his testimony. However, Dr. Skulsky did not provide, in his deposition, specific testimony on the elaborations that he would have made in these areas.
The district court took judicial notice of the court's file and the bill of exceptions of the previous trial proceedings and sentencings in Bruna's case. Following the hearing, the district court denied Bruna's motion for postconviction relief in a thorough and well-reasoned 25-page order.
Bruna contends that the district court erred in finding that his trial counsel was not ineffective for (1) failing to effectively cross-examine the State's expert, Dr. DeLaet, at trial; (2) failing to call an available expert witness, Dr. Skulsky, to impeach the State's expert witness after disclosing in opening statements that said defense expert witness would testify; (3) failing to move for additional discovery; (4) failing to comply with court rules and Nebraska statutes in requesting a continuance of the trial; (5) failing to prepare an adequate defense in the time allotted; (6) failing to preserve issues for direct appeal thereby creating a procedural bar; (7) offering testimony detrimental to Bruna at trial; (8) failing to investigate, interview, or call requested witnesses; and (9) failing to subject the alleged victim to meaningful cross-examination and failing to present an adequate defense to the allegation of sexual assault. He also contends that trial counsel's cumulative errors resulted in the denial of a fair trial and constituted ineffective assistance of counsel.
Bruna also contends that the district court erred in failing to grant his motion for postconviction relief on the basis that his appellate counsel was ineffective for failing to properly raise issues on direct appeal that trial counsel (1) failed to object to purported trial testimony by witnesses vouching for the victim's credibility, (2) failed to call Dr. Skulsky as a defense witness, (3) failed to properly move for a trial continuance, (4) failed to object to the trial court's jury voir dire procedure, and (5) failed to properly cross-examine the State's expert witness, Dr. DeLaet.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010); State v. York, 273 Neb. 660, 731 N.W.2d 597 (2007). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Haas, supra; State v. York, supra.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Haas, supra; State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. State v. Haas, supra; State v. Dunster, supra. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Haas, supra; State v. Dunster, supra.
Bruna assigns various errors regarding the ineffectiveness of his trial counsel. However, since Bruna was represented by different counsel on direct appeal than at trial, alleged errors which could have been raised on direct appeal cannot be raised in a subsequent motion for postconviction relief. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Vo, supra.
In his direct appeal, Bruna did assign as error that he received ineffective assistance of trial counsel because of trial counsel's failure to raise proper objections to Dr. DeLaet's testimony, an assigned error which we rejected on the merits. Thus, to the extent that Bruna's ineffectiveness of trial counsel claim overlaps with that raised in his direct appeal, that claim was rejected on the merits in his direct appeal, see Bruna I, supra, and his remaining claims regarding ineffective assistance of trial counsel are barred because they were not raised on direct appeal. Further, since Bruna's claim that trial counsel's cumulative errors resulted in the denial of a fair trial is based upon the sum of his claims of ineffective assistance of trial counsel which we have found are procedurally barred, his claim of the cumulative effect of those alleged errors is likewise barred.
Bruna also claims that the district court erred in denying his motion for postconviction relief on the basis that his appellate counsel was ineffective for failing to properly raise issues on direct appeal. He claims that appellate counsel erred in failing to raise on direct appeal trial counsel's (1) failure to call Dr. Skulsky as a defense witness after telling the jury in opening statements that an expert would be called, (2) failure to properly move for a trial continuance, (3) failure to object to the trial court's jury voir dire process, and (4) failure to properly cross-examine the State's expert witness Dr. DeLaet.
Bruna also argues that the district court erred in failing to address the issue regarding trial counsel's ineffectiveness for not objecting to statements by witnesses vouching for the victim's credibility. However, this claim was not raised in Bruna's amended motion for postconviction relief and thus is not properly before us on appeal. See State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010) (issue not raised in motion for postconviction relief was not properly before Supreme Court on appeal).
In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. State v. Vo, supra. The two prongs of this test, deficient performance and prejudice, may be addressed in either order.
Bruna claims that appellate counsel was ineffective for failing to raise, on direct appeal, trial counsel's failure to call Dr. Skulsky as a witness for the defense after disclosing in opening statements that the jury could expect testimony from two psychologists. Defense counsel told the jury during opening statements:
The parties have not directed us to, nor has our independent research uncovered, a Nebraska case addressing the issue of whether trial counsel is ineffective for telling the jury during opening statements that an expert witness would testify and then failing to call an expert witness. However, the Nebraska Supreme Court has considered, and denied, a defendant's claim that his trial counsel was ineffective for informing the jury during opening statements that the defendant would testify and then failing to call the defendant as a witness at trial. State v. Otey, 212 Neb. 103, 321 N.W.2d 453 (1982). The Supreme Court noted that, because the jury instructions were not recorded, the defendant relied in part upon a newspaper account of the trial which did not contain a verbatim quote of defendant's counsel but was, apparently, the newspaper reporter's interpretation or conclusion from counsel's remarks. Further, at the postconviction hearing, defense counsel testified that he did not know whether the defendant would testify, so in his opening statement, he told the jury that the defense would be able to explain the many confessions the defendant had made, but did not state how the explanation would be made. Additionally, counsel testified that he hoped the defendant would not testify because the defendant had made many conflicting statements and counsel was unsure what the defendant would say and it was his opinion that testifying was not to the defendant's benefit.
This same defendant's claims were considered again in the context of a petition for writ of habeas corpus. Otey v. Grammer, 859 F.2d 575 (8th Cir. 1988). The Eighth Circuit found that the defendant could not establish prejudice as the improper comment, if made at all, was made only once; the trial court gave the jury a cautionary instruction not to draw any conclusions or inferences from the defendant's failure to testify; and the evidence of the defendant's guilt presented at trial was overwhelming.
Determining whether the failure to call a witness promised during opening statements constitutes ineffective assistance of counsel is necessarily fact based. United States v. McGill, 11 F.3d 223 (1st Cir. 1993); Dunlap v. People, 173 P.3d 1054 (Colo. 2007). See, also, People v. Everheart, 405 Ill.App.3d 687, 939 N.E.2d 82, 345 Ill.Dec. 353 (2010) (trial counsel's failure to adduce at trial testimony or evidence promised during opening statements is not ineffective assistance of counsel per se); People v. Manning, 334 Ill.App.3d 882, 778 N.E.2d 1222, 268 Ill.Dec. 600 (2002). See, also, People v. Schlager, 247 Ill.App.2d 921, 932, 617 N.E.2d 1275, 1283, 187 Ill.Dec. 554, 562 (1993) ("the test is not whether defense counsel fulfilled all the promises he made during his opening remarks but, rather, whether defense counsel's errors were so serious that, absent those errors, the result of the proceeding would likely have been different").
Because a court's determination of whether counsel was ineffective for informing a jury during opening statements that a witness would be called during trial and then failing to do so is fact specific, we will give examples of cases wherein courts have considered the issue.
In Williams v. Bowersox, 340 F.3d 667 (8th Cir. 2003), the Eighth Circuit Court of Appeals upheld a state court's finding that counsel was not ineffective for failing to call two witnesses who, during opening statements, defense counsel suggested he would call. Similarly, in Underdahl v. Carlson, 381 F.3d 740 (8th Cir. 2004), the Eighth Circuit Court of Appeals upheld the Minnesota state appellate court's determination that defense counsel was not ineffective for informing the jury during opening statements that he would be calling a specific alibi witness at trial and then, when that witness was unavailable due to counsel's failure to subpoena him, calling a substitute alibi witness at trial. See, also, United States v. McGill, 11 F.3d 223 (1st Cir. 1993) (defense counsel's failure to produce firearms expert after informing jury in opening statements that he would do so, did not constitute ineffective assistance of counsel); Dunlap v. People, 173 P.3d 1054 (Colo. 2007) (defendant did not receive ineffective assistance of counsel due to trial counsel's failure to call two witnesses identified in opening statement to jury); Stoner v. State of Missouri, 200 S.W.3d 615 (Mo. App. 2006) (court rejected claim that defendant received ineffective assistance of counsel for trial counsel's failure to call eyewitness after promising in opening statements that witness would testify).
Other cases considering the issue have found ineffectiveness of defense counsel for informing a jury during opening statements that a witness would be produced and then failing to call that witness; however, these determinations appear to be based, at least in part, upon counsel's failure to investigate prior to making promises in opening statements and/or instances of what the courts deemed as objectively and clearly unreasonable trial strategy. In our case, it is important to note that Bruna does not allege that appellate counsel was ineffective for failing to raise the issue on appeal that trial counsel failed to investigate Dr. Skulsky's testimony prior to trial. Thus, our analysis is limited to Bruna's allegation that appellate counsel failed to assign as error on appeal that trial counsel failed to call Dr. Skulsky as a defense witness.
In English v. Romanowski, 602 F.3d 714 (6th Cir. 2010), defense counsel informed the jury in opening statements that the defendant's girlfriend would be called as a witness to corroborate the defendant's self-defense claim; however, the girlfriend was not called as a witness. The Sixth Circuit Court of Appeals determined that counsel's conduct was deficient because, had counsel conducted an adequate pretrial investigation, he would have discovered the problems that caused him to change his mind about calling the girlfriend as a witness. As such, counsel's promise to the jury, which was left unfulfilled, could not be considered reasonable trial strategy and was prejudicial because it created a negative inference against the defendant and the defendant's testimony. Further, the court noted that the defendant was prejudiced by inflammatory evidence of the girlfriend's witness tampering and alleged false evidence planting that would not have been admitted at trial if defense counsel had not identified the girlfriend as a witness.
In U.S. ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), defense counsel's failure to fulfill promises made to the jury during opening statements regarding defendant's testimony and lack of gang affiliation, where problems regarding witness' testimony were entirely foreseeable at time of opening statements and there was no reasonable trial strategy for counsel's failure to follow through by eliciting evidence on lack of gang affiliation after creating an expectation in the jury that this evidence would be presented, although not so prejudicial to support relief in and of itself, supported ineffective assistance of counsel determination due to counsel's failure to investigate exculpatory occurrence witnesses.
In People v. Bryant, 391 Ill.App.3d 228, 907 N.E.2d 862, 330 Ill.Dec. 49 (2009), the Illinois Court of Appeals found that defense counsel was ineffective in murder case for failing to call any witnesses in support of defense theory proffered in opening statements to jury that murder was committed by others. The court found that, although counsel's conduct was a matter of trial strategy, said strategy was not reasonable, and the resulting prejudice was not harmless, as it "appears that counsel concluded that rather than support the defense theory with evidence that the jury might reject, it was better to not support the theory at all."
As related to our case, the two prongs of the Strickland test, deficient performance and prejudice, may be addressed in either order. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2000). As we noted previously, our analysis is limited to Bruna's claim that appellate counsel was ineffective for failing to raise the issue of trial counsel's failure to call Dr. Skulsky as a defense witness. Even if we were to assume that appellate counsel was deficient for failing to raise the issue of trial counsel's failure to call Dr. Skulsky as a witness for the defense after disclosing in opening statements that the jury could expect testimony from two psychologists on direct appeal, he cannot establish prejudice because there is not a reasonable probability that inclusion of the issue would have changed the result of the appeal.
In his deposition testimony admitted at the postconviction hearing, Dr. Skulsky testified that Dr. DeLaet "did a good job," he had no outright disagreement with any of Dr. DeLaet's testimony, and he felt that Dr. DeLaet's testimony was accurate. He further testified that "I would have gone about giving the information differently, but the information would have been about the same." Dr. Skulsky also testified that "I would have said the same things he said about perpetrators, but I would have made a different point about it." According to Dr. Skulsky, Dr. DeLaet made the point that there is no one profile that fits all sexual perpetrators and that there is a type that acts out of inadequacy and immaturity and another type that is a control type. Dr. Skulsky testified that although Dr. DeLaet did not use the examples or explanations that he would have used, Dr. DeLaet did make the same points. Dr. Skulsky further testified that he agreed with Dr. DeLaet's testimony, but would have elaborated more fully on various areas, such as types of behaviors and characteristics of child victims, predators, and children that make false claims, than Dr. DeLaet touched upon in his testimony. However, Dr. Skulsky did not provide, in his deposition, specific testimony on the elaborations that he would have made in these areas. Thus, in sum, in his deposition testimony, Dr. Skulsky testified that Dr. DeLaet's trial testimony was accurate, he agreed with Dr. DeLaet's trial testimony, and he would have testified similarly but just would have gone about presenting the same information a bit differently.
Additionally, regarding Dr. Skulsky's claim that Dr. DeLaet's testimony presented a conflict of interest because Dr. DeLaet treated the victim and testified as an expert witness at Bruna's trial, Dr. DeLaet's testimony was general testimony and did not, at any time, refer to specifics regarding Bruna's case. In Bruna I, supra, we determined that Dr. DeLaet's trial testimony "was relevant and admissible because it assisted the jury in understanding the nature of a sexually abusive relationship, a topic with which most laypeople are unfamiliar." Bruna I, 12 Neb. App. at 826, 686 N.W.2d at 613.
In sum, Dr. DeLaet's trial testimony was relevant and admissible and Dr. Skulsky testified that said testimony "was pretty accurate," that Dr. DeLaet "did a good job," and that he agreed with Dr. DeLaet's testimony. Further, the evidence shows that, had trial counsel called Dr. Skulsky as an expert witness for the defense, his testimony would have been substantially the same as that presented by Dr. DeLaet. Thus, Bruna cannot establish prejudice from trial counsel's decision not to call Dr. Skulsky as a witness for the defense. It follows, then, that Bruna has not made a showing that appellate counsel was ineffective for failing, on direct appeal, to raise the issue of trial counsel's failure to call Dr. Skulsky as an expert witness for the defense.
Bruna claims that appellate counsel was ineffective for failing to raise the issue, on direct appeal, that trial counsel failed to properly move for a trial continuance and that a continuance would have allowed time to investigate additional witnesses for the defense. However, as Bruna notes in his brief on appeal, although not raised by appellate counsel in the form of a claim of ineffective assistance of counsel, the issue of the continuance of the trial was raised in Bruna's direct appeal and was addressed by this court in Bruna I, supra.
In Bruna I, one of Bruna's assignments of error was that his trial counsel did not attach or submit an affidavit along with the motion for continuance per Neb. Rev. Stat. § 25-1148 (Reissue 1995). We determined that "the failure to comply with the provisions of § 25-1148 is only a factor to be considered in determining whether a trial court abused its discretion in denying a continuance." Bruna I, 12 Neb. App. at 815, 686 N.W.2d at 606. Further, we noted that the record did not establish a lack of preparedness on the part of Bruna's counsel or show that Bruna was prejudiced by the court's denial of the motion for a continuance. Bruna I, supra.
Further, although Bruna testified at the postconviction hearing what witnesses he thought may have been called had additional time for trial been secured, he presented no testimony from those witnesses as to what their testimony would have been. Consequently, Bruna has failed to establish any prejudice for appellate counsel's failure to raise the issue of trial counsel's failure to obtain a continuance of the trial.
Bruna claims that appellate counsel was ineffective for failing to raise the issue, on direct appeal, of trial counsel's failure to object to the trial court's voir dire process due to pretrial publicity in the case.
In the pretrial hearing, Bruna moved for a change of venue, based, in part, on the effect of pretrial publicity on that ability of Bruna to have a fair trial. The district court denied the motion, stating:
We noted in Bruna I that "`[gjenerally, the extent to which parties may examine jurors as to their qualifications rests largely in the discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where it appears that harmful prejudice has been caused thereby.'" 12 Neb. App. at 822, 686 N.W.2d at 610 (quoting State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999)). Further, our review of the record shows that trial counsel conducted extensive questioning of potential jurors. Bruna has failed to establish that, had trial counsel objected to the voir dire procedure utilized, the outcome of the trial would have been different. Consequently, he also cannot show that he was prejudiced by appellate counsel's failure to raise the issue on direct appeal of trial counsel's failure to object to the trial court's voir dire process.
Bruna claims that appellate counsel failed to raise the issue of ineffective assistance of counsel in relation to his trial counsel's cross-examination of the State's expert witness, Dr. DeLaet.
When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably. State v. Nesbitt, 279 Neb. 355, 777 N.W.2d 821 (2010); State v. Balvin, 18 Neb.App. 690, 791 N.W.2d 352 (2010). Furthermore, trial counsel is afforded due deference to formulate trial strategy and tactics. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel. State v. Nesbitt, supra; State v. Balvin, supra.
The district court noted that in Bruna I, supra, this court addressed Bruna's claim that trial counsel was ineffective because he did not raise the proper objections to Dr. DeLaet's testimony. We found that Dr. DeLaet was qualified as an expert and that "[Dr.] DeLaet's testimony was relevant and admissible because it assisted the jury in understanding the nature of a sexually abusive relationship, a topic with which most people are unfamiliar." Bruna I, 12 Neb. App. at 826, 686 N.W.2d at 613. We have reviewed the record of the trial and specifically reviewed trial counsel's cross-examination of Dr. DeLaet. We agree with the district court's assessment that trial counsel conducted an appropriate cross-examination. As such, appellate counsel was not ineffective for failing to raise issues on direct appeal regarding trial counsel's cross-examination of Dr. DeLaet.
Having determined that Bruna's assigned errors are without merit, we affirm the order of the district court denying his motion for postconviction relief.
Affirmed.
