THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
INBODY, Chief Judge.
Randy R. Harms appeals the Custer County District Court's denial of his motion for postconviction relief following an evidentiary hearing. He argues numerous ways in which he alleges that he received ineffective assistance of counsel.
In 2008, Harms was convicted by a jury of attempted first degree murder and use of a weapon to commit a felony. Thereafter, he was sentenced to 35 to 40 years' imprisonment on the attempted murder conviction and 10 to 20 years' imprisonment on the use of a weapon conviction. The sentences were ordered to be served consecutively, and he was given credit for 406 days previously served. Harms, represented by his trial counsel, P. Stephen Potter, filed a direct appeal alleging that the district court erred in denying his motion for mistrial after jurors viewed him in handcuffs, in denying his second motion for mistrial after the voir dire examination was commenced without impaneling the full jury, in denying his motion to examine the jury regarding possible jury misconduct, in denying his motion to dismiss at the close of the State's evidence, in denying his motion for a new trial, and in imposing excessive sentences. We affirmed his convictions and sentences. See State v. Harms, No. A-08-412, 2009 WL 781359 (Neb. App. Mar. 24, 2009) (selected for posting to court Web site). A detailed summary of the facts is contained in that case, and we do not repeat it here. Harms' petition for further review was denied by the Nebraska Supreme Court.
Following his direct appeal, Harms filed a writ for habeas corpus relief in the federal court. See Harms v. Houston, No. 4:09CV3117, 2010 WL 489541 (D. Neb. Feb. 10, 2010). One of the issues raised by Harms was that he was denied an impartial jury because the jury viewed him in handcuffs in violation of a court order. The federal district court denied Harms' petition and dismissed the action with prejudice. See id.
In October 2010, Harms filed an amended motion for postconviction relief alleging ineffective assistance of counsel. Specifically, Harms alleged, inter alia, that his trial counsel was ineffective (1) in failing to investigate his sanity and/or move for a psychiatric evaluation to determine whether or not he was sane at the time of the alleged offenses; (2) in failing to investigate and/or move the court for an evaluation to determine whether or not he was competent to stand trial; (3) in failing to renew the motion for mistrial after it was established during voir dire that some of the potential jurors had seen him in handcuffs; (4) in failing to assist the defense by investigating facts and calling expert witnesses who could testify regarding the trajectory of the bullet; (5) in failing to request a mistrial due to juror misconduct and in failing to file a motion to examine the jury and a supporting affidavit on direct appeal so that the issue could be reviewed by the appellate court; and (6) in failing to object to jury instructions and in failing to provide lesser-included-offense instructions. Counsel was appointed, and an evidentiary hearing was held on September 22, 2011. Several exhibits were offered and received into evidence, including depositions of Harms, Potter, and Custer County sheriff's deputy Dan Spanel; a record of the medications Harms received while in custody; and a copy of the bill of exceptions from Harms' trial. For brevity, the relevant evidence will be included in the analysis portion of this opinion.
Following the evidentiary hearing, the district court denied Harms' motion for postconviction relief. The district court found no merit to Harms' claims regarding ineffective assistance of counsel relating to insanity and his competence to stand trial. In support of its conclusion, the district court made factual findings, including that Potter had testified that Harms was able to assist in his defense, had heard the victim's deposition and discussed depositions and possible witnesses, had asked appropriate questions, and was alert and articulate during attorney-client conferences; that Potter testified he and Harms discussed possible defenses, including a plea of not responsible by reason of insanity, but after discussing the plea, including the possibility of a mental health commitment, Harms decided not to pursue an insanity plea; and that Potter testified he did not see anything to suggest that Harms was unduly influenced by his prescribed medications or that Harms was incompetent. The court also found that Harms testified at trial in a logical and articulate manner and that, although Harms made several statements at trial indicating he "didn't know" or "can't remember," this was not unusual considering the evidence showed that Harms was under the influence (of alcohol) at the time of the incident.
The district court denied Harms' claim that trial counsel erred in failing to renew his motion for a mistrial after it was established during voir dire that some of the potential jurors had seen him in handcuffs. The court noted that, even if Potter had challenged the jurors, sufficient cause did not exist to excuse the jurors. Further, the court found that Potter's strategy not to challenge the jurors was discussed with Harms, that Harms was in agreement with the decision, and that the strategy was a reasonable strategy which avoided the possibility of offending the jurors. Thus, the district court noted that a renewed request for a mistrial would have been unsuccessful and that the failure to so request did not constitute ineffective assistance of counsel.
In denying Harms' claim that trial counsel was ineffective for failing to investigate the facts of the case or have expert witnesses assist in the defense, the court found:
(Emphasis in original.)
The court also found no merit to Harms' claim that counsel was ineffective because he did not request a mistrial after learning that one of the jurors, who is a medical doctor, informed the county attorney following the verdict that he had examined the victim's eyeglasses and had determined they were shatterproof and would not have shattered upon impact by a bullet and that he had examined the photographs in evidence and was able to determine the victim's injuries were caused by a bullet as opposed to cuts. The court found that, even if this issue had been properly raised on direct appeal, it would not have resulted in a different outcome. Specifically, the court stated:
In denying Harms' claim of ineffective assistance of trial counsel relating to counsel's failure to object to jury instructions and failure to offer jury instructions, including lesser-included-offense jury instructions, the district court found that Potter had testified that he had done a considerable amount of research regarding jury instructions, discussed several proposed instructions with Harms, and prepared instructions to present to the court. However, at the conclusion of the evidence, Potter and Harms discussed how the case had gone and Harms made the decision that he did not want the lesser-included offenses presented to the jury, because Harms felt the State did not prove premeditation and Harms did not want to be found guilty of a lesser-included offense. The district court found that Potter's discussion with Harms was reasonable and that Harms' decision was well-informed.
Harms was convinced that he would be found guilty of the lesser-included offenses and gambled that the jury would believe he lacked the premeditation required to be convicted of attempted first degree murder. The district court noted that attempted first degree murder and attempted second degree murder were both Class II felonies and that Harms was "likely aware" the possible penalties for the offenses were the same. The decision not to offer lesser-included-offense instructions to the jury "was a decision made by [Harms] after a thorough consultation with his attorney," and the advice given to Harms "was reasonable and appropriate."
Further, the district court determined that, even if Potter would have offered the lesser-included-offense instructions, the court may have rejected them because the instructions were not supported by the evidence as there was "plenty of evidence presented to support premeditation," including the facts that Harms "purchased a gun, shot a bullet through a window where the victim was standing, and made statements to the victim that he was going to kill her" and "was arrested at the scene and admitted he fired the bullet toward the window." The court found that this was not ineffective assistance of counsel.
On appeal, Harms contends that the district court erred in denying his motion for postconviction relief on the basis that he received ineffective assistance of counsel. He contends that his trial counsel was ineffective for failing to (1) investigate or explore the insanity defense or Harms' competency to stand trial; (2) renew the motion for mistrial after it was established during voir dire that some of the potential jurors had seen him in handcuffs; (3) call an expert witness to assist in his defense; (4) request a mistrial for juror misconduct; and (5) provide his own jury instructions to the crimes charged and lesser-included offenses. Harms also contends that the district court erred in denying postconviction relief on his motion for mistrial after voir dire for the Custer County sheriff's failure to follow the trial court's order on handcuffs.
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. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011); State v. Pittman, 20 Neb.App. 36, 817 N.W.2d 784 (2012).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. Id. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that we review independently of the lower court's decision. Id.
Harms contends that the district court erred in denying his motion for postconviction relief on the basis that he received ineffective assistance of counsel.
To establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Pittman, supra. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id.
Harms' first allegation regarding the ineffectiveness of trial counsel is that counsel was ineffective for failing to investigate or explore the insanity defense and his competency to stand trial. The record is clear that trial counsel did not request any mental health evaluation for Harms.
The two requirements for the insanity defense are that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong. State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
Although Harms testified that Potter did not talk to him about the insanity defense, Potter's testimony contradicted this. Potter testified that he and Harms discussed the defense of not responsible by reason of insanity and what the consequences would be if they successfully pursued that defense. Potter explained that Harms knew the shooting was wrong, but that he did not intend to kill the victim, and that Harms did not want to pursue the insanity defense because he did not want to be committed if he was found to be not responsible by reason of insanity. Counsel's performance was not deficient, and thus Harms cannot establish ineffective assistance of counsel on this basis.
Harms also contends that Potter was ineffective for failing to investigate and explore his competency to stand trial. Harms argues that he was in a daze prior to, and during, his trial due to the medications he was taking and that he was unable to assist in his defense. Again, Harms is required to establish deficient performance and prejudice in order to succeed in a claim for ineffective assistance of counsel.
A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). In order to demonstrate prejudice from counsel's failure to investigate competency and for failing to seek a competency hearing, the defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the trial court would have found him or her incompetent had a competency hearing been conducted. Id.
In support of his claim that counsel should have investigated his competency, Harms points out that he was jailed on February 9, 2007, but was placed into emergency protective custody on February 12 after he claimed that he was going to hang himself. Harms was then hospitalized until February 26, after which time he was released back to county jail. Harms testified in his deposition that he was in a drug-induced haze during the time he spent in jail awaiting trial and the trial itself; however, this testimony was directly contradicted by Potter's testimony.
Potter testified that although he believed that Harms was depressed when he first met him, Harms' mood improved over time and he did not have concerns regarding Harms' competency to stand trial. Potter described Harms as articulate, alert, and completely aware of what was being done in his case. Potter stated that Harms provided him with the names, addresses, and telephone numbers of potential witnesses during trial preparations, that the information provided him was accurate, and that Harms gave appropriate answers to questions Potter asked him. Potter believed that Harms participated in his own defense and made intelligent decisions.
Harms further argues that his trial testimony contains a lot of statements by him of "`I don't remember'" and "`I don't know,'" which he claims is evidence of his lack of understanding and functioning during the trial. Brief for appellant at 8. However, as the district court notes in its order denying Harms' request for postconviction relief, Harms' answers are not unusual considering that the evidence showed that Harms was under the influence of alcohol at the time of the events. There is insufficient evidence to support Harms' claim that counsel was deficient for failing to investigate and explore Harms' competency to stand trial.
Harms contends that trial counsel was ineffective for failing to renew the motion for mistrial after it was established during voir dire that some of the potential jurors had seen him in handcuffs.
Prior to trial, Harms filed a motion in limine requesting an order directing the Custer County sheriff "to remove all hand, leg, and arm restraints from [him] at any time when [he] is present on floor of Custer County District Court for appearances at either jury selection hearings, trial, or at any other time when [he] will be in the presence of the jury." The district court sustained the motion in limine. On the date of trial, prior to voir dire, Harms' defense counsel moved for a mistrial, alleging that Harms "was brought up this morning, and he was in plain clothes, and the [j]ury pool was in the hall, and he was brought up in handcuffs, and then uncuffed in front of the [j]ury members before he was brought in the [c]ourt," despite the court's order. In support of his motion for mistrial, Harms adduced testimony from the Custer County sheriff. The district court overruled Harms' motion for mistrial; however, the court stated that the motion could be renewed after voir dire.
During voir dire, it was established that approximately seven prospective jurors did see Harms in handcuffs; however, each of those seven jurors indicated that seeing Harms in handcuffs would not affect his or her final decision as to his guilt or innocence. Defense counsel did not challenge any of those potential jurors for cause, passed the panel for cause, and did not renew the motion for mistrial. Potter testified in his deposition that he discussed with Harms that if they had concerns, they could use peremptory challenges to remove prospective jurors from the jury, and that Harms agreed with the strategy.
On direct appeal, Harms argued that his right to a fair trial was violated when the district court denied his motion for a mistrial. This court affirmed the district court's denial of his motion for mistrial and found that Harms had waived his previous objections by choosing not to challenge the potential jurors for cause and failing to request a new trial after it was determined during voir dire that seven prospective jurors did view Harms in handcuffs.
Potter testified in his deposition that he decided not to challenge for cause any of the prospective jurors who had seen Harms in handcuffs because he felt that those challenges would send a negative message to the jury and that damage caused by the challenge far outweighed any benefit Harms could gain. Potter and Harms discussed the matter and decided upon the strategy of using the defense's peremptory challenges on those potential jurors. This strategy was reasonable and did not constitute deficient performance by counsel. Further, Harms did not meet his burden of proving ineffective assistance of counsel because even if Potter had challenged the seven potential jurors for cause, sufficient cause did not exist to excuse those potential jurors as none of them indicated that seeing Harms in handcuffs would have affected their final decision as to his guilt or innocence.
We also note that even if Harms could establish that Potter should have renewed the motion for mistrial following voir dire, he cannot establish that any prejudice resulted as a result of Potter's failure to do so. The U.S. District Court, in considering and denying Harms' petition for writ of habeas corpus, noted federal precedent addressing the issue of jurors observing a defendant in restraints outside of the courtroom. See Harms v. Houston, No. 4:09CV3117, 2010 WL 489541 (D. Neb. Feb. 10, 2010).
Although shackling a defendant during trial is "inherently prejudicial," Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L. Ed. 2d 525 (1986), and the use of physical restraints visible to the jury are prohibited absent a trial determination, in the exercise of its discretion, that the restraints are justified by a state interest specific to a particular trial, Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L. Ed. 2d 953 (2005), courts have held that a jury's "brief or inadvertent glimpse" of a defendant in physical restraints outside of the courtroom "is not inherently or presumptively prejudicial." Ghent v. Woodford, 279 F.3d 1121, 1133 (9th Cir. 2002) (concluding that jury's brief or inadvertent glimpse of defendant in physical restraints outside of courtroom did not violate defendant's due process rights without showing of actual prejudice). See, also, United States v. Olano, 62 F.3d 1180 (9th Cir. 1995) (concluding that jury's brief or inadvertent glimpse of defendant in handcuffs outside of courtroom did not violate defendant's due process rights without showing of actual prejudice). In cases where the jury observes a defendant in physical restraints outside of the courtroom, a defendant must demonstrate actual prejudice to establish a constitutional violation. United States v. Olano, supra. The Eighth Circuit Court of Appeals has stated that "[t]he danger of prejudice ... is slight where a juror's view of defendants in custody is brief, inadvertent and outside of the courtroom." United States v. Fahnbulleh, 748 F.2d 473, 477 (8th Cir. 1984).
In the instant case, the prospective jurors briefly viewed Harms in handcuffs in the hallway outside of the courtroom. None of the jurors indicated that seeing Harms in handcuffs would have affected either his or her final decision as to his guilt or innocence. Thus, Harms is unable to establish that he suffered any prejudice as a result of the prospective jurors' inadvertent and brief glimpse of him in handcuffs.
Harms alleged that trial counsel failed to investigate facts and summon necessary witnesses to assist in his defense. He claims that Potter should have called an expert witness to refute testimony presented by the State regarding the traveling and trajectory of the bullet and that Potter should have called Deputy Spanel and Dr. Robert Kahnk, both of whom observed the victim at the hospital on the night of the incident, to testify regarding their observations of whether she had bullet wounds.
Harms contends in his brief that the State's witness, a Deputy Osmond, was the only person to testify at trial regarding the bullet's trajectory and how the bullet allegedly passed on the inside of the victim's glasses grazing her on the bridge of her nose and on both of her eye areas. Harms contends that Deputy Osmond had no training or experience in ballistics and had not done any other investigation regarding powder residue or laser tracking of the possible trajectory of the bullet. He argues that he was prejudiced by trial counsel's failure to call an expert witness to refute Deputy Osmond's testimony.
Potter, however, testified that he discussed with Harms at length the possibility of hiring an expert witness to testify at trial regarding the bullet's trajectory. Potter testified that he was concerned that hiring an expert would backfire by doing law enforcement's work for them and producing an opinion that supported the State's case, not the defense's theory. He believed the better strategy was to focus on the fact that the State had not done a complete investigation—had not taken fingerprints or sent in any evidence for ballistics or forensic testing—and that the State did not have any forensic evidence to support its claim that the bullet actually hit the victim's eyeglasses. Potter and Harms discussed using this strategy to raise reasonable doubt in the jury as to the accuracy of the information related by law enforcement, and Harms agreed with this strategy.
Trial counsel's decision to focus on the lack of forensic and ballistics testing by the State, rather than hiring an expert witness regarding bullet trajectory which could have produced results detrimental to the defense, was a reasonable strategic decision in which Harms was consulted and concurred in implementing. Harms cannot show that counsel's performance was deficient in this area.
Harms also contends that trial counsel was ineffective for failing to call as witnesses Deputy Spanel and Dr. Kahnk. At the postconviction hearing, Harms entered into evidence the deposition testimony of Deputy Spanel, who testified that he observed the victim's injuries at the hospital and did not see anything that appeared to be a gunshot wound. Deputy Spanel also testified he was not advised that the victim had suffered a gunshot wound. The record reflects that Dr. Kahnk was one of the physicians that treated the victim at the emergency room. Harms testified in his deposition that doctors did not advise Deputy Spanel of the victim's suffering any gunshot wounds.
"`The decision to call, or not to call, a particular witness, made by counsel as a matter of trial strategy, even if that choice proves unproductive, will not, without more, sustain a finding of ineffectiveness of counsel.'" State v. Thomas, 278 Neb. 248, 254, 769 N.W.2d 357, 363 (2009). The decision not to call these two witnesses constitutes trial strategy and is not deficient performance.
Further, Harms cannot establish prejudice because there is no reasonable probability that Harms would have been acquitted of the charged offenses even if the jury had been presented with evidence that the bullet did not strike the victim's glasses. Harms was charged with attempted first degree murder and use of a weapon to commit a felony. The evidence presented to the jury at trial established that on the day of the offense, Harms purchased a rifle and drove to the victim's home. Even after driving or sliding his pickup into a ditch one-half mile from the victim's home, he walked the remaining distance to her home. At that point, he sat outside of the victim's home with a loaded rifle, called her cellular telephone numerous times until she answered, and told her to wait a minute and then fired a shot through the window of her home, injuring her. Harms then broke into the house, hit the victim on the head with the butt of his rifle, and told her that this was going to be a murder/suicide. Harms held the victim at gunpoint until he was ready to surrender to law enforcement and later admitted to officers that he fired the shot into the victim's home, but that he was not trying to hurt her, he only meant to scare her. The evidence presented at trial was clearly sufficient to support Harms' convictions, as we found in his direct appeal. See State v. Harms, No. A-08-412, 2009 WL 781359 (Neb. App. Mar. 24, 2009) (selected for posting to court Web site). Harms cannot establish that but for counsel's failure to call these two witnesses, the outcome of his trial would have been different.
We note that Harms also argues in his brief that Potter was ineffective for failing to object to Deputy Osmond's testimony because Deputy Osmond was not an expert in ballistics or the trajectory of bullets. However, this claim was not assigned as an error in Harms' motion for postconviction relief and was not considered by the district court. "An appellate court will not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief." State v. Haas, 279 Neb. 812, 817-18, 782 N.W.2d 584, 589 (2010). Therefore, we will not consider this claim here.
Harms contends that the district court erred by denying postconviction relief on the claim that his trial counsel was ineffective for failing to request a mistrial for juror misconduct after learning that one of the jurors, who is a medical doctor, informed the county attorney following the verdict that he had examined the victim's eyeglasses and had determined they were shatterproof and would not have shattered upon impact by a bullet and that he had examined the photographs in evidence and was able to determine the victim's injuries were caused by a bullet as opposed to cuts. He also claims that counsel was ineffective for providing an inadequate record on direct appeal regarding the district court's denial of his motion to examine the jury for misconduct on this same issue.
Approximately 2 months after the conclusion of his trial, Harms' attorney filed a motion to examine the jurors and accompanying affidavit. According to Potter's affidavit, he had a conversation with the county attorney in which a doctor on the jury told her that he had examined photographs in evidence and determined that the victim's injuries were caused by a bullet as opposed to cuts. The affidavit also set forth that the juror told the county attorney that he had examined the victim's glasses, which were in evidence, and determined they were shatterproof and would not have shattered upon impact by a bullet. Potter alleged that it was necessary to depose the jury to determine if the doctor used his specialized medical training and expertise to reach these conclusions and convince the other jurors as opposed to the jury's considering only the evidence presented at trial. The district court denied Harms' motion to examine the jury, finding that the affidavit did not support the proposition that extraneous prejudicial information was improperly brought to the jury's attention.
Neb. Rev. Stat. § 27-606(2) (Reissue 2008) provides:
In Nichols v. Busse, 243 Neb. 811, 503 N.W.2d 173 (1993), the Nebraska Supreme Court considered the issue of whether a juror's statements regarding her experiences with inflated insurance claims and a cousin's automobile accident were "extraneous" information within the meaning of § 27-606(2). In considering the issue, the court examined an Arizona case in which the plaintiffs moved for a new trial, based on juror misconduct, following an adverse verdict. See Brooks v. Zahn, 170 Ariz. 545, 826 P.2d 1171 (Ariz. App. 1991). The plaintiffs argued that the statements of one juror, a former nurse, relating to the medical testimony at trial constituted extraneous prejudicial information. In concluding that the juror's statements were not extraneous information, the Court of Appeals of Arizona stated that the plaintiff's argument confused the functions of voir dire and the statute governing impeachment of a jury's verdict.
Nichols v. Busse, 243 Neb. at 831, 503 N.W.2d at 187 (emphasis omitted), quoting Brooks v. Zahn, supra. Finding that the aforementioned quotation was equally applicable to their case, the Nebraska Supreme Court noted that the juror in Nichols v. Busse, supra, had been questioned during voir dire about the incident involving her cousin's death in a car accident and the facts that she worked for an insurance company, had handled some claims, and was not challenged for cause. The Nebraska Supreme Court held the plaintiff should not be heard to complain about a juror's use of her personal specialized knowledge during deliberations. Further, the court held that the juror's statements regarding her experiences with inflated insurance claims and her cousin's accident were not "extraneous" information within the meaning of § 27-606(2). See, also, Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999) (legal knowledge of attorney-juror on issue of proximate cause brought into jury room in medical malpractice action was not "extraneous" information within the meaning of § 27-606(2); rather, juror's general legal knowledge was personal knowledge not directly related to litigation at issue).
In the instant case, the doctor/juror was accepted as a juror with full knowledge that he might possess specialized knowledge. The allegations contained in Potter's affidavit regarding juror misconduct set forth that the doctor/juror had examined photographs in evidence and determined that the victim's injuries were caused by a bullet as opposed to cuts and that the doctor/juror had examined the victim's glasses, which were in evidence, and determined that they were shatterproof and would not have shattered upon impact by a bullet. Even if all of the assertions made in the affidavit were true, the alleged statements were based upon the doctor/juror's personal knowledge which was not directly related to the litigation at issue and, therefore, was not extraneous information within the meaning of § 27-606(2). Therefore, the district court properly denied Harms' motion to examine. For these reasons, trial counsel was also not ineffective for failing to request a motion for mistrial on this issue as the request would have been denied. Thus, trial counsel's failure to request a mistrial on this issue did not prejudice Harms, and this assignment of error is without merit.
Harms also contends that his counsel was ineffective for providing an inadequate record on direct appeal regarding his motion to examine the jury for misconduct.
On direct appeal, Harms argued that the district court erred in refusing his timely request to inquire into whether one of the jurors, a doctor, improperly injected his medical expertise into the jury's deliberations by stating that the injury to the bridge of the victim's nose was caused by a bullet rather than by glass from the dining room window. See State v. Harms, No. A-08-412, 2009 WL 781359 (Neb. App. Mar. 24, 2009) (selected for posting to court Web site). This court affirmed the district court's decision to overrule the motion to examine the jurors, finding that Harms, who had not included a copy of the motion or affidavit in the record, had presented an appellate record that was insufficient to support his assigned error. Id.
When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. State v. Pittman, 20 Neb.App. 36, 817 N.W.2d 784 (2012). That is, courts begin by assessing the strength of the claim appellate counsel failed to raise. Id. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id.
Having determined that the district court properly denied the motion to examine, we find it follows that even if the motion to examine and accompanying affidavit had been included in the record on direct appeal, his assignment of error would not have been successful and would not have changed the result of the appeal. Therefore, there can be no ineffective assistance of counsel on this claim.
Harms' final claim is that trial counsel was ineffective for failing to offer lesser-included-offense instructions for the jury to consider. Although Harms also assigned as error that trial counsel was ineffective for failing to object to the State's jury instructions or offer his own jury instructions to the crimes charged, he did not argue these assigned errors in his brief. Errors that are assigned but not argued will not be addressed by an appellate court. State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012); State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011). Since both Harms and the State have limited their arguments to counsel's failure to offer lesser-included-offense instructions for the jury to consider, we likewise limit our analysis to whether trial counsel was ineffective for failing to offer lesser-included-offense instructions.
A court should give a lesser-included-offense instruction when the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011); State v. Smith, 19 Neb.App. 708, 811 N.W.2d 720 (2012).
Regarding the failure of trial counsel to submit lesser-included-offense instructions, Harms contends that the jury was left with a "`guilty'" or "`not guilty'" decision regarding the charged offenses. Brief for appellant at 14. However, Potter testified that he researched lesser-included offenses and prepared lesser-included-offense jury instructions, but that he and Harms discussed how the case had gone, including the fact that the State had done no ballistics or forensic testing and had hired no experts. Potter testified that Harms felt the State had not proved the premeditation aspect of the charged offense of attempted first degree murder. In the end, Harms made the decision that he wanted to go "all or nothing" on the attempted first degree murder charge rather than give the jury the option of convicting him of a lesser-included offense. Although the decision did not have the outcome that Harms had desired, the decision itself was a reasonable and intelligent decision based upon the information available to Harms and Potter at that time and the decision was made after thorough consultation with his attorney. There was no deficient performance by Potter regarding the decision not to present lesser-included-offense instructions for submission to the jury.
Harms also contends that the district court erred in denying postconviction relief on his motion for mistrial after voir dire because the Custer County sheriff failed to follow the trial court's order requiring the removal of "all hand, leg, and arm restraints from [him] at any time when [he was] present on floor of Custer County District Court for appearances at either jury selection hearings, trial, or at any other time when [he will] be in the presence of the jury." Having determined earlier in this opinion that the prospective jurors' brief and inadvertent glimpse of Harms in handcuffs was not prejudicial, this assigned error is likewise without merit.
Having considered and rejected Harms' assignments of error, we affirm the decision of the district court denying his motion for postconviction relief.
AFFIRMED.
