Opinion
No. A-11-981
03-19-2013
STATE OF NEBRASKA, APPELLEE, v. ROGER K. SCHMIDT, APPELLANT.
Lyle J. Koenig, of Koenig Law Firm, for appellant. Jon Binning, Attorney General, and Erin E. Tangeman for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: 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).
Appeal from the District Court for Jefferson County: PAUL W. KORSLUND, Judge. Affirmed.
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Jon Binning, Attorney General, and Erin E. Tangeman for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
MOORE, Judge.
INTRODUCTION
Roger K. Schmidt appeals from the order of the district court for Jefferson County which denied his motions for postconviction relief without an evidentiary hearing. Because the records and files in this case affirmatively show that Schmidt is entitled to no relief, we find no error in the denial of his postconviction motions without an evidentiary hearing. We affirm.
BACKGROUND
Charges and Trial.
On May 16, 2006, the State filed an information charging Schmidt with two counts of first degree sexual assault on a child in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 1995), a Class II felony, and five counts of sexual assault of a child in violation of Neb. Rev. Stat. § 28-320.01 (Cum. Supp. 2004), a Class IIIA felony. The State identified M.C., K.S., and R.S. as the victims of the alleged crimes.
A jury trial was held March 12 through 14, 2007. The evidence showed that M.C., born in July 1996, had lived in Fairbury, Nebraska, with her mother, her siblings, and her mother's live-in boyfriend. M.C.'s mother's boyfriend, who is Schmidt's son, had been part of the household for close to 9 years at the time of trial. Although he is not M.C.'s biological father, she referred to her mother's boyfriend as "dad." She viewed Schmidt, born in February 1944, as her grandfather and Schmidt's wife as her grandmother. M.C. spent a significant amount of time at Schmidt's house and would often spend the night there on weekends. Schmidt and M.C. did a lot of things together and would often go fishing at Crystal Springs Park (Crystal Springs), which is located in Jefferson County, Nebraska.
M.C.'s testimony shows that Schmidt sexually assaulted her over a 3-year period that ended when she reported Schmidt's actions to her teacher and school counselor in April 2006. Specifically, M.C. testified that one of the assaults occurred 2 or 3 years prior to trial when she was fishing alone with Schmidt at Crystal Springs. According to M.C., she was sitting down when Schmidt, who was on his knees, reached over her to grab a worm. After he grabbed the worm, Schmidt placed his hand in M.C.'s lap outside of her clothing and began rubbing her crotch area. Schmidt continued rubbing for a few seconds until M.C. pulled his hand away and told him that she wanted to leave. Schmidt also tried to stick his hand down the top of M.C.'s shirt and rub her breasts, but she was able to stop him.
On another fishing trip alone with Schmidt at Crystal Springs 3 or 4 years prior to trial, Schmidt attempted to kiss M.C. on the lips, put his tongue in her mouth, and touch her breasts. M.C. pushed Schmidt away when he tried to put his tongue in her mouth. He was able to touch the top part of her breasts before she pushed him away. M.C. also recalled an occasion approximately 2 to 3 years prior to trial when Schmidt rubbed her crotch on top of her clothes with his hand. This occurred at a stream located between the lakes at Crystal Springs. M.C. pushed Schmidt off of her and ran over to another stream where her friend and the friend's parents were.
M.C. also testified about various occasions during which Schmidt touched her while she was alone with him at his house in Fairbury. Schmidt's actions on these occasions included rubbing M.C.'s breasts underneath her clothing with his hands, rubbing her crotch on top of her clothing with his hands, rubbing her crotch underneath her clothing with his hands and his penis, and sticking his tongue inside of her mouth. On one occasion, approximately 3 to 4 years prior to trial, M.C. was napping in Schmidt's bedroom when he crawled into bed with her, put his hand underneath her clothing, and penetrated her with his finger. Schmidt stopped when M.C. said, "Ow."
On April 25, 2006, M.C. filled out a pink "Band-Aid Form" at her school, advising the school counselor that she had a secret that worried or scared her and that someone had been touching her "in a bad place." M.C. filled out the form after she attended a "Good-Touch Bad-Touch" program at the school. The school counselor talked to M.C. after receiving the form. The counselor then telephoned the State abuse hotline number, which led to a subsequent police investigation.
At trial, M.C. explained that she had not reported Schmidt's actions sooner because Schmidt had scared and threatened her 3 years earlier when she first told Schmidt's wife that Schmidt always wanted to play the game "Hide the Weenie." Schmidt responded to M.C.'s telling his wife by getting mad and telling M.C. that it would be her and K.S.' fault if he ever went to jail and that he would try to get his hands on her when he got out of jail.
R.S. and K.S., sisters who live with their parents across the street from Schmidt, testified about their encounters with Schmidt. R.S. was born in April 2001, and K.S. was born in January 1998. Their father testified that on March 21, 2006, when R.S. came home from Schmidt's house, she was upset and told him that Schmidt had touched her in her private parts. R.S. testified that Schmidt had placed his hand on her lower private part, which she described as the area between her legs, and that Schmidt then moved his hand around for a little bit. This incident occurred in Schmidt's home when R.S. was sitting on his lap.
K.S. testified that Schmidt had done something "bad" to her "a lot of times" while she was at his house. Specifically, K.S. testified that on several occasions, Schmidt used his hand to rub her private part, which K.S. described as the area between her legs. Schmidt also touched K.S. on top of her clothes. He began doing these things to K.S. when she was approximately 4 years old. K.S. and M.C. often played together when M.C. was at Schmidt's house, and when K.S. was 8 years old, she told M.C. that Schmidt "had been touching [her] private part." K.S. testified that she did not tell anyone about Schmidt's actions sooner because she was afraid.
Sgt. Douglas Klaumann of the Fairbury Police Department interviewed Schmidt on April 27, 2006. After waiving his Miranda rights, Schmidt consented to being interviewed and eventually admitted to touching M.C.'s vaginal area at least six or seven times. Schmidt then blamed M.C. for his actions by alleging that she would take his hand and put it on her vaginal area. Schmidt admitted that the touching occurred at both his home and at Crystal Springs. Schmidt also made unsolicited comments to Klaumann during the interview such as, "I didn't know I did that," and, "If I did, I don't remember." When asked about R.S., Schmidt told Klaumann that he did not do anything to her because she was "a mama's girl and she would go home and tell her mother everything that took place."
The State presented testimony at trial from a licensed mental health practitioner, who testified about the difficulties young children who have been sexually abused have in disclosing that abuse.
The only defense witness at trial was Schmidt's wife, whose testimony concerned the improbability of the sexual assault allegations due to various circumstances and the nature of the relationships Schmidt and his wife had with the victims.
Convictions and Sentencing.
The jury found Schmidt guilty of one count of first degree sexual assault on a child and four counts of sexual assault of a child and not guilty of the remaining two counts, both of which involved K.S.
On May 18, 2007, the district court entered an order sentencing Schmidt to imprisonment for a period of 18 to 25 years for first degree sexual assault on a child and for a period of 5 to 5 years on each conviction for sexual assault of a child. The court ordered Schmidt's sentences to run consecutively.
Direct Appeal.
Schmidt filed a direct appeal of his convictions and sentences. See State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008) (Schmidt I). Schmidt was represented on direct appeal by his trial counsel. Schmidt argued that the district court erred in (1) sustaining a motion in limine filed by the State that requested an order prohibiting defense counsel from commenting upon or cross-examining M.C. and K.S. regarding prior allegations of sexual assault directed at persons other than Schmidt; (2) sustaining the State's objection to cross-examination of M.C. regarding her reported observation of Schmidt touching the vaginal area of another minor, T.B.; (3) instructing the jury that the testimony of a person who is the victim of a sexual assault does not require corroboration; and (4) admitting Schmidt's statements to Klaumann. This court affirmed Schmidt's convictions and sentences, finding no merit to his alleged errors.
Schmidt filed a petition for further review, which was granted by the Nebraska Supreme Court. See State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008) (Schmidt II). To the Supreme Court, Schmidt argued that this court erred in affirming his convictions because (1) the jury instruction regarding corroboration was confusing, misleading, and prejudicial to his defense; (2) the district court denied his right to confront and cross-examine M.C. to demonstrate bias, prejudice, and lack of credibility; and (3) the trial court denied his right to compulsory process and impaired his right to effective cross-examination of M.C. and K.S. by granting the State's motion in limine. The Supreme Court found no merit to Schmidt's claims and affirmed the judgment of this court. We have set forth further details of the previous appellate decisions as necessary in the analysis section below.
Postconviction Proceedings.
On October 19, 2010, Schmidt filed a motion for postconviction relief in the district court, alleging numerous claims of ineffective assistance of trial counsel. He also alleged he was denied his right of confrontation. On April 5, 2011, he filed a supplemental motion for postconviction relief, alleging additional claims of ineffective assistance of trial counsel. On October 28, the district court entered an order denying Schmidt postconviction relief without an evidentiary hearing. Schmidt subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Schmidt asserts, restated, that the district court erred in denying his motions for postconviction relief without an evidentiary hearing.
STANDARD OF REVIEW
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. Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012). 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 defendant's rights under the Nebraska or federal Constitution. Id. 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 evidentiary hearing. Id.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. 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. Id.
ANALYSIS
Schmidt's assignment of error is broad, but in the argument section of his brief on appeal, he focuses on seven specific arguments relating to his claims of ineffective assistance of counsel, which we address below.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, supra, 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. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order. Id. A trial counsel's performance was deficient if it did not equal that of a lawyer with ordinary training and skill in criminal law. Id. In addressing the "prejudice" component of the test under Strickland v. Washington, an appellate court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. State v. Edwards, supra. To show prejudice under Strickland v. Washington, the petitioner must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. State v. Edwards, supra. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Failure to Investigate and Prepare Witnesses.
Schmidt first argues that his trial counsel was ineffective for failing to investigate and call witnesses because if counsel would have "done any investigation, he would have discovered that all times when . . . Schmidt and [M.C.] were fishing [at] Crystal [Springs], other members of the family were present." Brief for appellant at 19. He argues that the result of the trial would surely have been different if the jury had been informed of this fact and that it is "inconceivable" that a jury would have convicted him "if the facts were that the alleged sexual assault occurred in plain view of various members of the Schmidt family." Id. He does not, however, allege the identity of the other members of the family or what their testimony would be, and his postconviction motion and attached affidavit contain only conclusory allegations in that regard. Schmidt's argument also ignores the evidence at trial about his admission to Klaumann that he had rubbed M.C.'s vaginal area six or seven times, that some of those incidents took place at Crystal Springs, and that he had been at Crystal Springs with just M.C. hundreds of times. His argument also ignores M.C.'s testimony concerning sexual contact that occurred in Schmidt's residence. Schmidt has not established a reasonable probability of a different outcome at trial.
Failure to Assert Available Defenses.
Schmidt's second argument relates to his first in that he argues that trial counsel was ineffective for failing to assert an alibi defense that Schmidt could not have assaulted M.C. at Crystal Springs because they were never alone. He claims that "[o]bviously, if there were witnesses available who would have contradicted [M.C.'s] statements about events at Crystal [Springs], had they been called to testify, this would have provided [Schmidt] with the defense of alibi." Brief for appellant at 20. As with his first argument, Schmidt does not specifically allege who those potential witnesses are or what their testimony would be. His assertions in connection with this argument are conclusory. And again, any testimony alleging that Schmidt could not have assaulted M.C. at Crystal Springs because other family members were always present would have been contradicted by Klaumann's testimony about Schmidt's assertions, and he does not claim to have an alibi for the assaults in Schmidt's residence to which M.C. testified. Schmidt cannot establish prejudice.
Failure to Make Necessary Objections.
Schmidt argues that trial counsel was ineffective for failing to object to the testimony of M.C., K.S., and R.S. based on competency. At the time of trial, M.C. was 10 years old, K.S. was 9 years old, and R.S. was 5 years old. Schmidt argues that his trial counsel's performance was deficient because the children were not questioned about whether they "appreciated the moral duty to tell the truth." Brief for appellant at 22.
We note that prior to trial, Schmidt's counsel moved for a voir dire examination of R.S. regarding her competency to testify, and that following the examination, he moved that R.S. be found incompetent to testify. The district court denied the motion, finding that R.S. was able to recollect, narrate intelligently, and appreciate the moral duty to tell the truth. At trial, Schmidt's counsel renewed his motion to find R.S. incompetent to testify, which renewed motion was overruled by the court. Schmidt's trial counsel was clearly not ineffective for failing to challenge the competency of R.S. to testify.
Regarding the competency of M.C. and K.S., Schmidt's postconviction motions contain only conclusory allegations. Schmidt alleges that his trial counsel had a duty to investigate and challenge the competency to testify of each child, but he does not, in fact, allege that M.C. and K.S. were incompetent to testify at trial or that a challenge of their competency to testify would have been successful. Schmidt has also not met his burden of demonstrating sufficient prejudice. This argument is without merit.
Failure to Make a Proper Offer of Proof.
Schmidt next argues that his trial counsel was ineffective for failing to make an appropriate offer of proof at a proper time, which he alleges was noted by both this court and the Nebraska Supreme Court on direct appeal. Although Schmidt does not specifically state the issue he is challenging in the argument section of his brief, it appears that his allegation relates to his claim on direct appeal that he was denied the right to cross-examine M.C. regarding an unfounded allegation to authorities that M.C. had witnessed Schmidt touch the vaginal area of another minor, T.B.
The Supreme Court denied this claim on direct appeal based on the merits of the claim itself and not on the alleged failure of defense counsel to make a proper offer of proof, as Schmidt appears to contend. Specifically, the Supreme Court stated:
Assuming without deciding that we could consider the offers of proof made during Klaumann's testimony in determining whether the district court erred in sustaining objections to Schmidt's subsequent cross-examination of M.C., we conclude there was no reversible error. An accused's constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriateSchmidt II, 276 Neb. at 731-32, 757 N.W.2d at 297-98.
cross-examination designed to show a prototypical form of bias on the part of a witness, or (2) a reasonable jury would have received a significantly different impression of the witness' credibility had counsel been permitted to pursue his or her proposed line of cross-examination. Although the main and essential purpose of confrontation is the opportunity of cross-examination, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based upon concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.
Whether or not Schmidt improperly touched T.B. had no direct bearing on the essential elements of this case, and the attempted cross-examination of M.C. on this point was not directed at a prototypical form of bias. Schmidt's counsel cross-examined M.C. extensively on issues relating to her general credibility, securing her admission that although she had understood the difference between appropriate and inappropriate touching for some time, she had not reported Schmidt's conduct until long after she said that it began. From our review of the record, we conclude that a reasonable jury would not have received a significantly different impression of M.C.'s credibility had Schmidt's counsel been permitted to pursue cross-examination on the collateral matter of her reported observations of Schmidt and T.B. We agree with the Court of Appeals that this restriction on cross-examination did not violate Schmidt's right of confrontation.
Because the Supreme Court's reasoning for denying Schmidt's claim was not based on the adequacy of defense counsel's offer of proof, Schmidt cannot establish either deficient performance or prejudice.
Failure to Employ an Expert.
Schmidt alleges that his trial counsel should have called an expert to testify at trial regarding "the fact that young children cannot distinguish between reality and fantasy." Brief for appellant at 25. In his postconviction motion, Schmidt stated that his trial counsel failed to adduce the testimony of a qualified expert to review the records of the case and to testify that the victims' statements were "the product of contagion and a series of very leading and highly suggestive interviews." Schmidt, however, did not allege the names of any experts who would have been willing and available to testify in that regard. The allegations in his motion conclude that the victims' testimony was false without alleging any specific facts to support that contention. Furthermore, given the fact that Schmidt admitted to touching M.C.'s vaginal area, he cannot establish that the result of trial would have been different but for counsel's failure to call an expert witness to testify at trial.
Cross-Examination of M.C.
Schmidt argues that his trial counsel was ineffective for conducting a "completely inadequate and unproductive cross[-]examination" of M.C. Brief for appellant at 27. Schmidt argues that his counsel's cross-examination was deficient because it continually drilled into the jurors' minds highly incriminating facts. In making this argument, he cites to the portion of the cross-examination in which defense counsel asked M.C. about the specific allegations she had made against Schmidt. Instead of arguing that he would have been acquitted but for trial counsel's cross-examination of M.C., Schmidt argues that prejudice should be presumed under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), because counsel's cross-examination of M.C. demonstrated counsel's failure to subject the case to meaningful adversarial testing. According to Cronic, under certain limited circumstances, prejudice to the accused is to be assumed (1) where the accused is completely denied counsel at a critical stage of the proceedings, (2) where counsel fails to subject the prosecution's case to meaningful adversarial testing, and (3) where the surrounding circumstances may justify a presumption of ineffectiveness without inquiry into counsel's actual performance at trial.
It is unclear whether Schmidt's postconviction motions even allege this claim of ineffective assistance of counsel. Although Schmidt does state in his motions that trial counsel "failed to challenge effectively the statements made by the child witnesses in this case," Schmidt does not directly address trial counsel's cross-examination of M.C., focusing instead on his assertion that those statements ought to have been challenged by expert testimony. Nowhere in either of his postconviction motions does Schmidt allege that his trial counsel's performance on cross-examination amounts to a presumption of prejudice under Cronic. Regardless, Schmidt has not established that his trial counsel provided deficient performance. Trial counsel's cross-examination of M.C. regarding each specific allegation of sexual assault shows that Schmidt's trial counsel was attempting to produce inconsistencies between the testimony of M.C. and K.S. as well as between statements M.C. made at trial and statements she made prior to trial. A review of the cross-examination of M.C., K.S., and Klaumann shows that counsel was relatively successful in pointing out the inconsistencies in the allegations. The record does not show that Schmidt's trial counsel, through his cross-examination of M.C., failed to subject the State's case to meaningful adversarial testing.
Cumulative Error.
Schmidt's final argument is that the "cumulative affect rule should apply" in this case. Brief for appellant at 34. It is questionable whether this argument has properly been assigned as error. Schmidt did not make this assertion in the assignment of errors section of his brief, although he does assert it in a separate "Questions Presented" section, something he really should have included in the assignments of error section of his brief. Regardless, this argument is dependent on the cumulative effect of all of his other arguments, which we have found to be without merit. Accordingly, this argument fails as well.
CONCLUSION
The district court did not err in denying Schmidt's postconviction motions without an evidentiary hearing.
AFFIRMED.