State v. Devers

986 N.W.2d 747, 313 Neb. 866

• Court: Nebraska Supreme Court
• Decided: March 24, 2023
• Docket: S-22-301
• Status: Published

Opinion

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/24/2023 09:06 AM CDT

- 866 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

State of Nebraska, appellee, v. Jason D. Devers, appellant. ___ N.W.2d ___

Filed March 24, 2023. No. S-22-301.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. Postconviction: Pleadings. Postconviction proceedings have their own pleading requirements, and the liberal pleading rules that govern civil actions are inconsistent with postconviction proceedings. 3. Effectiveness of Counsel. A pro se party is held to the same standards as one who is represented by counsel. 4. Postconviction: Constitutional Law: Proof. The district 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 state or federal Constitution. 5. ____: ____: ____. An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. 6. Judgments: Appeal and Error. A correct result will not be set aside merely because the lower court applied the wrong reasoning in reaching that result. - 867 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

7. Aiding and Abetting: Statutes. By statute, all persons involved in the commission of a crime, as aider, abettor, procurer, or the one committing the act, are considered principals. 8. Aiding and Abetting: Convictions. Under Neb. Rev. Stat. § 28-206 (Reissue 2016), the conviction of the principal is not necessary for the conviction of an aider and abettor. 9. ____: ____. To convict an aider and abettor, it is not necessary that the identity of the principal be established. 10. Criminal Law: Aiding and Abetting: Convictions. An aider and abet- tor can be convicted of any crime, even a greater offense than the prin- cipal, provided the conviction is supported by the evidence of the facts and the defendant’s state of mind. 11. Aiding and Abetting. Society is no less injured by the illegal acts of the aider and abettor when the principal escapes conviction. 12. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s perform­ ance was deficient and that this deficient performance actually preju- diced the defendant’s defense. 13. Effectiveness of Counsel. Defense counsel is not ineffective for failing to raise an argument that has no merit. 14. Pretrial Procedure: Prosecuting Attorneys: Evidence. Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), pros- ecutors owe a duty to disclose favorable evidence to criminal defendants prior to trial. 15. Prosecuting Attorneys: Evidence: Verdicts. The prosecution’s undis- closed evidence must be material either to guilt or to punishment, and the prosecution’s suppression of favorable evidence violates a defend­ ant’s due process right to a fair trial only if the suppressed evidence is sufficiently significant to undermine confidence in the verdict.

Appeal from the District Court for Douglas County: Timothy P. Burns, Judge. Affirmed.

Jason Devers, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. - 868 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

Freudenberg, J. I. INTRODUCTION The defendant was convicted of first degree felony mur- der and use of a firearm to commit a felony, both in relation to a robbery he planned and then assisted in by driving the getaway vehicle. He appeals from the denial, without an evi- dentiary hearing, of two postconviction claims relating to the alleged dismissal of all charges against the shooter for lack of evidence. The defendant argues that, without a principal, it was legally impossible to convict him for aiding and abetting the crimes. Because all persons involved in the commission of a crime are considered principals under Nebraska law, the defend­ant failed to allege an infringement of his constitutional rights rendering the judgment void or voidable. We affirm. II. BACKGROUND Jason D. Devers was sentenced to consecutive terms of life imprisonment and 5 to 5 years’ imprisonment after being convicted of first degree felony murder and use of a firearm to commit a felony in relation to the death of Kyle LeFlore outside the Reign Lounge, a bar in Omaha, Nebraska. Devers’ convictions and sentences were affirmed on direct appeal, where he was represented by new counsel and raised 13 claims of ineffective assistance of trial counsel. 1 1. Trial The facts relating to Devers’ convictions are set forth more fully in our opinion on direct appeal. 2 The evidence at trial showed that Devers and Larry Goynes went to the Reign Lounge, where Devers told Goynes he knew of a “lick” at the bar. Devers and Goynes later exited the bar and sat in their vehicle in the parking lot until Goynes received a message from someone alerting him that LeFlore was leaving. 1 State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). 2 See id. - 869 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

Goynes exited the vehicle, and Devers drove off. Goynes attempted to rob LeFlore, who resisted. Goynes shot LeFlore and stole his jewelry. LeFlore died from his injuries. After shooting and robbing LeFlore, Goynes ran down the street to where Devers was waiting with the vehicle and they absconded. A passenger in the back seat of Devers’ vehicle testified that after Goynes ran up to the vehicle, Goynes exclaimed, “[L]eFlore wouldn’t give up nothing so [Goynes] had to shoot him.” She also testified Devers put a chain with a cross on it around his neck, which Goynes reported he had stolen from LeFlore. A cellmate of Devers testified that Devers had told him he had arranged the “lick” of LeFlore and that Devers explained, “‘I just didn’t think my little cousin stupid ass would kill him. . . . I told him to shoot if he act up, but damn.’” Another cellmate testified Devers had told him he was the driver in the robbery. The mother of Devers’ children, who lived with him, testi- fied that the day after the murder, she found in her dresser a necklace with a cross on it. The necklace was later identified as belonging to LeFlore, and LeFlore’s DNA was identified on the cross.

2. Postconviction Motion Devers filed a pro se verified motion for postconviction relief and a supplemental motion intended “to continue fol- lowing the last page of his original POST-CONVICTION MOTION.” Relevant to this appeal, Devers alleged two claims of ineffective assistance of appellate counsel relating to the dis- missal of charges against Goynes, neither of which was raised on direct appeal.

(a) Dismissal of Charges Against Goynes In the original motion for postconviction relief, Devers set forth several paragraphs relating to the alleged dismissal - 870 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

of all charges against Goynes. Devers asserted the charges against Goynes were dismissed by the prosecution “for lack of evidence.” He theorized that this rendered him innocent, because his culpability was premised on being an aider and abettor to the shooting allegedly committed by Goynes. Devers said he was “adjudged guilty of Felony Murder and Use of a Weapon to Commit a Felony that was prosecuted under the aiding and abetting theory when the same charges were dismissed against the person to whom [Devers] was to have aided and abetted.” Devers also theorized that he could not have committed the underlying robbery for purposes of felony murder if there was a lack of evidence against the per- son who allegedly directly committed the robbery. Devers pointed out that the jury never knew the charges against Goynes had been dismissed. He asserted that “had the jury known that . . . Goynes’ charges had been dismissed, [it] would have never convicted [Devers] bec[au]se there would not have been a principal for [Devers] to have aided and abet- ted thus making [Devers] legally innocent.”

(b) Layered Ineffective Assistance Claim Regarding Trial Counsel Devers asserted appellate counsel was ineffective on direct appeal in failing to raise as error that he was “legally innocent” by virtue of Goynes’ dismissal. In the paragraph immediately following several paragraphs relating to the dismissal of the charges against Goynes, the jury’s ignorance of that fact, and how Devers allegedly could not legally be convicted without a principal to have aided and abetted, Devers stated, “[I]t is for the above-alleged facts that [Devers] requests that judg- ment of conviction and sentences be set aside as void or voidable for violations of his federal constitutional rights to . . . effective assistance of counsel on appeal under the 6th and 14th Amendments.” Devers also asserted he had been “denied effective assistance of counsel on appeal for fail- ure of appellate counsel to assign as error and argue . . . the - 871 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

issue of legal innocence.” He alleged that but for appellate counsel’s deficient performance, the outcome of his appeal would have been different.

(c) Layered Ineffective Assistance Claim Regarding Prosecutorial Misconduct Devers asserted, relatedly, that appellate counsel was inef- fective for failing to raise on direct appeal a claim of prosecu- torial misconduct at trial in that the prosecution did not dis- close the allegedly favorable evidence of Goynes’ dismissal. In his original motion, Devers generally alleged appellate counsel was ineffective for failing to raise on direct appeal a claim of prosecutorial misconduct. In a later paragraph, Devers reiterated this allegation that appellate counsel was ineffective for failing to raise on direct appeal prosecutorial misconduct and elaborated that the prosecution had failed to diligently dis- close all exculpatory evidence to the defense. In his supplemental postconviction motion, Devers elabo- rated that the prosecution committed misconduct by with- holding from the jury and the defense the “dismissal docu- ment of . . . Goynes which would have shown that the [S]tate lacked the necessary elements to convict [Devers] of FELONY MURDER with the underlying felony being that of ROBBERY.” Again, Devers asserted he was prejudiced because had the jury known the charges against Goynes “had been dismissed due to lack of any evidence and witnesses to confirm the [S]tate’s theory then the outcome of the trial for [Devers] would have been different, no trier of fact would convict a man of a crime [in which] it was impossible for him to commit.” Devers concluded this paragraph by reit- erating that the prosecution had a duty to disclose exculpa- tory evidence.

3. Order Denying Evidentiary Hearing The postconviction court considered the original and the supplemental motions together and rejected, without an - 872 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

evidentiary hearing, what it summarized to be 16 claims for postconviction relief, most of which are not at issue in this appeal. (a) Ineffective Assistance As relevant to this appeal, the postconviction court found an evidentiary hearing was not warranted on Devers’ claim that “trial counsel” should have produced evidence that the charges against his codefendant, Goynes, had been dismissed, because this allegation of ineffective assistance of trial counsel could have been raised in the direct appeal and was not. Therefore, it was procedurally barred. The court did not explicitly address a layered claim in ren- dering its judgment denying postconviction relief without an evidentiary hearing. However, we treat this omission as a con- structive denial of relief with respect to this allegation. 3 (b) Prosecutorial Misconduct With respect to Devers’ claim of postconviction relief, the postconviction court simply found, “Devers does not set forth any specifics on this claim. Therefore, this claim is denied.” III. ASSIGNMENTS OF ERROR Devers assigns that the postconviction court erred in “fail- ing to construe the claims raised in Devers[’] postconviction motion(s) liberally pursuant to controlling Supreme Court law, which would have resulted in either (1) the district court grant- ing an evidentiary hearing to resolve material, factual disputes in the record; or (2) the vacating of Dever[s’] convictions and sentence.” IV. STANDARD OF REVIEW [1] In appeals from postconviction proceedings, an appel- late court reviews de novo a determination that the defend­ ant failed to allege sufficient facts to demonstrate a violation 3 See State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000). - 873 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 4 V. ANALYSIS [2,3] Devers argues on appeal that had the court liberally construed his postconviction motion, it would have found merit to the postconviction allegations relating to Goynes’ being dismissed as a codefendant prior to trial. Devers relies on older federal case law for the proposition that pro se petition- ers’ pleadings should be interpreted liberally. 5 Postconviction proceedings have their own pleading requirements, and the liberal pleading rules that govern civil actions are inconsistent with postconviction proceedings. 6 Furthermore, in Nebraska, a pro se party is held to the same standards as one who is repre- sented by counsel. 7 We find no merit to Devers’ argument that his postconviction motion should have been construed liber- ally because he filed it pro se. In his brief, Devers argues that on “an alternative basis, even without construing Devers[’] claims liberally . . . the record plainly reflects that Devers straight-forwardly asserted that his appellate counsel was ineffective for failing to assert that his trial attorney was ineffective” 8 for failing to raise to the trial court his alleged innocence premised on the dis- missal of the charges against Goynes. Devers states that “a candid, scrutinizing examination” of his claims relating to the dismissal of Goynes’ charges “required the district court 4 State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018). 5 Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Jones v. Jerrison, 20 F.3d 849 (8th Cir. 1994); Crooks v. Nix, 872 F.2d 800 (8th Cir. 1989); White v. Wyrick, 530 F.2d 818 (8th Cir. 1976); Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). 6 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016). 7 State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). 8 Brief for appellant at 26. - 874 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

to find that Devers[’] claim was not procedurally barred — because . . . his appellate attorney was ineffective for failing to raise the claim of his trial attorney[’]s ineffectiveness in that regard.” 9 Likewise, with respect to prosecutorial misconduct, he argues that “even without having to construe Devers[’] factual and legal allegations liberally, the record reflects that the dis- trict court failed to take note of the plainly fleshed out claim that the prosecutor committed misconduct by misleading the jury into believing that . . . Goynes was, in fact, guilty.” 10 While Devers’ assignment of error could have been better expressed, we disagree with the State’s assertion that it fails to adequately encompass Devers’ arguments in his appellate brief that, even without employing a liberal construction of his postconviction filings, the district court erred by dismissing allegations relating to the dismissal of charges against Goynes without an evidentiary hearing. We turn to the merits of the postconviction court’s dismissal of those claims. [4,5] The district 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 state or fed- eral Constitution. 11 An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclu- sions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. 12 9 Id. at 25. 10 Id. at 31. 11 State v. Jaeger, supra note 7. 12 Id. - 875 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

1. Layered Claim That Trial Counsel Was Ineffective for Failing to Raise Alleged “Legal Innocence” by Virtue of Dismissal of Charges Against Goynes [6] We agree with Devers that the district court incor- rectly failed to recognize Devers had alleged a layered claim of ineffective assistance of counsel respecting the dismissal of charges against Goynes. That said, a correct result will not be set aside merely because the lower court applied the wrong reasoning in reaching that result. 13 And the postconviction court reached the correct result. [7] Neb. Rev. Stat. § 28-206 (Reissue 2016) provides, “A person who aids, abets, procures, or causes another to com- mit any offense may be prosecuted and punished as if he were the principal offender.” We have recognized that this statute abolishes the common-law distinction between a principal and an aider and abettor. 14 The intent of the Legislature was “‘to abrogate all distinction heretofore existing between such aider, abettor, or procurer and the one committing the act.’” 15 By statute, all persons involved in the commission of a crime, as aider, abettor, procurer, or the one committing the act, are con- sidered principals. 16 [8-11] Accordingly, the law is well established that under § 28-206, the conviction of the principal is not necessary for the conviction of an aider and abettor. 17 In fact, to convict an aider and abettor, it is not necessary that the identity of the principal be established. 18 An aider and abettor can be 13 State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016). 14 See, State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004); State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). 15 State v. Contreras, supra note 14, 268 Neb. at 801, 688 N.W.2d at 584, quoting Scharman v. State, 115 Neb. 109, 211 N.W. 613 (1926). 16 See State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999). 17 State v. Foster, 196 Neb. 332, 242 N.W.2d 876 (1976). See, also, State v. Alcorn, 187 Neb. 854, 194 N.W.2d 798 (1972). 18 See id. - 876 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

convicted of any crime, even a greater offense than the prin- cipal, provided the conviction is supported by the evidence of the facts and the defendant’s state of mind. 19 Absent special circumstances, even acquittal of the principal does not prevent conviction of an aider and abettor. 20 Society is no less injured by the illegal acts of the aider and abettor when the principal escapes conviction. 21 Premeditated murder and felony murder are different ways to commit a single offense of first degree murder. 22 There need not be an intent to kill in felony murder, only an intent to commit the underlying felony. 23 The turpitude involved in the robbery takes the place of the intent to kill in premedi- tated murder and is sufficient to support life imprisonment. 24 There was evidence at trial that Devers arranged the robbery of LeFlore, the underlying felony. Whether Devers himself physi- cally assaulted, shot, and robbed LeFlore is of no consequence in relation to his murder conviction. [12,13] Devers’ appellate counsel was not ineffective for failing to raise on direct appeal arguments concerning Devers’ “legal innocence” as a consequence of the dismissal of Goynes’ charges. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. 25 Defense coun- sel is not ineffective for failing to raise an argument that has no merit. 26 19 State v. Brunzo, supra note 14. 20 See 9 A.L.R.4th 972 (1981). See, also, Ray v. State, 13 Neb. 55, 13 N.W. 2 (1882). 21 See State v. Spillman, 105 Ariz. 523, 468 P.2d 376 (1970). 22 See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). 23 See, e.g., State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985). 24 See id. 25 See State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018). 26 Id. - 877 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

2. Layered Claim of Prosecutorial Misconduct of Failing to Disclose to Trial Counsel That Charges Against Goynes Had Been Dismissed Turning to Devers’ allegations relating to prosecutorial mis- conduct, we agree with Devers that his claim did not, as the postconviction court reasoned, lack “any specifics.” Devers specified that the prosecution improperly withheld from the defense evidence that the charges against Goynes had been dismissed for lack of evidence. Further, we disagree with the State’s contention that Devers’ claim is procedurally barred because it could have been raised on direct appeal and he failed to state a layered claim against appellate counsel for not doing so. As already described, Devers asserted a layered claim that appellate counsel was ineffective by failing to raise this alleged prosecutorial miscon- duct on direct appeal. His motion for postconviction relief was his first opportunity to bring such a claim. [14,15] We conclude, however, that the postconviction court did not err in denying Devers’ layered postconviction claim without an evidentiary hearing. Under Brady v. Maryland, 27 prosecutors owe a duty to disclose favorable evidence to crimi- nal defendants prior to trial. 28 The prosecution’s undisclosed evidence must be material either to guilt or to punishment, and the prosecution’s suppression of favorable evidence violates a defendant’s due process right to a fair trial only if the sup- pressed evidence is sufficiently significant to undermine confi- dence in the verdict. 29 Devers asserted the alleged suppression of the alleged dis- missal of Goynes’ charges undermined the verdicts, because such dismissal rendered convictions against Devers, as an 27 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 28 State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021) modified on denial of rehearing 309 Neb. 399, 959 N.W.2d 818. 29 State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017). - 878 - Nebraska Supreme Court Advance Sheets 313 Nebraska Reports STATE V. DEVERS Cite as 313 Neb. 866

aider and abettor, legally impossible. We have already explained this premise lacks merit. As such, counsel was not ineffective for failing to raise this argument of prosecutorial misconduct on direct appeal. VI. CONCLUSION Because all persons involved in the commission of a crime are considered principals, Devers’ allegations concerning the failure of counsel to raise alleged errors concerning the dis- missal of charges against Goynes, if proved, did not constitute an infringement of Devers’ constitutional rights rendering his convictions and sentences void or voidable. Therefore, albeit based upon reasons different from those expressed by the postconviction court concerning these allegations, we affirm its judgment denying postconviction relief without an eviden- tiary hearing. Affirmed.