State v. Jim

768 N.W.2d 464, 278 Neb. 238
CourtNebraska Supreme Court
DecidedJuly 31, 2009
DocketS-08-953
StatusPublished
Cited by25 cases

This text of 768 N.W.2d 464 (State v. Jim) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jim, 768 N.W.2d 464, 278 Neb. 238 (Neb. 2009).

Opinion

768 N.W.2d 464 (2009)
278 Neb. 238

STATE of Nebraska, Appellee,
v.
Rickey L. JIM, Appellant.

No. S-08-953.

Supreme Court of Nebraska.

July 31, 2009.

*467 Deborah D. Cunningham, Omaha, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF THE CASE

Appellant, Rickey L. Jim, appeals the decision of the district court for Douglas County which denied postconviction relief. Because we find no error in the district court's conclusion that Jim was not denied effective assistance of appellate counsel, we affirm.

STATEMENT OF FACTS

Jim was convicted by a jury in the district court for Douglas County of the crime of child abuse resulting in death and sentenced to 40 to 50 years in prison. Jim's conviction was affirmed by the Court of Appeals on direct appeal in State v. Jim, 13 Neb.App. 112, 688 N.W.2d 895 (2004) (Jim I).

At trial, Jim was represented by the public defender, and on direct appeal, Jim was represented by different counsel. In Jim I, we recited the evidence at trial. The evidence showed that on the evening of May 7, 2001, Candice Bryan left for work and left her son, Layne Bryan Banik, and daughter, Sara Bryan Banik, in the care of Jim. Bryan returned from work around 11 p.m. but did not check on Layne or Sara, because the doors to their rooms *468 were closed. The next morning, Bryan found Layne in his bed with his face completely in the pillow. When she turned Layne over, his face was blue and he was stiff. After attempting to perform mouth-to-mouth resuscitation on Layne, Bryan called the 911 emergency dispatch service. After being told by the 911 operator to place Layne on a flat surface, Bryan moved him to the floor, placing him on his back, and she again attempted to resuscitate Layne. Her efforts were unsuccessful. An autopsy indicated that Layne had been dead for many hours.

During the trial, portions of a 3½-hour videotaped interview that the police conducted with Jim were presented to the jury. Trial counsel and the prosecutor had agreed to redact portions of the interview in which Jim mentioned bone fractures that Layne had sustained prior to the incident which caused his death. However, when the videotaped testimony was presented to the jury, it included the following statement by Jim to police officers: "Well now that you guys tell me his arm is broke, it's something you know, maybe I did pull his arm too hard or you know, I've, if, if something like that happened, I didn't mean for it to happen you know." The remainder of the statements by Jim concerning the three previous bone fractures were properly redacted.

Defense counsel objected to the introduction into evidence of the above-quoted portion of the videotape and moved for a mistrial. The district court denied the motion for mistrial but agreed to give the following statement instructing the jury with respect to the evidence:

During the course of the interrogation you heard statements made by the police officers to the defendant, including statements attributed to third parties. These statements are not offered for the truth of the matter contained in those statements and shall not be considered by you for that purpose. They're admitted solely to demonstrate the method of interrogation of the defendant and to put his statements in context.

Defense counsel did not request additional admonishment regarding the statements.

At trial, there was also testimony by the doctor who conducted Layne's autopsy. He testified that during the external examination, he observed blunt force trauma injuries in the form of abrasions and contusions on the lower part of Layne's nose, the upper and lower lips, the gums, both sides of the neck, the back of the scalp, and the back of the left shoulder.

Further, the doctor testified that in the examination of Layne's body cavity organs, there were focal areas of small pinpoint hemorrhages present on the lining of Layne's heart and both lungs, which hemorrhages are often seen in deaths caused by asphyxiation.

The doctor testified that based upon his experience and training, and his post mortem examination of Layne's body, his opinion to a reasonable degree of medical certainty regarding the cause of death was "asphyxiation secondary to smothering." The doctor testified that in his opinion based on a reasonable degree of medical certainty, the abrasions to Layne's nose, lips, and gums were caused by his neck's being forced into a pillow or bedding until he died and that the injuries were consistent with those produced by a struggling child who is having his face and mouth covered by being pushed into a pillow or bedding.

On appeal, Jim assigned as error, inter alia, that the district court erred in overruling his motion for mistrial based on the inadvertent admission of the unredacted comment in the videotaped testimony. In addressing this issue, the Court of Appeals reviewed the statement and concluded that "[a]lthough the objectionable testimony *469 should have been redacted along with the other portions of Jim's interview with police relating to long bone fractures, ... no substantial miscarriage of justice actually occurred in this case, nor was a fair trial prevented." Jim I, 13 Neb.App. at 131, 688 N.W.2d at 912. A petition for further review to this court was denied.

Jim filed a verified motion for postconviction relief on April 7, 2006. In his motion, Jim alleged that his appellate counsel was ineffective for failing to raise on appeal that his trial counsel was ineffective for (1) failing to file certain motions, (2) failing to call an expert witness, (3) failing to file a motion to withdraw as requested by defendant, and (4) allowing into evidence the unredacted comment in the videotaped testimony. Without conducting an evidentiary hearing, the district court ordered a new direct appeal on the issue of the admission of the unredacted portion of the videotaped testimony.

On appeal, this court reversed that order and remanded the cause for further proceedings, stating that on remand, the district court should determine the sufficiency of Jim's factual allegations in his postconviction motion and whether the files and records of the case affirmatively show that he is entitled to no relief. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008). We stated that if the factual allegations are sufficient and are not refuted by the files and records, the court should conduct an evidentiary hearing and make findings of fact and conclusions of law with respect to the merits of Jim's postconviction claims. Id.

On July 17, 2008, the district court held an evidentiary hearing on Jim's motion for postconviction relief. At the evidentiary hearing, the district court received into evidence Jim's deposition testimony, trial counsel's deposition testimony, appellate counsel's deposition testimony, and the bill of exceptions of the trial.

Trial counsel testified that the parties agreed that they would not introduce evidence of Layne's three older fractures. Trial counsel testified that he had received a copy of Jim's 3 ½-hour videotaped statement, and the transcription of the videotape, and had marked the portions that needed to be redacted based on this agreement.

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Related

State v. Haynes
299 Neb. 249 (Nebraska Supreme Court, 2018)
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777 N.W.2d 821 (Nebraska Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
768 N.W.2d 464, 278 Neb. 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jim-neb-2009.