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Date: 06-27-2020
Case Style:
STATE OF NEBRASKA V. JORGE PEREZ DERREZ
Case Number: A-19-613.
Judge: Lawrence E. Welch, Jr.
Court: IN THE NEBRASKA COURT OF APPEALS
Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Defendant's Attorney:
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Description:
Derreza was convicted by a jury of possession with the intent to deliver methamphetamine
of 140 grams or more, a Class IB felony, and was sentenced to 20 to 20 years’ imprisonment. See
State v. Derreza, No. A-16-527, 2017 WL 3485394 (Neb. App. Aug. 15, 2017) (selected for
posting to court website). On direct appeal, Derreza claimed that the district court erroneously
admitted hearsay evidence at trial, improperly instructed the jury, and inappropriately discharged
a jury member. Id. He also claimed that the evidence was insufficient to support his conviction
and that his conviction should be reversed as a consequence of cumulative error. Id. This court
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affirmed Derreza’s conviction and sentence. Id. The Nebraska Supreme Court denied Derreza’s
petition for further review.
In November 2018, Derreza filed a verified motion for postconviction relief alleging
various allegations of ineffective assistance of counsel against his original and replacement trial
counsel, which replacement counsel then served as his appellate counsel on direct appeal.
Derreza’s allegations of ineffective assistance of replacement counsel can be divided into four
broad categories: (1) ineffective assistance during pretrial investigation and trial preparation, (2)
ineffective assistance during pretrial motions, (3) ineffective assistance during trial, and (4)
ineffective assistance during direct appeal. Additionally, in his conclusion, Derreza states that he
“was prejudiced by the deficient performance of counsel because, there exists a reasonable
probability that, but for defendant’s counsels’ aforementioned breaches of due diligence and
ineffective assistance, the result of defendant’s hearing would have been different.”
1. INEFFECTIVE ASSISTANCE DURING PRETRIAL
INVESTIGATION AND TRIAL PREPARATION
As to the first broad category, ineffective assistance of counsel during pretrial investigation
and trial preparation, Derreza’s allegations can be broken down into two categories: (a)
ineffectiveness in failing to test the reliability of the drug detection dog (Ike), who was brought to
the scene of the vehicle stop which stop eventually resulted in Derreza’s arrest, and (b)
ineffectiveness in failing to explore issues associated with the rental of an Impala in which the
drugs were eventually found. Derreza made allegations regarding his original trial counsel, his
replacement trial counsel, and made certain allegations without specifying whether he was
referring to his original or replacement trial counsel.
(a) Reliability Regarding Drug Detection Dog
The first series of allegations concern the reliability of the drug detection dog, Ike.
Regarding his original trial counsel, Derreza alleged that at the hearing on his motion to suppress,
original counsel “did not ask Sgt. Hicks [the drug detection dog’s handler] any questions of
substance regarding Ike’s [the drug detection dog’s] sniff in [Derreza]’s case, nor any questions
regarding Ike’s performance on September 5, 2014.” As to his replacement trial counsel, Derreza
alleged (i) that he raised concerns to his trial counsel regarding the exterior sniff of the Impala,
advised counsel that he was willing to pay for an expert to evaluate Sgt. Hicks and Ike’s
performance, and “specifically questioned his trial counsel regarding Ike wandering toward a ditch
away from the Impala prior to being called back to the Impala by Sgt. Hicks,” and that he further
contends counsel failed to investigate this request or to seek expert guidance regarding Sgt. Hicks’
and Ike’s health and performance during the September 5, 2014, exterior sniff and failed to
“determine if [Ike’s] untimely death could have affected the exterior sniff of [Derreza]’s rented
Impala on September 5, 2014”; (ii) that his counsel failed to depose Sgt. Hicks, who had regular
contact with Ike, to determine if Hicks noted any change in Ike’s demeanor or performance over
the last 3 months of Ike’s life, claiming that Sgt. Hicks “would likely have given cause for a motion
to suppress regarding the reliability of the probable cause provided by Ike when he conducted an
exterior sniff of [Derreza]’s rented Impala on September 5, 2014”; and (iii) that on November 25,
2015, replacement counsel filed a motion for exculpatory evidence regarding Ike which “does not
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appear to have been ruled upon by [the district] court,” and counsel failed to request veterinary
records regarding Ike’s functioning and failed to determine if there had been an examination of
Ike which may have revealed Ike’s ability to perform drug detection or otherwise “called into
question the probable cause provided for the search of [Derreza]’s rented . . . Impala on September
5, 2014.”
(b) Statements Concerning Rental Car
The second series of pretrial ineffective assistance of counsel allegations concern alleged
discovery inadequacies directed at both original and replacement counsel relating to the rental car.
Regarding his replacement trial counsel only, Derreza claims that replacement trial counsel
failed to properly investigate his disclosure to counsel that Ronnie Menter, the driver of the Impala
on the day of the arrest, attempted to rent the Impala himself while in California, but was unable
to successfully rent the Impala due to Menter’s driving and credit history; and that Derreza agreed
to rent the Impala for Menter who then left California alone with the Impala. Derreza claims that
counsel’s failure to properly investigate this claim caused counsel to be unprepared for Menter and
Blake Thomas’ trial testimony and resulted in counsel’s failure to adequately elicit testimony from
Menter and Thomas which was consistent with facts related by Derreza to trial counsel that
Derreza never had access to the Impala once Menter left the rental agency with the Impala.
Regarding both original trial counsel and replacement trial counsel, Derreza claims that he
disclosed to both counsel the existence of recording equipment in the main lobby of the California
rental car company branch where the Impala was rented; that there existed a digital record of the
original rental of the Impala; and that he requested trial counsel to attempt to obtain any digital
information to corroborate that Menter initially attempted to rent the Impala. Derreza alleged that
“[n]either trial counsel conducted any type of investigation to determine if video or any other
documentation could be obtained to corroborate these statements nor was such evidence presented
by trial counsel during Menter’s testimony during Derreza’s trial in this matter.”
2. INEFFECTIVE ASSISTANCE DURING PRETRIAL MOTIONS
As to the second broad category of ineffective assistance of counsel during pretrial
motions, Derreza alleged that he advised trial counsel that “he initially felt compelled to answer
[law enforcement’s] questions” and his will was overborne when answering “the Trooper’s
questions in violation of Jackson v. Denno and trial counsel neglected to properly file a motion
and to present evidence to exclude said statement at [Derreza]’s trial.” Derreza did not specify
whether he was referring to his original trial counsel or replacement trial counsel as to this
allegation.
3. INEFFECTIVE ASSISTANCE DURING TRIAL
As to the third broad category of ineffective assistance of counsel during trial, Derreza
alleged that trial counsel failed to (a) object to the evidence offered at trial, thereby not preserving
objections raised in connection with his motion to suppress; (b) timely object at trial to preserve
error associated with the court’s overruling of Derreza’s discovery request governing the drug
detection dog’s training and veterinary records preventing review of this discovery ruling; (c)
object on confrontation grounds to Trooper Pelster’s and Trooper Grummert’s trial testimony
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regarding statements made by Menter and Thomas about their route of travel, thereby denying
Derreza of any meaningful appellate review of the admissibility of Menter’s or Thomas’
statements pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004); (d) “locate and interview key witnesses, [which resulted in] trial counsel [being] unable to
secure the testimony of any witnesses at trial who could have stated that [Derreza] only rented the
Impala after . . . Menter was unable to secure the rental on his own, which would have further
corroborated the testimony of Menter and Thomas at trial”; (e) make a proper closing argument
by failing to properly summarize the facts in a manner consistent with Derreza’s innocence,
neglecting to argue legitimate deductions to the jury, failing to advance reasonable inferences from
the evidence, failing to advance a consistent theme in support of Derreza’s innocence, failing to
succinctly restate in a chronological format all of the inconsistencies in Trooper Pelster’s trial
testimony, and failing to properly highlight Menter’s and Thomas’ trial testimony; and (f) file a
motion for a new trial, investigate any evidence to support the motion for a new trial, and have a
hearing on the motion for new trial.
4. INEFFECTIVE ASSISTANCE DURING DIRECT APPEAL
As to the fourth broad category of ineffective assistance of counsel during direct appeal,
Derreza alleged that appellate counsel was ineffective for failing to adequately present the issue of
improper jury instructions to the appellate court by neglecting to request that the trial court forward
a complete transcript to the appellate court which “deprived the appellate court [of] the ability to
review the claims made by appellate counsel regarding the improper jury instructions in the
defendant’s brief.”
The district court denied Derreza’s verified motion for postconviction relief without an
evidentiary hearing because (1) Derreza’s claims against his original trial counsel were either
procedurally barred since they could have been raised on direct appeal, or that (2) his claims
against replacement trial counsel, who also served as appellate counsel on direct appeal, were
either insufficiently pled or affirmatively refuted by the record. Derreza has timely appealed to this
court.
III. ASSIGNMENT OF ERROR
Derreza contends that the district court erred in denying him an evidentiary hearing on the
issues raised in his motion for postconviction relief.
IV. STANDARD OF REVIEW
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. State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which is reviewed independently of the lower court’s ruling. State v. Mata, 304 Neb. 326,
934 N.W.2d 475 (2019).
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V. ANALYSIS
Derreza contends that the district court erred in denying him an evidentiary hearing on the
issues raised in his motion for postconviction relief. As we previously noted, Derreza’s allegations
of ineffective assistance of counsel were made against both his original trial counsel and his
replacement counsel. As to his replacement counsel, those allegations can be effectively divided
into four broad categories: (1) ineffective assistance during pretrial investigation and trial
preparation; (2) ineffective assistance during pretrial motions; (3) ineffective assistance during
trial; and (4) ineffective assistance related to his direct appeal.
Before turning to Derreza’s specific claims on appeal, we review the general principles
governing postconviction actions asserting claims of ineffective assistance of counsel. In State v.
Henderson, 301 Neb. 633, 637-38, 920 N.W.2d 246, 255-56 (2018), the Nebraska Supreme Court
stated:
Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. State v.
Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018)[, disapproved on other grounds, State v.
Allen, 301 Neb. 560, 919 N.W.2d 500 (2018)]. On appeal from the denial of postconviction
relief without an evidentiary hearing, the question is not whether the movant was entitled
to relief by having made the requisite showing. Instead, it must be determined whether the
allegations were sufficient to grant an evidentiary hearing. Id.
The allegations in a motion for postconviction relief must be sufficiently specific
for the district court to make a preliminary determination as to whether an evidentiary
hearing is justified. Id. In a proceeding under the Nebraska Postconviction Act, the
application is required to allege facts which, if proved, constitute a violation or
infringement of constitutional rights, and the pleading of mere conclusions of fact or of law
is not sufficient to require the court to grant an evidentiary hearing. Id. An evidentiary
hearing must be granted when the facts alleged, if proved, would justify relief, or when a
factual dispute arises as to whether a constitutional right is being denied. Id.
. . . To prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 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. Newman, 300 Neb. 770,
916 N.W.2d 393 (2018). A court may address the two prongs of this test, deficient
performance and prejudice, in either order. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d
318 (2017).
In order to establish a right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden first 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. Haynes, supra. In determining whether
trial counsel’s performance was deficient, courts give counsel’s acts a strong presumption
of reasonableness. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). An appellate
court will not judge an ineffectiveness of counsel claim in hindsight. State v. Iromuanya,
282 Neb. 798, 806 N.W.2d 404 (2011). We must assess trial counsel’s performance from
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counsel’s perspective when counsel provided the assistance. Id. When reviewing claims of
ineffective assistance, we will not second-guess trial counsel’s reasonable strategic
decisions. Id.
Next, the defendant must show that counsel’s deficient performance prejudiced the
defense in his or her case. State v. Haynes, supra. To establish the prejudice prong of a
claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the result of the proceeding would
have been different. See State v. Schwaderer, supra. A reasonable probability does not
require that it be more likely than not that the deficient performance altered the outcome
of the case; rather, the defendant must show a probability sufficient to undermine
confidence in the outcome. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
We next note that as to any claim involving Derreza’s original trial counsel, a motion for
postconviction relief asserting ineffective assistance of trial counsel is procedurally barred when
(1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an
ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged
deficiencies in trial counsel’s performance were known to the defendant or apparent from the
record. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
Here, Derreza was represented by his replacement counsel on direct appeal. He therefore
cannot raise on postconviction any claims of ineffective assistance of his original trial counsel that
were not preserved on direct appeal. Since no claims of ineffective assistance of counsel were
raised on direct appeal, any ineffective assistance of counsel claims regarding Derreza’s original
trial counsel were not preserved and are procedurally barred. We now address each of the
categories of Derreza’s allegations of ineffective assistance of his replacement trial counsel in turn.
1. PRETRIAL INVESTIGATION AND TRIAL PREPARATION
Derreza first contends that his replacement trial counsel provided ineffective assistance of
counsel during pretrial investigation and trial preparation. When, as here, a defendant was
represented both at trial and on direct appeal by the same counsel, the defendant’s first opportunity
to assert ineffective assistance of counsel is in a motion for postconviction relief. State v.
Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018); State v. Ely, 295 Neb. 607, 889 N.W.2d 377
(2017). In his motion for postconviction relief, Derreza alleged that his replacement trial counsel
was ineffective during pretrial investigation and trial preparation for (a) inadequacies in connection
with pretrial handling of issues governing the reliability of the drug detection dog, and (b)
inadequacies in connection with his disclosures to counsel governing his rental of the Impala. We
discuss those independently.
(a) Issues Regarding Drug Detection Dog
Regarding Derreza’s ineffective assistance of his replacement counsel claims related to the
drug detection dog, Derreza alleged that (i) replacement counsel was ineffective for failing to hire
an expert or veterinary expert regarding the drug detection dog’s performance, (ii) replacement
counsel was ineffective for failing to depose Sergeant Hicks regarding any change in the drug
detection dog’s demeanor or performance from July to October 2014, and (iii) replacement counsel
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was ineffective in failing to require a ruling on his motion for exculpatory evidence and failing to
subpoena veterinary records.
(i) Failure to Seek Expert Advice Regarding Drug Detection Dog
Derreza’s first allegation regarding replacement counsel’s ineffectiveness in connection
with the reliability of the drug detection dog involves counsel’s failure to investigate or hire an
expert regarding the drug detection dog’s performance and failure to hire a veterinary expert
regarding the drug detection dog’s health. Derreza argues that “[b]y failing to locate and interview
key witnesses, trial counsel neglected to secure vast amounts of testimony at trial from a number
of witnesses who could have properly advanced [Derreza]’s theory of the case and significantly
undermined the veracity of the [S]tate’s allegations against [him].” Brief for appellant at 19-20.
The district court held that Derreza’s motion did not allege sufficient facts that, if proved,
would entitle him to relief. Specifically, the court held that while Derreza claimed an expert should
have been retained, he failed to articulate who would serve in that role, or what testimony the
expert would provide which would otherwise impact his case. We agree. Derreza does not identify
the expert or experts his replacement counsel should have investigated or hired, he fails to identify
the “vast amount of testimony” that the experts would testify to, and he fails to identify how the
expert testimony would have affected the outcome in his case. In short, because Derreza failed to
allege sufficient facts that identify the specific nature of his counsel’s ineffective assistance, and
how that ineffectiveness prejudiced him, the district court did not err in denying him a hearing on
these claims for postconviction relief.
(ii) Failure to Depose Sergeant Hicks
Derreza next argues his replacement trial counsel failed by not deposing Sergeant Hicks,
the drug detection dog’s handler, regarding any change in the dog’s demeanor or performance
from July 2014 until the dog’s death in October 2014. As to this claim, the district court again
found that the claim failed for its lack of specificity and we agree. In connection with this claim,
Derreza failed to articulate how deposing Sergeant Hicks about the health of the drug detection
dog that successfully sniffed out drugs at the original scene would have impacted the outcome of
this case. This argument fails.
(iii) Failure to Require Ruling on Motion for Exculpatory
Evidence/Failure to Subpoena Veterinary Records
Derreza’s third allegation provided that his replacement counsel failed to require a ruling
from the district court on his November 25, 2015, motion for exculpatory evidence regarding the
drug detection dog and that replacement counsel failed to request veterinary records regarding the
drug detection dog’s functioning. The district court found that Derreza was not entitled to an
evidentiary hearing on this allegation because the record affirmatively refutes the claim, and we
agree. The record indicates the district court sustained Derreza’s November 25, 2015, motion to
compel discovery and to provide exculpatory evidence including veterinary records of the drug
detection dog on the same day it was filed and ordered the State to disclose the requested discovery
within 14 days. Since the record affirmatively refutes Derreza’s claim, this allegation fails.
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(b) Derreza’s Statements Regarding Rental Car
Derreza next asserts his replacement counsel was ineffective for failing to properly
investigate Derreza’s statement to him that Derreza rented the car for Menter who was unable to
rent the car on his own and that Derreza had no access to the car, in which drugs were found, once
Menter left the rental agency. Derreza further claims that replacement counsel failed to investigate
to “determine if video or any other documentation could be obtained” from the rental agency to
support Derreza’s statement.
The district court held that, at trial, both Menter and Thomas testified that Derreza rented
the car for Menter, and that Derreza failed to plead how providing additional evidence of that fact
in any way impacts Derreza’s conviction. We agree. The record established that Derreza rented
that car for Menter and Derreza was pulled over in another vehicle which was accompanying, or
following, Menter in the Impala. There is nothing in Derreza’s motion which explains how
additional evidence of these established facts would somehow impact the outcome of his case.
This argument fails.
2. INEFFECTIVE ASSISTANCE DURING PRETRIAL MOTIONS
Derreza next contends his replacement counsel was ineffective for not filing a motion for
hearing, pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1714, 12 L. Ed. 2d 908 (1964),
concerning his statements in response to the “trooper’s questions” made during the roadside stop.
The district court held the record affirmatively refutes this claim. We agree. The record
affirmatively reflects that Derreza’s counsel did, in fact, file a Jackson v. Denno motion regarding
the statements Derreza made to Trooper Grummert, and that following a hearing, the district court
found that Derreza’s statements to Trooper Grummert were made voluntarily. Because the record
affirmatively refutes Derreza’s claim of ineffective assistance, this claim fails.
3. INEFFECTIVE ASSISTANCE DURING TRIAL
Derreza next argues he received ineffective assistance of counsel during trial due to his
replacement counsel failing to (a) renew his motion to suppress, (b) object at trial to matters that
were the subject of a prior discovery ruling, (c) object to testimony on confrontation grounds, (d)
locate and present witnesses governing the rental of the Impala where the drugs were found, (e)
properly make a closing argument, and (f) properly argue for a new trial.
(a) Failure to Renew Motion to Suppress
First, Derreza argues he was deprived of “appellate review of his motion to suppress”
because his trial counsel failed to object at trial to preserve it. Specifically, Derreza alleges:
Trial counsel failed to object at trial to the [S]tate offering evidence after the detention of
the defendant prior to opening, the testimony of Trooper Pelster or the testimony of
Sergeant Grummert. Furthermore, trial counsel failed to object at trial to the [S]tate’s
opening or the testimony of its witnesses regarding the search of the defendant’s rented
Impala by troopers of the Nebraska State Patrol after a canine indication.
The district court found that Derreza’s pleading failed to identify what evidence was
introduced at trial to which Derreza’s counsel failed to object. Further, the court held Derreza’s
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pleading failed to allege facts which would demonstrate that, but for counsel’s failures, the result
of his appeal would be different. We agree. Alleging that his counsel filed a motion to suppress
followed by a general allegation that his counsel failed to object to testimony of Trooper Pelster
and Sergeant Grummert simply does not satisfy the specificity requirement of pleading set forth
in State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). In order to comply, Derreza was
required to identify the subject raised in his motion that he desired to preserve, the specific
testimony elicited by the specific witness which he alleges required an objection, the legal basis
for the objection and why the objection would have been sustained, and how that series of events
would have impacted the outcome of the case in a manner that prejudiced Derreza. Having failed
to do so, this argument fails.
(b) Failure to Timely Object Regarding Discovery Rulings
Next, Derreza contends his trial counsel failed to timely object at trial to the court’s ruling
governing his discovery motion which requested the drug detection dog’s veterinary and training
records. Derreza asserts that this failure prevented him from having a “meaningful” appellate
review of the denial of his motion for discovery. We first note Derreza fails to articulate any legal
basis for his claim that his counsel was required to object at trial to preserve a discovery ruling by
the court. See State v. Podrazo, 21 Neb. App. 489, 840 N.W.2d 898 (2013) (appellate court could
review ruling on discovery motion notwithstanding counsel’s failure to object during trial).
Regardless, the record reflects that despite Derreza’s allegation that the court prohibited
his counsel from obtaining veterinary and training records governing the drug detection dog, the
record reflects the court actually sustained his counsel’s motion to compel discovery governing
these records and that Derreza’s counsel was provided these records prior to trial. Because the
record affirmatively refutes Derreza’s argument, this argument fails.
(c) Failure to Object Based on Confrontation Clause
Derreza next argues that he was deprived meaningful appellate review as to the
admissibility of Menter’s statements testified to by Pelster and of Thomas’ statements testified to
by Grummert because his trial counsel failed to object on confrontation grounds. The district court
found this contention failed because again the record refuted his contention. We agree.
Derreza’s argument here relates to Pelster’s testimony about the route Menter intended to
follow across the country as described to him by Menter in response to Pelster’s question.
Grummert obtained and testified to a similar type, albeit inconsistent, statement obtained from
Thomas. As to that testimony, the record clearly reflects that Derreza’s counsel objected on the
basis of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and the
confrontation clause. The court then overruled the objections because the statements were deemed
nonhearsay (a matter that was contested on direct appeal and determined to be a correct ruling of
law). See State v. Derreza, No. A-16-527, 2017 WL 3485394 (Neb. App. Aug. 15, 2017) (selected
for posting to court website). When ruling on Derreza’s postconviction motion, the court found
that “Crawford does not apply to nonhearsay coconspirator statements” and noted Derreza’s claim
was without merit. Because the record affirmatively refutes Derreza’s claim, this argument fails.
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(d) Failure to Identify and Call Witnesses
Derreza next asserts that his counsel failed to investigate and call witnesses from the rental
agency about Derreza renting the car on Menter’s behalf and that had counsel called such
witnesses, counsel could have deduced testimony that Derreza was not engaged in a criminal
enterprise with Menter and further corroborated Thomas’ and Menter’s trial testimony. The district
court ruled this alleged testimony would not have meaningfully altered the evidentiary picture and
any impact on the jury’s findings would have been isolated and trivial. We agree.
In State v. Derreza, No. A-16-527, 2017 WL 3485394 at 5 (Neb. App. Aug. 15, 2017), in
summarizing why the original trial record contained sufficient evidence to support the jury’s
finding that Derreza knew of the methamphetamine in the Impala and had constructive possession
over it, we stated:
In this instance, the evidence proves Derreza, Menter, and Thomas were traveling
together, in two separate cars. The record shows the Impala containing the
methamphetamine was rented under Derreza’s name and that the Tahoe in which Derreza
was a passenger at the time of the stop was owned by Derreza’s parents. The two vehicles
were observed to be traveling together, as Trooper Pelster was hindered in stopping the
speeding Impala by the Tahoe’s actions. When questioned by Sergeant Grummert, Derreza
stated he was traveling to Marshalltown, Iowa, from California. Menter, the driver of the
Impala, presented Trooper Pelster his driver’s license indicating he was from
Marshalltown, Iowa, the Impala’s California registration, and the rental agreement with
Derreza’s information. Additionally, although Derreza initially told Sergeant Grummert
that he and [Thomas] were not traveling with anyone, he later told Sergeant Grummert that
they were traveling with the Impala.
When viewed in relation to this record, Derreza’s argument that his counsel was ineffective
for failing to call additional witnesses to testify about the original rental of the Impala fails to
demonstrate any prejudice to Derreza. The uncontradicted evidence demonstrates that Derreza
rented the vehicle for Menter. Providing additional witnesses to establish that fact would simply
have been cumulative of that established and uncontroverted fact. It was Derreza’s rental
arrangement, when coupled with his use of his parents’ car to accompany Menter and Thomas on
their trip, which establishes his constructive possession of the methamphetamine located in the
Impala. Providing more evidence of the original rental arrangement was of no consequence. This
argument fails.
(e) Failure to Properly Make Closing Argument
Derreza next asserts that his replacement counsel was ineffective for not making a proper
closing argument by failing to properly summarize the facts in a manner consistent with Derreza’s
innocence, in failing to argue legitimate deductions to the jury, and neglecting to advance
reasonable inferences from the evidence and a consistent theme supporting Derreza’s innocence.
Derreza also argues his replacement counsel “failed to succinctly restate in a chronological format
all of the inconsistencies in the trial testimony of the [S]tate’s main witness Trooper Pelster or to
properly highlight the testimony of Menter and Thomas at trial.” Brief for appellant at 24.
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The district court held that the record was insufficient to support this claim because there
was no record of closing argument, and that, regardless, Derreza’s claim is without merit because
he does not allege how he was prejudiced by his counsel’s alleged deficiencies. We agree. Because
Derreza does not specifically plead how he was prejudiced by his trial counsel’s alleged
deficiencies, this argument fails.
(f) Failure to File Motion for New Trial
Derreza next argues alleged deficiencies in connection with his counsel’s handling of
posttrial matters. Specifically, he argues, “[t]rial counsel failed to file a motion for new trial under
Neb. Rev. Stat. § 29-2101 (Reissue 2016) alleging several grounds for a new trial. Trial counsel
failed to ask [the district] court to consider its evidentiary objections and the issue of juror
misconduct in a motion for a new trial. Also, counsel failed to investigate any evidence to support
the motion for new trial. That counsel was deficient for failing to have a hearing on the motion for
new trial.” Brief for appellant at 24.
In response, the district court found that these pleadings of mere conclusions of law or fact
are not sufficient to warrant an evidentiary hearing, and we agree. These threadbare conclusory
allegations are insufficient in specifying with particularity the deficiencies of counsel in relation
to a post-trial motion, or in establishing any prejudice in failing to file them. This argument fails.
4. INEFFECTIVE ASSISTANCE DURING DIRECT APPEAL
Lastly, Derreza argues his appellate counsel, who was also his replacement counsel during
trial and sentencing, was ineffective in failing to adequately appeal the district court’s errors in
instructing the jury and in failing to include Derreza’s proposed jury instructions in the record on
direct appeal. Derreza alleges that his appellate counsel failed to provide a complete record to the
appellate court on direct appeal which denied him his constitutional right to effective assistance of
counsel on direct appeal. Derreza expounds that due to this counsel’s failures, the appellate court
was unable to conduct an effective appellate review of his trial counsel’s objections to the district
court’s jury instructions and Derreza’s proposed jury instructions.
Although Derreza does not specify the jury instruction he is referring to, we surmise he
refers to his counsel’s challenge on direct appeal to the court’s proposed instruction on
“possession” contained with instruction number 5. This court refused to address the assignment of
error in connection with Derreza’s direct appeal because the instruction was not made part of the
record. In response, the district court denied Derrezza an evidentiary hearing while finding that the
instruction provided by the district court was taken directly from NJI2d Crim. 4.2 and that Derreza
failed to plead how the instruction in any way was incorrect. We agree.
To address Derreza’s assigned error in this postconviction appeal, we begin by noting that
“[w]hen 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. That is, courts begin by assessing the strength of the claim appellate counsel
purportedly failed to raise.” State v. Fox, 286 Neb. 956, 964, 840 N.W.2d 479, 486 (2013).
“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.
at 965, 840 N.W.2d at 486.
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The issue we must resolve here is whether the errors regarding the jury instructions actually
prejudiced Derreza. The Nebraska Supreme Court has articulated:
To establish reversible error from a court’s refusal to give a requested instruction,
an appellant has the burden to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant
was prejudiced by the court’s refusal to give the tendered instruction.
State v. Case, 304 Neb. 829, 842, 937 N.W.2d 216, 225 (2020). Whether jury instructions are
correct is a question of law, which an appellate court resolves independently of the lower court’s
decision. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Derreza argues the district court erred in giving jury instruction No. 5, which provided a
definition for the term “possession” and was a pattern jury instruction. Derreza’s proposed jury
instruction altered the definition of “possession” as follows: “‘Possession of a controlled
substance’ means knowing of the nature and character of the controlled substance and either
knowingly having it on one’s person or knowing of its presence and having the right to exercise
control or dominion over the controlled substance.” The district court refused to give Derreza’s
proposed jury instruction, instead using the pattern jury instruction, which read as follows:
“‘Possession’ of a controlled substance means either knowingly having it on one’s person or
knowing of the object’s presence and having control over the object.” See NJI2d Crim. 4.2.
In State v. Valentine, 27 Neb. App. 725, 936 N.W.2d 16 (2019), we determined the district
court did not err in using a pattern jury instruction defining possession instead of utilizing
defendant’s proposed jury instruction. We explained:
Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that
instruction is the one which should usually be given to the jury in a criminal case. State v.
Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013). In fact, recently, in State v. Castellanos,
26 Neb. App. 310, 918 N.W.2d 345 (2018), this court upheld a jury instruction defining
possession which was directly patterned after NJI2d Crim. 4.2. In Castellanos, the
defendant requested that the district court include the following language when instructing
the jury regarding the definition of possession: “‘The Defendant’s mere presence in an area
where items were ultimately discovered is not enough to establish that the defendant was
in “possession” of said items.’” 26 Neb. App. at 326, 918 N.W.2d at 358. The defendant
also requested that the court instruct the jury as follows: “‘Assuming an item is not found
on the defendant’s person, the defendant’s proximity to the item, standing alone, is
insufficient to prove “possession.”’” Id. We affirmed the district court’s decision to rely
on the pattern jury instruction defining the term “possession” rather than using the
defendant’s proposed definition.
State v. Valentine, 27 Neb. App. at 746-47, 936 N.W.2d at 31-32.
Like the defendant in Valentine, Derreza requested that the district court provide a more
narrow definition of possession than the pattern jury instruction. While Derreza’s proposed jury
instruction was not an incorrect statement of the law, Derreza cannot establish that he was
prejudiced by the district court’s refusal to use his proposed jury instruction. It is clear the district
court properly instructed the jury on the definition of “possession” and the district court did not
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err in refusing to give Derreza’s proposed jury instruction. Accordingly, this assignment of error
fails.
Outcome: For the foregoing reasons, we conclude the district court did not err in denying Derreza an
evidentiary hearing on allegations that his trial counsel was ineffective in matters related to pretrial
investigations, pretrial motions, trial proceedings, and direct appeal or in finding that his claims
regarding his original trial counsel were procedurally barred. We affirm the district court’s denial
of postconviction relief without an evidentiary hearing.
AFFIRMED.
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