Friday, October 28, 2005

Immigrant from Turkey shot his former girlfriend from behind in the head and Douglas County District Court jury convicted him of first degree murder. Immigrant gave confession in English and had lived in US for 20 years, but post conviction counsel advised to answer all deposition questions in his native language. Post conviction hearing judge denied post conviction relief. The Nebraska Supreme Court affirms; finds no prejudice from only speculative prediction that counsel's failure to suppress ostensibly voluntary confession and consent to search automobile prejudiced his case; Defendant also claimed counsel was ineffective for not properly arguing that the crime occurred under circumstances to make the def. guilty of no worse than manslaugher. While counsel appeared toargue crime arose out of impulsivness, a defense Nebraska does not allow, the Supremes find the counsel's arguments were close enough for government work. State v. Canbaz, 270 Neb. 559 Filed October 28, 2005. No. S-04-970. Nebraska Supreme Court definition of the Strickland v Washington ineffectiveness of counsel standard Under Strickland, to establish a right to relief because of a claim of ineffective counsel at trial or on direct appeal, 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. The defendant must also show that counsel's deficient performance prejudiced the defense in his or her case. To prove prejudice, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. When a defendant challenges a conviction, the question is whether there is a reasonable probability that absent the errors, the fact finder would have had a reasonable doubt concerning guilt. See State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). Defendant claimed that counsel's heavy use of "impulsiveness" theory during trial deprived him of chance to walk on "sudden quarrel" diminished capacity situation Canbaz next asserts that trial counsel was ineffective by repeatedly making reference to the theory of "irresistible impulse," which is a defense not recognized in Nebraska. See State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984). Canbaz claims that each reference in trial counsel's closing argument to impulsive behavior was objected to by the prosecution. Canbaz asserts that rather than asking Gutnik questions about whether Canbaz acted impulsively, trial counsel should have asked Gutnik whether Canbaz suffered from diminished mental capacity when Peralta was shot. Citing State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999), Canbaz states that diminished mental capacity is a defense recognized in Nebraska and that it "would have been fodder for a closing argument consistent with the medical diagnosis of defendant's expert." Brief for appellant at 14. Canbaz concludes: "The continued use of the impulsive theory shows that counsel was not familiar with the state of Nebraska law at the time of the trial." Id. ...trial counsel did in fact argue diminished mental capacity insofar as that related to premeditation and sudden quarrel. We need not decide whether every characterization of the law by trial counsel was legally correct so long as Canbaz was not prejudiced as a result. Certainly, it was an abundantly reasonable tactical decision not to go further and, as Canbaz suggests, argue that prescription antidepressants and drinking alcohol the night before the killing, combined with his depressive disorder and the stress of the situation, made him incapable of forming the requisite intent. Canbaz has failed to prove that trial counsel was ineffective in its defensive strategy. ... Defendant argued that counsel's admitted shooting was "intentional" deprived him ofa fair trial; court finds he waived this arguement we need not decide whether trial counsel was deficient in making the statement that the shooting was "an intentional act" or whether any such deficiency was prejudicial, because Canbaz failed to raise this argument in his brief on appeal. To be considered by an appellate court, an error must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred. Lange v. Crouse Cartage Co., 253 Neb. 718, 572 N.W.2d 351 (1998) Any misuse of unavailable "impulse" defense that might have clouded defendant's shot at manslaughter through sudden quarrel moot because jury convicted on first degree murder and thus no erroneous step instructions The jury in Canbaz' trial was instructed under a step instruction for first degree murder. We have stated that a defendant convicted of first degree murder could not have been prejudiced by error in the instructions on second degree murder and manslaughter because under a step instruction, the jury would not have reached the issues of second degree murder and manslaughter. State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004). See, also, State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003) (where jury was adequately instructed on element of intent with respect to second degree murder, any alleged failure to further define term "sudden quarrel" at earlier stage of step instruction would not constitute plain error). It likewise follows that a misstatement of an element of manslaughter during closing arguments could not have prejudiced the defendant where the jury, under a step instruction, convicted the defendant of first degree murder and therefore would not have reached the issues of second degree murder and manslaughter. The jury, having found Canbaz guilty of first degree murder, would never have considered whether the shooting arose out of a "sudden quarrel."

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