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06/07/2019 09:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                 STATE v. FUENTES
                                                 Cite as 302 Neb. 919




                                        State of Nebraska, appellee, v.
                                        Timothy L. Fuentes, appellant.
                                                   ___ N.W.2d ___

                                         Filed April 19, 2019.    No. S-18-122.

                 1. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
                    ing on a motion for postconviction relief, the trial judge, as the trier
                    of fact, resolves conflicts in the evidence and questions of fact. An
                    appellate court upholds the trial court’s factual findings unless they are
                    clearly erroneous.
                 2. Effectiveness of Counsel. A claim that defense counsel provided inef-
                    fective assistance presents a mixed question of law and fact.
                 3. Effectiveness of Counsel: Appeal and Error. When reviewing a
                    claim of ineffective assistance of counsel, an appellate court reviews
                    the factual findings of the lower court for clear error. With regard to
                    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
                    conclusion.
                 4. Constitutional Law: Due Process: Trial: Judges. The right to an
                    impartial judge is guaranteed under the Due Process Clauses of the U.S.
                    and Nebraska Constitutions, the parameters of which are coextensive.
                 5. Constitutional Law: Trial: Judges: Proof. In order to show a consti-
                    tutional violation of the right to an impartial judge, a defendant must
                    prove actual bias or structural error.
                 6. Trial: Judges: Words and Phrases. Structural error occurs when the
                    defendant shows that a judge has such a strong personal or financial
                    interest in the outcome of the trial that he or she was unable to hold the
                    proper balance between the State and the accused.
                 7. Postconviction: Trial: Presumptions: Appeal and Error. Although
                    structural error requires automatic dismissal if brought on direct appeal,
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                               STATE v. FUENTES
                               Cite as 302 Neb. 919

       not all structural error will result in a presumption of prejudice when
       raised in a motion for postconviction relief.
 8.    Judges: Recusal. Instances in which the judge’s impartiality might
       reasonably be questioned specifically include where the judge has a
       personal bias or prejudice concerning a party or a party’s lawyer.
 9.    Judges: Recusal: Presumptions. A defendant seeking to disqualify a
       judge on the basis of bias or prejudice bears the heavy burden of over-
       coming the presumption of judicial impartiality.
10.    Constitutional Law: Identification Procedures: Due Process. An
       identification procedure is constitutionally invalid only when it is so
       unnecessarily suggestive and conducive to an irreparably mistaken iden-
       tification that a defendant is denied due process of law.
11.    Identification Procedures. Whether identification procedures were
       unduly suggestive and conducive to a substantial likelihood of irrepa-
       rable mistaken identification is to be determined by a consideration of
       the totality of the circumstances surrounding the procedures.
12.    ____. The factors to be considered in determining whether identifica-
       tion procedures were unduly suggestive and conducive to a substantial
       likelihood of irreparable mistaken identification are the opportunity of
       the witness to view the criminal at the time of the crime, the witness’
       degree of attention, the accuracy of the witness’ prior description of the
       criminal, the level of certainty demonstrated by the witness, and the
       length of time between the crime and the identification.

   Appeal from the District Court for Scotts Bluff County:
A ndrea D. Miller, Judge. Affirmed.

      Leonard G. Tabor for appellant.

   Douglas J. Peterson, Attorney General, Erin E. Tangeman,
Derek Bral, Senior Certified Law Student, and, on brief, Sarah
E. Marfisi for appellant.

      Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ.

      Heavican, C.J.
                     INTRODUCTION
   Timothy L. Fuentes was convicted of third degree sexual
assault of a child, second offense, and sentenced to 50 to
50 years’ imprisonment. His conviction and sentence were
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. FUENTES
                        Cite as 302 Neb. 919

affirmed on direct appeal. Fuentes filed a motion seeking
postconviction relief. Following an evidentiary hearing,
the district court denied Fuentes’ motion. He appeals. We
affirm.

                  FACTUAL BACKGROUND
   The facts leading to Fuentes’ conviction show that on
August 21, 2012, Fuentes visited the upstairs apartment of a
converted house. The victim, Analicia B., was outside of the
house at the time of Fuentes’ visit. Analicia’s family lived in
the basement apartment of the same house. Analicia testified
that Fuentes arrived at the home while her stepfather, Gabriel
T., had been outside. Analicia further testified that Fuentes
went into the upstairs apartment and that Gabriel went into the
basement apartment, leaving Analicia and her sister outside.
Fuentes left the upstairs apartment approximately 5 minutes
later, while Gabriel was still in the basement apartment.
Analicia testified that as he left, Fuentes “slid his finger” of
his right hand up and then sideways on Analicia’s genital area
over her clothing.
   Analicia immediately reported the touching to her par-
ents, and law enforcement was contacted. A few days later,
Analicia identified Fuentes out of a photographic array (photo
array) that included photographs of Fuentes and five other
individuals.
   Fuentes was charged with third degree sexual assault of a
child. A first jury trial ended in a mistrial because of a dead-
locked jury; Fuentes was convicted following the second trial.
His conviction and sentence were affirmed on direct appeal in
a memorandum opinion filed by the Nebraska Court of Appeals
on February 26, 2014, in case No. A-13-340.
   Fuentes subsequently filed a pro se motion seeking post-
conviction relief. Fuentes was represented by an attorney from
the Scotts Bluff County public defender’s office at trial and on
direct appeal, and he is represented by appointed counsel in
this appeal. Fuentes asserts that trial counsel was ineffective
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. FUENTES
                             Cite as 302 Neb. 919

at trial and on appeal by failing to (1) argue ineffective assist­
ance of counsel on direct appeal; (2) file a motion to suppress
statements; (3) file a motion to recuse the trial judge; (4) file
a motion in limine; (5) file a motion to suppress the photo
array; (6) investigate and depose Analicia, an unknown adult,
and Gabriel; (7) object to jury instructions Nos. 1 and 5; (8)
object to exhibit 5; (9) object to the testimony of DelMaria
B., Analicia’s mother; and (10) file a motion to dismiss at the
conclusion of the State’s evidence.
   Because the trial judge had retired, a new district court
judge was appointed. Following an evidentiary hearing, the
district court denied Fuentes’ motion for postconviction relief.
Fuentes appeals.

                 ASSIGNMENT OF ERROR
  Fuentes assigns that the district court erred in denying his
motion for postconviction relief.

                    STANDARD OF REVIEW
   [1] In an evidentiary hearing on a motion for postcon-
viction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact. An appellate
court upholds the trial court’s factual findings unless they are
clearly erroneous.1
   [2,3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.2 When
reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. With regard to questions of counsel’s perform­
ance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington,3 an appellate court

1
    State v. Huston, 302 Neb. 202, 922 N.W.2d 723 (2019).
2
    Id.
3
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
    (1984).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                            STATE v. FUENTES
                            Cite as 302 Neb. 919

reviews such legal determinations independently of the lower
court’s conclusion.4
                           ANALYSIS
   Fuentes contends on appeal that the district court erred
in denying his motion for postconviction relief and asserts
various grounds in support of his assignment of error. Fuentes
argues that counsel was ineffective in failing to (1) file a
motion to suppress the photo array and out-of-court identi-
fication of Fuentes, (2) investigate and depose a clerk at the
liquor store next door to the victim’s residence at the time
of the alleged sexual assault, (3) investigate and depose an
acquaintance of Fuentes who was at the liquor store the day of
the incident, (4) investigate and depose a coworker of Fuentes,
(5) investigate and depose the unknown male witness at the
time of the sexual assault, (6) raise an intoxication defense, (7)
seek the recusal of the district court judge, (8) have Fuentes
take a polygraph examination, (9) engage in plea negotiations
or communicate plea offers from the State to Fuentes, and
(10) adequately explore inaccuracies in the testimony of sev-
eral witnesses.
   Several of these assignments of error can be rejected because
they were not raised in Fuentes’ motion. The motion does not
raise an ineffectiveness claim with respect to three witnesses—
the liquor store clerk, Fuentes’ acquaintance, or his coworker.
Nor does that motion assert ineffectiveness with regard to
the failure to raise the intoxication defense, seek a polygraph
examination, engage in plea negotiations, or communicate
plea deals. As such, we turn to the arguments both raised in
Fuentes’ motion and preserved on appeal.
Failure to Seek Recusal of
District Court Judge.
  Fuentes contends that the trial judge should have recused
himself, because the judge assigned to his case had previously

4
    Huston, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                             STATE v. FUENTES
                             Cite as 302 Neb. 919

represented him on a criminal matter in 1995. Fuentes further
contends that trial counsel was ineffective for not seeking
such recusal.
   [4-7] The right to an impartial judge is guaranteed under the
Due Process Clauses of the U.S. and Nebraska Constitutions,
the parameters of which are coextensive.5 In order to show a
constitutional violation of the right to an impartial judge, a
defendant must prove actual bias or structural error.6 Structural
error occurs when the defendant shows that a judge has such
a strong personal or financial interest in the outcome of the
trial that he or she was unable to hold the proper balance
between the State and the accused.7 Although structural error
requires automatic dismissal if brought on direct appeal, not all
structural error will result in a presumption of prejudice when
raised in a motion for postconviction relief.8
   [8,9] In addition to the constitutional right to an impartial
judge, the Nebraska Revised Code of Judicial Conduct states
that a judge must recuse himself or herself from a case if the
judge’s impartiality might reasonably be questioned.9 Under
the code, such instances in which the judge’s impartiality
might reasonably be questioned specifically include where
“‘“[t]he judge has a personal bias or prejudice concerning
a party or a party’s lawyer . . . .”’”10 However, a defendant
seeking to disqualify a judge on the basis of bias or prejudice
bears the heavy burden of overcoming the presumption of judi-
cial impartiality.11

 5
     State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
 6
     Id.
 7
     Id.
 8
     See Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899, 198 L. Ed.
     2d 420 (2017).
 9
     State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
10
     Id. at 314, 893 N.W.2d at 438.
11
     Buttercase, supra note 9.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                              STATE v. FUENTES
                              Cite as 302 Neb. 919

   Fuentes essentially acknowledges that this case does not
include structural error. Nor does Fuentes argue that his trial
judge was aware of confidential information that was harm-
ful to Fuetnes’ case. Rather, Fuentes now argues that the trial
judge should have recused himself due to the appearance of
impropriety. But, as we noted in State v. Buttercase,12 a defend­
ant has a heavy burden to overcome the presumption of judicial
impartiality and show that the judge has a personal bias or
prejudice concerning the defendant.
   In Buttercase, the defendant sought to force the removal
of a judge who had presided over prior criminal charges filed
against him. We rejected the claim, noting that “the fact that
the court previously presided over other actions involving the
parties and made rulings against one or another of the par-
ties” was insufficient to show bias.13 We observed that the fact
that a judge knows most of the attorneys practicing in his or
her district is common, and the fact that a judge knows attor-
neys through professional practices and organizations does
not, by itself, create the appearance of impropriety. We fur-
ther observed that judicial rulings alone almost never consti-
tute a valid basis for a bias or partiality motion directed to a
trial judge.
   While Buttercase dealt with a judge who had previously
overseen charges against a defendant, we are presented here
with a judge who, 17 years earlier, apparently represented
the defendant in a criminal proceeding. The two cases are,
of course, factually distinct, but both touch on whether prior
knowledge of a defendant creates an appearance of bias.
   Fuentes has not offered any evidence whatsoever to show
that the trial judge had access to confidential information or
even recalled representing Fuentes; that the trial judge used
confidential, personal information in presiding over Fuentes’

12
     Id.
13
     Id. at 316, 893 N.W.2d at 439.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                              STATE v. FUENTES
                              Cite as 302 Neb. 919

trial or in sentencing him; or, indeed, that the trial judge was
biased or prejudiced against Fuentes in any way. We also
observe that while Fuentes suggested in his deposition that an
oral motion seeking the trial judge’s recusal was made, there is
no record of such an oral motion, let alone a written motion.
Fuentes has failed to meet his burden to show that he was prej-
udiced by the failure of the trial court judge to recuse himself.
There is no merit to this argument on appeal.

Failure to File Motion to
Suppress Photo Array
and Out-of-Court
Identification.
   Fuentes argues that counsel was ineffective in failing to file
a motion to suppress the photo array and in failing to object to
all testimony regarding out-of-court identification by Analicia.
The basis of his argument appears to be his assertion that
Analicia was not given an advisement in advance of identifying
him from a photo array and that DelMaria’s presence impacted
Analicia’s identification.
   [10-12] An identification procedure is constitutionally
invalid only when it is so unnecessarily suggestive and condu-
cive to an irreparably mistaken identification that a defendant
is denied due process of law.14 Whether identification proce-
dures were unduly suggestive and conducive to a substantial
likelihood of irreparable mistaken identification is to be deter-
mined by a consideration of the totality of the circumstances
surrounding the procedures.15 The factors to be considered
are the opportunity of the witness to view the criminal at
the time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness, and the length

14
     State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
15
     Id.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                             STATE v. FUENTES
                             Cite as 302 Neb. 919

of time between the crime and the identification.16 We have
noted that “an array of five photographs is sufficient to con-
stitute a fair and adequate array when attempting to identify a
single perpetrator.”17
   The record contains very little information about the photo
array. The photo array itself is not in the record. There is
no dispute that a motion to suppress any identification aris-
ing from the photo array was not filed, and counsel did not
otherwise object to evidence offered on the photo array and
Analicia’s identification of Fuentes.
   The officer who prepared the photo array and showed it to
Analicia testified during trial that he was also the officer who
first reported to the scene of the alleged assault. He further
testified that at the time he met with Gabriel and DelMaria,
he did not interview Analicia, because it was policy for child
sexual assault victims to be interviewed by individuals trained
in appropriate interview techniques.
   The officer further testified that at the time he spoke with
Gabriel and DelMaria, the couple identified Fuentes as the
individual who had been outside their apartment at the time
of the alleged assault, because Gabriel had been outside and
had seen Fuentes arrive. The officer also testified that Fuentes
was not at the scene when he arrived, but that the officer
effected a traffic stop of Fuentes a few days later, on August
24, 2012.
   The officer additionally testified that he prepared a photo
array of photographs of six individuals—Fuentes and five oth-
ers—and showed it to Analicia, in the presence of DelMaria,
on August 26, 2012, at the Scottsbluff Police Department.
According to this testimony, DelMaria sat next to Analicia but
did not say anything during the process.

16
     Id.
17
     State v. Swoopes, 223 Neb. 914, 918, 395 N.W.2d 500, 504 (1986),
     overruled on other grounds, State v. Jackson, 225 Neb. 843, 408 N.W.2d
     720 (1987).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. FUENTES
                             Cite as 302 Neb. 919

   Analicia testified that the officer showed her the photo
array and that she circled the picture of the man who touched
her. Analicia also testified at trial that the man who touched
her was in the courtroom at the time she was testifying, iden-
tifying Fuentes as that person.
   Fuentes does not make any particular argument about the
makeup of the photo array. Rather, he concentrates his argu-
ment on the fact that Analicia did not receive an advisement
prior to viewing the photo array and on the fact that DelMaria
was present during the showing of the photo array.
   There are several problems with Fuentes’ contentions on
appeal. First, there is no evidence regarding whether Analicia
received an advisement prior to looking at the photo array
presented to her. Fuentes’ trial counsel had passed away
prior to the filing of the postconviction motion, but an attor-
ney from the public defender’s office testified by deposition
about Fuentes’ case file. There was no questioning about an
advisement during that deposition. The office’s file was not
offered as an exhibit to the deposition, nor is the police file
part of the record before this court. It is not possible to know
whether an advisement was actually given, because no one
asked that question or offered evidence that might answer
that question. Moreover, Fuentes cites to no authority requir-
ing such an advisement; rather, he cites to a memorandum
opinion of the Court of Appeals where such an advisement
was given.18
   In addition, a review of the entire record suggests that
Fuentes was identified largely because Gabriel was aware that
Fuentes had been on the scene at the relevant time and identi-
fied Fuentes by name to the investigating officer. The officer
had contact with Fuentes for the first time 2 days prior to
showing Analicia the photo array. In addition, another offi-
cer testified that he had contact with Fuentes at the police

18
     State v. Fletcher, No. A-08-723, 2009 WL 2767720 (Neb. App. Sept. 1,
     2009) (selected for posting to court website).
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. FUENTES
                        Cite as 302 Neb. 919

department on either August 23 or 24, 2012, because Fuentes
had heard officers were looking for him.
   Finally, the issue in this case was not who touched Analicia;
the issue was whether Analicia was touched. Fuentes does not
deny being at the scene at the relevant time. He denied only
that he touched Analicia.
   Fuentes has not met his burden to show that he was preju-
diced by any failure of counsel to suppress the photo array
when law enforcement was aware from the time of the alleged
incident that it was looking for Fuentes. There is no merit to
his argument.

Failure to Adequately Explore
Inconsistencies in Witness
Testimonies.
   Somewhat related to Fuentes’ allegations regarding the fail-
ure to investigate other witnesses is Fuentes’ contention that
his counsel was ineffective in failing to adequately cross-
examine certain witnesses regarding inconsistencies in their
statements at trial.
   In his motion, Fuentes alleges inconsistencies of several wit-
nesses, but argues on appeal only that Analicia’s testimony was
inconsistent. Specifically, Fuentes’ brief argues that Fuentes
testified at his hearing that Analicia’s testimony regarding her
identification of Fuentes was inconsistent.
   Fuentes’ argument is without merit. Fuentes does not explain
how he believes Analicia’s testimony was inconsistent and does
not provide any other evidence to suggest actual inconsist­
encies in her testimony.
   Moreover, our review of Analicia’s testimony reveals no
inconsistencies of note. Analicia testified that Fuentes walked
past her into the residence to visit the people who lived on the
main floor of the apartment building and that about 5 minutes
later, the same man left the building, touching her, as described
above, on his way out. There is no real dispute that Fuentes
was the man who entered and exited the home; the only dispute
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. FUENTES
                        Cite as 302 Neb. 919

is whether he touched Analicia as he left—she testified that he
did, while Fuentes testified that he did not.
   Fuentes did not meet his burden to show that his counsel was
ineffective in failing to point out inconsistencies in Analicia’s
testimony, because it is not at all clear to what inconsistency
Fuentes was referring and, in any case, a review of Analicia’s
testimony reveals no inconsistency. This assignment of error is
without merit.
                        CONCLUSION
   The decision of the district court dismissing Fuentes’ motion
for postconviction relief is affirmed.
                                                     A ffirmed.
   Miller-Lerman and Freudenberg, JJ., not participating.
