                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                          STATE V. HUFF


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                             V.
                              HERCHEL HAROLD HUFF, APPELLANT.


                           Filed December 17, 2013.      No. A-12-1072.


       Appeal from the District Court for Furnas County: JAMES E. DOYLE IV, Judge. Affirmed.
      Brian J. Davis, of Berreckman & Davis, P.C., and, on brief, Jeffrey M. Wightman, of
Wightman & Wightman, for appellant.
       Jon Bruning, Attorney General, Erin E. Tangeman, and J. Kirk Brown for appellee.


       INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
       MOORE, Judge.
         Herchel Harold Huff was convicted of motor vehicle homicide, among other charges, in
connection with the death of Kasey Jo Warner. Following his direct appeals, Huff filed a motion
for postconviction relief. The claims for relief in this appeal relate to Huff’s allegations that his
trial counsel were ineffective for failing to investigate and call certain witnesses who may have
provided testimony concerning the amount of alcohol he consumed and concerning his actions
and demeanor on the day of the accident. The district court for Furnas County overruled these
claims of ineffective assistance of counsel without an evidentiary hearing. Finding no error in the
district court’s conclusions, we affirm.
                                 I. FACTUAL BACKGROUND
        Huff spent the afternoon of October 3, 2007, at two different bars in Oxford, Nebraska.
While he was driving back to his home in Holbrook, Nebraska, Huff’s car hit and killed Warner
while she was jogging on a country road. Huff pled guilty to manslaughter and was convicted at
trial of motor vehicle homicide, refusal to submit to a chemical test, and tampering with a
witness. On direct appeal to the Nebraska Supreme Court, Huff’s conviction and sentence for


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manslaughter were vacated. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). His sentence
for refusing a chemical test was also vacated, and he was resentenced on remand on that
conviction. Huff’s other convictions and sentences were affirmed. See id.
       In this opinion, we focus only on the factual background as it relates to Huff’s specific
claims in his postconviction motion. These claims relate to the issue of whether Huff was driving
under the influence of alcohol at the time of the accident, which was the underlying basis for the
motor vehicle homicide charge. For a more extensive background of the underlying facts in this
case, we direct the reader to the Nebraska Supreme Court’s opinion on direct appeal. See id.
                                  1. EVIDENCE AT HUFF’S TRIAL
         At trial, there was conflicting evidence regarding how much alcohol Huff had consumed
the day of the accident. Huff testified that he only had four drinks that day. He admitted drinking
one beer during his first visit to the Wagon Wheel Inn, two Jägerbombs while he and Ryan
Markwardt were at a second bar, Thelma Lou’s, and part of another beer when he returned with
Markwardt to the Wagon Wheel Inn. Dianna Wilhelms, a bartender at the Wagon Wheel Inn,
testified that she served Huff only two beers and remembered that Huff did not finish the second.
         Markwardt, on the other hand, testified that Huff had been drinking more than him that
day. Markwardt testified that when he arrived at the Wagon Wheel Inn after finishing work for
the day, Huff was already there with a beer in front of him. Markwardt estimated that Huff drank
four to five beers while they were at the Wagon Wheel Inn the first time that afternoon.
Markwardt claimed that after leaving the Wagon Wheel Inn, he and Huff walked to a second bar.
Markwardt testified that they had a couple of beers and a couple of Jägerbombs at the second
bar. Markwardt stated that after leaving the second bar, they stopped at a general store before
returning to the Wagon Wheel Inn for a couple more beers and a cocktail. Markwardt’s blood
was tested that day, approximately 1½ hours after the accident, and his blood alcohol level was
.13 grams of alcohol per 100 milliliters of blood.
         A number of witnesses observed Huff’s demeanor at the scene of the accident. Mike
Pruitt was “cutting beans” in a nearby field at the time of the accident and responded to the scene
soon after seeing Huff’s vehicle go into the ditch. He stated that when Huff asked to use his
telephone, there was an obvious smell of alcohol on Huff’s breath. He also testified that Huff
was “stumbling around” after the accident. Sgt. Lee Lozo of the Furnas County sheriff’s office
was the first officer to arrive on the scene. Lozo testified that he observed Huff to be “very
upset” and could smell a strong odor of alcohol coming from Huff. Lozo arrested Huff for
suspected driving under the influence (DUI) and arranged to have Huff transferred to a hospital
for a blood draw. During his testimony, Lozo explained that he did not ask Huff to perform any
field sobriety tests because of the chaotic nature of the scene, Huff’s emotional state, and Huff’s
invocation of his right to counsel.
         Deputy Vernon Levisay transported Huff to the hospital to attempt a blood draw, which
Huff later refused. Levisay testified that he could smell a strong odor of alcohol coming from
Huff. In addition, Levisay noted that Huff’s eyes were bloodshot and glazed and that he had
extreme difficulty walking. Levisay also reported that Huff vomited twice--once before getting
into Levisay’s patrol car and once in the patrol car while en route to the hospital. Levisay also
testified that during the trip to the hospital, Huff’s speech was noticeably slurred.


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       Dr. Henry Nipper, a forensic toxicologist, testified at trial over Huff’s objection that Huff
had been impaired by alcohol at the time of the accident. He calculated that Huff’s blood alcohol
content was .15 grams of alcohol per 100 milliliters of blood.
                               2. HUFF’S POSTCONVICTION MOTION
         Huff filed a motion for postconviction relief and request for an evidentiary hearing on
August 20, 2012. He raised five grounds for relief in that motion. Summarized, these grounds are
as follows: (1) ineffective assistance of counsel, (2) prosecutorial misconduct, (3) judicial errors
affecting his trial and sentence, (4) police and investigator misconduct, and (5) constructive
denial of his right to counsel. Within each ground, Huff alleged a number of claims. Because this
appeal relates to only two of Huff’s claims of ineffective assistance of counsel, we do not further
address any of his other claims in this opinion.
         Huff alleged that both of his trial counsel were ineffective because they did not
investigate or call witnesses who could have testified to the amount of alcohol he consumed on
October 3, 2007. He identifies three witnesses to support this claim: Terrie Quinn, the bartender
at Thelma Lou’s; Tina Long, the second bartender at the Wagon Wheel Inn; and an unnamed
bartender at the “Middle Bar.” Huff states that Quinn was bartending at Thelma Lou’s on that
day and could have testified to the amount of alcohol Huff purchased and whether his demeanor
demonstrated that he was under the influence. Huff alleges that Long would have “showed a
timeline” and would have testified to the amount of alcohol he consumed. Finally, he argues that
his trial counsel failed to investigate possible witnesses at the Middle Bar in Oxford. He argues
that his attorneys should have determined whether there were employees from that bar who could
have testified whether Huff was drinking at that establishment on October 3 or whether he
purchased any beer “to go.”
         Huff also alleged that his trial counsel were ineffective because they failed to investigate
and call witnesses to establish his actions and demeanor on October 3, 2007. These allegations
relate to other places, besides the two bars, that Huff frequented on the day of the accident. First,
he claims that his trial counsel should have called the woman working at the flower shop in
Oxford as a witness. Huff contends that this woman could have testified to the amount of time it
took him to purchase 2 dozen roses, the letter he faxed, the time he spent in the flower shop, and
whether he appeared to have been upset about getting back together with his ex-wife. Second,
Huff claims that his trial counsel should have called the women working at a discount store in
Oxford to testify on his behalf. He argues that this testimony would show his innocence because
these women could testify to how he was acting when he purchased hygiene products and the
amount of time he spent in that store. Third, Huff claims that his attorneys should have called a
man nicknamed “Whisky” and his girlfriend as witnesses because they observed Huff on a bench
for over half an hour talking on the telephone. According to Huff, these people would have
testified to his demeanor while they observed him and whether they observed him drinking.
Finally, Huff contends that his trial counsel should have investigated the convenience store in
Oxford to determine if there were any surveillance cameras or employees who remembered that
he visited the store that day. He contends that if his counsel had found the receipt for his
purchase of a bottle of water and pack of cigarettes, he would have been able to establish a
timeline and his innocence.


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       For each of these claims, Huff contends that he informed his trial counsel that he wanted
these witnesses to be called during his defense.
                                  3. DISTRICT COURT’S ORDER
        On October 22, 2012, the district court entered a detailed order ruling on Huff’s
postconviction motion. In this order, the district court analyzed each of Huff’s claims for relief
and scheduled an evidentiary hearing in order to address some of the claims. However, the court
also denied a number of Huff’s claims and dismissed these claims without an evidentiary
hearing, including the claims at issue in this appeal. We address the district court’s order as it
pertains to Huff’s two claims set out above.
                            (a) Failure to Call Witnesses to Establish
                                  Huff’s Alcohol Consumption
         The district court dismissed Huff’s claim that his trial counsel were ineffective because
they failed to investigate and call certain witnesses who allegedly would have testified to his
alcohol consumption on the night of the accident without an evidentiary hearing. The court
concluded that Quinn’s testimony, at best, would have corroborated both Huff’s and
Markwardt’s testimony that Huff consumed two “Jägerbombs” at the “other bar.” In the court’s
opinion, calling Quinn to testify would not have materially advanced Huff’s defense that he
consumed no more than four alcoholic beverages that day.
         The court also concluded that Long’s potential testimony would have had no additional
effect during the trial. Long was the second bartender at the Wagon Wheel Inn and, under Huff’s
trial testimony, would have seen Huff for only a short period of time during his second visit to
that bar. Because Huff and Wilhelms testified that he had only two beers at the Wagon Wheel
Inn, the district court concluded Long’s testimony would have agreed with Huff’s testimony at
best or it may have contradicted prior testimony.
         Finally, the court determined Huff’s claim that his trial counsel were ineffective because
they did not investigate a third Oxford bar, the Middle Bar, was meritless. The court found no
evidence in the record to establish that Huff had been at this third bar. Thus, even if he had
proved that he was not at a third bar, such a fact would not have established his innocence.
                            (b) Failure to Call Witnesses Who Would
                               Have Testified to Huff’s Demeanor
         The district court also denied and dismissed without an evidentiary hearing Huff’s claim
that his attorneys were deficient because they failed to call additional witnesses who would have
testified to his demeanor on the day of the accident. In so ruling, the court concluded that the
unnamed employees in the flower shop, the discount store, and the convenience store, along with
the man named “Whisky” and his girlfriend, would have provided only cumulative evidence.
The court noted that there was no dispute at trial as to Huff’s nondrinking activities that day and
that these witnesses’ potential testimony do not establish a probability sufficient to undermine
confidence in the outcome of the trial.




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                                II. ASSIGNMENTS OF ERROR
        Huff argues that the district court erred by dismissing these postconviction claims without
an evidentiary hearing. Specifically, Huff maintains that his trial counsel were ineffective by
failing to investigate and call witnesses who would have testified to the actual amount of alcohol
he consumed that day and by failing to investigate and call witnesses who would have testified to
his demeanor the day of the accident. He contends that his claims were sufficient to merit an
evidentiary hearing.
                                 III. STANDARD OF REVIEW
        A defendant requesting postconviction relief must establish the basis for such relief, and
the findings of the district court will not be disturbed unless they are clearly erroneous. State v.
Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
        Appellate review of a claim of ineffective assistance of counsel is a mixed question of
law and fact. Id. 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 the 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 decision. State v. Poe,
supra.
                                         IV. ANALYSIS
         Before addressing each of Huff’s assigned errors, we set out the framework for analyzing
an ineffective assistance of counsel claim on postconviction. A 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
Nebraska or federal Constitution. State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013). If a
postconviction motion alleges only conclusions of fact or law, or if the records and files in the
case affirmatively show that the defendant is entitled to no relief, the court is not required to
grant an evidentiary hearing. Id.
         A proper ineffective assistance of counsel claim alleges a violation of the fundamental
constitutional right to a fair trial. Id. To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, supra, 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. Marks, supra. An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. Id.
         In addressing the “prejudice” component of the Strickland test, a court focuses on
whether a trial counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair. State v. Marks, supra. To show prejudice under the prejudice
component of the Strickland test, there must be a reasonable probability that but for the
petitioner’s counsel’s deficient performance, the result of the proceeding would have been
different. State v. Marks, supra.




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                    1. FAILURE TO INVESTIGATE AND CALL WITNESSES AS TO
                           AMOUNT OF ALCOHOL HUFF CONSUMED ON
                                      OCTOBER 3, 2007
        Huff’s claim that his trial counsel were ineffective for failing to investigate and call
witnesses who could have testified to how much alcohol he consumed does not entitle him to
postconviction relief. Postconviction claims that trial counsel was ineffective for failing to call
particular witnesses may be dismissed without an evidentiary hearing when the motion does not
include specific allegations regarding the testimony which the witnesses would have given if
called. Id.; State v. Obley, 19 Neb. App. 26, 798 N.W.2d 151 (2011). As to Quinn and Long,
Huff alleges that these witnesses would have testified to the amount of alcohol he consumed at
each of their bars on the day of the accident. However, and critically, Huff does not specifically
allege what these witnesses would have testified to or whether they even possessed information
that would have been helpful to his defense. Thus, Huff has failed to make sufficient factual
allegations that would lead to a showing of his trial counsel’s deficient performance or prejudice.
        Further, Huff’s argument that his trial counsel should have investigated the Middle Bar
also fails. Our review of the record shows there was no evidence presented at trial to demonstrate
that Huff had even visited a third bar on the date of the accident. Therefore, any attempt to prove
that he was not in this bar would not have aided his defense. This assigned error is without merit.
                       2. FAILURE TO INVESTIGATE AND CALL WITNESSES
                              REGARDING HUFF’S DEMEANOR ON
                                       OCTOBER 3, 2007
         Huff also argues that his trial counsel were ineffective because they did not call certain
witnesses who could have testified that he was not showing signs of impairment on the day of
the accident. He claims that his counsel should have called employees from the flower shop, the
discount store, and the convenience store to establish his demeanor. He also states that a man
nicknamed “Whisky” and his girlfriend could have testified to their observation of Huff’s
demeanor in Oxford that day. In his motion, Huff focuses on utilizing these witnesses’ testimony
to establish a timeline of the events on that day.
         Having analyzed Huff’s claim and reviewed the record, we conclude that Huff cannot
demonstrate a reasonable probability that he would have been acquitted if his counsel had
investigated and called these witnesses. First, Huff’s use of these witnesses to establish a
timeline does not establish his innocence, because Huff’s timeline of events was not contradicted
at trial. Additionally, even if each of these witnesses would have testified that Huff did not
appear intoxicated, this testimony would still be opposed to the State’s evidence at trial. A
number of witnesses from the scene of the accident testified that Huff showed various signs of
intoxication after the accident, including slurred speech, stumbling, vomiting, glazed and
bloodshot eyes, and emission of a strong odor of alcohol. When the evidence from trial is
weighed against this potential testimony, we conclude that Huff cannot demonstrate that he
would have been acquitted but for his counsel’s failure to call these witnesses.
         The district court correctly denied this claim without an evidentiary hearing. This
assigned error is without merit.



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                                      V. CONCLUSION
       We conclude that the district court did not err when it denied these particular claims in
Huff’s motion for postconviction relief without an evidentiary hearing.
                                                                                     AFFIRMED.




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