State v. Beehn, 303 Neb. 172

Background

On Nov. 24, 2012, Jordan Beehn shot Jorge Zepada during a bar fight; Jorge was permanently paralyzed. Beehn was arrested and later sent a jail letter urging his wife to change her story and find/pay witnesses, prompting tampering and bribery charges.
Beehn was represented sequentially by private counsel Charles Balsiger, public defender Kyle Melia (briefly), then private counsel Craig Martin and Dennis McCarthy. He pled no contest in Dec. 2013 to first-degree assault and tampering with a witness; other charges were dismissed.
Sentenced to concurrent terms resulting in an effective 50–50 years’ imprisonment. The Court of Appeals summarily affirmed on direct appeal (claim of excessive sentence).
Beehn filed a postconviction motion alleging ineffective assistance of trial and appellate counsel for: not advising available defenses (self-defense/defense of others), failing to warn that pleas waive appeals of pretrial rulings, inadequate investigation/depositions of witnesses, incorrect advice about spousal privilege, and appellate counsel’s failure to raise those claims or meet with him.
The district court held an evidentiary hearing, found trial counsel credibly advised Beehn of potential defenses and the risks/limitations; counsel investigated witnesses (some interviews were unhelpful or detrimental); counsel warned Beehn not to discuss the case and that spousal communications likely were not privileged; appellate counsel was not prejudicially deficient. Postconviction relief was denied.

Issues

Issue	Plaintiff's Argument (Beehn)	Defendant's Argument (State / Counsel)	Held
Whether trial counsel failed to advise Beehn of self-defense / defense-of-others defenses	Counsel told him no such defenses were available; he would have gone to trial if advised properly	Counsel testified they discussed these defenses but advised they were unlikely to succeed given facts, inconsistent statements, and claim the gun may have discharged accidentally	Court: Counsel did advise; defenses unlikely to succeed; no deficient performance or prejudice
Whether counsel failed to advise that pleas waive appeals from pretrial rulings	Was not told pleas would waive appeal rights on pretrial rulings	Martin and McCarthy testified they explained rights waived by plea including inability to appeal pretrial rulings	Court: Counsel did advise; claim without merit
Whether counsel failed to investigate/ depose witnesses adequately	Counsel did not depose or interview potentially favorable witnesses (including 10 later jail witnesses)	Counsel/deputy investigators interviewed witnesses; many were unhelpful or detrimental; some were jailhouse witnesses located by State; surveillance efforts were made but unsuccessful	Court: Counsel conducted reasonable investigation; no prejudice shown
Whether counsel misadvised about spousal privilege (communications were privileged)	Counsel told him communications with wife were privileged and could not be used	All attorneys testified they warned Beehn not to discuss case and that spousal privilege likely did not apply; contemporaneous jail call corroborates counsel’s warning not to talk	Court: Counsel warned him; claim contradicted by record; no ineffective assistance
Whether appellate counsel was ineffective for not raising trial-ineffectiveness claims or for failing to meet	Appellate counsel failed to raise claims and did not meet with him	Appellate counsel reviewed record, met (via deputy) with Beehn, believed ineffective-assistance claims lacked merit and focused on excessive sentence; district court allowed postconviction hearing so no prejudice occurred	Court: Even assuming deficiency, no prejudice; claim fails

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
State v. McGuire, 299 Neb. 762 (standard of review for ineffective assistance claims and postconviction factfinding)
State v. Haynes, 299 Neb. 249 (postconviction relief is narrow; remedies for constitutional violations)
State v. Allen, 301 Neb. 560 (postconviction and related principles)
State v. Yos-Chiguil, 281 Neb. 618 (considerations in plea-based ineffective assistance prejudice analysis)
State v. Barrera-Garrido, 296 Neb. 647 (requirement for objective evidence to show defendant would have insisted on trial)
State v. Armendariz, 289 Neb. 896 (interpretation of Nebraska justification statutes)