State v. Huff, 25 Neb. Ct. App. 219

Background

Huff was convicted of motor vehicle homicide and related charges; after direct appeals (some convictions affirmed, one vacated), he filed a verified postconviction motion alleging ineffective assistance, trial-court error, and other claims.
The district court dismissed portions of the motion, granted an evidentiary hearing on others; Huff unsuccessfully appealed those dismissals before the evidentiary hearing on remaining claims.
Central factual dispute: during voir dire the judge and counsel conducted in-chambers (private) questioning of eight prospective jurors (several with prior DUI convictions) while Huff was not present; defense counsel were present and did not object on the record.
At the postconviction evidentiary hearing, trial counsel testified the in-chambers questioning was requested to avoid embarrassing jurors, they did not recall requesting Huff’s absence, and they consulted briefly with Huff afterward; Huff testified he would have participated and that absence prevented him from observing demeanor and giving input.
The district court denied Huff’s postconviction relief, finding (1) Huff waived or procedurally forfeited any direct-trial claim about the court’s in-chambers voir dire and (2) Huff failed to show prejudice from counsel’s failure to object to his absence. Huff appealed.

Issues

Issue	Huff's Argument	State's Argument	Held
Whether Huff may pursue a claim that the trial court violated his constitutional right by permitting in-chambers voir dire outside his presence	Court violated Sixth/14th Amendment right to be present; claim preserved	Claim was dismissed earlier and not timely appealed; thus waived/procedurally barred	Waived/procedurally barred; claim not properly before court
Whether trial counsel were ineffective for not objecting to Huff’s absence during in-chambers voir dire	Counsel were deficient and prejudice should be presumed or shown because absence impeded ability to observe juror demeanor and give input	Counsel acted reasonably (strategy to avoid embarrassing jurors); absence was inadvertent/intermittent and Huff cannot show prejudice	No ineffective assistance: even assuming deficiency, Huff failed to show reasonable probability of different outcome (no actual prejudice)
Whether prejudice is presumed under Cronic or similar doctrines	Huff argued surrounding circumstances justify presumed prejudice	State argued Cronic inapplicable; absence was not total denial of counsel nor a failure to test the prosecution	Presumed prejudice not warranted; Cronic circumstances not met
Whether intermittent absence from voir dire requires per se reversal or case-specific prejudice showing	Huff urged greater protection for presence at jury selection	State relied on precedent analyzing intermittent absences factually (no per se reversal)	Court applied case-specific analysis; required actual prejudice showing and found none

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient-performance and prejudice test for ineffective assistance of counsel)
Cronic, 466 U.S. 648 (circumstances in which prejudice may be presumed)
Kentucky v. Stincer, 482 U.S. 730 (defendant’s right to be present when presence relates substantially to ability to defend)
Snyder v. Massachusetts, 291 U.S. 97 (due process right to presence is not absolute; presence required when fairness would be thwarted)
U.S. v. Tipton, 90 F.3d 861 (4th Cir.) (intermittent absence from voir dire requires analysis of specific prejudice)
State v. Ross, 296 Neb. 923 (standard for reviewing postconviction proceedings)
State v. Alarcon-Chavez, 295 Neb. 1014 (postconviction review standards; issues known at trial may be procedurally barred)
State v. Fox, 282 Neb. 957 (defendant’s right to be present; waiver must be knowing and voluntary)
State v. Determan, 292 Neb. 557 (order denying evidentiary hearing on postconviction claims is final and appealable)