State v. Malone
308 Neb. 929
| Neb. | 2021Background
- In 2016 Malone ran a red light and collided with Justin Hart’s motorcycle; Hart died. Malone was convicted (motor vehicle homicide, manslaughter, leaving the scene, driving without an ignition interlock) and sentenced to 40–50 years; direct appeal affirmed.
- Malone alleged the official bill of exceptions omitted three cross‑examination exchanges; he sought the audio and sought to amend the bill.
- While his postconviction appeal was pending, Malone filed a verified postconviction motion alleging ineffective assistance of counsel (trial and appellate) and prosecutorial misconduct; the district court denied relief without an evidentiary hearing.
- Malone applied to the Court of Appeals for a remand under Neb. Ct. R. App. P. §2‑105(B)(5) to amend the bill of exceptions; the Court of Appeals ordered a §2‑105(B)(5) hearing but said the case was not remanded. The district court denied amendment after hearing.
- The Supreme Court consolidated Malone’s appeals, reviewed procedural compliance and the postconviction claims, and affirmed the district court’s denials.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Malone) | Held |
|---|---|---|---|
| Whether the bill of exceptions may be amended by the procedure Malone used | §2‑105(B)(5) requires motions to amend be filed in district court; Court of Appeals lacked authority to order a partial remand | Bill of exceptions omitted exchanges; Court of Appeals’ ordered hearing was proper remedy | Malone failed to follow §2‑105(B)(5) (must move in district court); procedure he used was improper, so merits not considered |
| Whether counsel had an actual conflict of interest (familial tie to victim) | No actual conflict: relation was distant, no evidence counsel’s loyalty was divided; any conflict was waived by Malone in court | Counsel was related to victim and avoided lines of defense to avoid upsetting the family; presumption of prejudice should apply | No actual conflict shown; relation was distant and no adverse effect proven; Malone waived any conflict in open court; no presumption of prejudice |
| Whether trial counsel was ineffective for not asserting Hart’s negligence as sole proximate cause | Hart’s defensive act of laying down motorcycle was not sole proximate cause; Malone’s conduct precipitated the danger | Hart’s actions were the superseding/sole proximate cause; counsel should have presented expert reconstruction | Hart’s defensive reaction was foreseeable and not sole proximate cause; claim fails Strickland prejudice prong |
| Whether prosecutorial misconduct / Brady violations occurred (withheld video/clothing, misstated evidence, improper comments) | Evidence was not withheld (video and clothing were in record or known); challenged statements were reasonable inferences or supported by testimony; any disputed statements not in bill of exceptions | The prosecutor withheld impeachment/exculpatory evidence and misstated facts; comments undermined Malone’s right to fair trial | Claims were unsupported by the record or procedurally barred; alleged withheld items were not shown withheld; challenged argumentation was permissible inference; no prejudice shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: deficient performance and prejudice)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose exculpatory and impeachment evidence)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (actual conflict of interest doctrine for Sixth Amendment claims)
- Millennium Laboratories v. Ward, 289 Neb. 718 (2014) (interpretation of Neb. Ct. R. App. P. §2‑105(B)(5) on amending bills of exceptions)
- State v. Avina‑Murillo, 301 Neb. 185 (2018) (analysis of personal‑interest conflicts and when presumption of prejudice arises)
- State v. Dyer, 245 Neb. 385 (1994) (bill of exceptions imports verity once certified)