State v. Hudson

CONCLUSION
Upon due consideration of the court file in this matter, the
court finds that respondent voluntarily has stated that he know-
ingly does not challenge or contest the truth of the allegations
in the formal charges that he failed to address client matters,
failed to attend court hearings, and failed to preserve the iden-
tity of client funds and violated his oath of office as an attorney.
The court accepts respondent’s surrender of his license to prac-
tice law, finds that respondent should be disbarred, and hereby
orders him disbarred from the practice of law in the State of
Nebraska, effective immediately. Respondent shall forthwith
comply with all terms of Neb. Ct. R. § 3-316, and upon fail-
ure to do so, he shall be subject to punishment for contempt
of this court. Accordingly, respondent is directed to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2007) and Neb. Ct. R. §§ 3-310(P) and 3-323
within 60 days after an order imposing costs and expenses, if
any, is entered by the court.
Judgment of disbarment.
state of nebraska , appellee , v.
elmore Hudson, Jr ., appellant.
761 N.W.2d 536
Filed February 20, 2009. 	No. S-08-151.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective 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 perfor-
mance 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.
3. Constitutional Law: Right to Counsel. An ineffective assistance of counsel
claim alleges a violation of the fundamental constitutional right to a fair trial.
4. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance
182 	277 NEbRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

was deficient and that this deficient performance actually prejudiced his or
her defense.
5. ____: ____. The two-prong test for an ineffective assistance of counsel claim
need not be addressed in order. If it is easier to dispose of an ineffective-
ness claim on the ground of lack of sufficient prejudice, that course should
be followed.
6. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffec-
tiveness analysis is viewed with a strong presumption that counsel’s actions were
reasonable and that even if found unreasonable, the error justifies setting aside
the judgment only if there was prejudice.
7. Effectiveness of Counsel: Proof: Words and Phrases. In order to show preju-
dice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confi-
dence in the outcome.
8. Jury Instructions. If it becomes necessary to give further instructions to the
jury during deliberation, the proper practice is to call the jury into open court
and to give any additional instructions in writing in the presence of the parties or
their counsel.
Appeal from the District Court for Douglas County: peter
C. bataillon, Judge. Affirmed.
brian S. Munnelly for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
H eaviCan, 	C.J., 	WrigHt, 	C onnolly, 	gerrard, 	stepHan,
mCC ormaCk , and miller-lerman, JJ.
gerrard, J.
This is an appeal by Elmore Hudson, Jr., from the denial
of his motion for postconviction relief. The primary issue pre-
sented on appeal is whether Hudson was deprived of effective
assistance of counsel when his trial counsel failed to make a
motion for mistrial based on an allegedly improper communi-
cation between the judge and jury. We conclude that counsel’s
failure to move for a mistrial was not prejudicial and, therefore,
affirm the judgment of the district court.
FACTS
Hudson’s criminal trial for first degree murder and attempted
second degree murder began on September 30, 2002. Closing
STATE v. HUDSON 	183
Cite as 277 Neb. 182

arguments took place during the morning of October 8. In the
afternoon, instructions were read and the jury adjourned to
deliberate. The following morning, the jury submitted three
written questions to the court: “1. What happens if it is a hung
jury? 2. Can a spouse be required to testify against a spouse?
3. Can we read or have copies of statements (police report)?”
The court responded, “1. Cannot comment. 2. Cannot com-
ment. 3. In addition to live testimony you have been given
all of the evidence upon which you have to decide the case.”
At 2 p.m. the same day, the jury submitted a fourth question
which asked, “[D]o we all have to vote not guilty of 1st degree
murder before moving to second degree? Or can some of us be
undecided and move to the lesser degree?” At 2:35 p.m., the
court responded, “Refer to the instructions. Remember, your
final verdict on each count must be unanimous.”
After the jury informed the court that it had reached a ver-
dict, late in the afternoon of October 9, 2002, but before the
verdict was announced, Hudson’s trial counsel inquired about
a communication that had occurred between the trial court and
jury outside of his presence:
[Hudson’s counsel]: And the only other thing was,
apparently, someone in passing suggested to your bailiff
or inquired as to how long they had to deliberate or how
long they were supposed to deliberate, and at some point
the bailiff contacted the Court and went back and told
them basically you deliberate as long as the case lasted; is
that my understanding?
THE COURT: Well, what happened is the first ques-
tions that were posed by the jury included a question
about what happens if the jury is hung, which I told you
my comment was, I can’t comment on that. When that
question was delivered by my bailiff, [the jurors] won-
dered how long if they were — they would have to delib-
erate if they couldn’t reach a verdict, and I just told [the
bailiff] that a rule of thumb is generally at least the length
of time of the trial, but that’s not necessarily the hard and
fast rule. So that’s what that is about.
184 	277 NEbRASkA REPORTS

[Hudson’s counsel]: And I don’t think that question
was in writing, and that’s the only reason I wanted to
— that’s all I wanted to make a record of. That’s it.
THE COURT: No, it wasn’t. So that did occur.
At the evidentiary hearing on his motion for postconvic-
tion relief, Hudson submitted two exhibits. First he offered
the deposition of the trial court’s bailiff. After reviewing the
bill of exceptions, the bailiff stated she recalled being asked
the question about the length of deliberations; she testified, “I
— informally . . . went and asked the judge, [stating that the
jurors] want to know how long they have to deliberate. And he
said, well, generally it’s — it can be as long as the trial lasted.
And so I must have gone back and repeated that answer to the
jurors.” The bailiff also stated that it would have been inap-
propriate for her to answer the question regarding the length
of deliberations because it was not a standard administrative
question. The bailiff testified that she felt the question needed
to be answered by the trial judge.
The deposition of Hudson’s trial counsel was also sub-
mitted, 	and 	he 	testified 	regarding 	the 	alleged 	improper
communication:
At some point [in] the day the jury announced its verdict,
[and] I was advised by the judge’s bailiff . . . that one
of the members of the jury upon returning from lunch
had inquired as to how long the jury would be required
to deliberate. She indicated to me that she told the juror
that she would then go and ask the judge in response to
that question.
She then went and asked the judge, who indicated or
who directed [the bailiff] to tell [the jurors] something
along the lines of they have to deliberate generally as long
as it took to try the case. I think I found this — that this
— so she went and did that. She went and told the jury or
that juror who asked the question that answer.
I don’t think I found that out until the jury had actu-
ally reached its verdict and I had come over from my
office . . . .
STATE v. HUDSON 	185
Cite as 277 Neb. 182

The verdict was rendered at 4:37 p.m. on October 9, 2002.
Hudson was convicted of first degree murder, attempted sec-
ond degree murder, and two counts of use of a deadly weapon
to commit a felony. On October 21, Hudson moved for a
new trial through his trial counsel. Hudson sought a new trial
based, in part, on the allegedly improper and prejudicial
communication between the court and the jury regarding the
possible length of deliberations. The court found that the com-
munication did not prejudice Hudson and overruled the motion
for a new trial.
Hudson’s trial counsel represented him on direct appeal.
Among other issues raised, Hudson claimed that the dis-
trict court erred in denying his motion for a new trial based
upon an alleged improper communication between the trial
judge and jury concerning the length of time for delibera-
tions. We affirmed the conviction on direct appeal, rejecting
Hudson’s judicial misconduct claim because Hudson’s trial
counsel failed to move for a mistrial before the verdict
was announced.1
Following our resolution of the direct appeal, Hudson filed
a pro se motion for postconviction relief in the district court.
In his motion, Hudson alleged, among other things, improper
communication between the trial judge and the jury. Without
stating its reasons or conducting an evidentiary hearing, the
district court denied Hudson’s claims for postconviction relief.
On appeal, we noted that Hudson’s claim was not procedurally
barred because Hudson was represented by the same attorney
at trial and on direct appeal.2 We determined that the district
court erred in denying Hudson’s claim for postconviction relief
without an evidentiary hearing. We reversed, and remanded the
cause with directions to hold an evidentiary hearing on ineffec-
tive assistance of counsel.3
After the evidentiary hearing, the district court granted
Hudson’s motion for postconviction relief with respect to the
1 State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).
2 State v. Hudson, 270 Neb. 752, 708 N.W.2d 602 (2005).
3 Id.
186 	277 NEbRASkA REPORTS

manner in which the trial court awarded credit for time served
at his sentencing, and that subject is not at issue in this appeal.
The district court overruled the motion, however, as to all other
grounds. Hudson appeals.
ASSIGNMENTS OF ERROR
Hudson assigns that the district court erred in determin-
ing that the trial court’s communication to the jury was not
prejudicial to the extent that Hudson was denied a fair trial and
that therefore, trial counsel was ineffective in failing to file a
motion for mistrial so as to preserve the issue for appeal.
STANDARD OF REVIEW
[1,2] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.4 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.5 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,6 an appellate court
reviews such legal determinations independently of the lower
court’s decision.7
ANALYSIS
Hudson asserts that the district court erred in denying his
ineffective assistance of counsel claim. Hudson argues that
trial counsel should have filed a motion for mistrial based on
an improper and prejudicial ex parte communication between
the judge and jury. We conclude that the district court did
not err in denying Hudson’s motion for postconviction relief
alleging ineffective assistance of counsel, because the ex parte
communication was not prejudicial, and therefore, a motion for
mistrial would not have affected the outcome of this case.
4 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
5 State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
7 Moyer, supra note 5.
STATE v. HUDSON 	187
Cite as 277 Neb. 182

[3-6] An ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair
trial.8 We have explained that to prevail on a claim of ineffec-
tive assistance of counsel under Strickland v. Washington,9 the
defendant must show that counsel’s performance was deficient
and that this deficient performance actually prejudiced his or
her defense.10 The two-prong test for an ineffective assistance
of counsel claim need not be addressed in order. If it is easier
to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, that course should be followed.11 The
entire ineffectiveness analysis is viewed with a strong presump-
tion that counsel’s actions were reasonable and that even if
found unreasonable, the error justifies setting aside the judg-
ment only if there was prejudice.12
[7] Following Hudson’s conviction, trial counsel failed to
make a motion for mistrial after being informed of an ex parte
communication between the trial court and the jury. Assuming,
without deciding, that trial counsel’s failure to move for a
mistrial was deficient, we examine the second prong of the
Strickland test, whether such inaction prejudiced Hudson. In
order to show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient perform-
ance, the result of the proceeding would have been different.13
A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.14 Thus, Hudson can only show
prejudice if a motion for mistrial based on the ex parte com-
munication would have been successful.
8 State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
9 Strickland, supra note 6.
10 Moyer, supra note 5; State v. Molina, 271 Neb. 488, 713 N.W.2d 412
(2006).
11 State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000); State v. Smith,
256 Neb. 705, 592 N.W.2d 143 (1999).
12 State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
13 State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
14 Miner, supra note 8.
188 	277 NEbRASkA REPORTS

In the case at hand, an ex parte communication took place
at the direction of the trial court between the bailiff and
the jury. As pertinent, Neb. Rev. Stat. § 25-1116 (Reissue
2008) provides:
After the jur[ors] have retired for deliberation, if there
be a disagreement between them as to any part of the
testimony, or if they desire to be informed as to any part
of the law arising in the case, they may request the offi-
cer to conduct them to the court where the information
upon the point of law shall be given, and the court may
give its recollection as to the testimony on the point in
dispute in the presence of or after notice to the parties or
their counsel.
[8] We have stated that if it becomes necessary to give fur-
ther instructions to the jury during deliberations, the proper
practice is to call the jury into open court and to give any addi-
tional instructions in writing in the presence of the parties or
their counsel.15 Clearly, that procedure was not followed in this
case, although it should have been. but that does not mean that
a motion for mistrial based on the trial court’s error would have
been properly granted.
We have reviewed ex parte communications on several other
occasions. In State v. Bodfield,16 we recognized the principle
that a trial judge must not coerce a verdict or intimidate a
jury. In that case, at the trial judge’s direction, the clerk of the
court informed the jurors, ex parte, of inclement weather and
gave jurors the option of continuing deliberations or returning
2 days later. We determined that that communication was nei-
ther an instruction on the substantive issues of the case nor an
attempt to coerce or accelerate deliberations to a verdict. We
concluded that the communication did not rise to the level of
coercion or intimidation.17
15 State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
16 State v. Bodfield, 228 Neb. 205, 421 N.W.2d 794 (1988).
17 Id.
STATE v. HUDSON 	189
Cite as 277 Neb. 182

In State v. Thomas,18 we again addressed an ex parte com-
munication between the judge and jury. In Thomas, on the
second day of deliberations, the jury foreman sent a note to
the trial judge stating that the jury was deadlocked. Outside
the presence of the parties or their counsel, the trial judge
told the jury to continue deliberating because it was too soon
to abandon the effort to reach a verdict. On appeal, we deter-
mined that the communication between the trial court and the
jury merely directed the jury to continue its deliberations. We
concluded that the direction did not have a tendency to influ-
ence the verdict.19
And recently, in State v. Floyd,20 we addressed an ex parte
communication between a bailiff and jury. In Floyd, we deter-
mined that a bailiff’s ex parte communications to a jury
regarding the potential length of deliberations went beyond
simple administrative matters and, thus, resulted in miscon-
duct.21 We concluded that the bailiff’s improper communication
with jurors, in which the bailiff stated that the jurors would
be required to deliberate the rest of the week, prejudiced the
defendant and denied him a fair trial.
Hudson likens this case to Floyd, arguing that the ex parte
communication was prejudicial. Hudson’s reliance on Floyd,
however, is misplaced because Floyd is distinguishable in two
significant ways. First, in Floyd, the bailiff alone was respon-
sible for the improper communications with the jury. Here,
the bailiff referred the juror’s question regarding the length
of deliberations to the judge and merely repeated the judge’s
response. Second, the communication in Floyd was coercive
and prejudicial. In Floyd, the jury was ordered to return to
deliberations after it was determined that the jury’s verdicts
were not unanimous. The communication was made to the
18 State v. Thomas, 262 Neb. 985, 637 N.W.2 632 (2002).
19 Id.
20 State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved
on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727
(2007).
21 Id.
190 	277 NEbRASkA REPORTS

juror who was known to be the lone dissenting juror. Either
directly or indirectly, the communication focused on the poten-
tial effect that the juror’s continued dissent would have on the
length of deliberations.
In this case, however, the communication to the jury was not
coercive and would not have pressured the average juror during
deliberations. Although the trial court suggested a time limit
for jury deliberations, there is nothing in the court’s remarks
suggesting that the jury could not take all of the time it needed
in reaching a verdict. And nothing in the court’s communica-
tion expressed its views concerning the facts, or the guilt or
innocence of Hudson. It is not clear from the record that at the
time of the communication, the jurors were unable to agree
upon a verdict. And the jury deliberated for an additional 4 to
5 hours after the communication.
Taken as a whole, the record shows that although the com-
munication was improper, trial counsel’s failure to move for a
mistrial was not prejudicial. Hudson has not demonstrated that
the communication was improper to the extent necessary to
have warranted the granting of a mistrial.
Hudson also relies on State v. Mahlin22 for the proposition
that a new trial is required if the record does not affirmatively
show that an ex parte communication had no tendency to
influence the verdict. While Mahlin correctly states the rule
governing communication between a trial court and jurors,
Mahlin, as a direct appeal, required a different burden of
proof. As we explained above, to prevail on a claim of ineffec-
tive assistance of counsel in this case, Hudson must show that
counsel’s performance was deficient and that this deficient
performance actually prejudiced his defense.23 Hudson has
failed to do so.
Despite his assertions to the contrary, Hudson has not
shown that he was prejudiced in the defense of his case by
trial counsel’s failure to move for a mistrial. And because
Hudson failed to establish he was prejudiced, we do not
22 State v. Mahlin, 236 Neb. 818, 464 N.W.2d 312 (1991).
23 Moyer, supra note 5; Molina, supra note 10.
STATE v. HUDSON 	191
Cite as 277 Neb. 182

need 	to 	address 	whether 	his 	trial 	counsel’s 	performance
was deficient.24
CONCLUSION
Although communication between the trial judge and jurors
should always take place with the parties and their counsel
present (unless waived), the record before us does not affir-
matively show that the communication in this case warranted
a mistrial. Thus, Hudson failed to meet his burden of proving
that he was prejudiced by alleged ineffective assistance of
counsel. The judgment of the district court is affirmed.
affirmed.
24 See State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), disapproved
on other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
state of nebraska , appellee , v.
miCHael J. sims , appellant.
761 N.W.2d 527
Filed February 20, 2009. 	No. S-08-432.
1. Postconviction. Whether a claim raised in a postconviction proceeding is proce-
durally barred is a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
3. Postconviction: Constitutional Law. The Nebraska Postconviction Act, Neb.
Rev. Stat. § 29-3001 et seq. (Reissue 2008), is available to a defendant to
show that his or her conviction was obtained in violation of his or her constitu-
tional rights.
4. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
5. Postconviction: Appeal and Error. An appellate court will not entertain a suc-
cessive motion for postconviction relief unless the motion affirmatively shows
on its face that the basis relied upon for relief was not available at the time the
movant filed the prior motion.
6. Criminal Law: Judgments: Records. A court has inherent power in a criminal
case to correct its records to reflect the “truth,” nunc pro tunc.
7. Judgments. Neb. Rev. Stat. § 25-2001(3) (Reissue 2008) states that clerical mis-
takes in judgments, orders, or other parts of the record and errors therein arising
192 	277 NEbRASkA REPORTS