*1 property guage are based on of the statutes even agreements, long parties so as the or settlement have not writing. provided otherwise in above, we have stated the order and In view of what alimony terminating judgment of District Court affirmed, as modified above. must be
Affirmed modified. appellee, Nebraska, v. State appellant. Bishop, Kenneth T. appellee, Nebraska, v. State E. appellant. Larry Davis, appellee, Nebraska, State appellant. Yates, R. Darrell N.W.2d 43035, 43036, August Nos. and 43037. Filed 1980. Bishop. appellant P. Grant for John pro Larry Davis, se. E. Caniglia, Seminara, Turco, R.
James Sacoman McCarthy appellant & Sacoman Yates. Attorney Douglas, *2 General, L.
Paul and V. Jerold appellee. Fennell for C.J.,
Heard before Krivosha, Boslaugh, McCown, Clinton, Brodkey, White, and JJ. Hastings,
Hastings, J. appeal
Defendants the order of the District Court for County, Douglas Nebraska, which each denied of their post for motions conviction relief. We affirm. occurring In connection with armed robberies at two 15,1975, different locations Omaha on December each charged robbery defendant was with five of counts and five counts of of the use a firearm the commission of a felony. Additionally, charged the defendant Yates was shooting kill, wound, with one count of with intent to or maim. All three cases were for consolidated trial one and Douglas County public from the defender’s appointed represent office was all three defendants. Subsequent filing information, at- the torney representing the defendants filed motions of severance the defendants and for trials on the referring occurring counts to incidents at different transcript locations. The indicates that all motions were heard and overruled and that the three cases were ordered consolidated for trial. There is no record of the hearing proceeded details of the itself. The cases to trial to jury testimony by 3,1976, a on March and was adduced through 4,1976. the defendants’ 5,1976, State March On March the advised the made, had been and thereafter all three pleaded guilty robbery defendants one count of to two counts of and of a
the use firearm in the commission of a felony. remaining counts were dismissed. Each years defendant received a of 5 sentence to 8 on two robbery concurrently, counts, to run and sentence of 3 years remaining consecutively count, to 5 on to run robbery. the sentences for pro se, filed, an identical motion for Each defendant alleging insufficiency trial, evidence, incom-
new petency sentence, counsel, all of excessiveness of Only appealed and Yates his case which were overruled. by 9,1976, on under court December affirmed this was Neb. 27, 1978, mo- On identical Ct. R. 20-A. December judgment filed all of defend- to vacate tions (Reissue pursuant ants, § to Neb. Rev. Stat. 29-3001 post 1979). claim for conviction relief The basis of their guar- alleged of assistance of counsel as denial was anteed to the United States the sixth amendment evidentiary hearing, the District After an Constitution. sought. the relief Court denied hearing at the conviction consisted The evidence defendants, that of the of the assistant the the three represented who had them prior complete proceed- record including sentencing hearing. ings up to *3 prompted explaining him the which In circumstances plea bargain days reopen negotiations for a after “I to trial, thought the the defender said: assistant overwhelming. being thought I we were evidence was any daylight.” Therefore, he did couldn’t see buried. negotiate bargain prosecut- plea with the to undertake entering ing “pressured” into his clients the guilty, believing this that was their best against on than convicted all counts rather be interest them, a he then to be inevitable. fate believed you pressure
“Q. to And for what reason did them guilty? plead they consistently beginning Well,
“A. from the were demanding a trial. And of me that have there beginning the until from the end various discussions arrangements, negotiated plea bargain settlements, acceptable of them were to defendants. So at none nearly completed; point in where trial time was nearly say, finished, I case was is to State’s going to convinced there were be convictions all was way around.” reply question and circum- to the nature to a In applied, pressure the defense that was stances going my not three clients was “One of stated: anything, plead would not and the Court to to allow bargains, plea would the nor us to strike along attorney go re- that. All three were State’s quired plea or else there the same to enter into bargain. plea words, the one holdout In other no was to be join two, to we would be able or else to the other had negotiate Therefore, there the lawsuit. a settlement to brought man, pressure that one and was to bear on was brought brought to bear it was also me and to bear my other two clients.” testimony, point if when asked he felt in his
At another applied pressure to the defendants had been their there enter “Absolutely. replied: deputy public pleas, defendant ever think a criminal don’t pressure on some kind of without entered him.” were sub- that the defendants if he felt When asked pressure, replied jected duress, was and and that there he exchange place following him took between then the attorney representing Davis: the defendant in them at all at a fear “Q. there was feel that Do plea, than the fear of other entered the time that penitentiary? going going to No, that we were be all afraid
“A. we were pressure. If definite That is a all counts. convicted on — any duress, I of it. am not aware there there my Definitely pressure. the duress would be No to answer.” at the convic- testified the defendants Each of physical struggles hearing had verbal tion *4 during pendency among struggles of the themselves severance, Bishop for have asked “We testified: trial. particularly go wanting Yates, with to to trial — allegations, you know, that fact or the because place, supposedly if it was so this had robbed Yates myself place, Davis this he did rob that-it was robbery with a didn’t want to be burdened that he supposedly committed, if had he had committed it. We to it would have in felt ourselves been our best get separated.” interests to similarly: nothing “I Yates testified didn’t have evening, I I with the fellows that and felt that common should — my you counsel, I had own should have know. my At the time of court he couldn’t concentrate on best you my interest, know, time, counsel was weak at that get get I him which postpone tried to to me another counsel or I court several times because felt that at that — my very time obvious to he defense was weak. And he it was was him, I him because told several times. Which nobody brought up, it but wouldn’t see it.” Bishop together Davis testified that he and in an apartment simply at the time of arrest and that had put together police been stated that the Yates station. He light physical struggles had
three some nothing against “That because: say we didn’t have Yates to it, he done or didn’t do and we didn’t want to be going to court with him.” always
All three defendants testified had reason complete jury wanted finally agreed and the plead guilty
to to reduced counts was be- during constantly cause “all telling trial our try us it would be our best interest to to make a plea bargain, way I because there is no that can win this you.” According Bishop: trial for about I to “What understood it, us, and what our told that it is to the point right guilt now where or innocence doesn’t make thing right try difference, main to do now is to you possible, make as least time as because are get going nothing do, convicted. He said there is I can properly represent you, your couldn’t even now is to make a so best bet you. deal, that is the best I can do for He you going get deal, said don’t make a then are fifty, sixty years, hanging et cetera. So we were left like impression, that. Then with that which he he said could possibly get three-year us, sentences for made the deal.” *5 testimony public Further of the assistant accepting plea bargain, to the matter of relates as they becoming receptive “I think as follows: were as I they, too, was to the offer because were impressed with of the State’s witnesses. spot looking ... All four of are at us the same at the same they evidence, and think realized that we needed to take They helpful, they look this. another were were listening. They volunteering. posi- were not I was in the having negotiated tion of settlement.” to convince them about a primary upon The contention all three defendants appeal constitutionally-protected rights is that their effective assistance of counsel were denied when their court-appointed attorney ously represent contemporane- was directed to
the interests of all three codefend- joint representation, ants. The contention is that the inadequate repre- interest, its conflicts of resulted in sentation each man. According testimony, they to their were each under impression appointment sepa- that a motion for
rate counsel had been submitted denied filing record, however, court. The reveals previously trials, motions to sever and for as Unfortunately, nothing indicated. there is in the record just from which we can determine what was said at the hearings general simply on those motions. There is a hint colloquy discussion found in between the court and the assistant defender at the convic- hearing: tion [I]n connection with the motions to “The Court:... sever you give trials, individual the cases and recall those day. motions, I all think heard on one question of decision was based on the lack of Court’s you prejudice, prove pre- would be couldn’t joined together; judiced being correct, that’s isn’t it? “A. Yes. words,
“The Court: In other these defendants had told it, time, as I all the understood remember cor- guilty, rectly, sothere wouldn’t be were not guilt concerned; am I correct as far conflict my assumption? “A. Yes.” This court stated Jackson, State v. Stevenson & (1978), if a conflict of 264 N.W.2d
Neb. *6 representation of more than one in the arises interest defendant, conflict raises a mere existence such presumption prejudice In reversal is automatic. attorney represented case, in a two codefendants one joint intro- The confession of each defendant was trial. implicated the and each confession into evidence duced held conflict of interest on We other codefendant. behalf such as those case, In the instant no facts arose. appear in the record. upon Jackson, & to some extent Stevenson
Relied
(1942),
supra,
States,
counsel, but the Court refused to requiring a rule a defendant to show that a conflict prejudiced specific of interest him in some fashion. during Holloway, pretrial proceedings, However, in attorney representing the codefendants advised the trial judge amplified conflict, which was possibility“ may his assertion that ‘one or two of the defendants testify and, do, then will not be able to cross- examine them because I have received confidential “ judge responded, information from them.’ trial T ’’.The why you don’t know wouldn’t.’” Id. at 478. When that during exact situation arose observed position to the court that he was in a where he was unable to cross-examine the one defendant on behalf of the judge replied: this, others. To right “‘You have no ” your to cross-examine own witness.’ Id. at 479. In presented case, the instant no such situation was judge, develop during trial nor did it trial. pronouncement point by The most recent on this Supreme Cuyler Sullivan, United States Court is in (1980). lawyers case, S. Ct. In the same two *7 represented others, who, however, the defendant and two tried at were trials. The defendant Sullivan was tried, the first to be and the defense rested at the close of prosecution’s the The two case the and defendant was convicted.
lawyers gave conflicting accounts of the decision lawyer to rest Sullivan’s case. One said that he had encouraged testify prosecu- the defendant to because the very presented had tion remembered that a weak case. His cocounsel it was his desire that no defense be presented exposing because it would be the de- fense witnesses the other two trials. After reviewing opinions the States, from Glasser v. United supra, Holloway supra, Arkansas, and the Court said: granted Appeals “The Court of Sullivan relief because he multiple representation had shown that the in this case possible involved a possibility conflict of interest. We hold that the impugn
of conflict is insufficient a crimi- a of his In order to demonstrate violation nal conviction. rights, must a defendant establish Sixth Amendment adversely his of interest affected that an actual conflict lawyer’s performance.” Cuyler at 1719. summary, complaints by the the made defendants
In the of interest are same as are advanced as to conflict against guilt by i.e., of cases for consolidation by pressure association, or counsel code- exerted and plea bargain. accept an “all or none” There is fendants complaint made, indication, the nor that defendants’ no sentencing hampered present- single counsel was light. ing most favorable the defendants their accepting pleas guilty, Judge the of the time of At fully, meticulously, scrupulously protected Tesar by inquiry required rights their full into all of the areas guilty plea. accepting of He ascertained that the charged; knew with what defendants jury trial; were entitled to continue they proof, presumption of of understood burden right right compulsory process, innocence, of of cross- right against examination, self-incrimination, and the fully explained necessity consequences aof unanimous verdict. He plea, guilty possible i.e., the of their by judge was assured the defend- The trial sentences. practiced force, threats, had been ants that no or coercion against guilty produce pleas, them to and on several impressed upon that, them occasions guilt accept he not an would admission of charges. were not opinion, that, in their all assured the defendants they good had had advice and effective counsel. pleaded guilty quite apparent the defendants It is attorney probably get not them their could because acquitted interest, but due to conflict of because weight overwhelming presented the the evidence Perhaps this is best demonstrated State. public defender, who, in *8 of the assistant order statement to court, basis stated furnish my urged plea “I to stick three clients follows: I felt that because there were inherent eyewitness in the weaknesses identification having witnesses, State’s but after now seen most of including evidence, State’s all of the circumstantial my evidence, it is now clear to clients that the circum- adequate least, is, stantial evidence all to convict them on why changing the counts. That’s we are our minds.” Immediately following judge statement, that driving defendants, to one said “That’s what was you telling words, at. In other are me the three you you pleading committed, offenses that correct. are question
. . ?” That was addressed to each separately reply defendant from each. and drew an affirmative Finally, following testimony given by the conviction during post assistant proceeding: go you say you “Q. back, But let’s if had two lawyers things you other could be different and that represented Bishop could have Davis, either Mr. or Yates or assuming you your pick. me, would have had Tell sir— They pick.
“A. would have had their right, they pick, “Q. All fine, would have had their you you me, no makes difference. Tell do think as are sitting there in that witness chair at this time there were lawyers other two evidence came like it did on day, you 4,3, 1976, on that those March and 5 of do think that lawyers changed two other could have this case in any way? words, In other do think a still would have been struck? anything
“A. don’t think would have been dif- ferent.” establishing
The defendant has the burden of
a basis
proceeding,
for relief
findings
conviction
and the
denying
they
of the District Court in
such relief will
appeal
clearly
not be disturbed on
unless
are
er-
Halsey,
roneous. State
Neb.
Affirmed. Krivosha, C.J., dissenting. majority’s opinion respectfully from the
I must
dissent
practice
is, indeed,
I
that it
a better
in this case. believe
permit
counsel, when
each defendant
appears
requested,
separate
requested
in this case
and whereas
requested
denied, the
was
and
relief
counsel
granted.
in
v.
be
As we noted State
here should
Jackson,
624, 264
200 Neb.
Stevenson &
N.W.2d
representa-
(1978),
of
arises
a conflict
interest
defendant,
of
than one
the mere existence
tion of more
presumption
prejudice
a
of
such conflict raises
here that where not
is automatic.
believe
reversal
allege,
court-appointed
parties
but their
counsel
do
also
pres-
admits, that there
some conflict and that
was
brought
bear on the three defendants to enter
sure
pleas
guilty,
of
of
is sufficient evidence of conflict
there
granted
reason,
I would have
relief
interest. For
requested
trials in
cases.
and ordered new
these
White,
JJ.,
join in
this dissent.
McCown
Clinton,
J., concurring.
affirmatively
judgment.
record
concur
guilty
plea of the defendants entered a
shows that each
voluntarily
intelligently
it is
made and
which was
These
waive
contended otherwise.
prior
re
ineffective assistance
claims
constitutional
every-
or nolo contendere waives
A
counsel.
statutory,
charge, procedural,
or con
defense to
stitutional,
information does not state
than that the
other
Country,
509, 276
N.W.2d
v.
202 Neb.
crime. State
(1979);
(1976);
(1971).
Abramson,
135,
State