*1 follows: through usually occur short, do not results
In similar result of a similar causes; recurrence and the abnormal (increasingly tends act) shape an unlawful (here inadvertence negative accident or instance) with each state, mental innocent good faith or self-defense least, though not (provisionally, tends to establish criminal, normal, i.e., intent certainly) act; of each the force accompanying such vary kind of in each will instance additional repeated, could be that the act according probability circumstances, with given time and under within a limited intent. an innocent case, in this indicates, defendant majority opinion
theAs missing claimed deposits, about when confronted weekend’s made last wrong, because must be bank “[t]he evidence Monday.” my opinion, deposit motive, proof admissible as prior offense defendant’s mistake or accident. intent, plan, and absence J., joins in this dissent. Hastings, Nebraska, appellee, Noel J.
State appellant. 395N.W.2d 538 86-047. Filed 1986. No. October Keefe, County Defender, R. Dennis Lancaster Public for appellant. General, Spire, Attorney Ugai,
Robert M. and Susan M. *2 appellee. C.J., White,
Krivosha, Boslaugh, Hastings, Caporale, Shanahan, Grant, and JJ.
White, J. appeal This is from the district court for Lancaster County Heathman, appellant, charged which the Noel J. was escape. Appellant guilty with one count of was found and Department sentenced of Correctional Services for a period 18of months. assignments may
Appellant’s of error be summarized as (1) overruling The trial appellant’s follows: court erred change motions for due pretrial publicity; (2) venue to The requiring court erred in the appellant to remain in trial; during overruling The court erred in appellant’s prosecutorial motion for mistrial due to misconduct statements; and failing court erred in to instruct the elements of the offense of are escape from official detention after conviction for the commission an offense.
The facts are During preliminary hearing, as follows. a counsel for the change moved for a of venue on the pretrial publicity basis of the had received. Newspaper clippings of the were offered and received into evidence. The motion was denied on the basis that there had been an showing prejudice justify insufficient survey of venue. There had been potential jurors, no nor, eyes court, any in the of the publicity given more given than alleged that criminal activities.
During examination, the voir dire the motion was renewed. judge permitted appellant’s trial counsel to voir dire jurors potential groups potential of six. While several of the jurors hearing reading something remembered about the could be a he or she that person stated escape, each change of venue was motion for juror. The impartial fair and pass refused renewed, counsel for again been shown juror no had held that The court panel for cause. guilt of as to the opinion expressed an formed or have stated panel members although some incident, knowledge was their knowledge of the had juror pledged importantly, each More vague and indefinite. again The trial court verdict. impartial render a fair and change of venue. overruled the motion requiring the the court’s order objected to Appellant next jury. leg irons when appellant to wear response, the court stated: charge and his considering the nature
I think intentions, know what other alternative I don’t security. you Do have really provide for there is to one, two, three, four doors into the suggestions? We have about, talking if we were to suppose I we’re courtroom. away, suppose we’re get bolt and make sure he could not *3 minimum talking almost of six individuals as about a leg got is he’s the guards. suppose the alternative on. looks like an alternative is the courtroom any suggestions? you have camp. I don’t know. Do
armed Well, know that the courtroom MR. KEEFE: I don’t camp. like an armed has to look him you want to chain to the THE COURT: Do something? I don’t know. window or to be removed but permitted The court the arm shackles required Heathman to remain in irons.
Next, during opening moved for mistrial appellant prosecutor in comments made the statements as a result of made reference to the fact that his remarks. The State after escape Heathman was incarcerated at the time of his regard After kidnaping. some discussion conviction for remarks, the court denied the relevance of counsel’s and, request of the for mistrial at the appellant’s motion reference jury admonished prosecutor, totally and should be prior offense was irrelevant disregarded.
Finally, counsel for the contends that the trial court failing jury erred in to instruct the that the elements of the include official detention after conviction for commission of an offense. The was instructed: “On or day about the September, 9th County, 1984 in Lancaster Nebraska, defendant, Heathman, Noel unlawfully remove himself from official detention.” Counsel for the appellant argued language “following conviction for the commission of an offense” must be included in the instruction as an essential element of the crime of under Neb. Rev. Stat. (Reissue 28-912 1985). The trial § court held Schneckloth, that under State Koger, 313 N.W.2d (1981), language at issue would go only penalty phase and, proceedings therefore, of the should not be included in the instruction on the essential elements of the crime We affirm.
Addressing appellant’s error, first contends that he was denied a fair impartial jury due to the pretrial extensive publicity his received. We have often repeated, recently Irish, most in State v.
N.W.2d 137 (1986), that a motion change of venue is addressed to the sound judge discretion of the trial and will not be disturbed appeal absent an abuse of discretion. Looking dire, to the record of the voir we find no abuse of discretion. Ell, In State v. we set analysis out an of the factor’s to be taken into account in the consideration of a motion for They venue. include: (1) the nature publicity; degree to which the publicity has throughout circulated community; (3) the degree to which publicity has circulated to areas to which venue changed; could be length of time between the dissemination publicity trial; and the date of the (5) the care exercised and the ease encountered in the selection of the *4 jury; (6) severity charge; the size of the area which from venire is drawn.
Applying analysis the Ell hand, to the facts of the case at publicity note that the centered around the method of the escape and the escape upon effects of the prison, not
23 defense counsel himself. upon primarily respect groups of six jurors in potential examined the only panel, 24 on publicity. Of pretrial issue of case, and their something about hearing 12 recalled remember could None vague and indefinite. knowledge was 240, 175N.W.2d 87 Kirby, 185Neb. specific details. See himself to commit panel was able member of the (1970). Each None had impartial verdict. rendering a fair and or herself to guilt. to the defendant’s opinion as formed must show venue the defendant To secure a fair and to secure impossible it publicity has made pretrial 465, Fallis, Neb. v. 205 jury. State impartial 132, 724 It is Rife, 215 Neb. (1980); State v. ignorant of the facts completely jurors be required that not lay aside jurors are able the case. It is sufficient solely a verdict based opinions and render impressions or their Navarrete, 221 Neb. v. at trial. State evidence adduced upon the 213, Torrence, 219 171, (1985); State v. N.W.2d 8 1127, 43 928, 95 Ct. U.S. S. cert. denied 420 N.W.2d assignment of merit in this (1975). We find no Ed. 2d 399 L. error. upon the error centers second remain in that Heathman requirement
trial court’s the record jury. An examination while in means the least restrictive trial court chose clear that the makes 81, Weikle, v. In State available. to the case at hand. very similar faced circumstances
(1986), we
in the courtroom
inmate witnesses
there were
In Weikle
expressed an intent to
had
appellant there also
testify, and the
court to be both
There,
of the trial
we held the action
safety
involved.
of all
prudent to ensure the
reasonable
(1923), this
State,
N.W. 684
v.
In South
shackles
be free from
a defendant should
court held that
necessary
prevent
unless
are
prosecution
a criminal
Weikle,
every practice
not
we noted in
escape. As
violence
down. Estelle
the accused must be struck
single out
that tends to
history, require we can find no error in the court’s decision to during remain shackled the course the trial. appellant argues that the placed trial court the burden why upon shackled, him to demonstrate he should not be placing upon instead of the burden the State to demonstrate why disagree. he should be shackled. We dialogue In the with counsel, defense the court recited the considerations it felt required shackling the and invited defense counsel to refute unfairly those considerations. No burden placed was on the appellant. The action of the district court was correct.
Focusing upon appellant’s error, third the trial grant court’s refusal to ground a mistrial on the prosecutorial misconduct, again we find no error the court’s action. Exactly by what prosecutor known, was said is not as the opening reported. statement agree was not All seem to remark addressed appellant itself to the status of and the crime for which he above, was incarcerated. As was noted proper by curative measures were taken the trial court. The two cases by appellant cited critically his brief differ from the case State, at hand. In Stennett v. 2d (Ala. So. 1976), no by curative were measures taken the trial court after the by told was State in remarks that it was about to selling marijuana. hear a case about the defendant’s In State v. Boss, prosecutor prior made reference to the defendant’s conviction. There was mistrial, objection, no motion for request cautionary instruction. trial,
At evidence was introduced to show that Heathman incarcerated, was that escaped, he and that he subsequently was penitentiary by returned to the an officer Department Services, Correctional apprehension after in California. Evidence was adduced to show that the had been inmate, committed and was an after commitment Department Services, of Correctional on the date of Evidence established that Heathman had no permission to be absent from penitentiary on that date. A witness testified to observing persons climbing two along the outside wall on the date of the escape. Testimony also established that date not in his cell a count of the inmates on that 19,1984. being was absent until returned on December light overwhelming evidence adduced trial say escape, reference to the facts of the cannot any way prosecutor’s prejudiced Heathman was in Gregory, remarks. State v.
(1985). A motion for mistrial will be addressed to the sound discretion, of the trial an abuse of that discretion court. Absent ruling appeal. trial court’s will not be disturbed *6 Ammons, (1981). Appellant has showing prejudiced not met his burden of that he was this LeBron, alleged N.W.2d error. State v. (1984).
Appellant’s assignment final of error involves the court’s regard escape. to the elements of the crime of instruction argues Appellant escaped that the instruction that he from official detention have been an from official should detention after the conviction for the commission of an offense. This of error centers around the case of State v. Schneckloth, Koger, government appellants there contended that the allege proper kidnaping
did of the crime of not elements justify Specifically, the convictions. the informations were allege that the victim was liberated defective not There, argument rejected appellants’ alive. that Neb. (Reissue 1985) Rev. 28-313 set out two different Stat. § offenses, was liberated alive and one in one in which the victim Focusing upon the which the victim was not. statute which governs kidnaping, (1) the crime we noted that subsection offense; (2) penalty; sets out the basic defines the subsection factor, mitigating the liberation of and subsection sets out a victim, which, permits sentencing applicable, live if court Appellant contends that our impose a lesser sentence. in Schneckloth was interpretation kidnaping statute reasoning be cannot used in the case erroneous and same Schneckloth, disagree. court stated in the view hand. We As this only one offense is the better kidnaping statute defines supported by the case approach and the view which is reasoned interpretation. We to that law. adhere contention that the for the support We find no in which the offenses: one separate statute defined two in which the official detention and one escaped defendant from after conviction for escaped from official detention defendant reads: of an offense. Section 28-912 the commission unlawfully escape if he removes person A commits return official from official detention or fails to himself following granted specific temporary detention leave for a detention shall mean purpose period. or limited Official arrest, any facility transportation detention in or for custody charge under or conviction of crime or contempt persons alleged delinquent, or or found to be deportation, detention for extradition or or purposes; detention for law enforcement but official supervision probation detention does not include parole or constraint incidental to release on bail. A
(2) public servant concerned detention commits an knowingly Any if permits person he an knowingly who causes or facilitates commits a felony. Class IV
(3) Irregularity bringing maintaining about or detention, jurisdiction or lack of committing detaining authority prosecution shall not be a defense to under prison this section if the is from a or other *7 facility custodial or pursuant from detention proceedings. commitment official In the case of other detentions, irregularity jurisdiction or lack of shall be a only defense if:
(a) escape The involved no substantial risk of harm to person property anyone detainee; or other than the (b) detaining authority good not act in faith under color of law.
(4) Except provided section, as in subsection of this escape felony. is a Class IV
(5) Escape felony is a Class III where: (a) The detainee was under arrest for or detained on a felony charge following or conviction for the commission offense; of an or threat, force, deadly weapon, or
(b) employs The actor instrumentality escape; to effect the dangerous in detention of (c) public A servant concerned permits purposely convicted of crime facilitates facility transportation escape from a detention or from thereto. and, opinion escape
In statute defines one offense as our statute, which, present, if kidnaping does the sets out factors simply change range penalty. statute is statute, structurally kidnaping prior similar to the E.g., State interpretations support of 28-912 this conclusion. § 670, Schlothauer, (1980); 206 Neb. State v. White, Coffman, (1981); State v. 209 Neb. N.W.2d 727 summary, has not shown that above judgment claimed errors are meritorious. The and sentence are affirmed. Affirmed. J., concurring in the C. result.
Krivosha, by majority I concur in the reached in this case. I result however, it separately, write because I do not wish to be agree general charged rule one with understood that that as a should be the trial. For reasons more shackled Weikle, fully my set out in dissent in State v. charged I do not believe that one
escape should be evidence shackled absent that the defendant try intends to from court and there is no other restraining reasonable him. method of In the instant Heathman was found outside the case walls of Weikle, prison. supra, Unlike the facts overwhelming shackling evidence this case was so Where, however, prejudice Heathman could not his case. occurred, evidence is not clear that an has as was the case Weikle, shackling simply supra, in State v. the defendant sends which, view, message my prejudicial is to the rights. prejudiced by defendant’s Because Heathman was not majority’s shackling, I conclusion that the concur judgment and sentence should be affirmed.