STATE OF NEBRASKA, APPELLEE, V. JOHN EDWARD RUST, ALSO KNOWN AS JOHN DEWITT, APPELLANT.
No. 43019
Supreme Court of Nebraska
March 20, 1981
303 N.W.2d 490
Pаul L. Douglas, Attorney General, and J. Kirk Brown for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This case is now before this court appealing the denial of a motion for post conviction relief. On February 2, 1977, this court affirmed the jury verdict convicting the defendant, John E. Rust, of felony murder and the decision of a three-judge panel sentencing him to death for that murder. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977). Defendant cited as the basis for vacating and setting aside his conviction and sentence that he had had prejudicially ineffective assistance of trial counsel; that he was entitled to the benefits of
Defendant assigns as error the following: (1) The finding of the trial court that the Nebraska death penalty law does not violate the eighth and fourteenth amendments prohibition against cruеl and unusual punishment; (2) The finding that defendant was not denied effective assistance of trial counsel; (3) The District Court‘s failure to apply the provisions of L.B. 711; and (4) The District Court‘s failure to hold that Nebraska‘s death penalty is unconstitutional as applied to defendant.
“[A] motion to vacate a judgment and sentence under the Post Conviction Act сannot be used as a substitute for an appeal or to secure a further review of issues already litigated.” State v. Holtan, 205 Neb. 314, 317, 287 N.W.2d 671, 674 (1980). In his direct appeal to this court, defendant raised the constitutional issues he now combines into assignment of error (4) and they will not be reconsidered.
Defendant argues under assignment of error (1) that his sentence is cruel and unusual punishment
Subsequent to Ell‘s sentencing, Ell appеared at defendant‘s post conviction relief hearing and testified that he had shot the victim. When defendant and Ell were arrested, the gun that was used to shoot the victim was found lying near the defendant. At defendant‘s post conviction relief hearing, Ell testified that during the shoot-out between the police and defendant and himself, Ell shot and killed the victim, thеn gave defendant his gun and took defendant‘s gun because defendant‘s gun had jammed. At no time during defendant‘s trial nor during Ell‘s trial did either defendant suggest this version of the crime to their attorneys or to the court. Ell‘s testimony was uncorroborated and the District Court judge at defendant‘s post conviction relief hearing found it unbelievable. A prison guard at the penаl complex testified at the hearing that defendant admitted shooting the victim and the police officer again identified the defendant as the person who shot the victim. The record supports that finding. Defendant‘s contention in this regard is without merit.
Defendant‘s third assignment of error is likewise without merit. “L.B. 711, Laws 1978, was not enacted
In his second assignment of error, defendant argues his trial counsel was prejudicially ineffective. Specifically, defendant alleges that his trial attornеy failed to make an opening statement; failed to impeach witnesses on inconsistencies; failed to take defendant to the scene of the shooting; failed to depose witnesses after the court ruled, permitting depositions to be taken; untimely filed his pretrial motions; failed to discuss trial strategy with defendant; failed to argue that the felony robbery had terminated before the shooting; failed to notify the court that defendant was dissatisfied with trial counsel; failed to move for a mistrial on voir dire of jurors; failure to review police reports; failed to prepare for trial; failure to renew motion to sever after opening statements; failed to move fоr a mistrial after evidence of defendant‘s use of an alias was introduced, after evidence that weapon used in the robbery was stolen was introduced; failed to determine whether an insanity defense existed; failed to poll the jury; failure to prepare his own motion for new trial; failed to attend the hearing regarding sentencing ground rules; failed to discuss sentencing strategy with defendant; failed to introduce mitigating factors at the sentencing hearing other than those enumerated in the statutes; failed to review
Our standard for determining whether or not counsel for a defendant in a criminal prosecution has provided adequate representation is “that trial сounsel perform at least as well as a lawyer with ordinary training and skill in the criminal law in his area, and that he conscientiously protect the interests of his client.” State v. Fowler, 201 Neb. 647, 655, 271 N.W.2d 341, 347 (1978).
The burden of proof is on the defendant and he must establish by a preponderance of the evidence the incompetency of counsel. State v. Auger & Uitts, 200 Neb. 53, 262 N.W.2d 187 (1978). In his order denying defendant post conviction relief, the District Court judge found generally that defendant had not met his burden of proof and did not establish that he had been prejudiced by the action or inaction of his counsel.
Specifically, the District Court ruled that defendant‘s contentions concerning his counsel‘s failure to argue that the felony had ended, to make evidentiary objections, to properly cross-examine witnesses, and to present evidence that codefendant Ell, not defendant Rust, had killed the victim were without merit. The District Court likewise found that defendant, at the post conviction hearing, did not show the existence of mitigating factors in addition to those counsel raised at the sentencing hеaring and that contention, therefore, was without merit. “The defendant has the burden
The determination of sufficiency of counsel must, of course, be made within the context of the facts of a particular case. In this case defendant‘s trial counsel had the following to deal with: (1) The testimony of an eyewitness that defendant shot Kellogg; (2) The testimony of a police officer involved in the shoot-out that he had followed defendant frоm the time he left the parking lot of the store through the time the defendant was apprehended; and (3) The testimony of an officer who stated he was shot by the defendant and the fact that the gun that wounded that officer and killed Kellogg was found near defendant after he was shot and apprehended. Defendant‘s counsel testified that when he confronted defendant with these facts, defendant offered no practical suggestions concerning how they should proceed with his defense. Defendant‘s only contribution to his own defense was that his attorney offer to the court the story that defendant was shot at as he was walking past the area of the shoot-out and returned the firе.
Trial counsel for defendant testified at defendant‘s post conviction hearing. Concerning his failure to make certain evidentiary objections, cross-examine witnesses, and make an opening statement, he stated that his actions were the result of tactical decisions. “[W]e grant due deference to the discretion of defеnse counsel to formulate trial tactics.” State v. Fowler, supra at 656, 271 N.W.2d at 347.
We will not require defense counsel to develop ridiculous trial tactics such as defendant‘s counsel would have been required to do had he chosen to present defendant‘s tale that defendant was shot when he
The mitigating factor defendant brought to the court‘s attention was a letter sent by a South Dakota state‘s attorney to the chief of detectives of the Omaha Police Department. The letter expressed the attorney‘s opinion that Ell was a highly criminal and dangerous person. At the post conviction trial, the District Court judge stated that the evidence was not relevant and could not be considered a mitigating factor. We agree. Because the facts establish that Rust murdered the victim, the criminal nature of his codefendant is not probative of “any aspect of a defendant‘s character or record [or] any of the circumstances of the offense that [could be proffered] as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
Finally, the District Court‘s determination that Ell‘s testimony was unbelievable is supported by the evidence and, as a result, defendant‘s related arguments concerning ineffectivе assistance of trial counsel are immaterial. “It is the general rule that it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh evidence. Such matters are for the trier of fact, and the verdict must be sustained if, taking the view most favоrable to the State, there is sufficient evidence to support it.” State v. Fowler, 201 Neb. 647, 658, 271 N.W.2d 341, 348 (1978).
For the reasons set out above, we find that the decision of the trial court denying defendant post conviction relief is supported by the evidence and is affirmed.
AFFIRMED.
KRIVOSHA, C.J., concurring in part, and in part dissenting.
Even if I disregard the provisions of 1978 Neb. Laws, L.B. 711, now
A reading of the various opinions rendered in the case of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), makes it manifestly clear that the adoption of statutes such as
As noted by Mr. Justice Douglas in Furman, supra at 242: “The generality of a law inflicting capital punishment is one thing. What may be said of the validity of а law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.
“It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
An examination of but a few cases within this jurisdiction makes it clear that thе imposition of the death penalty in the instant case is, indeed, arbitrary and capricious.
In State v. Scott, 200 Neb. 265, 263 N.W.2d 659 (1978), the defendant was charged with murder in the perpetration of or in an attempt to perpetrate a robbery. The evidence disclosed that the defendant entered the home of William and Bertha McCormic in Omaha and demanded monеy at gunpoint. A scuffle ensued, Mr. McCormic was shot twice and killed, and Mrs. McCormic was shot twice and wounded. Mr. McCormic was 92 years of age at the time. Mrs. McCormic was 83, had impaired vision, and could not describe her assailant with any specificity. The defendant was sentenced to life imprisonment.
In State v. Prim, 201 Neb. 279, 267 N.W.2d 193 (1978), the defendant was charged with first degree murder, having shоt and killed the defenseless operator of a gas station during the commission of a rob-
In State v. Hatcher, unappealed to this court, the defendant, being pursued by a police officer, engaged in a struggle with the police officer, and as the officer struggled with the defendant the officer‘s gun went off twice, the second time hitting the officer in the head. The defendant was sentenced to life imprisonment.
In State v. Brown, unappealed to this court, the defendant killed his victim during a robbery. He was sentenced to life imprisonment.
In State v. Jimmie Ray Anderson, unappealed to this court, a 34-year-old defendant and his wife resisted arrest by a patrolman, and in the struggle in the police car the patrolman was shot and killed. The defendant was sentenced to life imprisonment.
In State v. Floyd, unappealed to this court, the defendant, 37 years old, shot and killed an unarmed gas station attendant during the course of a robbery. He was sentenced to life imprisonment.
Each of those killings was senseless and unforgiving. Yet we, as courts, are required to be sure that the Constitution of both this state and the United States is always followed, regardless of other factors. Where the U.S. Supreme Court has declared that the arbitrary imposition of the death penalty violates the Constitution, we have no choice and may not approve the imposition of the death penalty when, as here, it appears to be arbitrarily imposed.
The words of Mr. Justice Marshall, joined by Mr. Justice Brennan, in Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), appear each day to be more applicable. Marshall said in Godfrey v. Georgia, supra at 438-39: “I believe that the death penalty may not constitutionally be imposed even if it were possible to do so in an evenhanded manner. But events since Gregg make that possibility seem increasingly remote. Nearly every week of every year, this Court is presented with at least one peti-
I would affirm the action of the trial court in denying post conviction relief except with regard to the matter of the death penalty. In that regard, I would order the appellant be incarcerated for the balance of his natural life.