Opinion
No. 43019.
Filed March 20, 1981.
1. Post Conviction: Motion to Vacate. A motion to vacate a judgment and sentence under the Post Conviction Act cannot be used as a substitute for an appeal or to secure a further review of issues already litigated. 2. Criminal Law: Statutes. The amendment of a statute under which an accused was convicted does not affect the legitimacy of his conviction or the propriety of his sentence. 3. Criminal Law: Effectiveness of Counsel. Our standard for determining whether or not counsel for a criminal defendant has provided adequate representation is that trial counsel 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. 4. Post Conviction: Proof: Appeal and Error. The defendant has the burden of establishing a basis for relief in a post conviction proceeding and the findings of the District Court in denying such relief will not be disturbed on appeal unless they are clearly erroneous. 5. Criminal Law: Effectiveness of Counsel. The determination of sufficiency of counsel must be made within the context of the facts of a particular case, and we will not require defense counsel to develop ridiculous trial tactics because they are suggested by the defendant. 6. Criminal Law: Aggravating and Mitigating Circumstances. In order for something to be considered a mitigating factor it must be probative of any aspect of the 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. 7. Criminal Law: Appeal and Error. 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 favorable to the State, there is sufficient evidence to support it.
Appeal from the District Court for Douglas County: SAMUEL P. CANIGLIA, Judge. Affirmed.
Paul E. Watts and Gerald E. Moran for appellant.
Paul 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 Neb. Rev. Stat. § 29-2522 (Reissue 1979), as amended by 1978 Neb. Laws, L.B. 711, adopted subsequent to his sentencing; that the provisions of Nebraska's death penalty law violate the eighth and fourteenth amendments of the U.S. Constitution. The District Court denied defendant's motion and defendant appeals. We affirm the decision of the District Court.
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 cruel 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 cannot 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 in light of the confession of a codefendant, Ronald Ell, that Ell, not Rust, actually shot and killed the victim. This is apparently based on our discussion in State v. Rust, supra at 540-41, 250 N.W.2d at 875, regarding the propriety of sentencing one codefendant to life imprisonment and the other to death. In his direct appeal, defendant argued that his death sentence was arbitrary and discriminatory because Ell received a life sentence. We held that as a participant in the felony, Ell "was guilty of the murder of Kellogg only as an aider and abettor. He did not actually kill anyone. Although he was equally guilty with Rust in the robbery, his participation in the actual killing was relatively minor. See mitigating factor (e), 29-2523, R.R.S. 1943." State v. Rust, supra at 541, 250 N.W.2d at 875.
Subsequent to Ell's sentencing, Ell appeared 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, then 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 penal 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 until after the sentence in this case had been imposed and became final. Having become a final judgment prior to the effective date of L.B. 711, it is not affected by the adoption of L.B. 711. No capital case in which a final sentence was imposed prior to the effective date of L.B. 711, Laws 1978, is subject to the provisions of the act and will not be reviewed in light of the act." State v. Holtan, supra at 316, 287 N.W.2d at 673. The amendment of a statute under which an accused was convicted does not affect the legitimacy of his conviction or the propriety of his sentence. United States v. Rojas-Colombo, 462 F.2d 1091 (5th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1507, 36 L.Ed.2d 188.
In his second assignment of error, defendant argues his trial counsel was prejudicially ineffective. Specifically, defendant alleges that his trial attorney 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 for 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 presentence investigation report; failed to inform sentencing court that State had discussed possibility of a plea bargain; failed to call to the court's attention that the prosecution had proven only two aggravating circumstances when, in its sentencing order, the court found there were four aggravating circumstances; failure to offer evidence in the form of a letter from a South Dakota state's attorney concerning codefendant Ell's violent tendencies; failed to point out to sentencing court that its fact interpretation of the shooting incident was incorrect; and failed to prepare and argue effectively at the sentencing hearing.
Our standard for determining whether or not counsel for a defendant in a criminal prosecution has provided adequate representation is "`that trial counsel 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 hearing and that contention, therefore, was without merit. "The defendant has the burden of establishing a basis for relief in a post conviction proceeding, and the findings of the District Court in denying such relief will not be disturbed on appeal unless they are clearly erroneous." State v. Bishop, Davis, and Yates, 207 Neb. 10, 19, 295 N.W.2d 698, 704 (1980). The record in this case supports the findings of the trial court.
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 from 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 fire.
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 defense 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 inadvertently passed by the shoot-out. Furthermore, the record supports the District Court's finding that defendant demonstrated no prejudice due to any of his counsel's tactics.
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 ineffective 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 favorable 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.