State v. Rust

• Decision Date: 13 June 1986
• Docket Number: No. 85-377,85-377
• Citation: 223 Neb. 150,388 N.W.2d 483
• Parties: STATE of Nebraska, Appellee, v. John Edward RUST, also known as John DeWitt, Appellant.
• Court: Nebraska Supreme Court

Page 483

388 N.W.2d 483

223 Neb. 150

STATE of Nebraska, Appellee, v. John Edward RUST, also known as John DeWitt, Appellant.

No. 85-377.

Supreme Court of Nebraska.

June 13, 1986.

Syllabus by the Court

1. Postconviction. Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the subsequent motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of the filing of the prior motion.

2. Postconviction. Postconviction relief may not be used to secure a review of issues which were capable of being raised in a direct appeal.

3. Criminal Law: Effectiveness of Counsel. The standard for determining the effectiveness of counsel in a criminal case is whether the attorney, in representing the accused, performed at least as well as a lawyer practicing in the trial area with ordinary training and skill in the criminal law.

4. Postconviction: Effectiveness of Counsel. To establish the right to postconviction relief based on a claim of ineffectiveness of counsel, a criminal defendant must show on the record how he suffered prejudice as a result of counsel's conduct.

5. Criminal Law: Death Penalty: Sentences: Appeal and Error. The comparative review required by Neb.Rev.Stat. § 29-2521.03 (Reissue 1985) does not apply to a death sentence which was imposed and became final prior to the effective date of the statute.

6. Jury Misconduct: New Trial. In order for jury misconduct to become the basis for a new trial, it must be prejudicial.

7. Justiciable Issues: Appeal and Error. It is not the function of the Nebraska Supreme Court to render advisory opinions.

8. Attorney and Client: Justiciable Issues: Appeal and Error. Presenting a fictitious issue neither serves the interests of the client nor brings honor to counsel.

9. Criminal Law: Constitutional Law: Homicide. The felony murder statute, Neb.Rev.Stat. § 28-303(2) (Reissue 1985), does not violate the eighth amendment to the U.S. Constitution.

10. Criminal Law: Constitutional Law: Sentences. A legislative body is not required to select the least severe penalty possible for a crime, so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.

11. Postconviction. The Postconviction Act cannot be used to secure a further review of issues already litigated.

12. Homicide: Presentence Reports: Sentences. Presentence investigations may be considered in homicide sentencing proceedings.

13. Homicide: Presentence Reports: Sentences: Constitutional Law. The right of confrontation does not attach to the use of presentence reports in capital sentencing proceedings.

14. Juror Qualifications: Constitutional Law. Neb.Rev.Stat. § 29-2006(3) (Reissue 1985) does not violate the 6th or 14th amendment to the U.S. Constitution.

15. Homicide: Juror Qualifications. It is proper to remove for cause a prospective juror whose views on capital punishment are such as to prevent or substantially impair the performance of his or her duties as a juror.

Emil M. Fabian and Barbara Thielen, of Taylor, Fabian, Thielen & Thielen, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Melvin K. Kammerlohr, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Defendant-appellant, John Edward Rust, was adjudged guilty of, among other crimes, felony murder and sentenced to death. On direct appeal this court affirmed that judgment and sentence. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977), cert. denied 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198, reh'g denied 434 U.S. 988, 98 S.Ct. 622, 54 L.Ed.2d 485 (Rust I). Rust thereafter moved for relief under the provisions of the Postconviction Act, Neb.Rev.Stat. §§ 29-3001 through 29-3004 (Reissue 1985). That motion was denied in State v. Rust, 208 Neb. 320, 303 N.W.2d 490 (1981), cert. denied 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (Rust II). Apparently at the suggestion of the U.S. District Court for the District of Nebraska, Rust filed this second postconviction action seeking a vacation of the aforesaid judgment and sentence and a discharge from custody. He was again denied relief by the court below, and this appeal resulted. We affirm.

The evidence in this proceeding centered around three matters: the nature of the relationship between one of the jurors and trial counsel for Rust's codefendant, Ronald Ell; a claimed improper contact between a juror and Rust's trial counsel during the trial; and the claimed ineffective assistance of Rust's trial counsel and counsel in the direct appeal.

On the first matter, Rust contends that the friendship of juror Dan Corcoran and Ell's trial attorney, Jon Jabenis, caused Corcoran to favor Ell, to Rust's detriment. Following the trial of Rust and Ell, the court reporter serving the division of the district court for Douglas County over which Judge Caniglia presided, Lois Thompson, became interested in writing a book about the proceedings and contacted both Rust and Ell for that purpose. She agreed with Rust that she would inform him should she discover any information favorable to him. Judge Caniglia stated on the record that while he was aware that Thompson was to write a book, he was unaware of the disclosure provision and would not have given permission for Thompson to write the book had he known of it.

Thompson testified that as part of her research she talked with Corcoran and tape-recorded the interview but was unable to locate the tape; she had used the handwritten notes she had also taken during the interview to refresh her memory.

According to Thompson, Corcoran told her that he knew both Jabenis and Don Breit, Rust's trial attorney. However, he knew Jabenis better, as he had attended law school with him for 1 year and had maintained a good relationship with Jabenis after Corcoran quit law school. Corcoran knew this was Jabenis' first capital murder case, and Corcoran wanted Jabenis to win it. The first vote by the jury on Ell was 11 to 1 for conviction, with Corcoran being the lone dissenter. During the interview, Corcoran took credit for eventually getting the vote down to 7 to 5 in favor of conviction. A mistrial was ultimately declared as to Ell, which irritated Corcoran because he felt Jabenis had won Ell's case. On the other hand, the jury quickly found Rust to be guilty.

Corcoran, according to Thompson, became nervous and on guard when questioned about the fact that he had been under oath during the voir dire examination, yet said he knew no one associated with the trial. Corcoran simply commented that he had to get on the jury because it was Jabenis' first capital case, one Jabenis just had to win.

Corcoran, on the other hand, testified that he had never established any type of friendship with Jabenis and merely knew him by sight and that that fact did not affect his jury deliberations. He did not remember seeing Jabenis from the time he quit law school until the time of the trial. Corcoran admitted he did not mention during the voir dire examination that he had attended law school and that he replied in the negative when asked whether he knew the two defendants or their two attorneys. He explained that he simply did not feel those matters were important enough to mention. Corcoran did, however, inform the court of others whom he only knew by sight. Corcoran further denied telling Thompson that Jabenis just had to win his first capital murder case or that he, the lone dissenter on the first vote on Ell, was able to convince four others to ultimately vote not guilty.

Jabenis testified that he did not know Corcoran at all in law school and that he had not become acquainted with him before the trial.

On the second matter, Thompson testified that she saw Corcoran talking to Breit outside the courtroom during a trial recess. According to her, Corcoran asked if "he could talk to his lawyer"; she replied that she did not talk to jurors but that she would get the bailiff, Frank Cominoli. Cominoli and Corcoran then had a conversation, which Thompson could not hear, after which Corcoran left the jury room and talked to Breit. All Thompson heard of the conversation between Corcoran and Breit was Corcoran asking, "Who's going to take care of this when you're gone on Friday?" Later, Thompson learned that Breit had left the state. This was the only contact she observed between Breit and Corcoran. She did not report the matter to Judge Caniglia at the time, thinking it was the bailiff's responsibility; she did, however, discuss it with Judge Caniglia "way afterwards."

Cominoli testified he did not recall any jurors requesting to talk to anyone or anyone requesting to talk to a juror.

Robert Craig, an attorney who sat next to Corcoran in many classes during his first year at law school and maintained a friendship with him afterwards, testified he did talk to Corcoran at the Douglas County Hall of Justice while Corcoran was serving as a juror. Both Corcoran and Craig were on the board of directors of the Seventh Step Foundation, a nonprofit organization which assists ex-offenders, and Craig went to the Hall of Justice to get Corcoran's signature on an agreement for the foundation. Craig could not recall talking to anyone other than Corcoran at the time and was "99.9 percent" sure that the trial was not discussed during this meeting, although the trial and Jabenis' performance were discussed by the two after the trial. Corcoran also stated that the trial was not discussed during this meeting.

Jabenis testified that he was also aware of the fact that Corcoran had left the jury room momentarily to sign some papers for Craig.

On the third matter, the evidence centered around whether Breit had effectively represented Rust at trial and whether Rust was effectively represented by the Douglas County public defender and associated c...