State Of Neb. v. Sandoval

• Decision Date: 30 July 2010
• Docket Number: No. S-05-142.,S-05-142.
• Citation: 280 Neb. 309,788 N.W.2d 172
• Parties: STATE of Nebraska, appellee, v. Jose SANDOVAL, appellant.
• Court: Nebraska Supreme Court

280 Neb. 309

788 N.W.2d 172

STATE of Nebraska, appellee,

v.Jose SANDOVAL, appellant.

No. S-05-142.

Supreme Court of Nebraska.

July 30, 2010.

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Syllabus by the Court

1. Criminal Law: Aggravating and Mitigating Circumstances. Aggravating circumstances are not to be considered elements of the underlying crimes.

2. Trial: Jury Instructions. The giving of a cautionary instruction generally rests within the judicial discretion of the trial court.

3. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

4. Trial: Juries: Appeal and Error. A district court's decision regarding impaneling an anonymous jury is reviewed under the deferential abuse-of-discretion standard.

5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

6. Juries: Words and Phrases. Generally, an “anonymous jury” describes a situation where juror identification information is withheld from the public and the parties themselves.

7. Juries: Appeal and Error. To reduce the dangers associated with anonymous or numbers juries, a court should not impanel such a jury unless it (1) concludes that there is a strong reason to believe the jury needs protection and (2) takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his or her fundamental rights are protected. Within the scope of this two-part test, the decision is left to the discretion of the lower court and is subject to a review for abuse of discretion.

8. Constitutional Law: Juries. The impaneling of an anonymous jury and its potential impact on the constitutionality of a trial must receive close judicial scrutiny and be evaluated in the light of reason, principle, and common sense.

9. Effectiveness of Counsel: Words and Phrases. Counsel's performance is deficient if counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area.

10. Juries. Voir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.

11. Juror Qualifications: Parties: Appeal and Error. The extent to which the parties may examine jurors as to their qualifications rests largely in the discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where it appears that harmful prejudice resulted.

12. Juror Qualifications: Death Penalty. It is well established that Neb.Rev.Stat. § 29-2006(3) (Reissue 2008) allows courts to question jurors about their beliefs regarding the death penalty.

13. Statutes: Legislature: Intent. Under principles of statutory construction, the components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible.

14. Trial: Witnesses: Indictments and Informations. Whether to permit the names of additional witnesses to be endorsed upon an information after the information has been filed is within the discretion of the trial court.

15. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the facts of each case.

16. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court.

17. Trial: Proof: Appeal and Error. A defendant must demonstrate that a trial court's conduct, whether action or inaction during the proceeding against the defendant, prejudiced or otherwise adversely affected a substantial right of the defendant.

18. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

19. Trial: Prosecuting Attorneys: Motions for Mistrial: Juries. Remarks made by the prosecutor during final argument which do not mislead or unduly influence the jury do not rise to the level sufficient to require granting a mistrial.

20. Trial: Motions for Mistrial: Waiver: Appeal and Error. When a party has knowledge during trial of irregularity or misconduct, the party must timely assert his or her right to a mistrial. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.

21. Motions for Mistrial: Appeal and Error. In order for error to be predicated upon misconduct of counsel, it must be so flagrant that neither retraction nor rebuke from the court can entirely destroy its influence.

22. Prosecuting Attorneys: Appeal and Error. Whether a prosecutor's inflammatory remarks are sufficiently prejudicial to constitute error must be determined upon the facts of each particular case.

23. Right to Counsel: Conflict of Interest: Appeal and Error. Whether a defendant's lawyer's representation violates a defendant's right to representation free from conflicts of interest is a mixed question of law and fact that an appellate court reviews independently of the lower court's decision.

24. Constitutional Law: Right to Counsel: Conflict of Interest. A conflict of interest which adversely affects a lawyer's performance violates the client's Sixth Amendment right to effective assistance of counsel.

25. Effectiveness of Counsel: Conflict of Interest. In Nebraska, the right to effective assistance of counsel has been interpreted to entitle the accused to the undivided loyalty of an attorney, free from any conflict of interest.

26. Effectiveness of Counsel: Conflict of Interest. A conflict of interest must be actual rather than speculative or hypothetical before a conviction can be overturned on the ground of ineffective assistance of counsel.

27. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of three conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in which case new counsel is to be appointed; or (3) the accused chooses to retain private counsel.

28. Jury Instructions. Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.

29. Constitutional Law: Jury Instructions. The proper inquiry is not whether a jury instruction “could have” been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury applied it in that manner.

30. Constitutional Law: Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. When an appellate court reviewing a death penalty invalidates one or more of the aggravating circumstances, or finds as a matter of law that any mitigating circumstance exists that the sentencing panel did not consider in its balancing, the appellate court may, consistent with the U.S. Constitution, conduct a harmless error analysis or remand the cause to the district court for a new sentencing hearing.

31. Constitutional Law: Convictions: Appeal and Error. Even a constitutional error which was harmless beyond a reasonable doubt does not warrant the reversal of a criminal conviction.

32. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Proof: Appeal and Error. Harmless error review in a capital sentencing case looks to whether it is clear beyond a reasonable doubt that the sentencing court's decision would have been the same absent any reliance on an invalid aggravator.

33. Criminal Law: Jury Instructions: Words and Phrases. “Mental anguish,” although included in Nebraska's pattern jury instructions, defined as a victim's uncertainty as to his or her ultimate fate, does not have any basis in Nebraska law. Neither the courts nor the Legislature has used the term “mental anguish” as a part of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 2008).

34. Jury Instructions. A jury instruction should correctly state the Nebraska law applicable to the issues in the case.

35. Sentences: Death Penalty. Whenever a State seeks to impose the death penalty, the discretion of the sentencing body must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

36. Sentences: Death Penalty. A sentencing authority's discretion must be guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty.

37. Homicide: Aggravating and Mitigating Circumstances: Proof. “Exceptional depravity” pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense.

38. Death Penalty: Aggravating and Mitigating Circumstances. The balancing of aggravating circumstances against mitigating circumstances in deciding whether to impose the death penalty is not merely a matter of number counting, but, rather, requires a careful weighing and examination of the various factors.

39. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or...