State v. Bazer
| Decision Date | 03 July 2008 |
| Docket Number | No. S-07-316.,S-07-316. |
| Citation | 751 N.W.2d 619,276 Neb. 7 |
| Parties | STATE of Nebraska, appellee, v. Christopher E. BAZER, appellant. |
| Court | Nebraska Supreme Court |
Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger for appellee.
Christopher E. Bazer appeals the dismissal of his motion for postconviction relief from his conviction, pursuant to a plea agreement, of first degree felony murder. Bazer argues that his guilty plea was compelled by his counsel's unreasonable trial strategy. He further argues that his plea was involuntary because the trial court failed to advise him of his right against self-incrimination. We affirm.
On March 1, 1988, Bazer was charged with one count of first degree felony murder and one count of use of a firearm to commit a felony, in connection with the death of Mary G. Jirsak. There was no dispute from the evidence procured during pretrial discovery that Bazer had, either intentionally or accidentally, shot and killed Jirsak after robbing her candy store. There was some dispute as to the extent of Bazer's intoxication at the time of the robbery and shooting. Bazer was 19 years old at the time of the shooting.
Dale Lee Demont testified in his deposition that he had driven the getaway car the day of the robbery. Demont stated that on the morning of February 18, 1988, he picked up Bazer and their friend, Phillip Bowen, and that Bowen told him to "`Head down toward 13th Street.'" The candy store was located on 13th Street in Omaha, Nebraska. When they got there, Bowen and Bazer told Demont to wait in the car while they went to rob someone. Bowen and Bazer explained to Demont that they needed money to get out of town. Demont testified that when Bowen and Bazer returned to the vehicle, Bazer told him that they had robbed a woman and that when she ran for the door, Bazer grabbed her by the hair and shot her. Demont stated that while driving, he saw Bazer pull a gun out of his waistband and place it briefly on the seat next to Demont. Bazer eventually directed him to take them to Vicky Strunk's house.
Vicky testified in her deposition that Bazer and Bowen had stayed at her house the night before the robbery. At approximately 11 a.m., on February 18, 1988, Bazer woke her up and told her something about a woman running out the door and that he had pulled her by the hair and shot her. According to police reports, Vicky's husband, Gary Strunk, was also present at the house that morning. Gary gave a taped statement to the police in which he described how Bazer had told him that Bazer had robbed Jirsak and, when she started screaming and tried to run out the door, grabbed her and shot her. Gary was listed as a witness for the State in the information filed against Bazer.
Omaha police officers arrived at Vicky's home at approximately 12:10 p.m. on February 18, 1988. A police report indicates that the officers were directed to Vicky's home after Mack Riggs, an acquaintance of Bazer and Bowen, went to the scene of the crime. Riggs reported that during the previous 2 weeks, Bazer and Bowen had asked him if he wanted to help them rob Jirsak's candy store. Riggs was also listed as a witness in the information.
Vicky gave the officers permission to search her home. The officers testified that they located Bazer inside the home and that after Bazer was informed of his Miranda rights, he voluntarily admitted to the robbery and shooting of Jirsak. Bazer told the officers that certain individuals had threatened him because he owed them money. According to the officers' depositions and police reports, Bazer told them that he had pulled Jirsak by the hair and had pointed the gun at her head when she tried to escape. Bazer claimed that he had thought the safety was on and that the gun had discharged accidentally, killing Jirsak. At the time he was making these statements, Bazer denied being intoxicated, and the officers did not believe Bazer to be intoxicated at that time. Bazer did not make a taped confession.
Before leaving Vicky's house, Bazer led the officers to the location of the gun he had used. This gun was later found by the crime laboratory to be in good operating condition. But an expert hired by Bazer's trial counsel opined that the gun was in a condition such that the user could think the safety was in a safe position, when, in reality, it was not. Tests also found that the gun matched a cartridge casing found at the scene of the shooting. The actual bullet found in the victim was broken into several pieces and was unidentifiable.
Bazer's counsel made a motion to suppress Bazer's confessions to the police, but the motion was denied by the trial court. Nevertheless, a plea agreement offered by the State was rejected by Bazer, and the defense's intent was to proceed to trial. Before voir dire, the court reporter recorded a conversation between Bazer and his trial cocounsel. In this conversation, Bazer affirmed that they had spent considerable time discussing trial strategy and that he agreed with trial counsel's strategy to tell the jury "right from Day One" that Bazer did, in fact, "fire that weapon that killed Miss Jirsak." During this colloquy, trial counsel explained that all the other evidence already supported this conclusion and that it was not something the jury was "going to have trouble with anyway." Instead, trial counsel explained that by Bazer's admitting that he held the gun that had discharged and killed Jirsak, it was cocounsel's strategy to focus the jury's inquiry on whether Bazer had the requisite intent to commit the underlying crime of robbery. Trial counsel further stated that because cocounsel believed that Bazer lacked such intent, they would be asking the court to instruct the jury on a lesser offense such as manslaughter or second degree murder.
During voir dire, Bazer's trial counsel accordingly explained to the jury that he was not denying that the case involved a "senseless waste of life." Furthermore, he was "not going to hide" from the jury the fact that Bazer "held the gun that—that fired a shot that struck the back of her head and killed Mary Jirsak." Counsel stated that whether Bazer caused Jirsak's death was not an issue. Instead, the issue in the case was whether Bazer had intended to commit the robbery that formed the basis of the felony murder charge. Trial counsel made reference to possible evidence that the gun had misfired, and he explained to the jury that in order for the State to prove felony murder, it would have to prove, beyond a reasonable doubt, that Bazer intended to commit the underlying robbery.
In this regard, counsel stated that he expected the jury to be presented with evidence that Bazer had consumed large amounts of alcohol and other controlled substances prior to the incident. Without objection, trial counsel told the jury that it would be presented with expert testimony that a person's ability to think, and to form the goal-directed thought process of intent, could be affected by the consumption of alcohol and other substances. Trial counsel also mentioned fears in Bazer's mind "because of what other people were trying to do to him at that time." Counsel told the jury that he was not denying that Bazer committed some type of crime and deserved some form of punishment. However counsel explained that the question with which the jury was presented was whether Bazer had the intent to commit the crime of felony murder.
When trial counsel went further and suggested to the jury that it could find Bazer guilty of a lesser offense, the State initiated an off-the-record sidebar discussion with the court, and Bazer's trial counsel did not continue this line of discussion. The next day, during the State's voir dire, when the State explained to the jury that it made no difference whether the killing was accidental, Bazer's trial counsel requested a sidebar discussion. The record shows that the jury was then briefly dismissed so that the parties could discuss the unresolved issue of whether the court would allow instruction on a lesser offense.
Bazer's trial counsel argued that the State's voir dire was prejudicing the jury against a possible instruction on a lesser offense. The court responded that it had cautioned Bazer's counsel the day before that there was no guarantee such an instruction would be given, but it would hear Trial counsel argued that if Bazer did not formulate the requisite intent to commit the underlying crime of felony murder, then a manslaughter instruction would still be appropriate.
Trial counsel explained to the court that he was "very familiar" with Nebraska case law that holds that "[o]rdinarily it is not error for the court not to instruct for lesser-included when it's felony murder." Still, trial counsel quoted State v. Montgomery,1 in which we said: "This is not to say . . . there might not occur a set of facts under which an instruction on the lesser offenses of second degree murder or manslaughter might not be appropriate." Counsel argued that the facts of this case justified such an exception. Counsel argued that there was a delay between the assault and the robbery such that the death was not "`"in the perpetration"'" of the robbery, as that language is used in the felony murder statute. Trial counsel further cited Beck v. Alabama2 and Enmund v. Florida3 for the argument that due process and equal protection demanded that lesser offenses should be presented to the jury.
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