State v. Beans, 81-622

• Decision Date: 25 June 1982
• Docket Number: No. 81-622,81-622
• Citation: 321 N.W.2d 72,212 Neb. 31
• Parties: STATE of Nebraska, Appellee, v. Lee A. BEANS, Appellant.
• Court: Nebraska Supreme Court

Page 72

321 N.W.2d 72

212 Neb. 31

STATE of Nebraska, Appellee, v. Lee A. BEANS, Appellant.

No. 81-622.

Supreme Court of Nebraska.

June 25, 1982.

Syllabus by the Court

1. Pleas: Mental Competency. The question of whether or not a defendant is competent to stand trial or to enter a plea is one of fact to be determined by the trial court, and the means employed in resolving the question are discretionary with the trial court.

2. Pleas. The standard for determining the validity of a guilty plea is whether or not it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.

3. Mental Competency: Appeal and Error. The determination of the finder of fact on the issue of competency will not be disturbed unless there is insufficient evidence to support the findings. The test of mental capacity to plead or stand trial is the same.

4. Effectiveness of Counsel. The present test of the effective assistance of counsel is that 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.

5. Effectiveness of Counsel. Prejudice is an essential element of a claim of ineffective assistance of counsel and a defendant must show that he was prejudiced in the defense of the case by the actions or inactions of his counsel.

6. Post Conviction: Appeal and Error. A person seeking post conviction relief has the burden of establishing a basis for such relief, and the findings of the District Court in denying relief will not be disturbed on appeal unless they are clearly erroneous.

John T. Tarrell, Kearney, and David B. Downing, Superior, for appellant.

Paul L. Douglas, Atty. Gen., and Harold Mosher, Asst. Atty. Gen., for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

McCOWN, Justice.

This is a post conviction case. The defendant's motion to vacate a conviction and sentence of life imprisonment for first degree murder was denied after hearing.

The 41-year-old defendant shot and killed his wife on April 29, 1976, in their home in Kearney, Nebraska. The defendant and his wife had been married for 18 years, but were in the process of a divorce action at the time. There had been several altercations between the defendant and his wife prior to the shooting and the defendant had been cited twice and jailed once for civil contempt in the divorce proceeding.

The defendant and his wife had each purchased a gun prior to the incident of April 29, 1976. On the evening of April 29, 1976, the defendant and his wife, two of their four children, a nephew of the wife, and a friend of hers were present in the family home where the wife was living. The defendant had placed a loaded gun in his waistband before entering the house. His wife had her gun in her purse. The two became involved in a heated argument. The defendant's wife reached into her purse for her gun and the defendant pulled his gun and shot into the wall to demonstrate that it was loaded. A short time later defendant's wife again reached into her purse and was holding her gun in her hand. The defendant tried to knock her gun aside and then shot his wife with his own gun, wounding her fatally.

The defendant was arrested that evening and appeared without an attorney in the county court of Buffalo County the next day and entered a plea of not guilty. The court appointed Gary L. Giese of the Buffalo County public defender's office to represent the defendant. Giese met with the defendant for approximately an hour and a half shortly after learning of the appointment. Giese explained to the defendant the charge, his rights, and possible defenses, including insanity, capacity, intoxication, and self-defense. Giese testified at the post conviction hearing that the defendant was lucid and communicative, and that the defendant asserted that he did not wish to do anything other than plead guilty to first degree murder. The defendant maintained that position thereafter throughout the entire original criminal proceeding.

On May 4, 1976, Giese arranged for a Kearney psychiatrist to talk with the defendant, and discussed an examination at the Lincoln Regional Center. On May 5, 1976, hearing was held in the District Court to consider defendant's motion for a hearing to determine competency, which had been filed by Giese. On May 6, 1976, the District Court granted the motion for a hearing to determine competency and ordered that a psychiatric evaluation be made of the defendant at the Lincoln Regional Center for a period not to exceed 60 days. The defendant was admitted to the Regional Center on May 7, 1976, and on July 12, 1976, counsel stipulated to the defendant's continued treatment for up to 90 days at the Regional Center.

During the early part of May 1976 Giese reviewed the police reports and statements of the investigating officers and the witnesses at the scene of the murder, and also discussed and reviewed the matter with the defendant. He did not personally interview the eyewitnesses at that time because the reports and the defendant's account corresponded exactly. He testified that if, in fact, the case was to be tried, as he believed it should be, he would have interviewed or deposed all the witnesses prior to trial.

On August 18, 1976, the defendant was arraigned. Giese had met with the defendant on the previous day, but the defendant was represented at the arraignment by a different representative of the public defender's office because Giese was out of town. At the arraignment the defendant pleaded guilty to the charge of first degree murder. The court reviewed the defendant's constitutional rights with the defendant personally, inquired as to whether the defendant still desired to plead guilty, and the defendant again stated that he did. The court refused to accept the guilty plea until the court could determine the defendant's mental competency to make the plea and committed the defendant to the Department of Corrections for further evaluation for the purpose of determining his competency to enter the plea of guilty as charged.

On October 6, 1976, the court held a hearing on its own motion to determine the defendant's competency. Giese introduced into evidence a letter report dated September 28, 1976, addressed to the District Court, from Dr. Woytassek, a psychiatrist at the Lincoln Regional Center, stating that the defendant was not at that time mentally capable of standing trial or aiding in his own defense, but expressing the belief that he would improve and become capable of standing trial within 3 to 6 months. At the hearing Giese advised the court that the defendant was dissatisfied with the opinion that the defendant was incompetent and had requested that an evaluation by a second psychiatrist be obtained. The court refused to appoint a second psychiatrist.

The defendant testified that Giese deserted him at the Regional Center and up until December 1976. Giese testified that he met with the defendant at the Regional Center three or four times, trying to convince him to change his mind about pleading guilty to first degree murder, and that he emphasized the importance of a defense, possibly self-defense. He also testified that he met with the defendant before each hearing that took place and that he also attempted to persuade the defendant to plead not guilty rather than guilty.

Giese testified that he discussed the possibility of a plea bargain and pleading guilty to a lesser-included offense, both with the defendant and with the prosecutor, but neither was interested. The defendant rejected the suggestion and continued to insist on pleading guilty to first degree murder. The prosecutor testified that he would not have changed the first degree murder charge.

A further competency hearing was held on December 23, 1976. The prosecution introduced another letter from Dr. Woytassek to the court dated December 8, 1976, stating that the Lincoln Regional Center team, which consisted of two psychiatrists and two psychologists, found that defendant was then capable of standing trial and cooperating with his attorney. Giese objected to a declaration of the defendant's competence on the basis that the defendant was not willing to participate or cooperate in his own defense. The court determined that the defendant was then competent and fixed the arraignment for December 27, 1976.

At the arraignment hearing the District Court reviewed all his constitutional rights with the defendant personally. In answer to questioning by the court the defendant also acknowledged that he had discussed with Giese the nature of the charge, the possible penalties, possible defenses, and evidence. The defendant then pleaded guilty to first degree murder. Giese informed the court that defendant...