State v. Beasley

• Decision Date: 10 January 1969
• Docket Number: No. 36914,36914
• Citation: 163 N.W.2d 783,183 Neb. 681
• Parties: STATE of Nebraska, Appellee, v. Herbert BEASLEY, Appellant.
• Court: Nebraska Supreme Court

Page 783

163 N.W.2d 783

183 Neb. 681

STATE of Nebraska, Appellee, v. Herbert BEASLEY, Appellant.

No. 36914.

Supreme Court of Nebraska.

Jan. 10, 1969.

Syllabus by the Court

1. In all criminal prosecutions an accused has the right to appear and defend in person. Art. I, § 11, Constitution of Nebraska.

2. In the absence of unusual circumstances a defendant in a criminal case who is sui juris and mentally competent has the right to conduct his defense in person without the assistance of counsel.

3. Opportunity for prejudice or disqualification of jurors does not raise a presumption that they exist.

4. Evidence obtained prior to and independent of an alleged illegal search is admissible.

5. Under the circumstances in this case, the pretrial identification of the defendant from photographs was not prejudicial.

6. A peace officer may arrest a person without a warrant if he has reasonable cause to believe that such person has committed a felony. Section 29--404.02, R.S.Supp., 1967.

William J. Riedmann, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ., and MORAN, District Judge.

BOSLAUGH, Justice.

The defendant, Herbert Beasley, was convicted of robbery and sentenced to 10 years imprisonment. His motion for new trial was overruled and he has appealed. The principal assignments of error relate to the sufficiency of the evidence and the action of the trial court in permitting the defendant to represent himself.

There is evidence from which the jury could find that the defendant robbed the King Loan Company in Omaha, Nebraska, on October 11, 1967. The robbery took place at about 9:30 a.m. while the secretary-cashier of the loan company was alone in the office. She had just counted the cash and prepared a cashier's statement when the defendant entered the office. The defendant held a gun on the secretary-cashier and obtained one 50-dollar bill, four 20-dollar bills; 29 ten-dollar bills, 23 five-dollar bills, 27 one-dollar bills, 22 quarters, 28 dimes, 70 nickels, and 50 pennies. As the defendant left the office he met the manager and assistant manager who were returning to the office. The robbery was then reported to the police.

From the loan company the defendant went to a used car lot about 2 blocks away. There the defendant asked to try out a car. After the defendant and the used-car dealer drove around several blocks the defendant asked to be taken to the downtown area so that he could see about getting money from a bank. On the trip downtown a report of the robbery was heard on the car radio. The defendant gave the dealer a five-dollar bill for his time and got out of the car at Twentieth and Harney Streets. The dealer recognized the defendant from the description broadcast over the radio, and notified the police.

The defendant was arrested in front of the bus station at Eighteenth and Farnam Streets at about 10:15 a.m. The officer made a quick search for weapons and discovered that a large bulge in the defendant's rights front pocket was a roll of 27 one-dollar bills. The defendant was then taken to the police station and searched and found to have one 50-dollar bill, four 20-dollar bills, 29 ten-dollar bills, 22 five-dollar bills, 27 one-dollar bills, 23 quarters, 27 dimes, 70 nickels, and 49 pennies in his possession.

The defendant was positively identified by the secretary-cashier of the loan company, the assistant manager of the loan company, and the used-car dealer. The evidence is clearly sufficient to sustain the judgment.

An assistant public defender appeared for the defendant at the preliminary hearing in the municipal court. In the district court the defendant refused the assistance of counsel and insisted that he be allowed to represent himself.

The Constitution and statutes of Nebraska provide that an accused may defend himself. Art. I, § 11, Constitution of Nebraska; section 7--110, R.R.S.1943. It is generally recognized that in the absence of unusual circumstances a defendant in a criminal case who is sui juris and mentally competent has the right to conduct his defense in person without the assistance of counsel. State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 77 A.L.R.2d 1229.

In this case the trial court permitted the defendant to represent himself but required an assistant public defender to be present in the courtroom as an advisor to the defendant. This practice was approved in State v. Walle, 182 Neb. 642, 156 N.W.2d 810.

The defendant now contends that the trial court was in error in permitting the defendant to defend himself because he was not mentally competent. At the time of sentencing, the defendant admitted that he had been confined in a state hospital in Ohio but stated that he had received no treatment there and had volunteered to go there as a 'TV man.' There is no other evidence of mental incompetence. The record as a whole at this time does not show that the defendant was mentally incompetent to refuse the assistance of counsel.

The defendant has been convicted of five felonies and has had some acquaintance with court procedure. The trial court did everything possible in an effort to persuade the defendant to accept the...