State v. Biernacki

• Decision Date: 15 February 1991
• Docket Number: No. 89-1484,89-1484
• Citation: 465 N.W.2d 732,237 Neb. 215
• Parties: STATE of Nebraska, Appellee, v. Tina BIERNACKI, Appellant.
• Court: Nebraska Supreme Court

Page 732

465 N.W.2d 732

237 Neb. 215

STATE of Nebraska, Appellee, v. Tina BIERNACKI, Appellant.

No. 89-1484.

Supreme Court of Nebraska.

Feb. 15, 1991.

Syllabus by the Court

1. Tape Recordings: Immunity. A grant of immunity to a party consenting to the sound recording of a conversation does not render the consent involuntary.

2. Pleas. In accepting a guilty plea, a court is not required to advise the defendant of possible defenses.

3. Pleas. Before accepting a plea of guilty, the court must inform the defendant of (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront adverse witnesses, (4) the right to trial by jury, and (5) the privilege against self-incrimination. The court must examine the defendant in order to determine whether she or he understands that information. The record must also establish that there is a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.

4. Criminal Law: Right to Counsel. A criminal defendant who is represented by counsel need not be informed that she or he has a right to be so represented.

5. Constitutional Law. One who has been informed of her or his constitutional rights need not be reinformed of them on each subsequent court appearance.

6. Evidence: Records: Appeal and Error. A party who claims the evidence is insufficient to support a finding must present a bill of exceptions which contains all the evidence relevant to the questioned finding.

7. Effectiveness of Counsel: Proof. In order to prove ineffective assistance of counsel and obtain a reversal of her or his conviction, a defendant must show that her or his trial counsel's performance was deficient and that this deficiency prejudicially affected the outcome of the case.

8. Effectiveness of Counsel: Proof. One seeking to establish that her or his counsel was ineffective has the burden to present a record which affirmatively supports the claim.

9. Pleas: Waiver: Indictments and Informations. A voluntary and valid plea of guilty embodies a waiver of all defenses to the charge--procedural, statutory, and constitutional--except for the defense that the information or complaint is insufficient to charge a criminal offense.

10. Records: Appeal and Error. The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review.

11. Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle for bringing evidence before the Supreme Court; evidence which is not made part of the bill of exceptions may not be considered.

Sandra Frantz, Lincoln, and Mary T. Kloeckner, Cheyenne, Wyo., for appellant.

Robert M. Spire, Atty. Gen., and Barry Waid, Gering, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

Defendant-appellant, Tina Biernacki, pled guilty to a charge of distributing marijuana, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1989), and was so adjudged. Her assignments of error merge to claim, in sum, that (1) her plea was neither voluntary nor valid, (2) the plaintiff-appellee State withheld exculpatory evidence or information, (3) she was entrapped, (4) she was the victim of gross and unconscionable overreaching by the State, (5) there were unspecified violations of the 9th and 10th amendments to the Constitution of the United States, (6) her counsel was ineffective, and (7) she is, in any event, innocent. We affirm.

As the result of an undercover operation, Biernacki was arrested and charged with two counts of the aforedescribed crime. In accordance with a plea bargain, the State dismissed one count, and Biernacki, who was then represented by appointed counsel, pled guilty to the other. Her appointed counsel filed a notice of appeal; after the notice was filed and the bill of exceptions ordered, appointed counsel withdrew in favor of retained counsel.

Biernacki's arguments are dependent on the allegations that the State sent an informer to her home on several occasions to attempt to purchase cocaine and marijuana, that she told the informer she neither had nor knew where to obtain those substances, and that the State then sent another "agent-informant" to her home in order to supply her with the marijuana later purchased by the first informer.

These assertions are not supported by any citations to the record. In that connection, we refer Biernacki to Neb.Ct.R. of Prac. 9D(1)f (rev. 1989), which requires that briefs contain appropriate references to the record. We also note that Biernacki's briefs exceed the page limitation imposed by Neb.Ct.R. of Prac. 9B(5) (rev. 1989), and caution that the failure of a party to submit a brief which complies with our rules may result in our treating the case as one in which no brief has been filed by that party. See Grubbs v. Kula, 212 Neb. 735, 325 N.W.2d 835 (1982). The fact that we have on this occasion conducted our own unassisted review of the short record in this case and have ignored the violation of the page limitation is not to be taken as an indication that we shall do so in future cases.

Biernacki claims the State acted illegally in making a sound recording of the drug sale. The bill of exceptions contains a few passing references to this recording, but the only information we have regarding its acquisition is contained in the presentence investigation and in the unsubstantiated assertions made by Biernacki. According to the presentence investigation, recordings were made during two controlled buys via a transmitter carried by the purchaser, an unnamed "cooperating individual." It is Biernacki's position that this recording violates 18 U.S.C. §§ 2510 et seq. (1988), Neb.Rev.Stat. §§ 86-701 through 86-707 (Reissue 1987), and a Wyoming statute, Wyo.Stat. § 7-3-602 (Cum.Supp.1990). The federal and Nebraska statutes govern interception of oral and wire communications and prohibit the use of illegally intercepted communications. Biernacki does not enlighten us as to why she thinks the Wyoming statute should be given extraterritorial effect. Perhaps it is somehow related to her claim that Nebraska violated the 10th amendment, more about which is written later.

Both the federal and Nebraska statutes cited by Biernacki are inapplicable where one of the parties to the communication consents to its interception. 18 U.S.C. § 2511(2)(c); § 86-702(2)(c); State v. Manchester, 220 Neb. 41, 367 N.W.2d 733 (1985). The information contained in the presentence investigation indicates that the cooperating individual consented to the interception and was a party to the communications recorded.

Biernacki also asserts that the purchaser was coerced into wearing the transmitter. Our review of the record does not reveal any indication of coercion. Although the presentence investigation reveals that unnamed misdemeanor charges against the informer were to be reduced or dropped in return for his assistance, such action by the government is insufficient to vitiate his consent, for a grant of immunity to a party consenting to the sound recording of a conversation does not render the consent involuntary. See, United States v. Horton, 601 F.2d 319 (7th Cir.1979), cert. denied 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (only evidence of coercive threats or activities to overbear participant's will can vitiate consent for purposes of 18 U.S.C. § 2511(2)(c)); United States v. King, 536 F.Supp. 253 (C.D.Cal.1982), overruled on other grounds, U.S. v. Zolin, 842 F.2d 1135 (9th Cir.1988), vacated in part 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (grant of immunity in return for consent not coercive).

Next, Biernacki asserts that her guilty plea was not voluntary because she

was deprived of the information that the tape recordings and all evidence derived therefrom were mandatorily prohibited by an act of the Congress of the United States to be introduced or used in any proceeding ... and, was deprived of the knowledge of the defenses available to her which included the gross and unconscionable overreaching of the government, the defense of entrapment and the defense [of] challenging the constitutionality of the statue [sic] as it is written and as it is applied to the Appellant.

Brief for appellant at 10. It is unclear whether Biernacki is contending that the arraigning court should have given her this information or whether trial counsel should have done so.

If Biernacki is asserting that the arraigning court had a duty to give her this information, she essentially is taking the position that it is a court's duty to perform defense counsel's job. None of the cases cited by Biernacki support such a proposition. Indeed, the rule is that in accepting a guilty plea, a court is not required to advise the defendant of possible defenses. State v. Enfield, 223 Neb. 870, 394 N.W.2d 667 (1986).

The arraigning court's duty in determining the voluntariness of a guilty plea was set out by this court in State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). Before accepting a plea of guilty, the court must inform the defendant of (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront adverse witnesses, (4) the right to trial by jury, and (5) the privilege against self-incrimination. The court must examine the defendant in order to determine whether she or he understands that information. Finally, the record must establish that there is a factual basis for the plea and that the defendant knew the range of penalties for the crime charged. State v. Ponec, 236 Neb. 710, 463 N.W.2d 793 (1990); State v. Irish, supra. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (voluntariness of guilty plea cannot be presumed from silent record).

At her arraignment Biernacki was informed of, and examined regarding,...