State v. Blunt, 40658

• Decision Date: 17 November 1976
• Docket Number: No. 40658,40658
• Citation: 197 Neb. 82,246 N.W.2d 727
• Parties: STATE of Nebraska, Appellee, v. Paul BLUNT, Appellant.
• Court: Nebraska Supreme Court

Page 727

246 N.W.2d 727

197 Neb. 82

STATE of Nebraska, Appellee, v. Paul BLUNT, Appellant.

No. 40658.

Supreme Court of Nebraska.

Nov. 17, 1976.

Syllabus by the Court

1. The right of an indigent defendant to counsel does not give him the unbridled right to be represented by counsel of his own choosing, and mere distrust of, or dissatisfaction with, appointed counsel is not enough to secure the appointment of substitute counsel.

2. An indigent defendant who refuses to accept offered counsel without justifiable reason and elects to proceed pro se has not been deprived of his constitutional right to counsel.

3. The determination of whether there has been an intelligent waiver of the constitutional right to counsel must depend in each case upon its particular facts and circumstances, including the background, experience, and conduct of the accused.

4. If an indigent defendant was deprived of his constitutional right to counsel by not being furnished an attorney to present his appeal to the appellate court, he was not afforded an effective appeal and the decision thereon must be deemed a nullity.

5. In a post conviction proceeding where the evidence establishes a denial or infringement of the right to counsel which occurred only at the appeal stage of the former criminal proceedings, the District Court has jurisdiction and power to grant a new direct appeal without granting a new trial or setting aside the original conviction and sentence.

Alan E. Peterson, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., Gary B. Schneider, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

PER CURIAM.

In this post conviction action defendant, Paul Blunt, sought to vacate and set aside a judgment and sentence of 24 1/2 to 35 years imprisonment entered by the District Court for Douglas County on December 8, 1970, following defendant's conviction on a charge of robbery. Following the evidentiary hearing in the District Court on the motion to vacate and set aside the sentence, the District Court overruled the motion for post conviction relief on all grounds except one.

The District Court found that in the former direct appeal of the robbery conviction, after jurisdiction had vested in the Supreme Court, the District Court which had tried the case permitted defendant's appointed appellate counsel to withdraw on grounds that the appeal was 'wholly frivolous' and the defendant was therefore required to and did proceed pro se in this court. The District Court in the current proceeding therefore granted the defendant a new direct appeal from the robbery conviction and sentence with time for appeal to begin on January 22, 1976. That appeal is now before this court.

The State contends that under the provisions of the Post Conviction Act neither the District Court nor this court has jurisdiction to grant or consider a new direct appeal from the robbery conviction and sentence of December 8, 1970. The State also denies that defendant has or had grounds for relief, either on direct appeal or under post conviction proceedings.

In view of the dual state-federal court consideration of varying aspects of this case, and to remove any doubt as to exhaustion of state remedies, we consider the issues fully.

The facts underlying the defendant's conviction for robbery are set out in State v. Blunt, 187 Neb. 631, 193 N.W.2d 434. Briefly, the evidence showed that on May 28, 1970, after having first entered a cleaning establishment on a pretext, the defendant left and returned a few minutes later. He created a disturbance in the rear room and again left the premises. He later returned and attempted to take some money out of the cash drawer. The counterclerk closed the drawer on his hand. Blunt pushed her away with sufficient force that she fell and lacerated her knees. Blunt then jerked the cash drawer out, removed the money, and fled. He was apprehended a few minutes later about 2 blocks from the cleaning establishment. The amount missing from the cash drawer was $169.26, and the defendant was in possession of a substantial portion of that amount in cash and checks and a claim check from the cleaning establishment in another name. He also had a scraped area on the back of his hand.

The District Court appointed a representative of the public defender's office as counsel for Blunt and the first trial commenced on September 14, 1970. After a jury was convened and trial commenced, a mistrial was granted. Blunt's counsel had disclosed defendant's prior felony convictions in the voir dire of the jury. Counsel's reason for disclosure was that Blunt's defense was an alibi and counsel assumed that Blunt would, of necessity, testify. Blunt was incensed at his counsel for the disclosure and later requested counsel's removal. At a hearing after the mistrial the trial court offered to appoint another counsel from the public defender's office but flatly refused to appoint private counsel. Blunt refused and asked for time to obtain his own attorney. A new trial date was set for November 2, 1970. Blunt did not obtain counsel and on the new scheduled trial date he appeared before the trial court and stated that he would not permit anyone from the public defender's office to represent him. He was again offered assistance from the public defender's office and again he refused. He asked for more time to prepare for trial, as did the public defender's office. The trial court denied the requests, called the case for trial that afternoon, and directed that the public defender's office be in court to assist Blunt in the trial. Blunt then went to trial with the same representative of the public defender's office who had represented him in the prior aborted trial acting as his technical advisor. Blunt personally made opening comments to the jurors before voir dire in which he recited his 'bad history' and told them he was representing himself because he and his attorney had developed a lot of distrust. After these opening remarks Blunt conducted little of the trial himself. The legal advisor told Blunt when to object or cross-examine and then Blunt would tell the legal advisor to go ahead and do it. Technically, however, Blunt was in charge as his own counsel with the legal advisor's assistance. The trial proceeded in comparatively routine fashion. The State called three witnesses who were all cross-examined by the legal advisor, although Blunt himself cross-examined the counterclerk following her recall for redirect examination. Blunt's cross-examination of her was directed at her testimony at the preliminary hearing as to whether or not she had identified Blunt at that hearing. She repeated her previous testimony that she identified him at the preliminary hearing.

After these State's witnesses had been examined, the State moved to strike the names of the three witnesses remaining on its list of witnesses. This motion was granted over the objection of the legal advisor for Blunt. The legal advisor then filed five praecipes for subpoenas for witnesses. Trial was recessed until the following morning. The only witness who appeared the next morning was the manager of the cleaning establishment.

The court, before proceeding, determined that Blunt also wished to recall two State's witnesses who had previously testified 2 days before, been examined and cross-examined and released. The court refused to issue subpoenas for their reappearance. The legal advisor for Blunt then examined Richard Parsons, the store manager, who was the only witness presented by the defendant. The defendant rested. The jury found the defendant guilty.

Motion for new trial was filed and overruled. An habitual criminal count was dismissed by the State before sentencing. On December 8, 1970, Blunt was sentenced to 24 1/2 to 35 years in the Nebraska Penal and Correctional Complex for robbery. On December 23, 1970, Blunt filed a notice of appeal to the Supreme Court and a praecipe for transcript requesting that it include a transcript of the preliminary hearing. The transcript of the preliminary hearing was lost or misplaced and has not been found. The District Court appointed a different member of the public defender's staff to represent Blunt on the appeal. After jurisdiction vested in the Supreme Court, the new counsel from the public defender's office filed a motion in the District Court for leave to withdraw as appointed counsel on the ground that the appeal was frivolous. The trial judge who presided at the trial granted the motion to withdraw on May 20, 1971. Thereafter, in the appeal to the Supreme Court, Blunt therefore represented himself. The brief for Blunt was pro se. This court affirmed his conviction on that appeal on January 7, 1972. See State v. Blunt, 187 Neb. 631, 193 N.W.2d 434.

Blunt's motion to vacate and set aside his sentence under the Post Conviction Act raises issues which, for purposes of this opinion, we will separate into issues related to the trial stage and issues related to the appeal.

As to the trial stage, the defendant asserts: (1) That defendant made an involuntary, unintelligent, and unknowing waiver of counsel at trial;

(2) That defendant's trial counsel caused the mistrial, and prior to that trial performed only nominal investigation of the case;

(3) That the appointment of the same individual as legal advisor instead of the appointment of separate nonpublic defender counsel denied defendant effective assistance of counsel;

(4) That the trial court deprived defendant of due process of law by (a) failing to advise or assist defendant in his jury selection rights, (b) failing to grant defendant an opportunity to obtain a transcript of the preliminary hearing, and (c) refusing to grant a continuance to defendant in proceeding pro se;

(5) That the trial court erred in failing to recall certain State's witnesses, and...