State v. Bowen, S-92-1121

• Decision Date: 17 September 1993
• Docket Number: No. S-92-1121,S-92-1121
• Citation: 244 Neb. 204,505 N.W.2d 682
• Parties: STATE of Nebraska, Appellee, v. Phillip E. BOWEN, Appellant.
• Court: Nebraska Supreme Court

Page 682

505 N.W.2d 682

244 Neb. 204

STATE of Nebraska, Appellee, v. Phillip E. BOWEN, Appellant.

No. S-92-1121.

Supreme Court of Nebraska.

Sept. 17, 1993.

Syllabus by the Court

1. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal.

2. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof.

3. Venue: Juries: Proof. In order for one to successfully move for a change of venue based on pretrial publicity, one must show that the publicity has made it impossible to secure a fair and impartial jury; a number of factors must be evaluated in determining whether that burden has been met, including the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn.

4. Venue: Juror Qualifications. Voir dire examination provides the best opportunity to determine whether venue should be changed.

5. Indictments and Informations: Complaints. An information or complaint is sufficient unless it is so defective that by no construction can it be said to charge the offense of which the accused was convicted.

6. Indictments and Informations. Where an information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient.

7. Postconviction. A postconviction court is obligated to determine the issues and make findings of fact and conclusions of law.

8. Postconviction: Records. An evidentiary hearing on a motion for postconviction relief is not required if the record and the files in the case affirmatively establish that the defendant is not entitled to relief.

9. Constitutional Law: Postconviction: Proof. An evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution.

10. Trial: Pleadings: Evidence: Appeal and Error. A question not presented by the pleadings or evidence in a trial will not be considered on appeal.

11. Records: Appeal and Error. An omission from the bill of exceptions not shown to result in prejudice presents no error upon which relief can be granted.

12. Constitutional Law: Effectiveness of Counsel: Proof. In order to state a claim of ineffective assistance of counsel as violative of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a conviction, one must show that counsel's performance was deficient and such deficient performance prejudiced one's defense, that is, demonstrate a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

13. Sentences: Pleas: Self-Incrimination. In order to prevent the possible enhancement of a sentence, one who has pled guilty but who is awaiting sentencing may invoke the privilege against self-incrimination.

14. Criminal Law: Abandonment: Conspiracy: Time. In order for abandonment to be effective as a defense, there must be an appreciable interval between the alleged abandonment of the criminal enterprise and the act for which responsibility is sought to be avoided; the coconspirator must have a reasonable opportunity to follow the example and refrain from further action before the act in question is committed.

15. Criminal Law: Abandonment: Conspiracy: Time. A conspirator cannot escape responsibility for an act which is the natural result of a criminal scheme the conspirator has helped to devise and carry forward by running away at the instant when the act in question is about to be committed and the transaction which immediately begets it has actually been commenced.

Phillip E. Bowen, pro se.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

In the appellant convict Phillip E. Bowen's first appearance in this court, State v. Bowen, 232 Neb. 725, 442 N.W.2d 209 (1989) (Bowen I ), we ruled that his claims that his confession and certain physical evidence should have been suppressed and that the evidence failed to support his convictions for first degree murder and the use of a firearm to commit a felony were without merit. We thus affirmed the district court's adjudication of guilt on those charges. The convict responded by filing the subject motion for postconviction relief, pursuant to the provisions of Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Cum.Supp.1992). The postconviction court dismissed the motion without appointing counsel and without granting a hearing on the merits. The convict has appealed, asserting, in summary, that the postconviction court erred in failing to (1) find that the trial court erred in not changing venue, (2) find that the trial court erred in failing to inform him of the nature of the accusation against him, (3) place a proper burden of proof upon him, (4) make specific findings of fact and conclusions of law, (5) forward a complete record, and (6) find that he was denied the effective assistance of trial and appellate counsel. We affirm.

II. ANALYSIS

With that brief background, we turn our attention to the summarized assignments of error, adding such additional facts as are relevant to the resolution of each such assignment.

1. VENUE

The dispositive answer to the complaint made in the first summarized assignment of error, that the postconviction court failed to find that the trial court erred in not changing venue, is that under the law of this state, a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993). Accord, State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993); State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992) (denying appellate review on a motion for postconviction relief on claimed denial of Fifth Amendment right of confrontation, which should actually have been categorized Sixth Amendment right of confrontation); State v. Lyman, 241 Neb. 911, 492 N.W.2d 16 (1992); State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991), cert. denied 501 U.S. 1201, 111 S.Ct. 2279, 115 L.Ed.2d 965; State v. Hurlburt, 221 Neb. 364, 377 N.W.2d 108 (1985) (denying appellate review of a motion for postconviction relief for error, including inter alia, refusal to grant a change of venue).

Nonetheless, in the interest of completeness, we note that the convict filed a pretrial motion for change of venue due to extensive media publicity which he alleged precluded a fair and impartial trial in Douglas County. In particular, he asserted that media references tying him to the two coperpetrators, coupled with the media reports of one coperpetrator's plea of guilty, "compounded the prejudice and pre-conceived Guilt feeling of the community...."

The motion was accompanied by the affidavit of a local practicing attorney who did not represent the convict, stating that in the attorney's opinion the convict would be unable to receive a fair and impartial trial in Douglas County due to prejudicial pretrial publicity.

At a hearing on the venue motion, the convict offered copies of 15 articles which appeared in a newspaper, and a videotape of three television news stories covering the robbery and murder of the victim. The trial court denied the motion, noting that any potential jurors who had made up their minds and could not be impartial would be excused for cause.

In State v. Phelps, 241 Neb. 707, 726-28, 490 N.W.2d 676, 690-91 (1992), we wrote:

Section 29-1301 permits a change of venue when it appears that "a fair and impartial trial cannot be had" in the county where the offense was committed. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. [Citations omitted.]

....

... [M]ere jury exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process. Rather, to warrant a change of venue, a defendant must show the "existence of pervasive misleading pretrial publicity." State v. Bradley, 236 Neb. 371, 386, 461 N.W.2d 524, 536 (1990), cert. denied 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991). Indeed, in order for a defendant to successfully move for a change of venue based on pretrial publicity, he or she must show that the "publicity has made it impossible to secure a fair and impartial jury." State v. Jacobs, 226 Neb. at 190, 410 N.W.2d at 473 [1987]. Accord State v. Heathman, 224 Neb. 19, 395 N.W.2d 538 (1986). A number of factors must be evaluated in determining whether that burden has been met, including the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn. State v. Williams, [239 Neb. 985, 480 N.W.2d 390 (1992) ]; State v. Red Kettle, 239 Neb. 317, 476...