State v. Dawn

• Decision Date: 15 July 1994
• Docket Number: No. S-93-396,S-93-396
• Citation: 519 N.W.2d 249,246 Neb. 384
• Parties: STATE of Nebraska, Appellee, v. Schuyler DAWN, Appellant.
• Court: Nebraska Supreme Court

Page 249

519 N.W.2d 249

246 Neb. 384

STATE of Nebraska, Appellee, v. Schuyler DAWN, Appellant.

No. S-93-396.

Supreme Court of Nebraska.

July 15, 1994.

Syllabus by the Court

1. Pretrial Procedure: Prosecuting Attorneys: Witnesses. Neb.Rev.Stat. § 29-1912(4) (Reissue 1989) provides that whenever a prosecuting attorney believes that the granting of an order under the provisions of this section will result in the possibility of bodily harm to witnesses or that witnesses will be coerced, the court may permit him or her to make such a showing in the form of a written statement to be inspected by the court alone.

2. Criminal Law: Attorneys at Law: Appeal and Error. Attorneys of record of the respective parties in the court below shall be deemed the attorneys of the same parties in an appellate court, until a withdrawal of appearance has been filed. Counsel in any criminal case pending in an appellate court may withdraw only after obtaining permission of the appellate court.

3. Right to Counsel: Appeal and Error. When an indigent defendant is deprived of his constitutional right to counsel by not being furnished an attorney to present his direct appeal to an appellate court, the defendant is not afforded an effective appeal, and the decision thereon is deemed a nullity.

4. Right to Counsel: Courts: Appeal and Error. After a defendant has perfected his or her direct appeal to an appellate court, if the defendant is without counsel, the appellate court, in its supervisory capacity and through its inherent power to do those things reasonably necessary for the administration of justice, may enter an order directing the trial court to appoint counsel to represent that defendant on direct appeal if the defendant asks that counsel be appointed and the defendant satisfactorily shows by affidavit to the district court that he or she is indigent.

5. Prisoners: Probation and Parole: Evidence. A person placed on probation, an inmate of any jail, or an inmate who has been released on parole, probation, or work release is prohibited from acting as an undercover agent or employee of any law enforcement agency of the state, and any evidence derived in violation of this rule is not admissible against any person in any proceeding whatsoever.

6. Constitutional Law: Effectiveness of Counsel: Proof. To state a claim of ineffective assistance of counsel as violative of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution, and thereby obtain reversal of a conviction, a defendant must show that his or her counsel's performance was deficient and that such deficient performance prejudiced the defense, that is, demonstrate a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

7. Pleas: Effectiveness of Counsel: Proof. When a defendant has entered a guilty plea, counsel's deficient performance constitutes prejudice if the defendant shows with a reasonable probability that but for counsel's errors, the defendant would have insisted on going to trial rather than pleading guilty.

8. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

9. Due Process: Prosecuting Attorneys: Evidence. Irrespective of the good or bad faith of the prosecution, its suppression of evidence favorable to an accused violates due process if the evidence is material to either guilt or punishment.

10. Constitutional Law: Prosecuting Attorneys: Evidence. If the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty arises even if no request is made. In such situations, if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.

11. Appeal and Error. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court.

12. Pretrial Procedure: Prosecuting Attorneys: Evidence. In the typical case where a defendant makes only a general request for exculpatory material, it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final.

13. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

14. Convictions: Bail Bond. Once a defendant has been convicted of the felony charged, he is not entitled to be released on bail; such determination is left to the discretion of the trial court, which may prescribe the amount of the bond and the conditions thereof if one is set.

Dean S. Forney, Box Butte County Public Defender, for appellant.

Schuyler Dawn, pro se.

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

Dennis R. Keefe, Lancaster County Public Defender, Michael D. Gooch, and Julie B. Hansen, Lincoln, for amicus curiae NE Crim. Defense Attys. Ass'n.

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

FAHRNBRUCH, Justice.

Further review of Schuyler Dawn's appeal of his conviction for distribution of a controlled substance has been granted to remedy the failure of the lower courts to appoint counsel for Dawn's direct appeal and to address his claims that in the trial court (1) he received ineffective assistance of counsel, (2) the prosecutor failed to disclose information material to his defense, and (3) the trial court abused its discretion in setting his appeal bond.

The Nebraska Court of Appeals affirmed Dawn's conviction on direct appeal even though Dawn had not been afforded his constitutional right to counsel during his appeal. That affirmation is a nullity.

After appointing counsel for Dawn for his appeal to this court, after receiving briefs from the parties, after hearing arguments, and after our own review of Dawn's remaining assignments of error, we affirm Dawn's conviction.

FACTS

Dawn was charged by information with (1) criminal conspiracy, (2) two counts of distribution of a controlled substance, and (3) being a habitual criminal.

After Dawn's arraignment on an information in the district court for Box Butte County, his trial counsel filed a motion for discovery. Dawn asked, inter alia, for any "[r]eports prepared or statements given, either orally or in writing, by any law enforcement officers or any agent of the state ... who participated in any way in the investigation or surveillance of the defendant at any time."

In connection with that motion, the State, pursuant to Neb.Rev.Stat. § 29-1912(4) (Reissue 1989), filed a confidential affidavit with the court. Section 29-1912(4) provides:

Whenever the prosecuting attorney believes that the granting of an order under the provisions of this section will result in the possibility of bodily harm to witnesses or that witnesses will be coerced, the court may permit him or her to make such a showing in the form of a written statement to be inspected by the court alone.

In an affidavit filed in Dawn's case, a police official stated that police investigatory reports contained information about a confidential informant who was not endorsed as a State's witness and a coconspirator who, at that time, was a fugitive. The official also stated his belief that Dawn might harm or coerce witnesses in this case. The official stated that in the past, he and other officers had received complaints from citizens that Dawn had threatened or physically harmed them. In cases police investigated, "it has been impossible to gather enough evidence to prosecute Schuyler for the offenses complained of because witnesses refuse to cooperate and testify against Schuyler Dawn." The official listed specific instances, some of which he observed and others which were reported to him, which led him to believe that Dawn "is a violent person capable of causing serious injury or death to a person who is a witness against him." The district court overruled Dawn's motion to produce the requested police reports.

Dawn's trial counsel later filed a motion to depose the informant used by law enforcement officers to apprehend Dawn. At the hearing on that motion, Dawn's trial counsel identified a person who he thought was the informant. The State would not verify that identification. The district court advised Dawn's trial counsel to contact the individual he identified and, if he refused to talk to Dawn's trial counsel, to issue a subpoena for the individual to testify at trial. The district court denied Dawn's trial counsel's motion to depose the alleged informant.

Dawn has not assigned as error the district court's overruling of his motion for discovery of the police reports or his motion to depose the State's informant.

On March 1, 1993, Dawn pled guilty to one count of distributing a controlled substance on January 24, 1992. In exchange for the plea, the State agreed to dismiss the other charges.

At the guilty plea hearing on March 1, the State recited the following facts upon which the charge was founded: On January 18, 1992, an individual involved in drug trafficking in western Nebraska (the confidential informant) went with an undercover law enforcement officer to a bar in Alliance and introduced...