State v. Dean

• Decision Date: 18 January 1991
• Docket Number: No. 90-196,90-196
• Citation: 237 Neb. 65,464 N.W.2d 782
• Parties: STATE of Nebraska, Appellee, v. James L. DEAN, Appellant.
• Court: Nebraska Supreme Court

Page 782

464 N.W.2d 782

237 Neb. 65

STATE of Nebraska, Appellee, v. James L. DEAN, Appellant.

No. 90-196.

Supreme Court of Nebraska.

Jan. 18, 1991.

Syllabus by the Court

1. Pleas. The standard for determining the validity of a guilty plea is whether it represents a voluntary and intelligent choice among alternative courses of action open to the defendant.

2. Pleas. In order to support a finding that the plea of guilty has been entered freely, intelligently, voluntarily, and understandingly, (1) the trial court must inform the defendant concerning the nature of the charge, the right to assistance of counsel, the right to confront witnesses against him or her, the right to a jury trial, and the right against self-incrimination, and must examine the defendant to determine that he or she understands the foregoing; additionally, (2) 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 with which he or she is charged.

3. Homicide. The essential elements of second degree murder are that the murder must be done purposely and maliciously.

4. Homicide: Intent: Words and Phrases. Malice, in the context of second degree murder, denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.

5. Homicide: Circumstantial Evidence: Intent. The state of mind required for second degree murder may be inferred from the circumstantial evidence of the criminal act.

6. Aiding and Abetting. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted as if he were the principal offender.

7. Aiding and Abetting. Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor. Mere encouragement or assistance is sufficient.

8. Pleas: Presentence Reports. In reviewing a plea of guilty, this court need not rely solely upon the bill of exceptions, but may also consider matters contained in the defendant's presentence investigation in determining whether there is a factual basis for the defendant's plea of guilty.

9. Constitutional Law: Right to Counsel: Effectiveness of Counsel: Pleas: Proof. A criminal defendant has a constitutional right not only to counsel but to effective assistance of counsel. The voluntariness of a plea entered upon the advice of counsel depends on whether the advice was within the range of competence demanded of attorneys in criminal cases. To sustain a claim of ineffective assistance of counsel, a criminal defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense; that is, there must be a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

10. Sentences: Appeal and Error. An order imposing a sentence within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

11. Sentences: Evidence. In considering a proper sentence, the trial court is not limited in its discretion to any mathematically applied set of factors. It is necessarily a subjective judgment and includes the observations of the sentencing judge as to the demeanor, attitude, and all facts and circumstances surrounding the life of the defendant. A sentencing judge has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed, and the judge may consider probation officer reports, police reports, affidavits, and other information, including his own personal observations.

12. Sentences. In imposing a sentence, a trial court should consider, among the other circumstances, the nature of the offense and the amount of violence involved in the commission of the crime. The seriousness of the offense is one of the important factors in setting a sentence.

13. Sentences: Probation and Parole. In considering probation in lieu of a sentence the court should not withhold imprisonment when a lesser sentence would depreciate the seriousness of the offender's crime or promote disrespect for the law.

14. Sentences: Probation and Parole: Appeal and Error. The denial of probation and the imposition of a sentence within statutorily prescribed limits will not be disturbed on appeal unless there has been an abuse of discretion.

15. Homicide: Plea Bargains. Altering a charge from first degree murder to second degree murder is a substantial concession.

Richard L. Schmeling, Lincoln, for appellant.

James L. Dean, pro se.

Robert M. Spire, Atty. Gen., and Elaine A. Catlin, Lincoln, for appellee.

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

FAHRNBRUCH, Justice.

The defendant, James L. Dean, entered a plea of guilty to aiding and abetting the homicide of 68-year-old Helen Wilson in Beatrice, Nebraska, and was sentenced to 10 years' imprisonment for second degree murder.

Acting pro se, Dean assigns as error that his plea should not have been accepted because he did not have full notice of the charge, that there was no factual basis for one element of the charge, i.e., intent to kill, and in substance that his counsel was ineffective. Through counsel, Dean also complains that his sentence is excessive. We affirm Dean's conviction and sentence.

Dean told law enforcement officers that approximately a week before February 5, 1985, the date on which Helen Wilson was robbed, raped, and murdered, that he, four other men, and a woman talked about robbing Mrs. Wilson and that two of the men talked about raping her. The primary focus of the scheme was to obtain money. Two of the men present at the original planning did not participate when the crimes were committed. On the night of February 5, the two men who talked of raping the victim, Dean, the woman who participated in planning the robbery, and a woman who gave the signal for the robbery to begin, together with the victim's grandniece, forced their way into Mrs. Wilson's apartment when the victim responded to a knock on her door. The victim was knocked down in her living room, forcibly taken to her bedroom, and threatened and physically abused when she refused to tell the intruders the location of her money. After the victim was subdued, she was taken back to the living room while screaming and kicking and placed on the floor. One of the robbers, with his hand or a knife at the victim's throat, demanded that Mrs. Wilson reveal where she kept her money. Mrs. Wilson was held down by one of the women intruders while two of the men took turns raping and vilifying the victim. When one of the men was not raping the victim, he was also holding her down while the second man raped her. While this was transpiring, the woman attacker suffocated the victim with a pillow and at one point committed sexual acts on the victim while one of the men was committing rape. Following vaginal, anal, and cunnilingus sexual assaults, it appeared that Mrs. Wilson was either dead or near death. It was then that the intruders searched the apartment and found Mrs. Wilson's money. Both at the planning of the robbery and at the victim's apartment, Dean suggested places where the victim might keep her money.

In his interviews with law enforcement officers, Dean admitted that the planned crime was to be a robbery. In an apparent effort to distance himself from the element of intent to kill, Dean also claimed that he was led to believe that no one would be home at the Wilson apartment when the crime would take place. The trial court obviously was not convinced by Dean's claim that he thought no one would be home. In any event, by Dean's own account of the events, the minute Mrs. Wilson responded to the knock at her door, the robbers, including Dean, forced their way into Mrs. Wilson's apartment and demanded money. Dean, at that time, knew that the apartment was occupied. He saw Mrs. Wilson get slapped and fall to the floor. In view of Dean's statements that he watched his partners in the robbery inflict injury upon Mrs. Wilson while she struggled, that he heard what sounded like the breaking of a bone, and that he saw the victim raped and finally smothered, the trial court could find beyond a reasonable doubt that while all this was going on, the defendant was well aware that one or more of his partners in crime had the intent to kill Mrs. Wilson. When Mrs. Wilson's body was found, she had a complete fracture through the left lower humerus, her hands were loosely tied with a towel, and a scarf was tightly wrapped around her head and tied. Even before the defendant and his companions forced their way into Mrs. Wilson's apartment, Dean heard one of the men, who at the planning stage of the robbery said he wanted to sexually assault an elderly woman, boast that if anyone got in the way he would take care of them. Mrs. Wilson "got in the way" and she was "taken care of" by being killed. From these facts and from all of the circumstances surrounding the crimes that were committed, the available physical evidence, and the reports of the experts in connection therewith, the court was justified in finding that at least one of the robbers had the intent to kill the victim. The evidence shows beyond a reasonable doubt that Dean knew of that intent, and yet, he continued to participate in the robbery, which was the primary purpose of entering Mrs. Wilson's apartment. Dean said he absented himself from Mrs. Wilson's apartment for a few minutes, but he was able to describe in detail how the victim was abused, raped, and murdered. Moreover, it was after Dean returned to the apartment that the search for money took place. The...