State v. Ell, 40539

• Decision Date: 03 November 1976
• Docket Number: No. 40539,40539
• Citation: 246 N.W.2d 594,196 Neb. 800
• Parties: STATE of Nebraska, Appellee, v. Ronald ELL, Appellant.
• Court: Nebraska Supreme Court

Page 594

246 N.W.2d 594

196 Neb. 800

STATE of Nebraska, Appellee, v. Ronald ELL, Appellant.

No. 40539.

Supreme Court of Nebraska.

Nov. 3, 1976.

Syllabus by the Court

1. Due process requires that the accused receive a trial by an impartial jury free from outside influences.

2. An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous unless the record discloses an abuse of discretion.

3. There is no abuse of discretion by the court in denying a continuance unless it clearly appears that the defendant suffered prejudice as a result thereof.

4. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed unless a clear abuse of discretion is shown.

5. The issue of whether or not a jury should be sequestered during a criminal trial is left to the discretion of the trial court, and unless the defendant makes a showing of prejudice or the record discloses an abuse of discretion, denial of sequestration is not error.

6. A party ordinarily has no right to examine a prospective juror out of the presence of all other prospective jurors.

7. Photographs are admissible in evidence if shown to be true and correct representations of the places or subjects they purport to represent at times pertinent to the inquiry.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.

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

BRODKEY, Justice.

In count I of a four count information, the defendant, Ronald Raymond Ell, was charged with killing Michael Kellogg in the perpetration of or attempt to perpetrate a robbery, which constitutes first degree murder under section 28--401, R.R.S.1943; and in counts II, III, and IV, he was charged with maliciously shooting Russell Wolf, George E. Allen, and Joseph Nepodal, respectively, with the intent to kill, wound, or maim each of those individuals, under section 28--410, R.R.S.1943. Trial to a jury commenced July 21, 1975; and on August 1, 1975, the jury found Ell guilty of shooting police officers George E. Allen and Joseph Nepodal with intent to kill, wound, or maim, as charged in counts III and IV of the information, but the jury was unable to reach a verdict on count I of the information charging the defendant with murder in the perpetration or attempt to perpetrate a robbery, and also was unable to reach a verdict on count II of the information, which charged defendant with shooting at Officer Russell Wolf with intent to kill, wound, or maim.

The court thereupon declared a mistrial as to counts I and II, and the defendant was retired as to those counts commencing October 24, 1975. The jury in the second trial returned a verdict of guilty on counts I and II. On November 10, 1975, the defendant was sentenced to life imprisonment in the Nebraska Penal and Correctional Complex on count I, and to terms of 16 2/3 to 50 years imprisonment on each of the other three counts. The latter sentences were ordered to be served concurrently with each other, but consecutively to the sentence of life imprisonment imposed on count I. Defendant Ell has now appealed his convictions and sentences to this court. We affirm.

In support of his appeal, defendant makes two assignments of error which he contends were prejudicial and require reversal of his convictions in the trial court. We set them out verbatim as they appear in his brief: 'I. The District Court committed reversible error in both the first and second trial in not granting the defendant's motion for a continuance, for a change of venue, for total sequestration of the jury during voir dire, and for sequestering the jury during trial, all for the reason that pre-trial publicity prior to trial and the probability of such adverse publicity during trial prevented the defendant from receiving a fair trial, requiring his convictions be reversed. II. The District Court committed reversible error in overruling defense objections to the admissibility of Exhibit 15 for lack of foundation, as it relates to the charge of shooting at Officer Allen.'

The evidence shows that on February 21, 1975, two persons entered a Hinky Dinky Store at 30th and Weber Streets in Omaha during business hours and took approximately $2,100 in checks, cash, and food stamps. Both persons were armed, and removed the described property at gunpoint. A store manager observed the individuals fleeing in a 1965 Chevrolet, noted the license number, and called the police. The manager, some of the store employees, and several police officers then pursued the robbers.

During the chase, several shots were fired from the suspects' automobile, driven by a third person, at the pursuing police officers, striking one of their vehicles. The chase ended at 25th and Iowa Streets in Omaha, where the gun battle continued between the officers and the suspects, who had left their vehicle and had run between houses in the neighborhood. Michael Kellogg, a civilian who lived in the neighborhood, had armed himself and joined the police in firing at the suspects.

During the gun battle, two police officers were wounded. One of the suspects was shot and killed by the police. Witnesses observed one of the suspects, John Edward Rust, later named as a co-defendant in this case, as he shot and killed Michael Kellogg. Defendant Ell was eventually apprehended in some bushes, after requests to come out. Police found a pistol, a sawed-off shotgun, and the property taken from Hinky Dinky in the defendant's hiding place.

At the time of the robbery in February, several newspaper articles were published describing the chase and subsequent shootings. One of these articles showed a picture of defendant Rust in the hospital; another consisted of an interview with one of the wounded police officers. There was also television and radio coverage of the robbery, although the defendant introduced no evidence as to the nature or extent of that coverage. On the day prior to the beginning of the voir dire at the first trial, another newspaper article appeared announcing that the case was to go to trial, and describing the robbery and shootings. The defendants' pictures appeared in this article. Although where was undoubtedly more media coverage of the case during and subsequent to the first trial and prior to the second, the defendant has not brought such publicity to the attention of either the trial court or this court.

Prior to both trials, the defendant moved for a continuance, a change of venue, individual and separate examination of each prospective juror during the voir dire, and sequestration of the jury during trial. The ground for these motions was that the pretrial publicity described above jeopardized the defendant's right to a fair and impartial trial.

The specific ground for defendant's motion for a continuance was the appearance of the newspaper article describing the case on the day prior to the beginning of the voir dire. The trial court overruled this motion because it concluded that such publicity would arise whenever the case actually went to trial, and therefore, a continuance would not obviate this kind of publicity.

The motion for a change of venue was overruled because the trial court concluded that granting a change of venue and moving the case to an adjoining county pursuant to section 29--1301, R.R.S.1943, would do nothing to minimize the effects of publicity, since media coverage of the case was just as broad in adjoining counties as it was in Douglas County, the place of trial.

The trial court overruled the motion for sequestration of the jury during trial because it concluded that sequestration would not effectively achieve the goal of insulating jurors from any publicity that might arise during trial. The court noted that the jury would have to be sequestered in a hotel or motel, where it would have access to radio, television, and newspaper coverage of the trial. The trial court pursued an alternate course of instructing the jury at both trials not to read or listen to any news coverage of the case during the trial.

The trial court did uphold the motion for separate examination of jurors during the voir dire at the first trial. Examination of the first 27 prospective jurors proceeded separately. The court then concluded that publicity was not a significant factor in the case, and concluded the voir dire by examination of the talesmen in four groups of 6, and one last group of 18. The defendant, however, was permitted to question each prospective juror individually, even when the court proceeded with the group examinations. There is no record of the actual voir dire of the jury for the second trial, but the voir dire was conducted, challenges exercised, and jury selected in 1 day, a much shorter period than for the first trial, which suggests that no unusual trouble was experienced in selecting the second jury.

It is fundamental that: 'Due process requires that the accused receive a trial by an impartial jury free from outside influences.' Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). In Sheppard the court held that where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the trial court should take steps such as a continuance, a change of venue, or sequestration of the jury to protect its processes from prejudicial outside interferences. The question in this case, then, is whether there was such prejudicial pretrial publicity that the defendant was denied a fair trial because of the trial court's failure to take the protective steps requested by the defendant in his pretrial motions, described above. We will discuss each motion separately.

It has long been the rule in...