State v. Fallis, 42749

• Decision Date: 05 February 1980
• Docket Number: No. 42749,42749
• Citation: 205 Neb. 465,288 N.W.2d 281
• Parties: STATE of Nebraska, Appellee, v. Gerald Joseph FALLIS, Appellant.
• Court: Nebraska Supreme Court

Page 281

288 N.W.2d 281

205 Neb. 465

STATE of Nebraska, Appellee, v. Gerald Joseph FALLIS, Appellant.

No. 42749.

Supreme Court of Nebraska.

Feb. 5, 1980.

Syllabus by the Court

1. Criminal Law: Venue: Trial: Appeal and Error. A motion for a change of venue in a criminal action 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.

2. Criminal Law: Venue. Among the relevant factors considered in determining whether a change of venue should be granted due to pretrial publicity are 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 selection of the jury; the number of challenges exercised during the voir dire; the severity of the offense charged; and the size of the area from which the venire is drawn.

3. Criminal Law: Juries: Discrimination. Nebraska's method of jury selection from voter registration lists is racially neutral.

4. Criminal Law: Right to Counsel. The right of an indigent defendant to have counsel does not give him the right to be represented by counsel of his own choosing, and mere distrust of, or dissatisfaction with, appointed counsel is not in itself sufficient to warrant the appointment of substitute counsel.

5. Criminal Law: Lesser-Included Offenses. The test to be applied in determining whether or not to submit a lesser-included offense is whether there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense.

6. Criminal Law: Evidence: Courts: Judgments. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.

7. Criminal Law: Evidence: Verdicts. A guilty verdict of the fact finder in a criminal case must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it.

Timothy A. Sindelar of Sindelar & Gooch, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

The defendant, Gerald Joseph Fallis, was charged in a multicount information of committing the offenses of (1) first degree sexual assault under section 28-408.03, R.R.S.1943; (2) burglary under section 28-532, R.R.S.1943; and (3) being a habitual criminal under section 29-2221, R.R.S.1943. He was convicted of the first two offenses after a trial to the jury, and was sentenced to serve a term of 8 to 25 years on the first degree sexual assault conviction, and to a term of 1 to 10 years on the burglary conviction, the sentences to run concurrently. He has appealed those convictions to this court. We affirm.

The victim, an 83-year-old retired school teacher, was sexually assaulted in her home in Valentine, Nebraska, during the evening hours of September 16, 1978. Due to her physical condition and the nature of the attack, she was unable to identify her assailant. Defendant, an American Indian, enrolled in the Rosebud Sioux Tribe and residing in Mission, South Dakota, was arrested later that evening upon information obtained by the police following an investigation of the incident. Counsel was appointed by the court to represent the defendant; and upon his arraignment on counts I and II of the information, the defendant entered pleas of not guilty to those charges. The charge of being a habitual criminal was later dismissed by the court and will not again be referred to in this opinion.

Trial was originally set by the court for January 8, 1979; however, because of various motions filed by the defendant, and two continuances granted by the court on its own motion, the trial was reset for February 12, 1979. Following the second continuance, and prior to trial, both the defendant and his court-appointed counsel filed separate motions to disqualify defendant's attorney from representing the defendant in the action. The basis for the motion of defendant's attorney was that his client had failed to cooperate with him in the preparation of the case and had not confided in him or given him the names of prospective witnesses, and had indicated that he preferred to have an attorney more closely associated with the American Indian movement. In support of his separate motion, the defendant alleged that he was unable to confide in his court-appointed attorney and felt that there was a conspiracy between the prosecuting attorney and his court-appointed attorney, and that he would be unable to obtain fair representation in the trial. Both motions were overruled by the court, and the trial commenced the same day.

There was little, if any, conflict in the evidence adduced at the trial, with the exception of the evidence in support of the defendant's alibi defense, his claim being that he was in Kilgore, Nebraska, during the entire evening on which the alleged assault had been committed. The State presented evidence which, if believed by the jury, placed the defendant at the scene of the crime in Valentine, Nebraska, at the time the crime was committed. There was also evidence indicating that the defendant was the assailant of the victim at that time.

Based on the evidence presented at that trial, the jury returned a verdict of guilty on both counts, and the defendant was sentenced as above indicated.

In his appeal to this court, the defendant assigns four errors which he claims constitute reversible error. Defendant's first and principal contention is that the trial court erred in denying his motion for a change of venue. In his motion, defendant contended that a change of venue was necessary in order to receive a fair trial for the reason that there was extensive pretrial publicity, and more importantly, that the jury panel included no American Indians. In support of his motion, defendant presented three affidavits, almost identical in form, and containing conclusional statements without supporting facts, to the effect that an American Indian was unable to receive a fair trial in Cherry County, Nebraska. He also produced evidence with regard to the alleged absence of American Indians on the jury panel. The rule is well established that a motion for a change of venue in a criminal action 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. State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974); State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971); Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951); State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976). In connection with the issue of extensive pretrial publicity as justifying a change of venue, this court stated in State v. Ell, supra : "A survey of cases throughout the United States shows that among the relevant factors considered in determining whether a change of venue should be granted due to pretrial publicity are 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 selection of the jury; the number of challenges exercised during the voir dire; the severity of the offense charged; and the size of the area from which the venire is drawn." We note, however, that the defendant did not introduce any evidence whatsoever as to what the purported extensive pretrial publicity consisted of. In the absence of such evidence, we are reluctant to express an opinion on the prejudicial nature of this publicity, if any.

However, the proceedings of the voir dire of the jury at the trial are available and revealing on this issue. It is interesting to note that of the 38 talesmen in the venire, only 11 were dismissed for cause. None of the persons dismissed for cause were dismissed because of exposure to pretrial publicity. In reviewing the record, we are unable to find anything which would indicate that the purported pretrial publicity was so extensive or of such a nature as to make it impossible for the defendant to secure a fair trial in Cherry County, Nebraska.

Defendant also contested the manner used in the selection of the jury panel in his motion for change of venue. Specifically, he contended that the jury panel contained no American Indians and was therefore not a jury of defendant's "peers." We comment, in passing, that in this country the word "peers" is generally held to mean "citizens," and nothing more. 70 C.J.S. Peers p. 385; Black's Law Dictionary (5th Ed., 1969), p. 1019. However, we believe defendant is in effect contesting the method of the selection and composition of his jury. In State v. Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977), this court stated: "A prima facie case of discrimination in jury selection can be established upon demonstration that a significant disparity exists between the percentage of a particular minority chosen for jury duty and the percentage of that minority available in the population from which the jurors are drawn. See Gibson v. Blair, 467 F.2d 842 (5th Cir., 1972). For example, in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), proof that a substantial segment of the population was of negroid descent, coupled with proof that no black American, although several were qualified, was ever called for jury service over an extended period of time, was held to...