State v. Green

• Decision Date: 03 August 1990
• Docket Number: No. 89-658,89-658
• Citation: 236 Neb. 33,458 N.W.2d 472
• Parties: STATE of Nebraska, Appellee, v. Patrick J. GREEN, Appellant.
• Court: Nebraska Supreme Court

Page 472

458 N.W.2d 472

236 Neb. 33

STATE of Nebraska, Appellee, v. Patrick J. GREEN, Appellant.

No. 89-658.

Supreme Court of Nebraska.

Aug. 3, 1990.

Syllabus by the Court

1. Constitutional Law: Right to Counsel. An accused has a sixth amendment right to conduct his own defense, provided that he knowingly and intelligently forgoes his right to counsel and he is able and willing to abide by rules of procedure and courtroom protocol.

2. Trial: Right to Counsel. A trial court may appoint standby counsel to aid an accused, if the accused desires assistance, and to be available to represent the accused if termination of self-representation becomes necessary.

3. Constitutional Law: Right to Counsel: Judges. A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure, nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.

4. Juror Qualifications: Waiver. A party who fails to challenge prospective jurors for disqualification and does not use his peremptory challenges to remove such jurors from the panel waives any objection to their selection.

5. Trial: Jury Instructions. It is the duty of the trial judge to instruct on the law of the case, and the law so given to the jury in the instructions must apply even though the jury may decide that the law should be otherwise.

6. Juries: Verdicts: Jury Instructions. Although a jury may acquit an accused even if its verdict is contrary to the law and the evidence, the defendant is not entitled to have the jury instructed about the power of jury nullification.

7. Jury Instructions: Appeal and Error. If the jury instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error.

8. Convictions: Appeal and Error. The Supreme Court will sustain a criminal conviction if, taking the view most favorable to the State, there is sufficient evidence to support it.

James C. Stecker, Columbus, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, North Platte, for appellee.

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

BOSLAUGH, Justice.

The defendant, Patrick J. Green, was convicted by a jury of operating a motor vehicle during a period of suspension, in violation of Neb.Rev.Stat. § 60-430.01 (Reissue 1988), a Class III misdemeanor. He was sentenced to 45 days in jail, and his driving privileges were suspended for 12 months. Upon appeal to the district court, the judgment was affirmed.

The defendant has appealed to this court and claims that the district court erred in affirming the judgment of the county court because § 60-430.01 is unconstitutional and that the trial court erred in failing to appoint an attorney to serve as standby counsel for the defendant, in limiting the scope of the defendant's voir dire, and in failing to properly instruct the jury. The defendant also claims that his driving privileges were twice taken for the same "revocation."

The record shows that during the early morning hours of July 5, 1988, Officer Fairchild and Sergeant Galitz of the Columbus Police Department saw the defendant driving an automobile within the city limits of Columbus, Platte County, Nebraska. Officer Fairchild, who was out of uniform and was in the police cruiser "[k]eeping Sergeant Galitz company," had previously arrested the defendant for driving under suspension. Sergeant Galitz was subsequently informed by dispatch that the defendant's driver's license was suspended or revoked. The defendant was arrested by the two officers outside the Columbus city limits. At trial, the State introduced records of the Department of Motor Vehicles showing that the defendant's driver's license had been suspended for the period of March 14 through September 14, 1988.

The defendant appeared pro se at his trial and in the district court. Counsel was appointed to represent the defendant in this appeal.

CONSTITUTIONALITY OF § 60-430.01

During a pretrial conference held August 11, 1988, the defendant moved that the court decide the constitutionality of § 60-430.01, contending that license revocation was cruel and unusual punishment and that he had a right to travel upon the highways. After taking the matter under advisement, the county court denied the defendant's "motion for declaratory judgment on the constitution."

It is not clear from the record whether this issue was raised in the defendant's appeal to district court. Assuming, arguendo, that the issue was properly raised, the defendant's contention that § 60-430.01 is unconstitutional is without merit.

Section 60-430.01 provides, in part:

It shall be unlawful for any person to operate a motor vehicle during any period that his or her motor vehicle operator's license has been suspended, revoked, or impounded pursuant to conviction or convictions for violation of any law or laws of this state or by an order of any court or by an administrative order of the Director of Motor Vehicles or after such suspension, revocation, or impoundment but before reinstatement of his or her license or issuance of a new license.

The statute now provides a penalty of 1 year's suspension for a first offense and 2 years' suspension for each subsequent offense.

In his brief, the defendant claims the penalty constitutes cruel and unusual punishment, in violation of U.S. Const. amend. VIII. In connection with this claim, the defendant argues that a license suspension under § 60-430.01 deprives him of the opportunity to obtain meaningful work and employment.

A similar issue was raised in State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985), where Michalski argued that the penalty of permanent license revocation for third-offense drunk driving constituted cruel and unusual punishment under the U.S. and Nebraska Constitutions. This court held that Neb.Rev.Stat. § 39-669.07(3) (Reissue 1984) was constitutionally valid and that the penalty of permanent license revocation did not constitute cruel and unusual punishment under either the state or federal Constitution.

In light of our holding in Michalski, supra, the penalty of 1 or 2 years' suspension found in § 60-430.01 does not constitute cruel and unusual punishment.

The defendant further contends that, pursuant to the statute, he has been deprived of "life, liberty, and the pursuit of happiness," contrary to Neb. Const. art. I, § 1. Brief for appellant at 35. In connection with this argument, the defendant claims the suspension of his driver's license infringes on his happiness by limiting his ability to obtain jobs with better pay. He also claims that the statute unconstitutionally restricts his ability to travel. These arguments are frivolous. The defendant has not been deprived of employment, only of his privilege to drive an automobile, and is not prevented from pursuing other modes of transportation or being transported by others in an automobile.

The defendant's constitutional arguments are without merit.

RIGHT TO COUNSEL

The defendant next contends that the trial court erred in failing to appoint an attorney to serve as standby counsel. Notwithstanding his earlier emphatic statements to the contrary, he argues that "it is obvious that the defendant did not want to proceed through trial without any legal assistance." Brief for appellant at 15.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the U.S. Supreme Court held that an accused has a sixth amendment right to conduct his own defense, provided that he knowingly and intelligently forgoes his right to counsel and he is able and willing to abide by rules of procedure and courtroom protocol. See, also, State v. Jost, 219 Neb. 162, 361 N.W.2d 526 (1985) (although an accused is entitled to be represented by counsel in all critical stages of a criminal proceeding against him, including sentencing, the right to counsel may be waived if such waiver is made intelligently and understandingly, with the knowledge of an accused's right to counsel).

A trial court may appoint standby counsel to aid an accused if the accused desires assistance, and to be available to represent the accused if termination of self-representation becomes necessary. Faretta supra at 422 U.S. at 834-35 n. 46, 95 S.Ct. at 2541 n. 46. However, Faretta does not require a trial judge to permit "hybrid" representation. McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). "A defendant does not have a constitutional right to choreograph special appearances by counsel." 465 U.S. at 183, 104 S.Ct. at 953. In holding that a defendant's sixth amendment rights are not violated when a trial judge appoints standby counsel, even over the defendant's objection, the McKaskle Court noted that "[a] defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course." 465 U.S. at 183-84, 104 S.Ct. at 954.

The record shows that during his arraignment, the defendant was advised of his constitutional rights, including his right to a court-appointed attorney for jailable offenses. After an extensive discussion with the court, the defendant indicated he understood the possible penalty for the offense to be a maximum of 3 months' imprisonment, a $500 fine, or both. When the court asked the defendant if he desired an attorney, the defendant replied, "I certainly don't," and indicated that he wanted to proceed without an attorney.

At the August 11 pretrial conference, the trial court ascertained that the defendant did not have an attorney and asked whether he was able to afford an attorney. The defendant replied, "I don't see what difference...