State v. Heathman

• Decision Date: 31 October 1986
• Docket Number: No. 86-047,86-047
• Citation: 224 Neb. 19,395 N.W.2d 538
• Parties: STATE of Nebraska, Appellee, v. Noel J. HEATHMAN, Appellant.
• Court: Nebraska Supreme Court

Page 538

395 N.W.2d 538

224 Neb. 19

STATE of Nebraska, Appellee, v. Noel J. HEATHMAN, Appellant.

No. 86-047.

Supreme Court of Nebraska.

Oct. 31, 1986.

Syllabus by the Court

1. Criminal Law: Venue: Juries. To secure a change of venue the defendant must show that pretrial publicity has made it impossible to secure a fair and impartial jury.

2. Criminal Law: Escape: Sentences. Nebraska's escape statute, Neb.Rev.Stat. § 28-912 (Reissue 1985), defines one offense and sets out factors which, if present, change the range of the penalty.

Dennis R. Keefe, Lancaster County Public Defender, for appellant.

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

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

WHITE, Justice.

This is an appeal from the district court for Lancaster County in which the appellant, Noel J. Heathman, was charged with one count of escape. Appellant was found guilty and sentenced to the Department of Correctional Services for a period of 18 months.

Appellant's assignments of error may be summarized as follows: (1) The trial court erred in overruling the appellant's motions for change of venue due to pretrial publicity; (2) The court erred in requiring the appellant to remain in leg irons during trial; (3) The court erred in overruling the appellant's motion for mistrial due to prosecutorial misconduct during opening statements; and (4) The court erred in failing to instruct the jury that the elements of the offense of escape are escape from official detention after conviction for the commission of an offense.

The facts are as follows. During a preliminary hearing, counsel for the appellant moved for a change of venue on the basis of the pretrial publicity Heathman's escape had received. Newspaper clippings of the escape were offered and received into evidence. The motion was denied on the basis that there had been an insufficient showing of prejudice to justify a change of venue. There had been no survey of potential jurors, nor, in the eyes of the court, was any more publicity given the Heathman escape than that given other alleged criminal activities.

During the voir dire examination, the motion was renewed. The trial judge permitted the appellant's counsel to voir dire potential jurors in groups of six. While several of the potential jurors remembered hearing or reading something about the appellant's escape, each person stated that he or she could be a fair and impartial juror. The motion for change of venue was again renewed, and counsel for the appellant refused to pass the panel for cause. The court held that no juror had been shown to have formed or expressed an opinion as to the guilt of Heathman, and although some members of the panel stated that they had knowledge of the incident, their knowledge was vague and indefinite. More importantly, each juror pledged to render a fair and impartial verdict. The trial court again overruled the motion for change of venue.

Appellant next objected to the court's order requiring the appellant to wear leg irons when in the presence of the jury. In response, the court stated:

I think considering the nature of the charge and his expressed intentions, I don't know what other alternative there is to really provide for security. Do you have any suggestions? We have one, two, three, four doors into the courtroom. I suppose we're talking about, if we were to make sure he could not bolt and get away, I suppose we're talking about a minimum almost of six individuals as guards. I suppose the alternative is he's got the leg irons on.

The other alternative is the courtroom looks like an armed camp. I don't know. Do you have any suggestions?

MR. KEEFE: Well, I don't know that the courtroom has to look like an armed camp.

THE COURT: Do you want to chain him to the window or something? I don't know.

The court permitted the arm shackles to be removed but required Heathman to remain in leg irons.

Next, appellant moved for mistrial during opening statements as a result of comments made by the prosecutor in his opening remarks. The State made reference to the fact that at the time of his escape Heathman was incarcerated after a conviction for kidnaping. After some discussion with regard to the relevance of counsel's remarks, the court denied the appellant's motion for mistrial and, at the request of the prosecutor, admonished the jury that the reference to Heathman's prior offense was irrelevant and should be totally disregarded.

Finally, counsel for the appellant contends that the trial court erred in failing to instruct the jury that the elements of the offense of escape include official detention after conviction for the commission of an offense. The jury was instructed: "On or about the 9th day of September, 1984 in Lancaster County, Nebraska, the defendant, Noel Heathman, did unlawfully remove himself from official detention." Counsel for the appellant argued that the language "following conviction for the commission of an offense" must be included in the instruction as an essential element of the crime of escape under Neb.Rev.Stat. § 28-912 (Reissue 1985). The trial court held that under State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981), the language at issue would go only to the penalty phase of the proceedings and, therefore, should not be included in the instruction on the essential elements of the crime of escape. We affirm.

Addressing appellant's first assignment of error, appellant contends that he was denied a fair and impartial jury due to the extensive pretrial publicity his escape received. We have often repeated, most recently in State v. Irish, 223 Neb. 578, 391 N.W.2d 137 (1986), that a motion for change of venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. Looking to the record of the voir dire, we find no abuse of discretion.

In State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976), we set out an analysis of the factors to be taken into account in the consideration of a motion for change of venue. They include: (1) the nature of the publicity; (2) the degree to which the publicity has circulated throughout the community; (3) the degree to which publicity has circulated to areas to which venue could be changed; (4) the length of time between the dissemination of the publicity and the date of the trial; (5) the care exercised and the ease encountered in the selection of the jury; (6) the severity of the charge; and (7) the size of the area from which venire is drawn.

Applying the Ell analysis to the facts of the case at hand, we note that the publicity centered around the method of the escape and the effects of the escape upon the prison, not primarily upon Heathman himself. The defense counsel examined the potential jurors in groups of six with respect to the issue of pretrial publicity. Of the 24 persons on the panel, only 12 recalled hearing something about the case, and their knowledge was vague and indefinite. None could remember specific details. See State v. Kirby, 185 Neb. 240, 175 N.W.2d 87 (1970). Each member of the panel was able to commit himself or herself to rendering a fair and impartial verdict. None had formed or expressed any opinion as to the defendant's guilt.

To secure a change of venue the defendant must show that pretrial publicity has made it impossible to secure a fair and impartial jury. State v. Fallis, 205 Neb. 465, 288 N.W.2d 281 (1980); State v. Rife, 215 Neb. 132, 337 N.W.2d 724 (1983). It is not required that the jurors be completely ignorant of the facts of the case. It is sufficient that the jurors are able to lay aside their impressions or opinions and render a verdict based solely upon the evidence adduced at trial. State v. Navarrete, 221 Neb. 171, 376 N.W.2d 8 (1985); State v. Torrence, 192 Neb. 213, 219 N.W.2d 772 (1974), cert. denied 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975). We find no merit in this assignment of error.

The appellant's second assignment of error centers upon the trial court's requirement that Heathman remain in leg irons while in the presence of the jury. An examination of the record makes clear that the trial court chose the least restrictive means available. In State v. Weikle, 223 Neb. 81, 388 N.W.2d 110 (1986), we faced circumstances very similar to the case at hand. In Weikle there were inmate witnesses in the courtroom to testify, and the appellant there also had expressed an intent to escape. There, we held the action of the trial court to be both reasonable and prudent to ensure the safety of all involved.

In South v. State, 111 Neb. 383, 196 N.W. 684 (1923), this court held that a defendant should be free from shackles during a criminal prosecution unless they are necessary to prevent violence or escape. As we noted in Weikle, not every practice that tends to single out the accused must be struck down. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In light of this case law and in view of the court's consideration on the record of the available alternative, Heathman's expressed intent to escape again, and his criminal history, we can find no error in the court's decision to require Heathman to remain shackled during the course of the trial.

The appellant argues that the trial court placed the burden upon him to demonstrate why he should not be shackled, instead of placing the burden upon the State to demonstrate why he should be shackled. We disagree. In the dialogue with defense counsel, the court recited the considerations it felt required the shackling and invited defense counsel to refute those considerations. No burden was unfairly placed on the appellant. The action of the district court was correct.

Focusing upon appellant's third assignment of error, the trial court's refusal to grant a mistrial on the ground of prosecutorial misconduct,...