State v. McHenry

• Decision Date: 12 July 1996
• Docket Number: No. S-95-782,S-95-782
• Citation: 550 N.W.2d 364,250 Neb. 614
• Parties: STATE of Nebraska, Appellee, v. Darrin McHENRY, Appellant.
• Court: Nebraska Supreme Court

Page 364

550 N.W.2d 364

250 Neb. 614

STATE of Nebraska, Appellee, v. Darrin McHENRY, Appellant.

No. S-95-782.

Supreme Court of Nebraska.

July 12, 1996.

Syllabus by the Court

1. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

2. Trial: Juries. Except when there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine a potential juror out 3. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof.

of the presence of all the other potential jurors.

4. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

5. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prevents a second prosecution for the same offense after acquittal.

6. Double Jeopardy: Homicide. The principles underlying the double jeopardy protection clearly establish that acquittal of a felony in a previous trial prevents the use of the same felony as an underlying felony to support a felony murder prosecution in a retrial.

7. Constitutional Law: Criminal Law: Convictions: Appeal and Error. Even a constitutional error which was harmless beyond a reasonable doubt does not warrant the reversal of a criminal conviction.

8. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.

9. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely attributable to the error.

10. Trial: Testimony: Hearsay: Prior Statements. Ordinarily, the testimony of a person taken in a prior trial is hearsay and is not admissible.

11. Witnesses: Hearsay. Neb.Rev.Stat. § 27-804(2)(a) (Reissue 1995) provides an exception to the hearsay rule if the declarant is unavailable as a witness.

12. Trial: Witnesses. The determination of whether a witness is unavailable is left to the discretion of the trial court.

13. Trial: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.

14. Venue: Proof. To warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity.

15. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

16. Double Jeopardy. The Double Jeopardy Clause precludes multiple punishment for the same offense imposed in a single proceeding.

17. Double Jeopardy: Legislature. The multiple punishment prong of the double jeopardy bar seeks to ensure that the total punishment does not exceed that authorized by the Legislature.

18. Double Jeopardy: Legislature: Intent: Convictions. A determination of whether two convictions in a single trial lead to multiple punishment depends upon whether the Legislature, when designating the criminal statutory scheme, intended that cumulative sentences be applied for conviction on both offenses.

19. Double Jeopardy: Statutes: Legislature: Intent: Sentences. If a statute clearly and affirmatively indicates that the Legislature intended that the defendant be punished cumulatively under both charges and the sentences for both charges are imposed in a single trial, the Double Jeopardy Clause is not offended.

20. Double Jeopardy: Legislature: Homicide: Convictions: Sentences. A conviction of felony murder and the underlying felony in the same proceeding is a species of impermissible multiple punishment if the Legislature did not designate that multiple sentences should be applied for conviction on both offenses.

Richard A. Birch, of Nielsen & Birch, North Platte, and Patrick B. Hays, Ogallala, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WRIGHT, Justice.

Darrin McHenry appeals his convictions of aiding and abetting first degree murder and aiding and abetting attempted robbery. We affirm in part, and in part vacate.

SCOPE OF REVIEW

In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996); State v. Woods, 249 Neb. 138, 542 N.W.2d 410 (1996); State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995).

Except when there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine a potential juror out of the presence of all the other potential jurors. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995); State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. State v. McHenry, supra; State v. Bowen, 244 Neb. 204, 505 N.W.2d 682 (1993).

A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993).

FACTS

McHenry was arraigned in the district court for Lincoln County on August 4, 1993, and was charged in an amended information with four counts regarding his involvement in the death of Richard Sterkel--aiding and abetting first degree murder, aiding and abetting attempted robbery, first degree sexual assault, and aiding and abetting first degree sexual assault. On September 16, a jury convicted McHenry of the first three counts and acquitted him of aiding and abetting first degree sexual assault. On appeal, we set aside McHenry's convictions and remanded the cause for retrial. See State v. McHenry, supra. In McHenry's second jury trial, he was found guilty of aiding and abetting first degree murder and aiding and abetting attempted robbery, and found not guilty of first degree sexual assault. The district court sentenced McHenry to life imprisonment on aiding and abetting first degree murder mnd to a concurrent sentence of 6 2/3 to 20 years on aiding and abetting attempted robbery. McHenry now appeals.

McHenry, Frank Ladig, Antonio Estrada, Nordell Moore, and others were living in an encampment near the American Legion Club in North Platte, Nebraska. As Sterkel was walking his bike by the campsite, McHenry invited him to join the group in some drinking.

During the time that Sterkel stayed with the group, the men drank heavily. After the group went swimming in the South Platte River, Sterkel noticed that his wallet was missing, and he announced this to the group. Ladig testified that he found the wallet in his shoes, returned it to Sterkel, and asked Sterkel to check to determine if the money was still there. Sterkel confirmed that the $52 was still in his wallet. Shortly thereafter, McHenry and Ladig argued about Sterkel's money. Ladig testified that McHenry told Ladig and Estrada that Sterkel's money On July 28, 1992, it was raining and the group relocated underneath a nearby bridge. McHenry, Ladig, Sterkel, Moore, and Estrada were present. Ladig testified that McHenry suddenly stood up and announced, " 'Let's do it.' " McHenry looked at Estrada and asked him if he was ready, and Estrada also stood up. McHenry then hit Sterkel in the face with his fists. Estrada asked Ladig if he was going to join them in their actions against Sterkel, and Ladig agreed. Ladig and Estrada hit Sterkel a few times.

was McHenry's and that they were to leave it alone. Estrada testified that Ladig later told him that he and McHenry had planned to rob Sterkel.

McHenry asked Sterkel for his wallet, and Sterkel told him that the wallet was hidden in the trees. McHenry ordered Sterkel to take him to it, and the group began prodding Sterkel along a path through the woods, hitting and kicking him.

Ladig testified that when Sterkel fell down, Estrada jumped on Sterkel and began to choke him. Ladig picked Sterkel up and forced him along the path. Sterkel fell a second time, and McHenry kicked Sterkel in the face and upper body. McHenry demanded, " 'Where's your wallet,' " and Sterkel replied that it was in the trees. Unable to find the wallet, McHenry returned and again began to kick and strike Sterkel. Ladig testified that during this time, he heard a sound "like [Sterkel] was choking on his blood or something."

Estrada testified that the kicking and beating continued until they arrived at the place where Sterkel had said his wallet and money were located. Still unable to find the wallet, McHenry and Ladig began to violently beat Sterkel. McHenry held Sterkel while Ladig pulled his clothes off and...