State v. Rice, 82-186

• Decision Date: 03 June 1983
• Docket Number: No. 82-186,82-186
• Citation: 214 Neb. 518,335 N.W.2d 269
• Parties: STATE of Nebraska, Appellee, v. David L. RICE, Appellant.
• Court: Nebraska Supreme Court

Page 269

335 N.W.2d 269

214 Neb. 518

STATE of Nebraska, Appellee, v. David L. RICE, Appellant.

No. 82-186.

Supreme Court of Nebraska.

June 3, 1983.

Syllabus by the Court

1. Post Conviction: Appeal and Error. The defendant has the burden of establishing a basis for relief in a post conviction proceeding under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979), and the findings of the District Court in denying such relief will not be disturbed on appeal unless they are clearly erroneous.

2. Criminal Law: Witnesses. The existence of an agreement to testify by a witness under threats or promises of leniency made by the prosecutor is relevant to the credibility of such witness, and failure to bring that to the attention of the jury denies the defendant due process of law.

3. Post Conviction: Witnesses. The defendant has the burden of proving the existence of such promises or threats as he does for all bases for relief in a post conviction hearing.

4. Criminal Law: Witnesses. An expectation of leniency on the part of a witness, absent evidence of any expressed or implied agreement, need not be revealed to the jury.

5. Criminal Law: Constitutional Law: Evidence. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

6. Criminal Law: Constitutional Law: Evidence. The duty of the prosecution to respond to a general request for obviously exculpatory evidence does not arise simply because there is a mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial. The materiality of that evidence in a constitutional sense is not established.

7. Criminal Law: Constitutional Law: Evidence. If the evidence which the prosecution fails to disclose would have created a reasonable doubt as to the defendant's guilt, constitutional error has been committed. However, if there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial.

8. Criminal Law: Witnesses: Evidence. The principle that a state may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, does not cease to apply merely because the false testimony goes only to the credibility of the witness, but for that rule to apply, the evidence withheld must have been false.

William C. Cunningham, S.J., Chicago, Ill. for appellant.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Lincoln for appellee.

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

HASTINGS, Justice.

The defendant brought this action under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979), the Post Conviction Act, to set aside and vacate his prior conviction and/or receive a new trial.

This appeal is the culmination of a long history of litigation. The conviction and sentence of David Rice for first degree murder was affirmed by this court in State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972). The defendant obtained a writ of habeas corpus from the U.S. District Court in Rice v. Wolff, 388 F.Supp. 185 (D.Neb.1974), aff'd 513 F.2d 1280 (8th Cir.1975). On appeal, the U.S. Supreme Court reversed the granting of this writ at 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

The defendant filed a petition out of time for a writ of certiorari, which was denied. Rice v. Nebraska, 430 U.S. 947, 97 S.Ct. 1584, 51 L.Ed.2d 795 (1977). The defendant unsuccessfully sought a second writ of habeas corpus in the U.S. District Court. Rice v. Parratt, CV78-L-133 (D.Neb. Feb. 14, 1979), aff'd 605 F.2d 1091 (8th Cir.1979). Six of the counts listed in defendant's petition were dismissed for failure to exhaust available state court remedies. This led to the filing of the present action in the District Court for Douglas County, Nebraska.

The District Court found that the defendant raised four grounds which he claims constitute a denial of his constitutional rights, making the judgment against him void or voidable. First, the defendant claimed the State deliberately suppressed requested information material to the defendant's guilt or innocence, which may be exculpatory, that being the recording of a 911 call made by Duane Peak which lured Officer Larry Minard to the scene of his death in August of 1970. Second, it was claimed that a cooperation agreement between the FBI and the Omaha police division was concealed from the defendant. Third, he claims the State failed to disclose alleged promises of leniency or threats made to Duane Peak inducing his testimony against the defendant. Finally, it is alleged, the State deliberately suppressed specifically requested information material to the issue of defendant's guilt, which may be exculpatory. This claim involves a letter sent by Duane Peak to Olivia Norris while Peak was in the Dodge County jail awaiting trial. The District Court found no merit to these claims by the defendant and denied defendant's motion to vacate and set aside the judgment. We affirm the decision of the District Court.

A brief statement of the facts will aid in the understanding of this case. On August 17, 1970, Officer Larry Minard was killed by a suitcase bomb at 2867 Ohio Street, Omaha, after being summoned there by a 911 emergency call reporting a woman was screaming for help at that address. Duane Peak, David Rice, and Ed Poindexter were arrested and charged with first degree murder as a result of their participation in this matter. Duane Peak, 16 years old, testified for the State, implicating Rice and Poindexter. Peak testified that it was he who placed the suitcase bomb at 2867 Ohio Street, and made out that he was simply following the instructions of David Rice and Ed Poindexter. On the basis of this testimony and other evidence adduced, Rice and Poindexter were convicted of first degree murder. Peak was thereafter tried as a juvenile and declared a juvenile delinquent. His whereabouts is unknown at this time.

Defendant has assigned several errors to the decision of the District Court. We turn now to these assignments. Defendant's initial assignment of error is in regard to the burden of proof in this matter. He claims the trial court erred in failing to recognize that in a post conviction hearing the State may be required to discharge the burden of coming forward with the evidence to rebut a prima facie case made by the petitioner.

As we have said: "The defendant has the burden of establishing a basis for relief in a post conviction proceeding under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979), and the findings of the District Court in denying such relief will not be disturbed on appeal unless they are clearly erroneous." Marteney v. State, 210 Neb. 172, 177, 313 N.W.2d 449, 453 (1981).

Assuming arguendo that the burden of coming forward does in fact shift once the prima facie case is made, the burden of proving his case remains on the defendant. This being the proper standard of review and appropriate allocation of the burden of proof, we only need to determine if the District Court applied the appropriate rules of law in this case to findings of fact that are not clearly wrong. As will become apparent from our discussion of the remaining assignments of error, we concluded that it did.

The next several assignments of error deal with the standard of materiality applied by the District Court when determining if certain evidence should have been turned over to the defendant prior to or at trial. The defendant claims the District Court applied an incorrect standard of materiality in three separate instances. First, the defendant argues the trial court failed to distinguish between the standard of materiality in a case where the defendant attempts to discover certain evidence and in a case where the evidence in question bears directly on the credibility of a state witness. It is unclear from reading defendant's brief, but this argument seems to be directed to alleged promises of leniency and/or threats which induced Duane Peak to testify at the original trial, which were not disclosed to the jury.

As a general rule, when an accomplice testifies against a defendant in a criminal prosecution under threats or promises of leniency by the prosecutor, such promises or threats bear on the credibility of said witness. The credibility of such a witness is an important issue at trial. The existence of such an agreement, being relevant to credibility, must be brought to the attention of the jury, and the failure to do so denies the defendant due process of law. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Campbell v. Reed, 594 F.2d 4 (4th Cir.1979); United States v. Sutton, 542 F.2d 1239 (4th Cir.1976); Boone v. Paderick, 541 F.2d 447 (4th Cir.1976).

It is likewise true that the defendant has the burden of proving the existence of such promises or threats, Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.1977), as he does for all bases for relief in a post conviction hearing.

The record before us is devoid of any proof of the existence of such an agreement. Duane Peak, testifying at trial and in deposition, indicated he wished to testify because he felt things would go easier for him if he did. At the same time, Peak repeatedly denied any deal had been struck with the prosecution. Peak simply had an expectation of leniency, and, as such, absent evidence of any expressed or implied promise, it need not be revealed to the jury. Mastrian v. McManus, supra.

Peak's attorney, Thomas Carey, also testified. Carey's testimony gives rise to some inference that he may have possibly approached the prosecutor and offered to make some sort of deal for his client, but, again, he testified no deal was made prior to Peak giving testimony at trial.

Samuel Cooper, Donald Knowles,...