State v. Richter

• Decision Date: 13 December 1985
• Docket Number: No. 85-275,85-275
• Citation: 378 N.W.2d 175,221 Neb. 487
• Parties: STATE of Nebraska, Appellee, v. Vernon G. RICHTER, Appellant.
• Court: Nebraska Supreme Court

Page 175

378 N.W.2d 175

221 Neb. 487

STATE of Nebraska, Appellee, v. Vernon G. RICHTER, Appellant.

No. 85-275.

Supreme Court of Nebraska.

Dec. 13, 1985.

Syllabus by the Court

1. Criminal Law: Right to Counsel: Words and Phrases. Indigency, as used in Neb.Rev.Stat. § 29-1804.04 (Reissue 1979), means the inability to retain legal counsel without prejudicing one's financial ability to provide economic necessities for one's self or one's family.

2. Ordinances: Judicial Notice: Appeal and Error. This court will not take judicial notice of a municipal ordinance which is not in the record.

3. Criminal Law: Right to Counsel: Trial. A defendant is entitled to be represented by counsel at all critical stages of a criminal proceeding against him, which includes the trial itself.

4. Criminal Law: Right to Counsel. Entitlement to the assistance of counsel and entitlement to the provision of counsel at public expense are different matters.

5. Criminal Law: Right to Counsel. The requirement of Neb.Rev.Stat. § 29- 1804.05 (Cum.Supp.1984) is that before counsel be provided at public expense for a criminal defendant, there be a "reasonable inquiry to determine" the defendant's "financial condition."

6. Criminal Law: Right to Counsel. In determining whether a criminal defendant is indigent as the term is used in Neb.Rev.Stat. § 29-1804.04 (Reissue 1979), a court is to consider the seriousness of the offense; the defendant's income; the availability to the defendant of other resources, including real and personal property, bank accounts, Social Security, and unemployment or other benefits; normal living expenses; outstanding debts; and the number and age of dependents.

7. Motions for Continuance: Appeal and Error. A motion for the continuance of a trial is addressed to the sound discretion of the trial court, and the trial court's ruling on such a motion will not be disturbed on appeal in the absence of a showing of an abuse of that discretion.

8. Criminal Law: Right to Counsel: Trial. The exercise of the right to the assistance of counsel is subject to the necessities of sound judicial administration and requires a balancing of a criminal defendant's right to a reasonable opportunity to prepare for trial and to consult counsel with the necessity for the orderly and prompt disposition of cases in the orderly course of the administration of justice.

9. Criminal Law: Right to Counsel: Trial. Where a criminal defendant is financially able to engage an attorney, he may not use his neglect in hiring one as a legitimate reason for delay.

Philip M. Kelly, of Winner, Nichols, Douglas & Kelly, Scottsbluff, for appellant.

Robert M. Spire, Atty. Gen., and Jill Gradwohl, Lincoln, for appellee.

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

CAPORALE, Justice.

Following a county court bench trial, defendant, Vernon G. Richter, was convicted of third offense driving while under the influence of alcohol pursuant to a Scottsbluff city ordinance. He was thereafter sentenced to incarceration in the county jail for a period of 6 months, to pay a fine of $500, to have his operator's license permanently revoked, and to pay costs. On appeal the district court affirmed the conviction and sentence. Richter's assignments of error in this court merge into claims that the district court erred by affirming the county court's (1) determination that Richter was not indigent and therefore not entitled to appointed counsel, (2) failure to grant a continuance, and (3) finding that the evidence was sufficient to support the charge. We remand with the direction that a further inquiry be conducted to determine whether Richter was indigent at the time of trial. If so, he is to be granted a new trial; if not, the judgment of conviction and sentence stand affirmed.

On October 13, 1984, Officers James Moore and Edwin Mayo of the Scottsbluff Police Department observed Richter's vehicle proceeding along a street in an area to which they had earlier been dispatched because of a disturbance. Richter, who was not involved in the disturbance, pulled his vehicle to the side of the road and parked it about a half block away from the scene of the disturbance.

After the officers had taken care of the disturbance, they noticed that Richter had slumped down in the seat of his automobile. They thereupon approached the automobile and pounded on the windows; Richter, however, failed to respond. The officers saw that Richter was lying on the front seat and, with the help of a tool, unlocked a door. As they went to shake him, Richter awoke.

The officers then detected a strong smell of alcohol on Richter's person and observed that his eyes were bloodshot and that his speech was slurred.

The officers thereupon advised Richter not to drive any more that night, and Richter agreed. Shortly thereafter, Officer Mayo saw Richter's automobile proceeding down a street with the headlights off. After radioing Officer Moore, Mayo stopped the vehicle and found that Richter was driving.

Richter was then asked to perform some field sobriety tests, which he performed unsatisfactorily. After concluding that Richter was intoxicated, the officers arrested him and took him to the police station. Richter subsequently submitted to a chemical test of his breath, which indicated that he had fourteen-hundredths of 1 percent of alcohol in his blood.

Richter appeared at the arraignment hearing on October 26, 1984, without counsel and pled not guilty. In response to the county judge's questioning, he informed the court that he intended to hire a Scottsbluff attorney with whom he had spoken. The court then instructed Richter to get a trial date from the clerk of the court and to get in touch with his attorney. Trial was set for December 18, 1984.

The Scottsbluff attorney wrote the court on November 16, 1984, explaining that he had received a notice of trial regarding Richter and the charges against him. The attorney explained that he had not been "officially" retained by Richter and asked whether, if he were retained, the matter could be continued, as he was committed to taking depositions in another state on the scheduled trial date. The letter to the court indicates that a copy was sent to Richter.

On the scheduled trial date Richter appeared without counsel. The dialogue between Richter and the county judge establishes that Richter could not borrow and therefore could not pay the $3,000 fee the Scottsbluff attorney wanted in advance of trial. Richter had known for a "couple of weeks" prior to the scheduled trial that he could not "come up" with the money, but nonetheless continued in his efforts to borrow. Richter also indicated he had discussed the matter with a Gering attorney, who indicated that his total fee would be between $2,500 and $3,000, $1,000 of which would have to be paid before trial. Richter indicated "it's going to take me a little while to save up that kind of money" and asked that an attorney be appointed for him. The county judge then inquired as to Richter's income. Richter replied it was between $1,400 and $1,500 a month. The record does not disclose whether that was gross or net income. The following exchange then took place.

[Judge]: It's pretty hard to call you a pauper.

[Richter]: Well, yeah, but, you know, I've got other debts too. They want it all at once. Owe 3,000, and I can't come up with it.

[Judge]: And are you supporting anybody besides yourself?

[Richter]: My wife and four kids.

[Judge]: That sounds like a lot of income for a pauper.

....

[Judge]: I don't believe that you're within the guidelines of the public defender's office at all, Mr. Richter. I'm going to have to turn you down on that application.

Richter then moved for a continuance in order that he might see whether he could come up with the $1,000 in "maybe a month's time" or perhaps less, as he was to receive a check on "the 28th of this month." The prosecutor objected on the ground that his client had incurred expenses in procuring the presence of its witnesses. In denying Richter's motion for continuance, the county judge observed that Richter knew he could have called the clerk of the court or the judge prior to the day of trial to ask for more time in order to secure the services of an attorney.

The matter then proceeded to trial. In addition to establishing the facts surrounding the arrest and blood alcohol content, as set forth earlier, the prosecution offered in evidence certified copies of two prior counseled convictions of Richter for driving while under the influence of alcohol.

After the State's closing argument, the court asked Richter whether he wanted to argue. Richter informed the court that he had two witnesses he wanted to bring to court but that he did not have them ready that day. The court told Richter that "[t]hat might have been grounds for a continuance [before evidence was introduced] but it's too late to bring that up now."

Richter first claims that the county court erred in refusing to appoint the public defender to represent him and that such refusal constituted a violation of his sixth amendment right to counsel.

Neb.Rev.Stat. § 29-1804.05 (Cum.Supp.1984) provides:

At a felony defendant's first appearance before a court, the court shall advise him or her of the right to court-appointed counsel if he or she is indigent.

If he or she asserts indigency, the court shall make a reasonable inquiry to determine his or her financial condition, and may require him or her to execute an affidavit of indigency. If the court determines him or her to be indigent, it shall formally appoint the public defender to represent him or her in all proceedings before the court, and shall make a notation of such appointment and appearances of the public defender upon the felony complaint. The same procedure shall be followed by the court in misdemeanor cases punishable by imprisonment.

Neb.Rev.Stat. § 29-1804.04 (Reissue 1979)...