State v. Robinson, 84-010

• Decision Date: 27 July 1984
• Docket Number: No. 84-010,84-010
• Citation: 218 Neb. 156,352 N.W.2d 879
• Parties: STATE of Nebraska, Appellee, v. Darwin Jay ROBINSON, Sr., Appellant.
• Court: Nebraska Supreme Court

Page 879

352 N.W.2d 879

218 Neb. 156

STATE of Nebraska, Appellee, v. Darwin Jay ROBINSON, Sr., Appellant.

No. 84-010.

Supreme Court of Nebraska.

July 27, 1984.

Syllabus by the Court

1. Effectiveness of Counsel. Where one maintains that counsel was inadequate, one must likewise show how or in what manner the alleged inadequacy prejudiced the defendant.

2. Effectiveness of Counsel. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

3. Criminal Law: Effectiveness of Counsel: Appeal and Error. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

4. Criminal Law: Effectiveness of Counsel: Appeal and Error. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

5. Criminal Law: Confessions: Miranda Rights. Voluntary statements made to third persons who were not then acting as police officers or their equivalent are not inadmissible, even though the individual did not receive his Miranda warnings.

Darwin Jay Robinson, Sr., pro se.

Paul L. Douglas, Atty. Gen., and Calvin D. Hansen, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, Darwin Jay Robinson, Sr., appeals from a judgment entered by the district court for Douglas County, Nebraska, denying to Robinson relief pursuant to the Nebraska Post Conviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979). Robinson maintains that the trial court erred in failing to find he had ineffective assistance of counsel at a pretrial suppression hearing and again on appeal to this court. We believe that both contentions are wholly without merit, and for that reason the judgment of the trial court is affirmed.

The facts which give rise to all of this litigation disclose that in the early morning hours of January 31, 1981, a convenience store attendant, Marvin Pfeifer, was robbed at knife point. Just as the robber was leaving, another attendant, Michael Klaumann, came on duty and passed by the robber. As Klaumann entered the store, Pfeifer told him that he had been robbed. Klaumann returned to the street, got into his automobile, and followed a white Buick, as it was the only other car on the street at that time. The driver resembled the individual who passed by Klaumann when Klaumann was entering the store. Klaumann obtained the license number, followed the car to an apartment building, and gave this information to the police.

The authorities then went to the location provided by Klaumann and towed the automobile away. Shortly thereafter, a woman representing herself to be Robinson's wife reported to the police that their car had been stolen or towed away. Investigating officers arrived at Robinson's apartment and spoke with the woman who said she called the police and who held herself out to be Robinson's wife. It later developed that, in fact, the individual was not Robinson's wife but, rather, a Miss Edna Lyncook, who had been instructed by Robinson to represent herself to the police as Robinson's wife. The real Mrs. Robinson was hiding in a bedroom of the apartment when the police arrived.

One of the investigating officers asked Miss Lyncook, who was then representing herself to be Mrs. Robinson, whether he could have a photograph of Mr. Robinson. There is a dispute as to whether Miss Lyncook consented, but at the suppression hearing the trial court resolved that fact in favor of the State. The officer then left the location and returned to the convenience store, where he showed a photograph of Robinson to the attendants. Klaumann immediately identified the photograph as being a picture of the robber.

In the meantime, and while the officer was at the convenience store, Miss Lyncook admitted to the officers that in fact she was not Mrs. Robinson and that Robinson was upstairs in her apartment. The officers went upstairs to the Lyncook apartment and arrested Robinson.

After his arrest Robinson was taken downstairs to his apartment to get a coat. At this point the real Mrs. Robinson was located and advised of her husband's arrest, and was requested by the officers to grant them consent to search the apartment for certain items believed to have been worn by Robinson at the time of the robbery. She consented to the search, and a blue jacket similar to the type described by Klaumann was found.

While awaiting trial on the charges, Robinson was housed at the Douglas County Correction Center. A regularly paid informant of the State Patrol, a Mr. Koppock, was also being held there after being arrested on charges of assault and receiving stolen property. During the time Robinson and Koppock were incarcerated together, Robinson admitted to Koppock that he had robbed Pfeifer at the convenience store, using a butcher knife. The sometime informant testified at the trial. Furthermore, at the trial both Klaumann and Pfeifer identified Robinson as the robber. The jury returned a verdict of guilty on both the robbery and use of a knife charges, and the court found that Robinson was a habitual criminal.

Robinson's first assignment of error is to the effect that he received ineffective assistance of counsel because his trial counsel did not call Edna Lyncook at the suppression hearing to testify that she was not in fact Robinson's wife, had lied to the police when she told them she was his wife, and did not give consent to the officers for the photograph. Miss Lyncook was in fact called later at the actual trial by the State and testified to all that had occurred, including her false statements to the police. Following his conviction, an appeal was lodged with this court, and court-appointed counsel, pursuant to court rule, filed a motion to withdraw. That motion was considered in detail by this court and an order entered sustaining the motion to withdraw and affirming the conviction and sentence. Robinson maintains that by filing a motion to withdraw he again received ineffective assistance of counsel because there were two valid errors which should have been raised and argued to this court. The first error which Robinson maintains would have entitled him to a reversal was the inadmissibility of the photograph allegedly illegally obtained from Miss Lyncook and which was in plain sight, and, second, the testimony of Koppock to the effect that Robinson admitted committing the robbery.

Before addressing each of these matters individually, we believe...