State v. Ryan

• Decision Date: 11 August 1989
• Docket Number: No. 86-946,86-946
• Parties: STATE of Nebraska, Appellee, v. Michael W. RYAN, Appellant.
• Court: Nebraska Supreme Court

Page 610

444 N.W.2d 610

233 Neb. 74

STATE of Nebraska, Appellee, v. Michael W. RYAN, Appellant.

No. 86-946.

Supreme Court of Nebraska.

Aug. 11, 1989.

Syllabus by the Court

1. Criminal Law: Right to Counsel. An accused is entitled to be represented by counsel at all critical stages of criminal proceedings against him, including sentencing.

2. Criminal Law: Right to Counsel. The exercise of sixth amendment rights to counsel is subject to the necessities of judicial discretion.

3. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

4. Right to Counsel. An indigent defendant's right to counsel does not include a right to be represented by counsel of his choice and to be represented by an attorney he likes or with whom he has rapport.

5. Trial. It is the duty of a trial court to expedite the trial as much as is possible without infringing upon the rights of the parties to a complete and orderly examination of all the facts and circumstances connected with the case.

6. Trial: Joinder: Appeal and Error. The right to a separate trial depends upon a showing that prejudice will result from a joint trial. A motion for a separate trial is addressed to the discretion of the trial court, and its ruling on such a motion will not be disturbed in the absence of a showing of an abuse of discretion.

7. Trial. A defendant may not make a tactical choice in the conduct of his trial and then, when dissatisfied with the results of his choice, make a different choice.

8. Constitutional Law: Trial: Joinder. Pursuant to Neb.Rev.Stat. § 29-2002 (Reissue 1985), two or more defendants may be tried together. There is no constitutional right to a separate trial, and a separate trial will only be granted upon a showing of prejudice.

9. Trial: Evidence: Parties: Jury Instructions. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

10. Trial: Evidence: Jury Instructions. While the giving of a limiting instruction is mandatory when requested, it is within the trial court's discretion whether to give a limiting instruction contemporaneously with the testimony or in the general instructions to the jury.

11. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

12. Rules of Evidence: Other Acts. Evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence, may be admissible. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.

13. Trial: Evidence. The responsibility for maintaining the delicate balance between the probative and prejudicial effect of evidence lies largely within the discretion of the trial court.

14. Rules of Evidence. There are four factors to be considered in determining admissibility under Neb.Rev.Stat. § 27-404(2) (Reissue 1985): (1) The evidence must have a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must outweigh its potential for unfair prejudice; and (4) the court must instruct the jury to consider the evidence only for the purpose for which it was admitted.

15. Criminal Law: Jury Instructions: Verdicts: Insanity: Appeal and Error. It is not error for a trial court to refuse to instruct a jury in a criminal case on the consequences of a verdict of not guilty by reason of insanity.

16. Criminal Law: Jury Instructions: Intent. A special diminished capacity instruction need not be given where the jury has been properly instructed on intent as an element of the crime charged.

17. Constitutional Law: Insanity. Neb.Rev.Stat. § 29-2203 (Reissue 1985) does not violate either the U.S. or Nebraska Constitution.

18. Homicide: Insanity: Proof. Neb.Rev.Stat. § 29-2203 (Reissue 1985) sets out an affirmative defense to the crime of murder and does not require the defendant to disprove any of the elements of the offense with which he is charged.

19. Criminal Law: Presumptions: Proof: Insanity. So long as the presumption of innocence is maintained throughout a trial and the State is required to prove all the elements of the crime charged beyond a reasonable doubt, a defendant may be required to plead and prove the defense of insanity, where defendant presents the defense as an absolute bar to the crime charged.

20. Criminal Law: Trial: Juries: Appeal and Error. The determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal.

21. Criminal Law: Aiding and Abetting. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.

22. Criminal Law: Jury Instructions: Witnesses: Corroboration: Convictions. Where a jury has been properly instructed that testimony of an accomplice should be scrutinized closely for possible motives of falsification, the uncorroborated testimony of an accomplice who has given false testimony concerning a material matter may be sufficient to sustain a conviction.

23. Testimony: Juries. The credibility and weight to be given testimony is a matter for the evaluation and determination of the jury.

24. Juries: Insanity. The defense of insanity when interposed by an accused is a question of fact for the jury.

25. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence to support such a finding.

H26. Convictions: Appeal and Error. In determining whether the evidence before a jury was sufficient to support the jury's finding, this court does not resolve conflicts of evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh evidence presented to the jury, for these are within the jury's province for disposition, and a jury's verdict must be sustained if evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

27. Trial: Evidence: Witnesses. It is the duty of the court to abstain carefully from any expression of opinion or comment on the facts or evidence, not only in its charge to the jury, but also on the examination of witnesses and otherwise during the course of the trial.

28. Trial: Judges: Recusal. A judge, who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding, must recuse himself or herself from the proceedings when a litigant requests such recusal.

29. Constitutional Law: Homicide: Sentences. The procedure set forth in Neb.Rev.Stat. § 29-2520 (Reissue 1985) does not violate either the U.S. or Nebraska Constitution.

30. Homicide: Sentences: Appeal and Error. The determination of whether to request the designation of a three-judge sentencing panel under Neb.Rev.Stat. § 29-2520 (Reissue 1985) is left to the discretion of the district court, and absent a showing of an abuse of that discretion, this court, on appeal, will affirm that decision.

31. Criminal Law: Constitutional Law: Homicide: Sentences: A criminal defendant who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

32. Records: Judicial Notice: Rules of Evidence. An entire trial record cannot be said to fall within the definition of a judicially noted fact as set out in Neb.Rev.Stat. § 27-201(2) (Reissue 1985).

33. Constitutional Law: Sentences: Evidence: Witnesses. A sentencing court must consider information adduced at trial when exercising discretion in imposing sentence, and there is no constitutional requirement to permit one convicted the right to confront all who might give information to be used by the sentencing court.

34. Trial: Presumptions: Appeal and Error. Without some affirmative showing in the record that a grant of a motion for discovery was violated, this court will presume compliance.

35. Sentences: Aggravating and Mitigating Circumstances: Proof. The facts upon which the applicability of an aggravating factor depends must be proved beyond a reasonable doubt.

36. Sentences: Aggravating and Mitigating Circumstances: Evidence. A sentencing court may not consider the same evidence to support different aggravating factors. However, a sentencing court may consider evidence of distinct incidents to support different aggravating factors.

37. Sentences: Aggravating and Mitigating Circumstances. Under the rationale of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), statutory aggravating circumstances must be clearly defined and applied by a court so as to prevent a sentencing body from exercising discretion that may lead to arbitrary or inconsistent results.

38. Sentences: Aggravating and Mitigating Circumstances. "Exceptional depravity" as used in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985) exists when the act is totally and senselessly bereft of any regard for human...