State v. Strohl, No. S-97-1250

CourtSupreme Court of Nebraska
Writing for the CourtHENDRY
Citation255 Neb. 918,587 N.W.2d 675
Decision Date08 January 1999
Docket NumberNo. S-97-1250
PartiesSTATE of Nebraska, appellee, v. Daniel STROHL, appellant.

Page 675

587 N.W.2d 675
255 Neb. 918
STATE of Nebraska, appellee,
v.
Daniel STROHL, appellant.
No. S-97-1250.
Supreme Court of Nebraska.
Jan. 8, 1999.

Page 677

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress will be upheld unless its findings are clearly erroneous.

Page 678

2. Trial: Juries: Appeal and Error. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court and is subject to reversal only when clearly wrong.

3. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion.

4. Sentences: Appeal and Error. A sentence within statutory limits will not be disturbed on appeal absent an abuse of discretion.

5. Intercepted Communications. The Nebraska intercepted communications statutes make it unlawful to deliberately intercept through the use of any electronic, mechanical, or other device, any oral communications, unless the interceptor has previously obtained a court order permitting the interception or is a party to the communication, or one of the parties to the communication has previously consented to the interception.

6. Intercepted Communications. In order for a statement to fall within the protection of the intercepted communications statutes, the conversation must first be determined to be an oral communication.

7. Intercepted Communications: Words and Phrases. An oral communication is defined as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.

8. Intercepted Communications: Words and Phrases. For a statement to fall within the definition of oral communication as defined by Neb.Rev.Stat. § 86-701(12) (Reissue 1994), the communication must be [255 Neb. 919] by a person (1) who has a subjective expectation of privacy and (2) whose expectation is objectively reasonable under the circumstances.

9. Intercepted Communications: Words and Phrases. In order for a face-to-face conversation in a jail visiting room to be considered an oral communication under Neb.Rev.Stat. § 86-701 et seq. (Reissue 1994 & Cum.Supp.1996), the person making the statement must have a subjective expectation of privacy which is objectively reasonable under the circumstances.

10. Due Process: Evidence: Prosecuting Attorneys. 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 to punishment, irrespective of the good faith or bad faith of the prosecution.

11. Evidence. There is no duty to disclose evidence that is inculpatory.

12. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues; it is sufficient if the juror can lay aside his or her impressions or opinions and render a verdict based on the evidence.

13. Jurors: Presumptions: Proof. The competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.

14. Venue: Due Process. To warrant a change of venue due to pretrial publicity, mere exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process.

15. Venue. Press coverage which is factual in nature cannot serve as the basis for change of venue.

16. Trial: Juries. Except where there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine venirepersons out of the presence of all other venirepersons.

17. Sentences: Rules of Evidence. The sentencing phase is separate and apart from the trial phase, and the traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of sentence.

18. Sentences: Evidence. A sentencing court has broad discretion as to the source and type of evidence and information that may be used in determining the kind and extent of the punishment to be imposed.

Page 679

James R. Mowbray and Robin W. Hadfield, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

The present action involves Daniel Strohl's appeal from his conviction and sentence for criminal conspiracy to commit the [255 Neb. 920] of escape and the crime of use of a deadly weapon during the commission of a felony. See Neb.Rev.Stat. § 28-202 (Reissue 1995). Strohl was found guilty and sentenced to a term of not less than 20 nor more than 30 years' imprisonment. See Neb.Rev.Stat. § 28-105 (Reissue 1995). We affirm.

I. FACTUAL BACKGROUND

In December 1996, Strohl was being held in the York County jail awaiting sentencing in relation to his conviction for first degree murder in the death of Pamela Kelly. Raymond Avila, Virginia Jarrell, and Denise Hanson were also incarcerated during this time period. Jarrell's cellmate was Hanson, and Strohl's cellmate was Avila. Even though Strohl and Jarrell were housed in separate cellblocks, their cells were directly adjacent to each other. Given the proximity of the cells, Strohl and Jarrell were able to speak to each other through openings in the jail doors where food trays were given to inmates.

On December 30, 1996, Strohl's cellmate, Avila, sent the York County sheriff, Dale Radcliff, a note asking to talk to him. Avila informed Radcliff that Strohl had arranged for his "girlfriend" to bring a weapon to the law library and that she was going to leave the weapon in the same location where she had been leaving cigarettes. In an attempt to verify Avila's statements, Radcliff and his deputy went to the law library to conduct a search and found two packs of cigarettes hidden behind various books. Radcliff reported the incident to the county attorney and then contacted the Nebraska State Patrol to have a surveillance camera installed in the library. Radcliff spoke with Avila again on December 30; Avila told Radcliff that Strohl had written a letter to "some woman." Radcliff went to the jail mailroom to verify what Avila had told him and retrieved an outgoing letter sent by Strohl addressed to Jarrell, who had been released from custody on December 15. Radcliff did not open the letter but merely photographed the envelope and allowed the letter to be mailed. The next day, Radcliff saw Jarrell enter the sheriff's office and hand an envelope to the dispatcher. Radcliff retrieved the envelope, opened it and photocopied the letter, and sent it on to Strohl. Based on the contents of the letter, Radcliff and two State Patrol officers again searched the library and [255 Neb. 921] additional cigarettes. That same day, Avila informed Radcliff that Strohl was going to meet with "this woman" during visitation the next day to arrange for a weapon to be brought to the law library.

Based on the information obtained from Avila and the evidence found in the law library, Radcliff had a microphone placed in the jail visiting room to intercept the face-to-face conversations between Strohl and Jarrell. The jail visiting rooms at the York County jail are cement block, approximately 5 feet wide by 6 feet long on either side of a pane of glass that separates the visitor and the inmate. Below the glass is an area of approximately 6 to 8 inches which is solid except for a stainless steel grate in the middle. The microphone was placed in this stainless steel grate. The microphone receiver was placed in the sheriff's office, where it was monitored by a State Patrol drug investigator.

This procedure was followed four times. Because the sufficiency of the evidence is not at issue, we find it unnecessary to provide a factual recitation of the events that transpired after the initial interception. This court merely notes that the transcript of the intercepted communications reveals that an escape plan was being formulated.

On February 12, 1997, an information was filed against Strohl, charging him with criminal conspiracy to commit the crime of escape

Page 680

and the crime of use of a deadly weapon during the commission of a felony. Strohl filed an amended motion to suppress, seeking to exclude any intercepted oral communications or evidence derived from the allegedly illegal interception. Strohl argued the communications were intercepted in violation of Neb.Rev.Stat. § 86-701 et seq. (Reissue 1994 & Cum.Supp.1996). The district court overruled the motion and determined the communications in question were not "oral communications" as defined by § 86-701(12), because neither Strohl nor Jarrell exhibited either an objective or a subjective expectation of privacy. Strohl also filed a motion for change of venue and argued the pretrial publicity regarding his prior murder conviction would effectively deny him his constitutional right to a fair trial. This motion was overruled, and the case proceeded to trial.
255 Neb. 922

II. ASSIGNMENTS OF ERROR

Strohl contends the district court erred in (1) failing to sustain his motion to suppress, because the jail visiting-room conversations were intercepted in violation of the Nebraska intercepted communications statutes, § 86-701 et seq.; (2) overruling his motion for a mistrial because the State failed to provide exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) failing to sustain certain motions to strike, which in turn, forced him to use peremptory challenges; (4) overruling his motion to change venue; and (5) imposing an excessive sentence which was predicated on the court's receipt of a letter from Kelly's family as part of the presentence report.

III. STANDARD OF REVIEW

A trial court's ruling on a motion to...

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27 practice notes
  • State v. Gales, No. S-04-015.
    • United States
    • Court of Appeals of Nebraska
    • March 18, 2005
    ...be prejudiced, a party has no right to examine an individual juror out of the presence of all the other potential jurors. State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999); State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996). Gales has failed to explain why individual questioning was n......
  • State v. Quintana, No. S-99-1249
    • United States
    • Nebraska Supreme Court
    • January 12, 2001
    ...trial court and is subject to reversal only when clearly wrong. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 621 N.W.2d 131 A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be dist......
  • State v. Ryan, No. S-97-1035.
    • United States
    • Supreme Court of Nebraska
    • September 10, 1999
    ...in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.'" 255 Neb. at 892, 587 N.W.2d at 675. This ex parte meeting did not place Judge Finn in an inherently conflicting role, as set out in Ward v. Village of Monroeville, 409 U.S. 57, 93 ......
  • People v. Loyd, No. S092653.
    • United States
    • United States State Supreme Court (California)
    • May 6, 2002
    ...Allen v. State (Fla.1994) 636 So.2d 494, 496-497; State v. Wilkins (1994) 125 Idaho 215, 868 P.2d 1231, 1237-1238; State v. Strohl (1999) 255 Neb. 918, 587 N.W.2d 675, 682; Belmer v. Commonwealth (2001) 36 Va. App. 448, 553 S.E.2d 123, 129.) The result is the same even where the express pur......
  • Request a trial to view additional results
27 cases
  • State v. Gales, No. S-04-015.
    • United States
    • Court of Appeals of Nebraska
    • March 18, 2005
    ...be prejudiced, a party has no right to examine an individual juror out of the presence of all the other potential jurors. State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999); State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996). Gales has failed to explain why individual questioning was n......
  • State v. Quintana, No. S-99-1249
    • United States
    • Nebraska Supreme Court
    • January 12, 2001
    ...trial court and is subject to reversal only when clearly wrong. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 621 N.W.2d 131 A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be dist......
  • State v. Ryan, No. S-97-1035.
    • United States
    • Supreme Court of Nebraska
    • September 10, 1999
    ...in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.'" 255 Neb. at 892, 587 N.W.2d at 675. This ex parte meeting did not place Judge Finn in an inherently conflicting role, as set out in Ward v. Village of Monroeville, 409 U.S. 57......
  • People v. Loyd, No. S092653.
    • United States
    • United States State Supreme Court (California)
    • May 6, 2002
    ...Allen v. State (Fla.1994) 636 So.2d 494, 496-497; State v. Wilkins (1994) 125 Idaho 215, 868 P.2d 1231, 1237-1238; State v. Strohl (1999) 255 Neb. 918, 587 N.W.2d 675, 682; Belmer v. Commonwealth (2001) 36 Va. App. 448, 553 S.E.2d 123, 129.) The result is the same even where the express pur......
  • Request a trial to view additional results

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