State v. Turner

• Decision Date: 27 July 1984
• Docket Number: No. 83-757,83-757
• Citation: 354 N.W.2d 617,218 Neb. 125
• Parties: STATE of Nebraska, Appellee, v. Curtis E. TURNER, Appellant.
• Court: Nebraska Supreme Court

Page 617

354 N.W.2d 617

218 Neb. 125

STATE of Nebraska, Appellee, v. Curtis E. TURNER, Appellant.

No. 83-757.

Supreme Court of Nebraska.

July 27, 1984.

Syllabus by the Court

1. Pleas. Regarding a guilty plea, a defendant is informed of the nature of the charge against him if the defendant had fair notice of what he was being asked to admit.

2. Attorney and Client: Conflict of Interest: Words and Phrases. The phrase "conflict of interest" denotes a situation in which regard for one duty tends to lead to disregard of another, where a lawyer's representation of one client is rendered less effective by reason of his representation of another client, or where it becomes a lawyer's duty on behalf of one client to contend for that which his duty to another client would require him to oppose.

3. Attorney and Client: Conflict of Interest: Words and Phrases. A conflict of interest exists whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.

4. Constitutional Law: Attorney and Client: Conflict of Interest: Effectiveness of Counsel. A sole attorney's multiple representation of codefendants is not per se a violation of the constitutional guarantee of effective assistance of counsel.

5. Attorney and Client: Conflict of Interest: Effectiveness of Counsel. Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.

6. Attorney and Client: Conflict of Interest: Effectiveness of Counsel. A conflict of interest must be actual rather than speculative or hypothetical before a conviction can be overturned on the ground of ineffective assistance of counsel.

7. Attorney and Client: Conflict of Interest: Waiver. A defendant can waive his right to assistance of an attorney unhindered by a conflict of interest, provided such waiver is voluntarily, knowingly, and intelligently done with sufficient awareness of relevant circumstances and likely consequences.

8. Attorney and Client: Conflict of Interest: Trial. Henceforth, unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel in situations of joint and multiple representation.

Daniel W. Ryberg, Omaha, for appellant.

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

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

SHANAHAN, Justice.

Curtis E. Turner was charged with the commission of two felonies--robbery (Neb.Rev.Stat. § 28-324(1) (Reissue 1979)) and use of a knife to commit the robbery (Neb.Rev.Stat. § 28-1205(1) (Reissue 1979)). By a plea bargain the charge regarding use of a knife to commit the robbery was dismissed by the county attorney. In exchange for such dismissal and in accordance with the plea bargain, Turner entered a plea of guilty to the charge of robbery. After a presentence investigation the district court for Douglas County sentenced Turner to a term of 7 to 10 years in the Nebraska Penal and Correctional Complex. Turner appeals. We affirm.

Prosecution of Turner arose out of the robbery of Town and Country Market in Omaha on May 16, 1983. Four men were charged with the robbery, namely, Marcy Davis, Tranell Seals, Donald Davis, and Turner. The record does not reflect the identity of attorneys representing individuals of the quartet before any appearances in the district court, although Turner's brief indicates counsel for the various defendants. For the purpose of background we accept Turner's statements designating counsel. After representing the four defendants at their preliminary hearing, the Douglas County public defender's office remained as attorney for Seals but withdrew as counsel for the other three defendants. An attorney in private practice was appointed to represent Donald Davis, and another attorney engaged in private practice was appointed for Marcy Davis and Turner.

Although Marcy Davis and Turner had entered pleas of not guilty, a plea bargain was negotiated between the prosecutor and the attorney for Davis and Turner. The plea bargain required the State to dismiss the charge involving use of a knife to commit the robbery, provided Davis and Turner entered a plea of guilty to the robbery charge. Section 28-324 contains: "(1) A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever. (2) Robbery is a Class II felony." As a Class II felony, conviction of robbery is punishable by incarceration for a term of 1 to 50 years. See Neb.Rev.Stat. § 28-105 (Reissue 1979).

At a joint hearing in the district court on July 27, Davis and Turner, through their mutual counsel, expressed their wish to withdraw the pleas of not guilty and to plead guilty to robbery, in accordance with the plea bargain. The judge proceeded to ask Davis and Turner about promises made beyond the plea bargain, threats, and indication of punishment on conviction. Having assured himself that the change of plea for each defendant was voluntary, the judge discussed the crime charged in the information:

[The information] alleges that on or about May 16th of this year in Douglas County that you did then and there forcefully and by violence or by putting in fear take money from the personal protection of Gregory J. Lyons, that money being the property of the Town & Country Market, and with the intent to steal that money. Have you talked over the information and the words that I have just read to you with your attorney?

(Lyons was the clerk in the store at the time of the robbery.) Davis and Turner each acknowledged talking with their attorney about the charge and understanding the charge in the information. The court informed Davis and Turner about the penalty which could be imposed upon conviction of robbery. After the defendants told the court that the penalty for robbery was understood, the judge meticulously explained the pleas available concerning the charge of robbery, the right to stand mute, and the constitutional rights given up by a plea of guilty. Each defendant acknowledged he understood that his plea of guilty would be "giving up those constitutional rights." The court explained the necessity and function of a presentence investigation and report "to help me determine what sentence" should be imposed after conviction, and cautioned the defendants that the court was not bound by any recommendations on sentence. Each defendant then withdrew his plea of not guilty and entered a plea of guilty to robbery.

Next, the court sought the factual basis for the guilty pleas. Requested by his attorney to "tell the judge what happened," Davis recounted the robbery, and in particular told the court about the presence of a knife: "So I think he [Lyons, the clerk] saw Curtis with the knife. Curtis didn't have it out, just had it on the side. I never seen him pull it out or nothing, but .... So he handed us the money...." After a colloquy between the court and defendants' counsel, the following conversation occurred as indicated, in response to the court's inquiry of the prosecutor:

THE COURT: Do you have anything to add ...?

[PROSECUTOR]: Why don't you hear from Mr. Turner.

THE COURT: Perhaps that is a good idea. You tell us also, Mr. Turner.

MR. TURNER: It was pretty hot that night. Went to the Town & Country. We was shopping for things to get. I got what I wanted. I went over to the counter. I ordered a couple of packs of cigarettes. He rung everything up and I had a knife right here, setting right here. As I was going for the money he seen the knife and he knew something was happening. He got to backing up. He just kind of like froze and handed me the money in cash. I grabbed the money out of the cash register and he got some more money out of the back. That's when my man got the money out of the back. We went on and left.

Shortly after Turner described the robbery to the court, the prosecutor added:

[PROSECUTOR]: Mr. Turner tells it pretty much as the victim remembers it, Judge. The victim, Mr. Lyons, who was the employee of the Town & Country does add that he received a few directives from the three people. There were a total of three people in the store .... These parties were apprehended in a car in just a matter of minutes after it happened approximately a mile away ....

I am satisfied with Mr. Turner's statement.

On September 9, at separate but contemporaneous sentence hearings for Davis and Turner, the presentence investigation and report to the court disclosed that Turner was a "functional illiterate" and that Turner admitted having the knife during the robbery of Town and Country. In the course of the sentence hearings the defendants' attorney mentioned that Turner, not Davis, had the knife during the robbery. At the conclusion of the hearings, the court sentenced Turner to a term of 7 to 10 years and Davis to a term of 4 to 8 years.

Turner has appealed and assigned three errors: (1) Turner's guilty plea to robbery was not made intelligently, because the court did not inform Turner of the "nature" of the charge; (2) Turner did not have effective assistance of counsel due to his attorney's simultaneously representing Turner's codefendant, that is, a conflict of interest depriving Turner of effective assistance of counsel; and (3) Turner's sentence is excessive under the circumstances.

An accused is entitled to be informed of the nature of the charge against him. See State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981). In criminal proceedings the complaint, information, or indictment is constitutionally sufficient (1) if...