State v. Weikle, 85-647

• Citation: 388 N.W.2d 110,223 Neb. 81
• Decision Date: 06 June 1986
• Docket Number: No. 85-647,85-647
• Parties: STATE of Nebraska, Appellee, v. Roger Lee WEIKLE, Appellant.
• Court: Supreme Court of Nebraska

Page 110

388 N.W.2d 110

223 Neb. 81

STATE of Nebraska, Appellee, v. Roger Lee WEIKLE, Appellant.

No. 85-647.

Supreme Court of Nebraska.

June 6, 1986.

Syllabus by the Court

1. Constitutional Law: Prisoners. Because prison inmates retain certain constitutional rights does not mean that these rights are not subject to limitation.

2. Administrative Law: Prisoners. Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.

3. Criminal Law: Trial. The accused in a criminal prosecution should be free from shackles during his trial unless they are necessary to prevent violence or escape.

4. Criminal Law: Trial. While one who is accused of a crime is entitled to have his guilt or innocence determined solely on the basis of evidence introduced at trial and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial, this does not mean that every practice tending to single out the accused from everyone else in the courtroom must be struck down.

Jerry Soucie, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Calvin D. Hansen, Lincoln, for appellee.

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

WHITE, Justice.

This was a criminal proceeding in which the appellant, Roger Lee Weikle, was charged in an information with five felony counts of escape, attempted escape, use of a weapon in the commission of attempted escape, first degree false imprisonment, and use of a weapon in the commission of a first degree false imprisonment. On May 20, 1985, he was found guilty of the first three offenses and a mistrial was declared with respect to the last two when the jury failed to agree. At an enhancement hearing Weikle was found to be a habitual criminal and sentenced to three consecutive terms accumulating to 50 to 150 years. The motion for a new trial was overruled and this appeal followed.

The five errors assigned can be summarized as follows: (1) The trial court erred in refusing to conduct an evidentiary hearing on the alleged denial of Weikle's constitutional right to confer with his attorney and in refusing to order prison officials to allow Weikle reasonable access to a telephone to confer with his attorney; (2) The trial court erred when it ordered Weikle and his inmate witnesses to be shackled during the testimony of the inmate witnesses; and (3) The trial court abused its discretion in imposing excessive sentences.

Throughout these proceedings Weikle was an inmate of the Nebraska State Penitentiary. The rule for prisoners housed in the section where Weikle was assigned provides that requests to make telephone calls for legal purposes will be approved only when the inmate has a case or hearing scheduled within 2 weeks or when the inmate's attorney makes the request. Although he did not have a trial or hearing scheduled within 2 weeks, Weikle forwarded a written request to prison officials for access to the phone, once a day, to call his attorney. His request was denied. He made a second request, which was also denied. He was advised to contact his attorney via correspondence. Weikle's attorney subsequently wrote to prison officials asking that Weikle be allowed access to the phone to speak to him. This request was denied; the record does not reflect the reason for the denial.

Prior to trial, a hearing was held on defendant's motion for access to a phone to call his attorney. The court dismissed the motion because the proper parties were not before the court. According to the court, the proper parties would have included the State, the warden of the Nebraska State Penitentiary, and the Department of Correctional Services.

Weikle did not allege at any time that he was being deprived of complete access to his attorney or that his inability to contact his attorney by phone resulted in ineffective assistance of counsel. While it is true that Weikle is not deprived of the full panoply of constitutional rights when the prison doors close behind him, "simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations." Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). "The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights." Id. at 546, 99 S.Ct. at 1877.

In a case concerning mail censorship in prison, the U.S. Supreme Court elected to consider the issues in light of the general problem of incidental restrictions on first amendment liberties imposed in furtherance of legitimate governmental activities rather than as an aspect of "prisoners' rights." Procunier v. Martinez, 416 U.S. 396, 409, 94 S.Ct. 1800, 1809, 40 L.Ed.2d 224 (1974). The Court concluded:

One of the primary functions of government is the preservation of societal order through enforcement of the criminal law and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation, the legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence.

Id. at 412-13, 94 S.Ct. at 1811.

Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security....

... Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.

Bell v. Wolfish, supra 441 U.S. at 547, 99 S.Ct. at 1878.

We do not believe that the district court was correct in dismissing defendant's motion for access to a telephone because the proper parties were not before the court. We think the district court does have the authority to order the custodian of a prisoner to allow that prisoner access to a telephone if otherwise the prisoner's constitutional rights would have been violated. The rights granted under the sixth amendment to the U.S. Constitution could not be assured otherwise. As the federal case law indicates, however, the rule in effect at the prison restricting the inmates' access to the telephone does not violate Weikle's constitutional rights. Weikle has not shown that he was prejudiced in any way. Unless an error can be considered prejudicial to the rights of a defendant, it may not be considered as ground for reversal. State v. Cinema 16, Inc., 197 Neb. 675, 250 N.W.2d 633 (1977). See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Turning to the second assignment of error, that the trial court erred when it...