State v. Whitmore

• Citation: 238 Neb. 125,469 N.W.2d 527
• Decision Date: 10 May 1991
• Docket Number: No. 90-495,90-495
• Parties: STATE of Nebraska, Appellee, v. Randall S. WHITMORE, Appellant.
• Court: Nebraska Supreme Court

Page 527

469 N.W.2d 527

238 Neb. 125

STATE of Nebraska, Appellee, v. Randall S. WHITMORE, Appellant.

No. 90-495.

Supreme Court of Nebraska.

May 10, 1991.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. Adefendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the trial court will not be set aside unless they are clearly wrong.

2. Effectiveness of Counsel: Proof. A defendant has the burden of demonstrating ineffective assistance of counsel.

3. Postconviction. One moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable.

4. Criminal Law: Effectiveness of Counsel: Conflict of Interest. In criminal proceedings, a defendant's right to effective counsel includes a lawyer's representation free from conflicting interests.

5. Effectiveness of Counsel: Conflict of Interest: Words and Phrases. "Conflict of interest" designates a situation in which regard for one duty tends to lead to disregard of another; a conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties.

6. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant's direct appeal.

7. Postconviction: Appeal and Error. The purpose of affording postconviction relief is not to permit the defendant endless appeals on matters already decided. Rather, the purpose is to correct errors of constitutional proportion which could not otherwise be raised on direct appeal, such as ineffectiveness of counsel who brought the direct appeal.

8. Effectiveness of Counsel: Appeal and Error. Where appellate counsel's performance is not constitutionally ineffective, there is no inequity in requiring defendant to bear the risk of attorney error that results in a procedural default.

9. Appeal and Error. Absent plain error, where an issue is raised for the first time in this court, it will be disregarded inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition.

Jerry L. Soucie, for appellant.

Robert M. Spire, Atty. Gen., and Terri M. Weeks, for appellee.

Before HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

FAHRNBRUCH, Justice.

Randall S. Whitmore appeals from an order of the district court for Douglas County denying him postconviction relief upon his contention that his lawyer at trial and his other lawyer at sentencing had a conflict of interest arising from their representation of a codefendant.

Whitmore, who was convicted of five felony violations of Nebraska's controlled substance act, sought postconviction relief under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989).

Because Whitmore had different lawyers upon his direct appeal and the conflict issues could have been raised at that time, we affirm.

A defendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the trial court will not be set aside unless they are clearly wrong. State v. Britt, 237 Neb. 163, 465 N.W.2d 466 (1991); State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990). See, also, State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990) (a defendant has the burden of demonstrating ineffective assistance of counsel). One moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990). In criminal proceedings, a defendant's right to effective counsel includes a lawyer's representation free from conflicting interests. State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990). "Conflict of interest" designates a situation in which regard for one duty tends to lead to disregard of another; a conflict of interest places a defense attorney in a situation inherently conducive to "divided loyalties." State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988).

This is the defendant's second postconviction motion before this court. Jurisdiction was denied in response to the first motion when the defendant was not in actual custody in Nebraska but, rather, in the Federal Bureau of Prisons. See State v. Whitmore, 234 Neb. 557, 452 N.W.2d 31 (1990). Whitmore now alleges that he has been released from federal custody and has been in the actual physical and legal custody of the Department of Correctional Services for the State of Nebraska continuously since August 26, 1989. This court will consider this as defendant's first motion because the issues raised in the prior motion were not actually litigated. See State v. Svoboda, 199 Neb. 452, 259 N.W.2d 609 (1977) (for postconviction purposes, issues raised on direct appeal but disposed of procedurally were not "already litigated").

The core issue in Whitmore's case relates to an admission by Whitmore of which the factual background is well described in his direct appeal:

This admission had to do with the defendant's ownership of certain keys which included keys to a 1971 brown Plymouth Valiant automobile and a toolbox located in the trunk.

On November 23, 1981, the police searched that particular automobile, pursuant to a search warrant. The warrant had been issued on the strength of an affidavit which recited in substance that, according to informants, this particular automobile was used by the defendant and John White to cache illicit drugs, and which, although registered in the name of a fictitious Mark Salem, was nevertheless owned by the defendant. The search revealed several items which, upon analyzation, were found to be controlled substances. It was necessary for the State to somehow tie the defendant into the ownership or use and control of this automobile....

On November 23, 1981, the police executed a search warrant permitting the search of the defendant's person and the premises at 2722 North 64th Street. The premises were entered by way of the front door through a glass panel that had been kicked out. The defendant was placed under arrest, which was on the strength of probable cause, without the issuance of an arrest warrant. He was not given Miranda warnings.

Nevertheless, the officers asked the defendant if he was the owner of a specific set of keys found on the dresser in the room in which the defendant was located, and he answered that he was. Two of the keys were found to fit the trunk and door lock of the 1971 Valiant, and one fit a toolbox in the trunk.

State v. Whitmore, 221 Neb. 450, 454, 378 N.W.2d 150, 153 (1985).

Further, the record reveals that a small vial containing cocaine was found in Whitmore's pants, the question officers asked Whitmore was ruled a neutral question, and a fourth key opened White's apartment. The purported ownership of the keys was used to connect Whitmore to the drugs.

Whitmore now contends that his trial attorney, who represented both Whitmore and White, had an actual conflict of interest because the defendants had antagonistic defenses. The defense of each was claiming that the keys were owned by the other. The history of legal representation in this case is amply described in the district court's order concerning Whitmore's postconviction motion.

The thrust of Defendant's Motion is an alleged conflict of interest resulting from Attorney James M. Davis' representation of the Defendant and one John White. Essentially the two had been charged with possession with the intent to deliver the same drugs.

When the respective Informations were filed in January, 1982, Attorney Davis was retained by Defendant John White. Defendant Whitmore retained Attorney Ralph Smith.

....

On June 21, 1984, and June 25, 1984, Defendant John White's, case was tried to the Court by Mr. Davis without the intervention of a jury. The Court took the case under advisement and while same was under advisement, Defendant Whitmore appeared in Court with Attorney Davis on June 28, 1984. Attorney Smith was granted leave to withdraw and on motion of Attorney Davis, the Defendant Whitmore was granted leave to withdraw his previous waiver of trial by jury. Jury trial was set for July 9, 1984. A Miranda hearing was also held on June 28, 1984 and ruled on July 6, 1984.

There is no doubt but that White's case was still under advisement when Defendant Whitmore's trial commenced on July 9, 1984, or when it concluded by verdicts finding Defendant guilty of each charge and count on July 13, 1984.

On December 4, 1984, Defendant appeared for sentencing with Attorney J. William Gallup and was sentenced.

....

Defendant hired new Counsel Taylor, Fabian, Thielen & Thielen to prosecute his appeal to the Supreme Court, and although the issue of conflict of interests was serious the issue of the conflict was not raised in or addressed by the Supreme Court in the direct appeal.

Allegedly, Davis spoke with the trial judge, who responded that there would be no conflict by the time of trial, presumably because White was being tried first. Whitmore now claims that Davis, at the suppression hearing and trial, did not present evidence to rebut the State's arguments that Whitmore possessed the cocaine in his pants or that he owned the keys. At the sentencing hearing Whitmore was represented by attorney Gallup, who Whitmore now alleges had an undisclosed conflict because he represented White at his preliminary hearing. The...