State v. Wilson, S-96-525

CourtSupreme Court of Nebraska
Citation564 N.W.2d 241,252 Neb. 637
Docket NumberNo. S-96-525,S-96-525
PartiesSTATE of Nebraska, Appellee, v. Thomas A. WILSON, Appellant.
Decision Date13 June 1997

Page 241

564 N.W.2d 241
252 Neb. 637
STATE of Nebraska, Appellee,
Thomas A. WILSON, Appellant.
No. S-96-525.
Supreme Court of Nebraska.
June 13, 1997.

Page 244

Syllabus by the Court

1. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach its own conclusions independent of those reached by the lower courts.

2. Constitutional Law: Criminal Law: Right to Counsel. An accused has a state and federal constitutional right to be represented by an attorney in all critical stages of a criminal prosecution which can lead to a sentence of confinement. The same constitutional provisions also guarantee the right of an accused to represent himself or herself.

3. Trial: Right to Counsel. A defendant's right to self-representation plainly encompasses certain specific rights to have his or her voice heard. The pro se defendant must be allowed to control the organization and content of his or her own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.

4. Right to Counsel: Waiver. In order to exercise the right of self-representation, a defendant must first make a knowing and intelligent waiver of the right to counsel.

5. Constitutional Law: Right to Counsel: Waiver. An effective waiver of the federal constitutional right to counsel is sufficient to waive the right to counsel under our state Constitution.

6. Constitutional Law: Right to Counsel: Waiver: Proof. The State has the burden of establishing a knowing and intelligent waiver of a defendant's constitutional right to counsel.

7. Criminal Law: Right to Counsel: Waiver. A knowing and intelligent waiver of the right to counsel can be inferred from conduct. Consideration may also be given to a defendant's familiarity with the criminal justice system.

8. Right to Counsel: Waiver. At a minimum, the determination of whether a waiver is knowing and intelligent requires that the accused be made sufficiently aware of the right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel.

9. Right to Counsel. A trial court should warn a defendant who has the right to counsel of the dangers and disadvantages of self-representation, but the warning is not required.

10. Right to Counsel. A defendant may not use his or her right to counsel to manipulate or obstruct the orderly procedure in the court or to interfere with the fair administration of justice.

11. Right to Counsel. The district court may, in its discretion, allow a pro se defendant to act as cocounsel with appointed counsel but is not required to do so.

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12. Right to Counsel. The appointment of standby counsel for a pro se defendant is within the discretion of the trial court.

13. Trial: Prosecuting Attorneys: Evidence. A prosecutor's closing argument must be based on evidence received during the trial.

[252 Neb. 638] 14. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

15. Appeal and Error. An appellate court reserves the right to address plain error of such a nature that it would result in a miscarriage of justice or damage to the integrity, reputation, or fairness of the judicial process if not corrected.

16. Criminal Law: Due Process: Trial: Convictions: Sentences. Imposing a harsher sentence on the retrial of a criminal charge would violate due process of law if motivated by vindictiveness toward a defendant for having effectively attacked his or her first conviction.

17. Trial: Judges: Sentences: Records. A judge imposing a more severe sentence on a defendant after a second trial must make an affirmative statement on the record of his or her reasons for doing so.

18. Constitutional Law: Trial: Judges: Sentences. A trial judge is not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's life, health, habits, conduct, and mental and moral propensities. Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or from other sources.

19. Constitutional Law: Due Process: Sentences. Due process does not in any sense forbid enhanced sentences or charges, but only enhancement motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights.

20. Judges: Sentences. A judge or other sentencing authority is to be accorded wide discretion in determining an appropriate sentence and should be permitted to consider any and all information that might reasonably bear on the proper sentence for the particular defendant, given the crime committed.

21. Judges: Sentences. A sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.

22. Judges: Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.

Michael J. Tasset, of Johnson and Mock, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.


[252 Neb. 639] STEPHAN, Judge.

In 1986, a jury convicted Thomas A. Wilson of second degree murder and use of a firearm in the commission of a felony in connection with the shooting death of his son, Robert Paul Wilson, on August 31, 1983. He received consecutive sentences of 35 years' imprisonment on the second degree murder charge and 6 to 20 years' imprisonment on the firearm charge. We affirmed the convictions in State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987). After successfully petitioning for postconviction relief, Wilson was retried and convicted of both charges in the district court for Douglas County in April 1996. He was sentenced to 50 to 60 years' imprisonment on the second degree murder

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charge and 6 to 20 years' imprisonment on the firearm charge, with the sentences to run concurrently and credit for time served. Wilson now appeals those convictions and sentences. Finding no prejudicial error, we affirm.

The circumstances pertaining to the August 31, 1983, shooting are summarized in Wilson, supra, and will not be repeated here except to the extent pertinent to the issues raised in this appeal.

Wilson appeared at his arraignment on August 4, 1995, with Clarence Mock, an attorney who had been appointed by the court on July 28, 1995, to represent him. At the arraignment, the prosecutor asked whether several pending motions which Wilson had filed on his own behalf would be withdrawn because Wilson had an appointed counsel. Wilson replied, "I've asked for counsel, if you've noticed, to assist me, not to be appointed to defend me, but to assist me. In other words, where we can work together." The court stated that the issue of representation would be taken up at a future hearing and that Wilson would be advised regarding his Fifth and Sixth Amendment rights if he decided to represent himself with an appointed legal advisor. The court suggested Wilson discuss these issues with Mock before the next hearing.

At a status hearing on August 10, 1995, the district court stated it wanted to schedule a hearing regarding Wilson's request to represent himself. The court advised Wilson that it [252 Neb. 640] wanted to give him additional time to get acquainted with Mock and that perhaps, Wilson would change his mind about wanting to appear pro se because "the statistics on people representing themselves especially in serious cases is not very good." The court then scheduled a hearing to deal with this issue on September 13.

Wilson appeared with Mock at the hearing on September 13 and informed the court that he was "going to cooperate with the attorney by working together." The court again asked if he was going to act as his own counsel. Wilson replied, "I'm going to participate." The court told Wilson that he had not answered the question, and Wilson stated, "I'm not waiving my right to an attorney, if that's what you're asking me." Thereafter, the court stated, "All right. So you would like to have counsel?" Wilson did not respond. Mock then requested a few minutes to speak with Wilson, and the court ordered a short recess. When the parties returned, the court stated on the record:

Mr. Wilson, maybe it would help if I talked a little bit about what a lawyer does in a criminal proceeding. As a defendant in a criminal action, you always have the right to direct your own defense whether you have a lawyer or not. And I don't want you to think that if you have counsel represent you in your trial, that you're turning over control of your case to someone else. You still have a right to make all of the crucial decisions that are going to go into the trial of this case from your perspective. But I need to know whether or not you want to have a lawyer represent you in this proceeding. If you do, I would designate counsel to represent you.

And the difference between having someone represent you in the trial and having someone assist you is that if you have counsel representing you in the trial, that person is assuming professional responsibility for your defense. If you do not have a lawyer, but if you simply have an assistant at trial,...

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